Category: Communications and Media & Law and Policy

The reluctance of the Home Office to deny publicly that it is reconsidering the restoration of the death penalty – an example of government-media relations

15th January 2021

On 25th December 2020, of all days, the following was tweeted:

There are three immediate things to observe about this tweet.

First, the content.

This is a sensational claim but it is one which, for some people, would seem plausible.

The home secretary is a past supporter of the death penalty and the home secretary is also known as being willing to use home office policy on ‘law and order’ in a politicised way.

And elsewhere the United States has resumed federal executions in the run-up to a presidential election, and the similarly populist government of Turkey has signalled that it would want to reintroduce capital punishment.

Second, the provenance.

The account is anonymous but it does have a reasonably sized following, including followers from many areas of law and the media.

The account does not link to a site for the organisation named, and nor does a Google search indicate that the organisation has any existence beyond that twitter account.

We therefore do not know who the “us” is in the tweet and how much credibility their claim should have.

As such the claim cannot and should not be accepted without corroboration.

(This is not to diss the named organisation and what they campaign for, but is just a normal exercise in fact-checking.)

Third, the circulation of thee tweet.

As of today, the tweet has had an extraordinarily wide circulation.

It has had around 1,800 retweets and 1,900 quote-tweets – often from accounts that have accepted the claim in the tweet to be true or at least plausible.

This means a considerable number of people will now believe that the claim is correct or at least has some substance to it: that the home secretary has asked civil servants at the home office to scope a policy paper on the restoration of the death penalty.

(I do not have access to the tweet’s analytics, but in my experience, such a widely circulated tweet would have been seen by over one hundred thousand and possibly up to a million other twitter users – for that is the multiplying effect of thousands of retweets and quote-tweets.)

At this stage, now click on and read this magnificent post by Matthew Scott on the legal and practical difficulties of such a restoration of the death penalty, including the range of international legal instruments that prohibit such a restoration by the United Kingdom.

In essence: the United Kingdom could, in principle, restore the death penalty – it is a sovereign nation – but it would be in breach of many international agreements if it did so.

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So either the claim is true – which would be important for us to know – or it is untrue – and, in view of the extraordinarily wide circulation of the tweet, it would be also important for the false claim to be publicly corrected.

(In saying that the claim may be untrue, this again is not to diss the account that tweeted – they may be only as good as their source, and it is possible they heard this from a‘little bird’ in good faith.)

I happen to be in the process of preparing and writing a few things at different titles (and here on this blog) that touch on populism and the use (and misuse and abuse) of law.

I had seen the tweet several times in quote tweets, and so my first step was to find out whether there was any other relevant information in the public domain.

https://twitter.com/davidallengreen/status/1349722281501724673

 

There was none.

And so it seemed that the claim should be put to the home office to ascertain whether it was true.

https://twitter.com/davidallengreen/status/1349725293611606018

My email query was:

“There is a widely circulated assertion that the Home Secretary has asked Civil Service to scope a policy paper on the restoration of the death penalty – source: https://twitter.com/BameFor/status/1342495556732649478 

Can I please have a Home Office statement on this? Normally, and view of UK’s international obligations, one would expect a straight denial, without equivocation.”

*

At this stage, I expected to just get an email containing either a bland denial that the claim was untrue or perhaps an equally bland if evasive statement about not commenting on tweets.

What happened instead was a telephone call where I was told that the claim was ‘rubbish’.

Now ‘rubbish’ is one of those press officer words – like ‘nonsense’ and ‘ridiculous’ – that is used instead of a straight denial such as ‘incorrect’.

And any telephone call from a press office is rarely about providing information (that is what emails are for), it is about the press office trying to obtain information about what is to be published and then attempting to shape what is published – and not published.

It was quickly plain that the home office did not want anything published on this at all, notwithstanding the wide circulation of the original tweet.

So I asked for a statement in writing (I never take quotes over the telephone, especially not from government press offices).

The press office’s response to this request was to question its journalistic value (although one would think that a journalist is in a better place than a press office than to make that assessment).

Given the significance and the circulation of the original claim, it seemed to me that there should be a home office statement on the record.

Indeed, you would expect that the home office would be proud and open in stating that the United Kingdom was complying with its international obligations.

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Later yesterday afternoon a statement was emailed:

“This is a completely untrue and unsubstantiated claim from an unverified Twitter account. We are surprised that despite telling [you] this, [you] are still insisting on reporting it.”

The references ‘[you]’ in the statement is to the title they assumed would publish the statement.

The statement is worth unpacking.

The explicit reference to ‘despite telling [you] this’ placed beyond doubt that the telephone conversation was not ‘background’ – the public statement only makes sense if the previous conversation was also on the record.

The ‘completely’ and ‘unsubstantiated’ are both examples of over-emphasis – if the claim is untrue, then that is all that needs to be said.

(Like a politician who says ‘absolutely clear’ instead of ‘clear’, such additional words indicate potential evasion and misdirection.)

The denial is limited to the content and detail of the tweet – there is no general statement such as ‘the home office will not be restoring capital punishment’ and still less ‘the home office is proud to respect and comply with the international obligations of the United Kingdom’. 

Instead of such statements, there is an explicit attack on the credibility of the source and an implicit attack on the journalistic point of even putting this claim to the home office.

The ‘insisting’ is a perfect touch – and yes, one should insist that the home office should publicly state its position on restoring capital punishment when there is widely circulated claim that such restoration is being considered.

The home office wanted the statement to either be unusable or, if published, to discredit the news title publishing the story.

(I am happy to publish the public statement here, with the appropriate context set out.)

All this, instead of a simple statement that the claim was untrue and a statement that the home office is not seeking to reintroduce capital punishment and the United kingdom will comply with its international obligations.

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There is nothing special about what happened here – this is what happens every day between government press offices and anyone in the media seeking to obtain information which the government does not want to publish.

The only difference is that I am in a position to set out the exchange on this blog.

It is a good thing that, despite their initial reluctance, the home office was able to publicly confirm that a widely circulated claim that restoration of the death penalty was “completely untrue and unsubstantiated”.

It is disappointing that the home office sought to do this with a quote intended to deter the use of the quote and thereby prevent any coverage of that denial.

And it is disappointing, but not surprising, that despite the public interest in such a widely circulated claim being openly denied, the home office insisted on going about it in this way instead.

*****

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Why the campaign to ‘rejoin’ the European Union is misconceived – the campaign must make a positive and sustainable case for membership, regardless of Brexit and the past

10th January 2021

For many who were ‘Remainers’ the obvious next step is to become ‘Rejoiners’ with the object of ‘reversing Brexit’.

And in pursuing this object they will understandably point to the many misfortunes and problems that have been – and will be – caused by Brexit.

The hope, if not expectation, seems to be that the sheer accumulation of adverse evidence will mean that a sufficient people will see ‘what we have lost’ and this will lead to political pressure for the United Kingdom to quickly rejoin the European Union.

This approach may work – one lesson from the last five years is just how quickly politics can change, and in any direction.

But.

For the following three reasons, this blog submits that such an approach is misconceived and avers that a different approach should be adopted by those who want the United Kingdom to be a successful applicant for membership of the European Union.

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The first reason is that the emphasis on the ‘re-‘ in ‘rejoining’ – especially if that is based on relying on the adverse consequences of departure – is not a positive case for membership.

There needs to be more than the simple application of the pleasure-pain principle.

One feature of the United Kingdom’s membership of the European Union was that since at least the completion of the single market in 1992 there was never a positive case made for membership in frontline politics.

Instead, the two biggest political parties competed with each other as to which was the one that secured the more opt-outs, whether it be the Euro, the social chapter, free movement of peoples, justice and home affairs, or so on.

The case, if any, for the United Kingdom’s membership of the European Union was that it was ‘less bad’ than any alternative.

This scepticism and often outright hostility was also a feature of much of the news reporting of the same period – and such was the lack of popular understanding of the role and nature of the European Union that it was easily made to blame for things for which it was not responsible.

And after twenty-five or so years of such negativity, it was perhaps more surprising that the 2016 referendum was so close than that the remain side lost.

It was not so much that the leave side won the 2016 referendum that the remain side lost.

This mistake should not be repeated.

The case for European Union should be a positive one – and that means that it should be a case based on the advantages that membership of the European Union will have for the United Kingdom.

What would be the benefits of membership of the European Union, which could not be attained in any other way?

For, as this blog was previously contended, those in favour of membership have a challenge.

Can you, for example, make out the case for the United Kingdom joining the European Union without reference to the fact that the United Kingdom was a member?

If a compelling case cannot be made for the United Kingdom in the here-and-now to become a member of the European Union then it is difficult, if not impossible. to see how sufficient political support can be achieved for a viable application for membership.

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The second reason is the United Kingdom is highly unlikely be able to ‘rejoin’ quickly.

The notion that somehow the European Union will gladly accept a United Kingdom quickly bouncing back and pretending nothing had changed is a fantasy.

Indeed, it is just a new variant form of British (or English) exceptionalism.

The new trade and cooperation agreement is structured for the medium to longer-term.

As I set out in this new Financial Times video, the agreement is a ‘broad…framework’ for discrete supplementary agreements over time, with any more significant shifts (either in the the direction of closeness or otherwise) being on a five-year review cycle.

 

And this accords with the five-year cycle on which the European Union conducts its own business.

We can no longer snap our fingers and demand immediate attention, loudly and in English.

The United Kingdom is now on the outside, looking in.

And as this blog has previously averred, the European Union will understandably want to take time to see if the internal politics of the United Kingdom have settled down in favour of membership of the European Union.

The European Union will not want to let the United Kingdom back in only to have to devote time and effort in dealing with another Brexit, like some geo-political Groundhog Day.

The European Union will also want to see what happens to the United Kingdom itself over the next few years: Irish unification? Scottish (or even Welsh) independence?

What will be the situation of the European Union and of the world in 2026? 2031? 

Therefore there not only needs to be a positive case for United Kingdom membership of the European Union, it has to be a sustainable case too.

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The third reason is that an emphasis on ‘rejoin’ and ‘reversing Brexit’ carries a real risk of campaigners eternally refighting the 2016 referendum.

Like some historical re-enactment society, but for the battle of Brexit rather than the battle of Naseby.

Of course, remainers are right to have grievances about the circumstances of the referendum and the conduct of the campaign(s) for leave.

Remainers also are right to complain about the process (or lack of process) that followed the referendum and which has resulted in the United Kingdom ceasing first to be a member of the European Union and then having the protection of the transition arrangements.

Nothing in this post should be taken to mean that that the politicians who have made serious misjudgments about law and policy should not be held to account – indeed that is one purpose of this blog.

But pointing out problems and failings, either now or back in 2016, is not going to lead to the United Kingdom becoming (again) a member of the European Union.

This is not only because it is difficult to get a sufficient number of voters engaged, and that government supporters and Brexiters are so deft at evasion and misdirection.

It is because there is a fundamental disconnect between problem and solution.

Whether the United Kingdom becomes (again) a member of the European Union in 2026 – or whenever – will not be a logical consequence of redressing the wrongs and of 2016 or even those emerging in 2021.

Membership of the European Union may be a prize, but it will not be a consolation prize.

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The task ahead for those in favour of the United Kingdom (again) becoming a member of the European Union is immense.

A positive case has to be made over time so that the European Union will seriously consider a fresh application.

But that is not an impossible task.

And at least, unlike the supposedly ‘pro-European’ politicians of the last thirty or forty years, this will be a positive case.

One problem with the politics of the United Kingdom in recent decades is that the positive case for membership of the European Union was rarely made.

Now is the opportunity for that to be put right.

*****

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Each post takes time, effort, and opportunity cost.

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Trump’s social media ban in perspective – the unpalatable difficulties of regulating political and media activity in the internet age

8th January 2021

Once upon a time, and not so long ago, mass political parties and national media organisations were themselves novelties.

Both were responses to the emergence of popular democracy and widespread literacy in the late 1800s.

Political parties and media organisations (for example, ‘Fleet Street’) were ways by which the relationships were mediated between the elite and the governed.

The means of political organisation and of publication – and, later, of broadcasting –  were in the hands of the few.

Indeed, until the 1990s, it was difficult (if not impossible) for any person to publish or broadcast to the world, without going through the ‘gatekeepers’ of a national newspaper, or a publishing house, or a national broadcaster.

Similarly, it would be difficult (if not impossible) for any person or group of people to obtain significant political influence – at least in the United Kingdom as a whole – without going through a national political party.

So – although both politics and the media on a national level had opened up to the population as whole – the ultimate means of political and media control were still quite centralised.

Top-bottom, command-and-control.

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And when power is concentrated it is easier to regulate.

So, just as modern political parties and media organisations emerged at the end of the 1800s, so did the regulation both of political parties and of the media.

Back in October 2019 I set out at Prospect why the electoral law of the United Kingdom that was developed in different circumstances was no longer fit for purpose.

Similar points can be made about media law: for example, there is no real point tightly regulating certain news titles or national broadcasters when the same content can be circulated – often even more widely – on social media platforms by those outside such creaking regulatory regimes.

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If traditional political parties and media organisations did not already exist as hangovers from the time before modern technology and communications, they probably would not now be invented, at least in a recognisable form.

And that therefore must follow for how political and media activities are regulated.

Just as traditional political parties and media organisations were once novel responses to new social and economic conditions, we need to think afresh about the nature of political and media power and about the extent, if at all, it can be regulated.

For now anyone with an internet connection and access to certain platforms can publish and broadcast to the world, or can seek and obtain significant political influence or power.

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To ‘regulate’ a thing is to make it possible that the thing would have a different outcome, but for the regulation.

If a regulation can have no effect, then the thing supposedly being regulated carries on regardless, and the regulation is a polite fiction. 

Futility is the enemy of sound regulation.

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And now we come to President Donald Trump and his recent temporary ban from Twitter and his indefinite ban from Facebook.

Neither Twitter nor Facebook are traditional media organisations – indeed both were formed within the lifetime of anyone reading this post.

But they are not only media organisations – they have also taken on some of the functions of traditional political parties – as the practical means of political organisation, mobilisation and sharing of information.

This is not to say that the social media platforms are beyond the law – they are (in theory) subject to terms and conditions, laws on equality and non-discrimination, laws on data protection and intellectual property, and so on.

It may be that these general laws are not enforced, or perhaps not enforceable – but there are laws which apply.

The issue is that those laws are general laws and not specific legal regimes covering media and political activity.

And so what we have are platforms of immense media and political power – and without any specific media and political regulation.

They are, in effect, private organisations – and (subject to general laws) are entitled to suspend and terminate, or to enable, the accounts of any politician.

They can even suspend the social media account of (arguably) the most powerful politician in the world.

And they have done so.

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For many, the way to deal with the political and media power of social media platforms is easy.

Regulate!

Something must be done, and so something will be done, and that something that will be done will be to ‘Regulate!’

But asserting that a thing should be regulated is not the same as it being capable of regulation.

One may want the tides of the sea or the weather to be different, but it does not follow that they can be made any different.

So it may be that although social media platforms – huge private corporations – have immense political and media power, it does not follow that they can be easily regulated, or regulated in any meaningful way at all.

And even if regulation was possible, it is almost certain that it cannot be on the same basis of the top-down, command-and-control regulation of political and media activity that we have inherited from previous times.

For example, social media platforms have millions of publishers and broadcasters, not just a handful.

There are no elaborate steps before publication and broadcast as with a Fleet Street title or established book publisher.

They are no limits on how much political propaganda can be published and to whom it can be circulated.

If any of this can be ‘regulated’ then it almost certainty will not be by tweaking old pre-internet regulatory models – and this is because the things being regulated are of a fundamentally different nature.

And – and this will be very hard to accept for those who believe every real-world problem has a neat legal solution – it may be that social media activity can no more be regulated meaningfully than conversations in the street or in the town square.

That the age of specific regulations for media and political activity are over, and all we are now left with are general laws.

Many will not be comfortable with this – and will insist that ‘something must be done’.

Yet futility is the enemy of sound regulation.

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Perhaps something should have been done in respect of President Donald Trump’s unpleasant, dishonest, reckless and dangerous use of his social media account before this week.

And what has now been done is too little, too late.

Others would say that silencing an elected politician’s means of communication should not be at the fiat of a private social media platform.

Views will differ.

But the wider questions are:

If a thing is to be done about the use and abuse of a social media platform by those with political and media power, who should have the power to do this?

And on what basis should they make that decision? 

And to whom (if anyone) should that decision-maker be accountable?

And if the social media platforms themselves are left to regulate what political and media activity can take place and what content we can read and watch, who (if anyone) can regulate them?

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‘Quis custodiet ipsos custodes?‘ – who watches the watchmen? – is one of the oldest and most difficult questions in the history of organised societies, and it is a question that sometimes has no answer.

And now our generation gets to ask and to try and answer this question.

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POSTSCRIPT

Later on the day of this post, Trump’s Twitter account was permanently suspended.

https://twitter.com/TwitterSafety/status/1347684877634838528

 

*****

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The last of the legal correspondents, and the true crisis in the public understanding of law

3rd January 2021

At the end of last year two legal correspondents retired.

Owen Bowcott at the Guardian:

And Clive Coleman at the BBC:

It is an end of an era.

Yes, there are still full-time legal correspondents in the United Kingdom: at the Times and at the Financial Times.

But in both those cases the journalism is behind a paywall – and that is not an accident, as funding full-time specialised correspondents in any area is an expensive business, and if you want good specialised journalism in this internet age you do have to pay for it.

With the retirements of Owen Bowcott and Clive Coleman there is now no longer (as far as I am aware, and I would be delighted to be corrected) any full-time specialised legal correspondent at any news provider whose reporting is available generally to the public.

The nearest we have is Joshua Rozenberg, who is not exclusively attached to any news organ, providing reportage and comment at a number of titles and now on his own blog.

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Does this matter?

This demise of the legal correspondents comes at the same time where an understanding of how law works is as – if not more – important than ever.

Without legal correspondents it will be left to generalist journalists to report on, say, high-profile legal cases and the legal aspects of government policy.

And this in turn will increase the influence of (so-called) litigation PR specialists (who effectively provide copy to the media favourable to their clients involved in legal cases) and ministerial special advisers leaking spin-ridden and distorted accounts of law-related policy.

This is not to say there are not good generalist journalists reporting on legal matters but to observe that there will be an imbalance between the time-poor reporter without a bank of expertise and the well-resourced or well-informed but highly motivated source.

Having a specialised legal correspondent at a news title who was not reliant on PR or governmental sources meant there was detachment and reliability in their reports from court and the frontline of legal activity.

And this has now gone.

Something has been lost, and it will not be regained.

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The demise of the legal correspondents, however, comes at a time where reliable legal information is more freely available than freely before.

In the United Kingdom, for example, legislation is set out at the legislation.gov site and jusdgments at the BAILII site.

The Supreme Court has an outstanding site that not only provides case reports but also summaries and other useful information, and the UK judiciary site provides not only newsworthy case reports but also the judges’ sentencing remarks in high-profile and controversial cases.

It has never been easier for the spirited citizen to gain information about the law and to understand its application in particular examples.

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But.

Few lay people will bother – as screens full of dry text are daunting and the law is (or at least looks) complicated.

A screen suddenly full of legal verbiage is as scary or bewildering to a lay person as a page suddenly full of source code.

Legal information may well be free to all – but unless you have relevant experience and know your way round legal instruments and other legal documents, such access is only of theoretical value.

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But what of legal bloggers and tweeters?

Surely they (we) can step in and fill the gap between the law and the public understanding of law?

Here there are two problems.

Many leading legal bloggers and tweeters are of two types.

First, there are the legal academics – and many are as brilliant in explaining substantive ‘black letter’ law to lay people as they are to their lucky students.

But the academic exposition of substantive law is only one aspect of the public understanding of law – few legal academics will report from the courtroom in trials where there is little of academic interest, nor will they be routinely invited to Whitehall press briefings, nor develop sources such as judges and practitioners just for providing news.

And, analysis and commentary – however outstanding – is not the same as reportage.

Much the same can be said of the second group of legal bloggers and tweeters – legal practitioners such as barristers (and a few solicitors).

The additional problem with this second group is that – even more than academics who often need to show ‘outreach’ – such legal communication is voluntary and often haphazard.

Blogging and tweeting barristers (and solicitors) are not paid for explaining the law to the public and – with controversial legal topics – not compensated for the hassle and abuse they will get.

There will be uneven coverage – a lawyer will tend to only write about matters as and when they feel they have something to say about something they know about – and so this can lead to some areas of law being over-represented and other areas of law being neglected.

Blogging and tweeting lawyers  – both academics and practitioners – are a boon to the public understanding of law – but they (we) are no substitute for specialised full-time legal correspondents dealing with law-related news stories as they emerge on any topic, with detachment and perspective.

For that you need, well, full-time specialised legal correspondents at news organisations – and they are coming to an end.

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But there is an even more disconcerting problem, at this time of hyper-partisanship, ‘post-truth fake news’, and populism.

In the United States there are still many specialised courts and legal correspondents – and they have been diligent in exposing and reporting on the various abuses of law and legal process by President Donald Trump and his allies.

Each presidential assault on constitutional and legal norms in the United States has been documented and explained.

And it has made very little difference.

Many people do not care.

As this blog averred on New Year’s Eve – there is no point in the observant Benjamin the Donkey in Animal Farm being more public-spirited, if the other farm animals would not have cared less.

And so, in the United kingdom, even if every news title had a squadron of legal correspondents detailing the many abuses and misuses of law from this supposedly ‘law and order’ government then – looking at the United States – there is no reason to believe it would make any difference.

This, therefore, is the crisis in the public understanding of law referred to in the title of this blogpost.

The crisis is not that we are at the end of specialised reporting of legal news.

The crisis in the public understanding of law is that most of the public do not want to understand law.

A significant portion of the public do not want to understand the law, or care about how the law is misused or abused.

And how do you promote the public understand of law when so few of the public care?

*****

If you value the free-to-read and independent legal and policy commentary please do support through the Paypal box above.

Suggested donation of any amount as a one-off, £1 upwards per post found useful or valuable, or £4.50 upwards on a monthly profile.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

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Comments are welcome, but they are pre-moderated.

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The four ways the government of the United Kingdom is abusing and misusing the law – and the reason the government is getting away with it

2nd January 2021

Those with political power tend to want more power, and those who want more power will tend to then abuse it.

This is not a new observation, and it is perhaps one which can be made of most if not all human societies.

The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.

That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.

That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.

Those with political power will tend to try and get away with misusing or abusing it.

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The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.

And what is also striking is what has changed politically so as to enable them to be so open.

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First, the current government sought to give itself the power to break the law.

This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.

This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.

And then it was even supported by a majority of the house of commons.

The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.

But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

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Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.

This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.

 

From one perspective, these two proposals simply give formal effect to the practical position.

It has always been difficult to prosecute members of the armed services for war crimes.

And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).

And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.

The primary significance of these two current proposals is that the de facto positions are being made de jure.

The government believes (rightly) that it can legislate to this effect and get away with it.

*

The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.

Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.

But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.

And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.

*

The fourth way is the flip-side of the government seeking more legal power.

The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.

This can be done formally: by reducing the scope of judicial review or the reach of the laws of human rights and civil liberties, or by ‘ouster’ clauses, limiting the jurisdiction of the courts.

It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.

It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.

If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.

Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.

But again, what is different from before is the openness of these attempts.

There is no self-restraint.

The government is going to get away with as many of these barriers as it can.

*

The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.

That is a problem no doubt as old as law and government itself.

What is remarkable is how the United Kingdom government is now so brazen about it.

The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.

The ‘libs’ are ‘owned’ and those with grins will clap and cheer.

In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.

What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.

People cared about such things – or at least those in government believed people cared.

But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

*

And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.

It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.

And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).

This requires a shift – not in media and communications – but of politics and of political leadership.

Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.

And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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Benjamin the Donkey from Animal Farm, and the limits of political commentary

New Year’s Eve, 2020

Tomorrow Animal Farm and other works by George Orwell come out of copyright in the United Kingdom.

To mark this, and to do something different on this blog on New Year’s Eve, this is a tribute to – and critique – of Benjamin the donkey as a political commentator.

(And, just for the rest of today, the many quotations in this post are ‘fair dealing with a work for the purpose of criticism or review’ under the Copyright etc Act 1988.)

*

Benjamin has qualities which would (or should) make him a great political commentator.

First – and this is key:

‘Benjamin could read as well as any pig…’

In Animal Farm, the two key textual reveals to the other other animals are because Benjamin can read as well as any pig:

‘”Fools! Fools!” shouted Benjamin, prancing round them and stamping the earth with his small hoofs. “Fools! Do you not see what is written on the side of that van?”‘

And:

‘[Benjamin] read out to her what was written on the wall. There was nothing there now except a single Commandment. It ran:

ALL ANIMALS ARE EQUAL
BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’

Benjamin is capable of understanding, and explaining, anything done by those who have sought and obtained political power – it is not for him obscure or forbidden knowledge.

He is not of the political world, but can understand it as well as those who are powerful.

And so he can see and describe what is actually happening:

‘…Benjamin was watching the movements of the men intently. The two with the hammer and the crowbar were drilling a hole near the base of the windmill. Slowly, and with an air almost of amusement, Benjamin nodded his long muzzle.

‘”I thought so,” he said. “Do you not see what they are doing? In another moment they are going to pack blasting powder into that hole.”‘

*

Second, Benjamin is impartial in a hyper-partisan world:

‘Old Benjamin, the donkey, seemed quite unchanged since the Rebellion. […] About the Rebellion and its results he would express no opinion. When asked whether he was not happier now that Jones was gone, he would say only “Donkeys live a long time. None of you has ever seen a dead donkey,” and the others had to be content with this cryptic answer.’

And:

‘The animals formed themselves into two factions under the slogan, “Vote for Snowball and the three-day week” and “Vote for Napoleon and the full manger.” Benjamin was the only animal who did not side with either faction. He refused to believe either that food would become more plentiful or that the windmill would save work. Windmill or no windmill, he said, life would go on as it had always gone on–that is, badly.’

And:

‘Only old Benjamin refused to grow enthusiastic about the windmill, though, as usual, he would utter nothing beyond the cryptic remark that donkeys live a long time.’

*

Third, Benjamin has a stock of knowledge and historical perspective:

‘Only old Benjamin professed to remember every detail of his long life and to know that things never had been, nor ever could be much better or much worse–hunger, hardship, and disappointment being, so he said, the unalterable law of life.’

*

And Benjamin is (for want of a better word) humane and (privately) kind:

‘Nevertheless, without openly admitting it, he was devoted to Boxer; the two of them usually spent their Sundays together in the small paddock beyond the orchard, grazing side by side and never speaking.’

And:

‘…Benjamin urged Boxer to work less hard’.

And:

‘…Benjamin warned [Boxer] to take care of his health’.

And:

‘…Benjamin [laid] down at Boxer’s side, and, without speaking, kept the flies off him with his long tail.’ 

*

So: what more could you want in a political commentator?

Benjamin is worldly yet impartial, and he has historical perspective and a stock of knowledge, and he also is (at least privately) kindly.

But Benjamin fails as a commentator.

His impartiality has hardened into quietism, and he leaves everything too late.

Of course, Benjamin does not actively collaborate with those with political power:

‘He did his work in the same slow obstinate way as he had done it in Jones’s time, never shirking and never volunteering for extra work either.’

But he also does nothing when it would have made a difference to stop abuses of power.

For example, the constant re-wordings of the commandments which culminate in the addition of ‘BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’ is left to others to read who do not have the donkey’s understanding.

And when Boxer is taken to the glue factory, Benjamin’s late realisation is futile.

His private kindness made no difference to this very public and brutal act of power.

Had Benjamin been engaged from the beginning of the rebellion, the pigs may have got away with less and Boxer would have enjoyed a retirement.

(That is, if Benjamin had not – ahem – disappeared.)

*

T. S. Eliot famously turned-down Animal Farm for publication, writing to George Orwell that all the farm really needed were ‘more public-spirited pigs’.

That is, better conduct and more self-restraint by those who achieve and exercise political power – the essence of Toryism.

But left to themselves, those who achieve and exercise political power will tend to abuse that power – and that is why wiser people than Eliot also want checks and balances.

And one check and balance is an independent media.

A media which is worldly, impartial, and has historical perspective and a stock of knowledge, and which also – if not kindly – is certainly not cruel.

But as the example of Benjamin shows, even these wonderful qualities are not enough, if not constantly applied.

What was perhaps needed on the farm was not ‘more public-spirited pigs’ but a more public-spirited donkey.

*

Yet – this is a question which Orwell does not really address – the animals would also need to have cared if the donkey had told them what was happening in time.

For the experience of Brexit and Trump indicates that even if Benjamin had been more vigilant about abuses of power, many of the animals may not have cared.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

So commentary may not be enough: there is limited point to explaining about lies and abuses of power if people do not care that they are being lied to and power is being abused.

And that is the fundamental challenge of politics in the age of the promised windmills of Trump and Brexit.

But providing commentary is a public good in itself, even if it is not heeded.

And so this blog will carry on into the new year as the work of a public-spirited donkey.

Happy new year to all my readers and followers.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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

Comments are welcome, but they are pre-moderated.

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

*

Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

*

And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

*

There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

*

There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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*****

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The United Kingdom-European Union trade agreement – the early emerging picture

27th December 2020

The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.

As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.

All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.

Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.

It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.

As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.

All that said, there are already some emerging shapes and overall impressions.

*

The best starting point is the European Union page, which has links to a number of relevant documents.

You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.

There is also a 26-page document of ‘declarations’.

Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.

The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.

(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)

*

A number of commentators and experts have also shared their early views and impressions.

The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.

Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.

The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.

There was other outstanding commentary.

Trade expert Dr Anna Jerzewska: 

Services expert Nicole Sykes:

Former United Kingdom senior trade official David Henig did a post and a thread:

Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:

John Lichfield provided an informative thread on fisheries:

And extradition lawyer Edward Grange had a similarly informative ‘quick look’:

*

In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:

https://twitter.com/davidallengreen/status/1342749971142029312

And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.

Anton Spisak looked at this far more closely and he compiled this helpful diagram:

This elaborate scheme was correctly described by Professor Phil Syrpis as follows:

*

All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.

But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.

Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.

Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.

It is these that bedevil us.

Details – that is precise language – flush out these devils.

And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The EU-UK trade agreement – and the tale of two tables

Boxing Day, 2020

The post-Brexit agreement on trade and other matters is, it seems, in final draft form – although it has not yet been officially published.

What seems to be a copy of the final draft is here.

Proper analysis of the agreement will necessarily take time – though an initial glance showed about ten pages devoted to creating dozens and dozens of joint European Union and United Kingdom talking shops – committees, assemblies, talking shops, and so on.

This indicates that Brexit will in fact be a negotiation without end.

So while we digest this Christmas feast, let us look at a couple of Christmas cards.

*

The first is a ‘scorecard’ made public on Christmas Eve.

This purports to show a sequence of heady United Kingdom ‘wins’.

It is too soon to tell whether this document accords with the actual draft agreement, but even on its own terms it is confused and unconvincing.

For example, if we look at public procurement, where the United Kingdom had no proposals, the outcome is dubbed a ‘mutual compromise’.

But on legal services, where the European Union in turn had no position, the outcome is dubbed a United Kingdom ‘win’.Some topics are artificially broken up, perhaps to claim more United Kingdom ‘wins’ (for example, Financial Services), and other ‘wins’ not substantiated by accompanying text (especially Law Enforcement).

Such inconsistencies and distortions mean that, even on the face of it, the ‘scorecard’ is not a reliable document to form a view on the draft agreement either for or against.

The table has been created by the United Kingdom government (or a supporter of government policy) as propaganda, not analysis.

*

The United Kingdom government, however, is not alone in presenting a table as a spinning exercise.

Again, it is too soon to tell whether this table is accurate in comparison with the actual agreement, though there are no obvious internal inconsistencies in the document.

And maybe significantly, this second table is not framed as ‘wins’ but is instead about losses – the scope and areas of coverage.

What is outside the agreement, as opposed to what was included.

Looking down the ticks and crosses indicate what the United Kingdom might be losing as opposed to ‘winning’.

*

Just as the number of talking shops to be created under the agreement show that Brexit will now become a negotiation without end, the existence of these two tables indicate that the merits of Brexit will also be an ongoing argument.

Brexit will be a contested subject for at least a generation.

This trade agreement may be bringing part of the Brexit story to a formal conclusion, but it certainly does not bring Brexit to an end.

***

POSTSCRIPT

The United Kingdom government has now published the final draft agreement and a 34 page summary – see here.

And the European Union has published its suite of documents here.

 

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Scenes from Brexit past – so as to keep the impending Deal ‘triumph’ in perspective

Christmas  Eve, 2020

Today political and media supporters are hailing as a triumph a Brexit agreement few of whom have read and many will probably one day disown.

It is now a familiar ritual.

And as Christmas Eve is a time for ghost stories, here are some scenes from Brexit past.

*

First let us go before even the referendum.

It is late 2015, and the then prime minister David Cameron and a team of negotiators are seeking a ‘deal’ – a supposed re-negotiation that would be the basis for victory in a referendum expected to take place in 2016.

But the re-negotiation was a failure – though that too hailed by some at the time – and was hardly mentioned in the referendum campaign.

And – as this blog has set out previously – the wrong lessons were drawn from that deal by Brexiters, who believed demanding more things loudly was a deft negotiation technique with the European Union.

*

We now go to the days after the referendum result, in the summer of 2016.

The governing Conservative party were in the midst of a leadership election – and the winning candidate asserted that ‘Brexit means Brexit’.

The European Union were, around the same time, putting in place negotiation priorities and strategies that would mean that they were ready to start negotiating by the end of that year.

The United Kingdom, in contrast, had no plans or even articulated idea of what it wanted out of Brexit when that new prime minister made the departure notification in March 2017.

*

We now move on to the middle of the following year, where Brexit secretary David Davis promised ‘the row of the summer’ over the sequencing of the Brexit negotiations.

The ‘row’ lasted only days, as a far better prepared European Union got its way completely on sequencing.

*

And now we go to December 2017 where the European Union accepts that there has been ‘sufficient progress’ in the talks and enters into a ‘joint declaration’ with the United Kingdom.

This joint declaration contains delicate but significant wording on the issue of the border in Ireland – wording which many political and media supporters of the government do not appreciate at the time or do not take seriously.

That joint declaration is hailed by those supporters anyway.

Brexit is getting done.

*

We finally move on to December last year, where the Conservative party win a general election on the basis of an ‘oven ready’ withdrawal deal negotiated by the current prime minister.

That deal was, of course, hailed by political and media supporters of the government.

But months later, the United Kingdom government resorts to proposing legislation that would empower ministers to break that same ‘oven ready’ deal.

That legislation was hailed by political and media supporters of the government.

*

There are many more such scenes from Brexit – you may now be thinking of others.

Some of these ghostly memories may be forgotten by the cheerleaders of the government.

But they have certainly not been forgotten by the European Union.

That is why the deal is likely to have strict provisions on governance, as the United Kingdom has consistently spooked the European Union in the conduct of these negotiations.

So when the deal is finally unwrapped its contents may horrify the political and media supporters of the government who are currently hailing it more than any ghost story.

And that may be a scene of Brexit yet to come.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.