Category: Constitutional Law

Today’s No Confidence Vote from a liberal constitutionalist perspective

6th June 2022

Constitutional law should not be exciting.

Constitutional law should be dull.

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:

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:

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 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):

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.

**

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The cultural paraphernalia of the monarchy – a post for the Platinum Jubilee

 2nd June 2022

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:

I have blogged about this illustration before.

There I averred:

“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.

***

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Why the Ministerial Code is a constitutional nonsense – and why the only course for Lord Geidt is to resign

1st June 2022

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.

**

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The Prime Minister who is not there – what happens when there is an absence at the centre of government

31st May 2022

“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!”

– from Antigonish, by William Hughes Mearns

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!”

**

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***

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Of Partygate, questionnaires and police discretion – some footnotes to yesterday’s post

27th May 2022

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.

https://twitter.com/peterwalker99/status/1530131395133284352

https://twitter.com/peterwalker99/status/1530132726048858112

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.”

**

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

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.

**

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‘Partygate’ is not ultimately about lying to parliament, or breaking the criminal law, or putting lives at risk – it is about fair dealing

24th May 2022

‘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.

**

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The only ultimate solution to the problem of the Northern Irish Protocol may be a united Ireland

20th May 2022

Sensible conservative-unionists – and, no, that is not necessarily a contradiction-in-terms – used to abide by the maxim that politics was ‘the art of the possible’.

And one thing that the European Union did was make certain things possible, which otherwise were not possible.

With Gibraltar and Spain, for example, the border issue became less of an issue.

And with the island of Ireland, the border issue too became less of an issue.

Because both Ireland and the United Kingdom were both members of the European Union – and thereby both members of the internal market and customs union – a hard border, with infrastructure and bureaucracy, was unnecessary.

This created the conditions that made the Good Friday Agreement possible – though, of course, there were many other factors.

But now Brexit has come along, there is a problem.

There has to be a border somewhere where one entity is inside a pan-European internal market and customs union and the other entity is not.

Had Brexit not been so extreme – with the United Kingdom staying inside the internal market and/or the customs union (which is the position with some other non-EU states) – then the Irish border issue would be less of a problem.

But the Brexit which Theresa May insisted on, with the United Kingdom outside the internal market and customs union, meant there was going to be a problem.

May eventually realised this – and so she supported the ill-fated ‘backstop’ arrangement, which meant that – if there was no post-Brexit trade agreement – the cross-border arrangements of European Union membership would continue as a default.

But May’s proposal was rejected heavily by the House of Commons (including by ‘remain’ Members of Parliament).

That left one other option – the border in the Irish Sea, which was supported by the new Prime Minister Boris Johnson, and enshrined (ahem) in the Northern Irish Protocol.

And, as this blog has set out many times, Johnson here changed the policy, negotiated the Protocol, signed the withdrawal agreement containing the Protocol, fought a general election so as to get a mandate for the Protocol, and rushed the relevant legislation through parliament.

Johnson could have not done more, as Prime Minister, to have brought the Protocol into existence and to pass it into law.

But.

The Protocol is a solution to one problem but not to another.

It is a solution to the political problem of late 2019 where Brexit needed to be ‘done’ – and the Protocol was the only possible way to do so avoiding a hard border on the island of Ireland.

But it is not a solution to the deeper problem of how Brexit is compatible with the on-going existence of the union that is the United Kingdom of Great Britain and Northern Ireland.

Either one has Brexit (at least without continuing membership of the internal market and the customs union) or one has that union, but one cannot easily have both.

This is not to say that a united Ireland is likely – there are many solutions to political problems that never are adopted.

It may be that the problem continues, and continues, and is never resolved.

But a united Ireland is the only ultimate solution to there not being a border somewhere in respect of the north of Ireland.

Of course, special arrangements would need to be made for the non-nationalists in Northern Ireland – and one would hope that those protections serve that community better than the (lack of) protections for the nationalists in the north of Ireland after 1922.

Having watched Brexit from the beginning, I am still bewildered why supposed unionists did not see this problem coming – and indeed strongly campaigned for Brexit.

The European Union provided a means by which Northern Ireland could have continued in the United Kingdom, regardless of demographic changes and the gradual fall in unionist support.

But some forgot that politics was the art of the possible, and they pursued the politics of the impossible instead.

 

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Four possible consequences of Partygate

19th May 2022

Partygate, again.

Today the Metropolitan Police announced the end of their investigation.

This means that, in small part, the Partygate issue comes to an end.

But there are at least four things which may now flow from the circumstances of the unlawful gatherings at Number 10 during the pandemic.

*

The first, of course, is publication of the Sue Gray report.

This unseen report now has many expectations loaded onto it.

It is useful to remind yourself of her terms of reference.

Whatever is – and is not – in her published report, it is more likely than not to be in accordance with these terms of reference.

It is also useful to remind yourself of her truncated interim ‘update’.

That update indicated – though not in any definite way – where there may be problems for Downing Street when the final report is published (see this blog’s previous post here).

Two paragraphs of the update, in particular, are worth reminding yourself of:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Whether the report leads to any political change – and whether it is, in fact, the timebomb suggested by the earlier post – is, of course, determined by politics and the remarkable capacity of the current Prime Minister to evade accountability.

*

The second consequence of Partygate is – on the face of it – potentially more significant constitutionally.

This is the House of Commons committee’s investigation into whether the Prime Minister misled parliament.

Here a difficulty for the Prime Minister is not so much whether he realised the parties he attended were unlawful gatherings, but when he knew.

This is important because, as this blog has previously set out, it appears that the Prime Minister is not only under an obligation to put the record straight, but also to do so at the earliest opportunity.

This point was well explained by Alexander Horne in this thread:

Even if the Prime Minister did not realise at the time the gatherings were unlawful, he no doubt knew once he saw the Sue Gray report and/or was advised in response to the Metropolitan Police investigation.

The committee may perhaps find that Boris Johnson did tell parliament at the first available opportunity, or it may hold the rule somehow does not apply, or it may censure him.

Again, the political consequences of any censure – or sanction – are not predictable with the current Prime Minister.

But misleading the House of Commons and not correcting the record as soon as one can are still serious matters, even in this age of Johnson, Brexit and 2022.

*

A third possible consequence of Partygate is the worrying normalisation of politically motivated reporting of opponents to the police.

This blog recently set out this concern – and the concern has also been articulated by newspaper columnists:

This is an issue distinct from the obvious truth that politicians should not be above the law.

This issue is about when there is political pressure for there to be police intervention in respect of opponents, where such pressure would not be applied in respect of one’s own ‘side’.

Unless a report would be made to the police in the same circumstances when it was a political ally rather than an opponent, the report is being made on a partisan basis.

And routine goading of police involvement – and their coercive powers – on a partisan basis is not a good sign in any political system.

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The fourth possible consequence is more optimistic.

The covid regulations were an exercise in bad and rushed legislation, where – even accounting for it being a pandemic – insufficient care was given to the rules imposed and to how they were enforced.

This was pointed out at the time – by this blog and many other legal commentators.

The fact there was a pandemic was used as an excuse for shoddy drafting rather than it being the reason.

And part of the shoddiness was, no doubt, because these were seen by those in the executive as being rules for other people – that is, for the rest of us.

One perhaps positive thing about Partygate is that senior officials, politicians and advisers in the government now are aware that such rules can apply to them.

This may mean that in the event of another pandemic requiring similar rules, the provisions will have more anxious scrutiny before being put in palce and enforced.

That said, of course, it is perhaps also possible that the government will just make sure that future rules expressly do not apply to Whitehall.

But we have to take what possible positives that we can from this gods-awful governmentally-self-inflicted political, legal and constitutional mess, known as Partygate.

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The outlaw ministry

12th May 2022

From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.

And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.

Ho ho, every time.

But.

The real problem with this government is not that it acts unlawfully or illegally.

The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.

It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.

Instead, the government does not see law as even applying to it.

To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.

The law applies to little people, and not this government.

‘Law and Order’ is a campaigning slogan, but not a principle of government.

As this blog has previously averred, this government engages in three types of lawlessness.

First, it often conducts itself without any lawful basis.

Second, it seeks to introduce legislation that will enable it to freely break the law.

Third, it permits law-breaking at the highest level.

It is difficult to imagine a government with less respect for law, and for the rule of law.

This is not so much a government of law breakers, but a government of outlaws.

The law is an inconvenience which can be disregarded as and when it is inconvenient.

Such an approach has its hedonistic attractions, but it cannot end well.

Brace, brace.

 

Comments Policy

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

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