The Anatomy of a Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers

14th September 2020

For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.

By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.

(See my posts here and here.)

That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.

The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.

But that resignation has made no difference: the process has continued anyway.

A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.

Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.

So much for the civil servant gatekeepers.

Now for the politicians.

The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.

The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.

And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.

So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.

These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.

And all have failed.

So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.

And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).

If so, that would be an example of a working constitution.

But for this proposal to have even got to this stage, parts of the constitution have not worked.

The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.

Only at the margins should constitutional tensions be resolved by litigation.

But what happens when the conventions do not work or are flouted?

The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.


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27 thoughts on “The Anatomy of a Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers”

  1. It is depressing, no it is utterly depressing, to see how many people are prepared to roll over for Johnson.

    As in the US, Johnson and Trump keep on going until they find people who will do what they want – a Braverman here, a Barr there. Both leaders are narcissists for whom there is no right or wrong, the only measure is what is in it for them.

    Typical spinelessness from Cameron, whose uselessness lost the Referendum and whose lack of judgement allowed the promotion of Johnson, whom he should have buried deep into obscurity long ago.

    We are now about to find out how many Tory MPs have a spine.

  2. We appear to have encountered a problem that when the rules of a “gentlemen’s agreement” are being adminstered by somebody who is “a bounder and a cad” rather than a gentleman, we lack the mechanism to ensure that “unwritten” rules are followed.

    This is not the first time. Johnson was blatantly in contempt of court over his utterances last year about obeying the Benn act, but the judiciary turned a blind eye. Who can act when the head of the executive is the very person breaching the laws that they ought to ensure are being upheld? Do we need another private action before the Supreme Court by a principled member of the public to resolve a situation that parliament itself ought to prevent from happening? How can it be that enough Conservative MPs will be prepared to bow to the whips office and sanction the breaking of international and domestic law (since the WA is on UK statute)? Is there no sanction on an MP that votes to break the law?

  3. I fear we’re reaping the results of a victory in the 2019 general election by a man who is unmoored from principle from an opponent whose principles were wholly unmoored.

    That was the better choice at the time, but the price is now becoming clear.

    Unmoored from principle, the triumvirate in Number 10 (Messrs Johnson, Gove and Cummings) has swallowed the Kool-Aid of its third member, its one member who has never run for public office. What does this Kool-Aid say: that there are fusty institutions in the UK that stifle its effectiveness: the judiciary, the legal profession in general, the law, the civil service, the constitution and Parliament. They are not so much given short shrift but overtly ignored, attacked and, where possible, overturned.

    Mr Cummings has been held in contempt of Parliament; which was further demonstrated in his master’s attempt (or was this Cummings?) to prorogue Parliament in order to muzzle it; there is the departure of 6 senior civil servants, heartily desired by the Number 10 triumvirate; the expulsion of moderate MPs from the Tory party; their replacement at the ministerial level by a selection of inadequates: Williamson, Patel, Braverman, Hancock and Jenrick; the examination of judicial review designed as an overture to its emasculation; and now the publicly announced willingness to ignore a commitment under international law made – in statute, no less – less than a year ago.

    This is a concerted power-grab, designed at weakening, cowing or removing resistance. Not for nothing has Mr Cummings praised only books from outside the democratic forum for those working in government (as Andrew Hill noted in the FT on 30 December 2019). Not for him the journeyman tasks of securing consensus, tackling and charming dissenters or of patiently navigating legal challenges to government objectives but the more direct (or shall we say dictatorial) style of a man charged with secretly developing the atom bomb in wartime (Leslie Groves) or of a former Intel CEO (his near namesake, Andy Grove), the man who wrote a book entitled “Only the Paranoid Survive”; or the approach taken in the Department of Defence’s DARPA project or the Apollo project.

    None of these exemplars, literally none, played out in a democratic forum.

    In other words, this government’s chief special advisor cares little for the law, for Parliament or for institutions.

    That is what characterises this government: a long march attacking the UK’s institutions.

    Doubtless there is much that is wrong in the UK body politic and with its institutions. But this does not legitimise this vast power grab.

    1. I don’t agree that voting Tory was the better choice at the time. It was clear that the Withdrawal Agreement didn’t stack up and that Gove, Cummings and Johnson were without scruples and a threat to democracy . Labour had no hope of gaining a working majority and would have needed to go into some kind of arrangement with other parties who could have insisted on a new leader, who would have most likely been Starmer.

  4. On behalf of Americans, I apologize that our inability to constrain the current President despite a written Constitution may be emboldening your government to violate your less formal “guardrails”.

  5. Can the government’s position be defended?

    Leaving aside the State Aid rules and focusing on the movement of goods and especially food, I suggest the following:

    The Government is committed to leaving the EU single market and wished to avoid a “hard” border in Ireland. To do this it signed the Withdrawal Agreement which required an administrative and customs border between Northern Ireland and Great Britain. But this was in the context of agreeing a Free Trade Agreement (FTA) with the EU which would have meant that only a small minority of goods passing to Northern Ireland would require paperwork, tariffs or meet other barriers.

    If the necessity for such an FTA is not written into the agreement that does not mean that it was not an assumption held by both partners. Indeed the agreement began life as a “backstop” for a special FTA which would avoid a hard border.

    Now it appears that an FTA is unlikely to be agreed. The government has concluded that in the absence of such an FTA this aspect of the Withdrawal Agreement is not possible (for political reasons which in the case of Northern Ireland may include a resumption of civil disorder) and must be abandoned: not in defiance of international law, but in accordance with Articles 48 (incorrect assumptions) and 61 (impossibility) of the Vienna Convention on treaties.

    But discussions on an FTA are still in play and an agreement on an FTA is still possible, so the government cannot immediately invoke these articles. In order to signal that it does not intend to be bound by the WA without an FTA it has therefore published a draft bill which institutes a “mutual recognition” principle (Section 2) which directly and without any further regulation prevents an administrative or customs boundary between Great Britain and Northern Ireland. Should a comprehensive FTA be agreed this section will merely mirror its provisions. Should a less comprehensive FTA be agreed the section can be amended to allow such a boundary in “limited and specified” cases.

    This case has been stated in part by a number of commentators on the web, usually with the linked accusation that the EU has not been negotiating in good faith. Others see the failure to achieve an FTA as clearly the fault of the UK government. Such accusations are important politically but are not necessary to defend the government’s legal position.

    This is the best that I can do but it would read better if the government stated it outright. I hope this is not too irksome.

  6. David, I suggest that there was one gatekeeper that did do its job.
    This effect of this gatekeeper is visible in the curious wording in the bill expressly stating that that particular provision, if activated by the relevant minister, might breach international law.
    At first sight, this seems a case of the government advertising a potential own goal: why state this in so many words?
    I suggest that this is because the government’s legal advisors have seen how the courts have, if pushed, been able to devise a construction of statute that went against what the legislator thought he had intended. In particular in judicial review, where such inventiveness can be traced as far back as Anisminic.
    So, I suppose, the government’s legal department said to its political masters: look, you have to state in so many words that this provision may breach international law, otherwise the courts may declare it invalid on the grounds that this was not the intention. The presumption, unless otherwise rebutted, is that Acts of Parliament are to be consistent with international law – for which there is plenty of case law in support.
    This forced the government to come clean on the matter right at the start in the bill’s wording. Which has had the useful effect of focusing minds on the matter right at the start of the bill’s progress through Parliament, not some time later (when it might be too late).
    So one gatekeeper – a mechanism derived from common law – has operated.

    1. I’m not convinced that it’s functioning as an effective gatekeeper, but that’s a very interesting consideration.

      Because otherwise, “notwithstanding” all the astonishing defensive recitals in this bill —which often seems more obsessed with proofing itself against any possible action of Parliament and our own national courts than with the issues it purports to address— an Appeal judge might simply conclude that she is faced with conflicting legal principles and contradictory legislation and toss it on the BBQ to be resolved by the standard procedures, exactly what they are aiming to avoid at *all* costs.

  7. In your FT article of 14 September, you commented on the apparent insouciance of MPs in voting this bill through. We saw the same insouciance in their approval of the ill-conceived EU referendum (I am not saying that holding a referendum was necessarily wrong). I think it was 3 or 4 years ago that The Economist remarked upon the inadequate ways in which MPs are recruited. Often too young, too immature, too easy for an unscrupulous executive to manipulate. This is particularly damaging in a constitutional system that relies on the self-restraints that Bagehot. described. We appear to have a problem of governance. The authors of the Federalist Papers, who knew the British system well, perceived some of the risks. Not that the US is immune either, as one of your respondents points out.

  8. If Johnson, Gove and Cummings were prosecuted for breaching section 3 of the Treason Felony Act 1848 (“Section 3”) the jury that heard the case would be the final gatekeepers of the UK’s constitution.

    Section 3 represents an express statutory exception to the general rule that lawyers shouldn’t interfere with “political” decisions. Passed in 1848 to counter the threat of the Chartist movement following a peaceful meeting on Kennington Common: “The peak of Chartism occurred in 1848 from June to August, in the teeth of suppressive government measures forbidding freedom of assembly, which had also established a new treasonable crime of open and advised speech, potentially covering almost any radical political utterance.” (The Chartists Perspectives & Legacies by Professor Malcom Chase, page 104).

    Five articles published in the New Law Journal between 2017 and 2020 explain:
    1. the historical basis behind the creation of the Section 3 offence in 1848;
    2. that there is a real risk that MPs have been “overawed” by the 2016 EU referendum result;
    3. how the single market creates a binary decision for MPs that means a “soft” Brexit, that is not economically damaging for the UK, highly unlikely;
    4. how Section 3 is different to misconduct in public office; and
    5. that following the 2019 general election MPs have been “overawed” and that the key individuals in the Vote Leave campaign remain vulnerable to prosecution under Section 3.

    The UK has an unwritten constitution. It deals with issues as and when they arise in a reactive and pragmatic way. In other words, Newton’s third law applies: every force has an equal and opposite reaction. Section 3 provides an antidote to Brexit.

    Unlike judicial review challenges that attack flawed decision-making processes a Section 3 prosecution would deal with the substantive false promises made by key Brexiteers, as encapsulated in the 2016 Vote Leave campaign slogan: “We send the EU £350 million a week, Let’s fund the NHS instead” and latterly the claim to “Get Brexit Done” deployed by the Conservative Party during the 2019 general election.

  9. Dear DAG,
    Before I left Twitter a couple of years ago, we exchanged about Margaret Thatcher’s European commitment. You might be interested in a blog post of mine from 2017, the distant past, where I quote her from April 1975.
    But for Britain to leave [the European Economic Community] would mean denouncing a Treaty.

    Britain does not break Treaties. It would be bad for Britain, bad for our relations with the rest of the world and bad for any future treaty on trade we may need to make. As Harold Macmillan said recently: ‘We used to stand for good faith. That is the greatest strength of our commerce overseas. And we are now being asked to tear up a Treaty into which we solemnly entered’.

    The choice is clear. We can play a role in developing Europe, or we can turn our backs on the Community.

  10. David I am slightly confused, you say:

    ”And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).”

    Did you mean IMpossible or do you mean possible? I think you mean the former, but am not sure. By the way an excelllent analysis of where we are, how we got here and why we got here and perhaps as importantly why we didn’t get here for the reasons that the Government is claimin that we got here for!

  11. At the risk of sounding naïve – I’m not a legal person – does the Queen have the constitutional power to decline to approve legislation that breaks international law?

    1. As I understand it, from my vaguely-interested layman’s perspective, yes, she does. In fact, she strictly has the constitutional power to refuse Royal Assent to any legislation she likes, even an explicit manifesto commitment that could be said to have been directly approved by the electorate. However, she knows that doing so would trigger a constitutional crisis that would force her abdication, and probably bring down the monarchy, which she would see as a violation of her coronation oath (and she takes that oath bloody seriously), so it’s basically the Doomsday Button for her.

      That said, I have wondered elsewhere whether giving Assent to a Bill that explicitly breaks the law would also constitute a violation of the coronation oath.

  12. Dear David,

    As always, I enjoyed your sober take on the present shenanigans of HMG. Precious little to add to your reasoning, but nodding and/or shaking the head along.

    However, I beg to differ with you, on your point that there is no constitutional crisis as of yet. That ship has sailed a long time ago, by the back-door, and unnoticed by pretty much everyone.

    There was a reason for the Cameron administration to make the Brexit referendum an advisory one, namely, to avoid constitutional checks and balances. An advisory referendum did not need a threshold for voter turnout (it would have been satisfied, no doubt), nor threshold for the voting results (it was 50-50 now, could have been, say, 60-40), and, crucially, there was no safe-guards for the constituent nations vote to be respected, taken to account, if you will.

    Thus, this advisory referendum was inherently biased towards English voters, by simple arithmetic of voter numbers — dictating the result to the rest. Furthermore, the referendum, now devoid of constitutional checks and safe-guards, allowed the politicians to by-pass the very constitution, in its entirety, by promising to honor the result of the advisory referendum, as if it was a binding one.

    So, by designing a referendum that skirted the very constitutional checks and safe-guards, it gave them the option to wholesale revamp the UK’s constitutional order.

    This should not be possible in a functioning democracy — and, as a matter of fact, amounts to a coup d’état, by the backdoor.

    Ever since the UK has been in the throes of the mother of all constitutional crisis, but 2016 is so passé, and to return to debating the original sin now, is simply too late. There is no returning to the status quo.

    But, if this point is not understood and acted upon, this illegitimate power crab will end up burning down your house.

    One last remark, slightly off topic.

    Mr. Johnson is not the problem, and I predict him gone by early next year. He was the popular front-man of and for Brexit, and he will be their patsy. When he resigns, he takes the blame, and a Sunak can step forwards to finish the project.

    Deregulation is the name of the game for the shot callers, right?

    And, this is, also, the main reason for the treaty breaking lunacy, that’s on-going. LPF, and any rules and regulations, will tie their hands and limit the scope to deregulate. Somebody has to get cake out of this.

    A deregulated hellscape for sale is coming.

    1. Thank you. I’ve been arguing that Brexit is a coup d’etat for years, but not as compellingly as this. So what action should be taken, by whom?

      1. More accurately, perhaps, Brexit was an excuse for a coup d’etat. A trust-based constitutional and governance system exploited by the unscrupulous.

        1. The coup d’état, by the backdoor, was an inherent part of, and the core element, in the concept of Brexit. All one needed to achieve, to rewrite UK’s constitutional order, was to win the referendum. (They would have insisted on further referendums, if they’d lost in 2016. They needed to gets this right just once, hein.)

          Parliament is sovereign, but the membership of the EU, held them accountable. Now, with Brexit, um, done(ish) — the UK is, quite frankly, an elected “dictatorship” by minority government, (43,6% of the vote giving ~57% of the seats).

          Once they get their “no-deal” or minimal FTA with the EU, they have a carte blanche to ignite a bon-fire of deregulation upon the UK. They will do so, while assuring the people, that all of it is necessary and inevitable to gain full sovereignty, and be innovative, competitive and whatever.

          Just slap a two-cent slogan on it, et voilà, done.

          Here’s one: “Britain will raise — tomorrow”. Optimistic, future tense, no accountability.

          The latter could be, also, that of the Tory party, but I digress.

          1. Ah,

            Nice to hear you argue “my case”, above, in your FT podcast, this morning.

            Law has no meaning, if it cannot protect itself from executive abuse, a country without laws is a tyranny (elected or not), not a democracy.

            The UK’s membership of the EU, for the first time in its history, made the UK resemble a real democracy. Granted, it was still a very weak one, internally, but it was put in a straight jacket for the “important stuff”.

            It is all gone now. By a cheap, populist, constitution by-passing scam. There was no chance, in hell, for UK politicians to win, or rather, to reclaim “absolute powers” by legal means, and/or by parliamentary acts.

            But, one can fool a section of the citizenry to give them what they needed.

            I do not mean to cast aspersions, David, but, by God, your profession, and the legal system at large, failed gloriously to protect the country, its well-being, and its people and their rights.

            Big lies and little lies, what did Socrates tell us about not understanding the difference?

  13. “… on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.”

    There is a good reason for this: the Supreme Court has become politicized – we’ve already seen this over Brexit – and so, when the inevitable Remainer challenge comes (from Miller, Maugham etc.) the SC can’t use the excuse that parliament had not known when deliberating the bill that it could override certain provisions in the WA.

    The root cause of of all these “legal issues” has a single source: the Remainers refusal to accept the referendum result and using everything in their power to thwart Brexit. That’s why respect for the legal profession has plummeted.

  14. That would be a valid argument if Brexit had been secured by legitimate means. A properly structured and conducted referendum might have yielded the same result but we can’t know that from the way it actually was done. Some objections to continued EU membership were perfectly genuine. Underlying it all was 40 years of self-deception, pretending that we could have economic union without political union.

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