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.
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.
When I was young I had a book about Kings And Queens which influenced me more than I realised at the time.
I still have the book, and it is in front of me as I type this post.
I can see it was published in 1980 by “The Leisure Circle”, which I think was a mail order book club to which my Nan and Grandad belonged.
The author was David Piper, who Wikipedia tells me was a museum curator and former director of the National Gallery.
And this makes sense, for although the history in the book was thin, the portraits and other art are wonderful.
Two images of the Queen stand out.
The first is this by Sir James Gunn from 1950, before she was Queen:
The second is once very popular portrait from 1955 by Pietro Annigoni, three years into her reign:
I keep this book to hand over forty years later as it reminds me that there is something about monarchy – and especially its visual rhetoric and cultural significance – that can and will never be captured by constitutional lawyers and political theorists.
This aid-to-memory, however, is not just because of the magnificent artwork collected in the book, but because of a particular picture which Piper placed in his introduction that has had more influence on my understanding of monarchy than any treatise or case report.
The picture is this from 1840, and it is by the novelist William Makepeace Thackeray:
“Strip away the paraphernalia of dominance – not just the garments but also the symbolism and the rhetoric and the concepts – and you just ultimately have people.
“A great deal of what we posit as politics and law – almost all of it – exists only in the mind.”
And this is true.
But.
You are a poor commentator on law and policy if you regard the paraphernalia as having no value.
*
Of course, many sensible people would prefer a republic to a monarchy, and would prefer an elected head of state to a hereditary one.
These sensible people will often justify their preferences by reference to first principles of democracy and legitimacy.
And I too am a republican, though not a militant one.
But there are aspects of law and policy, and of constitutions and political identity, that do not lend themselves to rational understanding.
The celebrations for the platinum jubilee over the current long bank holiday weekend will either irk or dismay many who have strong interests in law and policy and constitutional reform.
Yet those celebrating our part of our polity too – and any attempt to reconfigure the polity without regard to the sentiments of royalists will be a botched exercise in constitutional reform.
As the greatest of all English writers on the constitution, Walter Bagehot, averred, some parts of the constitution are efficient, and others are not.
Bagehot quaintly called the non-efficient elements “dignified” – and, yes, views will differ as to whether that is still the right word, given the antics and worse from members of the wider royal family.
But the job for those who want a republic is to come up with something new that has similar cultural purchase on the governed as the monarchy appears to have on many of the governed now.
Otherwise any new republic may not last long enough to celebrate its own platinum jubilee.
***
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.
The greatest ongoing constitutional problem in the United Kingdom is not the lack of a written, codified constitution.
It it is the lack of constitutionalism among leading politicians.
This lack of constitutionalism is not a new thing, but under the current Prime Minister there would appear to be no constitutionalism whatsoever.
Constitutionalism is, in general, the notion that there are certain fundamental political rules with which one should comply, regardless of any personal or partisan advantage.
Some of these rules are legal, but many are conventions or norms.
Some of these rules are capable of some kind of enforcement, by law or otherwise, but generally their purchase comes mainly from self-restraint.
For, as the late Labour member of parliament Austin Mitchell once put it, the British constitution is whatever the government can get away with.
*
One index of the lack of constitutionalism in the United Kingdom is the various ways that governments – of various parties – have set up various gimmicks to make it look like constitutionalism is being taken seriously.
One such gimmick was the Committee on Standards in Public Life established in 1994 under the Conservative government of John Major when it was decided that something must be done.
That committee then gave us a list of seven principles of public life – which all sound impressive but in practice are so vague and vaporous that they really do not mean anything meaningful at all.
Aspirational, uplifting, comforting word bingo.
*
And, as the jurist Jimmy Cricket would say, there is more.
Under Tony Blair’s Labour government of 1997 we had the Ministerial Code.
Rarely has there ever been a more pointless constitutional document.
Nothing in constitutional terms changed – the Prime Minister still was the sole decision-maker about what happened to ministers and about whether any minister had done something wrong.
There was no real independence – the code had no autonomy, it offered no check or balance.
And nobody could decide whether the Prime Minister had broken the code other than the Prime Minister.
The code was metaphorical ornate wallpaper – to complement the actual ornate wallpaper of Blair’s first Lord Chancellor Derry Irvine.
The Ministerial Code is what you get when you just codify something about the constitution without any serious thought about its application, adjudication, and enforcement.
*
We now come to yesterday’s report by the “Independent Adviser on Ministers’ Interests” – Lord Geidt – whose role is to advise the Prime Minister on matters relating to the Ministerial Code.
The word “independent” here is misleading, if not false.
For example, let us look at this passage from the preface:
“In a letter of 23 December 2021 to the Prime Minister, I wrote that, ‘I would expect by the time of my next Annual Report in April to be able to describe the role of Independent Adviser in terms of considerably greater authority, independence and effect’.”
Greater?
Greater?
Any authority, independence and effect would be a fine thing – for one cannot logically have a greater amount of nothing.
Let us read on.
Here is another passage:
“Granting the Independent Adviser an independent right to initiate inquiries into ministerial conduct has been called for over many years. The changes now offered by the Government are at a low level of ambition.”
This can be re-worded as a call to grant to the “Independent” adviser, well, actual independence.
And so on.
There is nothing meaningfully independent about his role in any active sense.
And as this adviser cannot do anything active, the adviser – in the great tradition of British tuttery – is instead passive aggressive.
(Jacob Rees-Mogg putting “sorry to have missed you” notices on the seats of absent civil servants has nothing on the passive aggression in this report.)
See for example:
“For much of the year, the conduct of the Prime Minister himself has potentially been subject to consideration against the requirements of the Code. Accordingly, and whether unfairly or not, an impression has developed that the Prime Minister may be unwilling to have his own conduct judged against the Code’s obligations.”
That is weapons-grade tuttery.
Again:
“It may be especially difficult to inspire that trust in the Ministerial Code if any Prime Minister, whose code it is, declines to refer to it. In the case of the Fixed Penalty Notice recently issued to and paid by the Prime Minister, a legitimate question has arisen as to whether those facts alone might have constituted a breach of the overarching duty within the Ministerial Code of complying with the law.”
Tut, tut, tut.
The preface continues with an articulation by the adviser of his own constitutional impotence:
“In the present circumstances, I have attempted to avoid the Independent Adviser offering advice to a Prime Minister about a Prime Minister’s obligations under his own Ministerial Code.”
And then we have the immortal line:
“If a Prime Minister’s judgement is that there is nothing to investigate or no case to answer, he would be bound to reject any such advice, thus forcing the resignation of the Independent Adviser.
“Such a circular process could only risk placing the Ministerial Code in a place of ridicule.”
The problem here is that the Ministerial Code is already in a place of ridicule.
*
Lord Geidt is plainly doing the best he can with the remit he has got.
Other than to offer his resignation, tuttery is all he can do.
For the real issue is beyond what Lord Geidt can do with his report or otherwise.
The Ministerial Code is a nonsense.
It is no more than a thirty-six page statement of the obvious political and constitutional truth that a Prime Minister can hire and fire and retain ministers as he or she feels fit, on whatever basis he or she she wants to employ.
The nonsense of the code was made most stark when it was found recently that the Home Secretary was in breach, but the Home Secretary stayed in office and the then “independent” adviser resigned.
Last week, when it was revealed that some of the wording of the code had changed so that resignations were not necessarily expected, some pundits were concerned.
But it actually did not matter.
The textual changes may as well have been scribbles of a bored Boris Johnson, because the content of the Ministerial Code has no constitutional import outside of what a Prime Minister decides it has.
Which is to say it has no real constitutional import at all.
The only “independent” thing Lord Geidt can do, now that the tuttery has failed, is to resign.
And he should do so.
**
Please support this – ahem – 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.
The constitution of the United Kingdom is as much about absences as about content.
Other constitutions have gaps – for example the constitution of the United States does not mention judicial review, the key means by which the federal courts provide a check and a balance to the executive and the legislature.
But in the constitution of the United Kingdom, there are many more absences – things which are not there.
Take the office of Prime Minister – if you were only to look at the statute books, you would find little trace of the role and almost no express provisions conferring powers.
Indeed, until the early twentieth century you would find no legislative trace at all – even though the office had then existed for nearly two hundred years and been occupied by such powerful figures as Walpole, Pitt, Peel, Disraeli and Gladstone.
The power of the Prime Minister’s office comes from other elements of the constitution – by acting on behalf of the Crown (and thereby exercising the Royal Prerogative) and by having a majority in the democratic house of Parliament (which is important as Parliament is held to have legislative omnipotence with the doctrine of parliamentary supremacy).
The Prime Minister – or at least the governing party – can also often derive power from the electorate, with the notion of a ‘mandate’ if a party wins a majority of seats, and this mandate means that the non-democratic house of Parliament must yield when there is a conflict.
All this power – and for a position that, legally speaking, barely exists.
This means that the office can be pretty much what its occupant wants it to be.
For example, Boris Johnson when he became Prime Minister dynamically used the office in five ways to force through the Brexit withdrawal agreement and ‘get Brexit done’ :-
– he changed the policy from his predecessor;=
– he negotiated a revised agreement with the European Union;
– he then signed that agreement;
– he fought an early general election to get a mandate for his negotiated, oven-ready agreement; and
– he used his mandate and his overall majority to force the revised agreement through Parliament and into law.
Few Prime Ministers have used so many of the powers of the Prime Minister in so short a time.
But.
Since that agreement became law, the Prime Minister has become the proverbial dog that has caught up with the car.
It would appear Johnson does not now know what to do with the office – or with his majority.
And remember – a substantial Parliamentary majority is the greatest prize which the constitution of the United Kingdom can bestow on any Prime Minister – and it is not as common as you would think.
Indeed – after John Major lost his working majority not longer after the 1992 general election, it was not until 2015-17 and after 2019 that the Conservatives had an overall majority; and since 1977, Labour has only had an overall majority between 1997 and 2010.
What has the Prime Minister done with this overall majority, which has flowed from the Brexit referendum result for which he campaigned and the General Election at which he promised to get Brexit done?
Almost nothing – and, indeed, the ongoing politics of the Northern Irish Protocol show that he did not even get Brexit done.
Johnson has gone from using the office of Prime Minister to the full to doing almost nothing with it.
The last Queen’s Speech – like a football team defence not impressing Alan Hansen – was all over the place.
The nasty ‘anti-woke’ noises from various ministers do not indicate a programme, but a lack of one.
The government is at one a high-spending, large-state levelling-up government that also now, somehow, wants to substantially cut the civil service.
A government that thinks nothing of partying at Number 10 while imposing the most illiberal restrictions on the rest of us ever known in peace time.
The only theme is that the government will pick fights with and seek revenge on any entity of the state which offers any check or balance.
This is not ultimately about a government or a Prime Minister, but about the lack of a government – and a lack of a Prime Minister.
And so, match our constitution of absences, we now have a government of absences, and a Prime Minister who may be in office, but who is not really there.
Perhaps it is time for him to go away.
*
“Yesterday, upon the stair, I met a man who wasn’t there! He wasn’t there again today, Oh how I wish he’d go away!”
**
Please support this independent law and policy blog so that it can continue – do not assume it 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.
The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.
The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.
The thing is that I do not know – could not know – if that explanation were true.
The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.
(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)
The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.
In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.
I was struck by acting Met chief Stephen House repeatedly stressing they only issued FPNs if certain it would stand up if challenged in court. If Johnson had expensive legal advice saying his presence at leaving drinks was necessary for work, then you can imagine the caution.
As ever, I'm not a lawyer, but it strikes me that Johnson would have had a lot more leeway for potentially making this sort of argument with regulations that were drafted quickly and hadn't been tested in a higher court (and barely in lower courts).
The decision to issue a notice is not a judicial decision – no judge or court is involved.
The decision is made by a police officer, who must reasonably believe that an offence was committed.
The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.
Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.
If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.
The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.
The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.
And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?
It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.
*
But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.
Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).
As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.
And so – as techies would say – Garbage In, Garbage Out (or GIGO).
The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.
From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.
One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.
If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.
And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.
*
Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:
“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”
**
Please support this independent law and policy blog so that it can continue – do not assume it 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.
The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.
This post is not about the report in detail, but about the current Prime Minister’s response.
It is a response that Boris Johnson often gives at times of trouble.
It is the response of saying that he ‘takes full responsibility’.
What could this phrase mean?
Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.
Oh no – this is ‘full’ responsibility.
Rhetorically, it is an impressive statement – to which some may even nod-along.
But it is hard, if not impossible, to see what it means.
For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?
What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.
What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.
There is not any real difference; nothing changes.
If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.
This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.
In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.
It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.
For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.
The action the Prime Minister would perform is to resign.
And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.
Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.
So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.
That is to say: no constitutional meaning at all.
**
Please support this independent law and policy blog so that it can continue – do not assume it 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.
‘What is justice?’ is a question that has been long discussed by clever philosophers, jurists and political theorists.
But one way of understanding justice is to see it not as a thing, but the absence of a thing: justice means a lack of injustice.
Justice is thereby defined by what it is not.
A just society is one where concrete injustices have been addressed; a just outcome is the solution to an actual unjust situation; and so on.
And for many it is injustices that matter, for injustices rankle.
*
With ‘Partygate’ it seems what rankles most is the unfairness of it, the injustice.
That the current Prime Minister lied to Parliament and to the rest of us surprises no sensible person, for it is the one quality about Boris Johnson that all sensible people will know to be true.
That the current Prime Minister broke the law and guidance again is no shock – and, indeed, it would be more of a shock if, in any given situation, Johnson had followed the law and any guidance when he did not need to do so.
It does not even seem to matter to that many – though there are exceptions – that Johnson broke laws and guidance designed to keep people safe.
The anger about ‘Partygate’ appears (at least to me) not to be motivated primarily by the concern that Johnson was personally putting others at risk (though this will anger some).
What seems to be what upsets people about ‘Partygate’ is that while others were immensely affected because they had to comply with rules, or were punished if they did not, the Prime Minister and others in Downing Street casually did not comply with those rules.
The rules, of course, that Johnson and his government imposed upon the rest of us – the laws his government issued and enforced, the guidance he and his government promoted night after night.
The stories which appear (again to me) to be getting the most traction on news sites and on social media are those from people who, for example, could not visit their loved ones on their deathbeds or were not able to attend funerals.
Had the story been about Johnson in a serious dilemma choosing to break the rules to see a loved one in hospital or attend a funeral, then people would perhaps be more forgiving.
Many people in extreme situations may choose to break rules.
But the situations in which Johnson and his circle broke the rules were not extreme situations or dreadful dilemmas.
And this disparity in the seriousness with which one abided with the rules is what annoys – disgusts – people who would otherwise shrug.
Not the lies, not the rule-breaking itself – but the unfairness.
*
‘Partygate’ is not about parties or cakes; and it is not ultimately about lying to parliament, or about breaking the criminal law, or about putting lives at risk; it is at bottom about fair dealing.
And that is why – months into this scandal – ‘Partygate’ will not go away easily.
Downing Street partied while the rest of us were prevented from going to visit deathbeds or attend funerals, at the behest of Downing Street.
That was unfair.
**
Thank you for reading – and please support this independent law and policy blog so that it can continue.
So 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.
