Category: Constitutional Law

Six reasons why those who want to shift the relationship between the United Kingdom and the European Union need to now think in five-year cycles

29th December 2020

Imagine you are in some remote rural area where the bus or train only comes on a given day at a given time.

This is what it will be like for those who want to substantially change the relationship between the United Kingdom and the European Union once the trade and cooperation agreement is in place.

But instead of the the weekly or monthly bus or train, this cycle will be every five years.

And if that opportunity is missed, then it will be another five years before the opportunity comes around again.

This is because of one major reason – and also (perhaps) because of five other reasons.

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The first reason, as this blog set out yesterday, is that the European Union itself works in five-year cycles.

Each European Commission is appointed for five years and each European Parliament is elected for five years.

The Presidents of the European Council tend to also have five-year terms.

And after each five-year cycle, the European Union project is then (in effect) handed over to a new European Commission and President of the European Council.

It would thereby appear to be no accident that the review cycle for the trade and cooperation agreement is five years.

This means the European Union’s relationship with the United Kingdom will be dealt with in a manner that is convenient to Brussels and not London.

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This leads to the second reason.

The United Kingdom is no longer sufficiently important to disrupt the normal European Union political and policy life-cycle.

This will come as a shock to many in the United Kingdom who are used to demanding time and immediate attention from the European Union.

From the supposed re-negotiation of 2016, through the withdrawal negotiations, to the relationship negotiations, the European Union kept responding to the sound of the clicking fingers of the United Kingdom.

And the European Union had to do this, as the departure of a Member State could not be taken lightly.

But this effortless priority is now over.

Any substantial changes to the new relationship will have to fit in with other matters and be dealt with at what is the natural pace of Brussels.

And, in any case, many in the European Union are bored and tired of Brexit.

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The third reason is that it is only with five-year cycles that the European Union will be able to assess the stability and sustainability of any United Kingdom political and policy position on the European Union.

Even if there were some sudden political shift in favour of the United Kingdom joining, say, a customs union or becoming part of the single market, the European Union would want to see if that was a settled and consensual position.

The European Union is all too aware of the rapid convulsions that the European Union issue can cause to the politics of the United Kingdom.

Remember that in 2015 there was a general election in the United Kingdom where every major party was in favour of membership of the European Union – and three prime ministers and two general elections later, the United Kingdom is no longer a member state.

And 2015 was, well, five years ago.

The European Union has no interest in a substantial shift in its relationship with the United Kingdom which could quickly become undone.

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The fourth reason is also to do with the United Kingdom.

Will there even be a United Kingdom of Great Britain and Northern Ireland in five or ten years’ time?

As this blog has previously averred, two natural consequences of Brexit are a united Ireland and an independent Scotland.

These are not things which will necessarily, still less automatically, happen.

But they are foreseeable.

And so five-year cycles will allow the European Union to see not only how the politics and policies of the United Kingdom settle down, but also how the United Kingdom itself and its constituent parts settle down.

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And this structural point goes both ways – for the fifth reason is that the European Union itself in five and ten years’ time may itself be a different creature to what it currently is.

Freed from the reluctance and relentless scepticism of the United Kingdom, the European Union can now go in a different direction.

And so not only will the European Union want to see what the United Kingdom is like in five and ten years’ time, it will want to see what its own position will be like.

It will not be re-fighting the issues of 2016 or 2020 in its engagement with the United Kingdom, like some geo-political historical re-enactment society.

Regardless of what changes (if any) happen within and to the United Kingdom, the European Union will be thinking in terms of what suits it in 2026, or 2031, or whenever.

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The final reason is beyond the power of both the United Kingdom and the European Union.

In 2026, and in 2031, and so on, the world itself may be very different from now.

Many things may be different: a post-Trump (or revived Trump) United States, a post-Putin (or retained Putin) Russia, China becoming (or not becoming) the world’s largest economy, ongoing pandemics and climate change, and so on.

It may then suit the European Union and the United Kingdom to huddle together – or to huddle apart.

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In setting all this out, I do not wish to give false hope to Remainers/Rejoiners that if with sufficient focus and energy, they could shove the United Kingdom back towards the European Union in 2026 or 2031 or so on.

Indeed, the five-year cycle could even lead to greater divergence.

(And there is a non-trivial chance the United Kingdom may terminate the relationship agreement with one year’s notice.)

But if there is to be a closer relationship – or even an eventual application to rejoin – the United Kingdom will have to have regard to the five-year cycles of the European Union.

As I mentioned above, the days of snapping fingers for attention are over.

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My own view, for what it is worth, is that I hope the five-year cycle leads to an increasingly solid and sustainable association arrangement between the United Kingdom and the European Union – and that it becomes something that endures perhaps longer than the actual membership.

And I hope that the five-year cycles are used to adjust the relationship appropriately.

(I also support an Ireland united by consent and an independent Scotland and Wales, and these developments will also, in my opinion, be easier with an association agreement between United Kingdom (or just England) and the European Union.)

But these are mere hopes, and they can be dashed or discarded.

What is and will be in place, regardless of hopes (or fears), is that it will not be quick and easy for the United Kingdom – or England – to move substantially towards the European Union, let alone rejoin.

The eventful, exhausting 2016-2021 Brexit five-year cycle is over.

Let us see what future five-year cycles bring.

*****

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This agreement is not the end of Brexit, it is a five year political truce

28th December 2020

More is now becoming apparent of the nature of the draft trade and cooperation agreement between the European Union and the United Kingdom.

This post looks at two fundamental issues: structure and duration.

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In regard of structure, let us start with what is expressly stated as the ‘purpose’ of the agreement:

‘This Agreement establishes the basis for a broad relationship between the Parties […]’

The word ‘broad’ is significant, especially when one looks at the following provision.

This provision expressly provides that it is envisaged that there will be ‘other’ agreements that will both ‘supplement’ this agreement but will be subject to this agreement.

The key word here, at the end of the numbered paragraph, is that this agreement is a ‘framework’.

As such it is not, and is not intended to be, a once-and-for-all agreement, setting out all the terms of the post-Brexit relationship between the European Union and the United Kingdom.

This will not surprise many (no doubt they are already scrolling down to type ‘why is this a surprise?’ in the comment box below) but it is significant – and consequential – and needs spelling out.

This is explicitly not an agreement which shows that the United Kingdom has, in one single bound, ‘taken back control’ and become free.

The agreement instead shows, even in its first two substantive provisions, that Brexit will be an ongoing negotiation, maybe one without end.

All this agreement does – expressly and openly – is provide a ‘broad…framework’.

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Once this is understood then other parts of the agreement make sense.

For example, there are numerous specialised trade committees set up for various sectors.

Loads of talking shops.

But some have rightly noted that some sectors do not have specialised trade committees.

The specialised trade committees which have been set up, however, oversee certain parts of the agreement.

So, if a sector is not the subject of other provisions in the agreement, then there will not be a specialised trade committee to oversee that sector.

(This is akin to, say, parliamentary select committees that are set up to mirror government departments.)

The reason, therefore, there is not a financial services specialised trade committee under this agreement is that there are no substantive provisions under this agreement on financial services (yet) for that committee to monitor.

If and when there is a ‘supplementary’ agreement on financial services, for example, there will be a corresponding new specialised trade committee.

That new committees can be formed is expressly provided for in the powers of the partnership council, that can ‘by decision, establish Trade Specialised Committees and Specialised Committees’.

The agreement, therefore, envisages both new supplementary agreements and new specialised committees.

(And these envisaged potential extensions are elsewhere in this agreement.)

In other words, this agreement is intended and designed to be a dynamic arrangement between the parties, where areas of trade and cooperation can change and indeed become closer (or less close) over time.

This means one consequence of Brexit is that the United Kingdom has swapped the dynamic treaties of the European Union which envisages things becoming closer (or sometimes less close) over time for a new ‘broad…framework’ dynamic agreement that also envisages things becoming closer (or sometimes less close) over time.

And this is part of the design, as the examples above show.

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There is more.

Not only is the agreement envisaged and designed to be dynamic over time, it will also be subject to five-yearly reviews.

So slow, incremental changes within five periods will be complemented by possible far more substantive shifts every five years.

This again is part of the design.

Buried on page 402 of the agreement:

“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”

And once you realise there is this five year cycle, you notice it elsewhere in the agreement.

There are numerous references to ‘2026’ and ‘five years’.

And as John Lichfield has pointed out in this significant and informative thread, 2026 is also a significant date on the fisheries question:

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Five year periods, of course, accord neatly with the five year cycles of the European Union.

The European Commission is appointed for a five year term, for example, and the European Parliament is elected every five years.

Each President of the European Council also tends to serve a five year term.

So this five year cycle of reviews is convenient for (and is no doubt designed to be convenient for) the European Union.

Each Commission, each European Parliament, and each President of the European Council, will have its turn to shape the relationship with the United Kingdom, before handing it onto the next.

The five year cycle also may suit the United Kingdom.

The Fixed-term Parliaments Act provides that each parliament should last five years – though, of course, this statute is set for repeal.

But, in any case, the politics of the United Kingdom generally tends to follow cycles of four to five years.

And if Fixed-term Parliaments Act stays in place, the next general election is in 2024, just in time for the run-up to the next review of the agreement.

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The trade and cooperation agreement is expressly and openly designed to have both small changes within five year cycles and potentially big changes every five years.

As such, this agreement is not the end of Brexit.

The agreement is not (and is not intended to be) a once-and-for-all settlement of the relationship between the European Union and the United Kingdom.

It is instead – deliberately – a dynamic agreement, capable of enabling closer union (or less close union) over time.

The five year cycles accord exactly with the convenience of the terms of the European Union and also roughly match the political cycle of the United Kingdom.

This agreement does not bring Brexit to an end, it is instead a five year political truce.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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The coded criticisms of the Attorney-General from both the Lord Chief Justice and the Court of Appeal

17th December 2020

The office of Attorney-General is at the very crossroads of law and politics.

As a lawyer, the Attorney-General is the government’s chief legal adviser and, by convention, is the head of the Bar of England and Wales.

They superintend the Crown Prosecution Service, and they can (and do) initiate contempt of court proceedings against the media.

A further role is that they can act in proceedings where they represent the public interest and/or the government.

They also can decide to refer cases to the court of appeal where it appears a criminal court has been ‘unduly lenient’ in sentencing.

These are all important – crucial -tasks and so it follows that these roles must be taken seriously.

The Attorney-General is, however, also a politician – usually a member of parliament but sometimes a peer – and one who attends the cabinet.

It is a job therefore where the holder has to wear two hats – or horsehair wigs.

And it is not an easy task even for senior politicians and experienced lawyers.

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The current Attorney-General is neither a senior politician nor an experienced lawyer.

This, of course, is not their fault – although some in this position if they were offered the office would not take it.

The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.

This blog has previously set out how the current Attorney-General should have resigned when they unapologetically tweeted in respect of a case of a political ally who was then subject to a live police investigation.

That really was not what the superintendent of the Crown Prosecution Service should be doing.

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There is now a further example of how the current Attorney-General is undermining their office.

Here there are three texts that are of interest.

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First, here is a Daily Express article from 7th November 2020: Attorney General to appear at Andrew Harper’s killers appeal hearing next week.

In the body of that article, under the byline of a political editor, was the following:

‘A friend of Ms Braverman’s told the Sunday Express:

‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.

‘“She made it clear she wants to be there to underline how important this issue is to the ‘government and how seriously it takes this case.

“If the judges uphold the original sentences then she will have still done the right thing and it will be another example of wet, liberal judges being soft on criminals.”’

As is widely known, ‘friend’ is a code in political journalism for either the politician themselves or someone speaking on their behalf, such as a special adviser.

As far as I am aware, this quote has not been disavowed by the Attorney-General.

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Second, here is a speech on sentencing by the Lord Chief Justice made on 9th December 2020.

Here are two paragraphs from this informative and accessible speech (asterisk and emphasis added):

‘Were the mythical alien to arrive on earth and, I grant you yet more improbably, take an interest in sentencing in England and Wales by reading the newspapers and dipping into the more noisy parts of on-line media, it would soon gain the impression that sentencing had got softer in recent years. It would read about “wet, liberal judges being soft on criminals” (*) and wonder why criminals convicted of serious offences were getting more lenient sentences than they used to. Then our alien visitor might seek some other sources of information, and if possessed of a brow it might become furrowed.

‘There is a difficulty with this narrative. It is a myth.’

The Lord Chief Justice then proceeds in his speech to demonstrate how sentencing has certainly not got softer.

But who was the judge quoting about “wet, liberal judges being soft on criminals” ?

The quotation is footnoted (where I have inserted the asterisk), and the footnote reads:

‘Sunday Express 8 November 2020, quoting a source.’

The Lord Chief Justice is here publicly dismissing – perhaps even deriding – the ‘friend’ of the Attorney-General who in turn is describing the Attorney-General’s motivation for intervening in a criminal sentencing case.

For the head of the judiciary to be doing this openly to the government’s chief legal adviser and holder of the ancient office of Attorney-General is an extraordinary public intervention.

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And now we turn to the Court of Appeal judgment in respect of the sentencing of those who killed the police constable Andrew Harper.

The facts of the case are horrific.

Three were convicted of manslaughter, though a jury acquitted them of murder.

And so the three were sentences in accordance with the guidelines for manslaughter.

The Attorney-General, as the Daily Express article describes, exercised one of their powers and referred the sentences to the court of appeal on the basis of the sentences being ‘unduly lenient’.

The Attorney-General then – oddly for a barrister with no substantial criminal law background – appeared personally at the hearing.

There are three paragraphs of the judgment of interest in respect of the contribution and role of the Attorney-General.

Paragraph 57:

‘In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern. She outlined four points, about which Mr Little QC then made submissions.’

Here the court are not even deigning to describe the Attorney-General’s contribution as submissions – a ‘submission’ is something one submits to the court for consideration – but merely as remarks.

(The Supreme Court adopted a similar remarks/submission distinction when a former Attorney-General appeared (out of his depth) at the first Miller case: ‘Following opening remarks made by HM Attorney General, Mr Eadie QC in his submissions on behalf of the Secretary of State, did not challenge much if any of the factual basis of these assertions…’ – paragraph 57 here.)

We now turn to the submission that were made, if not personally by the Attorney-General, but by another barrister on their behalf.

Paragraph 83 (emphasis added):

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline.

Just as political journalists have their codes, so too do judges.

And to describe as position as ‘striking’ is to say that it is barking – and the rest of the paragraph explains why.

In essence: unduly lenient sentences are those which depart from the guidelines and not those made in accordance with them.

This is then followed by paragraph 84 (again emphasis added):

‘That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.’

Here ‘unusual’ means, in effect, beyond barking – and again the rest of the paragraph sets out why.

These are obvious points and would have been plain to government lawyers.

But as ‘friend’ of the Attorney General said, ‘[s]he was met with strong opposition from civil servants to pursue this case’.

And paragraphs 83 and 84 set out why.

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Taking these three texts together we can see that the judiciary are alert to the motivations of the Attorney-General and are resistant to the attempts to politicise the office, and that the judiciary will be unafraid to reject ‘striking’ and ‘unusual’ submissions made on behalf of the Attorney-General.

The judges are not stupid or unworldly – they know exactly the import of coded criticisms in public speeches and judgments.

The Attorney-General may be sending signals, but so are the judges.

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But this Attorney-General will not care.

The political job is done – and one can imagine the claps and cheers of the ‘friend’ quoted in the Daily Express article. 

She took on the ‘wet, liberal judges being soft on criminals’.

But this political job has been done at a cost.

Although a politician, the Attorney-General is entrusted with highly important decisions in respect of not only referring ‘unduly lenient’ sentences, but also in respect of many other legal matters, from contempt of court to the operation of the crown prosecution service.

But the conduct of the current Attorney-General is such that their credibility as a decision-maker capable of making such decisions on the appropriate basis is open to doubt.

This quick win for a political ambitious Attorney General is at the cost of the standing of their office.

The Attorney-General is weaponising her legal responsibilities for political purposes.

This is a remarkable, striking and unusual predicament.

And given that the Attorney-General is not only doing this recklessly but with apparent enthusiasm means that there is no reason for anyone watching it happen in real time to be unduly lenient.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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Section 007 – how the government authorises criminal activity by its agents, and a telling recent disclosure

16th December 2020

One theme in recent law and policy has been for the government of the United Kingdom to increasingly place itself and its agents above or beyond the law.

There is, of course, a certain hypocrisy in this given how loudly ministers shout about ‘Law and Order!’.

Sometimes this is done subtly, with limits on the scope judicial review, the law of human rights, and the entitlement to legal aid when one is challenging public bodies.

But sometimes it is done quite openly – indeed brazenly.

One example is the current attempt – which I explain in this video for the Financial Times – to make it effectively impossible to prosecute members of the armed forces for war crimes and torture.

 

Another attempt – though it has just been dropped – was to enable ministers to issue regulations that would break the Brexit withdrawal agreement.

And another attempt is the current Covert Human Intelligence Sources (Criminal Conduct) Bill before parliament.

The long title of the Bill expressly states that it is to:

‘Make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.’

The Bill provides for ‘criminal conduct authorisations’ which are defined as ‘authorisation[s] for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

On the face of the Bill there are no exempt criminal offences – and so, in theory, they would include murder, war crimes and torture.

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At this point one can imagine senior security officials with kindly faces and reassuring manners telling us that, of course, no such offences would ever be committed.

But.

It is a matter of public record that the United Kingdom state was complicit in the murder of civil rights lawyer Patrick Finucane in 1989.

The United Kingdom state has also been complicit in the torture of civilians, in Northern Ireland, Kenya and Iraq.

The sheer volume of accumulated historical evidence is that, yes, we really should be worrying our little heads about what the United Kingdom state and its agents are capable of when they think it can get away with it.

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And there is now a more up-to-date reason to be concerned about the lack of effective controls and accountability.

Here the relevant provision is the wonderfully numbered section 007 of the Intelligence Services Act 1994.

(Ok, it is section 7 – but it amuses me.)

This provides for ministerial authorisations for people to break the law outside the British and Irish isles and then not have any criminal or civil liability for those acts in the United Kingdom.

It is a remarkable and little-known provision, and is worth a good look.

This is the so-called ‘licence to kill’.

And, of course, senior security officials with kindly faces and reassuring manners will tell us that the power would never be abused, and that those granting the authorisations will only do so on the basis of full information.

But as set out in yesterday’s Guardian, there has been a problem.

This was spotted by the fine organisation Reprieve, hidden away on page 59 of a dense 168 page report, in two paragraphs 9.39 and 9.40 (emphasis added):

‘9.39 We reviewed a section 7 submission relating to a high-risk SIS [Secret Intelligence Service] agent case overseas. SIS identified a risk that the agent may be involved in serious criminality overseas. SIS did not encourage, condone or approve any such criminality on the part of their agent. In their submission, SIS set out that they had secured the agent’s cooperation on terms of full transparency about the activities in which the agent was involved. It included some clear ‘red lines’, setting out conduct that was not authorised and would result in the termination of SIS’s relationship with the agent.

‘9.40 On renewal, six months after the original submission, SIS set out a number of indicators that the agent may have been involved in, or have contemplated, the serious criminality referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’ had most likely been breached, but the renewal submission failed to make this clear. Whilst the submission referred to SIS’s ‘red lines’ provided information about criminality that may have occurred and noted an increased risk in the case, it did not make expressly clear that SIS’s ‘red lines’ had probably been crossed. We concluded that the renewal did not provide a comprehensive overview of available information which we believe would have provided the Secretary of State with a fuller and more balanced picture. SIS immediately responded to these concerns by updating the FCO.’

Or, as the Guardian rightly put it:

‘MI6 failed to make clear to the foreign secretary that a “high risk agent” operating overseas had probably engaged in “serious criminality” until it was pointed out by an independent regulator last year.’

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This means that there is very recent evidence that the United Kingdom security services do not provide appropriate information to those making authorisations in respect of criminal activity.

If this is happening with section 7 authorisations for foreign law-breaking, there is no reason to believe this will not also happen under the current bill providing for authorisations for domestic law-breaking.

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The United Kingdom government has recently put forward legislative proposals for limiting torture and war crimes prosecutions, authorising criminal conduct for agents of the security forces, and even for powers to break the Brexit withdrawal agreement.

There has never been a government that has put so much legislative effort into making it possible to break laws rather than into making laws.

***

Remembering David Cornwell – John le Carré – who would not be surprised at any of this.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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The shoddy legal direction of Gavin Williamson to Greenwich Council

15th December 2020

Amidst the flurry of government regulations closing down various things during the current pandemic comes this very different legal instrument from Gavin Williamson, the Secretary of State for Education.

Instead of ordering a thing to close, the Secretary of State is ordering things to stay open.

It is an extraordinary letter, and it is worth examining carefully.

(As a preliminary point, however, please note I am not an education law specialist and so there may be sector-specific legal aspects of this of which I am unaware – the examination in this post is on general legal principles and based on my experience as a former government lawyer and as a public lawyer generally.)

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First, let us look at the power on which the Secretary of State relies upon.

It would seem there is no general legal power for the Secretary of State to order that any school remain open (or close), and so the letter relies on a specific provision in the Coronavirus Act 2020.

(If there were such a general legal power to issue such a direction, then presumably the Secretary of State would rely upon that power instead of the Coronavirus Act 2020.)

The relevant section of the Act is section 38.

The relevant part of that section is section 38(1)(a) which provides for a power to enable the Secretary of State to give directions requiring the ‘provision, or continuing provision, of education, training and childcare’.

That provision in turn refers to a paragraph in a schedule to the Act.

(This is not a ‘paragraph’ as such – it is a wordy provision which goes on for three pages, like something from a W. G. Sebald book.)

The paragraph sets out in detail the requirements for a ‘temporary continuity direction’ under section 38 – like a checklist.

For example, the Secretary of State must have regard to medical advice (paragraph 1(3)(a) and the direction must be necessary and proportionate (paragraph 1(3)(b).

The direction can require the recipient to take ‘reasonable steps in general terms’ (paragraph 1(4)(a)) and require a relevant institution to stay open or to re-open (paragraph 1(4)(b).

There is also a catch-all power that the Secretary of State may make any other connected provisions which he or she ‘considers appropriate’ (paragraph 1(4)(i)).

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What is the duty of the recipient of such a direction?

The Act provides that it is ‘the duty of a responsible body or relevant institution to which a temporary continuity direction…to comply with the direction’.

How is this duty to be enforced?

If the recipient does not comply with a direction, the government can make an application to the courts for an injunction.

(Both the above are in paragraph 1(6) of the schedule.)

This would, of course, be an unusual injunction – most injunctions prohibit a person from doing a thing, while this will be a rarer ‘mandatory’ injunction requiring a person to do a thing.

A failure to comply with an injunction is, at law, a serious matter and can be a contempt of court, with (presumably) sanctions such as imprisonment and unlimited fines.

A breach of a mandatory injunction may also result in a court directing that the required act be completed by another person at the expense of the disobedient party (CPR 70.2A).

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This looks like a wide and arbitrary power for the Secretary of State to give directions, with serious sanctions for a breach of a direction.

But if you look carefully there are explicit statutory requirements for the Secretary of State to be reasonable and to use this power only where necessary and proportionate.

These requirements are also imposed by the general law.

These will be quite high hurdles for the Secretary of State to jump.

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Going back to the letter, you will see that in paragraph 2 of the letter the Secretary of State asserts that he ‘considers [the direction] to be reasonable’ – but there is almost no reasoning other than a general reference to a general interest (‘of securing that schools…allow pupils to attend school full time’ ) and a general reference to the Secretary of State’s guidance (but with no specific guidance quoted).

There is also no local data.

Any court would expect to see far more reasoning than this before enforcing such a direction with a mandatory order.

For example, can the education of the pupils not be done remotely?

Has proper regard been made to local conditions?

Is it proportionate and necessary to mandate a school to remain open with only days left in the school term?

Is it fair and equitable (a test of most injunctions) to insist a state school remain open when many private schools remain closed?

These are not ‘gotcha’ questions, but points which one knows a court will ask before granting an injunction – and so should be anticipated and covered in a letter threatening an injunction.

But there is nothing in this letter to meet these obvious and foreseeable questions that would need to be answered in court.

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This direction then, even if it is the right thing for the Secretary of State to order, is not a well-drafted piece of legal work.

If i were still a government lawyer I would have been embarrassed to have prepared this for a minister.

It is not enough to assert that a thing is reasonable, necessary or proportionate – these statutory requirements for a direction also need to be shown.

*

The recipient of this letter – Greenwich Council – has already published an initial response.

Their initial response is as detailed as the Secretary of State’s letter is not.

“Yesterday we asked all schools in the Royal Borough of Greenwich to move to online learning for most pupils, but keep premises open for the children of key workers, vulnerable children and those with special educational needs. 

‘Other boroughs have asked schools to take similar measures, and the Mayor of London has also called for all secondary schools to close, with an extra week off in January to enable testing.  

‘Our request was based on information from Public Health England and supported by the Council’s Public Health team. In the Royal Borough of Greenwich, we currently have the highest rates of COVID-19 since March, with numbers doubling every four days. Our seven-day infection rate for the borough is now 59% higher than at the same point last week. 

‘Infection rates are particularly high amongst young people, with 817 children of school age testing positive for COVID-19. 4,262 children and 362 staff are self-isolating – that’s an increase of 640 people since Friday. In many cases, other members of the child’s household have also tested positive, impacting entire families. 

‘Schools across the borough have now organised online learning from tomorrow, whilst others are opening their premises to all pupils. This evening we received a legal direction from the Government to withdraw our request to schools. We are in the process of seeking legal advice and will respond to the Government in the morning.  

‘We have alerted schools, and will speak to them tomorrow. But given we received this notification just before 5pm, it was impossible to ask schools to change any of the arrangements they have in place for Tuesday.’

The person(s) who drafted that response have done a good job: they are showing how the closure is reasonable, necessary and proportionate.

The response is based on local data and shows that reasonable alternative arrangements have been made.

The response also shows the council is in a better position to asses the situation than the Secretary of State.

*

On the basis of information in the Greenwich Council response, the government would be hard-pressed to obtain an injunction in support of their direction.

None of the above is to say that the government’s ultimate position is weak – a better prepared direction, based on local data, and with proper and detailed reasoning, may have been – or still be – possible.

But such a direction letter was not sent, and this shoddy one was sent instead.

The Secretary of State may issue a better direction – or government lawyers may turn up to court with a better application for an injunction.

The government is even threatening to go to court ‘without notice’ so that the council may be subjected to an injunction without any say in court, which would be inappropriate given the council have set out already that it believes it is acting reasonably.

*

Ministerial directions are powerful legal instruments, but they should always be used with care.

When I was young I often had reports sent from school averring that I could do better.

But here we have what purports to be a formal government direction sent to keep schools open where one could say of the Secretary of State that they could do better.

*

POSTSCRIPT

Sadly – at least for the legal commentary (at least) the council has decided not to contest the direction in court.

The council, of course, is entitled to take such a decision.

But its decision to comply with the direction does not take away anything from the critique above.

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European Union law and the United Kingdom – an obituary

14th December 2020

Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.

Please go over there to have a read – and I just want to develop and add some points here.

*

European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).

By ‘radical’ I mean (literally) that it went to the root of things.

The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.

The impact of European Union was also to how one thought about law – and about policy and politics.

*

First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.

This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.

And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.

And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.

As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.

*

Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.

(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)

In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.

There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.

European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.

The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.

*

Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.

And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.

This was a recurring mistake for United Kingdom politicians.

For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.

But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.

There were, however, real limits to what the European Union could agree to, at least without treaty changes.

And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.

The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.

*

You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.

Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).

And this is partly because my own ultimate view on Brexit is ambivalent.

In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.

It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.

(And it did not.)

But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.

(And it has not been.)

*

The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.

It is not going to be a neat clean break.

And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.

The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.

 Its influence, however, will continue for decades.

The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.

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Hyper-partisanship and constitutionalism

13th December 2020

Consider three political situations.

The first is where constitutional issues play no real part in day-to-day politics.

Here issues about the economy, law and order, health, social welfare, the environment, defence and so on dominate both party politics and media coverage.

The second is where a discrete constitutional issue becomes part of the political debate.

For example in the United Kingdom, this could be devolution, or House of Lords reform, or proportional representation.

That issue will tend to be addressed though normal party politics, and such issues do come and go from time to time.

And there is a third category, where constitutional issues are themselves gamed for party issues.

This is what is happening in the United States currently, and to a lesser extent in the United Kingdom.

In the United States, for example, there is the extraordinary attempt by Republicans in Congress and many states to overturn the result of the 2020 presidential election.

In the United Kingdom, for example, the government is politically exploiting attacks on the courts, on lawyers and on the very ability of judiciary to hold the executive to account.

I have many times said that it is a bad thing for constitutional law to be exciting.

If contesting the rules of the game themselves becomes the focus then the game itself is subverted.

What can be fairly called ‘hyper-partisanship’ – which goes far beyond the normal knockabout of party politics – is a dangerous thing for constitutions and constitutionalism.

In any modern political system an immense amount depends on legitimacy and being governed by consent.

A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation – and, in any case, many totalitarian states use propaganda, symbolism and vilification of the ‘other’ to manufacture legitimacy and consent.

Remove that shared sense of legitimacy of institutions by having a permanent revolution and constitutional culture war and then the state will find it more difficult to govern.

Why should anyone accept the decisions of a court, or of a legislature, or even of an electorate, when the legitimacy of each is a partisan issue?

There is certainly a need for constitutional reforms from time to time, but this should be on the basis of making various institutions and practices more legitimate not less.

Constitutional law and constitutional issues are far too exciting, and this is a bad thing.

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Donald Trump’s subversion of constitutional legitimacy, and its consequences

12th December 2020

The latest attempt by Donald Trump to litigate the 2020 presidential election has ended in failure.

The Supreme Court of the United States has dismissed the attempt by Texas to somehow nullify the votes of other states.

This is – or should be – Trump’s Wile E. Coyote moment.

The post-election litigation has had the quality of him running in mid-air, and now he must – or should – submit to constitutional gravity.

*

But.

This defiance – which is shared by many Republicans in congress and nationally – may have dangerous lingering effects.

The defiance is subversive: it is an attempt to contaminate the legitimacy of the election of Joseph Biden.

To poison the wells, so to speak.

And in a way, this is apt and not surprising.

For just as Trump’s campaign to become president started with him denying the constitutional legitimacy of one Democratic president – with the ‘birther’ conspiracy – his presidency has ended with an assault on the legitimacy of another.

This is what Trump is ‘good’ at – identifying and exploiting weaknesses.

Sometimes this is on a personal and immediate level,  so as to obtain leverage in any given situation, or to intimidate someone with a nickname.

But in terms of an entire political system, it is to maintain and increase influence by identifying an issue which undermines constitutional legitimacy itself.

This is bullying on the grandest political scale.

*

This bullying will probably be not without consequence.

Along with populating the federal judiciary with conservatives, this rejection of political legitimacy will no doubt be a legacy of the Trump presidency.

And a lack of a shared sense of what is legitimate in any political system rarely ends well, and sometimes even ends with violence.

If a substantial proportion of people do not believe that the mechanisms of political change are valid and fair then they will tend to look to other ways for effecting changes.

Just think of Ireland, along with many other examples.

But it also has less lethal effects.

Normal issues of political debate cannot be approached on their own terms.

A policy promoted by an ‘illegitimate’ executive will be unacceptable, regardless of any merits.

This hyper-partisanship – that goes far beyond the usual knockabout politics of a party system – is devastating to any functioning democracy.

But in an age where a political base can be mobilised directly – bypassing traditional party and media structures – many politicians will be tempted not to show self-restraint.

The sensible convention that one does not go too far politically, not least because one does not want opponents to go too far, is disregarded.

Trump may well have lost his legal battle to retain the presidency, but this Trumpism may well be with us for much longer.

And that, more than desperate legal suits, will be the test Trump leaves for the law and politics of the United States

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Sovereignty and ‘Sovereignty!’

11th December 2020

One feature of contemporary politics in both the United Kingdom and United States is the way descriptive words and phrases have become slogans with a very different meaning.

This blog has already described the unhappy juxtaposition between ‘Law and Order!’ and law and order – and we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law, while the populist government of the United Kingdom sought recently to expressly legislate that it could break the law.

And a similar distinction can be made about sovereignty and ‘Sovereignty!’.

In the United Kingdom it would seem that one explanation of the ongoing failure for a trade agreement to be finalised with the European Union is because of this ‘s’ word.

Here, as examples, are some recent tweets from the United Kingdom’s head negotiator.

*

So what does this ‘s’ word mean?

From a legal perspective, sovereignty is really about two things.

*

First, sovereignty is about the ultimate source of political power in any given polity.

In the United Kingdom, as its name suggests, the ultimate source of political power is the crown.

Some would say is not correct to even speak of the ‘sovereignty of parliament’ – the power of parliament to make or unmake any law always depends on a bill receiving royal assent.

Only with the crown’s approval does a law then have super-duper magical power.

Resolutions and motions of either or both houses of parliament may bind parliament but they do not have the same effect outside as legislation.

That is why I and others tend to write of ‘supremacy’ of parliament, not sovereignty.

The crown also is the source of political power elsewhere in the United Kingdom constitution.

It is the source of power – somewhat obviously – in respect of the so-called ‘royal prerogative’ – where the executive gets to do things which have legal effect without any legislative basis.

It is the source of power with ‘royal charters’, instruments which can have legal effects similar to legislation.

And the crown is the ultimate source of power for the judiciary, at least for the high court of England and Wales.

(This means that in constitutional terms, the two Miller cases on prime ministerial power can be characterised as being about the crown in the courts adjudicating on the powers of the crown as exercised by ministers so as to circumvent the crown in parliament.)

This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.

Just as parliament was always able to repeal the European Communities Act 1972, parliament will be able to make or unmake any law which flows from the post-Brexit relationship agreement, and that will be respected by the courts.

So this cannot be the meaning of sovereignty that Johnson and Frost have in mind.

Nothing in any post-Brexit trade agreement is relevant to this meaning of sovereignty at all.

*

The second legal meaning of sovereignty is not so much about the source of power but about legal capacity.

A sovereign thing can do and not do as it wishes.

And one thing a sovereign thing can do is to enter agreements with other sovereign things.

This is where Johnson and Frost appear to misunderstand the ‘s’ word.

For them, ‘Sovereignty!’ means that the United Kingdom cannot and should not enter into and be bound by any international agreements.

But one test of sovereignty is that a thing is capable of entering into international agreements – the cart is not before the horse.

In general terms, being able to accept obligations is the very point of sovereignty: that a nation state can enter into a treaty means that it is a sovereign state.

(For more on the fascinating history of sovereignty and treaties, see here.)

This is why, for example, Canada, Australia and New Zealand insisted on being separate signatories to the surrender instrument of Japan, and to not allow the United Kingdom to sign on behalf of the then empire.

*

Sovereignty thereby does not mean that the United Kingdom cannot and should not enter into international agreements.

Sovereignty means that the United Kingdom can do so.

And any international agreement means accepting obligations that restrict autonomy, for that is the nature of an obligation.

Under the North Atlantic treaty, for example, the United Kingdom has an obligation to go to war even if it not attacked itself. 

Article 5 of that treaty provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

Some would say that Article 5 of the North Atlantic treaty is a greater interference with the ‘s’ word of the United Kingdom than anything which has come from the European Union.

And it is difficult to reconcile many statements of government-supporting politicians on sovereignty in respect of the European Union with their continued support for the United Kingdom being part of NATO.

Similar points can also be made for the United Kingdom’s obligations under the United Nations charter and indeed under any other international treaties.

Trade-offs on autonomy are a feature and not a bug of being a sovereign state.

An analogy is with being able to marry: when a person reaches their majority they can enter into a marriage contract should they so wish, but being in their majority does not compel them to either marry or not marry, and if they marry they can always divorce.

The Johnson-Frost approach to the ‘s’ word is confused.

They seem to think sovereignty means that the United Kingdom cannot and should not enter into international agreements, whereas sovereignty actually means that the United Kingdom can do so should it want to do so.

*

An indication of the United Kingdom government’s incorrect understanding of sovereignty was set out in a white paper earlier in the Brexit process:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

This is about “feelings” – not law or policy.

Brexit as therapy – so as to make the United Kingdom “feel” it is a sovereign state.

And this is the fundamental misconception of those who assert ‘Sovereignty!’ just to make themselves feel better.

Sovereignty exists anyway.

Sovereignty does not care about your feelings.

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Brexit will be with either no deal or a deal on the terms of the European Union – and it is difficult to see how any Brexit could have ended differently

8th December 2020

We are now at the latest Brexit endgame.

Another endgame in that succession of contests between the United Kingdom and the European Union that we call Brexit.

This latest contest is about whether there will be an agreement between the European Union and the United Kingdom for the relationship following the end of the transition period on 31st December 2020.

And the United Kingdom has a difficult choice.

The choice is between the United Kingdom agreeing to the terms on offer or refusing those terms.

Take these terms or leave them.

This outcome, like previous outcomes in this process, will be determined by whether the United Kingdom refuses to agree a thing or agrees that thing on the terms of the European Union.

And this is how ‘taking back control’ has worked out in practice.

The European Union’s way, or the highway.

And, as before, it is more likely than not that the United Kingdom will agree a thing on the terms of the European Union.

This latest agreement was to be called the ‘treaty of London’ as a patriotic gesture.

But instead, it is Boris Johnson who has been summoned this week to Brussels.

Perhaps the European Union will not be so insensitive as to provide a disused Eurostar railway carriage as the venue for any reeluctant signature of instruments of the trade agreement.

*

Is ‘no deal’ still possible?

There is a real prospect that Johnson going to Brussels will not mean he agrees to the presented trade agreement.

Even with the United Kingdom government jettisoning the makeweight issues of fisheries and the Internal Market Bill clauses, there are two serious issues of contention.

The outstanding issues are the governance of the agreement (that is, how is to be enforced if things go wrong) and the ‘level playing field’ of regulatory equivalence (that is, how is any divergence from the current common commercial standards be managed).

A moment’s thought should make any sensible person realise that these two issues go to the very centre of any future relationship agreement.

For these issues to still be open just days before the end of the Brexit transition period is not a good sign.

There is no indication or reason to believe that the European Union will compromise on either issue.

Not least because the European Union will be fully aware of how any compromise in this agreement will affect its credibility in other trade agreements, and European Union negotiators are not fools.

So it will either be the European Union’s way, or the highway.

And the United Kingdom is perfectly capable of choosing the daft way.

*

Could things have been different?

What if, for example, the United Kingdom had exercised its (now lost) power to request an extension of a further year to the transition period?

That certainly would have been prudent from a practical perspective: it would have enabled the European Union and the United Kingdom to deal with other pressing issues, not least the coronavirus pandemic.

Yet.

Does anyone seriously think the United Kingdom government would have used this further year working out what it wanted from Brexit?

It has had since 2016 to work out its position, and there is no reason to think that another year would have made any difference.

Had there been a year’s extension to the transition period, the United Kingdom’s (lack of) position would have been the same in December 2021 as it is now in December 2020.

*

So, if this is the current predicament – who is to blame?

There are currently pundits putting forward the view that the lack of a ‘soft’ Brexit, with the United Kingdom staying in either the single market and/or the customs union is somehow the fault of those who were not in government since 2016.

Remainers are certainly culpable for losing the referendum – after 43 years of membership, the referendum was theirs to lose.

And, in my view, Remain lost the 2016 referendum far more than Leave won it.

But once Theresa May made ‘Brexit means Brexit’ the basis of her bid to become prime minister and Conservative party leadership, there is no plausible chain of events that would have led to any Brexit being a ‘soft’ Brexit rather than a hard one.

(Brexit may have been avoided by a general election or a further referendum, or there may have been endless delays in sending the Article 50 notification – but if Brexit was to happen it was never going to be a happy one.)

‘Brexit means Brexit’ quickly became the red lines, and the red lines in turn necessarily meant the United Kingdom  leaving the customs union and the single market.

Remainers can be blamed for losing the referendum, but not for government policy on Brexit thereafter.

*

Now we are a few days before the end of the transition period, without either an agreement or much clue.

Both a trade agreement on the terms of the European Union and no deal seem possible.

This is perhaps the worst possible position for the United Kingdom to be in at this time.

But since May told us ‘Brexit means Brexit’ it is difficult to see how any departure of the United Kingdom from the European Union could have ended up any better.

Brace, brace.

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