“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
*
This post looks at what the implications of that last 2019 commitment may be – though, in doing so, it is accepted that manifesto commitments are not legally binding obligations, and so there is leeway in how they are to be interpreted.
The 2010 and 2015 manifesto commitments do not need much interpretation in respect of the Human Rights Act – they are as plain as any pikestaff.
The Human Rights Act was to go – replaced, scrapped.
The 2017 commitment is also not ambiguous – the Human Rights Act was to stay, for now.
But.
The 2019 commitment was not that the Act would be replaced or scrapped, or that it was to safe for now.
The 2019 commitment was only to ‘update‘ the Act.
The 2019 commitment could have been to ‘scrap’ or ‘replace’ the Act – but the governing party decided against making that commitment.
The governing party opted for ‘update’ instead.
*
The governing party thereby has an election mandate for ‘updating’ the Human Rights Act.
And so if this is what they do, then that cannot be gainsaid – at least not constitutionally,
But the government is not now proposing merely to update the Act – but to repeal it and replace it with another statute.
To do, in effect, what the 2010 and 2015 manifestos promised.
But do the governing party have a mandate for repealing the Human Rights Act outright?
In other words: is repeal within the scope of an ‘update’?
Again, it is important not to be legalistic about this – no legal claim can be brought for a government breaking its manifesto promises, and so no manifesto should read as it is a formal legal document.
But what is stated in a manifesto is not without constitutional consequences.
This is because of the so-called ‘Salisbury doctrine’ – a constitutional convention.
This doctrine provides – quite rightly – that it is not open to the House of Lords to block or delay legislation for which a government has obtained a mandate at a general election.
The question thereby becomes whether this proposed ‘Bill of Rights’ is protected by the Salisbury doctrine or not.
If it is protected by the Salisbury doctrine, then the House of Lords cannot and should not block or delay the bill – though, of course, it may seek to make amendments.
If the bill is not protected by the Salisbury doctrine, however, then there could be such delays – including forcing the government to resort to the Parliament Acts to force the law onto the statute book after a year without the support of the House of Lords.
As the new bill substantially reduces rights and freedoms of individuals, there may be those in the House of Lords that will want to amend the bill beyond what the current government would want to accept – and to insist on those amendments.
Their view may be that “updates” – whatever that means – may be fine, but not outright repeal – because the government cannot point to any mandate for repeal.
*
If a bill is protected by the Salisbury doctrine, then the House of Lords will (usually) back down before the government has to invoke the Parliament Acts.
Of course, the only reason any of the above may be an issue is, no doubt, that the governing party did not want to say expressly in its manifesto that it would repeal the Human Rights Act outright, as that might have scared the voters, if not the horses.
A promise to ‘update’ was a lot less alarming to middle-ground voters.
*
One suspects the House of Lords will be wary about opposing the government in respect of such a populist piece of legislation.
And the government – and its media and political supporters – will clap and cheer at the prospect of a ‘peers vs people’ narrative.
But because of the mild wording of the 2019 manifesto commitment, the government cannot be certain of the House of Lords will back down on outright repeal.
And, what is more, this government in particular is not in any strong position to insist that other elements of our constitutional order comply with mere conventions.
**
Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.
For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was ‘Oh no, not again’.”
– Douglas Adams, The Hitchhikers Guide to the Galaxy
*
Legal and constitutional commentators are the petunias of the modern age.
The current bout of constitutional excitements started in around 2015, and these excitements have carried on relentlessly since.
Again and again the government has threatened to do something – or done something – drastic in respect of our constitutional arrangements.
Seven or so years later it is rather exhausting to keep up.
And giving up is tempting.
But keep up we must, as these are serious matters – even if government and its political and media supporters do not take them seriously.
For the political and media supporters of government will clap and cheer at each of these constitutional disturbances – and will delight in the ‘libs’ being ‘owned’.
Well, this ‘lib’ is more bored than owned.
But commentary must be offered, if only as a corrective to the narratives of those currently in power and those who support them.
And so this is the story of the Human Rights Act 1998 and the supposed “Bill of Rights” with which the government wants to replace it.
*
Before the Second World War, a certain sort of English person would have boasted not of having rights but of having liberties.
The notion was that an English person was free to do whatever they wish, unless it was prohibited.
The self-image was of a robust anti-authoritarianism – and it was an image which gained wide purchase.
And to an extent it was a fair depiction – the powers of the Crown had generally been made subject to Parliament, and most exercises of state power could be contested before a court.
But.
The Victorian doctrine of parliamentary supremacy – which asserted that Parliament could make or un-make any power it wanted – had as an unfortunate implication that the subject was powerless in the face of a determined executive dominating the legislature.
This implication was noticed by, among others, a Lord Chief Justice – Lord Hewitt – who in 1929 published The New Despotism warning of the illiberal power of the British state.
And in the Second World War what Hewitt warned of in theory was carried out in practice with the government’s use of the defence regulations.
For all the comforting self-image, there was not in practice robust English liberties that would actually protect the subject against the king’s government – let alone the citizen against the state.
Perhaps there never had been.
*
Following the Second World War there was a spate of international conferences and organisations that purported to declare and protect rights.
One of these, of course, was the European Convention on Human Rights.
This convention provided for a number of rights, contained in articles.
Some of the rights were set out in the original convention, and some were added in later protocols.
The convention was connected to the Council of Europe, which now comprises most European states:
By being party to the convention, a country agrees to be bound by the convention as a matter of international law.
Some claim that the convention was promoted by Winston Churchill and drafted by Conservative lawyers – but their contribution should not be overstated (see this fine book for what did happen).
The United Kingdom at the time the convention was ratified in 1951 did not see the convention as controversial or as being inconsistent with domestic law.
The convention did not only provide for rights but it also established a court to determine whether any signatory – as a matter of international law – was in breach of its obligations under the convention.
That court is the European Court of Human Rights in Strasbourg, of which you may have heard.
“Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority.”
The United Kingdom did not allow anyone to actually petition the Strasbourg court until 1964.
And until relatively recently – the mid-1990s – governments of all parties resisted the reach of the Strasbourg court.
*
This resistance had the following effects.
First, it created immense costs and delays for individuals who wanted the United Kingdom to comply with its international obligations.
For example, in the case of Malone – in my view, one of the most important constitutional cases in the last hundred years – a 1977 incident did not reach a Strasbourg judgment until 1984.
There the Strasbourg court held that any surveillance of the individual by the state had to have a lawful basis.
The English court had held, in effect, that just as it was open to any subject to do as they wish unless prohibited, it was also open to state bodies to do as they wished unless prohibited.
That’s robust English liberties, for you.
The Malone decision in turn led to the United Kingdom placing its surveillance regime onto a legal – and thereby legally contestable basis.
But it took seven years for the judgment to happen.
Second, it meant that lawyers developed various means of referring to Strasbourg jurisprudence in domestic courts.
I remember seeing this article as a law student in the mid-1990s:
By then it was getting rather silly.
A United Kingdom litigant seeking to rely on their convention rights had to go to the cost and delays of going to Strasbourg, or had to find a clever lawlerly way of relying on Strasbourg caselaw in a domestic case.
But what that litigant could not do is rely on their convention rights in a straightforward way before the domestic courts – even though the United Kingdom was bound by the convention (and by the Strasbourg court’s interpretation of the convention) as a matter of international law.
*
And then, in 1997, the electorate of the United Kingdom returned a Labour government:
Things could only get better, or so people thought.
And one thing the government did to make things better was to introduce legislation so that the convention could be relied on in domestic courts.
This would not only solve the increasingly absurd problem of the costs and delays of individual petition and indirect reliance, it also gave effect to a key provision of the Good Friday Agreement which was signed in April 1998.
One of the express bases of that agreement was that the convention had to be capable of being directly enforced in the courts of Northern Ireland – in particular against the Northern Irish Assembly:
And so the Human Rights Act 1998 came into being, which allowed direct access to the courts for breaches of the convention, and not just for those in Northern Ireland.
As the government of the day boasted in an allusion to the popular football song: rights were brought home:
The Act took effect on 2 October 2000.
*
But.
The Human Rights Act never gained universal support.
This is for, I think, two main reasons.
First, the popular media disliked how English judges created an entirely new tort – misuse of private information – on the back of the 1998 Act.
The Act does not expressly provide for any such cause of action.
But case-by-case, the courts crafted a new basis for suing for breaches of privacy.
And the courts did not ‘develop’ the corresponding right of free expression in any comparable way.
Few reporters and editors came to see the Human Rights Act as an instrument that would protect them like their American counterparts who could point to their constitutional rights.
Second, the politics following 2001 and 9/11 pushed against human rights protections.
It is difficult to imagine the Human Rights Act being enacted after 2001 had it not been enacted before.
The Labour governments became more illiberal, as anti-terrorist act followed anti-terrorist act.
“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
As it happens the government elected on the back of that latest manifesto is not prosing to “update” the Human Rights Act but now to repeal it – at least in form.
*
*
Alongside these manifesto commitments, there have been various attempts to find a practical way of repealing or updating the 1998 Act.
In 2011 there was a commission established by the government:
But this went nowhere.
In 2014 the then justice secretary launched a new attack at Conservative party conference.
And that went nowhere.
And in 2015-16, the then prime minister was again about to take on the Human Rights Act – and may well have done so but for Brexit:
*
*
And now, in 2022, we have yet another attempt to repeal the Human Rights Act, twenty-five years after the Human Rights Bill was introduced by the incoming Labour government.
The difference now, however, is that the proposals have reached the stage of draft legislation before Parliament.
And the justice secretary proposing the new legislation, Dominic Raab, is a long-term opponent of the Human Rights Act and was the junior justice minister under Cameron responsible charged with finding an alternative to the Act.
In effect, the Human Rights Act is Moby Dick to Raab’s Captain Ahab.
It does not matter that the criminal justice system is in crisis, scarce ministerial time and departmental resources will be devoted to repealing the 1998 Act.
*
The 1998 Act is unlikely to survive this assault.
There is enough time for the bill to pass before the next general election, and there is sheer determination to get the bill through.
But.
The essentials of the Act will remain.
The Good Friday Agreement will still require that the convention can be given direct effect in the courts of Northern Ireland.
The United Kingdom will still be bound by the convention as a matter of international law.
If the domestic courts do not protect convention rights then litigants can still go to Strasbourg.
The United Kingdom will still be required to comply with the decisions of the Strasbourg court.
And resourceful lawyers – and judges – will still find ways of referring to Strasbourg jurisprudence in domestic courts when determining convention rights.
And so one consequence of the new bill is that cost and expense will be added to the process of relying on convention rights under a treaty that will still bind the United Kingdom under international law.
The convention rights are still listed in the schedule; the definition of convention rights is the same; and the key obligation on public authorities to comply with the convention is also the same.
What the bill does is to introduce a number of provisions that will make it far more difficult for litigants to rely on those rights in domestic courts.
Over at the blog of Professor Mark Elliott there is an outstanding post – written within a day of the publication of the new bill – that details all the new legislative contraptions and devices, the purpose of which is to inconvenience the litigant seeking to rely on their convention rights.
Elliott’s post should be read and circulated as widely as possible.
And Elliott’s conclusion is compelling:
“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights.”
And this is why – jaded and fatigued as any sensible person must be who is keeping up with this government’s ongoing attack on our constitutional arrangements – we have to be vigilant about this latest exercise in limiting the ability of individuals to rely on rights which the United Kingdom is bound to protect by international law.
*
The government is not – and cannot – take the United Kingdom out of the European Convention of Human Rights – at least not without breaching the Good Friday Agreement.
The government is still obliged to give effect under international law to the rights contained in convention – and individuals will still have the right to petition the court.
But after twenty years of trying, the current government party has put forward the means of attacking the Human Rights Act by limiting the ready enforcement of these rights by individuals.
And so as a bowl of petunias once no doubt thought: brace, brace.
*
**
Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.
For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Over at Al Jazeera – where I am pleased to write posts from a liberal constitutionalist perspective – I have written about what the Lord Geidt resignation tells us about British politics.
Somewhat flatteringly, that post has been chosen as a ‘best column’ by The Week magazine:
From a personal perspective, the post is one of very few I have written for the mainstream media with which I am happy.
(One day I will get the hang of writing paragraphs with more than one sentence.)
On the back of that Al Jazeerapost I thought I would add here some thoughts about constitutionalism and absolute power.
For, as Lord Acton famously once said (and to which I allude in the Al Jazeerapost), power tends to corrupt and absolute power corrupts absolutely.
*
One problem with many – if not most – proposed or imagined political systems is that there is little or nothing to check or balance those who will have the most power under that system.
The hope is presumably that those with the most power will be selfless patriots – good kings, good chaps, and so on.
But, of course, what will tend to happen is that those with power will be corrupted, and those with absolute power will be corrupted absolutely.
And not just corrupted in a narrow financial sense, but in the broader sense of becoming debased.
In this way Orwell’s pigs in Animal Farm may be a more realistic guide to what happens with sustained one party control than the focused O’Brien in Nineteen Eighty-four.
Alan Moore – who I mention expressly in the Al Jazeerapost – has repeatedly shown in his stories what can happen when individuals get unchecked power.
In Watchmen – there is a character with absolute superpowers who goes quite mad, a character with immense wealth who becomes immensely destructive, and a character with complete government protection who does whatever he wants to whoever he wants.
And these are the supposed good guys – and none of them is the supposedly unhinged one, Rorschach.
*
Switching from imagined communities to historical examples, there are actually few examples of that most peculiar figure ‘the enlightened despot’.
What we do have are despots with good P.R. and gullible historians.
For if a leader is ‘enlightened’, they do not need to be a despot.
The documented evidence of torture and war crimes by the British cannot be denied, but few realise or care.
For that is what happens when you have good P.R. and gullible historians.
Even the popular comedy meme about ‘Are we the bad guys?’ is dressed in foreign uniforms.
But corruption – in both its narrow and broad sense – is not just about what happens to foreigners.
It can happen in any polity – and with any rulers, if they believe they can get away with it.
*
That is why any political system which confers great power on any individuals is suspect.
Yes, you may have a selfless patriot as an initial ruler, but what do you get when the selfless patriots die away?
The primary job of any liberal constitution is not that it provides and allocates powers, but that it effectively checks and balances those with powers.
It assumes the worst – even if there are hopes for the best.
And if those with the greatest powers in any political system are without checks and balances then it should not come as a surprise that powers are abused.
Indeed, it would be more of a surprise if they were not.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
The tariffs were extended for a year … until the end of this month.
At which point I now assume the UK will continue to apply the tariffs on Chinese steel (presumably again agains the recommendation of the TRA), despite not having the legal justification to do so.
My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.
Who knows.
But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.
And this is the case even if Lord Geidt simply used this issue as a pretext to resign.
There is something missing here.
*
But.
What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.
The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.
The second is the rules-based system of the World Trade Organisation.
You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.
It often seemed they did not know what that actually meant, and it was said because it sounded good.
Well.
It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.
This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.
The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.
*
At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.
The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.
But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.
And so on.
Perhaps we will find out more about the circumstances of this particular resignation.
But we already know from previous resignations that much of what has happened is already all too clear.
I have updated and added to my thread on resignation letters by the Prime Minister's advisers citing legal and ethical failings on part the PM and his Government. https://t.co/6nINVJIXX2
Thank you for reading – posts like this take time and opportunity cost, so please support this free-to-read independent source of commentary.
For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Of course, there are always odd and worrying things happening – increasingly in the area of law and policy.
But this is a rather odd and very worrying thing.
It is the curious incident of the government’s legal advice on its forthcoming proposal for the Northern Irish Protocol.
But to understand why what is happening is just so very odd and very worrying, we need to go back in time and also to understand how legal advice works in government.
*
The current government of the United Kingdom does not like the Northern Irish Protocol of the Brexit withdrawal agreement.
This is itself odd, as it is the same government, with the very same Prime Minister, that changed the previous policy on this, negotiated and signed the agreement, sought and obtained a general election mandate for the agreement, and pushed it through into domestic legislation.
The current government, and our Prime Minister Boris Johnson, could not have done more to go from scratch in putting the Northern Irish Protocol in place.
But they have come now to regret this once “oven-ready” agreement.
And they would like it to change.
The problem, of course, is that it takes all parties to an agreement to change an agreement – and the counter-party here is the European Union, and it does not want to change the agreement.
So what is the United Kingdom government to do?
*
The government tried – remarkably – to break the law,
It is astonishing to type this, and it should be astonishing for you to read this, but that is what the government sought to do, openly and expressly.
The breach was framed – you may remember – as breaking law “in a very specific and limited way”.
The Advocate General – a government law officer – resigned, as did the government’s own most senior legal official, the Treasury Solicitor.
They were right to do so – it was an extraordinary and preposterous thing for the government to do: an outrage, constitutionally and otherwise.
The government did not go ahead with this ploy.
The government learned its lesson.
The lesson was never to openly and expressly state that you were intending to break the law, either “in a very specific and limited way” or otherwise.
*
Since that botched approach the government has been very careful to say that what it is proposing does not break the law.
What the government actually wants to do, in substance, has not changed.
But now it wants to have legal cover for what it wants to do: to be able to say that a thing is lawful and not unlawful.
And under that cover, you can see through the fabric ever more desperate contortions and distortions.
Within the government there will be those insisting that there has to be “sign off” on the legalities of what is being proposed.
It is similar in this way to the attempts within government to get legal cover for the Iraq invasion, which led to the resignation of the senior government lawyer Elizabeth Wilmshurst – her resignation letter is here.
You may recall how the legal advice within government was then being chopped and changed until the advice was what the then Prime Minister Tony Blair and Foreign Secretary Jack Straw were happy with and also satisfied service chiefs and senior civil servants who wanted legal sign-off.
What happened behind the scenes came out at the Iraq Inquiry:
The Chilcot Inquiry concluded that the “circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory”.
You will see from the BBC report above, the government was shopping around for the legal advice that it wanted – because it did not like the advice of the responsible government lawyer.
In the end the then Attorney-General Lord Goldsmith managed to provide (that is, concoct) the advice the government wanted, instead of the advice of the relevant government lawyer.
And although that was a Labour government, as opposed to the current Conservative government, there was an important lesson learned and committed to institutional memory.
The lesson learned was that it is better not to shop around for new, alternative advice if you can say that you have not had adverse advice in the first place.
*
Now let me introduce you to the Devil.
That is, the “Treasury Devil” – the nickname for First Treasury Counsel.
In essence, the Treasury Devil is an external senior barrister who is activated when the government has a Really Serious Legal Problem.
Usually, this means going to court to represent the government in the most difficult and serious legal challenges.
Or it can mean advising in advance when a difficult and serious legal challenge is foreseeable.
The Treasury Devil is the legal cross between Winston Wolf and Mycroft Holmes.
He or she solves the government’s trickiest legal problems, or sits there and advises the government how best to deal with those problems in advance.
Some of the greatest judges were once Treasury Devils: Lord Slynn, Lord Woolf and Sir John Laws, as well as one member of the current Supreme Court, Lord Sales.
(I happen to be a former government lawyer, and I know of one instance where an impending legal problem was put before the Treasury Devil well before there was any litigation.)
Referring such a matter to the Treasury Devil is not routine – it is exceptional.
But it is a thing (despite what some other commentators asserted).
Indeed, when it is as plain as a pikestaff that something important will be challenged – perhaps all the way to the Supreme Court – then it is a very prudent thing.
That sometimes the Devil will be consulted on potential legislation has been affirmed by a well-regarded expert on legislation:
The current Treasury Devil is Sir James Eadie.
And you can see some of this Devil’s handiwork here.
*
Now, back to the Northern Irish Protocol.
Recently, a post on this blog set out an interesting shift in rhetoric from the current Foreign Secretary:
The Foreign Secretary had said:
“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.
“Our preference remains a negotiated solution with the EU.
“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]
“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”
In other words, the government was now to ‘comply’ with international law.
Applying the first of the lessons set out above, the government was now going to be lawful, not unlawful.
They had found a way to call what they wanted to do lawful.
“The attorney-general has approved the scrapping of large parts of the Northern Ireland Brexit deal amid mounting cabinet divisions over the plan, The Times has been told.
“Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.
“In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.
“Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”
“Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”
Suella Braverman, the Lord Goldsmith of her generation, had found a way.
Some of the vocabulary in the Times report is not strictly accurate – what is being described is reasoning and advice, not evidence or submissions – but it would appear that the newspaper had sight of the advice.
Internal, legally privileged advice had been leaked.
The desired legal advice was now in place, and the government could now do what it wanted to do anyway with the Northern Irish Protocol.
*
But.
There was one thing which could ruin this exercise in political and legal expediency.
Applying the second lesson set out above, the government needed this to be the only legal advice in town.
Whitehall was not going to be big enough for more than one advice, given the speed with which the government wanted to proceed.
A second opinion – usually helpful – would be most unhelpful to the government.
There would not be enough time to do what Goldsmith had once managed to do with the unwelcome foreign office advice.
Like the final scenes of a situation comedy, those in government would be desperate that somebody else was not asked certain questions.
*
Now we come to this week’s news.
Again internal government legal correspondence and advice has somehow found itself into the public domain.
More internal, legally privileged advice had been leaked.
.@politicshome understands, as @SamCoatesSky reports, that First Treasury Counsel James Eadie was *not* consulted by government on the legality of the Protocol legislation
Eadie would be expected to be asked for his opinion on such a high-profile & consequential bill – v unusual
Payne (a fine political journalist but not a legal specialist) may not be entirely correct here – for as set out above, the Devil is not consulted routinely on legislation.
But if something big was afoot, it would not be unusual for somebody somewhere in senior government to suggest that this is a matter for First Treasury Counsel.
“Correspondence seen by PoliticsHome has cast doubt over the government’s argument that its plan to override parts of the post-Brexit treaty without an agreement with the European Union would not breach international law.
[…]
“The government insists that this would not break international law. Suella Braverman, the attorney general, approved the plan having concluded that it was legal, The Times reported last month. When unveiling the plan to parliament, Foreign Secretary Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”.
“But in the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.
“They add they find that position “more convincing” than the view put forward by Braverman and others that the government was on solid legal footing in pursuing unilateral steps.”
*
Sam Coates, another fine political journalist, reported at Sky:
“…Sky News is told that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, has not been consulted on the question of whether the plans to overhaul the Northern Ireland Protocol will break international law.
“He is nevertheless understood to have indicated he believes it will be very hard for the UK to argue it is not breaching international law if it goes ahead with some of the moves under consideration.”
“Last night Sky News reported that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland Protocol would break international law.
“Sir James Eadie was consulted about the forthcoming legislation.
“However – in a highly unusual and possibly unprecedented move – he was asked not to give a specific legal opinion on whether the plan would breach international law.
“For the first time we can set out in detail what Sir James said.
“Eadie starts by confirming that the government has received advice from an array of other lawyers about the international legal issue raised by the planned protocol legislation.
“He goes on to say that he has been asked only to “assume” there is a respectable legal basis on which to support the arguments made by the other lawyers.
“He says he is happy to comply with this request – “I do so,” he writes – but then adds “I am not asked to opine on the merits of those views”.
“Sky News understands it is extremely rare for the First Treasury Counsel not to be consulted on an issue such as this, and be directed by government to rely on the opinion of others.
“However Eadie’s agreement to do as directed – and rely on the view of other lawyers – allows the government to say he was consulted more generally and is on board with the plan.
“Inconveniently, however, he is understood to have then volunteered a view in his submission: that he found the argument of one particular lawyer advising government “considerably easier to follow and more convincing”.
“The lawyer he cites says that it would be “very difficult” for the UK to argue it is not “breaching international law”.”
*
What appears to have happened is as follows: the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel; a clever compromise was reached where it would be referred to Eadie on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.
This is hilarious.
And it is now a mess.
One significant issue here is not that the Devil was not formally consulted – it is rare for First Treasury Counsel to be involved in pending legislation.
It would not normally be a snub.
The significant point is that for Eadie’s name and position to be even mentioned in this leaked correspondence can only mean there is almighty row going on in government over the legality of these proposals.
Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.
And not only has somebody senior insisted on this – they are so senior (or important) that they have partially got their way, and what looks like compromise instructions were then given for the First Treasury Counsel for advice.
We now have the extraordinary situation that there is convenient legal advice and also very serious grounds for doubting that advice (though not formally competing advice, because of the assumptions).
This is the worst of both worlds – for at least in the Goldsmith/Wood situation above, there could be and was a decision to prioritise one advice over another.
Here there is only one advice, and it is dubious – with no less than the Treasury Devil saying so.
*
And now, there has even been an urgent question in Parliament.
Also confirmed:
Urgent question from @amcarmichaelMP: "To ask the Minister for the Cabinet Office if he will make a statement on requests made to the First Treasury Counsel to assess government proposals to override the Northern Ireland Protocol."
— UK House of Commons (@HouseofCommons) June 9, 2022
The government is hiding behind a convention of legal privilege that it has already undermined by giving incomplete and inaccurate information to MPs in order to assert that its position is legal. The legal advice must be published, in full. https://t.co/E3Cs8lrbKI
— Alistair Carmichael MP (@amcarmichaelMP) June 9, 2022
The government minister said – with a straight face – that despite the several leaks in this matter, the government does not by convention usually disclose legal advice.
*
What we have are leaks of the Attorney General’s advice and leaks of the seeming compromise advice from the Treasury Devil, which casts serious and significant doubt on the Attorney General’s advice.
The supposed legal cover has, well, had its cover blown.
The government has now placed itself in a difficult position – by its own shenanigans.
It must have seemed such a good idea to get legal cover in this way – but it has now created a situation where somebody is in a position to leak legally privileged advice indicating there is an utter mess internally.
This is where a misconceived, seemingly clever way of getting legal cover gets you.
*
The true political problem here isn’t that First Treasury Counsel was not consulted in respect of the new proposals for the Northern Irish Protocol.
The problem is that the government tried to go out of its way not to consult First Treasury Counsel when somebody with sufficient clout insisted on it, and then the government only did so with “assumptions” so as to limit the scope of the advice.
And now it seems the government wants to suppress and disregard the First Treasury Counsel’s serious doubts as to legality.
This is an extraordinary situation.
When news broke about the Eadie advice, I tweeted that this was an extraordinary and potentially highly significant and worrying development.
Some wrongly took the development to which I referred to be that Eadie had not been consulted.
No.
The extraordinary and potentially highly significant and worrying development is that Eadie was involved at all, was being mentioned in internal emails as an alternative source of advice, and that we knew any of this about it.
That there are serious rows inside government, botched attempts to get legal cover, and frequent leaking of privileged advice is very worrying indeed.
Something odd is happening.
**
Thank you for reading – posts like this take a lot of time (this took three days) and substantial opportunity cost, so please support this free-to-read independent source of commentary.
For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Just a short post today, as I have not yet finished the longer post I had intended to publish here.
Over at Prospect magazine I have done a post about something I knew about our recent political history, but had not really thought about until this week’s political excitement.
This is the fact very few Prime Ministers follow what one might have assumed to be the classic model of taking power at one general election and losing power at another.
Indeed, since 1974 no Prime Minister has done both.
Every single Prime Minister has either taken power without a general election – Callaghan, Major, Brown, Johnson – or left office without a general election – Wilson, Thatcher, Blair, Cameron.
May – remarkably – did both, taking and losing office without a general election, and also managing to lose a general election in the middle.
Going further back, it is still rare – and ever since the extension of the franchise, few Prime Ministers have taken power at one general election and lost power at another – the obvious examples are Gladstone, Disraeli, Attlee and Wilson (1964-70), but it is difficult to think of others.
This demonstrates, I think, that we do not have a presidential system either in substance or in form, despite what some hubristic politicians think.
I also aver – but I may be wrong – that it shows a strength of our uncodified constitution.
Because the office of Prime Minister has little formal definition, it is what its occupant makes of it and what their colleagues allow them to make of it.
And so when a Prime Minister becomes weak, they become correspondingly politically exposed.
Of course, other parliamentary democracies have Prime Ministers come and go between general elections while having a codified constitution.
But I wonder if it is more marked in the United Kingdom.
Perhaps the explanation is mundane:
What that really comes down to is every second PM from Wilson on leaving between GEs. Once you have that, each of their successors has to come to power between GEs as well.
This is because constitutional law provides for the parameters of normal political action – and so when those parameters are being frequently contested or transgressed, then that indicates something is wrong with the body politic.
Since 2016, the constitutional law of the United Kingdom has been continuously, relentlessly exciting.
And today we have the extraordinary situation of the current Prime Minister facing a no confidence vote in his party leadership from his own backbenchers.
Let us unpack this remarkable situation and work out what is happening (and not happening) and what may happen next (or not happen next).
*
We can start with a document disclosed over the long jubilee weekend:
Tory MPs who want Johnson out have this weekend been circulating a briefing document setting out why. It warns the party is on course to lose the next election & concludes “the only way to end this misery, earn a hearing from the British public… is to remove Boris Johnson as PM” pic.twitter.com/XxiCqqiILR
This is the most well-written and well-structured and most thought-through document from any Conservative politician in years.
Conservative politicians can do it when they need to do so.
It just goes to show what can really matter to them.
And it is interesting and significant what is contained in this document, and what is not.
You will see that the content is entirely about party advantage.
This makes sense, in a way, for a vote of confidence in a party leader is about them as a party leader.
And not about them – at least directly – as a prime minister.
Let us now go to another document, which was published earlier today.
This is the Downing Street’s attempt to counter the document above:
NEW: Being circulated by no10 ahead of tonight’s vote – leadership contest would “unleash a distracting, divisive and destructive civil war in the Conservative party… dominating the agenda and alienating voters” 🔥 pic.twitter.com/ll0ZIOZ02V
The underlining and italics suggest desperation – and we should be glad there has been no resort yet to BLOCK CAPITALS.
Putting these two documents together tells you a great deal about the state of the governing party – and of the states of mind of those involved.
*
And now, a third document.
This is a letter to the Prime Minister from Jesse Norman, a former minister with a serious interest in constitutional matters:
I have supported Boris Johnson for 15 years, for the London Mayoralty and for PM. Very sadly, I have written to him to say I can no longer do so, for the reasons set out below. pic.twitter.com/0Mjs4hjeSF
I have a lot of time for Norman – he is the author of good books on Adam Smith and Edmund Burke as well as of this delightful online memoir of his late father-in-law, the great judge Tom Bingham.
So much time do I have for him on constitutional issues that I found it surprising – and disappointing – that he did not join Lord Keen in resigning from the government when it was proposed that primary legislation be enacted so as to enable the government to break the law.
Norman soon lost his ministerial job anyway.
His letter sets out the policy – as opposed to the partisan – basis for removing Johnson as party leader and as Prime Minister.
The case could hardly be put better from a Conservative perspective.
But.
Two things.
First, there is little in Norman’s letter that was not true last week – or indeed last month, or even last year.
And second, today’s vote is about confidence as a party leader, rather than as Prime Minister – and one suspects that if there were to be a formal House of Commons vote of confidence as Prime Minister, Norman may not vote with the opposition.
Yet such counterpoints aside, Norman’s letter is important and it is good and welcome that it has been written at all.
It certainly shows that detailed and reasoned critique of the Prime Minister can be made from a Conservative perspective.
*
And now another document – the resignation letter of the anti-corruption ‘tsar’ (and please can we abandon the ‘tsar’ title):
I’m sorry to have to resign as the PM’s Anti-Corruption Tsar but, after his reply last week about the Ministerial Code, it’s pretty clear he has broken it. That’s a resigning matter for me, and it should be for the PM too. Here’s my letter to him explaining why. pic.twitter.com/0Wi6QWsMbI
This is a critique from a third perspective – to join the partisan and policy perspectives set out above.
Here the primary complaint is that the Prime Minister was in fundamental breach in terms of his accountability as a leader.
This ties in with the issue set out in a recent post on this blog about the meaning – and meaninglessness – of ‘taking full responsibility’ as an evasive rhetorical act but nothing else.
*
These letters provide some heavy firepower – from three perspectives the case against the current Prime Minister is compelling.
Yet these letters are not enough to remove him.
It may well be that today’s vote is not even enough to remove him, at least as Prime Minister.
As I have set out elsewhere today, it is conceivable – indeed, plausible – that even if Johnson loses today’s vote, he will seek to stay on as Prime Minister.
There is no formal mechanism to get rid of him, and – following the 1975 Australian political crisis – the Queen is unlikely to top her jubilee weekend with a sacking on the back of just a party vote.
It would take a vote of no confidence of the House of Commons in Johnson as a Prime Minister – and even if he lost that, he could seek a general election.
And the mere threat of calling such an election may well mean that he will not lose – perhaps even face – such a parliamentary vote.
We have the makings of a political and constitutional crisis.
*
Some political opponents say that it would be better for Johnson to survive as Prime Minister, so that he can be decisively defeated at a general election.
This would be so Johnson and his brand of politics is not only defeated, but seen to be defeated.
There is merit in that idea – a general election reversing the mandate of the 2019 general election.
But such an approach is risky – especially given Johnson’s survival skills as a politician.
It would also mean that the constitution faces two more years of the strains and contortions of dealing with a Johnson premiership.
It may well be that the constitution will not be able to cope.
So the more prudent action would be for Johnson to somehow go now,.
Our uncodified constitution has many faults – and detractors – but it is adept at allowing the removal of Prime Ministers between general elections as well as at general elections.
In my lifetime, Wilson, Thatcher, Blair, Cameron and May all were replaced between general elections – and, even further back, so were Asquith, Churchill, Eden, and Macmillan.
It is quite normal – constitutionally speaking – for a Prime Minister to be replaced mid-term.
But one problem with an uncodified constitution, however, is that it can depend on voluntary compliance with conventions and precedents.
Johnson is a one-person walking negation of such a principle.
And so we are likely to have an exciting week, constitutionally speaking.
Brace, brace.
**
Please support this independent law and policy blog so that it can continue with posts like this.
Do not assume this blog can continue without your help.
For more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
You can also become an email subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
For more on this blog’s Comments Policy see this page.
My first piece for the @NewStatesman looks at the powers of the @HoCPrivileges and poses the question: should the hearing to determine whether the PM misled Parliament be held in public and under oath: https://t.co/BKMGgJrPz2
In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.
If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.
(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)
On the face of it, administering such an oath has its attractions.
No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.
Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.
Horne mentions where such oaths have been used:
“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”
*
But.
It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.
That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.
And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.
Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?
(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)
Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?
It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.
And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.
*
That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.
This is certainly a constitutional problem that needs a practical solution.
The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.
The fear would be that in seeking go solve one constitutional problem, another is caused.
And so the problem remains: what can you do – constitutionally and practically – with a dishonest Prime Minister?
*
POSTSCRIPT
Horne has provided a link to a useful post where he deals with the issues in more detail:
David raises some interesting and important constitutional points in his response to my piece in @NewStatesman There are very few precedents relating to the prosecution of witnesses for perjury – but I address a couple here for anyone interested:https://t.co/pOi5ifQD5T
Please support this blog, so that it can carry on.
These free-to-read law and policy posts every week day do take time and opportunity cost to put together, as do the comments to pre-moderate.
So for more posts like this – both for the benefit of you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
You can also become an email subscriber.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
For more on this blog’s Comments Policy see this page.
There have been various communications revolutions in human history.
One, of course, is the development of human language – though we are still working out the extent to which this actually separates us from other animals capable of complex communications.
Another was the notion – which we appear not have had for most of the history of our species – that language can be written down and thereby stored or sent long distances.
This notion was instrumental in the development of more complex societies, as it meant for example than laws could be recorded and conveyed other than by oral tradition and transmission.
And about five hundred years ago, the development of movable type meant that things could get published and circulated on a scale that would not have been possible in days of manual reproduction of texts.
The most recent radical change in communication is one with which many reading this blog will be familiar.
In our lifetimes, when we were young, it was difficult-to-impossible to communicate with and publish to the world – unless you went through the gatekeepers of established newspapers, publishing houses or established broadcasters.
Yes: you could, perhaps, publish a vanity book, or pamphleteer outside McDonalds, or launch a pirate radio station in the North Sea.
But short of such extreme exertions, it was hard – as recently as the 1990s – to publish or broadcast whatever you wanted to the world.
And now, by reason of the internet and easy-to-use platforms, anyone with an online connection can, in principle, publish or broadcast on the widest possible scale.
We are now perhaps so familiar with this change that we forget how radical a shift this is.
And we are still reckoning the consequences.
One consequence is that our conventional ideas of politics and media are shifting – and we do not know for certain what will happen next.
The lack of gatekeepers on political discourse has a relationship with the populism-supporting figures such as Johnson and Trump.
Traditional mediating vehicles of transmission and participation – say, political parties and newspapers – are now in many respects redundant in these days of direct connections.
The law itself struggles to keep up – and our laws on social media are a hotchpotch of the unrealistic and outdated, but these laws also have no obvious alternative.
One hobgoblin of law and policy thinking is that nothing is new – we can see that the same will happen as before, as long as we know the right precedents.
How will our polity will be affected by these fundamental changes in politics, media and communications?
Will it mean a more liberal future?
Or a more authoritarian one?
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
While we wait for the Sue Gray report, here is something said by the Leader of the House of Commons Jacob Rees-Mogg:
Jacob Rees-Mogg says on @BBCNewsnight that "a change of leader requires a general election". Says UK is now effectively a "presidential system" and "the mandate is personal rather than entirely party"
Rees-Mogg, of course, is the government minister who gave the Queen the unlawful advice on prorogation.
You would think that him now promoting a presidential system would be a further discourtesy to the Queen in her platinum jubilee year.
But even on the substance of the contention, it is historically and constitutionally illiterate.
In the last fifty years only Heath (1974), Callaghan (1979), Major (1997) and Brown (2010) have ceased to be Prime Minister by reason of a general election.
In contrast: Wilson (1976), Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) were all replaced as Prime Minister without any general election.
This is because we have a parliamentary system and, given our uncodified constitution, there are many ways by which a Prime Minister can be replaced without a general election.
Going further back, one can also look at the stark examples of Asquith (1916), Chamberlain (1940) and Eden (1957) – who all were replaced after their respective military misadventures without any immediate general elections.
Rees-Mogg is correct that, in terms of political-media culture, Boris Johnson projects a presidential style.
But this should not be confused with the constitutional position.
There is nothing to prevent there being a new Prime Minister without a general election.
And, indeed, until and unless the Fixed-term Parliaments Act is repealed, any more immediate general election would in any case require a majority in the House of Commons to support it.
The most concerning thing about this, of course, is the authoritarian implications of Rees-Mogg’s contention – for it undermines parliamentary democracy.
And this authoritarianism, and subversion of parliamentary democracy, is part of a worrying trend.
Brace, brace.
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
