13th September 2020
Yesterday this blog set out an ‘anatomy of a potential constitutional crisis’.
In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.
The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.
The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.
These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.
There were third and fourth facts which also should have been listed.
The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.
The fourth fact is that the Cabinet Secretary has expressly sanctioned this intention of breaking the law as being compatible with the Codes for ministers and civil servants.
And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.
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None of this – yet – constitutes a constitutional crisis.
The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.
If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.
But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.
Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.
Such a political game does not, however, justify direct threats by the government to break the law.
Perhaps this is just a passing row, and the government u-turns this week on this proposal.
But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.
There will be an impact.
And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.
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Thank you. Robert Buckland claimed on LBC this morning that such threats were not unprecedented, citing previous government threats to ignore judgments of the “European court” (I assume he meant ECtHR) on life imprisonment cases. I would be interested to know if you think this a good point?
I very much agree with your comment, ” all this could just be politics”.
The Government is currently stewing between the Scylla of the EU and the Charybdis of the ERG. My sense of this is that it still wants a deal but anxiety is mounting about its ability to resolve the dilemma that they have landed themselves in.
I think they are relatively unworried by the media reaction to their latest “brilliant” wheeze and believe the twenty four hour media focus will quickly move on if they can get the agreement they want.
Of course the chances of all this ending in tears is very high, but Boris will brazen it out as is his wont.
I don’t believe Boris has any intention of getting this act through. He’s merely using it as a negotiating tactic to show the EU how little they mean to the future of the UK.
You refer to the Unionist threat in 1912-1914 and in particular in 1914 to ignore the law. However the Unionists had an argument that the constitution was in suspension until the undertaking in the Preamble to the Parliament Act to reform the Lords was carried through. This may have been a pretty inadequate fig leaf but it was a fig leaf. Further the Unionists wee in opposition, not in government.
One might argue that the precedent for this was the Declaration of Indulgence by James II or England and VII of Scotland. The king claimed a general dispensing power. This is what the English Parliament had to say:
1688 CHAPTER 2 1 Will and Mar Sess 2
An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne.
X1Whereas the Lords Spirituall and Temporall and Comons assembled at Westminster lawfully fully and freely representing all the Estates of the People of this Realme did upon the thirteenth day of February in the yeare of our Lord one thousand six hundred eighty eight present unto their Majesties then called and known by the Names and Stile of William and Mary Prince and Princesse of Orange being present in their proper Persons a certaine Declaration in Writeing made by the said Lords and Comons in the Words following viz
The Heads of Declaration of Lords and Commons, recited.
Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome.
Dispensing and Suspending Power.
By Assumeing and Exerciseing a Power of Dispensing with and Suspending of Lawes and the Execution of Lawes without Consent of Parlyament.
Earlier examples can be found in the reign of Charles I.
James I, Elizabeth, Mary and Edward VI seem to have exercised some care not to disregard an existing law – witness the negotiations with Parliament over the return of Pole and the restoration of the heresy laws under Mary and the debates over the Act of Supremacy of Elizabeth I.
One of the issues over Henry VIII’s change of the religion of England – a point I have heard Sir John Major make – was that it was in defiance of the guarantee of the freedom of the English Church in Magna Carta. It should be noted that Wolsey and Henry backed down when the Commons strongly protested at a proposal to repeal some of the protections afforded those who were accused but not arrested introduced by Richard III – protections that survived largely intact until the Home Secretaryship of the then Mr David Blunkett.
Henry VII hit on an ingenious scheme to subvert the rule of law – he backdated his reign to the day before Bosworth so that he could treat those who had fought for the lawful king of England as guilty of high treason. After a rather protracted running battle (12 years) with Parliament, the king eventually gave way and Act 11 Hen 7 c 1 (The Treason Act 1495 or the Rex de facto statute) provided that nobody could be convicted of high treason for fighting for the lawful king at the relevant time.
The precedents for what Johnson is doing are pretty thin. The most alarming must be that of Henry VII – it took 12 years to get things sorted out. On that basis we might “get Brexit done” by 2028
If the bill were to proceed through all stages it would place sovereign/privy councillors in invidious position re giving Royal Assent to proposed legislation?
Interesting question. I suspect there’s an argument to be made that giving Royal Assent to such a bill, which would allow HMG to break the law of the UK, could constitute a violation of the Queen’s coronation oath, specifically this bit (taken from Royal.uk):
“Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?
Queen. I solemnly promise so to do.”
“Invidious” seems like a good choice of word.
This whole situation has a 14thcentury feel about it. The metaphorical king (in this example Richard 2) rules by personal prerogative, ignoring the constraints placed on his conduct by the law of the land, constitutional customs and parliament. He listens to and acts only on the spurious advice of venal royal favourites, sycophants, and fops, ignoring the counsel of his sage councillors. He is not bound by any oath, promise or agreement he has made, since they are merely political tools to be used tactically to overcome local difficulties, and can (indeed should) be renegade as soon as possible. He has never actually claims to be above the law, or that the lives and property of his subjects are at his disposal absolutely, but that is the premise upon which he acts. Of course it ends in tears: he goes too far, the barons (the real power brokers) depose him as “useless and unfit”. He dies in mysterious circumstances a few months later.
I have only BEGUN digesting this, having read part (perhaps the greater part) of this pair of postings in a decent first-reading way and having skimmed the rest. And I am attempting my reading with nothing but the intellectual equipment of the casual newspaper reader, whereas many of Mr Green’s commentators on this blog will be educated in law. Further, I live far away from the United Kingdom, in Estonia.
These three points duly made, I want (1) to put on record, as a decades-long friend of the UK, my shock at what seems to be unfolding, and to implore Mr Green and his legally trained readers to keep this matter under scrutiny.
Additionally, (2) I wish to ask a tiny, layman’s, question, which Mr Green or some blog-commentator of his may or may not venture to answer: if HM Government persists in a breach of international law, can some appropriate international tribunal, such as the International Court of Justice (at The Hague), be somehow persuaded to hear a case against HM Government?
Anxiously,
Toomas Karmo
Nõo Rural Municipality, Tartumaa County, Estonia
In this instance, the ECJ will be able to hear cases regarding breach of the Withdrawal Agreement, and the European Commission has already announced it is preparing to take action against the UK government in this regard. If the UK government doesn’t comply with whatever order the ECJ eventually makes, the EU27 may decide to take retaliatory measures, such as high tariffs and import bans.
You mention, and link to, the “Home Rule crisis” in 1914. I’m in NI, and the eventual “solution” to this is still playing out. There’s a lot of political discussion about the events you describe, and just what the place of Ulster Unionism might be. Sir Edward Carson played a large role in the Home Rule crisis; but by 1921 his view had changed. He said:
“What a fool I was. I was only a puppet, and so was Ulster, and so was Ireland, in the political game that was to get the Conservative Party into power.”
Some things don’t change.
I just listened to the Spectator podcast on this subject where James Forsyth described this move as forcing both sides in this negotiation to look over the precipice, to put pressure on the EU.
I read it slightly differently.
I think this is a ‘tell’ on the part of the government … a subconscious expression of very significant anxiety that they have boxed themselves in to a dangerous position vis a vis the Good Friday Agreement. It’s the first time they have really acknowledged this risk, and it displays the weakness of the British negotiating position to the EU.
In terms of the game theory and rationalism that the PM’s advisory team claim expertise in, this move is inexplicable because a demonstration that you’re willing to renege on your agreements puts all your opponents on watch. It leaves little room for meaningful future negotiation. And it rips apart the notion that your counterparts, or those over whom you will claim to wield authority, will act obediently or rationally.
The key example of this …. Barnard Castle. In just a few days this miscalculation obliterated the government’s authority.
The most chilling phrase uttered by a parliamentarian in recent years was ‘the will of the people’ – or perhaps that should be ‘The Will of the People’. Who needs law – international or domestic – when you have that behind you?
And who are the People?
I think my first four words should make clear what I meant.
No……I was agreeing with you!
As Dutch citizen I’m not sufficiently informed, sorry for that. Can anyone please state whether or not the proposed legislation will also require consent and signature of Elizabeth Regina?
Kind regards
It will require her assent and thus signature.
There’s an immediate problem with that. The monarch in the UK is (supposedly) above politics, and does as her Cabinet advises. Yet she will be aware of the situation, as will her personal advisers (her Courtiers). Should the Bill pass, her Prime Minister (and Cabinet) will advise her to sign; but her Courtiers will have forwarned her of the illegality of some parts of the Bill.
Will she refuse to sign? She could, or she could strike out any offending clause. AFAIK, this has not been done anyway recently, certainly not for a century or more. The potential is there for a “constitutional crisis”.
I may be mistaken, but so far as I know, no sovereign has refused Royal Assent to a Bill passsed by both Houses of Parliament since Queen Anne turned down the Scottish Militia Bill in 1708, and that was done on the advice of her ministers due to changes in the strategic position during the War of the Spanish Succession (the Bill was passed to arm the Scottish militia, which hadn’t been reestablished after the Restoration, but between the Bill’s passage through Parliament and the planned signing by Queen Anne, intelligence had been received that the French planned to land troops in Scotland and incite a Jacobite uprising, and the government was concerned that any militias they armed could join the Jacobites).
I was vaguely aware of Queen Anne refusing Royal Assent, but didn’t know the details; thanks.
There is a story/myth about the 1885 Criminal Law Amendment Act — specifically the Labouchere Amendment making gross indecency between men illegal. It’s said that there was a similar clause or section about women, but that as Victoria couldn’t imagine same-sex relations between women she crossed it out. I suspect such a clause wasn’t in the original Bill, but I’m not sure of this.
Does this make Robert Buckland a worse Lord Chancellor than even Grayling?
Deliberate malice vs indiscriminate incompetence… tough choice.
Yes, this “may just be politics” but I suspect that it is a move to further test MPs’ knowledge of the constitution and the role that they play as representatives of ‘the people’ in ensuring that the Government always acts in the best interests of the whole nation. Our current Government seem intent upon achieving the aims of constitutional change that they mentioned in the 2019 manifesto by early practice, rather than through debate with Parliamentary scrutiny. If Conservative MPs allow the Government to exploit their current majority to succeed on this subject, then they will be dancing to the Executive’s tune on many more subjects soon.