Author: David Allen Green

The need for evidence and the Northern Irish Protocol Bill – the background to a rather interesting parliamentary amendment

28th June 2022

One of the most fundamental distinctions in legal practice is that between law and evidence.

Anybody can assert “[X] is guilty of murder” or “[Y] had broken a contract” but mere assertion is not enough for a court.

A court will need to see and assess the evidence that [X] is guilty of murder or [Y] had broken a contract.

And it is only when the evidence is applied to the law, and the law applied to the evidence, that a court will hold (or not hold) [X] to be a murderer or [Y] to be in breach of contract.

Mere assertion is not enough.

*

Yesterday in the House of Commons the Foreign Secretary asserted that that the proposed Northern Irish Protocol Bill was ‘necessary’.

The asserted ‘necessity’ justified, the minister claimed, the legislation being brought forward.

Legislation that on the face of it is a breach of international law – and can only only be saved from being such a breach by the doctrine of ‘necessity’.

But.

It is one thing to assert that a thing is the case, and another to show that it is the case.

And so it is with the use of “necessity” by this government to justify bringing forward this otherwise law-breaking bill.

It is not enough for the government to tell us it is “necessary” – they need to show it.

As any competent screenwriter would tell you: show, don’t tell.

One government backbencher, Sir Bob Neill, asked about the evidence which supported the government’s position:

“To return to the legal point, she will know that the application of the doctrine of necessity requires both the legal tests to be met and the evidential base to be there, because it is largely fact-specific to show whether those tests have been met. I know that the Government have been working hard to assemble that evidential base, but can she tell us when it will be available to the House so that we can form a judgment as to whether those legal tests are met and, therefore, proportionality and necessity are met? It would be helpful to have that before we come to a conclusion on the Bill.”

The Foreign Secretary’s response indicated she had missed the point:

“I thank my hon. Friend for that point. There are clearly very severe issues in Northern Ireland, including the fact that its institutions are not up and running, which mean that the UK has to act and cannot allow the situation to drift. I do not think that we have heard what the Opposition’s alternative would be, apart from simply hoping that the EU might suddenly negotiate or come up with a new outcome.”

It is not enough to ask the opposition about what they will do – it is for the government to make out the necessity.

And it is not enough for her to assert that there are “clearly very severe issues” – and as this blog has said before many times, anything described by a politician as “clear” tends not to be.

Neill also asked this question of a former Lord Chancellor, Robert Buckland:

“He refers to the doctrine of necessity and the tests that must be met. I think he will agree that, whether it be imminent or emerging, there has to be evidence that the high threshold is met. Does he think that, in common with the approach adopted in the United Kingdom Internal Market Bill, if there is evidence so pressing as to justify a departure from an international agreement, with the risks that that involves, it should be brought back to this place for the House to decide in a vote? As was then suggested in that Bill, on the evidence available, there should be a parliamentary lock on the use of that important step.”

The former Lord Chancellor also did not have a clue:

“My point is simply that this is not a matter of law or a question of legality. There is a respectable argument that can be deployed by the British Government to assert necessity, but this is not about the law; it is about the evidence that the Government will need to marshal to demonstrate that point. The Government’s responsibility is to be a good steward of the Good Friday/Belfast agreement.”

And the former Lord Chancellor also said:

“…a lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence; it requires a degree of real threat, and growing evidence of a real threat to our essential interests. 

“I would argue that there is such growing evidence. Clearly north-south is entirely unaffected—the respect we are showing for the single market is clear—but there is a growing problem when it comes to east-west.”

Buckland asserts there is “growing evidence” but – other than broad generalisations – he cannot point to any.

This is not impressive.

Neill’s comment that there are those in government putting together an evidence base for saying that the bill is “necessary” may be well-informed or it may be, well, charitable.

But it can only be right that the evidence for necessity be made available to Members of Parliament before this bill is passed.

Neill has now put down an amendment for the next stage of the bill’s passage which will require there to be a dedicated vote in the House of Commons before the powers in the bill can be used.

This would mean that a minister would have to come to he House of Commons to make a positive and specific case of necessity before the powers in the bill could be replied upon on the basis of “necessity”.

It would be a wise provision – and there cannot be a good argument against it in the circumstances (though there will be plenty of bad ones).

Strangely, the strongest criticism of the bill in yesterday’s debate came from Theresa May, in a speech that nobody following this blog could have put better – read it in full here.
Of course, this is the same Theresa May whose fateful decisions after the referendum to rule out membership of the single market and customs union led directly to the current botched Brexit.

(And, yes, it it tempting to keep re-fighting the battles of 2016, like a military re-enactment society.)

But here May is spot-on.

It is disappointing, of course, that Neill, May and other government backbenchers did not vote against the principle of the bill at the reading yesterday.

This, however, may owe to the logistics of the exercise of amending the bill at the next stage – they are keeping their various powders dry.

What is obvious, however, is that the government cannot – as of yet – make out the evidence base for “necessity”.

If the Neill amendment is adopted, ministers may be required to put forward their evidence base, if they have one.

And if they cannot put forward the evidence base, then ministers may not be able to rely on necessity.

Their bluff would be called.

And sometimes it is, well, necessary to call the bluff of ministers.

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Posts elsewhere on the “Bill of Rights” and on by-elections

27th June 2022

Just a brief post here today, as I am currently writing one of my longer posts for (I hope) posting on this blog later in the week.

Over at Al Jazeera, I have written again from a liberal constitutionalist perspective for an international audience.

My piece there this week is on the significance of last week’s by-elections – and why, generally, by-elections and other ‘mid-term’ events can be constitutionally significant, even if they are not good predictions of general election results.

And this is because in the British constitution it is common for Prime Ministers to either gain or lose power between general elections (or both) – as this blog has set out previously.

Over at Prospect I have done a comment piece on the new ‘Bill of Rights’ – focusing on its pointlessness but also emphasising that it shows the wrong priorities for the Ministry of Justice, a small department with a limited budget.

Today, criminal barristers are on strike – as the criminal justice system is in an ongoing crisis.

For the current Lord Chancellor to prioritise this ‘Bill of Rights’ above everything else at the Ministry of Justice is a serious error.

So, as my Prospect piece concludes, this bill is the legislative equivalent of lounging on a beach while Afghanistan falls.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

 

Why the current government may not have a mandate for repealing the Human Rights Act – and why this may matter

24th June 2022

In yesterday’s post on this blog, the successive manifesto commitments of the current governing party since 2010 on the Human Rights Act were set out.

These commitments were as follows :-

The 2010 Conservative manifesto (twelve years ago):

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the  Human Rights Act with a UK Bill of Rights.”

The 2015 Conservative manifesto (seven years ago):

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The 2017 Conservative manifesto (five years ago) placed a foot on the ball:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”

And then most recently, in the 2019 Conservative manifesto:

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

*

This post looks at what the implications of that last 2019 commitment may be – though, in doing so, it is accepted that manifesto commitments are not legally binding obligations, and so there is leeway in how they are to be interpreted.

The 2010 and 2015 manifesto commitments do not need much interpretation in respect of the Human Rights Act – they are as plain as any pikestaff.

The Human Rights Act was to go – replaced, scrapped.

The 2017 commitment is also not ambiguous – the Human Rights Act was to stay, for now.

But.

The 2019 commitment was not that the Act would be replaced or scrapped, or that it was to safe for now.

The 2019 commitment was only to ‘update‘ the Act.

The 2019 commitment could have been to ‘scrap’ or ‘replace’ the Act – but the governing party decided against making that commitment.

The governing party opted for ‘update’ instead.

*

The governing party thereby has an election mandate for ‘updating’ the Human Rights Act.

And so if this is what they do, then that cannot be gainsaid – at least not constitutionally,

But the government is not now proposing merely to update the Act – but to repeal it and replace it with another statute.

To do, in effect, what the 2010 and 2015 manifestos promised.

But do the governing party have a mandate for repealing the Human Rights Act outright?

In other words: is repeal within the scope of an ‘update’?

Again, it is important not to be legalistic about this – no legal claim can be brought for a government breaking its manifesto promises, and so no manifesto should read as it is a formal legal document.

But what is stated in a manifesto is not without constitutional consequences.

This is because of the so-called ‘Salisbury doctrine’ – a constitutional convention.

This doctrine provides – quite rightly – that it is not open to the House of Lords to block or delay legislation for which a government has obtained a mandate at a general election.

The question thereby becomes whether this proposed ‘Bill of Rights’  is protected by the Salisbury doctrine or not.

If it is protected by the Salisbury doctrine, then the House of Lords cannot and should not block or delay the bill – though, of course, it may seek to make amendments.

If the bill is not protected by the Salisbury doctrine, however, then there could be such delays – including forcing the government to resort to the Parliament Acts to force the law onto the statute book after a year without the support of the House of Lords.

As the new bill substantially reduces rights and freedoms of individuals, there may be those in the House of Lords that will want to amend the bill beyond what the current government would want to accept – and to insist on those amendments.

Their view may be that “updates” – whatever that means – may be fine, but not outright repeal –  because the government cannot point to any mandate for repeal.

*

If a bill is protected by the Salisbury doctrine, then the House of Lords will (usually) back down before the government has to invoke the Parliament Acts.

Of course, the only reason any of the above may be an issue is, no doubt, that the governing party did not want to say expressly in its manifesto that it would repeal the Human Rights Act outright, as that might have scared the voters, if not the horses.

A promise to ‘update’ was a lot less alarming to middle-ground voters.

*

One suspects the House of Lords will be wary about opposing the government in respect of such a populist piece of legislation.

And the government – and its media and political supporters – will clap and cheer at the prospect of a ‘peers vs people’ narrative.

But because of the mild wording of the 2019 manifesto commitment, the government cannot be certain of the House of Lords will back down on outright repeal.

And, what is more, this government in particular is not in any strong position to insist that other elements of our constitutional order comply with mere conventions.

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

“Oh no, not again” – the story of the Human Rights Act and of the new “Bill of Rights”

23rd June 2022

*

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was ‘Oh no, not again’.”

– Douglas Adams, The Hitchhikers Guide to the Galaxy

*

Legal and constitutional commentators are the petunias of the modern age.

The current bout of constitutional excitements started in around 2015, and these excitements have carried on relentlessly since.

Again and again the government has threatened to do something – or done something – drastic in respect of our constitutional arrangements.

Seven or so years later it is rather exhausting to keep up.

And giving up is tempting.

But keep up we must, as these are serious matters – even if government and its political and media supporters do not take them seriously.

For the political and media supporters of government will clap and cheer at each of these constitutional disturbances – and will delight in the ‘libs’ being ‘owned’.

Well, this ‘lib’ is more bored than owned.

But commentary must be offered, if only as a corrective to the narratives of those currently in power and those who support them.

And so this is the story of the Human Rights Act 1998 and the supposed “Bill of Rights” with which the government wants to replace it.

*

Before the Second World War, a certain sort of English person would have boasted not of having rights but of having liberties.

The notion was that an English person was free to do whatever they wish, unless it was prohibited.

The self-image was of a robust anti-authoritarianism – and it was an image which gained wide purchase.

And to an extent it was a fair depiction – the powers of the Crown had generally been made subject to Parliament, and most exercises of state power could be contested before a court.

But.

The Victorian doctrine of parliamentary supremacy – which asserted that Parliament could make or un-make any power it wanted – had as an unfortunate implication that the subject was powerless in the face of a determined executive dominating the legislature.

This implication was noticed by, among others, a Lord Chief Justice – Lord Hewitt – who in 1929 published The New Despotism warning of the illiberal power of the British state.

And in the Second World War what Hewitt warned of in theory was carried out in practice with the government’s use of the defence regulations.

For all the comforting self-image, there was not in practice robust English liberties that would actually protect the subject against the king’s government – let alone the citizen against the state.

Perhaps there never had been.

*

Following the Second World War there was a spate of international conferences and organisations that purported to declare and protect rights.

One of these, of course, was the European Convention on Human Rights.

This convention provided for a number of rights, contained in articles.

Some of the rights were set out in the original convention, and some were added in later protocols.

The convention was connected to the Council of Europe, which now comprises most European states:

By being party to the convention, a country agrees to be bound by the convention as a matter of international law.

Some claim that the convention was promoted by Winston Churchill and drafted by Conservative lawyers – but their contribution should not be overstated (see this fine book for what did happen).

The United Kingdom at the time the convention was ratified in 1951 did not see the convention as controversial or as being inconsistent with domestic law.

The convention did not only provide for rights but it also established a court to determine whether any signatory – as a matter of international law – was in breach of its obligations under the convention.

That court is the European Court of Human Rights in Strasbourg, of which you may have heard.

*

What happened next is not widely known.

As is described in a House of Commons library paper:

“Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority.”

The United Kingdom did not allow anyone to actually petition the Strasbourg court until 1964.

And until relatively recently – the mid-1990s – governments of all parties resisted the reach of the Strasbourg court.

*

This resistance had the following effects.

First, it created immense costs and delays for individuals who wanted the United Kingdom to comply with its international obligations.

For example, in the case of Malone – in my view, one of the most important constitutional cases in the last hundred years – a 1977 incident did not reach a Strasbourg judgment until 1984.

There the Strasbourg court held that any surveillance of the individual by the state had to have a lawful basis.

The English court had held, in effect, that just as it was open to any subject to do as they wish unless prohibited, it was also open to state bodies to do as they wished unless prohibited.

That’s robust English liberties, for you.

The Malone decision in turn led to the United Kingdom placing its surveillance regime onto a legal – and thereby legally contestable basis.

But it took seven years for the judgment to happen.

Second, it meant that lawyers developed various means of referring to Strasbourg jurisprudence in domestic courts.

I remember seeing this article as a law student in the mid-1990s:

By then it was getting rather silly.

A United Kingdom litigant seeking to rely on their convention rights had to go to the cost and delays of going to Strasbourg, or had to find a clever lawlerly way of relying on Strasbourg caselaw in a domestic case.

But what that litigant could not do is rely on their convention rights in a straightforward way before the domestic courts – even though the United Kingdom was bound by the convention (and by the Strasbourg court’s interpretation of the convention) as a matter of international law.

*

And then, in 1997, the electorate of the United Kingdom returned a Labour government:

Things could only get better, or so people thought.

And one thing the government did to make things better was to introduce legislation so that the convention could be relied on in domestic courts.

This would not only solve the increasingly absurd problem of the costs and delays of individual petition and indirect reliance, it also gave effect to a key provision of the Good Friday Agreement which was signed in April 1998.

One of the express bases of that agreement was that the convention had to be capable of being directly enforced in the courts of Northern Ireland – in particular against the Northern Irish Assembly:

And so the Human Rights Act 1998 came into being, which allowed direct access to the courts for breaches of the convention, and not just for those in Northern Ireland.

As the government of the day boasted in an allusion to the popular football song: rights were brought home:

The Act took effect on 2 October 2000.

*

But.

The Human Rights Act never gained universal support.

This is for, I think, two main reasons.

First, the popular media disliked how English judges created an entirely new tort – misuse of private information – on the back of the 1998 Act.

The Act does not expressly provide for any such cause of action.

But case-by-case, the courts crafted a new basis for suing for breaches of privacy.

And the courts did not ‘develop’ the corresponding right of free expression in any comparable way.

Few reporters and editors came to see the Human Rights Act as an instrument that would protect them like their American counterparts who could point to their constitutional rights.

Second, the politics following 2001 and 9/11 pushed against human rights protections.

It is difficult to imagine the Human Rights Act being enacted after 2001 had it not been enacted before.

The Labour governments became more illiberal, as anti-terrorist act followed anti-terrorist act.

And by 2006:

Human rights may well have come home – but they were now unloved by the Act’s own parents.

*

At this time, the then-opposition Conservatives were becoming even more opposed to the Human Rights Act than the Labour government.

So also in 2006:

The 2010 Conservative manifesto (twelve years ago):

“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the  Human Rights Act with a UK Bill of Rights.”

The 2015 Conservative manifesto (seven years ago):

“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”

The 2017 Conservative manifesto (five years ago) placed a foot on the ball:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”

And then most recently, in the 2019 Conservative manifesto:

“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”

As it happens the government elected on the back of that latest manifesto is not prosing to “update” the Human Rights Act but now to repeal it – at least in form.

*

*

Alongside these manifesto commitments, there have been various attempts to find a practical way of repealing or updating the 1998 Act.

In 2011 there was a commission established by the government:

But this went nowhere.

In 2014 the then justice secretary launched a new attack at Conservative party conference.

And that went nowhere.

And in 2015-16, the then prime minister was again about to take on the Human Rights Act – and may well have done so but for Brexit:

*

*

And now, in 2022, we have yet another attempt to repeal the Human Rights Act, twenty-five years after the Human Rights Bill was introduced by the incoming Labour government.

The difference now, however, is that the proposals have reached the stage of draft legislation before Parliament.

And the justice secretary proposing the new legislation, Dominic Raab, is a long-term opponent of the Human Rights Act and was the junior justice minister under Cameron responsible charged with finding an alternative to the Act.

In effect, the Human Rights Act is Moby Dick to Raab’s Captain Ahab.

It does not matter that the criminal justice system is in crisis, scarce ministerial time and departmental resources will be devoted to repealing the 1998 Act.

*

The 1998 Act is unlikely to survive this assault.

There is enough time for the bill to pass before the next general election, and there is sheer determination to get the bill through.

But.

The essentials of the Act will remain.

The Good Friday Agreement will still require that the convention can be given direct effect in the courts of Northern Ireland.

The United Kingdom will still be bound by the convention as a matter of international law.

If the domestic courts do not protect convention rights then litigants can still go to Strasbourg.

The United Kingdom will still be required to comply with the decisions of the Strasbourg court.

And resourceful lawyers – and judges – will still find ways of referring to Strasbourg jurisprudence in domestic courts when determining convention rights.

And so one consequence of the new bill is that cost and expense will be added to the process of relying on convention rights under a treaty that will still bind the United Kingdom under international law.

*

As this blog set out yesterday, the core of the new bill is the same as the 1998 Act.

The convention rights are still listed in the schedule; the definition of convention rights is the same; and the key obligation on public authorities to comply with the convention is also the same.

What the bill does is to introduce a number of provisions that will make it far more difficult for litigants to rely on those rights in domestic courts.

Over at the blog of Professor Mark Elliott there is an outstanding post – written within a day of the publication of the new bill – that details all the new legislative contraptions and devices, the purpose of which is to inconvenience the litigant seeking to rely on their convention rights.

Elliott’s post should be read and circulated as widely as possible.

And Elliott’s conclusion is compelling:

“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights.”

And this is why – jaded and fatigued as any sensible person must be who is keeping up with this government’s ongoing attack on our constitutional arrangements – we have to be vigilant about this latest exercise in limiting the ability of individuals to rely on rights which the United Kingdom is bound to protect by international law.

*

The government is not – and cannot – take the United Kingdom out of the European Convention of Human Rights – at least not without breaching the Good Friday Agreement.

The government is still obliged to give effect under international law to the rights contained in convention – and individuals will still have the right to petition the court.

But after twenty years of trying, the current government party has put forward the means of attacking the Human Rights Act by limiting the ready enforcement of these rights by individuals.

And so as a bowl of petunias once no doubt thought: brace, brace.

*

 

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

A first glance at the Bill of Rights Bill

22nd June 2022

The new Bill of Rights Bill 2022 has been published.

On the face of it, this is a very significant move.

The Bill even tells us that when enacted it will be known as the “Bill of Rights 2022”.

Note this means it will now be one of a small group of statutes which will not be known as Blah Blah Act Date.

No, this legislation demands comparison with the (actual) Bill of Rights of 1688.

Portentous stuff.

But.

In broad terms, this new legislation makes no real difference to the Human Rights Act 1998.

For example, schedule one to the Human Rights Act 1998 sets out the articles of the European Convention of Human Rights:

And Schedule 1 to the new legislation also sets out the articles of the European Convention of Human Rights:

The proposed Bill of Rights does not create any new ‘British’ rights instead of the European Convention.

The fundamental purpose of the 1998 Act and the new bill are the same: to provide a basis in domestic law for giving effect to the convention rights in the European Convention.

And the key operative provision is the same.

Here is section 6 of the 1998 Act:

And here is clause 12 of the proposed bill:

*

So.

Both the 1998 Act and the new legislation place the rights under the European Convention of Human Rights into English law by means of a schedule.

And the 1998 Act and the new legislation provide – in identical language – that public bodies must comply with those rights.

Even the defintion of “Convention rights” are the same.

The 1998 Act:

The new Bill:

*

You may wonder what is the point of an entirely new enactment that does, at the fundamental level, exactly the same as the legislation it is supposed to replace?

And the answer to that is there is no real point.

The new legislation does make a difference in respect of how the convention rights can be enforced in certain situations.

The overall effect – odd for legislation which will be called ‘The Bill of Rights”, if you think about it – is to make it harder practically for convention rights to be enforced.

But that is done by the means of various processes and other tinkering – but nothing which warrants such a legislative overhaul.

Those new provisions can be looked in detail at as the bill proceeds.

But in respect of the fundamentals this new bill gives effect to the same Convention rights with the same key obligation and with the same defintion of convention rights.

The rest is detail and symbolism.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

 

 

 

Who watches the watchmen?

Summer Solstice 2022

Over at Al Jazeera – where I am pleased to write posts from a liberal constitutionalist perspective – I have written about what the Lord Geidt resignation tells us about British politics.

Somewhat flatteringly, that post has been chosen as a ‘best column’ by The Week magazine:

From a personal perspective, the post is one of very few I have written for the mainstream media with which I am happy.

(One day I will get the hang of writing paragraphs with more than one sentence.)

On the back of that Al Jazeera post I thought I would add here some thoughts about constitutionalism and absolute power.

For, as Lord Acton famously once said (and to which I allude in the Al Jazeera post), power tends to corrupt and absolute power corrupts absolutely.

*

One problem with many – if not most – proposed or imagined political systems is that there is little or nothing to check or balance those who will have the most power under that system.

The hope is presumably that those with the most power will be selfless patriots – good kings, good chaps, and so on.

But, of course, what will tend to happen is that those with power will be corrupted, and those with absolute power will be corrupted absolutely.

And not just corrupted in a narrow financial sense, but in the broader sense of becoming debased.

In this way Orwell’s pigs in Animal Farm may be a more realistic guide to what happens with sustained one party control than the focused O’Brien in Nineteen Eighty-four.

Alan Moore – who I mention expressly in the Al Jazeera post – has repeatedly shown in his stories what can happen when individuals get unchecked power.

In Watchmen – there is a character with absolute superpowers who goes quite mad, a character with immense wealth who becomes immensely destructive, and a character with complete government protection who does whatever he wants to whoever he wants.

And these are the supposed good guys – and none of them is the supposedly unhinged one, Rorschach.

*

Switching from imagined communities to historical examples, there are actually few examples of that most peculiar figure ‘the enlightened despot’.

What we do have are despots with good P.R. and gullible historians.

For if a leader is ‘enlightened’, they do not need to be a despot.

Even the supposed good guys of the modern age – the British – have a wretched record if you look closely enough – for example in Kenya, in Northern Ireland, and in Afghanistan and Iraq.

The documented evidence of torture and war crimes by the British cannot be denied, but few realise or care.

For that is what happens when you have good P.R. and gullible historians.

Even the popular comedy meme about ‘Are we the bad guys?’ is dressed in foreign uniforms.

But corruption – in both its narrow and broad sense – is not just about what happens to foreigners.

It can happen in any polity – and with any rulers, if they believe they can get away with it.

*

That is why any political system which confers great power on any individuals is suspect.

Yes, you may have a selfless patriot as an initial ruler, but what do you get when the selfless patriots die away?

The primary job of any liberal constitution is not that it provides and allocates powers, but that it effectively checks and balances those with powers.

It assumes the worst – even if there are hopes for the best.

And if those with the greatest powers in any political system are without checks and balances then it should not come as a surprise that powers are abused.

Indeed, it would be more of a surprise if they were not.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The removal of the Johnson “Chief of Staff” story – a media lawyer’s perspective

20 June 2022

The pulling by the Times of the ‘Chief of Staff’ story about Boris and Carrie Johnson is interesting in many ways – and this post explains why it is interesting from a media lawyer’s perspective.

As a preliminary point, however, I must mention I have no private information about any of this – this post is based entirely on information in the public domain.

And this post is not about the details about the story, of which I have no knowledge – it is instead an account of how decisions are made and not made to publish and pull such stories.

(By way of background – part of my own legal practice is media defence, protecting journalists and publications from legal threats.)

*

From a media lawyer’s perspective, there are two key decisions here.

The first was the decision to publish.

For a well-resourced, well-lawyered news title like the Times, things are not published casually in their print editions.

There is an internal editorial and often legal process that is followed.

The published article is often like stage five of a process, and not stage one.

And this is especially the case when the reporter in question is experienced and competent.

There will be a lot of source-checking and verification by the reporter themselves.

Sometimes corners are cut and mistakes made – and ‘online’ stories often do not have the same care.

But stories in print editions of well-resourced, well-lawyered news titles like the Times are not published by accident.

This means that it was believed that the story “stood up” before it was published – and that the serious allegation made in the story was sufficiently grounded so as to minimise or eliminate legal risk.

It also means (usually) that the targets of the serious allegation have had an opportunity to have the allegations put to them before publication – or at least should have done.

And this pre-publication stage would have been the time for any legal threats aimed at preventing publication.

*

The second is the decision to pull the story.

Here I will put forward the perhaps unpopular view that there is nothing wrong with a story being pulled from later print editions (and from the internet) if it becomes obvious that the story no longer stands up.

Indeed, it is a pity that does not happen more often – but most editors are reluctant to pull something once published.

But if new information comes to light so it is plain that the story published is not correct, or if it becomes apparent that legal wrong has been committed in how the story was put together, then pulling the story can be an appropriate and responsible thing to do.

It is, however, exceptional.

The new information must be substantial, or the crystallised legal risk must be overwhelming.

As to pull a story is a serious thing to do.

Especially when that story stood up after the editing and (what is called) ‘lawyering‘ process.

And for a story to be pulled rapidly implies that the process before publication had failed.

*

So when this story was pulled, I assumed that something had come to light that meant that the story no longer stood up.

This was unlikely, in the circumstances, given the seniority and reputation of the journalist involved.

But other possibilities seemed even more unlikely.

Some on Twitter speculated wildly and breathlessly about ‘super-injunctions’ and ‘D-Noticies’ – but neither made sense in these circumstances, not least because that would not explain the decision to publish, as both such an injunction or a D-Notice would usually have been served once those against whom the allegations were being made were approached for prior comment.

And the subject matter of the story also did not lend itself to ‘super-injunctions’ and ‘D-Noticies’– it was about public money (not an entirely private matter) and there was no obvious, serious issue of national security.

(‘Super-injunctions’ are also now almost impossible to obtain.)

So, ruling out a ‘super-injunction’ and a ‘D-Noticie’ left only the mundane explanation that the story no longer stood up – notwithstanding the pre-publication process and the standing of the journalist.

This sort of thing happens – and there is nothing wrong with pulling a story that no longer stands up.

But.

The journalist then stated that he did stand by the story – meaning that, as far as he was concerned, the story still stood up.

And many of the details of the story had already been published in a book – and this made it difficult to see how the story was legally problematic.

So there was not a journalistic reason for pulling the story.

And there was not a legal reason for pulling the story.

This meant that the story may have been pulled for another reason – a non-journalistic, non-legal explanation.

How curious.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

My Financial Times video on the Northern Irish Protocol Bill

17th June 2022

Over at the Financial Times I have done a video guided tour of the Northern Irish Protocol Bill, famed around the question of whether it is a breach of international law.

It is free-to-view and you can see it here.

Produced by the estimable Tom Hannen.

I am happy to respond to any sensible questions about the the video in the comments below.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The curious resignation letter of Lord Geidt – what it says, what it does not say, and what it signifies

16th June 2022

Lord Geidt is an unlikely man of steel.

Yet it appears that steel was the reason for his resignation.

And so, as a discreet but embarrassed courtier, he has chosen to exit via the ‘trade’ route.

(Photo by Chance Agrella from Freerange Stock – donation made.)

*

See this outstanding and informative thread from the estimable trade expert Sam Lowe for the practical background to this matter:

*

But what can we make of the resignation letter and the reply?

*

Lord Geidt comes from a diplomatic background.

And diplomats, like lawyers, are wordsmiths.

(It is just that their wordsmithery is often about imprecision and ambiguity, in contrast to the lawyerly lust for precision and clarity.)

He will have chosen his words and formulations carefully.

So let us look at the operative paragraph:

An “impossible and odious position” is quite a striking thing to say.

(Though “deliberate and purposeful” seems a tautology.)

The Prime Minister’s letter sets out more about the request for advice:

*

There is a lot here that does not make immediate sense.

Lord Geidt for all his many merits is not a lawyer, still less a trade lawyer.

There would be no obvious reason for “tasking” him for a view on something to do with the legality of tariffs.

The question must have come before him another way.

Some are speculating that it may be because of party donations, but this appears to be being denied (though the denial is in a curious form):

My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.

Who knows.

But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.

And this is the case even if Lord Geidt simply used this issue as a pretext to resign.

There is something missing here.

*

But.

What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.

The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.

The second is the rules-based system of the World Trade Organisation.

You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.

It often seemed they did not know what that actually meant, and it was said because it sounded good.

Well.

It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.

This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.

The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.

*

At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.

The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.

But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.

And so on.

Perhaps we will find out more about the circumstances of this particular resignation.

But we already know from previous resignations that much of what has happened is already all too clear.

**

Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.

For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The resignation of Lord Geidt after being placed in an impossible position, after being appointed to an impossible position

15th June 2022

Another ethics adviser to the Prime Minister has resigned.

Lord Geidt was placed in an impossible position.

Not least because he was appointed to an impossible position.

As this blog has previously averred, the entire scheme of the Ministerial Code, with an advisor on ministers’ interests, was a constitutional nonsense.

This is because such a code and such an adviser provided no actual check or balance on the power of the Prime Minister.

The code and the adviser only has the power which the Prime Minister of the day allows it to have.

And like most forms of supposed ‘self regulation’ it was in fact an absence of regulation.

It was a cloak for sheer prime ministerial power, and not any counter to it.

This blog does not call for the resignation of people in positions in power often – but this blog did say Lord Geidt should resign.

 

And well done Lord Geidt for resigning when he was placed in an impossible position, while attempting to fulfil this impossible position.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.