Yes, part of our [expletive] constitution is (or was) a letter written to the Times *under a pseudonym*.
Because the United Kingdom does not have a codified constitution, the sources of our constitutional law (and lore) are in many places.
As is sometimes said, the United Kingdom does have a written constitution – it is just not written down in one place.
Some of the sources are cases and statutes, some of the sources are authoritative textbooks and guidance, and – in this case – it is a letter to a newspaper.
According to Professor Wikipedia (as I cannot find the letter on the Times website), the operative test of the 1950 letter is as follows:
“In so far as this matter can be publicly discussed, it can be properly assumed that no wise Sovereign—that is, one who has at heart the true interest of the country, the constitution, and the Monarchy—would deny a dissolution to his Prime Minister unless he were satisfied that: (1) the existing Parliament was still vital, viable, and capable of doing its job; (2) a General Election would be detrimental to the national economy; (3) he could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.
“When Sir Patrick Duncan refused a dissolution to his Prime Minister in South Africa in 1939, all these conditions were satisfied: when Lord Byng did the same in Canada in 1926, they appeared to be, but in the event the third proved illusory.”
That last sentence is especially interesting because it reminds us that our monarch is also the monarch of elsewhere, and the author of the letter purports to draw a general view from instances of where the monarch’s power has been exercised (or not exercised) in other jurisdictions.
The basis of the letter is therefore not (it seems) what the author thinks should be the case, but a statement of what is practically the case.
Since this 1950 letter at least two things have happened which casts doubt on whether that is still a correct statement of practice.
The first is the further depoliticisation of the Crown – just as a statement from the 1830s or 1880s would not necessarily be a good guide to the position in 1950, a statement from 1950 may not necessarily be a good statement of the position in the 2020s.
That crisis is still felt with a shudder in Buckingham Palace and elsewhere.
The fall-out from the 1975 crisis was such that it probably negates any prior general statements of about the position of the monarch in respect of a Prime Minister and practical politics.
It may therefore be that the 1950 statement is no longer a reliable guide to what the monarch understands to be the constitutional position in respect of a request by a Prime Minister for a dissolution.
And, furthermore, Parliament has also since 1950 enacted and then repealed the Fixed-term Parliaments Act, which presumably shows that Parliament intends the Prime Minister to have the power to ask for parliament to be dissolved.
But.
Two things should not be conflated.
The first thing is whether the Monarch is able to refuse a request for a dissolution, full stop.
The second is whether the 1950 statement is still a reliable expression of when the monarch can and cannot do so.
One of the merits of the Crown in the constitution of the United Kingdom is not so much the power which the Crown has, but the powers it prevents others from having.
There is something welcome in a Prime Minister not having absolute powers – even if the check and balance is a hereditary head of state.
*
No doubt, the monarch may be more reluctant in the 2020s than before to refuse a request by the Prime Minister for Parliament to be dissolved.
But that does not mean that the residual power of refusal has been abandoned completely.
The Queen may still refuse a request by the current Prime Minister for a dissolution.
We just cannot today be certain what the criteria for such a refusal would be,
And if any well-connected and informed person can tell us the current position, please comment below – using an appropriate pseudonym.
***
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 brief post here today, as I am currently writing one of my longer posts for (I hope) posting on this blog later in the week.
Over at Al Jazeera, I have written again from a liberal constitutionalist perspective for an international audience.
My piece there this week is on the significance of last week’s by-elections – and why, generally, by-elections and other ‘mid-term’ events can be constitutionally significant, even if they are not good predictions of general election results.
And this is because in the British constitution it is common for Prime Ministers to either gain or lose power between general elections (or both) – as this blog has set out previously.
Over at Prospect I have done a comment piece on the new ‘Bill of Rights’ – focusing on its pointlessness but also emphasising that it shows the wrong priorities for the Ministry of Justice, a small department with a limited budget.
Today, criminal barristers are on strike – as the criminal justice system is in an ongoing crisis.
For the current Lord Chancellor to prioritise this ‘Bill of Rights’ above everything else at the Ministry of Justice is a serious error.
So, as my Prospect piece concludes, this bill is the legislative equivalent of lounging on a beach while Afghanistan falls.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
“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.
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.
Not least because he was appointed to an impossible position.
As this blog has previously averred, the entire scheme of the Ministerial Code, with an advisor on ministers’ interests, was a constitutional nonsense.
This is because such a code and such an adviser provided no actual check or balance on the power of the Prime Minister.
The code and the adviser only has the power which the Prime Minister of the day allows it to have.
And like most forms of supposed ‘self regulation’ it was in fact an absence of regulation.
It was a cloak for sheer prime ministerial power, and not any counter to it.
Let us start at the beginning, for it is a very good place to start.
And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.
(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)
Clause 1 provides:
There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.
The content of the clause is not part of the title, purposes or preamble to the Bill.
No, we can check, and it has a clause number.
Clause 1 is intended to be part of statute, to have the force of primary legislation.
But.
It does not seem to be law.
I do not know what it is.
It is called ‘Introduction’ – as if it was part of some Penguin Classic.
But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.
For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”
That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.
The provisions of this clause 1 do not create obligations, or confer any discretions or rights.
What are they doing?
Are they capable of legal effect, in and of themselves?
Are they intended to have legal effect, in and of themselves?
Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?
If so, how?
What are they supposed to be?
They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.
If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.
Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?
And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?
If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?
The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.
It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.
Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.
Perhaps it a commonplace, and I have missed it in other legislation.
But it does not seem right.
And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.
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.
It was not published until the evening, and it already has had over 20,000 hits.
And it has been promoted by a former Irish ambassador to the United Kingdom and the European Union, one of Ireland’s leading journalists, and a Conservative former Lord Chancellor – as well as by the reporters and member of parliament whose work I used for the post.
Thank you to all of you who read and shared the post, and a special thank you to those of you whose support means I can free up time to put together posts like that (which in that instance took three days).
Here is a follow-up to the post which has come out from the subsequent discussion.
*
It would appear that one function of the Eadie ‘advice‘ is so ministers can try to convince unsure backbenchers.
This possibility has been put forward by the Conservative former Lord Chancellor I mentioned, David Gauke:
Very good piece from @davidallengreen on the Govt's curious approach to the advice of Sir James Eadie QC on the Northern Ireland Protocol legislation. One point to add is that the Govt has been telling MPs that Eadie had signed off the Bill (see https://t.co/EdAJXANdQN). https://t.co/Z9O7Kx7YAM
“The sidelining of Eadie is highly irregular, especially as some MPs had previously been reassured that Eadie had opined on the legislation (he has, but not on the international law aspects).”
This is significant in two ways.
First, the government is now reduced to lying to its own backbenchers.
And second, if this is correct then it also means that government backbenchers simply do not trust the Attorney General to be getting the law right, and want the comfort of a further opinion.
If so, this shows the further fall in the credibility of the Attorney General.
You will recall that during the Brexit debates, the then Attorney General Geoffrey Cox – a successful barrister – took a leading role in seeking to convince backbenchers about the legality of the then proposed deal:
We now know that this advice was not enough to convince enough backbenchers to support then Prime Minister Theresa May’s deal.
But the point is that members of parliament did not then question the credibility of the Attorney General in being the source of legal advice, just that they did not like the import of what he and May were saying.
The current Attorney General has had less of an opportunity to develop a career in private practice and so is a far more junior lawyer than Cox.
And although she is understood to have commissioned advice from public international lawyers (lawyers who specialise in treaties and other international agreements), the fact that she is advising that the proposals are legal carries little or no weight with government members of parliament.
So, if Gauke is correct, there has been a decline – perhaps a collapse – in how seriously the office of Attorney General is regarded politically.
And so members of parliament are having to be assured that the Treasury Devil is also on side:
Don't think they'd have shown the Eadie advice to backbenchers (which would've raised lots of questions). More "don't worry, Eadie's looked at it" (which is the truth but not the whole truth).
This may explain the possible compromise I mentioned yesterday, where Eadie was asked to give an advice based on assumptions that the advice commissioned by the Attorney General was correct.
The backbenchers would then presumably not be told about the assumptions.
The Devil’s name would be being taken in vain.
And so the leak of the actual advice, which showed Eadie’s doubts about the validity of the Attorney-General’s advice, undermined this underhanded ploy.
The cover was blown from the legal cover.
It would therefore appear that the government was seeking to mislead its very own backbenchers over the legality of the proposals for the Northern Irish Protocol.
That is an extraordinary situation for the government to be getting into, and it does not bode well for the legal robustness of what is being proposed.
**
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.
