David Allen Green

How to improve the Coronavirus Regulations – some practical suggestions

6th April 2020

These are strange times, and one indication of the strangeness of these times is that a liberal and independent blog like this is posting something about how to make illiberal laws more workable.

The illiberal laws are, of course, the Coronavirus Regulations (which this blog has discussed here, here and here).

These laws, made without any parliamentary approval or debate, restrict fundamental freedoms and create wide-ranging criminal offences.

There are grounds for serious concern about the legality and constitutional validity of such legislation being made and used in this way – but, as it stands, these Regulations are the laws of the land and they should be complied with.

Putting general concerns aside, and given one should try and improve things when one can, below are some practical suggestions for improving the laws.

And this is the right moment to be making improvement suggestions, as under regulation 3(2), the government will be reviewing the regulations on 16th April 2020.

The first suggestion is to cast regulation 6(1) as a general prohibition (and not as a direct criminal offence under regulation 9(1)(b)).

This would mean that a simple or bare breach of regulation 6(1) would not itself be a criminal offence.

There should be a seriousness requirement.

Breaching the prohibition in circumstances where one causes unreasonable risk to others (that is by breaching social distancing guidance) should be the relevant offence.

(And a breach of a reasonable direction by a police officer to return to where one lives would remain a criminal offence.)

These changes would reflect best police practice and so should not be operationally disruptive.

And the changes would reflect also that the statutory purpose of the regulations is not public order or social control, but the protection of public health.

As well as a seriousness requirement, the Regulations should be amended so that the fixed penalty scheme under regulation 10 (which does not mean a criminal record or conviction) is not merely an option (“may’) but is instead the presumption, unless there is a compelling reason for a criminal prosecution.

And the decision to prosecute should, as these are emergency regulations, be made by the Director of Public Prosecutions, as this would ensure proper consideration of the public interest.

Criminal liability – convictions and records – can destroy peoples lives, and these further changes will ensure that criminal liability is not imposed (or threatened) lightly and casually during this emergency.

And again, the statutory purpose of the Regulations is public health, and so there should not be any criminalisation more than that is strictly necessary.

Further highly useful changes should also be made to the “to avoid injury or illness or to escape a risk of harm” exception under regulation 6(2)(m).

It is implicit that this exception includes mental illness (and not just physical illness) and that “escape a risk of harm” would include harm from domestic violence.

But these crucial protections should be made explicit, so that vulnerable people can see that the letter of the law protects them and gives them the comfort and security that they can leave the house when required – as long as they comply with social distancing guidance.

If there has to be emergency law (and this is an emergency) then it is important that it is as good as it can be.

Please make any further constructive suggestions below, as I understand they may be seen by those who are reviewing the law.

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What is the Bindmans challenge to the Coronavirus government guidance about?

3rd April 2020

The law firm Bindmans are bringing a challenge to the government guidance that a person can only leave where they live once a day for exercise and that exercise should be local.

If just reading of such a challenge means you have already formed A Strong Opinion that you now want to type, then this really is not the blogpost for you: other websites are available, and your comment below the line here will not be published.

This post instead sets out the problem and the applicable law, so that you can form a view based on the available information and the applicable law.

As a preliminary point, please note that this is a legal challenge to government guidance – and not to the Coronavirus Regulations themselves.

Formal government guidance – in effect, policy – can be challenged (in general terms) at the High Court if it is contrary to the law, or is unfair, or is disproportionate in its impact.

According to Bindmans, the relevant facts are as follows:

“[There are] two families with children with autistic spectrum disorder whose conditions necessitate them leaving the house more than once day for their own well-being.

“One child in particular is deliberately taken to a quiet location that is not local to them, because of their particular needs and where there is a far more limited risk of infection than if he were to remain in an urban environment.”

Bindmans then explain the problem:

“The requirement that everyone is now only able to leave once a day (and can only travel locally) makes it very difficult for these families to be able to manage their children’s high needs and promote their well-being, during a time when lots of disabled people are simultaneously struggling with reduced support from external agencies.

“Keeping them in urban environments also increases the risk of infection of them and others given they are unable to understand social distancing rules.”

Any sensible person reading this would accept that this is a practical problem and, in such circumstances, the parents should be able to take their child to a quiet location.

There would be no direct public health problems in doing so, and the families would comply with the guidance on social distancing – indeed the child is less likely to infect or be infected.

But a sensible view is one thing, what is the legal case?

Again, the legal challenge is to the guidance not the Regulations.

The guidance is being challenged because, if interpreted and applied by the police to the Regulations, it could lead to the parents facing criminal liability under the Coronavirus Regulations.

What the parents seek to do is, on the face of it, permitted under the letter of the Coronavirus Regulations – but if the police construe the Regulations in accordance with the government guidance then fixed penalty notices, prosecutions, fines, criminal convictions and criminal records could follow.

The solicitors aver that the guidance disproportionately affect fundamental rights :

“The social distancing measures being put in place by Government are clearly important, but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day.

“Such rights can clearly co-exist with the health measures being put in place and Parliament clearly did not think it necessary to impose the once per day restriction arbitrarily introduced by the Government.

“It is essential the Government needs to rethink this restrictive policy and allow appropriate flexibility where it is necessary and justified.”

The main legal basis of the challenge seems to be that the guidance contradicts the protections of the Equality Act 2010 (as well as under the Human Rights Act 1998).

Relevant here is that the mental health is a protected characteristic under the Equality Act.

A person protected characteristic has legal protection against direct and indirect discrimination (and the discrimination here would be indirect).

Any such discrimination then is subject to the four stage test under section 19(2) of the Equality Act.

In particular, are those who are disabled (the term in the statute) placed at a disadvantage?

There can be no doubt of this.

And so does the guidance go further than is necessary to protect the relevant public policy goal, that here would be the protection of public health in the current coronavirus emergency?

In my view, the guidance is disproportionate in two ways.

First, as long as the affected families comply with social distancing measures, then the public policy goal is unaffected.

And second, there does not need a complete change to the guidance to address this problem, just a further exception for those with relevant physical and mental health issues so they are able to take more exercise and to be travel further than their locality, when necessary.

Such a modified approach would still comply with the Coronavirus Regulations, and it would not affect the position of the greater number of people.

The government is expected to respond today or tomorrow, and it may be that the government modifies its guidance to address these concerns.

But if the government does not shift its position then the next step would be a formal legal challenge.

The current emergency does not mean that the law of the land has been jettisoned – the EqualityAct and other laws are still in force – and there is certainly nothing wrong with the government being held to account by the courts at this time.

And if those protected by the Equality Act are facing practical discrimination that goes further than the goal of dealing with the current public health emergency, then it is right that their legal rights be protected and enforced.

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Coronavirus laws and anxious scrutiny

1st April 2020

The Coronavirus Regulations are extraordinary in at least four ways.

First, the Regulations remove from everyone in England the fundamental rights of freedom of movement, freedom of assembly and freedom of worship, as well as severely limiting their right to conduct any business.

Second, the Regulations create under Regulation 6 a criminal offence for anyone to leave where they live without a “reasonable excuse”, and exposes anyone who breaches this prohibition to criminal liability – a criminal conviction and criminal record – as well as to the use by the police of coercive force.

The “reasonable excuses” are, in turn, so vague and ill-drafted that it is impossible for any person (or any police officer) to be certain as to whether the offence is being committed or not.

And fourth, and most remarkably, the Regulations have not yet been approved by any parliamentary vote, and nor did they have any parliamentary scrutiny.

In essence, the most illiberal laws since at least the second world war were imposed without any formal democratic sanction.

The Regulations are in place under the Public Health Act and are for the express statutory purpose of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the Public Health Act 1984).

As such they are emergency laws and, as there is an emergency, it is appropriate that emergency laws should be used – and nothing should gainsay that.

Yet what the laws actually say is one thing, and what police (and police social media accounts) and ministers are saying the laws say can sometimes another.

Police and ministers, of course, can and should provide guidance to people during this emergency.

The guidance and the law are, however, becoming confused – and this has the unhappy consequence that people are fearing that there will be legal sanctions for what would be lawful activity.

Every sensible person wants public health guidance to be followed.

But the suggestion has been made that it is somehow unhelpful to point out that law does not actually say what ministers and police say it says.

That we should “know what the laws are meant to mean” and give effect to the supposed “purpose”.

That we should see deficiencies in the applicable law and look the other way and not say anything critical.

(This is not caricature or exaggeration – these things have been said.)

The correct response to such suggestions is to say “no”.

Indeed, at a time of national emergency there is a greater public interest in emergency laws being subjected to anxious scrutiny.

The discussion of the difficulties of the law is not some professional parlour game of interest only for lawyers.

To discuss law in this context is as far away from being “academic” as it can be.

If the emergency laws are deficient, or come to lack credibility, people will die.

If the emergency laws are misapplied and wrongly prosecuted, people will spend the rest of their lives blighted by a criminal conviction and a criminal record.

Lawyers and legal commentators should not thereby shy away from public discussion of emergency laws but, if they can, contribute constructively to that discussion.

And the remarkable fact that these laws have not yet had any formal democratic or parliamentary approval makes such discussions more important, not less.

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What the police are getting wrong about the coronavirus regulations

31st March 2020

There appears to be two things the police are getting wrong about the new Coronavirus regulations.

One of these is a broad point about the purpose of the Regulations, and the other is a legal point about the “reasonable excuses” to the restrictions on movement under Regulation 6.

The Regulations are made under public health legislation, and not public order legislation, and this distinction is important.

The Regulations are for the statutory purpose of “preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination” (section 45C(1) of the Public Health Act 1984).

The Regulations are thereby not rules on public order as ends in themselves, but as means to an end – with that end being dealing with a contagious disease.

The current coronavirus emergency justifies emergency legislation, but the ultimate job of the legislation is to protect public health.

If the conduct of police – or of their social media accounts – discredits the emergency public health legislation, then the statutory purpose of the legislation will be frustrated.

So it is appropriate for some police actions under the Regulations, and some of their public statements, to be challenged, and even derided.

Such excesses need to be firmly checked, so as to ensure that the overall police response remains credible.

To do this is not to place civil liberties above public health – indeed, almost every civil liberty can be qualified and limited at a time of a genuine national emergency.

It is instead to ensure that public health legislation achieves its purpose.

Just as it takes one idiot to pass on the virus, it can take just one idiot police officer (or police social media manager) to discredit the laws necessary to combat the spread of the virus.

There needs to be self-restraint by both those being policed and those policing them.

The other thing the police seem to misapprehending is the scope of the offence created under Regulation 6.

The offence expressly applies when “one leave[s] the place” where they are living, without reasonable excuse.

The offence does not expressly apply if, once you have left that place with a reasonable excuse, the reasonable excuse somehow is no longer in place.

Consider two plausible scenarios:

Person A leaves to obtain basic necessities but the shop is bare of basic necessities, and the person buys a non-essential item instead, or buys nothing at all.

Person B leaves the house to exercise but, having exercised, that person decides to relax alone in an empty field to enjoy sunlight.

On the letter of Regulation 6, neither person is committing an offence under Regulation 6(1), as both left the place where they are living with a reasonable excuse.

It may well be that, in the event a police officer directs them to go home then non-compliance with that direction would become an offence under under Regulation 8(3) and 9(3).

But at least that person has an opportunity of escaping criminal liability by either providing a reasonable excuse or (simply) complying with the direction.

What is not the case is that a person outside of where they live without a reasonable excuse is committing an offence, if they left that place with a reasonable excuse.

Some may say that it is somehow implicit in the Regulation 6(1) offence that if a person ceases to have a reasonable excuse whilst out then that person is committing an offence.

To this contention there are two responses.

First, criminal law has to be exact, so that a person potentially affected can regulate their conduct accordingly.

Second, the drafters of the Regulations could have (easily) made it an offence to be outside the home without a reasonable excuse, but they chose not to do so.

The criminal law is what the law says, not what one thinks the law should be.

Overall the police have been placed into the position where they have wide discretion under vague law, and the police in turn are interpreting the law even more widely.

But consent and cooperation is essential, and public health law is not about imposing public order as an end in itself.

And as examples of policing in Northern Ireland and in the inner cities show, policing needs to be credible and fair to be effective.

This is because disrespect for the police and the law, like a virus, can quickly be contagious.

And at a time like this, such a contagion can be deadly.

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The extraordinary legal situation of the Coronavirus lock-down

30th March 2020

There is a public health emergency in England as there is in the rest of the world, and so it is essential that emergency public health laws be in place.

Nothing should gainsay that simple proposition, and nothing in this post should be taken as opposing the imposition of public health law in the current emergency.

That is why emergency public health laws exist.

Yet, we should take a moment to reflect the extraordinary legal situation that we are now in.

Three fundamental freedoms – freedom of movement, freedom of association and freedom of worship – have all been abolished for six months by a statutory instrument which has been neither scrutinised nor voted on by members of parliament.

The freedom to conduct business or be self-employed also has been either severely curtailed or effectively removed by the same means.

Under Regulation 6(1), it is even now a criminal offence to leave your own home, unless (in effect) the police are satisfied you have a reasonable excuse.

The whole country is thereby (in effect) under house arrest.

The police, in turn, have been given wide powers to enforce these regulations, including the use of coercive force.

And in turn, again, the police are interpreting these wide powers even more widely, with roadblocks, drones, and a made-up restriction on “essential travel”.

The police are also encouraging people to snitch on each other.

On social media there are accusation and counter-accusation, as neighbours turn on each other.

People are afraid of the police, and increasingly of each other.

Those with mental health problems, and those in abusive households, are being made to feel that the law means that they have to stay inside.

This is actually not the case at law.

The Regulations provides scope for leaving the house for such important reasons.

One can hardly dare imagine what is now happening behind closed doors, with vulnerable people believing (wrongly) that the law prevents them escaping.

And one must dread the real consequences of this.

And all this is on top of the fact that all electronic means of us communicating each other are – in principle – subject to interception and surveillance laws.

This means that everything being communicated between citizens – is in principle – open to the government to monitor.

If it were not for this public health emergency, this situation would be the legal dream of the worst modern tyrant.

Everybody under control, every social movement or association prohibited, every electronic communication subject to surveillance.

This would be an unthinkable legal situation for any free society.

Of course, the public health emergency takes absolute priority.

But we also should not be blind to the costs.

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The Coronavirus restrictions on freedom of movement – a guided tour

27th March 2020

This post provides a guided tour of the restrictions on freedom of movement introduced yesterday under emergency coronavirus legislation.

The restrictions were introduced by Regulations, and the Regulations are published here (and in pdf form here).

The Regulations apply to England, and there will be similar provisions for Scotland, Wales and Northern Ireland – this guided tour is only of the English provisions.

This post first sets out a summary of the law and then a commentary – I have made this law/commentary distinction so that my comments are not mistaken for an exposition of the law.

And although I usually do not give a disclaimer, I will on this occasion: this post is not legal advice but general guidance.

THE LAW

The Legal Framework

The new laws are officially called The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

These Regulations are made under the Public Health (Control of Disease) Act 1984.

This 1984 Act – which has been heavily amended in the years since its enactment – provides wide powers for the Secretary of State for Health in the event of, among other things, the control of contagious diseases, such as coronavirus.

That the Regulations are made under the 1984 Act is legally significant.

If the Regulations are outside the scope of the 1984 Act then, in principle, the High Court can quash the Regulations, in addition to quashing any direction made under the Regulations by the Health Secretary.

The Regulations also have not had any scrutiny or approval by parliament, and they have been made under the 1984 Act’s emergency procedure (section 45R) – this means that parliament has to now approve the Regulations within 28 days.

The Regulations had immediate effect, as of 1pm yesterday, 26th March 2020.

(The Regulations are also under those provisions of the 1984 Act that expressly allow the Health Secretary to make regulations by statutory instrument (section 45P of the 1984 Act) and to create criminal offences and to make and enforce restrictions and to impose requirements (sections 45C(3)(c) and (d) and 45F(2) of the 1984 Act).)

The 1984 Act allows – and is intended to allow – the Health Secretary wide powers to deal with a public health emergency – but the powers must only be used in respect of that emergency.

(And please note the Regulations are made by the Health Secretary under public health legislation – and not by the Home Secretary, despite her claim yesterday).

Duration

On the assumption that the Regulations get parliamentary approval within 28 days, the long-stop date for their expiry is in six months’ time (Regulation 12).

The Regulations are intended to last as long as the “emergency period” (Regulation 3(1)) that is deemed to have started yesterday (26th March 2020) and it is the Health Secretary who decides when that ends .

The Health Secretary, however, is obliged to keep the need for the restrictions and requirements under review at least every 21 days, with the first review being carried out on 16 April (Regulation 3(2)).

If the Health Secretary considers any restrictions or requirements are no longer needed, then that restriction or requirement can be terminated (Regulation 3(3)).

The Prohibition on Freedom of Movement

The primary prohibition on freedom of movement is under Regulation 6.

Regulation 6(1) provides the general prohibition that during the emergency period “no person may leave the place where they are living without reasonable excuse”.

The only exception to this general prohibition is, in any circumstances, that you have a “reasonable excuse”.

The term “reasonable excuse” is not defined, but there is a non-exhaustive list of thirteen examples.

Each of these listed examples is subject to a test of necessity (because of the word “need” at the head of the regulation) – and this probably means that any other reasonable excuse would also have to be necessary.

There is no express limit on how often any of these excuses may be used on any day (contrary to the Prime Minister’s earlier statement that exercise or essential shops will be limited to once a day) – though frequency would be part of the twin tests of reasonableness and necessity.

Some of the excuses are vague.

For example, the excuse of “exercise” (Regulation 6(2)(b)) does not define what this general term means.

The excuse of obtaining necessities (Regulation 6(2)(a)) does not explain what is meant by “basic necessities” as opposed to “necessities” (and perhaps the person drafting this provision had the Jungle Book song in their head).

The same excuse also uses the tautology of “need…to obtain…necessities” which perhaps indicates the rushed speed of the drafting process.

There are however some welcome provisions.

Regulation 6(2)(m) provides that it is a reasonable excuse to “avoid injury or illness or to escape the risk of harm”.

This is a low threshold – you do not need to show you are escaping harm, just the risk of it.

And there is no reason why Regulation 6(2)(m) should not apply to mental illness or risk of harm, which means it can be relied on by those needing to leave where they live for mental health reasons.

It will be for you, however, to show that you have a reasonable excuse and a failure to do so will mean you are committing a criminal offence.

(Note this general prohibition expressly does not apply to the “homeless” (Regulation 6(4)), although homeless is not a defined term.)

The Criminal Offences

If you breach the prohibition then you will be committing a criminal offence (Regulation 9(1)).

There are also offences of obstruction and of contravening directions Regulation 9(2) and (3).

The punishment for these offences will be a fine at the magistrates’ court Regulation 9(4).

In essence: if you breach the prohibition – either without any excuse or if your excuse fails the twin tests of necessity and reasonableness – then, in principle, you will receive a criminal conviction and a criminal record.

The severity of the potential criminal sanctions is mitigated to an extent by a regime of Fixed Penalty Notices under Regulation 10.

It is important to note that these Notices only “may” be issued – there is no obligation that you would be offered the opportunity of a Notice instead of a prosecution.

If a Notice is issued then you can avoid any potential criminal liability by payment of a fine of £60 (or £30 if paid in 14 days).

If you are accused by a police officer of breaching the prohibition and you believe this accusation is unfair then you face the dilemma of either paying the fine or, as the police like to put it, “having your day in court”.

It is not yet clear whether payment of these fines, or the issue of Notices, would be on any extended criminal records check.

These Notices thereby place considerable practical discretion and power in the hands of police officers (which also include here community support police officers).

Coercion

The prohibition can also be enforced by the police by directing or removing a person to the place where they live (Regulation 8(3)).

In removing a person, the police are expressly allowed to use “reasonable force” (Regulation 8(4)).

COMMENTARY

These provisions – which are alongside prohibitions on freedom of assembly, freedom of worship and freedom to conduct business – are the most illiberal laws imposed in England since at least the second world war.

The laws have not had any parliamentary debate or approval, they impose a form of (in effect) house arrest, create wide offences, and they hand immense power to police officers.

All this is justified – there is a public health emergency, and the powers under the 1984 Act exist for just this sort of emergency.

The main problem is that the illiberal provisions are subject to vague exceptions, and this is a worrying combination at a time of an emergency.

This problem is mitigated but not eliminated by the Fixed Penalty Regime, when the police choose to use it.

And it is a relief that the Regulations as a whole (and ministerial directions made under them) are subject to potential challenge at the High Court.

But in practical terms, there is considerable scope for these provisions to be misused by police officers, with almost no practical safeguards.

Measures like this, in addition to being tough, need to be credible.

Misuse of these emergency powers will make the regime less credible, thereby undermining the very public health purpose that the Regulations are there to achieve.

Just as it takes one person being idiotic to spread this disease, it takes only one police officer being idiotic to discredit this emergency public health regime.

There needs to be self-restraint on all sides

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If you value this free-to-read and independent constitutional, legal and policy commentary, including on the emergency coronavirus laws and on Brexit, you can follow and support this blog and my Twitter account by becoming a Patreon subscriber.

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Thinking about emergency legislation

22nd March 2020

The current coronavirus pandemic is a public health emergency and, as with any emergency, there can be the need for emergency legislation.

By definition, there is not often the need for emergency legislation (or, at least, there should not be), and so emergency legislation is not something that often needs to be considered.

Now in the United Kingdom the government is bringing forward emergency legislation.

There is a bill before parliament that will be enacted in days.

And yesterday there was a statutory instrument issued under public health legislation.

Both instruments raise particular issues, but rather than dealing with the detail of the provisions, this post asks what can be usefully said about emergency legislation generally.

Emergency legislation is, of itself, a good thing.

This may seem trite and obvious, but the existence of emergency legislation means that those responsible for dealing with an emergency are doing so in accordance with the rule of law.

Emergency legislation means that even though there are exceptional and dangerous challenges, the government is still wanting to place their actions on a lawful basis.

And by doing so, it means in turn that in principle those adversely affected by the legislation have (or should have) the ability to challenge decisions made under it – though in practice this may well be difficult.

There may be an emergency, but (at least in theory) the rule of law is still in place.

Emergency legislation, however, should be exceptional.

This means that once the emergency is over then the legislation should lapse.

It also means that the legislation should not be used for purposes other than dealing with the emergency.

A genuine fear is that emergency legislation, once enacted, is too convenient for a government to then let go.

And for the executive-minded, any emergency – whether regarding terrorism, public health or anything else – can be the pretext for an executive power grab.

Never let a good crisis go to waste, as the saying goes.

But the prospect that the emergency powers can be abused is not a reason for the powers not to granted for their proper purpose.

(The “thin end of the wedge” argument is often a substitute for thought.)

Emergency powers need to be time-limited and subject to judicial review and democratic supervision.

Most importantly, emergency legislation also has to be useful.

All because there is an emergency, it does not necessarily follow there is a need for emergency legislation.

The executive already has wide legal powers.

There are already many public health and related statutes.

There is always the risk of a “something must be done” sentiment meaning that emergency legislation is enacted just because something needs to be seen to be done – like an assertion of political virility.

Every piece of emergency legislation should make a difference and be relevant to the emergency faced, as well as going no further than required or lasting longer than is needed.

In other words: emergency legislation should always be necessary and proportionate.

In technical terms, much emergency legislation falls into two categories:

– first, to provide a legal basis for the government to do a particular thing that it would otherwise not be able to do at law; and

– second, to remove a legal restriction that would otherwise mean the government cannot do a particular thing at law.

In both situations, the legal status quo may be there for a reason – that parliament and the courts have provided for settled legal arrangements for what can and cannot happen in usual, happier, non-emergency times.

Emergency legislation is thereby a sudden interruption to these settled legal arrangements, for a specific urgent reason.

So when you look at a piece of legislation, you can see clauses that suspend some legal powers and clauses that create other legal powers.

But in both cases the three questions to be asked are the same:

– is that change necessary for the purpose of the particular emergency?

– does that change go further (and last longer) than necessary for this particular emergency?

– what are the safeguards against abuse?

That the government is bringing forward emergency legislation to deal with an emergency is to be welcomed – for that is why emergency laws exist or should exist.

And a government seeking to enact such legislation should have nothing to fear from anxious scrutiny.

But if there are genuine concerns that the laws are not necessary, or go further or last longer than required, or do not have safeguards against abuse, then those concerns should not be shouted down with “don’t you know there is a virus (or a war) on”.

Emergency legislation is for emergencies only – and proper scrutiny, like the rule of law, should never be suspended.

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Brexit: the end of the beginning

2nd March 2020

If Brexit were a boxset, we are now about the start of season two.

The first season, of course, had a story of its own: a referendum that did not need to be held, leading to a result that was not expected (or anticipated), resulting in a departure on withdrawal terms few positively wanted.

(It is difficult to think that we are still within what would have been the five-year term of the 2015 parliament, where David Cameron had a good Commons majority elected on a manifesto that included a commitment that the United Kingdom be at the heart of the European Union single market.)

Now the United Kingdom is outside the European Union (let alone the single market) as a matter of law, even if the terms of the withdrawal agreement will make it a Brexit in name only until (at least) the end of this year.

Certain elements of the withdrawal agreement – on citizenship, financial contributions, and on a range of technical matters – will endure beyond the transition period.

Accordingly the threat of “no deal” at the end of this transition period is not as drastic as it would have been had there been no deal for the departure itself.

The scope of issues to be agreed (or at least capable of being agreed) is narrower than before the withdrawal agreement.

What is now to be negotiated (or not) is the future relationship beyond the end of the transition agreement.

One way of following this is by the heady heated excitement of political commentary, where one can form two different views a day (or an hour, if you are on Twitter) on any relevant issue.

And the politics of Brexit are crucial – it is only by understanding the politics of Brexit that you will understand why otherwise incomprehensible decisions are taken and daft unsustainable positions adopted.

But politics is not the only way of understanding Brexit – and a politics-only approach is itself limited and will miss many things.

For along with the pomp and propaganda, there is process.

And the process is about arriving (if possible) at an agreed text.

And a process which is intended to end with an agreed text tends, if the parties are taking it seriously, with a number of preliminary texts.

And it is by having regard to the texts and the process that one can (often) understand where Brexit is going and not going.

Again – form and structure are not everything – but they can provide the situations against which politicians and the media then react.

The two key texts for this negotiation are the negotiation guidelines of the European Union and the United Kingdom’s Command Paper on the those negotiations.

Of course, these are opening positions – but this does not mean they are trivial and can be dismissed.

On the European Union side especially, thought will have gone into what they want to achieve in the final text, and the guidelines will have been compiled by thinking backwards from what they want to achieve with that final text.

And in respect of the withdrawal agreement, early texts of the European Union can be seen as leading directly to final positions.

Remember: this is not the European Union’s first rodeo: they have the valuable experience of negotiations over Grexit, and of association agreements and free trade agreements.

This does not mean they are always right, or that that they will prevail, but to the extent that experience provides an advantage, the European Union will have the benefit.

Against this process-minded approach, there will be the temptation for those supporting the United Kingdom government to adopt again the bluster and silliness that was a feature of the exit negotiations.

Given the membership of the cabinet, that is a real risk.

So it is a relief that the United Kingdom’s Command Paper on the upcoming negotiations is a serious and not a silly document.

And with the two parties prepared (if unevenly) for the negotiations, and as both parties want an agreement (if possible), the second season of the Brexit boxset can begin.

It may well be that the second season will be yet more exciting (and scary) then the first season – but at least we (and the parties) will be ware of how the first season went.

Thank you for visiting this independent law and policy blog.

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The Executive Power Project: the extraordinary resignation of a senior civil servant

29th February 2020

What this blog calls the “Executive Power Project” – in affectionate mockery of the so-called “Judicial Power Project” – is not just about attacks on an independent judiciary.

The Executive Power Project is about all the current concerted attacks on those elements of the state that check and balance executive power.

And so it is as much about the attacks on the impartial civil service as it is about the assault on the courts.

This morning we have had a further manifestation of the Executive Power Project – the resignation of the senior civil servant at the Home Office, Sir Philip Rutnam.

His piece to camera announcing his resignation is extraordinary, and should be watched in full (and it can be read here).

"I have been the target of a vicious and orchestrated briefing campaign"

Top civil servant in the Home Office, Sir Philip Rutnam, quits and says he intends to sue the government for constructive dismissal https://t.co/9m4hL9nUcp pic.twitter.com/U23fXTJnLT
— BBC News (UK) (@BBCNews) February 29, 2020

(From a defamation law perspective, it is striking how carefully drafted this statement is – the “I do not believe her” stands out especially – and if Patel countersues she will struggle to do on this wording.)

It is a measure of how rotten this government is that it can make a senior home office civil servant seem sympathetic, even a hero.

The Home Office routinely is brutal and excessive in the administration of its duties.

But what Rutnam has done today is admirable: he could have, as he alludes, taken the payout and signed a non-disclosure agreement.

Instead he has made the matter public and, he says, will sue to uphold his rights at a public tribunal.

In the days to come, his personal reputation will be trashed – just as attempts to do so when Sir Ivan Rogers resigned – and he appears to have factored that into his decision.

But beyond that knee-jerk trashing (which will be facilitated by the very free press that is also a target of the Executive Power Project) there is the issue of the extent to which ministers are now placing civil servants and diplomats in untenable positions.

For this resignation to be so public, and for the the follow-on suit to be just as public, means that the minister-official tensions are now hardening into contradictions.

Even in these strange political times, this is an important and worrying event.

Thank you for visiting this law and policy blog.

I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing – in particular examining and commenting on key texts and other developments, and looking at attempts by the executive to take power from elsewhere.

If you value this free-to-read and independent constitutional, legal and policy commentary, you can follow and support this blog by:

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

The moral hazard of the United Kingdom casually breaching the Political Declaration

27th February 2020

The Political Declaration is a formal, negotiated document agreed between the United Kingdom and the European Union.

You can see the document here, hosted on the United Kingdom’s own website – all 31 pages of detailed prose, over 141 numbered paragraphs.

It is a serious document, to be taken seriously.

The United Kingdom government says itself on its website:

“The new Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom and reflects the Government’s ambition to conclude an ambitious, broad, deep and flexible partnership across trade and economic cooperation with the EU, with a free trade agreement with the EU at its core, alongside agreements on security and other areas of cooperation.”

The Political Declaration, however, is not legally binding.

And there is now a suggestion that the United Kingdom government can and should disregard the commitments set out in the Political Declaration.

There have been, broadly, two responses to the United Kingdom government apparent desire to breach the terms of the Political Declaration.

The first is first is to say that as the Political Declaration is not binding then it does not matter if it is breached, casually or otherwise.

The second is to say that the Political Declaration is a formal and negotiated document, and that it does matter if it is breached.

These two views appear to be be in conflict to the point of contradiction.

And if they are in conflict then the question becomes which is the better view.

The two responses are not actually in conflict as they are dealing with different things: there is therefore no hard contradiction.

But the better view is that the Political Declaration should be taken seriously – even if it is not binding.

Indeed, that the Political Declaration is not binding makes it more important that the government takes it seriously.

What does it mean for a formal commitment to be “binding”?

Not all formally negotiated documents are (legally) “binding” – so what is it which gives them this quality.

In general terms “binding” means that there are formal sanctions available in the event of the breach.

These sanctions may not necessarily require the party in breach to specifically perform the commitment.

The sanction may be that the other party can terminate the agreement, or that there is some remedy or benefit for the other party.

But whatever the sanction, the notion is that the agreed commitment can be enforced against the party in breach so that the other party does not suffer the disadvantage of the breach.

Making a commitment (legally) binding is one way of showing that the party undertaking the commitment is being serious.

In foreign affairs and international politics, however, a preoccupation with whether a formal serious commitment is “binding” or not is in good part a legalistic red herring.

A serious formal commitment is intended to be taken seriously and formally: that is its very point.

And this is regardless of whether it is technically “binding”.

Resiling from an obligation on the technicality that it is not legally binding is not to take such a commitment seriously.

(A useful comparator are the United Kingdom’s pre-Brexit financial commitments to the European Union – there were question marks over whether they were legally binding – how could they be litigated? which court? – but this was not the point: the United Kingdom had made a commitment and was expected to stick to it.)

All this said, there may be a good reason for a country to depart from a formal serious undertaking.

And both the United Kingdom and the European Union knew that the Political Declaration was not (legally) enforceable.

Both sides accepted it could and would be departed from, in certain circumstances.

The crucial question would be: how and on what basis?

And in this way, the Political Declaration is, in effect, a test for a post-Brexit United Kingdom.

How seriously does the United Kingdom take non-binding commitments and assurances?

Do the words matter?

The less seriously the United Kingdom takes non-binding commitments, the stronger the signal to the European Union that anything important needs to be tied down in strict legal provisions.

This is why the daft posturing of the United Kingdom about casually breaking the the Political Declaration matters.

It matters as much, if not more, than if the Political Declaration was “binding”.

In effect: the Unite Kingdom is sending a signal of “don’t trust us, insist on strict legal obligations”.

And this signal is not just being sent to European Union – the signal is now being broadcast to every nation in world, to all the countries where, post-Brexit, United Kingdom may want to have “trade agreements”.

The United Kingdom may think it is saying to EU “screw you” but in fact it is telling the world “screw us”.

Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.

Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments

One day this lesson of moral hazard will be learned – if not by current ministers then it will be understood by future ones.

But that may be too late, as something important will already have been lost, and it will be hard to regain.

The United Kingdom government is still not taking Brexit seriously.

Thank you for visiting this law and policy blog.

I am hoping to spend less time on Twitter in 2020 as I want to move back into longer-form writing – in particular, examining and commenting on key texts and other developments.

If you value this free-to-read and independent constitutional, legal and policy commentary, you can follow and support this blog by:

subscribing to this blog, there is subscription box above (on an internet browser) or on a pulldown list (on mobile);
becoming a Patreon subscriber.

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