13th April 2022
The justice minister David Wolfson QC has published a letter:
My letter to the Prime Minister today. pic.twitter.com/lADCvKDKbB
— David Wolfson (@DXWQC) April 13, 2022
He is (at least) the third senior legal figure to resign from this government in respect of the Rule of Law.
The Treasury Solicitor and the Advocate General for Scotland resigned when the government sought to introduce legislation to enable it to break the law.
And now a justice minister has resigned because cabinet ministers themselves have broken the criminal law (which is the necessary implication of the Prime Minister and the Chancellor of the Exchequer to not to contest the fixed penalty notices) and seem not to care.
*
Wolfson has a very good reputation within the legal profession – and is highly regarded even by those who disagree starkly with his political allegiance.
It is – on any basis – a significant resignation.
But the letter is worth looking at carefully – especially the second paragraph:
These five sentences are perfectly composed and structured.
The first sentence is the general finding of fact: there was not only repeated rule-breaking but also (as rules can sometimes just be for policy or guidance) breaches of the criminal law.
This general finding is incontrovertible – the paid penalties are conclusive proof.
The second sentence then sets out a further finding of fact: the breaches were not merely trivial but were of such a “scale, context and nature” that such conduct cannot pass “with constitutional impunity”.
So not just breaches, but significant breaches.
The second sentence then sets out the factors which go to this significance – that others complied at personal cost, and were prosecuted and even criminalised for lesser breaches.
And, as with the first sentence, what is stated is incontrovertible.
Having established these two conclusions, the third and fourth sentences then distinguish between what happened but also the official response: the implication here is that a more measured official response could have perhaps cured the problem.
But the official response was not measured.
Then having set out the facts, and stated that the official response was deficient, the fifth sentence (somewhat inevitably) then follows – including a deft last stab that the prime minister does not see the problem in the same way.
And the paragraph then ends with the firm stamp of the word “resignation”.
No tiresome “I am resigning because” waffle here – the paragraph ends where other paragraphs would have began.
*
Compare this response with that of another government minister – the Lord Chancellor, who has a recognised constitutional role to defend the Rule of Law:
The PM has accepted the Met’s decision & apologised. I fully support the PM & Chancellor as they focus on maintaining the UK’s international leadership against Russian brutality in Ukraine, and delivering our recovery from the pandemic for the British people at home.
— Dominic Raab (@DominicRaab) April 12, 2022
What in Wolfson’s first and second sentences can this custodian of the Rule of Law disagree with?
Indeed, Dominic Raab’s tweet is no doubt a very instance of the “official response” which Wolfson describes in his fourth and fifth sentences.
Wolfson’s letter and Raab’s tweet are a study in contrast: how to take something constitutionally seriously and how not to do so.
Any minister who professes to care about the Rule of Law – including those who are lawyers – must ask themselves: which part of Wolfson’s letter is wrong?
And if they cannot fault its reasoning or its conclusions they should also do what Wolfson did: resign.
**
Thank you for reading – these free-to-read law and policy posts take time and opportunity cost to put together, as do the comments to moderate.
So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
For more on this blog’s Comments Policy see this page.
Why were fines of several thousand pounds levied on some lockdown breaking behaviour, when it appears that those involved in “partygate” have received fines of £50 ?
If your glass is half-full: just £50 in the hope that the Prime Minister will simply pay that directly himself, whereas if the fine was more of an “interior decorating” scale he might further imperil his soul by finding inducements for others to pay on his behalf.
This is a good question and we might hope that there is a proper answer.
My first guess would be perhaps that the fines are set on a scale relating to the size of the party. Considering only the breach of the regulations, there is an argument that they should not be treated any differently than anyone else.
I would agree, provided that the misconduct in public office relating to the parties is also prosecuted…
I believe the police have said the penalties imposed will be on the same scale that would have been given to members of the public. For the public, the amount of the penalty varies enormously, not only with the size of the event but the date (you can’t be fined more than the maximum the law stated on the day you committed the offence), whether the person had been caught before and how involved they were in organising. So more for the person who planned the party than those who attended. It’s very complex (at least to this non-lawyer) and there seems to be genuine doubt about whether the increased penalties for repeat offences apply if the person had not yet been penalised for the earlier offence at the time of the later one.
According to OpenDemocracy.net, fines levied in Wales reached £1,920 for repeat offenders and £6,400 in England.
Which makes your question particularly relevant if – as seems plausible – some participants attended more than one event.
A lot of this would come down to the way that the Metropolitan Police chose to interpret the law and impose the fines. They, could, for example, have strictly followed the guidelines for repeat offenders. They could have also made a charging decision along the lines of “charging each law-breaker once will be sufficient, given the offenses were all in the past and the imposition of repeat-offense escalating charges only really works if the offender has the time to reflect on their behaviour and continues to break the law”.
But a couple of well-worded FOIA requests to the Metropolitan Police, once the dust has settled, might well provide further insight.
You can be absolutely certain of one thing – the Met will anticipate journalists digging in to this to the best of their abilities, so will have done their best to ensure that there is no additional information to be gleaned.
It is a magnificent letter and your comments explain very clearly why. Your comparison with Raab shows why he is unfit to be a law officer. Braverman is no better. That those two are law officers shows Johnson’s disrespect for the rule of law. I wonder will any Tories be shamed by Wolfson’s honourable behaviour to question their own.
Very helpful, thank you.
BUT
The Prime Minister has taken ‘full responsibility’ for what happened. Surely after such a tremendously humble acceptance, we cannot expect him, or his supporters, to do anything more. Indeed, the payment of the £50 (according to reports) Fixed Penalty is already a more than fulsome demonstration of just how seriously he is accepting that responsibility.
I trust other offenders, and their lawyers, are taking due note of this line of defence.
Agree a very good letter and written by an individual who has integrity and a respect for the rule of law. Those same qualities sadly lacking in members of this shameful government who condone this law breaking.
No longer the party of law and order – can’t wait to see the slogans on the forthcoming local election material!
Although to non-lawyers Lord Wolfson’s letter might seem terribly formal, it contains the solid stuff that we should all expect when those in government are putting the nation’s interest before personal advantage. The words coming out of the Cabinet are just words – apologies given in the expectation that a few words are all that’s needed to cover law-breaking, & that a “taking full responsibility” statement is an adequate substitute for actually taking any responsibility at all.
I would highlight six words from another sentence in the letter:
“…especially at a time of war in Europe…”
torpedoes Raab’s (and others) oily statement(s) of support and today’s entire Daily Mail front page.
In six words.
I understand that previous Downing Street statements were reported as saying that it would be disclosed if Boris Johnson was fined by the police in respect of any event.
Was there any undertaking that similar announcement(s) will be made again if he is fined more than once?
The letter is longer than necessary as Jim Pickard of the FT observed in a tweet.
Does Lord Wolfson need ‘regret’ as a noun and a verb in the first sentence? Does he need the niceties of ‘accepting’ his resignation?
One of Shaun Usher’s ‘letters of note’ would be better.
Spot on. Any QC Tory MP minister should be considering whether their position is tenable.
One constitutional question on the future; Convention dictates that an outgoing Prime Minister usually gets the opportunity to nominate a number of people for the Lord’s, but the Lord’s is a court: surely committing a crime in office should disqualify the PM in this?
The Lords has not been a court since 2009 when its judicial functions were transferred to the Supreme Court. Its role as a venue for the trial of peers was abolished in 1948.
Mmmm, so this chap has shown some sense of honour. But stepping back a bit, he has also gained a baronetcy out of it, a seat in the Lords for those boring rainy days and he has got out from under a tedious job working for unpleasant people. A win I would say.
Adding ‘Baron’ to one’s letter head can do no harm and having confirmed that there is less to government than meets the eye adds to one’s personal stock. By contrast poor old Raab will never be hired for his legal skills and he still has to face election, eventually. The good Baron got the best of the bargain I reckon.
Being made a baron does not confer a baronetcy. A baron is the lowest degree of ennoblement and used for life peers – rising in degree it is followed by Viscount, Earl, Marquis and finally Duke. A Baronetcy is not even a title within the peerage. See Burke’s “Peerage” versus Burke’s “Baronetage” and Burke’s “Landed Gentry”. I believe the last one was granted to Margaret Thatcher’s husband, Denis) and the title was created by James I to anyone who was worth £50 a year (or some such sum) and used to finance the campaigns in Ulster (which is why all Baronets have the red hand of Ulster in their coat of arms). It is hereditary, commonly entailed in the male line only and the holder is addressed as Sir John Smith (written Sir John Smith Bt) and his wife Lady Smith – the “Bt” abbreviation is to distinguish the Baronet from a Knight, who is addressed in the same manner. Do I win pedant of the year?
That will teach me not to assume. Thank you for making the delicate difference between made up Barons and proper Barons clear(er).
On the topic of the lawlessness of the current UKG hopefully DAG will address the appalling news today of the UKG agreement with Rwanda.
Given that a number of clauses in proposed new immigration bill were defeated in the HOL it cannot be legal to detain and hand over to the army a person asking for asylum for immediate transfer to Rwanda where ‘they will be encouraged to stay permanently’.
Without contesting the general argument, may I question whether failure to contest the penalties is in fact conclusive proof of guilt?
Might it be no more than an acceptance that appealing the fixed penalty would be an expense of money and spirit at a time when concentration is needed elsewhere?
So pleading Guilty would not, by that reasoning, would also not be conclusive proof of guilt. A defendant could plead guilty in court with the same reasoning?
“So pleading Guilty would not, by that reasoning, would also not be conclusive proof of guilt.”
Absolutely – even in the UK. [You can’t say that this isn’t self-evident with plea-bargaining in the USA].
Just one example: because many of the Post-Office defendants pleaded guilty, are you saying that they are conclusively guilty, and thus that their appeals should be thrown out.
Exactly what I was scrolling down to write. It’s entirely semantics, but the law is a semantic thing in many respects.
Being issued a FPN is not ‘conclusive proof’ of lawbreaking and there are a number of reasons why someone might not contest a FPN (notwithstanding the political elements/optics of dragging this out), meaning guilt is not a ‘necessary implication’ of accepting the penalty.
I would agree with the suggestion the issuing of a *number* of FPNs and the evidence we have had sight of to this point via Gray is *very* strongly suggestive, but a lower standard applies to the issue of FPNs and a FPN indicates nothing more or less than, in the opinion of the Police/relevant authority, an offence was committed.
That is why paying a penalty notice (for motoring, littering, or any other relevant offences) is not an admission of guilt and does not result in a criminal record.
” a FPN indicates nothing more or less than, in the opinion of the Police/relevant authority, an offence was committed. ”
Surely, if you pay the fine, you’re accepting “the opinion of the Police/relevant authority”?
PK
I would suggest you could be accepting their opinion – especially given how ambiguous many of the regulations were in practice; it’s very possible to think of a situation in which someone to have unknowingly or unintentionally broken the law and to accept the view of an Officer with hindsight.
Or perhaps you are doing nothing more than suggesting it is not worth your time/ money/ energy/ the risk of actually being found guilty in court (and in the case of politicians, in the media) to contest the penalty?
Both plausible scenarios.
Alex
I understand, although it could be argued in the second scenario, you are still accepting there was an offence, albeit for your own reason, given no explanation for payment is requested or required?
PK
I’m not sure I follow…?
In the first scenario you are accepting you are at fault after the police investigation; either with hindsight or because you thought you would ‘get away with it (i.e. there would not be enough evidence of your rule breaking for a penalty notice to be issued).
In the second scenario you do not think you are at fault/ have committed an offence (you disagree with the opinion of the police) but the various costs of paying it are less than the costs/risks of challenging it.
We have no way of knowing if any individual’s thoughts when deciding not to challenge the penalty have followed the first or second path.
The furthest I would personally feel comfortable going when claiming to make a statement of fact is saying it is strongly suggestive – more likely than not rather than ‘beyond doubt’.
Either way, the fact we CAN be having this argument demonstrate choosing not to challenge a non-recordable penalty it is not ‘conclusive proof’ or leads to a ‘necessary implication’ of anything.
Alex
As I understand it, payment of an FPN does not require or constitute an admission of guilt, and therefore I wasn’t suggesting this was the case.
However, if I interpret the situation correctly, payment in full and on time of an FPN (for whatever reason) discharges you of any liability for prosecution, but constitutes your agreement an offence took place albeit without an admission of guilt?
“constitutes your agreement”
To quote: A fixed penalty notice is a notice offering the person to whom it is issued the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty to an authority specified in the notice.
I don’t see anything about the person agreeing an offence took place?
https://www.legislation.gov.uk/uksi/2020/684/regulation/9
Alex
If payment is “discharging any liability”, then surely, by the act of payment one acknowledges there’s a liability to discharge in the first place?
https://fpnappeal.westminster.gov.uk
https://t.co/Obg14TsIPh
PK
Now we’re getting philosophical? ‘Any liability’ for conviction could be ‘none’ if the matter were to go to court and the court found there was not sufficient evidence.
There’s still nothing stating the individual is required to accept that an offence occurred to avoid prosecution – simply that they do not wish to challenge the allegation in court to ‘prove’ no offence was committed (which is not required given we have an assumption of innocence).
I would also be hesitant to put much weight on how local government interpret the legislation. Here are two similar examples with no mention of ‘accepting’ an offence was committed if the individual chooses to pay rather than take the time to contest the penalty.
https://www.torfaen.gov.uk/en/RoadsTravelParking/StreetCareandCleaning/Environmental-Fixed-Penalty-Notices/Fixed-Penalty-Notices-Appeals.aspx
https://www.newcastle.gov.uk/services/environment-recycling-and-waste/fixed-penalty-notices