23rd December 2021
This blog is going to have a few days off over Christmas.
There has been a post every day now for well over a year, and a break would be nice.
Thank you for putting up with my drivel.
Thank you especially to those who leave such high quality, non-irksome comments.
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22nd December 2021
This is just a brief post today about the difference between law and policy, and the relationship between the two.
First: the two are different.
Law is (ultimately) about what one can enforce or have recognised by a court.
Policy is about achieving certain outcomes that will not be (or may not be) achieved but for such policy.
Laws are often part of a policy – along with resources, prioritisation, organisation, communication and leadership.
And policy is also sometimes part of law: a court may, as a matter of ‘public policy’ avoid certain outcomes, such as preventing open justice or access to the courts.
You will see the law/policy balance in many areas, if you look carefully.
The difference between guidance and prohibitions in public health (and the blurring of the line).
Or the extent to which post-Brexit policy (or lack of policy) depends on changes to what was agreed in the withdrawal treaty and the Northern Irish protocol.
Or the current small-c approach of the Supreme Court to (supposed) judicial activism.
Or how supporters and opponents of abortion in the United States are going about legislating and litigating in ever-more ingenious ways.
For me this relationship between law and shaping policy, and between policy and shaping law, is fascinating.
Black letter law is dull – it is akin to reading sheet music and attempting to create the tune in your head.
Law, like music, comes alive in its performance.
And other than very technical areas of the law, law is about changing (or not changing) the world about us, so that certain outcomes happen instead of others.
So this is why I commentate about law and policy – it is a way of practically understanding what is (and what is not) going on.
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Winter Solstice, 2021
One of the daft things about Brexit – and there have been many – is that the Foreign Office was not made responsible for Brexit policy after the referendum.
This was because, in part, the Foreign Office was distrusted by Brexiters.
Instead we had, first, a pop-up department with no centre of gravity in Whitehall – DExEU, if you remember it – and then we had David Frost as a floating minister-negotiator without much civil service support.
All this was misconceived.
It meant that, for example, the network of diplomats in member states were at least one step way from those conducting negotiations, and the United Kingdom negotiators often seemed unaware of what was behind the European Union negotiation mandate.
It also meant that – with trade or with Northern Ireland – there was little regard for the international context of the negotiations.
And it meant the talent and experience pool for the negotiators was far more shallow than it needed to be.
Regardless of one’s views as to the merits and party political political significance of Foreign Secretary Elizabeth Truss now being responsible for the negotiations, it is a Good Thing that the Foreign Office is now responsible for post-Brexit policy.
It is, in a way, an administrative counterpart to the Liberal Democrat victory in North Shropshire, where voters in a heavily Leave constituency were not deterred from voting for a pro-EU party – another example that the spell of Brexit hyper-partisanship is beginning to fade.
A Leave constituency can now be safe with a pro–EU party, and post-Brexit policy can now be safe with the Foreign Office.
That said, there is still the gap as set out in a previous post on this blog: the absence of an actual post-Brexit policy.
But we are more likely to get one with the Foreign Office being responsible for post-Brexit policy than we would do with a flimsy (and virtual) government department or a shouty minister-negotiator with no department.
At some point, there will be a realisation that a close and sustainable association agreement, with joint institutions, needs to be put in place between the United Kingdom and the European Union.
Our current post-Brexit policy should be thinking and working backwards from this objective, ensuring that when we get to that (more) stable state the United Kingdom is in the best possible position.
Brexiters need to stop being defensive: they have got their Brexit, and the United Kingdom is not a member state of the European Union – no rearguard is necessary.
Remainers and rejoiners, in turn, need to accept that the United Kingdom will not be joining the European Union for at least a generation.
We should not continue with the heightened politics of 2016 – with Brexiters, remainers and rejoiners all re-fighting referendum issues like a historical battle re-enactment society.
Maybe Truss is not (yet) the right politician to move Brexit policy to the next stage.
But the Foreign Office is the right department.
And so it is a welcome move.
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20th December 2021
One of the defences used to defend against getting rid of the current Prime Minister is that it should not be done in the midst of a crisis.
This view is misconceived.
In 1916, in midst of the Great War, Asquith was replaced with Lloyd George.
In 1940, when things seemed at their worst, Chamberlain was replaced by Churchill.
In both cases, of course, this was because there was an alternative candidate who had the support of opposition members of parliament.
But it has also happened in other situations.
In 1990, during the build up to the Gulf war, Thatcher was replaced by Major – and by the governing party’s own members of parliament, not the opposition.
And indeed, it need not only be an intra-parliamentary affair.
In 1945, when there was no reason to believe the war with Japan would soon end, the British electorate replaced Churchill with Attlee.
And if you go further back, there are many half-forgotten prime ministers who were replaced at times of uncertainty or peril.
So, in historical context, the unusual thing is to retain a prime minister in a crisis rather than not to do so.
This is one of the features – some would say merits – of the flexible nature of the constitution of the United Kingdom (and of Great Britain before 1801).
A Prime Minister can be dumped quickly.
Of course: things are different now.
Any new leader of a political party has to go through a process of being elected (or, if unopposed, approved) by party members.
And there is no real prospect – as with Lloyd George or Churchill – of a politician currently becoming Prime Minister without also being the leader of their party.
So the reason why we cannot just get rid of the current Prime Minister, notwithstanding his inability to do the job, has more to do with the mechanics of party organisation (and, no doubt the leadership ambitions of others) than constitutional practice or historical precedent.
And that is a pity – as both constitutional practice and historical precedent point to a period of uncertainty or of peril as being the best time to get rid of a Prime Minister who is not up to the job.
Indeed, the singular lack of credibility of the current prime Minister in respect of public health and abiding by the rules means that it is imperative that he is replaced with someone who can be taken seriously in imposing public health restrictions.
Instead of ‘not now’ it should be ‘now, of course, now – for when else?’.
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19th December 2021
Today is a Sunday, and on many previous Sundays this blog has covered claims in the weekend press about what Brexit minister David Frost intended to do with Article 16 of the Northern Irish Protocol.
But this Sunday is about what the Northern Irish Protocol has done to David Frost.
And in essence – the Protocol is still there, and David Frost is not.
So what happens now?
Some are discussing who Frost’s replacement would be.
But this does not really matter.
For until and unless the United Kingdom thinks through what it wants from its post-Brexit policy, the problems associated with the Frost tenure will still be there.
And the question of who should succeed Frost is less important than the question of whether there even needs to be a Brexit ministerial job.
By which I mean that the (apparent) job of Frost was to force the European Union into renegotiating the Protocol, and that attempt has failed – and it will keep on failing.
Instead, we need to have a period focused on implementation and ongoing review of the Protocol, rather than weekly confrontational drama.
This is a task that could be done by a senior diplomat or official, reporting to the Cabinet – rather than a mid-ranking non-cabinet minister.
But whoever is appointed (if anybody), there still needs to be something that the United Kingdom wants to achieve that is realistic: a post-Brexit policy.
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At the moment we do not have any post-Brexit policy.
We instead have slogans and impossible demands.
We have no balanced and considered approach, reconciling the conflicting political and economic elements of Brexit.
We have no achievable vision of what the United Kingdom wants in the years (and decades) to come following Brexit.
And without a vision and without a policy, any Brexit minister will be without a clue what to do.
We will not have a worthwhile post-Brexit policy while Boris Johnson stays as Prime Minister.
He may go soon, or he may hang on.
But we will have to wait until he is no longer prime Minister before we can develop a serious strategy for our relationship with the European Union.
Until then we will just have the soundbitten, flimsy understanding of the easily bored.
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And so, like a succession of Russian dolls, each problem fits inside another.
The successor to Frost does not matter because of the larger problem of what is the point of a Brexit minister – and that problem is within the larger problem of there not being a post-Brexit policy.
One day, after the current Prime Minister is no longer in office, there will be politicians who will have the vision and drive to put in place a sustainable association agreement with the European Union.
And that day will come – as the present chaos and incompetence cannot (or should not) continue forever.
The only worry is how long it will take for us to get there.
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18th December 2021
So I spend a good part of today putting together some thoughts about the recent statement by the United Kingdom’s Brexit minister David Frost…
…and he then resigns (or so it is reported).
EXCLUSIVE: Brexit Minister Lord Frost has resigned from Boris Johnson’s Cabinet over the ‘political direction of his Government’. Full details in tomorrow’s Mail on Sunday.
— MoS_Politics (@MoS_Politics) December 18, 2021
Frost has fallen, before Christmas.
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Frost is blaming other things for his resignation, other than himself and the agreements he negotiated with the European Union.
Well.
He would say that, wouldn’t he.
The reality is that the United Kingdom was in the preposterous position of seeking to renege on the very agreements it had only just negotiated and signed.
As Frost had negotiated those agreements it was impossible that he could be taken seriously.
No international agreement negotiator ever had less credibility.
And now he has gone – and the Northern Irish Protocol is still there.
Perhaps, like the North Shropshire by-election result this departure signifies a shift towards post-Brexit politics.
Perhaps it signifies an acceptance of the weakness of the position of the United Kingdom vis-a-vis the European Union on Irish questions when the European Union and Ireland is supported by the United States.
But on any view it means that there can be a fresh start for shaping the post-Brexit relationship between the United Kingdom and the European Union.
At last.
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17th December 2021
North Shropshire is about as Brexity and un-woke a place as you can imagine.
(Older readers will note that its member of parliament was once John Biffen.)
At the last general election – only two years ago – 35,444 voters in North Shropshire voted for the governing party candidate, Owen Paterson.
Yesterday, in the by-election caused by Paterson’s resignation, only 12,032 voters did so.
That is – on balance – 23,412 people who decided to not to vote again for the governing party in just two years.
(Of course, there are deaths and new voters – but there will not be that much churn in just two years.)
Two years ago, the pro-EU Liberal Democrat party could only get 5,643 people to vote for them in North Shropshire – and they did not even get into second place.
Yesterday in the by-election, an additional 12,314 voters did so.
I put these numbers in terms of actual voters as – for me – percentages and swings always seem a bit abstract (though, of course, they are important).
I am more interested in the numbers of actual people making actual voting decisions.
The effect of this shift is that a governing party majority of 22,949 (and of 29,801 over the then third-place Liberal Democrats) has flipped to a Liberal Democrat majority of 5,925).
That is one hell of a shift in actual people making actual voting decisions – especially in a place like North Shropshire.
And such a shift must be significant.
But significant of what? What is being signified?
Here, any commentator has to be careful.
It is the easiest thing in the world for a commentator who did not predict a thing to then confidently explain the meaning of that thing once it has happened.
What I aver the result signifies primarily is that the ‘spell’ of Brexit may be ended – or close to an end.
By which I mean that, even in places like North Shropshire it is not enough for the governing party – and its political and media supporters – to incant ‘get Brexit done’ so as to protect and promote their electoral position.
It just isn’t working any more.
It did not mobilise the – on balance – 23,412 former governing party voters of 2019 who did not vote the same way again in 2021.
And it did not dissuade the – again on balance – additional 12,314 who voted for the Liberal Democrats who did not do so in 2019.
Of course, there were other issues – some local, some national.
Some may point to the Christmas party scandal, or to the coronavirus restrictions.
Some may even say that the by-election can be seen as a referendum on ‘lawyers from Birmingham’ – though that may be harsh.
https://twitter.com/davidallengreen/status/1469731175619076100
https://twitter.com/davidallengreen/status/1471721556816666625
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Almost everyone with political opinions will find that emerging events – including unexpected ones – will affirm the political opinions they already hold.
But whatever the other things that the by-election may signify to you and to others – the one thing that can be said is that in one of the most Brexity parts of the countries, twenty-three thousand people did not vote again for the party that ‘got Brexit done’.
And twelve thousand people voted for the least Brexity party who did not do so last time.
If the hyper-partisan spell of Brexit was still hard and fast then that would not and could not have happened.
And so, to that extent, the spell of Brexit is broken.
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16th December 2021
Yesterday it was announced that the forthcoming Covid public inquiry will be chaired by Heather Hallett, the former appeals judge with an outstanding reputation as a lawyer.
Nothing in this post should be take to gainsay that appointment.
Instead, this post examines the general question of whether judges – or barristers – are really the best people to chair public inquiries.
In the United Kingdom judges are not usually investigators.
Instead the facts and documentary evidence on which they are to decide cases are put together by the parties to the case and their lawyers.
A judge will – despite spirited fictional depictions – not go and find out new facts and evidence for themselves.
In turn: most (though not all) judges are also barristers.
Many barristers also do not go and find out new facts and evidence in the case on which they are instructed: the facts and documentary evidence are provided to them usually by instructing solicitors or other professionals.
In essence: for all their many undisputed skills and talents, little in the background of judges and barristers fit them to be investigators.
Any investigations are normally conducted by others.
Once the evidence has been put together, judges and barristers will then often be very good at assessing and weighing that evidence, and in applying that evidence to the law (and applying the law to that evidence).
But the uncovering of the primary facts is normally done by others.
This is why – especially in civil cases – it is those who have the best controls over the flow of evidence that will tend to control the verdict.
And this is also why many public inquires are (or seem) to be ‘whitewashes’.
This is not (usually) because the head of the inquiry deliberately wants there to be a ‘whitewash’.
The ‘whitewash’ is often further upstream – in how the evidence is presented to the inquiry.
As techies say: garbage in, garbage out.
I know this, in part, because I used to work with public inquiry lawyers when I was a central government lawyer.
They worked backwards from the outcome they wanted to achieve so as to marshal the appropriate evidence.
That was their job.
So what is needed in the head of any inquiry is to have someone who is not reliant on the nicely packaged evidence and facts as put together by skilled and experienced public inquiry lawyers.
But to have someone with the skills and experience to get to the facts and evidence that powerful parties may not want to have put before an inquiry.
A person who will use the statutory powers available to public inquiries for compelling evidence, so as to balance the experienced public inquiry lawyers doing whatever they can to avoid putting certain evidence in.
Sometimes this person may be a judge, but sometimes it may not be.
But there is nothing particular in the background of most judges and barristers that equips them for investigating things.
Garbage in, garbage out.
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15th December 2021
One good thing for the public understanding of the law that has come from the internet is the publication of ‘Sentencing Remarks’.
These are not judgments – at least in a legally technical sense – but explanations by a judge about how they gone around setting the sentence of someone guilty of an offence.
Today there are two sets of sentencing remarks about highly unpleasant and disturbing cases (both of must have a content warning).
Some may want to read them for their grisly detail.
However the rest of us – especially students of law and others with an interest in the legal system – will be able to gain fascinating and detailed insights into investigations, prosecutions and sentencing.
In the olden days, these remarks were never normally available – one would have to rely on any news reporters in court, and one would then have to depend upon on the edited (and editorialised) news reports.
Now, you can read the judge’s words for yourself – and form your own view.
You may still think after reading remarks that a sentence is too low or too high – but you will at least be able to inform your view with how the sentence has been arrived at.
The best way to keep up is to follow the England and Wales judiciary’s Twitter account or to visit their site from time to time.
The regular publication of these remarks will not, by themselves, cure the promotion of misinformation about law generally and high-profile cases in particular.
But the more they become part of the normal information openly available about cases and the criminal law in the news, the better the general knowledge of the criminal justice system.
They are a boon to the public understanding of law.
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14th December 2021
The best way to understand the politics and law of Human Rights Act reform is to realise there are two separate things going on.
The first is – with scare quotes – the debate over the “Human Rights Act” – where the Act’s opponents (and many supporters) overstate the importance of that symbolic legislation.
There are those with Very Strong Opinions about the Act who, when probed, cannot give any particulars for the opinions they hold and express.
And then there is – without scare quotes – the Human Rights Act 1998 – a mild and unambitious piece of legislation that generally has limited practical effect.
There is little connecting the heated debate over the “Human Rights Act” with the actual Human Rights Act.
And, as this blog has previously averred, if the Act had only been given a dull name like the Interpretation and Construction And Related Purposes (European Convention of Human Rights) Act, then a great deal of antipathy would not have existed.
The title of the legislation is just too provocative for some people, regardless of the substance.
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Today there were two significant developments about possible reform to the Act.
The first was the publication of a 580 page report of an independent review of the Human Rights Act commissioned by the government.
I have not yet read and digested this report, but the impression given is that the report does not urge fundamental changes to the Act.
The second development was the Ministry of Justice launching a consultation into the Act, with a return date of March 2022.
My initial impression is that the consultation is because the government may not have got the recommendations it wanted from the independent review and so is going to ‘consult’ that it gets the responses it wants.
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Any legislation which flows from the consultation would presumably be for the 2022-23 session of parliament, which takes us to the run-up to the next general election.
This means that it is unlikely that Human Right Act reform will be done, as it should be, on a cross-party basis.
Instead any reforms to the Act will be done in an increasingly politicised context.
For the best understanding of the government’s approach, one should not go to anything the Lord Chancellor and Justice Secretary says, as he is unlikely to have mastered the detailed issues raised addresses in the independent report and the consultation paper.
The best insight into the government’s general approach is in this short article for the Law Society Gazette by the capable David Wolfson QC, the Ministry of Justice minister in the House of Lords.
Wolfson avers that there is a distinction to be made between the rights as set out in the convention (which are fine) and how they are interpreted by the European Court of Human Rights in Strasbourg.
He has nothing against the wording of the Convention.
Left to United Kingdom courts, he suggests, the Convention rights would and should be interpreted soundly.
It is not a bad argument, but there are problems.
For example, it will still be the Strasbourg court that will determine any petitions brought against the United Kingdom for any failure to protect Convention rights – and so all that may be created ultimately is delay and bureaucracy in the event of interpretative divergence
And the prospect of more cases directly before the Strasbourg court will not be welcomed by the security and intelligence services, who would rather have the current situation where most cases stay with nod-along British judges.
Another problem is the Good Friday Agreement, under which the European Convention on Human Rights (that is, the Strasbourg version) has to be directly enforceable in the local courts of Northern Ireland.
If Northern Irish complainants are not able to assert their Convention rights as they would be respected in Strasbourg, but only watered-down domestic versions, then there is the question whether the is a possible breach of the Good Friday Agreement.
These hard problems are not going to go away.
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One fundamental misconception in the debate about Human Rights Act – and the “Human Rights Act” – is that the Very Strong Opinions of its opponents can be translated into actual legislative changes.
There have been several attempts since 2010 by Conservative politicians to reform the Act, with lots of stirring language about a British Bill of Rights.
They often also say they want to “modernise” the Act – though somehow this “modernisation” is about rejecting the Convention as a living instrument, which is rather contradictory if you think about it.
Reforming the actual Act – and not the Turnip Ghost that its opponents have conjured up to give themselves a scare – will be a long legislative slog, and for very little point.
So rare are cases that turn on Convention points alone that, even with the proposed tinkering, it is hard to imagine many of those exceptional cases actually being determined differently.
And you would think that Lord Chancellor and Justice Secretary – as head of a justice system in crisis and a prison system needing radical improvement – would not devote scarce ministerial time and departmental resources to such an exercise.
But that would be to take any of this seriously.
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