Author: David Allen Green

Why Tom Tugendhat is wrong: we can only move on from Brexit when there can be a serious conversation about the United Kingdom and the Single Market

3rd June 2022

Let us start with two general propositions.

The first is that the United Kingdom has little manufacturing industry and few natural resources.

Many of the manufactured goods we buy are from abroad, as is much of the energy we consume.

The second is that non-tariff barriers impede any international trade in services.

This means that if there are, for example, shared standards and harmonised recognition schemes then selling services abroad will be easier than if there are not such non-tariff barriers.

*

Bearing these propositions in mind, let us now look at a tweet from Tom Tugendhat, the chair of the House of Commons select committee and seen by many as the most sensible possible alternative Prime Minister in the current governing party.

Tugendhat is criticising a proposal from another Conservative politician, Tobias Ellwood:

https://twitter.com/TomTugendhat/status/1532445501563469824

Tugendhat’s tweet is worth thinking about, for it is significant.

One obvious point is that his tweet confuses the Single Market with the Common Commercial Policy, that is the European Union’s common trade policy.

They are distinct things – and it is possible to be part of the Single Market and still have an independent trade policy (and thereby ‘new trade deals’) – as the example of Norway demonstrates.

Another point about Tugendhat’s tweet is that it frames shared standards and harmonised recognition scheme as “EU laws” in respect of which the “British people” will have “no say”.

From a commercial – as opposed to a political – perspective those seeking to trade with our European Union neighbours still have to comply with Single Market rules over which they have “no say”.

It is just that such exporters now have added layers of bureaucracy – non-tariff barriers – to deal with so as to show that they comply with Single Market rules.

This is because the purpose of the Single Market was to remove such impediments and so, by now being outside of the Single Market, such impediments are restored.

The Single Market. of course, was driven through (in its current form) in the late 1980s by then Prime Minister Margaret Thatcher and the Conservative European Commissioner Lord Cockfield.

The Single Market may be the greatest achievement of Thatcher and her governments, at least in respect of what then became the European Union.

At a stroke, any trader in a member state could trade in another member state because of shared standards and harmonised recognition schemes.

Again, from a commercial perspective, the important thing about shared standards and harmonised recognition schemes is not their political origin, but that they exist.

And other European countries that are not members of the European Union are part of the Single Market.

There is no absolute reason why a post-Brexit United Kingdom could not also be part of the Single Market.

*

But.

There is the question of influence and control.

Yet what is often missing in discussions about the future relationship of the United Kingdom with the European Union, is that shared standards and harmonised recognition schemes are necessarily outside the unilateral, absolute control of one ‘side’.

It would be completely open to the European Union and a post-Brexit United Kingdom to agree processes and policies by which both parties can agree to put in place shared standards and harmonised recognition schemes.

And to accept common positions on, say, competition law, state aid and public procurement, and consumer protection.

But without such engagement, our services-dominated economy will be increasingly estranged from European markets from Iceland to Cyprus, and from Finland to Malta.

In other words, we need to have a serious post-Brexit conversation about how the United Kingdom can be part of the Single Market so as to remove the non-tariff barriers to our service-dominated economy.

*

To his credit, Tobias Ellwood wants that serious conversation.

His article should be read in full – not just the quotations and summaries you may have seen elsewhere.

Any wise supporter of the government should welcome such a contribution, as this conversation needs to take place.

Even if a government-supporter disagrees with what Ellwood actually says, a prudent government-supporter should respond positively to this attempt to move the conversation forward.

But, no.

The reaction from government-supporters shows we are still trapped in the toxic politics of Brexit.

As this Guardian article describes:

“A Tory MP and arch critic of Boris Johnson has sparked a backlash from Brexiters after suggesting Britain rejoin the EU’s single market to help ease the cost of living crisis.

“Tobias Ellwood’s comments were seized upon by allies of the prime minister as evidence that deposing Johnson would threaten the country’s more distant relationship with Brussels.”

It would appear that Brexit true-believers regard such thinking as somewhere between blasphemy and heresy, if not outright heathenism.

But, as the former army officer Ellwood expressly states:

“If an army general, mid-battle, is mature enough to finesse his strategy to secure mission success, then government should do the same. Let’s have the courage to dare to make operational amendments as we seek to leverage greater success.”

This is the sort of sane pragmatism that would make Ellwood the sort of captain you would want in the trenches in charge of those you care about.

*

Now we come back to Tugendhat’s tweet and why it is significant.

Tugendhat could have not tweeted on this topic at all, or he could have tweeted that he welcomed this contribution to this important debate, or even that Ellwood made a good point that should be considered even if to be rejected.

But, no.

Tugendhat tweeted this instead:

https://twitter.com/TomTugendhat/status/1532445501563469824

There is nothing in Tugendhat’s tweet that shows he had actually read Ellwood’s article before tweeting about it.

And, as noted above, the third bullet point of Tugendhat’s tweet – ‘no new trade deals’ – is irrelevant, as being part of the Single Market does not prevent an independent trade policy.

So why tweet?

As there is not evidence of Tugendhat having actually read Ellwood’s article, and as there is evidence that Tugendhat does not understand that being part of the Single Market does not stop new trade deals, there must be another reason.

And that reason, of course, is politics – and that is why the tweet is significant.

It signifies that politically we cannot yet move on from Brexit.

We cannot discuss our post-Brexit relationship with the Single Market as that would somehow negate Brexit itself.

*

I responded to the tweet as follows:

To which Tugendhat, in turn, responded:

https://twitter.com/TomTugendhat/status/1532489520033239040

To which I said:

*

The fact that the United Kingdom should become part of the Single Market does not, of course, mean that we will ever do so – even if the economic and commercial advantages are stark.

And accommodation with the European Union over the Single Market certainly does not require re-joining the union.

But it does require leadership, realism and strategic negotiation, so as to build up joint structures and processes where the United Kingdom and European Union can develop their post-Brexit relationship.

In essence, the sort of leadership the United Kingdom will need from whoever succeeds the current Prime Minister.

But the problem is that we still have to pretend otherwise.

Just like we have to pretend it is a good idea to have a futile ‘war on drugs’, we have to pretend it is somehow not in our national interest to be part of a Single Market with almost every European country between Iceland and Cyprus, and between Finland and Malta.

The critical political question is how we manage to be part of the Single Market from the outside of the European Union.

(And I do not support the United Kingdom rejoining the European Union, and there is no reason to believe the European Union would have the United Kingdom back as a member state.)

It can be done, but it will be difficult – with (genuinely) tough decisions and a need for (genuine) leadership.

But the politics of Brexit and of our current Prime Minister means that even in 2022 we cannot yet have this adult discussion.

And that is the tragedy of our post-Brexit politics.

Indeed, the tragedy is that we do not yet have post-Brexit politics – we are still stuck in the politics of Brexit.

**

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The cultural paraphernalia of the monarchy – a post for the Platinum Jubilee

 2nd June 2022

When I was young I had a book about Kings And Queens which influenced me more than I realised at the time.

I still have the book, and it is in front of me as I type this post.

I can see it was published in 1980 by “The Leisure Circle”, which I think was a mail order book club to which my Nan and Grandad belonged.

The author was David Piper, who Wikipedia tells me was a museum curator and former director of the National Gallery.

And this makes sense, for although the history in the book was thin, the portraits and other art are wonderful.

Two images of the Queen stand out.

The first is this by Sir James Gunn from 1950, before she was Queen:

The second is once very popular portrait from 1955 by Pietro Annigoni, three years into her reign:

I keep this book to hand over forty years later as it reminds me that there is something about monarchy – and especially its visual rhetoric and cultural significance – that can and will never be captured by constitutional lawyers and political theorists.

This aid-to-memory, however, is not just because of the magnificent artwork collected in the book, but because of a particular picture which Piper placed in his introduction that has had more influence on my understanding of monarchy than any treatise or case report.

The picture is this from 1840, and it is by the novelist William Makepeace Thackeray:

I have blogged about this illustration before.

There I averred:

“Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.

“A great deal of what we posit as politics and law – almost all of it – exists only in the mind.”

And this is true.

But.

You are a poor commentator on law and policy if you regard the paraphernalia as having no value.

*

Of course, many sensible people would prefer a republic to a monarchy, and would prefer an elected head of state to a hereditary one.

These sensible people will often justify their preferences by reference to first principles of democracy and legitimacy.

And I too am a republican, though not a militant one.

But there are aspects of law and policy, and of constitutions and political identity, that do not lend themselves to rational understanding.

The celebrations for the platinum jubilee over the current long bank holiday weekend will either irk or dismay many who have strong interests in law and policy and constitutional reform.

Yet those celebrating our part of our polity too – and any attempt to reconfigure the polity without regard to the sentiments of royalists will be a botched exercise in constitutional reform.

As the greatest of all English writers on the constitution, Walter Bagehot, averred, some parts of the constitution are efficient, and others are not.

Bagehot quaintly called the non-efficient elements “dignified” – and, yes, views will differ as to whether that is still the right word, given the antics and worse from members of the wider royal family.

But the job for those who want a republic is to come up with something new that has similar cultural purchase on the governed as the monarchy appears to have on many of the governed now.

Otherwise any new republic may not last long enough to celebrate its own platinum jubilee.

***

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Why the Ministerial Code is a constitutional nonsense – and why the only course for Lord Geidt is to resign

1st June 2022

The greatest ongoing constitutional problem in the United Kingdom is not the lack of a written, codified constitution.

It it is the lack of constitutionalism among leading politicians.

This lack of constitutionalism is not a new thing, but under the current Prime Minister there would appear to be no constitutionalism whatsoever.

Constitutionalism is, in general, the notion that there are certain fundamental political rules with which one should comply, regardless of any personal or partisan advantage.

Some of these rules are legal, but many are conventions or norms.

Some of these rules are capable of some kind of enforcement, by law or otherwise, but generally their purchase comes mainly from self-restraint.

For, as the late Labour member of parliament Austin Mitchell once put it, the British constitution is whatever the government can get away with.

*

One index of the lack of constitutionalism in the United Kingdom is the various ways that governments – of various parties – have set up various gimmicks to make it look like constitutionalism is being taken seriously.

One such gimmick was the Committee on Standards in Public Life established in 1994 under the Conservative government of John Major when it was decided that something must be done.

That committee then gave us a list of seven principles of public life – which all sound impressive but in practice are so vague and vaporous that they really do not mean anything meaningful at all.

Aspirational, uplifting, comforting word bingo.

*

And, as the jurist Jimmy Cricket would say, there is more.

Under Tony Blair’s Labour government of 1997 we had the Ministerial Code.

Rarely has there ever been a more pointless constitutional document.

Nothing in constitutional terms changed – the Prime Minister still was the sole decision-maker about what happened to ministers and about whether any minister had done something wrong.

There was no real independence – the code had no autonomy, it offered no check or balance.

And nobody could decide whether the Prime Minister had broken the code other than the Prime Minister.

The code was metaphorical ornate wallpaper – to complement the actual ornate wallpaper of Blair’s first Lord Chancellor Derry Irvine.

The Ministerial Code is what you get when you just codify something about the constitution without any serious thought about its application, adjudication, and enforcement.

*

We now come to yesterday’s report by the “Independent Adviser on Ministers’ Interests” – Lord Geidt – whose role is to advise the Prime Minister on matters relating to the Ministerial Code.

The word “independent” here is misleading, if not false.

For example, let us look at this passage from the preface:

“In a letter of 23 December 2021 to the Prime Minister, I wrote that, ‘I would expect by the time of my next Annual Report in April to be able to describe the role of Independent Adviser in terms of considerably greater authority, independence and effect’.”

Greater?

Greater?

Any authority, independence and effect would be a fine thing – for one cannot logically have a greater amount of nothing.

Let us read on.

Here is another passage:

“Granting the Independent Adviser an independent right to initiate inquiries into ministerial conduct has been called for over many years. The changes now offered by the Government are at a low level of ambition.”

This can be re-worded as a call to grant to the “Independent” adviser, well, actual independence.

And so on.

There is nothing meaningfully independent about his role in any active sense.

And as this adviser cannot do anything active, the adviser – in the great tradition of British tuttery – is instead passive aggressive.

(Jacob Rees-Mogg putting “sorry to have missed you” notices on the seats of absent civil servants has nothing on the passive aggression in this report.)

See for example:

“For much of the year, the conduct of the Prime Minister himself has potentially been subject to consideration against the requirements of the Code. Accordingly, and whether unfairly or not, an impression has developed that the Prime Minister may be unwilling to have his own conduct judged against the Code’s obligations.”

That is weapons-grade tuttery.

Again:

“It may be especially difficult to inspire that trust in the Ministerial Code if any Prime Minister, whose code it is, declines to refer to it. In the case of the Fixed Penalty Notice recently issued to and paid by the Prime Minister, a legitimate question has arisen as to whether those facts alone might have constituted a breach of the overarching duty within the Ministerial Code of complying with the law.”

Tut, tut, tut.

The preface continues with an articulation by the adviser of his own constitutional impotence:

“In the present circumstances, I have attempted to avoid the Independent Adviser offering advice to a Prime Minister about a Prime Minister’s obligations under his own Ministerial Code.”

And then we have the immortal line:

“If a Prime Minister’s judgement is that there is nothing to investigate or no case to answer, he would be bound to reject any such advice, thus forcing the resignation of the Independent Adviser.

“Such a circular process could only risk placing the Ministerial Code in a place of ridicule.”

The problem here is that the Ministerial Code is already in a place of ridicule.

*

Lord Geidt is plainly doing the best he can with the remit he has got.

Other than to offer his resignation, tuttery is all he can do.

For the real issue is beyond what Lord Geidt can do with his report or otherwise.

The Ministerial Code is a nonsense.

It is no more than a thirty-six page statement of the obvious political and constitutional truth that a Prime Minister can hire and fire and retain ministers as he or she feels fit, on whatever basis he or she she wants to employ.

The nonsense of the code was made most stark when it was found recently that the Home Secretary was in breach, but the Home Secretary stayed in office and the then “independent” adviser resigned.

Last week, when it was revealed that some of the wording of the code had changed so that resignations were not necessarily expected, some pundits were concerned.

But it actually did not matter.

The textual changes may as well have been scribbles of a bored Boris Johnson, because the content of the Ministerial Code has no constitutional import outside of what a Prime Minister decides it has.

Which is to say it has no real constitutional import at all.

The only “independent” thing Lord Geidt can do, now that the tuttery has failed, is to resign.

And he should do so.

**

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The Prime Minister who is not there – what happens when there is an absence at the centre of government

31st May 2022

“Yesterday, upon the stair,
I met a man who wasn’t there!
He wasn’t there again today,
Oh how I wish he’d go away!”

– from Antigonish, by William Hughes Mearns

The constitution of the United Kingdom is as much about absences as about content.

Other constitutions have gaps – for example the constitution of the United States does not mention judicial review, the key means by which the federal courts provide a check and a balance to the executive and the legislature.

But in the constitution of the United Kingdom, there are many more absences – things which are not there.

Take the office of Prime Minister – if you were only to look at the statute books, you would find little trace of the role and almost no express provisions conferring powers.

Indeed, until the early twentieth century you would find no legislative trace at all – even though the office had then existed for nearly two hundred years and been occupied by such powerful figures as Walpole, Pitt, Peel, Disraeli and Gladstone.

The power of the Prime Minister’s office comes from other elements of the constitution – by acting on behalf of the Crown (and thereby exercising the Royal Prerogative) and by having a majority in the democratic house of Parliament (which is important as Parliament is held to have legislative omnipotence with the doctrine of parliamentary supremacy).

The Prime Minister – or at least the governing party – can also often derive power from the electorate, with the notion of a ‘mandate’ if a party wins a majority of seats, and this mandate means that the non-democratic house of Parliament must yield when there is a conflict.

All this power – and for a position that, legally speaking, barely exists.

This means that the office can be pretty much what its occupant wants it to be.

For example, Boris Johnson when he became Prime Minister dynamically used the office in five ways to force through the Brexit withdrawal agreement and ‘get Brexit done’ :-

– he changed the policy from his predecessor;=

– he negotiated a revised agreement with the European Union;

– he then signed that agreement;

– he fought an early general election to get a mandate for his negotiated, oven-ready agreement; and

– he used his mandate and his overall majority to force the revised agreement through Parliament and into law.

Few Prime Ministers have used so many of the powers of the Prime Minister in so short a time.

But.

Since that agreement became law, the Prime Minister has become the proverbial dog that has caught up with the car.

It would appear Johnson does not now know what to do with the office – or with his majority.

And remember – a substantial Parliamentary majority is the greatest prize which the constitution of the United Kingdom can bestow on any Prime Minister – and it is not as common as you would think.

Indeed – after John Major lost his working majority not longer after the 1992 general election, it was not until 2015-17 and after 2019 that the Conservatives had an overall majority; and since 1977, Labour has only had an overall majority between 1997 and 2010.

What has the Prime Minister done with this overall majority, which has flowed from the Brexit referendum result for which he campaigned and the General Election at which he promised to get Brexit done?

Almost nothing – and, indeed, the ongoing politics of the Northern Irish Protocol show that he did not even get Brexit done.

Johnson has gone from using the office of Prime Minister to the full to doing almost nothing with it.

The last Queen’s Speech – like a football team defence not impressing Alan Hansen – was all over the place.

The nasty ‘anti-woke’ noises from various ministers do not indicate a programme, but a lack of one.

The government is at one a high-spending, large-state levelling-up government that also now, somehow, wants to substantially cut the civil service.

A government that thinks nothing of partying at Number 10 while imposing the most illiberal restrictions on the rest of us ever known in peace time.

The only theme is that the government will pick fights with and seek revenge on any entity of the state which offers any check or balance.

This is not ultimately about a government or a Prime Minister, but about the lack of a government – and a lack of a Prime Minister.

And so, match our constitution of absences, we now have a government of absences, and a Prime Minister who may be in office, but who is not really there.

Perhaps it is time for him to go away.

*

“Yesterday, upon the stair,
I met a man who wasn’t there!
He wasn’t there again today,
Oh how I wish he’d go away!”

**

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The Metric Martyrs case – twenty years on

30th May 2022

Before Brexit, there were the Metric Martyrs.

The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.

The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.

Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.

*

The first striking thing about Thoburn is the complexity of the applicable law.

Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.

Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:

“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”

(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)

This judicial observation has wider import.

It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.

And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.

On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.

And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.

Few onlookers would side with the legal-ese.

*

A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.

Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.

This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.

The legal arguments were hopeless.

And this, in turn, was (in my view) a problem.

Many people at the time (and since) thought there was something not right about these prosecutions.

It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.

It seemed – to use a European Union concept – disproportionate.

But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.

There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.

Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.

And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.

*

Weights and measures – like currencies – are both instruments and ornaments.

As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.

As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:

https://twitter.com/jjvincent/status/1530905866689445888

I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.

And this is despite not being especially patriotic, and not being opposed to metrification in principle.

I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.

*

But.

The government’s latest proposals. of course, do not make any sense.

This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.

Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings

And, in any case, often the relevant laws were home-made and not from Brussels:

As a former Lord Chancellor avers, this ‘policy’ is also a political rallying call which is made again and again:

*

The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.

And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.

(Few now can reckon in pounds and shillings – which also went in 1971.)

Yet it is one of those areas where law and policy cannot easily outpace lore and culture.

Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.

They will not easily shift – and perhaps some may never disappear altogether.

The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.

Such a government should be treated with disdain.

But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.

Not by a country mile.

**

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Of Partygate, questionnaires and police discretion – some footnotes to yesterday’s post

27th May 2022

The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.

The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.

The thing is that I do not know – could not know – if that explanation were true.

The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.

(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)

The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.

In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.

https://twitter.com/peterwalker99/status/1530131395133284352

https://twitter.com/peterwalker99/status/1530132726048858112

The decision to issue a notice is not a judicial decision – no judge or court is involved.

The decision is made by a police officer, who must reasonably believe that an offence was committed.

The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.

Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.

If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.

The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.

The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.

And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?

It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.

*

But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.

Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).

As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.

And so – as techies would say – Garbage In, Garbage Out (or GIGO).

The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.

From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.

One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.

If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.

And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.

*

Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:

“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”

**

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The lawyering-up of Boris Johnson – how the Prime Minister’s statement on the Sue Gray report may give clues to how he escaped more penalties

26th May 2022

Let us start with one stark fact that demands explanation.

That fact is that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present received many more.

One response to this striking fact is to posit that there must have been a stitch-up or some other conspiracy – and nothing in what follows in this post denies that possibility.

This blog, however, is not a conspiracy blog, but a place for law and policy analysis and commentary.

And on that basis, let us look to see if there can be another explanation.

*

Let us now go to what the current Prime Minister said in the House of Commons yesterday, in his pre-prepared statement.

One passage was especially interesting:

“The exemption under which those staff were present in Downing Street includes circumstances where officials and advisers were leaving the Government, and it was appropriate to recognise them and to thank them for the work that they have done. [Interruption.] 

“Let me come to that, Mr Speaker. I briefly attended such gatherings to thank them for their service—which I believe is one of the essential duties of leadership, and is particularly important when people need to feel that their contributions have been appreciated—and to keep morale as high as possible. [Interruption.] 

“I am trying to explain the reasons why I was there, Mr Speaker.”

*

This passage seemed to be very carefully put together – and (as a former government lawyer) I gained the impression that it owed far more to legal advice than to any genuine articulation of Boris Johnson’s state(s)-of-mind.

Johnson was present, he claims, because he was fulfilling a management function – an ‘essential dut[y] of leadership’.

He was, he says, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible.

*

If you read the last sentence again, you will see it says much the same thing in three different ways.

This is a trick many lawyers know and use to make it look like an obligation has been fulfilled.

It takes the form of [duty A] was fulfilled because of [x, y and z], where [x, y and z] are synonyms or near-synonyms.

*

The impression I had on listening to this passage of Johnson’s statement was that some lawyers had been presented with the unhappy facts of the Prime Minister attending leaving parties and giving toasts, with glass in hand.

How does one possibly convert that situation into something that brings it within the legal exemption of being part of a gathering that was reasonably necessary for work?

After all, a leaving party is not reasonably necessary for work, and toasts are not reasonably necessary for work.

But if you flip the description of what happened from parties and toasts to performing an ‘essential dut[y] of leadership’ by synonym, near-synonym, and near-synonym – ahem, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – then, there you have it, a reasonable excuse.

That excuse may not cover others present at the same gathering – but it would cover the one providing ‘essential leadership’.

And it would not cover the one gathering where that excuse – I mean, explanation  – would and could not apply – the birthday gathering.

That is why, I aver, he got a penalty for that indoor gathering but not the other parties.

My suspicion – which may or may not be well-founded – is that this is the very reason why someone is quoted as saying that the Prime Minister was assured that he would only get one penalty.

(Of course, this may be wrong and it may be that there were Metropolitan Police leaks or undue contacts between the Prime Minister’s office and Scotland Yard – but my theory has the merit of not needing any such conspiracy.)

*

Yesterday I set out this theory in a brief Twitter reply – which was not sufficiently clear – and I was told that I was wrong – that leaving parties and toasts were not and should not be reasonably necessary for work.

But I agree with those points.

My suggestion is not that leaving parties and toasts were, by themselves, reasonably necessary.

It is instead that providing ‘essential leadership’ is reasonably necessary – and this can be distinct from how that leadership manifested itself in particular circumstances.

And synonym, near-synonym, and near-synonym – thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – may all be supposed examples of such ‘essential leadership’.

Of course, there were many other ways a senior manager could have performed these ‘essential’ tasks – by Zoom calls, or thank-you notes, and so on.

And indeed, during the lockdown, this is what other senior managers did so as to provide their (genuinely) essential leadership.

If your view is that the current Prime Minister could have performed his role without giving toasts at leaving parties, no sensible person will disagree.

But from a legal perspective, if that was his reason for being at a gathering – and if it is accepted that thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible can all be elements of a leadership function – then you can now see how the Prime Minister has managed to take the benefit of the exemption.

*

The theory set out above has the merit of explaining the striking fact stated at the head of this post: that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present at those gatherings received many more.

And if this theory is sound then it shows the irony – hypocrisy – of Johnson’s many attacks on ‘activist’ lawyers for others while taking the benefit of legal advice for himself.

It is also shows the unfairness of the more senior people in ‘Partygate’ getting lawyered-up when more junior figures were not able to do so, and so were penalised instead.

If Johnson should be toasting anyone, then it should be the lawyers that gave him a way of avoiding legal liability in this awkward situation.

But, no doubt, he will ‘move on’ – and start attacking lawyers again.

**

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

**

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‘Partygate’ is not ultimately about lying to parliament, or breaking the criminal law, or putting lives at risk – it is about fair dealing

24th May 2022

‘What is justice?’ is a question that has been long discussed by clever philosophers, jurists and political theorists.

But one way of understanding justice is to see it not as a thing, but the absence of a thing: justice means a lack of injustice.

Justice is thereby defined by what it is not.

A just society is one where concrete injustices have been addressed; a just outcome is the solution to an actual unjust situation; and so on.

And for many it is injustices that matter, for injustices rankle.

*

With ‘Partygate’ it seems what rankles most is the unfairness of it, the injustice.

That the current Prime Minister lied to Parliament and to the rest of us surprises no sensible person, for it is the one quality about Boris Johnson that all sensible people will know to be true.

That the current Prime Minister broke the law and guidance again is no shock – and, indeed, it would be more of a shock if, in any given situation, Johnson had followed the law and any guidance when he did not need to do so.

It does not even seem to matter to that many – though there are exceptions – that Johnson broke laws and guidance designed to keep people safe.

The anger about ‘Partygate’ appears (at least to me) not to be motivated primarily by the concern that Johnson was personally putting others at risk (though this will anger some).

What seems to be what upsets people about ‘Partygate’ is that while others were immensely affected because they had to comply with rules, or were punished if they did not, the Prime Minister and others in Downing Street casually did not comply with those rules.

The rules, of course, that Johnson and his government imposed upon the rest of us – the laws his government issued and enforced, the guidance he and his government promoted night after night.

The stories which appear (again to me) to be getting the most traction on news sites and on social media are those from people who, for example, could not visit their loved ones on their deathbeds or were not able to attend funerals.

Had the story been about Johnson in a serious dilemma choosing to break the rules to see a loved one in hospital or attend a funeral, then people would perhaps be more forgiving.

Many people in extreme situations may choose to break rules.

But the situations in which Johnson and his circle broke the rules were not extreme situations or dreadful dilemmas.

And this disparity in the seriousness with which one abided with the rules is what annoys – disgusts – people who would otherwise shrug.

Not the lies, not the rule-breaking itself – but the unfairness.

*

‘Partygate’ is not about parties or cakes; and it is not ultimately about lying to parliament, or about breaking the criminal law, or about putting lives at risk; it is at bottom about fair dealing.

And that is why – months into this scandal – ‘Partygate’ will not go away easily.

Downing Street partied while the rest of us were prevented from going to visit deathbeds or attend funerals, at the behest of Downing Street.

That was unfair.

**

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

**

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