12th May 2022
From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.
And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.
Ho ho, every time.
But.
The real problem with this government is not that it acts unlawfully or illegally.
The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.
It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.
Instead, the government does not see law as even applying to it.
To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.
The law applies to little people, and not this government.
‘Law and Order’ is a campaigning slogan, but not a principle of government.
As this blog has previously averred, this government engages in three types of lawlessness.
First, it often conducts itself without any lawful basis.
Second, it seeks to introduce legislation that will enable it to freely break the law.
Third, it permits law-breaking at the highest level.
It is difficult to imagine a government with less respect for law, and for the rule of law.
This is not so much a government of law breakers, but a government of outlaws.
The law is an inconvenience which can be disregarded as and when it is inconvenient.
Such an approach has its hedonistic attractions, but it cannot end well.
Brace, brace.
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This is a duality that has been noted in relation to the Nazi regime (and others). There were strict laws for the people but the Party leadership was outside or beyond that and acted as it saw fit. Didn’t end well then either.
There’s at least one. Other duality here – perhaps more than one – in the form of the dual nature of Boris Johnson’s performance as Prime Minister. On the one hand, he clearly admires – perhaps even idolises – Sir Winston Churchill, through whom by extension we might infer that there exists in Johnson an aspiration to greatness himself. On the other hand, the Prime Minister’s entire career seems to be closer in nature to the affable buffoon he often projects – carefree, ill-prepared, let’s-just-roll-the-dice-and-see-what-happens.
Perhaps, because the Prime Minister’s career has been one ricochet after another, he believes that he can continue in his present style in perpetuity. Perhaps his interactions with Heads of State like former President Donald Trump have strengthened that view.
Perhaps, also, this is why he continues to come “unstuck” in his dealings with the EU and why so many problems and challenges remain in our dealings with our neighbours on mainland Europe, who may be unimpressed with his laissez-faire approach to borders, trade, geopolitical conflict and even global pandemics.
I offer this with no additional insight to the man’s thinking, only the thought that I am not sure if the motive that drives the behaviours we see are truly those of someone who has the ego to believe they are above the law, or one who is so small-minded and self-centered that actually, they just don’t care.
As a good friend of mine reminds me on a regular basis, “Never attribute to malice that which can be explained by stupidity.”
Any sufficiently advanced stupidity is indistinguishable from malice (Grey’s Law).
There is a point at which a sufficient majority won’t care which it is.
If we reach that point, the consequences will be unknown, but are likely to be uncontrollable.
As OGH says, brace.
To back up your assertion this speech from Former Lord Chief Justice Lord Judge is worth noting https://hansard.parliament.uk/Lords/2022-05-12/debates/A16649EE-B273-4953-8846-708C8B4965ED/Queen%E2%80%99SSpeech#contribution-667C1836-26A7-47D0-87D7-A57147FD6D6E
Brace indeed. Right or wrong, many people in this country, and I am one of them, believe fervently in the “rule of law”. We see it as the cornerstone of our values and rights, the bedrock of our democracy, fought and died for over generations, and the single most important thing that (largely) protects us from the powerful and the avaricious. The way it is being systematically undermined from the top by a gang of outlaws masquerading as public servants is, to put it mildly, disconcerting.
You’re right. They’re revolutionaries, that’s why. Revolutionaries are outlaws by definition. I’m surprised nobody’s noticed – perhaps because we don’t think revolution happens here?
But when it comes to lawlessness or revolutionaries, one person’s freedom fighter is also another’s terrorist. Sometimes the old (or in this case the new regime) has to go.
This government has no legal basis at all.
The Act which enabled the election which brought it in was passed by a parliament outwith the Human Rights Act.
(Nice word, did I use it right?).
If a parliament does not meet the democratic requirements of the law, then how can anything that it does be constitutionally valid?
We should take it to court, prove the point and annul the whole shebang.
Not sure what you’re getting at. Parliament is sovereign. It makes all the laws. It can make any law it wants except to tie its own hands. Are you thinking of government instead of Parliament? This is a common mistake to which ministers often appeal. This government was elected with a clear majority. Its basis is beyond dispute.
It didn’t end well for the Nazi regime, but not before a huge amount of damage had been done.
As far as revolutions are concerned, we now think of them as left wing,so call right wing revolutions by different names – a coup being one.
Two points on what may be being alluding to here and on what may transpire:
Firstly, what Johnson negotiated in the NIP was termed, by the EU, as a front-stop (as opposed to May’s backstop). It was always intended to be refined/developed into some NIP 2.0 down the line. However, Sefcovic said on Tuesday that “renegotiation is not an option”. Proof, then, that the NIP was not negotiated in good faith by the EU.
Secondly, the situation in Northern Ireland is deteriorating. How long do we have to wait until action needs to be taken; the first sectarian killing or, God forbid, the first bombing? We don’t expect a fire engine to refrain from driving the wrong way up a one-way street to attend a fire rather than waste precious minutes navigating a town’s one way system. At some point the law ceases to hold: “Necessitas non habet legem”.
“Proof, then, that the NIP was not negotiated in good faith by the EU.”
The more time passes and the more that comes to light, so the more it becomes apparent that the EU did not negotiate any aspect of the UK’s withdrawal from the EU in good faith.
That is a serious charge to make, but if you look at this from the perspective of the EU, the challenge they faced was that one of the significant net contributors to the EU budget, one of the wealthier northern nations, wanted to leave. This left the EU negotiators with an exceptionally difficult position to play: they wanted to leave the door sufficiently open to the UK so that they did not harm critical EU business sectors, but at the same time they needed to send a message to all the other “net contributor” nations that leaving the EU would be a difficult and painful process. The UK had to be turned in to an example – had the EU worked diligently and honourably towards a “no contest” and amicable divorce, the UK may well have been the first of several such departures, ending the viability of the Union completely.
One trivial but concrete, personal example. I used to be able to purchase specialist, computer-related equipment from an amazing German company (Aquacomputer). In January 2021, with the activation of the new trade arrangements, they took the decision that they are no longer willing to sell to the UK. When I asked why, I was told that it was because of the VaT paperwork they are now required to complete with every shipment. So I asked if they sold product to the United States (and they do). Then I asked if they had to complete VaT paperwork for the United States (and they do, but it’s less complicated). The requirements are set by the EU, not the US or UK. What I was told, in effect, was that the EU have – in some cases – made it harder to do business with the UK, post-Brexit.
That’s not good faith. It’s also not “free trade”.
I took it up with my (Conservative) MP, who passed the matter on to the Trade Minister, who has been able to do… absolutely nothing.
Regarding your last ‘trivial ‘ point, the reason there is so much friction in trade between GB and the EU is that the much lauded EU-TCA trade deal that was welcomed with triumph in the HoC by Johnson is not in fact a comprehensive free trade deal (FTA) but is instead barebones WTO schedules with the tariffs set at zero but with no mutual equivalence agreements (MEA’s) to get over the myriads of sectoral non-tariff barriers (NTB’s) that are far more important in modern trade than are tariffs.
An NTB is a standard of sorts – for example a UK designed and built car has to meet a myriad of standards to be sold in the UK and very similar standards will exist in all export markets and these form a NTB for exporters.
In a proper FTA the two sides have negotiated & signed literally thousands of sectoral MEA’s whereby each side recognises the other’s standards and importantly promises to keep them and only change them by a mutual process.
With MEA’s in place trade is as frictionless as possible between third parties.
The EU has just over 650 trade deals with 154 nations including 19 (soon to be 20) comprehensive FTA’s with larger developed economies. Each took on average 7 to 10 years to negotiate which is quick for an FTA – with the US such a high level of deal takes 2 or more decades.
Inside the EU the UK used all of these deals & most of the new UK trade deals are simply rollovers of the existing (and very good ) deals the EU has.
However In each case the other nation (eg Japan, S Korea, Australia) knew they had the UK over a barrel and insisted on changes that advantaged them. But in every new deal Truss and now Trevelyan has signed all the hundreds of MEA’s built in those former EU deals eg the same Sanitary Phytosanitary (SPS) MEA which is vital for import and export of agricultural, fish, food goods.
Yet when it came to the EU-UK TCA there are none and that at the insistence of the ERG who claim that signing such an MEA impinges on UK sovereignty.
This is weird given that they happily signed them with others and indeed used the existing EU deals as a template. Instead Frost told Barnier (documented by Barnier) that the UK considers itself a sovereign equal and will not sign any MEA and that the EU must just accept all UK standards without a binding agreement! Rees-Mogg expressed the same idea recently when he said the UK will not check on imports from the EU and demanded the EU not check on UK exports. It’s a delusion. Try that on the US for example. There is no other explanation than EU Derangement Syndrome.
So this is why trade from GB to the EU is full of friction (and it will only get worse) while trade with the US has less friction because the UK has reverted to using a series of old bilateral trade agreements between the UK and US that include MEA’s.
In the case of NI it stays in the EU customs union and so NI business has no or minimal paperwork exporting to or importing from the EU unlike GB.
The NIP is a protocol to manage NI-GB trade by applying a whole series of bespoke NI specific easements such as a SPS deal that mean that trade across the Irish Sea will have far less paperwork and inspection than it otherwise would have. The dominant ERG faction in the Tories in London and the DUP in NI using the arcane rules of Stormont, have conspired together to prevent implementation of the NIP while claiming it does not work. Now they are trying a last ditch effort to unilaterally scrap it – which is impossible.
I wish comments could receive votes. This is very good information.
Maybe so, but what you state in your first para is not of itself proof of bad faith. Time has passed circumstances have changed. Sefcovic may be mistaken or blustering. There is one constant which all can see: this British so-called government is clearly not a reliable negotiating partner. Imho ill will aye come of it.
It is one of the peculiarities of the situation in Northern Ireland that cross community consent was not apparently required for Brexit – only 44% voted there in favour in the referendum, on a 63% turnout – nor indeed for Boris Johnson to agree the Protocol and then for his undercooked “oven ready deal” to pass through Parliament. Yet now, two or three or five years later, cross community consent, and the threat of loyalist violence, are given as reasons to tear up the new arrangements between the UK and the EU.
Perhaps we should just return to the 2018 status quo ante and start again.
All I can say to this assertion is, “deary me”. It’s all the fault of the “EU”, utter nonsense. It is completely the fault of backward looking xenophobes that chose to peddle outright lies, backed by venture capitalists betting on disaster, that delivered just that!
With the highest inflation in Europe, deliberately engineered to benefit the price gougers – a country headed for disaster levels not seen since the 1920’s and 30’s.
Utter nonsense. The NIP is to be reviewed and revoted on by the NI Assembly 4 years after ratification. If they choose all or aspects can then be renegotiated by the NI Assembly. However before then it is to be implemented and cannot be changed. If there are technical issues arising in defined areas with or from implementation then A16 provides for setting up of a bilateral technical committee but this does not involve the principals and is in no way a renegotiation of the protocol.
In an opinion in the Telegraph over 2 months ago Bernard Jenkin MP & Chair of the ERG noted that he now realised A16 does not do what the ERG and DUP want which is to scrap the whole NIP and so he referenced the Victorian jurist AV Dicey who said that “Parliament was omnipotent” and demanded the UKG simply pass a law “asserting total control” over NI.
This is legally nonsense as the HoC is constrained by UK constitutional law and by international law. But the idea that the UKG can pass a law unilaterally repudiating an international treaty it signed and ratified is not true plus while that proposed law may be whipped through the HoC it will not survive the Lords nor a Supreme Court challenge – notwithstanding the unbelievably wrong opinion of AG Braverman on the matter.
If you want to bring up negotiating in bad faith look no further than the open admission by Lord Frost & others in HMG that Johnson signed the WA with no intention of implementation of the NIP but did it to ‘get Brexit done’ and just today David Henig and Faisal Islam released on Twitter a download from a UKG impact assessment briefing to cabinet done in 2019 about the NIP which was explicit that the NI-GB border would have checks.
If I recall correctly, outlawry is an Anglo-Saxon concept. One effect of it was to deny the outlaw any — that is any — protection under the law.
Now where did I leave that pitchfork?
You say the EU negotiated in bad faith. My recollection is that the Government spend five years threatening to walk away without a deal. I don’t recall any time when constructive proposals were put on the table by the UK Government – it was all about what we weren’t prepared to accept.
I think the attitude of the government to the law is a direct consequence of the constitutional doctrine that Parliament is supreme. As far as the government is concerned it can and should do as it pleases because of this.
I think it is time to ditch this belief, which belongs to a past era. The “good chaps” are no longer running the show. Parliamentary supremacy must have limits, for its own good. Time for a codified British Constitution.
Again, as elsewhere, this is a conflation of Parliament and government. Parliament is sovereign. Government is not. The latter wields an increasingly limited set of prerogative powers. The body known as Parliament can pass any law by majority and future Parliaments can always repeal any law enacted previously. If government does not get the votes, it does not get to enact a law. A codified British Constitution offers nothing here. It’s important to keep this distinction in mind. Often the government would like you to forget it and talks as though it is the equivalent of Parliament.
Is David making a sideways reference to the nominative determinism of a Tory ministry acting like outlaws (tóraidhe)?
I wish I had been that clever!
David’s observation that, perhaps, the current Westminster administration is as much outlaw as law-abiding got me thinking.
What laws or rules exist, specifically, to constrain parliamentarians and ensure that their conduct remains within expected norms.
Well, there are obviously laws such as the Equality Act, Health and Safety, Employment and Labour Law, but these are not specific to the administration, they are generic and apply to all places of work. Then there are more serious and less frequently needed laws, covering activities like official secrets, treason and the like, which might be more applicable to parliamentarians thanks to the powers they hold whilst in office.
But as tax-payers, voters and citizens, it always seems odd to me that both the actual laws governing elected officials – and particularly the sanctions available to transgressors – appear to be woefully weak when compared with the authority they wield.
For example, an MP who fails to declare an interest can be “suspended for a specific length of time” and may lose their salary for the same period. But that falls within the “disciplinary and penal powers of the House” – and not the law – and is another example of the fact that parliament is self-regulating.
After the 1994 “Cash for Questions” affair, in which a parliamentary lobbyist bribed two Conservative MPs to ask parliamentary questions on behalf of Mohammed Al-Fayed, the Egyptian owner of Harrods, the government was prompted in to setting up the “Committee on Standards in Public Life”.
All well and good, you might think… but no. It still exists… but 27 years later there are still concerns about it (including lack of diversity). More importantly, it seems to have narrowed its focus to specifically lobbying, yet in November last year its final report into Westminster processes notes that transparency related to lobbying was “poor”. Let that sink in.
A committee that was set up in response to a scandal, which has had twenty-eight years to deliver meaningful change and which assesses its own progress as “poor”, finding that the effectiveness of ethics regulators in Whitehall had “not kept pace with wider changes” and that there was a “particular need for reform in central government.”
It must be noted that Lord Evans, (current Chair) has called for more power to be given to the independent advisor on ministerial standards and for those stronger rules to be written in to law.
Twenty-seven years and no meaningful improvement. Multiple, repeat examples of ministerial misconduct, including cash for questions, expenses fraud, misleading parliament about the justification for initiating a second invasion of Iraq, the list goes on.
The failure to get a law that would hold MPs and other elected officials to account on to the statute is no accident. This is why we need much stronger independent oversight of parliament.
“But as tax-payers, voters and citizens, it always seems odd to me that both the actual laws governing elected officials – and particularly the sanctions available to transgressors – appear to be woefully weak when compared with the authority they wield.”
But why? Parliamentarians are elected. They are put there by their constituents. Bad behaviour should be punished at the ballot box. If an MP commits a crime for which they get a custodial sentence, they obviously can’t carry out their duties and they will be recalled, though the recall of MPs has only been legislated recently. I think it would have been unheard of previously for an MP facing a prison sentence to refuse to resign. If there were strict laws governing conduct, this could easily be abused. One of David’s earlier posts averred that there is a worrying recent trend of involving police in political disputes. The only independent oversight of Parliament that our democracy will allow is through electors. Parliament is sovereign, full stop. No individual parliamentarian wields that power. It is collective.