One of the features of having an ‘unwritten’ (that is, uncodified) constitution is that there is not often ‘constitutional’ litigation.
Even cases of the highest political significance are decided on technical points of law, with judges affecting to not be concerned about any wider implications.
But sometimes there is a case where the court is conscious of the constitutional significance of the matter before it, and today one such case was decided at the Court of Appeal in Northern Ireland.
The case was about the legality of the Northern Irish Protocol.
At first instance the appellants – a group of pro-Union politicians – lost their challenge to the protocol’s legality, and so they appealed.
One ground was that the protocol was contrary to the Act of Union 1800.
Here part of the court’s summary reads as follows:
“The court said that Parliament was clearly sighted on the Protocol which was the end result of a “protracted, transparent, debated, informed and fully democratic process which decided arrangements for Northern Ireland post Brexit”.
“It said the terms were settled and made law after a long parliamentary process and it could not be suggested that Parliament was unaware of the changes that may be wrought.”
This is important.
Of course, there is a certain artificiality in saying MPs knew what they were voting for in detail – or even cared.
But – almost as a legal, or constitutional, fiction – parliament must have been aware of what it was doing.
And as such it would be wrong for a court to gainsay parliament.
In particular parliament had expressly legislated that previous legislation – including, by implication, the Act of Union – should be read so that they would be subject to the withdrawal agreement legislation.
And if they were subject to the withdrawal agreement legislation there was no conflict – parliament had already stated which provision would have the the priority.
The significance of this judgment is that the protocol is not only legal but also constitutional – which is not always quite the same thing.
The court has set out how the protocol fits within – and does not disrupt – the settled constitutional arrangements of the United Kingdom.
And it has done so not in a judgment cloaked by technicalities and affectations, but with an open acceptance that parliament should prevail.
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On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:
Bob Seely – A number of lawyers, representing oligarchs, have written threatening letters to national newspapers saying that reporting our words can be unlawful & seriously defamatory… they're now trying to intimidate Members of Parliament pic.twitter.com/57G4n3iH4E
“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.
(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)
This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.
The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.
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But.
Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.
The protection is instead ‘qualified’ – and so is subject to a condition.
This condition is (in general terms) that the report – or other repetition – is not malicious.
This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.
The onus is on the claimant to show this malice.
So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.
The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.
But nothing at law stops them issuing the threats.
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How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.
For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.
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There is the eternal question of what constitutes ‘malice’.
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And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.
As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:
I’m not suggesting it’s effective (suspect they will be cautious) but SRA can investigate and prosecute if circs right https://t.co/PDYvF6ORFS
The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:
In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.
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Perhaps there should be further protections.
For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.
Perhaps this should be extended to defamation threats.
And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.
Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.
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None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.
Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.
And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.
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We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.
It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.
But it is gap that has not yet been filled.
And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.
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For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.
Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.
So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.
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Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.
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Imagine a serious piece of proposed legislation, for serious times.
Imagine that legislation is substantial – a Bill of 64 pages.
Imagine that legislation is complex – 55 clauses and 5 schedules (the latter comprising 11 parts).
Imagine that legislation is coercive – creating at least 12 new criminal offences.
Imagine that legislation confers wide executive powers – with 20 “may by regulations” provisions for Secretary of State to legislate by fiat, including in respect of individual rights.
And now…
…imagine that proposed legislation being forced through all its stages in the House of Commons in a single day.
This significant legislation is being rushed through with almost no opportunity for adequate scrutiny by Members of Parliament – just so the government can be seen be doing something about Oligarchs.
This is not how fundamental legislation should be put in place.
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Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.
(Perhaps that is a hint that I should keep these blogposts succinct!)
The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.
When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.
Individuals have rights, and there are things no person or group may do to them, without violating their rights.
And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.
These rights may not be absolute – and property rights especially can be subject to interferences by the state.
But such interferences need to have a lawful and reasonable basis and follow due process.
And this is the same for oligarchs, as it is for anyone else.
That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.
And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.
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As the Russian imperialist invasion of Ukraine unfolds, and as it becomes plain the autocratic hold which Putin has over the Russian state and people, it may not be a good time to point out that – on paper – Russia has a written, liberal constitution.
But let us consider this point any way.
You can look at an English translation of the Russian constitution here (though there have been amendments since this version).
Scroll down – and you will find all the old favourites of liberals and greatest hits of progressives.
You can see almost every provision that would gladden your heart to see written in a codified constitution.
And all…
…completely useless.
For perhaps the least important constitutional thing in any liberal state are the words written down on paper.
More important are checks and balances, by which provisions can be practically enforced against those with political power.
And most important of all is a sense of constitutionalism – the notion that there are political rules that are to be followed, even against the partisan and personal interests of those with power.
Sometimes codification can make a marginal difference in the liberal direction – that because there is a portable instrument certain checks and balances are easier to point to and rely on.
But the difference is only marginal.
A written – that is, codified – constitution is never, by itself, a liberal and progressive panacea.
Just scroll down that Russian constitution, with its nice and attractive ideal provisions, and compare and contrast with reality.
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A planned cabinet meeting was suddenly postponed with ten minutes to go and – this is the important thing – this was done before the glare of the public.
The reason appears to be a policy row between the Chancellor of the Exchequer and the Health Secretary.
Before we look at why this is unusual – and what it signifies constitutionally – let us first look at what is not unusual about this.
It is not unusual for cabinet ministers to disagree – even about major policy issues.
Such disagreement is routine – and it is even to be expected, especially between a finance department and a spending department.
And because such disagreements are a commonplace, there are mechanisms in place to resolve these tensions before they become public contradictions.
One mechanism is ongoing informal (and sometimes even formal) exchanges between the Exchequer and the other department.
Another mechanism is the system of cabinet committees and sub-committees where differences are discussed and agreed positions arrived at – sometimes under the chair of the Prime Minister (or Deputy Prime Minister).
And the third mechanism is the assertion of prime ministerial authority (in theory ‘cabinet collective responsibility’ – where the defeated Chancellor or minister just has to to take it – or leave the cabinet.
Here think about Michael Heseltine’s dramatic departure from Margaret Thatcher’s cabinet over the Westland political drama.
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Today, however, none of these mechanisms appear to have worked.
And so we had the undignified public difference, and a full cabinet meeting suddenly had to be postponed.
The ongoing informal (and sometimes even formal) exchanges between the Exchequer and the health department seem to have failed.
The system of cabinet committees and sub-committees seem to have failed.
And prime ministerial authority also seems to have failed – indeed the Prime Minister seems to have been unaware of the difference.
Something is wrong – seriously wrong – in the business of government for this row to have manifested itself publicly today with the real effect of an unexpectedly delayed cabinet meeting.
It is a signal – and it signifies things may not be well with the constitutional processes that regulate the common differences between Whitehall departments.
And that, from a constitutionalist perspective, is a worrying signal indeed.
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A senior ally of Boris Johnson has said the Metropolitan Police will need to be 'very certain' that he has breached lockdown rules before issuing an FPN
'There is inevitably a degree of discretion here. Do you want the Met Police deciding who the prime minister is?'
But perhaps the most striking thing is that such an utterance was made at all.
The journalist is experienced and well-regarded, and so we can safely assume this was said by someone.
Journalistic convention means “senior ally” could mean a range of people – including Boris Johnson himself – but it would be someone significant.
And what is this “senior ally” doing with this speech act?
Well.
It appears that they are seeking to influence the police investigation.
Indeed, in this context, the statement quoted could even amount to an attempt to intimidate or otherwise wrongly place pressure on the police.
You may remember that the Prime Minister said that there would not be “a running commentary” on the police investigation.
Well, this quoted remark is more of “a getting carried away” commentary.
The correct position for the police would be to disregard such a statement – though it may irk them into imposing a sanction just so to show their independence.
And the correct position at Johnson’s end would be for a “senior ally” to have not said this at all.
But looking at the two Swinford tweets above, you get the sense that this is some “barrack-room” (or “cabinet-room”?) non-lawyer coming up with some clever-clever line – though one which would not survive contact with legal reality.
Such spinning and framing may work with the lobby, and thereby influence media processes, but it will not work with a legalistic process.
Wrong tool, wrong job.
Since that reported statement, it would seem wiser “allies” are aware of the unfortunate impression that statement gave:
Breaking:
Number 10 spokesperson says Govt 'fully respects' independence of police to carry out inquiries 'without fear or favour'
'This government has always backed the police and fully respects their complete independence to carry out inquiries without fear or favour'
That Downing Street even had to put out such an assurance is, by itself, telling.
It tells us that there are some in Number Ten who realise the legal danger the Prime Minister is in – and that effectively taunting the police is not a sensible tactic.
Perhaps this strange moment will be forgotten – but what may linger is the sense that Johnson – either through his “senior allies” or otherwise – has a lack of seriousness about his legal peril.
That grave problems can be got out of by such desperate expedients.
Johnson and his “senior allies” should brace, brace.
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This evening the Commissioner of the Metropolitan Police announced their resignation.
Good.
This was the senior police officer who supervised the operation that resulted in the murder of Jean Charles de Menezes and who obstructed the work of the Daniel Morgan inquiry.
This was the senior police officer who acted more like a shop steward for their police officers rather than the people’s commissioner of the police.
They were forced to resign.
Good.
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But.
There is a problem here beyond the failings of this one senior police officer.
A structural problem about how the Metropolitan Police is a law unto itself – an effectively ungovernable mass of individuals permitted to routinely inflict coercive force on others without any meaningful accountability.
Yes: it is a Good Thing that the police are not under the direct power of any minister or other politician – that the police have absolute operational independence.
But this absolute operational independence should not be at the cost of an absolute lack of accountability.
Power tends to corrupt, and coercive power tends to corrupt absolutely.
As and when there are failings of the Metropolitan Police there is a mix of defiance (the “thin blue line” or “not in their shoes”), evasion and misdirection, and sometimes outright misinformation.
Any response, in fact, other than accepting and owning mistakes.
And these are the officers who can inflict their coercive powers on others on the basis of mere ‘reasonable suspicion’ – but refuse to be accountable to the public even on the basis of virtual certainty.
How do you solve this problem?
How do you have a police force that is operationally independent of the government – but also does not become an unaccountable abuser of its own powers?
Who should watch the watchmen – and how?
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The constitution of the United Kingdom is a strange thing.
As a matter of constitutional theory, it hands a Prime Minister with a substantive majority two powerful weapons: the royal prerogative (and associated patronage, such as appointing and sacking ministers) and the doctrine of parliamentary supremacy.
On the paper page of the textbook, there is little that would check or balance a determined Prime Minister unwilling to play along with conventions.
But.
The constitution of the United Kingdom also spits out Prime Ministers between general elections.
Indeed, since 1982 – forty years – more Prime Ministers have lost office between general elections than because of general elections.
Thatcher (1990), Blair (2007), Cameron (2016) and May (2019) all lost office between general elections, while only Major (1997) and Brown (2010) have lost office at a general election.
And this week just gone, it looked as if the current Prime Minister would also lose office – even though he won a thumping majority in 2019.
There is no doubt that he is politically weak – and the spate of recent Downing Street resignations do not signify anything positive for him.
And it is obvious that a significant number of his own parliamentary party do not want him as Prime Minister.
It would seem less than a majority of the Commons wants him to personally continue as Prime Minister.
Yet: is he constitutionally weak?
Can he hold on, if he is really determined to do so?
The obvious means of his departure would be a no confidence vote by the parliamentary Conservative party.
An alternative means would be – say as with Thatcher – that he realises he has little or no ministerial support and resigns – though this unlikely given the cabinet are perhaps the only ones who will support him.
If there is not a confidence vote by the parliamentary Conservative party – or if there is one, and he wins – then we would be in interesting constitutional territory.
The nearest examples I can think of are the minority administrations of Callaghan (in the period before 1979), Major (in the period up to 1997) and May (2017-2019) – where there were Prime Ministers in office but not with power.
Perhaps like Callaghan and Major he will linger on, even though there was not a majority in the Commons in favour of him personally remaining (as opposed to a majority in the parliamentary Conservative party).
Perhaps there could then be a parliamentary vote of no confidence – but it is difficult to see Conservative MPs risking a general election just to get rid of Johnson as leader.
So: it is not clear what will happen if he lingers on.
What do you think?
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Every time there is some political drama there will be those who will make a critical comment and then add “and that is why we need a written constitution”.
They will. no doubt, nod as they type this, and many will also nod as they read it.
There is no political problem imaginable to which somebody will not say “and that is why we need a written constitution’.
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In my commentary I have been sceptical of this stock response.
So critical that some companion commentator will make the accusation that I am against “written” – that is codified – constitutions.
“Look at all this,” they will say as they survey that day’s political devastation, “look at all this, how can you be against a written constitution?”
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As we look down together at the smoking ruins left by that day’s political events, I wonder if they have a point.
But this is what I would mutter in response :-
“I am not – actually – against a codified constitution for the United Kingdom.
“Not in principle.
“My two primary reservations are that, first, there is no mechanism – given the doctrine of parliamentary supremacy – for enacting or entrenching such a constitution.
“It would only be an Act of Parliament away from repeal or wrecking amendment.
“There is therefore no point in such make-believe.
“And second, a codified constitution can entrench executive power and make it more difficult to check and balance that power.
“A written constitution in our current post-Brexit hyper-partisan politics would simply be gamed by the authoritarians.
“Codified constitutions are not necessarily liberal and progressive devices.
“A codified constitution is not a panacea.”
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My companion would shake – not nod – their head and say :-
“Fine – you say you are not against codified constitutions in principle.
“But.
“Just look at all this – the collapsed institutions and smouldering conventions.
“The disregarded checks and toppled balances.
“This is the direct consequences of there not being any codification.
“The knaves can do as they wish, and the fools cannot stop them.
“What you get wrong is that you miss that un-codified constitutional arrangements can also be good and bad.
“And what we have here is, in practice, bad constitutional arrangements.
“Un-codified constitutions are also not necessarily liberal and progressive devices.
“An un-codified constitution is also not a panacea.”
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My wise companion may have a point – and their views are unsettling, even disconcerting.
The problem of enactment and entrenchment would remain – well, as long as our national constitutional faith is in the doctrine of parliamentary supremacy.
But an un-codified constitution requires – instead of some portable document – a general sense of constitutionalism.
By which I mean: a sense that there are political rules which are more important than party advantage and personal advancement.
And if constitutionalism no longer has any purchase, then I have to concede an un-codified constitution can be just as illiberal and reactionary as any executive-biased codified constitution.
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“Hmmm,” I say to my wise companion, “you may have a point.”
We then watch as the surviving political debris all crashes to the ground.
“Brace brace,” they say.
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