Constitutional law is not supposed to be interesting.
Constitutional law is supposed to be boring.
And Boris Johnson could not make it any more exciting.
To take three examples.
First, the Supreme Court held that he gave unlawful advice to the Queen over prorogation of parliament.
(An incident that managed to engage all four of the monarch, parliament, the courts and the executive – the constitutional law equivalent of a full house.)
Second, his government actually introduced legislation to Parliament to enable it to break the law.
"Yes, this [new legislation] does break international law in a very specific and limited way," says Northern Ireland Secretary Brandon Lewis
And the necessary implication of this sanction is that the prime minister knowingly misled parliament when denying such a gathering took place.
He cannot even say he was misinformed, as he was at the gathering himself.
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Johnson has not been prime minister a long time, and there are many prime ministers who have been in office far longer with far less constitutional excitement.
Of course he should resign – but that is not the point of this blogpost.
The point instead is to convey the sheer magnitude of what Johnson has ‘accomplished’ in his trashing of constitutional norms – and in under three years..
Just one of the above examples – and there have been many more, it is just those three came readily to mind – would be career-ending for a politician in any normal political system.
And that even now nobody knows if he will resign is an indication of how abnormal politics are at the moment.
It takes a certain quality for a prime minister in three years to contrive this triple-whammy of unlawfulness.
Indeed, it is difficult to conceive what he could still yet do as a fourth instalment.
Brace, brace.
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But this does not limit unpaid ministers – or which ministers are invited to attend cabinet.
And there are limits on how many ministers can be paid at each grade:
There is no requirement as to place of birth or nationality.
The former prime minister Andrew Bonar Law was from New Brunswick, which was in Canada by the time he was prime minister.
A more recent prime minister was born in the United States.
(Yes, him.)
And we have had at least two other prime ministers – including the Duke of Wellington – who were born outside the United Kingdom by reason of being born in Ireland before the Act of Union.
There is also no requirement as to usual residence.
And the South African politician Jan Smuts and other Empire ministers were members of a so-called imperial war cabinet in London in the first world war.
Nobody gave any of this a second thought.
Strictly speaking, you do not even have to be a member of parliament (or a lord) to be a minister.
Indeed, technically, ministers are not members of a parliament between the dissolution of an old one and the start of a new one.
(And so the ‘well actually’ answer to the quiz question as who was the last prime minister not to sit in the house of commons is neither Douglas Home nor Salisbury but Johnson in 2019.)
Under Thatcher, the then Solicitor-General for Scotland Peter Fraser once carried on in his office after losing his parliamentary seat in 1987 for two years before becoming a peer, as there were no other Scottish Tory MPs to take the job.
Of course, there is a practical problem of accountability – a minister cannot stand at the front bench unless he or she is a member of either house of parliament.
But in both the commons and the lords it is not unusual to have one minister answering on behalf of another – so not even this practical problem is insurmountable.
By convention cabinet ministers also are or are appointed as privy councillors – but this is not a limitation, as many non-ministers are appointed to be ‘Right Honourable‘.
The ‘Right Honourable” title is sometimes even given to politicians as a consolation prize for not joining the cabinet.
So, in answer to the query mentioned at the start of the post: there is nothing formal stopping anyone being appointed a minister, even to the cabinet.
Even someone who were a Non Dom themselves.
Perhaps there should be formal restrictions: but as it happens, there are not.
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These – in effect – fines appear to be just the first round, and it may be that further penalties are issued.
There may even be one issued to the Prime Minister.
Currently Downing Street is maintaining that no rules were broken – even though these fixed penalty notices mean that the Metropolitan Police have reasonably concluded after investigation that offences have been committed.
Perhaps Johnson and his staffers want ‘their day in court’ before they accept any rules were broken.
This is all engrossing political drama – even political soap opera.
So it is important to not overlook why any of this really matters.
It matters for two reasons.
First, it is about legality.
Those in government are not above the law – and certainly not above the coercive restrictions that almost-casually imposed upon the rest of us during lock-down.
(By ‘casually’ I mean that the rules were imposed often without proper parliamentary debate or scrutiny and were often published at the last moment before taking effect.)
Second, it is about accountability.
The Prime Minister expressly told the House of Commons that rules were not broken and that he was unaware of the pandemic of partying in Downing Street.
On the face of it, it looks as if the Prime Minister was lying.
Of course, in the real world, politicians lie all the time.
But, taking such a cynical view at its highest, there should still be some adverse consequence to a Prime Minister misleading the democratic house of parliament.
‘Partygate’ is only incidentally about parties – the triviality of the circumstances co-exist with serious issues of legality and accountability.
And that is why it has not been obscured by the fog of war.
The problem of legality and accountability is still there, and it needs to be addressed.
And until and unless the problem is addressed, the problem will continue to de-stabilise British politics – because it is not really about partying at all.
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You will be remembered, if at all, for two things.
First, that nobody could ever remember exactly the arrangement of lower-case letters, or the hyphen, or whether ‘term’ was plural, or whether ‘Parliaments’ was singular, in your title – at least without checking.
Second, that you were a singularly useless piece of legislation.
You were to ‘enshrine’ fixed-term parliaments ‘in law’.
Ho ho.
But you were circumvented in 2016, when it suited politicians.
And you were circumvented in 2019, when it suited politicians.
And you were going to be circumvented again and again whenever it suited politicians.
Yes, there may have been an indirect effect in that any circumvention of the Act was not that simple.
But circumventions were not that difficult either.
In the end, you turned out to be more of an ornament than an instrument.
And today you were repealed.
Dissolution and calling of Parliament act 2022 has gained Royal Assent
I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.
There is a powerful public interest in that crime being properly investigated and those guilty being convicted.
Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.
There was a powerful public interest in that miscarriage of justice being exposed and corrected.
And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.
What happens when two powerful public interests such as the above collide?
That was the issue before the recorder of London at the Old Bailey.
On one hand, those police officers investigating the bombings want access to materials held by Mullin.
You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.
But that does not necessarily mean the police should get it.
The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.
Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.
And so the public interest in exposing that miscarriage of justice would have been defeated.
And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.
It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.
Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.
It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.
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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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