Brexit is already structured as a negotiation without end – but what happens if Brexit continues to be a political row without end?

24th February 2021

One of the wisest and most perceptive of political commentators is Rafael Behr – and at the end of a recent wise and perceptive column is this wise and perceptive observation:

‘For the true believers, a good Brexit is one that keeps the grievance alive; that makes foreigners the scapegoat for bad government; that continues to indulge the twin national myths of victimhood and heroic defiance. Measured for that purpose, Johnson’s pointless Brexit is perfect.’

Another commentator Mujtaba Rahman makes similar points in this depressingly plausible thread:

Is there anything in these pessimistic takes?

Are things likely to now get worse – or at least not get any better?

*

As I set out in this Financial Times video, the trade and cooperation agreement is structured deliberately as framework for ongoing negotiations between the European Union and the United Kingdom:

This requirement for ongoing engagement is a feature – and not a bug – of the departure arrangements.

There are institutions and processes in place for constant dialogue – and five-yearly cycles are expressly envisaged for more fundamental shifts in the relationship.

The formal relationship will be, and is intended to be dynamic, not static.

This was, of course, always likely to be the case with a Brexit which has been conducted at speed and with little or no planning or indeed thought.

Many things were left undone with the intention of dealing with them later.

But whatever the explanation, one thing that can be said with certainty is that the Brexit we have had is not a ‘once-and-for-all’ event where ‘with-one-bound-we-were-free’.

So regardless of the mood of politicians the law and policy process of Brexit has not gone away – and may well never do so, at least for a political generation or two (or three).

*

Law and policy is one thing – and politics is another.

One can perhaps envisage a future – even under the current arrangements – where the Brexit issue is de-intensified, and where everyone gets on in a post-Brexit context.

But.

If the observations of Behr and others are correct such an outlook is unduly optimistic.

Many Brexit arguments are instead now beginning – and will become all the more intense because now they have supposed facts of ‘EU v UK’ to feed off, as opposed to the definite fictions.

If this is the case, then there will be implications for the framework provided by the trade and cooperation agreement.

For that framework is intended implicitly as almost a technocratic device – a means by which two friendly entities merely and boringly manage a relationship, making adjustments as they go along.

Talking shops, not boxing rings.

Less clear is how the trade and cooperation agreement – and also the Ireland/Northern Ireland protocol of the prior withdrawal agreement – will take a never-ending storm of partisanship and hostility.

That is not what these agreements were designed for.

The clue is in the ‘cooperation’ part of the very name ‘trade and cooperation agreement’.

Cooperation it says, and not confrontation.

It is not a trade and confrontation agreement.

*

Yet.

Few things are inevitable in human affairs.

It is still only February – the month after the Brexit transition arrangements came to an end.

Nothing that has so far happened can demonstrate with certainty what the first few years of Brexit will be like.

Things may calm down, or things may get far worse, or something new may come along which changes everything.

All that said, however, this early volatility indicates that any easy and quick passage of the United Kingdom to full participation in the European Union single market and customs union is unlikely – and still less the prospect of rejoining.

Even if things do calm down, they are now unlikely to go back to how they were.

*

The key political question now is whether the government and its political and media supporters can themselves ‘move on’ from Brexit.

For if they cannot politically ‘move on’ then the Brexit withdrawal and cooperation arrangements (which this government itself negotiated, signed, won an electoral mandate for, and implemented into law) will be politicised and contested in the same way membership of the European Union was politicised and contested.

And it is not inevitable that the Brexit withdrawal and cooperation arrangements will be able to withstand such sustained political assaults.

The Brexit withdrawal and cooperation arrangements may have replaced full membership of the European Union, but that does not mean there is in turn an even-smaller Russian doll of a formal relationship available if those arrangements fail.

If the Brexit withdrawal and cooperation arrangements crash, there may be nothing to replace them.

Brace, brace.

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Why the high court was right to deny standing to members of parliament to bring public law claims – and why such ‘ornamental claimants’ are a bad thing

23rd February 2021

*

‘Now a cowboy needs a hat, needs a hat, needs a hat

‘And a pair of fancy boots, fancy boots, fancy boots’

– TikTok meme, circa 2020-21

*

Any legal case at its most basic needs two things.

First: it needs a question that a court can determine – a question of law or evidence that is capable of being determined one way or another by legal proceedings.

Say whether there had been a breach of a contract, or whether a theft had taken place, or whether a government department had acted within its legal duties.

And second: a legal case needs somebody to bring it to the court for that determination.

Sometimes – in criminal cases – that somebody can elsewhere in Europe be a magistrate themselves, or a prosecutor appointed by the state.

But in civil cases – where a party sues another party – that somebody has to be somebody willing and able to bring the case.

And – in England and Wales at least – whether a person can bring a case is described as whether that person has ‘standing’ to bring a claim.

*

Usually in civil cases it is obvious who can and should bring a claim.

The person who can bring a claim is the person who has been wronged.

A party to a contract can sue the other party to the contract if the latter is in breach, or a person who is victim of a tort can sue the tortfeasor (which must be one of the more glorious words in legal vocabulary), and so on.

In what is called ‘private law’ there is usually no problem identifying who can – and who cannot – bring a claim before a court.

*

But there is a gap – and that is in ‘public law’ cases.

(Public law is the area of law which deals with the special legal rules which apply to public bodies and others exercising similar powers.)

Who should be able to bring a claim that a public body is acting unlawfully?

The starting point is that a person directly and adversely affected should be able to bring the case before a court so that the lawfulness of what a public body has done or not done can be determined.

And so, for example, a person facing deportation or a person whose property is about to be blighted, and so on, can often bring a judicial review in respect of a relevant decision by a public body.

(A judicial review is when, literally, a thing is reviewed judicially to ascertain whether it within the powers of the relevant body.)

*

But.

And it is a huge but.

Not all unlawfulness by public bodies will be neatly accompanied by a person being directly and adversely affected.

Take, for example, the topical example of a contract awarded by the government to a supplier where there has been neither an advertisement nor a competitive procurement exercise.

In these circumstances there is not even a disappointed bidder who would have standing to bring a claim.

What should the law – more specifically, what should should a court  – do?

*

One answer, which appeals to those who delight in unchecked executive power, is that nobody should have standing.

That a public body should be allowed to act unlawfully generally unless a person can be found who has been directly and adversely affected.

But this cannot be in the public interest.

And so the courts – sensibly – have expanded the scope of who can bring public law claims in the public interest.

Accordingly, organisations with a sincere interest in an area of public policy, but with no direct financial interest in the outcome of a challenge, are often granted standing to bring a claim.

But how wide should this scope be?

And this is the question asked – and answered – in the procurement transparency case decided last week.

*

There were four claimants in that case:

(It is a pity they could not have added more parties with ever-shorter names so we could have had a pleasing upturned triangle of names.)

You will see that the second, third and fourth claimants are members of parliament.

Surely if anyone can claim to be able to be guardians of the public interest it would be elected representatives of the democratic chamber?

But the court held otherwise: that the three members of parliament did not have standing to bring this claim.

The court was right to do so.

*

The reason the court was right to do so goes to a fundamental principle in the constitution of the United Kingdom: the separation of powers.

This familiar phrase means, in practice, that different elements of the state have different remits, and that they should act as a check and balance on each other.

A person may well be elected to parliament –  but before the courts they are no different to any other person.

An elected representative has various privileges and rights – some of which can carry considerable weight and power.

For example, members of parliament have absolute privileges in what they say and do in parliament and can hold ministers to account.

But they do not also get any elevated right to bring legal proceedings against those same ministers.

(A member of parliament may have standing on other grounds, but not just because of the simple fact of their office.)

If members of parliament were accorded a special status to bring a public law claim, this would mean that there would be a significant overlap between parliament and the courts.

There would also be a tendency for the work of the courts to be further politicised and for proceedings to become openly partisan devices.

Of course: to a small extent there is already an overlap, and the courts will never be free of the general charge of politicisation.

(And the courts already recognise the attorney-general – an office held by a politician – as having a special status as custodian of the public interest in certain proceedings, though attorneys-general will not bring proceedings against their own government.)

As the judge correctly observed in the judgment last week:

“No doubt, the addition of politicians as parties may raise the profile of the litigation.

‘It may make it easier to raise funds.

‘But these are not proper reasons for adding parties.

‘In a case where there is already a claimant with standing, the addition of politicians as claimants may leave the public with the impression that the proceedings are an attempt to advance a political cause, when in fact their sole legitimate function is to determine an arguable allegation of unlawful conduct.’

One hopes that the fashion of adding (no doubt well-meaning) politicians as, in effect, ornamental claimants in public law claims will now come to an end.

If a non-partisan organisation has standing to bring a claim in the public interest then no politician is needed, and if there is no such organisation than a partisan politician is not a good substitute.

*

In the case last week, a large portion of the judgment was devoted to the issue of standing.

One can understand why the government wanted to object to the notion that anyone has standing to go to court to in respect of unlawful conduct by the government.

And more widely, the government and its political and media supporters are constantly seeking to narrow the practical availability of judicial review.

That organisations (such as the first claimant in last week’s case) are accorded standing in public interest cases is a boon for accountability and transparency.

But ‘add me as well’ lists of ornamental claimants savour of gesturing and gimmickry. 

A pleading is not – and should not be – a round-robin.

If members of parliament want to add their names to something then parliamentary motions and other Westminster devices are available.

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The real significance of the government’s defeat over transparency in public procurement – yes, the claimants overstated their case, but reaction of the government was extraordinary

22nd February 2021

 

Last week the high court held that the government of the United Kingdom had acted unlawfully in respect of certain contracts awarded during the pandemic.

The judgment is here.

In particular, the high court held that there had been a failure by the government to publish contract award notices within the appropriate time.

It is a significant case – even though the government sought to brush off the claim as ‘academic’.

And the significance of the case is also not quite what the claimants initially made it out to be when making the claim, and the claimants lost on their more eye-catching assertions.

In particular, the claimants failed to show there was a ‘systematic’ policy put in place of widespread non-compliance with the publication obligations, and nor did the claimants show that there was a deliberate policy to ‘de-prioritise’ compliance. 

They – and you – may believe that to be the case – but they could not show this to the court.

All the claimants could demonstrate to the court was that there was non-compliance by the government with the mandatory deadlines – which the government could not and did not deny.

(The government asserted that they were only ‘technical breaches’.)

In respect of this undeniable (and not denied) non-compliance, it was a difficult case for the claimants to lose in the event that it proceeded to a court hearing.

The legal equivalent of a good shot on goal.

And as the case did proceed to a court hearing, the claimants won on the issue of non-compliance – though they did not get the remedy they primarily wanted (and almost did not get a remedy at all).

The curious thing is not so much why the claimants won – there had been a breach that could not be denied – but why the government resisted the claim all the way to the high court (spending over two hundred thousand pound in legal fees).

Had the government simply admitted the breaches – but denied that the breaches were the result of any systemic and deliberate policy – and undertaken to publish the notices as soon as possible, then it would have been highly unlikely that the claim would have proceeded to a full hearing.

But the government did not, and so the claim did.

Something rather strange has gone on.

*

In this post I now set out the elements of the case, as can be identified from the content of the judgment.

I will then set out what the case was – and was not – about.

But before we get to the judgment, we need to first understand the purpose of the contract award notices and why it matters that they were not published in time.

*

‘Public procurement’ is the term used to describe the purchase by public authorities of goods and services from the private sector.

For various reasons, public procurement is subject to special legal rules that are in addition to (and sometimes qualify) the general law of contract.

In essence, the special laws of public procurement are about procedure: that is, what a public body has to do (and cannot do) when going about awarding a ‘public contract’.

And if that public body does not comply with those legal rules then a court can determine that it has acted unlawfully.

What then happens depends on the nature of the breach and the practical use of any remedy.

A court may compensate a wronged bidder for a contract, or it can issue a mandatory order that a public body do something (or not do something) in particular.

Or a court may just declare the correct legal position.

Or if there is nothing to be done, then a court may do nothing at all.

(For more on what it means, and what it does not mean, for a court to hold that a public body has acted unlawfully, see my post yesterday.)

*

One of the reasons there is a special legal regime for public procurements is the need for transparency.

Transparency is a fundamental principle in the law of public procurement.

All sorts of things need to be published by public authorities (and some public utilities) when purchasing goods and services that would not need to be published by a private corporations making similar transactions.

In routine public procurement the principle of transparency is met by the publication, for example, of specifications and contract values, and of details of the procurement exercises to be followed and of the criteria to be applied.

Thousands and thousands of pages of this dry information are published every day: the dullest legal prose on the planet outside of a tax code or a trade agreement schedule.

Dull – but necessary and a public good.

And one of the things that should be published are contract award notices.

*

A contract award notice is not, itself, legally that significant.

The parties to the tender exercise – the winners and (any) losers – will already have been notified of the contract award – and an aggrieved loser can bring a challenge if it acts promptly.

The purpose of the contact award notice is not for the benefit of the bidders and does not trigger or limit their rights.

The purpose of the contract award notice is for the benefit of the public

Contract award notices tell us which contracts have been awarded and for how much and so on.

Contract award notices also will alert investigatory bodies such as the National Audit Office to possible problems.

The alternative to a contract award notice is that nobody outside the government and any bidders would ever know what contracts had been awarded.

And so although contract award notices may not be legally that important – in that they do not trigger rights and so on – they are politically important.

Contract award notices are part of the tribute that public procurement pays to the principle of transparency.

And the need for transparency in the award of public contracts is a fundamental reason why we have special rules for public procurement in the first place.

*

This need for the publication of contract award notices is all the more important when there has not been any advertisement or other publicity for the award of high-value contracts.

For in an emergency a public authority can dispense with a formal procurement process.

This is provided for in the United Kingdom by regulation 32 of the Public Contracts Regulations 2015:

The government has relied on this regulation 32(2)(c) exemption for a high number of pandemic-related contracts.

Few sensible people would object – as such emergency provisions exist for emergencies, and this was an emergency.

The flexibility is built into the system.

But.

Although the need for prior publications can be relaxed under regulation 32, this does not mean that the need for subsequent publication is relaxed too.

Indeed, such notices become crucial, so that the public may know what is (and is not) being done.

*

Contract award notices are provided for under regulation 50 of the Public Contracts Regulations.

You will see that the regulation is one of a number of provisions dealing with transparency:

The relevant part of the regulation is regulation 50(1):There are some exceptions to this thirty day publication obligation (for example, national security) – but the government did not seek to rely on those exceptions in the coronavirus procurements.

So although regulation 32 allowed the government to dispense with prior publication about public contract the government still had to comply with the regulation 50 obligation once the contracts had been awarded.

And in a substantial number of instances, the government did not do so.

*

The judgment sets out the extent of the government’s failure to publish contract award notices in accordance with regulation 50:Note that this was set out in the government’s own witness statement.

(The mentions to the ‘policy’ are to a formal government policy on publications that was also breached – but for the purposes of this post, the policy adds nothing.)

Given that there was a legal rule that applied, and given that the government did not comply with it, then the only result is to conclude that the government had acted unlawfully.

There was no other outcome available to a competent court.

The wider (wilder?) claims of the claimants were found wanting: no probative evidence was before the court on this non-compliance being directed and cynical.

Of course, one may have suspicions and may regard those taking the government’s version of events at face value as naive.

But suspicions are not evidence, let alone proof, and the claimants’ assertion that the policy of delayed publication was part of a deliberate system fell flat in the (virtual) court room.

*

What also did not get traction was the claimants’ demand for a mandatory order – an order of the court to the government to comply with regulation 50 under pain of contempt of court.

And the reason why such an order was not made was because it was, by the time of the hearing, unnecessary.

The government had published the notices, although out of time.

Perhaps this late activity was because of this litigation.

Perhaps it was because, as the government’s evidence detailed, there were now more resources in place for such tasks.

But whatever the explanation: there was nothing left for a mandatory order to do – and so such an order was not made.

All that the court could do positively was to exercise its discretion to make a declaration that the law had been broken – and that is what the court did, though refusing to use words like ‘systemic’ as requested by the claimants.

But any declaration by a court is discretionary and it may well not have been made.

*

So this is case about non-compliance with a statutory deadline, which the government did not deny, and that had been remedied by the time of the hearing of the court.

And once at court, not a difficult case for the claimants to win.

So – and this is the curious question – why did this case ever get to court?

Why?

Here paragraph 153 of the judgment is fascinating.

(It is too long to screengrab or quote here – so click and read it here.)

For although the claimants undoubtedly overstated their case, the government’s reaction was extraordinary.

The government sought to claim that there was a special species of ‘technical breaches’ that were not really legal breaches at all.

The government also resisted until the very last moment any admissions as to what had happened.

The claimants may have had a free run at goal – but the government managed to intervene and score an own goal anyway.

If Alan Hansen were a legal commentator, one could imagine him wincing at almost every sub-paragraph of paragraph 153 of the judgment.

What on Earth was happening?

One can be fairly sure the fault is not with the government lawyers – their internal advice would have been much as I have averred above – to acknowledge a problem and to undertake to put it right.

(And the judge himself in this case was an experienced barrister in such public law matters – that is how he can set out the details in paragraph 153 in such a – well – systemic way.)

Someone in government insisted that this case went all the way to court – at the cost of over two hundred thousand pounds.

There may not have been a deliberate policy of delaying contract award notices – but there seems there was a deliberate decision to delay admitting that there had been legal breaches.

The claimants deserve some criticism for overstating their case without direct evidence.

Yet that overstatement is as nothing to the remarkable decision by the government to defend the legally indefensible at every step up to a high court hearing.

Perhaps this was a strategic decision by the government, in view of the other cases brought to challenge particular public procurement decisions, as opposed to this general challenge.

The government may well have nothing to hide – but it is certainly conducting its litigation as if it has.

*

The last word will be with the judge, who in paragraph 140 of the judgment summarises the fundamental problem presented by this case (which I have broken into smaller paragraphs for flow):

‘The obligations imposed by reg. 50 and by the Transparency Policy and Principles serve a vital public function and that function was no less important during a pandemic.

‘The Secretary of State spent vast quantities of public money on pandemic-related procurements during 2020.

‘The public were entitled see who this money was going to, what it was being spent on and how the relevant contracts were awarded.

‘This was important not only so that competitors of those awarded contracts could understand whether the obligations owed to them under the PCR 2015 had been breached, but also so that oversight bodies such as the NAO, as well as Parliament and the public, could scrutinise and ask questions about this expenditure. By answering such questions, the Government “builds public trust and public confidence in public services”: see §1 of the Transparency Principles.

‘One unfortunate consequence of non-compliance with the transparency obligations (both for the public and for the Government) is that people can start to harbour suspicions of improper conduct, which may turn out to be unfounded.’

Or they may not be.

And that is why transparency is important.

*****

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A government department or minister has been found to have acted unlawfully or illegally – but what does this mean? And what does it not mean?

21st February 2021

The news item is dramatic.

The high court in London has decided that a government department – or a specific secretary of state – has acted illegally or unlawfully.

The department or minister has, as the saying goes, broken the law!

There will then be a flurry of tweets, retweets and likes – and then demands for resignations, or prosecutions, or whatnot – followed by complaints that the news media (usually the BBC) have not adopted a similarly breathless approach.

And then there will be a sense of anti-climax or disappointment as the news fades and nothing significant seems to happen.

Nobody resigns, nobody is sacked, nobody is prosecuted, nobody has any personal legal liability.

Why is this?

Surely breaking the law has consequences?

*

Well.

Part of the problem is that the words ‘illegal’ and ‘unlawful’ are wide in their meaning.

(For convenience, the terms ‘illegal’ and ‘unlawful’ will be used as synonyms n this post – though some lawyers will have very strong opinions as their distinction in certain contexts.)

Their core meaning of being ‘illegal’ and ‘unlawful’, of course, is that there has not been compliance with a law – or that a thing has been done without a lawful basis.

That core meaning, by itself, does not tell you what laws have been broken, how they were broken, and what the consequences (if any) are for that breach.

And in the case of there not being a lawful basis for a thing, it may even mean no specific law has been broken as such.

There are many ways in which a thing may be ‘illegal’ or ‘unlawful’.

*

Yet for many the phrase ‘broken the law’ will mean a person has done something criminally wrong.

That such a person has breached a prohibition for which the criminal law provides a sanction for that breach.

But that is only one way the law can be breached.

This is because criminal law is only a sub-set of the law.

And so the illegality that gives rise to criminal liability is just a sub-set of illegality.

There are other ways a thing can be ‘illegal’ or ‘unlawful’ without any criminal offence being committed.

*

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a person does not comply with the conditions of a contract, or with the terms of a licence, or commits a wrong such as trespass or negligence.

Such an action or inaction will be to ‘break the law‘ – but these will not usually result in any criminal sanction.

Such wrongs are usually enforced, if at all, by a wronged party suing in a court.

This is what the law regards as ‘civil’ law as opposed to ‘criminal’ law.

Some people can commit dozens – if not hundreds – of such breaches – and nothing happens, because nobody is able or willing to sue for the wrong.

People act unlawfully and illegally every day.

People just like you.

*

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a public body does not comply with the provisions of the law or its relevant legal duties.

Here the relevant law is called ‘public law’ – a general term for the special laws that regulate what public bodies can and cannot do.

As a general rule, a public body can only do what the law provides for that body to do, and when doing so that body also has to comply with certain duties.

And if that public body does not do so, then it will be acting ‘illegally’ or ‘unlawfully’.

This means the public body, as a matter of law, has not done what it should have done.

The common way for such bodies to be held legally to account for the lawfulness of what they do is called ‘judicial review’ – though the question of legality can also sometimes be raised other legal proceedings.

Judicial review is, in England and Wales, usually before the high court.

When the question of legality is raised, the high court will ascertain the relevant laws and legal duties of the public body, and the court will then determine whether the public body has acted in accordance with those laws and duties or not.

If not, the court can decide whether the public body (or minister in charge of a government department in their official capacity) has acted illegally/unlawfully.

And that…

…is it.

At least that is it, in respect of the substance of the case.

If necessary, the court can then make a ‘quashing order’ that will render the act – a decision, or measure, or policy – as unlawful.

The quashing order will then, by legal magic, remove any legal meaning from what was done (or not done).

In practice, this usually means the public body (or minister) can make the quashed decision (or measure or policy) again, but this time lawfully.

A court may sometimes think a quashing order is not necessary, and may make what is called a ‘declaration’ instead – where the high court declares what the relevant legal position is (or is not).

And sometimes a court can even view that neither a quashing order nor a declaration as having any practical use, and regard the breach as moot or academic.

So a finding by the high court of illegality by a public body may mean there is a remedy, on not, depending on the circumstances.

*

The role of the court in judicial review is to, literally, review a thing judicially – to see if a thing done or not done by a public body was lawful or not. 

And if so, to see if anything practically needs to be done as a consequence.

Nothing more.

No automatic orders to pay damages, still less impositions of criminal convictions.

And sometimes not even a quashing order or other order, or a declaration, as not even that remedy is required to put right the wrong.

This is because the job of public law is not to deal with civil or criminal wrongs directly but to ensure lawful actions by those with public power – and to issue what corrective orders are necessary to ensure that public bodies keep within their powers and fulfil their duties.

Telling the swimmers to stay in their lanes, and blowing a whistle if required.

*

There is a public interest in this discrete question of legality of public bodies being examined by courts.

Of course, there will always be a clamour for greater sanctions for those individually responsible for such unlawful conduct.

And both the civil law and criminal law do provide the means for civil claims and criminal prosecutions to also be brought in certain circumstances.

Judicial review is not the only legal redress.

Such claims and prosecutions can, however, be complex and time-consuming, involving extensive witness and other evidence, and the need for witness evidence to be examined and cross-examined.

It is harder to impose individual culpability than to review generally whether a public body has acted lawfully or not – especially if intention has to be proved or causation of damage to be shown.

This is not to say there should be no role for civil and criminal liability when things go wrong in the public sphere – but to aver instead that the allocations and inflictions of such liabilities on individuals raise wider legal issues than the narrow question of whether a public body acted within or without its legal powers and duties.

*

So when the news is that the high court has found that a public body (including a secretary of state) has acted unlawfully or illegally then this means the court has reviewed what has happened and found it legally wanting.

A ‘cross’ rather than a ‘tick’ against the public body’s action or inaction.

The swimmer is in the wrong lane.

And, if required, an order or declaration so as to correct what has gone wrong.

That this does not carry any personal legal consequences for the ministers or officials involved will disappoint some of those following the news.

But to insist that there also has to be personal legal consequences for the ministers or officials whenever there are unlawful or illegal actions by a public body would be to make judicial review ineffective as a useful tool.

And there would be no public interest in that.

*****

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Comments are welcome, but they are pre-moderated.

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Why a production company was not allowed to pre-record and broadcast the coronavirus procurement case – a guided tour of the court’s reasoning

20th February 2021

Physician, heal thyself – proverb.

Yesterday the high court handed down its decision in the challenge to the government’s lack of transparency in respect of coronavirus-related procurement.

The court held that the government should have been more transparent.

This blog will examine that judgment once it can be properly digested – but in the meantime, there are some paragraphs of the judgment are interesting in and of themselves.

These paragraphs set out why the court – in a case about transparency and the public interest during the pandemic – refused an application for a production company to pre-record the hearing for broadcast under the very legislation that allows the courts to be more transparent during the pandemic.

Which is a little bit ironic.

Don’t you think?

The court’s reasoning on why the hearing could not be pre-recorded for broadcast is set out at the end of the judgment in a section with the title “Postscript: recording and broadcasting”.

The reasoning is worth going through step-by-step so one can understand the limits of public transparency of the courts when dealing with cases about the public transparency of the government.

(Please note that some of the mild teasing of the court below should not be taken too earnestly.)

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We start at paragraph 161 of the judgment:

‘161. Prior to the hearing, the Administrative Court Office indicated to the parties that, because of the COVID-19 pandemic, the hearing of this claim would take place remotely using a video-conferencing platform. The Claimants invited me to give permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. They made written submissions in support of that application. The Secretary of State resisted it, on jurisdictional grounds. I refused the application, indicating that I would give my reasons in writing at the same time as the judgment, unless the application was renewed orally at the hearing. The application was not renewed orally. These are my reasons for refusing it on paper.’

This is a useful reminder that judicial reasoning does not exist in a vacuum: judicial reasoning is about whether a court should do or not do a particular thing – usually whether to make an order.

Here, the reasoning is set out not because Mr Justice Chamberlain is going on some frolic of his own, volunteering his opinions on behalf of the judiciary of England and Wales on whether high court proceedings ought to be recorded and broadcast, but in response to a particular application by the claimants.

The government resisted that application – but not on its merits (though no doubt the government would not relish such proceedings being freely available). 

The application was instead resisted on ‘jurisdictional grounds’ – that is that such an order would not be open to any high court judge regardless of the merits.

You will also note that the judge mentions the application was ‘in the interests of open justice’ – and you will see that in nothing that follows does the judge deny that proposition.

The judge refused the application, and so what follows in this post tells why the judge made that decision – and why he did not (or could not) make any other decision on that application.

And the post ends by averring that this was an opportunity missed by the high court and such an application could have been granted on terms.

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Next is paragraph 162:

‘Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on the taking of photographs in court and on the publication of such photographs. This prohibition extends to video recordings: R v Loveridge [2001] EWCA Crim 973, [2001] 2 Cr App R 29. Exceptions have been provided by and under statute. None applies to proceedings in the Administrative Court. Section 41 therefore constrains the inherent jurisdiction of the court: R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), [2019] EMLR 16.’

The judge starts at, well, the starting point.

Taking photographs in court and publishing the photographs is generally prohibited – which means it is generally a criminal offence to breach the prohibition.

The prohibition is set out in a statute that is nearly one hundred years old, the Criminal Justice Act 1925, section 41(1) of which provides:

‘No person shall—

‘(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

‘(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof [… ]’

*

But wait: the proposal is not to photograph inside the court – indeed the hearing is not even taking place inside a physical court room – so how is this prohibition relevant?

The judge explains that section 41(1) has been extended to also mean video recordings, even though such things did not exist as such in 1925 and the section does not expressly mention video recordings.

Unfortunately, the 2001 decision which the judge cites as being authority for section 41(1) extending to video recording – and thereby extending the scope of a criminal offence – is not itself easily found in the public domain.

The nearest one will find in a reasonable internet search is this brief case note – which tells us, unrevealingly, that the court of appeal decided an ‘appellant’s convictions were safe despite the police having unlawfully videotaped them at court and adduced the evidence of a facial mapping expert to compare that video with CCTV footage’.

How a member of the public could join that dot to what the court here is saying about section 41(1) applying to video recording is not plain – and so we have to take the judge’s word for section 41(1) prohibiting video broadcasts and recordings even though section 41(1) does not explicitly say so.

(Yes, I know one can access the 2001 judgment through subscription services – but this blog and and what it describes is an exercise in the public understanding of law using public domain materials.)

The judge then notes there are general exceptions to this general prohibition – see here – but tells us none of those exceptions apply.

As such he concludes section 41(1) binds the court’s ‘inherent jurisdiction’ – that regardless that the power of the high court is very mighty indeed, statute is even mightier.

And of course, the judgment he cites for this very important principle is also not (easily) found in the public domain either.

So again we have to take the judge’s word for it.

Welcome to open justice.

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We now come to paragraph 163, which deals with how the courts have been specially allowed to conduct video proceedings during the current pandemic:

163. The Coronavirus Act 2020 inserted provisions into the Courts Act 2003 about “proceedings conducted wholly as video proceedings”. The first provision inserted was s. 85A(1), headed “Enabling the public to see and hear proceedings”. It empowers the court to direct that such proceedings may be broadcast (i.e. live-streamed). It also empowers the court to direct that the proceedings be recorded, but only “for the purpose of enabling the court to keep an audio-visual record of the proceedings”. Parliament could have authorised recording for broadcast, but did not.

Here the judge is describing what the law says – but also, by implication, what the law is not saying.

The law is set out in a section inserted into the 2003 Act by coronavirus legislation, which provides:

‘Section 85

‘If the court directs that proceedings are to be conducted wholly as video proceedings, the court—

‘(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;

”(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings […]’

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Section 85 looks promising for the applicants – and the exception under sub-section (a) looks as if it could cover the envisaged broadcast.

On the face of it sub-section 85(a) could be read so to permit the pre-recording and broadcast as envisaged in the application – subject to any specifications of the court

(In my view, had parliament intended that such broadcasts could only ever be done simultaneously with the hearing then parliament would have said so, but it did not.)

But the judge dismisses this possible reading with a deft gloss in parentheses that the broadcast exception only means ‘live-streaming’ – but note, the relevant law does not explicitly mention live-streaming – just broadcasting.

And, of course, many things that are broadcast go through a pre-recorded stage.

There is not a rigid broadcast/record distinction in media production.

The judge decides the envisaged project would fall instead within sub-section 85(b), and he avers that any such recording can only be for the purpose of judicial record keeping.

(It would seem to me to be at least arguable that a direction would have been possible under sub-section 85(a) containing specifications as to the manner of how the proceedings should be broadcast – otherwise, it would ignore the fact that most broadcasts necessarily go through a pre-recording stage.)

As the court decides neither of the coronavirus-related exceptions apply under section 85, then the general prohibition stands.

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The judge then, in paragraph 164, sets out the criminal offence that parliament created in the coronavirus legislation in respect of certain unauthorised broadcasts and recordings:

‘164. The second provision inserted was s. 85B, headed “Offences of recording or transmission in relation to broadcasting”. This makes it an offence for a person to make an unauthorised recording or unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under s. 85A. Section 86B(6) provides that a recording or transmission is “unauthorised” unless it is (a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor.”

This means that if a hearing is live-streamed in accordance with an order, it will be an offence for anyone to record and re-broadcast such footage.

*

The judge then deals with what appears to be an ingenious attempt by the Claimants to get around the statutory regime using the wording of the criminal offence:

‘165. The Claimants relied on s. 86B(6)(b). They argued that it would make no sense unless the court had power to authorise recording or transmission other than under s. 85A. This is topsy turvy statutory construction. Both the heading and operative language of s. 86B make plain that it is concerned with the creation of an offence and with the delineation of its scope. The function of s. 86B(6)(b) is to make clear that no offence would be committed by a person who records or transmits footage pursuant to an authorisation by the court. That is not surprising. One would not expect something authorised by a court to give rise to criminal liability.’

Topsy turvy.

*

Of course, the language of ‘make plain’ and ‘made clear’ in law (as in politics) usually means that the thing being described is not actually plain nor clear.

And it would seem that the applicants do have a point here (if a weak one) as the relevant section does appear to acknowledge orders being made other than under the coronavirus legislation.

But such an acknowledgment does not, by itself, create jurisdiction to make an order – the applicants still need to show the legal basis for their application, and they did not convince the court that they had one.

Ingenious legal submissions almost always fail.

*

Having asserted that the relevant law is ‘plain’ and ‘clear’ the judge, of course, has to explain the law yet further, and he does so in paragraph 166:

‘166. Nothing in s. 86B purports to define or expand the scope of the court’s powers to authorise broadcast and recording. Those powers are set out in s. 86A. That provision would not have been drafted as it is if the intention were to empower the court to permit recording other than for the purposes of record-keeping.’

Of course, if the law was actually ‘plain’ and ‘clear” then the judge would not need to keep on explaining it, as the law would, well, be plain and clear.

And again the court overlooks the fact that most broadcasting requires a pre-recording stage, and parliament did not expressly limit broadcasting to simultaneous live-streaming.

*

Paragraph 167 then sets out that there is a general prohibition on pre-recording for the purposes of broadcast and that this prohibition stands in this particular case:

‘167. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.’

In other words: the court would not be able to make such an order even if it wanted to do so.

It is a question of jurisdiction, not the merits of the application.

The judge has therefore not decided against making the order as such, but has decided that he does not have the power to do so.

*

But what about open justice?

For just as the roles of judges, lawyers and parties are now performed online during the pandemic, what about those who would sit in the public gallery?

In the last paragraph of the judgment, the judge explains how this important issue is addressed:

‘168. This does not generally, and did not in this case, prevent the public from having access to proceedings conducted wholly by video in the Administrative Court. In line with the Court’s usual practice, the cause list published on the day before the hearing included an email address through which any member of the public could apply for access to the online platform. All 19 who applied were able to access and watch and listen to the proceedings in this way. The proceedings were therefore at least as accessible as they would have been if held in court.’

This is a good point, well made by the judge.

Anyone who wanted to see the proceedings was able to do so, in the same way a person can go along and sit in a court if they want to do so.

*

But.

‘Open justice’ does not mean openness only to the very limited extent of the time, effort and commitment of a determined stranger to sit in a far-away public gallery.

The high court should seize the opportunity provided by the coronavirus legislation to make its work more visible to the public generally – especially in public interest cases arising out of the government’s response to the pandemic.

The public gallery is just one manifestation of the principle of open justice, but it is not its only standard nor its only template.

That is, to invoke a phrase, topsy turvy.

*

The mild teasing of the court above does have a serious point.

In public interest cases where the hearing comprises lawyer-on-lawyer action (and not any witness evidence) there is no good reason for the proceedings not to be more widely available.

This is not to suggest a free-for-all – such broadcasts can be done subject to the specifications of the court.

But a properly produced and professionally edited version of a public interest court case would be a boon for the public understanding of the law.

It is possible to read section 85A as permitting such a broadcast and, if so, the high court did have the jurisdiction.

Another judge may have taken a more robust approach to the opportunity provided by the coronavirus legislation for such a broadcast to be permitted.

It was a pity that such a production was not possible here.

*****

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The ‘war on woke’ and law and policy commentary – and the importance of responding to illiberals but not on their terms

19th February 2021

There are various ways of seeing the current ‘war on woke’ being promoted by certain politicians and their media supporters.

One is to see it as a growing threat: that certain divisive issues are being ‘weaponised’ by those seeking and holding political and media power as a means of mobilising and consolidating sufficient support so as to obtain and maintain political and media power.

Another way is to see it is as the signals of declining political and media power: certain divisive issues are being ‘weaponised’ with increasing frequency as a means of holding off falls in political and media support, with each promotion of illiberalism illustrating the law of diminishing returns.

Either – or neither – of these things may be true.

One hopes for the latter, but one fears the former.

And perhaps which one is (or will be) true is down to what liberal and progressive people do now, as few things in human affairs are inevitable in any direction.

But there is the question of how, if at all, a law and policy blog should engage with each of these blows of the trumpet.

Should each blast be taken with anxious earnest solemnity – and risk being ‘owned’ like a ‘lib’?

Should one point and laugh and jeer – and risk being portrayed as having some metropolitan sneer?

Both of these responses are, of course, factored into the provocations – they are the desired results of the pulls on the chain.

Yet a third response, of ignoring the provocations – not ‘feeding the trolls’ or ‘giving oxygen’ – carries the risk of something significant being ignored that can then grow and manifest itself into a thing unwanted: such as the lack of engagement with Ukip ended up with a Brexit with the United Kingdom outside the European Union single market and customs union.

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So what, if any, is the best chess move to make?

The approach of this blog – for what it is worth – is to acknowledge that there is an attempt to start a culture war, but to not participate on the terms of the aggressor.

As a previous post asked: what happens if they started a culture war and nobody turned up?

Instead – perhaps too boring and unconfrontational for the tastes of some – the claims of illiberals will be patiently set out and the merits of those claims examined.

Invariably those claims will be found wanting.

And that will be because the claims are not intended to be serious contributions to law and policy but instead political – indeed, populist – speech acts.

Such claims need – somewhere – to be pointed out as such.

But this approach itself is problematic.

As I have previously averred, pointing out lies and disinformation does not make any difference if people want to be lied to – or do not care.

But it is a public good anyway, and it still should be done even if there are no obvious benefits.

And at least it will be a resource for those who do want to know the facts of matters before making media and political choices.

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The reason for setting this out is that have some have critically responded to recent posts – for example setting out how a government minister was getting the law about statues wrong or how a pro-Brexit politician was misrepresenting the Human Rights Act and what, if any, was the significance of such misinformation.

It was contended that these very acts of engagement were wrong – that it, to use that most dire of hackney phrases, ‘played into their hands’.

I think, however, what ‘plays into their hands’ is to allow your response to be defined by the provocation.

Dull, plodding, matter-of-fact posts setting out the false law and policy premises and incorrect facts about various provocative claims do not seem to me to be ‘knock-on’ effects that are desired by the provocateur.

Indeed, it may well be the most irksome of all possible responses – for it removes credibility without adding any drama or excitement.

Of course: such responses do little or nothing directly to politically counter the provocateur.

For that, one must look to opposition politicians for leadership.

And that is certainly not a job for a non-partisan blog – for partisanship is the enemy of useful commentary.

*****

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The significance of the appointment of Lord Frost as a cabinet minister for Brexit

18th February 2021

Compare and contrast two government statements.

The first – which was released to the media though not (it seems) published on the government website – is from just before Christmas 2019.

The statement read:

“The Department for Exiting the European Union will be wound up once the UK leaves the EU on the 31 January.

“DExEU staff have been spoken to today. We are very grateful for all their work and we will help everyone to find new roles.”

The notion was that, now Brexit had been ‘delivered’ there was no need for a cabinet-level minister to be dedicated to Brexit.

But Brexit had not been delivered.

Brexit had hardly begun.

For as this blog as previously averred – and as I set out in this Financial Times video – Brexit will be a negotiation without end. 

This is because in part of the enormity of the issues that still need to be settled – but it also because of the deliberate structure of the withdrawal agreement and the trade and cooperation agreement.

Both of the Brexit agreements create institutions and frameworks for ongoing negotiations, and negotiations, and negotiations.

That the ‘delivery’ of Brexit will be an ongoing matter for substantial and intense engagement with the European Union is a feature of the withdrawal arrangements, not a bug.

The content and form of the exit agreements are not about once-and-for-all and one-bound-and-we-are-free.

*

And so we come to the second government announcement, from yesterday.

Regardless of the personalities involved – Frost is, in effect, taking over from Michael Gove as the cabinet minister responsible for Brexit, and Gove is a politician many have very strong opinions about – this is a sensible and welcome appointment for four reasons.

First, it shows the government has realised that the task and tasks ahead for Brexit are such that it needs a dedicated minister at cabinet level (even if not, strictly speaking, a secretary of state).

Indeed, the United Kingdom’s relationship with the European Union is likely to be a far more visible and prominent feature of public policy after Brexit than before.

And the cabinet office – and thereby Gove – has many other responsibilities. 

Second, it indicates that the government has realised the folly of creating a special pop-up department for the purpose of dealing with Brexit and is instead working with the grain of the planks of Whitehall than against them.

The cabinet office has many faults, but it at least has the departmental weight, and the expertise and (now) institutional memory on Brexit, that an entirely new department would lack.

Third, as Frost was the United Kingdom’s negotiator of the trade and cooperation agreement, there is a benefit for him also being in place for the negotiations that are to take place within the framework of the agreement.

The many delicate compromises of the agreement, and the agreed processes established to address hundreds (if not thousands) of technical issues (as well as various big ones) will not be – or should not be – news to him.

And fourth, the appointment regularises the position of Frost in the government – making him a formal minister so as to end his limbo state as a politicised adviser and ‘sherpa’.

As such he will be responsible to parliament directly.

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Not all government decisions – even with Brexit – are calamitous.

Sometimes the government of the United Kingdom can surprise you and do something (eventually) that makes sense.

Of course: there should have been in place a dedicated cabinet minister for Brexit all along – and, if so, various problems over the last year may not have the effects that they did.

But the primary significance of the appointment is that it implies an official acknowledgement that the real work of Brexit is still to come.

If so, perhaps Brexit reality is finally seeping in.

*****

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Why is the Human Rights Act 1998 still so contested? And what can be done about it?

Ash Wednesday, 2021

The political hobgoblin is at it again.

As this blog has previously averred, this particular politician is a political hobgoblin, adept at at identifying political gaps and then exploiting those gaps so as to inflict misfortune and spread discontent and gain political support.

As such, this politician should be taken seriously – though not on his own terms.

All because an illiberal politician wants others to join some culture war that does not mean that liberals and progressives have to do so in kind.

But quietism is an error too: the old commands to not ‘feed the trolls’ or ‘give oxygen’ are not useful tactics or a sensible strategy to address relentless authoritarian nationalistic populism.

Instead, corrections should be made as publicly as possible, and illiberal ploys assessed for their significance to see what, if anything, can be done practically to combat any appeals of reaction and illiberalism.

Had liberals and progressives reacted differently to the rise of Ukip, for example, and made the positive and informed case for United Kingdom remaining part of the European Union, and for staying part of the single market and the customs union, then the shape of Brexit may well have been different, that is if Brexit would have happened at all.

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So what should one make of this complaint about the ‘EU Human Rights Act’?

One reaction is to laugh and sneer at its legal illiteracy: for the ‘EU Human Rights Act’ is not a thing.

The politician(s) saying otherwise know this, but they do not care.

They are getting the ‘likes’ and RTs and claps and cheers anyway.

And liberal and progressive jeers are, for the illiberals, all part of their political fun: the sound of ‘libs’ being ‘owned’.

But if liberals and progressives simply ignore the hobgoblins then that may have the unhappy result of making certain unwelcome legal and policy consequences more likely.

And the Human Rights Act may end up thrown away like membership of the European Union, and liberals and progressives will stand and stare and wonder: how did this happen?

*

And here we come to the Human Rights Act 1998, which took legal effect twenty years ago, in 2000.

The statute is still there on the statute book – while politicians who have sought to repeal or dilute it, such as David Cameron, Theresa May and Chris Grayling, have come and gone.

This survival may make the act’s defenders and champions complacent.

But the main reason the act has survived – at least on my analysis – is that the Good Friday Agreement provides that the European Convention on Human Rights is directly enforceable in the courts of Northern Ireland.

And one of the things that the act does is to make the convention directly enforceable in domestic courts in a way that would not be legally possible but for the act.

If the Human Rights Act 1998 was repealed then something very similar to that act would need to be put in place straight away, at least in respect of Northern Ireland.

The current political controversy about the position of the north of Ireland after Brexit indicates, however, that nothing about the Good Friday Agreement should be taken for granted.

And liberals and progressives should not thereby rely on the Good Friday Agreement being the means by which the act will survive, instead of making the positive case for the legislation.

After all, the fact that membership of the European Union provided a practical solution to the question of the border in Ireland did not stop Brexit.

*

After twenty years of legal effect, the Human Rights Act 1998 is still contested.

It has not eventually become part of the political consensus, in the way that other previously contested legislation have done so.

Every general election the Conservative Party will bang on their populist drum about replacing the act with something else.

Part of this perhaps is because of the name of the legislation.

Had the statute instead been called the ‘Interpretation of Legislation and Powers of Public Authorities (Application of Articles of the European Convention on Human Rights) and Related Purposes Act 1998’ then maybe the act’s opponents would be less incensed.

And as the Police and Criminal Evidence Act 1984 – arguably the most important legislation ever passed for the practical protection of civil liberties – shows, the more boring the name for an act, the more it can get away with.

Here, ‘New Labour’ may be blamed, as for many other things.

For as with the Freedom of Information Act 2000, the government of Tony Blair put dramatically named legislation in place, and then did nothing to take the next step of embedding that legislation as part of the political mainstream.

Just passing the Human Rights Act and the Freedom of Information Act but then not promoting a sustainable human rights and freedom of information culture was a big job left undone.

*

Another reason why the Human Rights Act is still contested is that the news media do not value the legislation.

Indeed, the way the act enabled the courts to ‘develop’ (that is, to invent) an entirely new tort of the misuse of private information was seen as a hostile move by much of the news media.

And had the courts put comparable efforts into ‘developing’ the right to freedom of expression under Article 10 then the news media may have come to see the act in the same way American journalists see the first amendment.

But in practice, Article 10 often seems to be the weakest of the rights provided for under the act – invoked as part of a perfunctory ‘balancing exercise’ before being rejected in favour of privacy rights.

As the eminent jurists Chas and Dave would put it, Article 10 is the sad neglected Mr Woogie of domestic human rights law, and Article 8 is the popular Mr Boogie.

Poor old Mr Woogie.

*

And what the Human Rights Act gets right is also overlooked.

Take for example the new Hillsborough inquest.

That there was a further inquest able to to explore fully the circumstances of the tragedy was legally possible only because of the Human Rights Act.

The right to life under the act carried with it the duty to ensure that the circumstances of deaths brought about by the acts and omissions of public bodies (in this case the police) were properly considered.

And so even though the tragedy was before the act took effect, the new inquest had to take the wider Human Rights Act-compliant approach.

But you would not know this from news coverage – and indeed many people who follow public affairs would not know this at all.

There are many other examples, but none that have traction in the public domain.

And so we are left with the occasional outrages instead.

*

Finally, there is the inconvenient truth that the Human Rights Act is not what some of its supporters say it is.

The act is not an especially powerful statute.

It provides a basis for a court to take a right under the convention seriously, but it does little more than that.

Almost all the rights are ‘qualified’ and so can be side-stepped in practice as long as a public authority can show that the interference with the right is proportionate and in the public interest – and these are not high hurdles.

And, unlike what was the case with European Union law, primary legislation cannot be set aside when convention rights are breached.

The Human Rights Act provides a balance between access to the convention rights in legal proceedings and the doctrine of parliamentary supremacy.

The act does not do a lot, but it does enough – and it is far better than nothing.

But a practical and pragmatic case for something that is ideoologically contested is difficult.

Brexit showed this.

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So how does one defeat the political hobgoblins?

By realising that there is a case to be made for a thing that is contested – and by making that case.

By patiently correcting errors of the hobgoblins and by being realistic about what one is defending.

This approach, of course, has no guarantee of success.

But ignoring the hobgoblins – or screaming at or along with them – is even less likely to be successful.

And sometimes contests can be won as well as lost.

The outcome of a contest may not be predetermined.

Ask Mr Woogie.

*****

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An introduction to Article 16 of the Northern Irish Protocol

16th February 2021

Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.

The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.

The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.

In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.

This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.

*

As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.

By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.

Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.

Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.

And so with Article 16 we have to understand something about the purpose of the Protocol on Ireland/Northern Ireland.

*

The protocol, in turn, does not exist in isolation.

The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.

The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:

Not just specific, but ‘very specific’.

You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.

Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:

You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.

The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:

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Now we can turn to the protocol itself.

Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.

And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).

Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.

In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.

The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.

And these recitals, in particular, are significant:

And:

Note the word ‘guarantee’.

And:

And:

A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.

These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.

And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.

*

Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.

You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).

There are also provisions for State aid and VAT.

The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.

It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.

But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.

And this brings us to Article 16.

*

Article 16 comprises just three paragraphs:

The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.

The first paragraph then provides the triggers for the safeguards.

There are two triggers.

First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.

Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.

Second: ‘if the application of this Protocol leads to…diversion of trade’.

Again, ‘diversion’ indicates something significant and lasting.

*

If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.

Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.

Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.

And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.

Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.

These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.

And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.

*

Annex 7 contains six ‘points’:

You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.

Point 2 then provides that the next stage is consultations.

Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.

Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.

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All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.

The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.

This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.

In simple terms: that is not what the safeguard measures are safeguarding.

*

Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.

But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.

Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.

For Quis custodiet ipsos custodes?the eternal question of who watches the watchmen – applies here, as elsewhere.

What – or who – shall safeguard the safeguards?

*****

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Why political conservatives should embrace free historical inquiry – rather than imposing and promoting an official version of the history of the United Kingdom

15th February 2021

Another weekend, another Sunday newspaper splash from the government and its media supporters hoping to have a culture war to which their opponents will come.

From yesterday’s Sunday Telegraph:

Now, having digested (or otherwise) this ‘torpedo’, let us go back thirty-or-so years to a time when political conservatism in the United Kingdom was in a far more intellectually confident state.

The late 1970s and 1980s was when a range of conservative (big ‘C’ as well as little ‘c’) academics and public intellectuals were challenging (perceived) orthodoxies in many intellectual disciplines: economics, sociology, and so on.

In the historiography of the United Kingdom, in particular, many received versions were being questioned.

Jonathan Clark and others were subverting the ‘whig’ or ‘Enlightenment’ view of the ‘long eighteenth century’ of 1660-1832 and were urging instead that religion generally and Anglicanism in particular be taken seriously as an explanatory means of understanding political and social change – and lack of change.

For the nineteenth century, John Vincent and Maurice Cowling were disputing that the widening of the franchise in the 1860s was to do with any sense of democratic progress, and were contending instead that it was far more about the cynical political opportunism of the politicians involved.

In respect of the twentieth century, Correlli Barnett was confronting the comforting origins of the post-war welfare state consensus with an equally discomforting counter-narrative in his Pride and Fall sequence.

A brilliant young historian named Andrew Roberts took on head-first the most cherished of recent British myths in a book entitled Eminent Churchillians – the poundering revisionism of which would make even the most devoted admirer of Netflix’s The Crown blush.

(Eminent Churchillians remains Roberts’ best book by a country mile – and its demolition of Arthur Bryant’s patriotic history a delight.)

There were many others.

It was a fascinating – exciting – moment to be a student of history (as I was).

And all this at a time when communism (in its post-war form) was about to come to an abrupt end, notwithstanding the claims from a few (if not the many) that such a system was historically inevitable.

*

Thirty years later, no doubt little of this intellectual energy has perhaps left a lasting historiographical mark.

The weaknesses and faults of these historians and their histories have, in turn, been exposed.

Historiography has moved on.

But at the time it signalled an unafraid seriousness to take on and replace versions of history on which liberal and progressive pieties often rested complacently.

And it was not an accident that these academic challenges were concurrent with the politics of Thatcherism that also sought to take on the certainties of left wing and centrist positions.

So it seems telling that the conservatives of today do not share the intellectual confidence of their counterparts of thirty-or-so years ago.

Instead of taking on histories that show the precariousness of the ‘Union’ of the United Kingdom, or how much British economic development depended on the ownership of slaves and the system of slavery, or how the British empire was as just as exploitative and brutal as any other empire – these discomforting challenges to the conservative worldview are to be ‘torpedoed’ by bureaucratic directions instead. 

*

Many ideologies have, as a component, a theory of history.

Certainly many ideologues do.

And this is true for internationalists as well as nationalists, liberals and progressives as well as conservatives, Remainers as much as Brexiters, and so on.

One test of the soundness – indeed robustness – of that ideology is how it copes with fundamental challenge.

Are the ancient tools of ‘heresy’ and ‘blasphemy’ re-fashioned with modern guises so as to do the work of closing down unwelcome subversions?

Or are the foundations of the ideology more robust than that?

(And there is always the question of whether a thing is an ‘ideology’ just because you say it is.)

*

A great deal of modern political conservatism – now hardening into the worship of plaster and plastic heroes – was based on the questioning of received historical conventional wisdoms in the 1970s and 1980s.

And now conservatives want to pull their intellectual shutters down, pull up the historical drawbridge, and fill the moat with torpedoes.

Those who support the current government of the United Kingdom – and the view of the British past that it promotes – should relish taking on the historiographical challenges presented by a more-rounded understanding of the history of these islands and of their economic and imperial history.

For if that ‘Brexit’ understanding of British history was valid then current Brexit positions will be validated.

And if those understandings are invalid, then it will show that the Brexit endeavour may itself be misguided.

*****

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