Category: Constitutional Law

Fundamental rights vs legal rights vs constitutional rights – the case of abortion and the United States Supreme Court

4th May 2022

Those with too much interest in law or politics will talk about different sorts or rights – fundamental rights, legal rights, constitutional rights, and so on.

Some of those people will even know what they mean by each of these (similar) terms.

Others, however, may find the feast of terms confusing.

This post is for those who want to better understand such terms.

And for the purpose of exposition, I will take the topical issue of abortion in the United States (which this blog covered yesterday)

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First, what is a ‘right’?

A right is the absolute ability to elect to do something in a given situation.

If that ability can be withdrawn by another, then it is better understood as a privilege, and not as a right.

If you need to obtain the prior consent of another before exercising that ability then it is not a right but a permission.

What makes it a right is that no prior permission is required and it cannot (easily) be withdrawn.

Sometimes these rights are expressly articulated and set out in a formal code.

And sometimes they arise by implication because of a certain legal state of affairs.

The right to an abortion under Roe v Wade in the United States is an example of the latter.

The Supreme Court held that it would be unconstitutional for there to be certain legal prohibitions on abortion.

This rested on a right to privacy, which is not expressly stated in the constitution, but was implied into the constitution by the court.

The right to abortion therefore is the implication of it being unconstitutional for there to be certain legal prohibitions in respect of people’s private lives.

And because Roe v Wade was decided by the Supreme Court on the basis of what was constitutional, the right is a ‘constitutional right’ .

This means that it is not open to Congress (on a federal level) or individual states to interfere with the right.

A lower level of right would be a legal right – for example, a right to an abortion as provided for in laws made by Congress or an individual state.

But such legal rights are subject to the constitution, and so if they do not conform with the constitution then they can be quashed.

This means that, if the Supreme Court holds that it is a matter for individual states to regulate access to abortions, but Congress purports to enact a nation-wide right to abortion, such a legal right may be struck down by the Supreme Court.

(Legal rights are useful, but constitutional rights are stronger.)

A third category of rights are ‘fundamental’ or ‘natural’ rights – these are rights which exist (or should) exist, independent of whether they are posited by the legal system.

Sometimes these rights correspond with constitutional or legal rights, sometimes they do not.

From a liberal perspective (the perspective of this blog), the right of a woman to elect to have an abortion is a fundamental right.

The principle is that – in general – it is for the woman to decide, and not a legislature.

(And if a legislator or voter is opposed to abortion, then they are free to not have one – but it should not be an absolute rule imposed on another.)

This general principle is subject to a limitation of there being a point in a pregnancy after which no abortion should be normally be performed – and views will differ on when that limit is.

But the fact that views will differ as to when that limit is does not mean that there should not be a general right to elect to have an abortion before that limit.

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If the Supreme Court do remove the constitutional status of the implicit right to an abortion then it may still be a legal right in some states, and it still will be a fundamental right, even if an ineffective fundamental right in other states.

If the Supreme Court overrules Roe v Wade, the only other way to return the right to an abortion to being a constitutional right – and thereby exercisable in every American state is for the constitution to be amended.

That would then put it beyond the grasp of an illiberal Supreme Court and any illiberal Congress.

But until and unless that happens, you have a fundamental right which may be a legal right in some states and not others, but is not a constitutional right.

And that – well – would not be right.

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The suggestion that the Prime Minister give evidence to the privileges committee under oath and pain of perjury

2nd May 2022

Did you know there is a Parliamentary Witness Oaths Act?

This 1871 statute – which is still in force – provides among other things that any committee of the House of Commons may administer an oath to the witnesses examined before such committee.

And, while an examination of witness by a parliamentary committee is not a judicial proceeding, it would still be perjury for a person to lie such an oath (or affirmation) – with the penalty being up to seven years in prison.

This information comes from a fascinating and informative article at the New Statesman by Alexander Horne, a former parliamentary legal adviser.

In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.

If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.

(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)

On the face of it, administering such an oath has its attractions.

No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.

Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.

Horne mentions where such oaths have been used:

“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”

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But.

It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.

That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.

And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.

Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?

(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)

Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?

It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.

And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.

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That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.

This is certainly a constitutional problem that needs a practical solution.

The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.

The fear would be that in seeking go solve one constitutional problem, another is caused.

And so the problem remains: what can you do – constitutionally and practically –  with a dishonest Prime Minister?

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POSTSCRIPT

Horne has provided a link to a useful post where he deals with the issues in more detail:

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The false and misleading statements of Boris Johnson and Matt Hancock about the Covid care homes judgment

29 April 2022

On Wednesday the prime minister was asked by Daisy Cooper MP about the high court decision holding that the government had acted unlawfully in its covid guidance for care homes.

Hansard sets out the exchange as follows:

Note that key phrase from the prime minister:

“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”

The former health secretary Matt Hancock gave an interview to ITV News, where he said:

“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”

(The switch midway that sentence is interesting – he seems to go from wanting to say that knowledge about asymptomatic transmission had not been known earlier to carefully stating that he personally did not know.)

Hancock then put out a statement to the press as follows:

“This court case comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts. 

“The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission.”

So: is what the prime minister and the former health secretary said in response to this judgment true?

Let us see.

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The judgment contains evidence about what was said and done, and when.

The evidence does not appear to have been contested by the government in the hearing, though the government’s lawyers would dispute the weight and meanings to be placed on that evidence.

What did the evidence say?

At paragraph 65 of the judgment (emphasis on date added):

“…on 9 March [2020] the Health Minister Lord Bethell, said in the House of Lords that “large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit.” “

At paragraph 69 of the judgment (emphasis on date added):

“On 12 March [2020] the European Centre for Disease Prevention and Control (ECDC) published a paper entitled ‘Novel coronavirus disease 2019 (COVID-19) pandemic; increased transmission in the EU-EEA and the UK- 6th update.’ It made a number of observations about asymptomatic transmission. It noted that “over the course of the infection, the virus has been identified in respiratory tract specimens 1-2 days before the onset of symptoms…”. Referring to the Japanese National Institute of Infectious Diseases’ field briefing entitled ‘Diamond Princess COVID-19 cases update March 10, 2020,’ it observed that the virus has “been detected in asymptomatic persons. On a rapidly evolving cruise ship outbreak where most of the passengers and staff were tested irrespective of symptoms, 51% of the laboratory confirmed cases were asymptomatic at the time of confirmation”.

At paragraph 73 (emphasis on date added):

“On the morning of 13 March [2020], on BBC Radio 4’s Today programme, Sir Patrick Vallance, the Government’s Chief Scientific Advisor, said this about the means of transmission of the virus:

” “It looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are very mild symptoms”.”

At paragraph 78 (emphasis on date added):

“on 15 March [2020], an important paper from Imperial College and Columbia University was published. ‘Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus’ by Li and Pei et al. discussed the transmission rate of undocumented infection.”

And so on.

The judgment also lists various papers that were published in March 2020, including a paper published on 31 March that stated:

“between a third and a half of transmissions occur from pre-symptomatic individuals.”

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That was all in March 2020 – now let us turn to April 2020.

Paragraph 286 of the judgment:

“On 2 April 2020, a week after the lockdown had been given legal effect (by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)) , the Admissions Guidance was published. As noted above, this included the following about new admissions (emphasis in the original):

” “Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic.  All of these patients can be safely cared for in a care home if this guidance is followed.  If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.” “

The court then states in the next paragraphs about this April guidance:

“there is no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission. […]

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

“It is notable that on 25 and 28 March, days before the publication of the 2 April Admissions Guidance, the Minister for Social Care (Ms Whately) was raising concerns about this aspect of the guidance.

“It was not until 15 April in the Action Plan of that date that the Department recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community. Such isolation was to be either in the care home itself or using “local authority-based arrangements”, that is to say quarantine facilities.

“This was a significant delay at a critical period.

“We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.

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And so, as this blog set out yesterday, the court held that the April guidance was irrational in that it failed to take account of a relevant consideration – and at a time where the government was seeking to discharge as many as possible from hospital and into care homes.

This is not about whether the government knew with absolute certainty whether there would be asymptomatic transmission.

But it is about that the government knowing there was a risk before the guidance was issued.

Government ministers and their advisers had spoken expressly of the risk.

Mounting scientific evidence stated there was a risk.

Given that all this can be shown as being known in March 2020, there can be no sensible reason for the April guidance to care homes not to have referred to this risk.

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And now let us come back to the statements from the prime minister and the former health secretary.

The prime minister:

“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”

The former health secretary:

“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”

Both these statements are misleading, and indeed false.

The judgment puts together all the evidence possessed and available to the health department (and the health secretary) at the time.

The passages in the judgment where the court considers the government lawyer’s attempts to explain all this away (paragraphs 272 to 278 and 290) show just how weak the government’s position on this was.

Either the accumulated detail of the judgment of what was known and when – undisputed by the government in court – is true or the statements of the prime minister and the former health secretary are true.

But not both.

The government said it was throwing its protective arms around the care homes at that critical moment, when it was seeking to discharge as many as possible from hospital into care homes.

But the government instead issued guidance that made no mention of a risk that it knew existed – and that can be shown that the government knew existed.

And so people died.

Far from ‘clearing’ the former health secretary of ‘wrongdoing’, the judgment sets out that what was done was very wrong indeed.

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How one paragraph in the significant Covid and care homes judgment describes Matt Hancock’s lethal, unlawful policy

28th April 2022

One of the most outstanding lawyers I know works a lot with care home clients.

Sometime ago they told me about what happened when the hospitals started seeking to release patients into care homes at the start of the pandemic.

A hospital was trying to force a care home to take a potentially positive patient.

The lawyer advised their care home client to lock all the doors, and to not accept anyone from the hospital untested.

Robust advice yes – but it was a bleedingly obvious problem – and now the High Court has said, in effect, my friend’s legal advice was correct.

The Covid and care homes judgment handed down this week is long and complicated – 75 pages and 299 numbered paragraphs.

But one paragraph stands out – and goes to the heart of the relationship between policy on one hand and law on the other.

It is paragraph 289:

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

This is not an example thereby of a hard policy decision being made between competing options.

Most sensible people would say that is a matter for the government and not for the courts.

It was instead a decision which failed absolutely to take account of a relevant consideration.

As such, it was a policy decision that was not lawfully open to the decision-maker.

As those bringing the case set out, the secretary of state was the relevant decision-maker “and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed”. 

How the court applied this legal principle in this case is interesting:

The court has held, in effect, that by the time the relevant guidance was issued, the risk of asymptomatic transmission was obvious and well-known – it was even being mentioned publicly by government scientific advisers.

But the government blithely put out guidance to care homes that did not even consider that risk, let alone provide for what care homes should have done to manage the risk.

The court elsewhere in the judgment rejects challenges on other grounds – and the court is careful to say that earlier stages of the pandemic, it would not have been fair or realistic for the government to have known that there was a risk.

But by the time of the April 2020 guidance, this was not the case – and the government could not pretend that was the case.

The government instead published guidance on which care homes were supposed to rely and did not care to consider the risk of asymptomatic transmission.

That took the decision out of the realm of administration and policy and into the realm of public law.

The judgment does not refer expressly to the famous Wednesbury principle, but this is an example of a decision so unreasonable no reasonable decision-maker could have made it.

And that is even after giving due latitude and deference to a government dealing with a pandemic – that offers no excuse to have got this guidance so completely – lethally – wrong.

Far from throwing their arms around the care home sector, the department of health instead threw their hands over their eyes.

And care homes should not have been placed in the dreadful predicament of having to decide whether it was safe to follow department of health guidance, or whether they should have locked their doors instead.

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What the next Queen’s Speech may tell us about this government

27th April 2022

Yesterday’s I newspaper had this interesting front page about the upcoming Queen’s Speech:

The article supporting the front page told us:

“At least a dozen Government bills which were promised at the Queen’s Speech a year ago will not become law in time for the next speech which takes place on 10 May. Downing Street is seeking to push through another 10 pieces of legislation in the next few days.”

What is especially interesting about this front page is its timing.

We are more-or-less at the midpoint of this parliament.

The last general election was on 12 December 2019, and the latest date for the next election, it would seem, is 24 January 2025.

The next Queen’s Speech – which has been set for 10 May 2022 – will mark the start of the last full parliamentary session where there would be adequate time for any significant reforms to be properly carried through after enactment.

In other words: if the government was to attempt major changes through legislation, this is the time.

But.

This government does not appear to have the appetite for major reforms.

Promised overhauls of, for example, our complex systems for planning or procurement will again not be put forward.

The (impartial) House of Commons Library provides the following list of Bills promised in the last Queen’s Speech that are yet to be introduced:

(‘Procurement Bill’ sounds like a bloke who works in supplier management in a less exciting sequel to Postman Pat.)

The library also lists the bills ‘foreshadowed’:

But as any decent scriptwriter will tell you, foreshadowing is not character (or story) development.

And it would seem that this government finds it easier to announce fundamental reforms than to actually take them forward and implement those reforms.

The ultimate reason for this is simple.

Reform is hard, policy is hard, law-making is hard.

Getting one’s thoughts together to the extent of actually having a Bill ready to introduce to parliament is hard.

The first reading in parliament of a Bill is not stage one of a process, but about stage seven or eight.

The hard work takes place on the departments and with parliamentary drafters.

Handing a Bill to ministers to pilot through parliament is not to be done lightly.

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The former Downing Street adviser Dominic Cummings had – regardless of his other merits and otherwise – ambitious plans to shake our planning and public procurement regimes.

No sensible person with knowledge of planning or public procurement would say the current arrangements are perfect.

An ambitious, reforming government would now be ready to grapple with fundamental reforms in planning, public procurement, and many other areas.

And this government would be in a strong position to do – on paper.

For this government has the greatest prize that the constitution of the United Kingdom can bestow: a large working majority in the House of Commons.

This means the government not only has all the advantages of extensive executive power (under the royal prerogative and otherwise), and access to the government legal service and the treasury panel of barristers for fighting cases in the courts.

It also means that the government can be confident of passing legislation through the House of Commons and, if necessary, forcing it through the House of Lords too.

Few Prime Minsters win this prize.

Clement Attlee had this prize, and used it to drive through welfare state legislation; Thatcher did with trade union and privatisation legislation; and even Tony Blair, in his first term, was able to get the Human Rights Act and other legislation on the statute book.

And our current government?

Here is a challenge: take a moment to name one flagship Act of Parliament passed since the general election.

Yes, there has been Brexit and Covid legislation – but this would have to have been passed whoever won the last general election.

Can you think of one?

I am a law and policy commentator – and I can can only think of a possible few – though various nasty laws on borders and protests are about to come enacted.

Of course: Brexit and Covid have taken a lot of government and parliamentary time, as have Afghanistan and Ukraine.

But.

At this mid-term moment, a government with a large working majority should be raring to go.

Yet it is not.

It a government that cannot even be confident to block or amend a reference to the privileges committee about the Prime Minister.

As Norman Lamont once said of then Prime Minister John Major, we have a government in office but not in power.

And that was when Major government had a very small majority, not the working majority of nearly eighty of Boris Johnson.

So this could be a significant Queen’s Speech – but its true significance may be about what it does not contain, rather than what it does.

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Why it will really matter when the Prime Minister realised he had misled the House of Commons – even if his four misleading statements were in good faith

22nd April 2022

As the cliché of American political reporting has it: what did the president know, and when did he know it?

Applying this same sort of question to current British politics, it may not be important so much that the prime minister (says he) did not realise he had misled the house of commons on four occasions, but about when he realised he had done so.

Here we need to look at this Twitter thread by the estimable Alexander Horne:

It will be impossible for any sensible person to believe that the prime minister did not realise at the time he misled the commons that he was lying.

Of course he did.

But – let’s pretend that the prime minister inadvertently misled the house of commons and that he believed in the truth of what he was saying.

Let’s pretend.

At some point between then and this week, he would have come to the realisation that he had misled the house of commons.

That might be when he had subsequent advice and briefings in respect of his evidence to the Sue Gray investigation.

It might have been when he had sight of the Sue Gray report.

It might have been when he had subsequent advice and briefings in respect of his evidence to the metropolitan police investigation.

But it is unlikely that the first time he realised was when he received his (first) fixed penalty notice.

Now, let us turn to a curious form of words used by the prime minister last Tuesday in his statement to the house of commons (emphasis added):

“Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules.”

At the time, that the two words “or subsequently” struck me as odd and in need of explanation.

The words did not seem like mere surplusage.

And now, given Horne’s highly useful and informed thread, the meaning of those two words are apparent.

For it is one thing for the prime minister to claim that he did not realise at the time of his four statements that he was misleading the house of commons.

But it is quite another for him to also maintain that he corrected “any inadvertent error at the earliest opportunity”.

At some point between the four misleading statements to the house of commons and last week’s statement, the prime minister became aware that those four statements were not true.

(Of course, he knew at the time he misled the house, but let us continue pretending for the sake of exposition and analysis.)

And if and when the Sue Gray report is published (and/or the briefing given to the prime minister for the metropolitan police inquiry is disclosed) it may become plain that the prime minister did not correct “any inadvertent error at the earliest opportunity”.

Those two words “or subsequently” are going to be doing a lot of work.

For, if it can be shown that even if the prime minister did in good faith mislead the house of commons on each of those four occasions, he also needs to satisfy the privileges committee that he corrected “any inadvertent error at the earliest opportunity”.

And it may be that the Sue Gray report – or other information – may show that is just not true.

Given the powers of the privileges committee, that will not be a comfortable position for the prime minister.

He should brace, brace.

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Partygate and parliament: law and policy, tactics and strategy, privileges and penalties

21st April 2022

Well.

Those were an interesting few days in parliament.

We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.

This government cannot even get political gangsterism right.

Great credit here should go to the opposition parties.

Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.

And had the opposition done so, it would have been defeated – perhaps on a whipped vote.

But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.

And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.

Against this tactical savviness, the government position collapsed.

First there was to be an amendment: but that went.

Then the vote was to be unwhipped: and that went.

And in the end, there was not even a vote.

The motion went through on the nod.

Let’s just think about that.

A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.

Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.

But – in and of itself – that such a motion should go through without any objection is remarkable.

One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.

Another reason is that – as this blog has previously averred – a parliamentary majority is no barrier to Nemesis following Hubris.

Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.

A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.

Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.

The constitutional Wednesday Addams in any of us can only smile at all of this not going away.

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What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.

What do you do with a law-breaking prime minister who has misled the house of commons?

Can this be checked and balanced?

The answer to this should not be a civil servant’s report – however independently minded the civil servant.

Nor should it be a decision by the police to issue a penalty, or not.

It is – rightly – a matter for parliament.

And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.

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The ‘Blackford Paradox’ – how can accusing someone of lying to parliament result in a greater sanction than lying to parliament?

19th April 2022

There was once a Scottish MP whose probing gave rise to the ‘West Lothian question’ – named after his constituency.

Now the situation of another Scottish MP gives rise to a thorny constitutional puzzle.

Ian Blackford, parliamentary leader of the Scottish National Party, was in January 2022 ordered to leave the house of commons because he called the prime minister a liar.

The effect of this stark: there is a greater sanction for a member of parliament who calls a prime minister (or other MP) a liar than there is for a prime minister (or other MP) who lies.

This cannot be right – but it is true.

One reason for this (what I will dub) Blackford Paradox is that the policing of the language used in the house – the speaker – does not have authority over the content of what is said.

The speaker can police tone, not substance.

Another reason is that – sensibly – there are rules in a legislature – as there are in a court room – about how things are said, with the aim of taking the edge off otherwise confrontational situations.

And so there are rules on when MPs can accuse other MPs of dishonesty.

Indeed, if MPs could accuse each other freely of being liars, they would probably not accuse each other of anything else.

But.

These reasons are a triumph of form over substance.

For what can you do with a dishonest prime minister (or other MP)?

There are some procedures for formally making such a serious allegation – as this blog has described before.

But they are cumbersome – and do not lead necessarily to the sanction that was meted out to Blackford.

If a minister or other MP is found to be dishonest, the sanction should be at least as onerous as that which was imposed on Blackford.

Otherwise the polity cannot stand with stability, and the Blackford Paradox will harden into a contradiction, that will exploited by knavish ministers and others.

Whatever happens with ‘Partygate’ there has to be some reform of our constitutional arrangements so that the Blackford Paradox is resolved rather than hardens.

There has to be a change so that lying to parliament is taken at least as seriously as accusing someone of lying to parliament.

And that reform can, in turn, perhaps be named after the current prime minister.

It will be one way to remember him.

 

**

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

*

The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

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So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

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For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

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Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

**

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A close look at the resignation letter of David Wolfson QC as Justice Minister

13th April 2022

The justice minister David Wolfson QC has published a letter:

He is (at least) the third senior legal figure to resign from this government in respect of the Rule of Law.

The Treasury Solicitor and the Advocate General for Scotland resigned when the government sought to introduce legislation to enable it to break the law.

And now a justice minister has resigned because cabinet ministers themselves have broken the criminal law (which is the necessary implication of the Prime Minister and the Chancellor of the Exchequer to not to contest the fixed penalty notices) and seem not to care.

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Wolfson has a very good reputation within the legal profession – and is highly regarded even by those who disagree starkly with his political allegiance.

It is – on any basis – a significant resignation.

But the letter is worth looking at carefully – especially the second paragraph:

These five sentences are perfectly composed and structured.

The first sentence is the general finding of fact: there was not only repeated rule-breaking but also (as rules can sometimes just be for policy or guidance) breaches of the criminal law.

This general finding is incontrovertible – the paid penalties are conclusive proof.

The second sentence then sets out a further finding of fact: the breaches were not merely trivial but were of such a “scale, context and nature” that such conduct cannot pass “with constitutional impunity”.

So not just breaches, but significant breaches.

The second sentence then sets out the factors which go to this significance – that others complied at personal cost, and were prosecuted and even criminalised for lesser breaches.

And, as with the first sentence, what is stated is incontrovertible.

Having established these two conclusions, the third and fourth sentences then distinguish between what happened but also the official response: the implication here is that a more measured official response could have perhaps cured the problem.

But the official response was not measured.

Then having set out the facts, and stated that the official response was deficient, the fifth sentence (somewhat inevitably) then follows – including a deft last stab that the prime minister does not see the problem in the same way.

And the paragraph then ends with the firm stamp of the word “resignation”.

No tiresome “I am resigning because” waffle here – the paragraph ends where other paragraphs would have began.

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Compare this response with that of another government minister – the Lord Chancellor, who has a recognised constitutional role to defend the Rule of Law:

What in Wolfson’s first and second sentences can this custodian of the Rule of Law disagree with?

Indeed, Dominic Raab’s tweet is no doubt a very instance of the “official response” which Wolfson describes in his fourth and fifth sentences.

Wolfson’s letter and Raab’s tweet are a study in contrast: how to take something constitutionally seriously and how not to do so.

Any minister who professes to care about the Rule of Law – including those who are lawyers – must ask themselves: which part of Wolfson’s letter is wrong?

And if they cannot fault its reasoning or its conclusions they should also do what Wolfson did: resign.

**

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