Category: Constitutional Law

Making sense of the reported proposals of the government for “overhauling” the Supreme Court of the United Kingdom

16th November 2020

You would think that the most incompetent government in living memory would realise it needs the benefits of checks and balances, and of accountability and scrutiny.

You would, it would seem, be wrong.

The Sunday Telegraph yesterday had this piece, entitled “Supreme Court to be overhauled to curtail its constitutional powers”.

A tweet promoting the article said: “Telegraph reports that the government plans to bring the UK Supreme Court to heel: change the name, reduce number of permanent judges, bring in specialists – rolling back Blair era reforms.”

The news report itself is quite light.

There is no source on the record.

There is no concrete internal government document, just “plans” and “proposals”.

The only quote off the record is attributed to a “Tory source”:

“There’s a feeling that Blair and Falconer made a complete dog’s dinner of constitutional reform and that we’re feeling the negative effects of it today. 

“Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don’t want to be.”

The second sentence of the quote is interesting, as it frames the proposals in terms of the interests of the judges.

Given this framing, it should be noted that the article mentions later that the Lord Chancellor and Justice Secretary Robert Buckland “is said to see the reforms as part of his legal role to defend the independence of the judiciary, amid concerns about the perception of the Supreme Court”.

The impression is thereby given that the “Tory source” and the person describing the views of Buckland are the same person, possibly (given the conventions of political journalism) Buckland himself or his special advisers.

The rest of the piece is mainly padding and contains no interesting detail.

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So what should one make of it?

One feature is that the headline and the promotion of the article do not entirely accord with the substance of the piece, such as it is.

The import of the quoted “Tory source” and the description of Buckland’s view may perhaps be better characterised as “independence of the judiciary to be defended”.

If so, then the political significance of the report is not so much that an(other) attack is about to be mounted on the independence of the judiciary, but that this may be a preemptive effort at a defence.

Of course, the “proposals” and “plans” as reported are daft.

The Supreme Court, with its outstanding website and televised hearings, is an absolute boon for the public understanding of law.

For each appeal there are case summaries and other materials freely made available.

Instead of being hidden down some parliamentary corridor (as was the the case with the Judicial Committee of the House of Lords), the work of the Supreme Court is an exercise in transparency and accountability.

And in respect of the defeats of which the government is complaining, much of the the blame is at the feet of ministers themselves.

In particular, the prorogation case was lost by the government because not a single minister or official would put their name to a witness statement, on pain of perjury, setting out the true reasons for why parliament was closed down.

That is hardly the fault of any Supreme Court judge, or indeed of any activist lawyer.

And what would the new name of the court be?

(Also, for what it is worth, there has long been a ‘supreme court’ in England and Wales before the name was appropriated by the new highest court – it was the name by which all the senior courts went before the reform – and this caused no problems at all.)

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 Maybe one should not take a minor example of performative politics in a SUnday newspaper too seriously.

The last thing this utter shambles of a government – facing a pandemic and a Brexit when it would not be able to deal properly with either, let alone both –  is up to doing is significant constitutional reform.

But the noise is still important.

And the sound one can hear is that the government as a whole still has an illiberal temper and this indicates that, despite the reported departure of Dominic Cummings, the government still sees it as a priority that it should dismantle any parts of the state that can actually hold it to account.

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‘Why we need to stop talking about a written constitution’ – my November 2020 column for Prospect magazine

15th November 2020

My column this month for Prospect magazine is on something I have wanted to write about for some time.

It is about the issue which both dominates and ruins constitutional discussion in the United Kingdom: the topic of a ‘written constitution’.

Whenever there is some constitutional calamity, the instant – knee-jerk – response of many liberals and progressives is to demand a ‘written constitution’.

And that is where their response also then ends; it is the entirety of their reaction.

As such it is not so much a way of thinking about constitutional issues in the United Kingdom, but an excuse for not thinking about them.

In my Prospect column I set out various reasons why this preoccupation with demanding a written (more correctly, codified) constitution is misguided: 

– written constitutions are not inherently liberal and progressive, and even those which purport to be so may not guarantee rights and freedoms in practice;

– there is no plausible path for the United Kingdom to get to an entrenched constitution, absent a war, invasion or similar – and even if there was, the process would still be hijacked by an executive eager to strengthen its powers and privileges;

– the subject is a distraction from putting in place actual reforms to the constitutional arrangements of the United Kingdom.

For many this may seem like a heresy or a blasphemy, so wedded are they to all constitutional conversations having to be about their hobby-horse.

Others will say that somehow we can spend our finite time for discussing constitutional issues on both particular reforms and idealistic projections.

But as we get drawn again and again into this A-level essay topic of an issue, real constitutional changes are not taking place that could and should be taking place.

And so, although I realise the Prospect column is provocatively titled:  I aver that it is time for us to stop talking about a written constitution.

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The TRUTH about Article 61 of Magna Carta

Yesterday someone posted on Twitter the following (now deleted) tweet.

Another (also now deleted) tweet linked to a video of what seemed to have been an exchange between a person called Brad and the police, in which Brad sought to rely on his rights under Magna Carta.

The video is still available on Facebook and is worth watching in full.

 

A quick internet search also reveals sites like this one purporting to set out your rights under Article 61 of Magna Carta.

And on Twitter there are still tweets such as this.

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Is this true?

Is there a right of lawful rebellion under Article 61 of Magna Carta?

Does displaying Article 61 of Magna Carta in a shop window mean you cannot be fined or closed?

Let us find out.

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Magna Carta is Latin for ‘the Great Charter’, a legal document written in Latin that first came into existence in 1215.

(By convention, and because it was originally in Latin, the ‘the’ is often missed out in the title by historians and lawyers when discussing Magna Carta, which I find amusing but is really not at all significant.)

An English translation of this Magna Carta is at the British Library website.

You will see this original Magna Carta is divided into numbered sections (known to historians and lawyers as chapters, not ‘Articles’).

At Chapter 61 is the following:

SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

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You will see that the phrase ‘lawful rebellion’ does not appear in Chapter 61, and neither is there anything which provides that if Magna Carta is displayed it renders a person or business immune from closure or fines.

The provisions is instead what is called a ‘security’ provision, setting out how the rights under Magna Carta could be practically secured and enforced.

If you read the provision you will see that the rights and powers of security are given to twenty-five barons (elected by other barons).

There is nothing in the provision to support the claims made on its behalf by the social media posts set out above.

If you do not believe this, read the provision for yourself.

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But even if the original text of chapter 61 of Magna Carta had provided for lawful rebellion, or that the mere display of Magna Carta in a shop window would be enough to ward off law enforcement officials, the provision was removed within a year, when Magna Carta was reissued in 1216.

(It was reissued and amended many times.)

There is no sensible explanation for why a provision that was only in force 1215 to 1216 (and then only granted a power to 25 barons) would have the effect in 2020 of preventing a shop being closed under public health regulations if Magna Carta was placed in a shop window.

And that is the truth about Article 61 of Magna Carta.

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There is, however, a serious point to be made about the various claims made about ancient legal documents, such as Magna Carta or the Bill of Rights.

There is not a strong tradition of ‘constitutionalism’ in England, and in the United Kingdom we do not have a portable and accessible document we can point and say ‘this is our constitution’.

And in the absence of a widely shared knowledge of the constitution, claims about Magna Carta, the rights of freemen of the land, and so on, become popular but unchecked.

As a matter of law and history, Magna Carta is now little more than a legal ornament rather than a living instrument, and it is rarely if ever successfully relied on in practice.

It is a legal text which politicians and others can praise safely, as it provides no real protections.

(In contrast, legal texts that do actually provide practical rights such as the Human Rights Act 1998 are  often attacked by those same politicians.)

Some of Magna Carta is still in force, in its 1297 reissue, and you can see these provisions on the official legislation website.

You can also read my piece from the 2015 anniversary, and this is an informative and insightful speech on Magna Carta from the medieval historian Jonathan Sumption.

And you can watch this, from another Brummie commentator on Magna Carta, Anthony Aloysius Hancock.

 

 

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The road from Barnard Castle – government and the problem of illegality

20th September 2020

In any human community larger than about 120 to 150 – Dunbar’s number – it becomes increasingly difficult to govern on the basis of sheer personality alone.

And so instead of face-to-face encounters of dominance and appeasement you have rules and commands: things that bind you – oral or in writing – because of the legitimate nature of the rule or command.

In modern societies these rules and commands are divided between the normative and the positive, and the usual word for the latter is ‘law’.

As I set out briefly over at Prospect – in a modern society a government is creature of law, and so without law it is ultimately nothing.

Even a gang of thugs with official titles will find it hard to govern a medium to large society for long on the sole basis of a series of in-your-face confrontations.

But in addition to this basic requirement for government to take law seriously for government to exist at all, there is a key additional benefit of a government promoting compliance with the law.

If the government complies with the law then it is more credible for the government to insist on the governed to comply with the law as well.

This is, of course, an argument based on convenience.

But when a government itself does not itself appear to take law seriously it undermines the legitimacy of law.

And this is the problem the government of the United Kingdom now finds itself.

The problem of legality and illegality.

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There are two events which illustrate this problem.

First there was the now notorious trip of a senior government adviser to and from Barnard Castle during lockdown for which he could provide no plausible good reason.

This appeared to be a casual breach of the applicable law, and one that he seemed to shrug off as unimportant because, by implication, laws were for other people and not for him.

In fact, this impression is to an extent unfair.

The police did investigate and they decided that, in the circumstances, there would be no further action and, even if he had been stopped on the day, he would have only got words of advice.

And so that was not law and due process averted but followed; it is just that law and due process did not get very far.

But what lingered was not the decision by the police (which was for the adviser a fortunate but not inevitable outcome) but the nonchalant indifference as to to whether the law was broken before the breach was was revealed.

And what many will remember is that neither the adviser nor the prime minister did take responsibility for the breach: nobody was sacked, and nobody resigned.

The only apology given was the adviser turning up late to the press conference to justify his actions.

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Now, months after the trip to and from Barnard Castle, we have the second event illustrating the government’s problem with legality and illegality.

The government has proposed that legislation be passed that would enable it to deliberately break the law.

(See my posts here, here and here.)

This proposal has been supported by the House of Commons in principle at ‘second reading’.

It may well be that this proposal is soon dropped or defeated during its parliamentary passage.

But the damage has already been done.

The government itself is now on its very own journey to and from Barnard Castle.

A grand ‘away day’ from the rule of law.

Some supporters of the government have attempted to justify this proposal, but even few of them are convinced.

And the underlying policy issue – state aid on the island of Ireland after the transition agreement ends – is not connected to the proposal in any logical way.

There is no good reason – perhaps no reason at all – for the government’s proposed illegality.

And so the impression is again given that laws are for other people, and not the government.

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This weekend’s press has told us that the government is now considering ‘tough’ penalties for those who break self-isolation during the ongoing pandemic.

The figure mentioned for the fine is £10,000.

On what basis can the government now insist that others comply with the law?

Of course, there is the resort to coercion: the use of police and the courts.

A government should not, however, have to rely on brute force (or the threat of brute force) to get people to comply with a law, especially in the context of public health and public safety.

The government may have the brute power to seek to make the governed comply with the law but not the legitimacy to insist.

That is quite a loss for any government.

And that is what was thrown out of the car window on that journey back from Barnard Castle.

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The Anatomy of a Potential Constitutional Crisis – Part III – the Failure of the Gatekeepers

14th September 2020

For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.

By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.

(See my posts here and here.)

That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.

The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.

But that resignation has made no difference: the process has continued anyway.

A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.

Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.

So much for the civil servant gatekeepers.

Now for the politicians.

The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.

The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.

And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.

So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.

These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.

And all have failed.

So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.

And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).

If so, that would be an example of a working constitution.

But for this proposal to have even got to this stage, parts of the constitution have not worked.

The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.

Only at the margins should constitutional tensions be resolved by litigation.

But what happens when the conventions do not work or are flouted?

The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.

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The Anatomy of a Potential Constitutional Crisis – Part II

13th September 2020

Yesterday this blog set out an ‘anatomy of a potential constitutional crisis’.

In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.

The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.

The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.

These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.

There were third and fourth facts which also should have been listed.

The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.

The fourth fact is that the Cabinet Secretary has expressly sanctioned this intention of breaking the law as being compatible with the Codes for ministers and civil servants.

And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.

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None of this – yet – constitutes a constitutional crisis.

The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.

If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.

But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.

Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.

Such a political game does not, however, justify direct threats by the government to break the law.

Perhaps this is just a passing row, and the government u-turns this week on this proposal.

But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.

There will be an impact.

And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.

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The Anatomy of a Potential Constitutional Crisis – Part I

12th September 2020

 

This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

It was a quite remarkable moment.

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That this was now a formal government position was then demonstrated by two other events.

First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).

Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.

A lot of time, effort and resources has gone into this.

The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

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Any constitutional crisis – potential or otherwise – exists on two planes.

The first is the plane of high constitutional principle.

Here the most relevant constitutional principle is that of the Rule of Law.

(On this, I did a short exposition of the importance of the Rule of Law at Prospect and I also discussed it with human rights barrister Adam Wagner on his podcast.)

Put simply the principle here can be articulated as: the government is not above or beyond the law.

The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.

These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.

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The second plane is that of policy.

What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?

Here something does not make a great deal of obvious sense.

The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.

I explain some of the detail of this purported concern on this video for the Financial Times.

There are two reasons why this being the cause of this potential constitutional crisis does not add up.

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First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.

For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.

But the United Kingdom government does not know what its state aid policy is and has said it will be 2021 before one is published.

So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.

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Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.

The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.

And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.

And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.

In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.

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And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.

The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

It is a stunning self-trashing of the United Kingdom’s place in the world.

And domestically the predicament is much the same.

Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?

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I love and enjoy watching and commenting on any constitutional drama

(You will get a sense of my sheer excitement on the Bunker podcast on this matter.)

But usually the constitutional drama makes some sort of sense.

Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.

The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.

The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.

There is no rational explanation for what the government is doing.

And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.

Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.

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This, however, is not yet a constitutional crisis.

There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.

If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.

That would be the constitution working.

We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.

That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.

A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.

So this is still a potential constitutional crisis, not an actual one.

But it is an extraordinary and spectacular potential constitutional crisis.

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ps Title amended to add ‘Part I’ on 13 September 2020

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The government is looking at judicial review

10th August 2020

What should we make of the government’s announcement of “independent panel to look at judicial review”?

By way of background: judicial review is the general name for how the courts in England and Wales consider the lawfulness of government decision-making and rule-making.

If a government decision or rule has not been made within the legal powers available, or has otherwise been made improperly, the High Court in London can quash that decision or rule.

Governments do not like being told ‘no’ by courts.

 

The announcement and the Terms of Reference

The announcement is a small item on the government website, which in turn links to a one-and-a-half page pdf with the grand title of Terms of Reference for the Independent Review Of Administrative Law.

This title and the Notes helpfully take up the majority of the one-and-a-half pages.

The substance of the Terms of Reference (such as it is) is in four numbered paragraphs, and these four paragraphs have been put in bold – perhaps to make them look more impressive.

 

Priorities

A first thought about this review is that you would think that the Ministry of Justice would have more important things to do.

The ongoing coronavirus emergency means the criminal justice system is beset by backlogs and delays, and the prison system is more dangerous than ever.

But at this time senior ministers and officials at the Ministry of Justice wish to devote their scarce managerial time and resources to this matter.

 

Lack of substance

A second thought is that the announcement and the Terms of Reference are, well, rather flimsy.

The four numbered paragraphs, even when supplemented by the Notes and said in that slow ‘voiceover man’ way as all passages in bold should be, are as general as the author(s) of the document could get away with, short of saying nothing of substance at all.

Even paragraph 4, which is perhaps the most important, is no more than a brief list of discussion points.

The document has an improvised and rushed air to it – the Notes in particular seem to be a late attempt to add some substance.

All this said, there is stuff here which is – or may become – concerning.

 

Paragraph one – codification

The first paragraph is, as a lawyer would say in court, an old chestnut: should judicial review be placed on a statutory footing?

This is an examination essay question of the ages.

And there is no quick or neat way this review, or anyone else, can place judicial review on an entirely statutory basis even if it wanted to do so.

This is not to say there are not already detailed statutory rules.

Judicial review is already heavily regulated by legislation: by the Senior Courts Act and by the (statutory) Civil Procedure Rules.

But the ultimate basis of judicial review is not contained within any Act of Parliament, as it derives from the very jurisdiction of the court itself – and some would say that the supervisory jurisdiction of the High Court is logically prior to, and distinct from, the legislative supremacy of parliament.

To somehow convert this source of law into a statute would no doubt require complex and sophisticated legislation, if it can be done at all – and, unless there is a particular reason to do so, there seems not a lot of point in doing so.

And, there is the ‘hole-in-my-bucket’ problem of how the courts would police compliance with any such new constitutional statute if its power is entirely to be derived from that statute.

Some things are perhaps better left as student essay questions.

 

Paragraphs 2 and 3 – justiciability 

Paragraphs 2 and 3 are impressive in that somebody has somehow managed to make two paragraphs out of one point.

That point is justiciability.

This is about what sort of issues are questions for the court as opposed to, say, Parliament, the government, or the electorate.

The problem here, as with paragraph 1, is circularity.

A question for the court is always a legal one – whether an action (or inaction) is legal or not.

And what sort of issues are legal ones?

The ones that are decided by a court.

If there is to be some statutory definition of what questions are justiciable, then all that may happen is that the legal battleground shifts to litigation about whether that new definition applies.

Courts, contrary to media representations, are already reluctant to the point of unwilling to decide political questions: for example, all the Miller litigation did was ensure that parliament decided certain issues rather than the executive.

Those who sought to use the courts to stop Brexit not only failed but did not even come close to getting any judicial reversal of that political decision.

What we do often get is media and political misinformation about what the courts are doing and not doing.

And the cure for such misinformation about the law is not to change the law.

 

Paragraph 4 – collateral attacks

Paragraph 4 is where this Review may make some difference.

The ultimate basis of judicial review cannot be easily changed, and nor can the need for a court to decide whether a question is a legal one or not.

But – like a participant in ‘Wacky Races’ throwing devices out a car window to snare the car behind – the government can promote rules and procedures that can make access to the courts more difficult.

Here, however, the government probably does not need an independent review to do this: this has pretty much been government policy since the Blair years, with the worst most recent attack on the easy availability of judicial review coming under the Coalition government (and promoted by a Liberal Democrat minister).

You will see unlike paragraphs 2 and 3, where one point is stretched into two, that paragraph 4 has six points – each one of which is a potential pressure point for limiting the flow of justice, just like the body has pressure points to limit the supply of blood or oxygen.

What the government here is seeking to do is reform the practice of judicial review so that it almost impossible to obtain it as a practical remedy.

 

Towards a report and beyond

This review has the whiff of ‘something must be done’ – the government and its advisors do not like judges saying ‘no’ and so something must be done to stop the judges saying ‘no’.

One way judges would be prevented from quashing decisions and rules is for those decisions and rules to made better in the first place.

Any decision or rule in respect of public policy can probably be made by the government through parliament, as long as government and parliament make the decision or rule properly.

The courts can only intervene when there is illegality.

The problem in this age of Brexit and coronavirus is that the government does not want to go through the proper law-making process – it wants to use wide powers, either in emergency or Brexit legislation – and to not have any parliamentary or other check on that power.

This is the executive power project.

Perhaps this review is a clever wheeze by some wise official to delay or deflect the attack on judicial review – by the time the panel reports, things may have ‘moved on’.

But this is probably wishful thinking.

The impulse of some now in and around government for executive power for its own sake will still be there.

And they will not rest until they have done as much as they can to remove any constitutional check or balance to their wish to have, in effect, government by decree.

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Why we should be worried about the use and abuse of statutory instruments

12th June 2020

In a Financial Times video yesterday I set out some particular concerns about the Coronavirus quarantine regulations, and in earlier posts on this blog I have set out the problems with earlier versions of the Coronavirus restrictions on movement.

This post takes a step back from particular regulations to set out briefly why we should be worried about the government’s use and abuse of statutory instruments.

The phrase “statutory instrument” is odd for someone who is neither an official nor a lawyer: instruments in everyday language are tangible things – musical or surgical instruments.

Statutory instruments are not really tangible things (though they can be printed): they are dull-looking and often dense formal documents.

And putting the word “statutory” in front means you also have the sort of legalistic term that for normal people is a prompt for glazing over and switching off.

Yet statutory instruments are – or can be – troubling things.

Why?

Three reasons: legal effect, lack of effective scrutiny, and governmental convenience. 

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First: legal effect.

As the word statutory tells you they are the law of the land, as much as any Act of Parliament.

In constitutional theory, a statutory instrument should be within the parameters of a parent Act of Parliament.

And again in constitutional theory, a statutory instrument can be challenged in court as outside the scope of that parent Act.

But in practice, the provisions of parent Acts can themselves be very wide and the prospect of any court challenge usually unrealistic.

In effect, if not in technical legal form, they are as much primary legislation as any Act.

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Second: lack of effective scrutiny.

Statutory instruments become the law of the land without any scrutiny (or any real scrutiny).

They are difficult to challenge in parliament and impossible to amend.

They either go through on the nod (the affirmative procedure) or without any nods at all (the negative procedure).

And the sheer number of them means that there is no alternative to this lack of real scrutiny.

The purpose of statutory instruments was historically for there to be a flexible way of legislating on technical issues (as envisaged in parent Acts of Parliament) or to place on a domestic legal basis laws agreed elsewhere (for example under the European Communities Act).

Now statutory instruments, other than a nominal and ceremonial moment in parliament, are effectively legislation by government departments.

Constitutional theory holds that that it is the legislature that legislates and the executive that executes, but the reality is that the executive legislates.

Statutory instruments are in effect executive orders by another name.

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Third: governmental convenience.

Once you have a thing that (a) has the same effect as an Act of Parliament and (b) has none of the inconveniences of actually passing an Act of Parliament, you will tend to get abuse.

The government will have every reason to try to use statutory instruments as much as possible and for as many different things.

And so the recent coronavirus regulations have created the widest criminal offences in modern legal history, potentially criminalising everyone the moment they walk out of their home.

They even purported to criminalise what goes on between consenting adults in their own homes.

These regulations were, at least on their face, significant interferences with fundamental rights.

But they were slipped out without formal announcement and had immediate legal effect.

And because they were under the Public Health Act, there was not even any parliamentary stage before they took effect, ceremonial or otherwise.

The fact that the regulations were as ludicrous as they were illiberal is a happy accident.

Their lack of practical enforceability should only be a relief to the constitutionally gullible. 

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We are so familiar with the comforting notions of the British constitution that we are often blind to what happens in practice.

What we now have is legislation, on an industrial scale, from the executive, sometimes casually interfering with fundamental rights.

The government – ministers and officials – are now in the habit of doing this.

And that is why we should be worried about the use and abuse of statutory instruments.

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Why the Attorney General should resign

5th June 2020

On 23 May 2020, the Attorney General for England and Wales tweeted the following tweet.

Note the Twitter account states in the bio that the tweeter is the Attorney General for England and Wales.

That tweet in turn quoted another tweet where a journalist set out a public statement from Number 10, the office of the Prime Minister of the United Kingdom.

The public statement set out a version of the events of the now infamous excursion of the Prime Minister’s adviser Dominic Cummings.

The statement ended, as you will see from the tweet: “Mr Cummings believes he behaved reasonably and legally”.

Note the very last word of the statement is “legally”.

And if there was any doubt, the journalist’s own tweet repeats it: “legally”.

The Attorney General had therefore tweeted that there had been a clarification that, among other things in the statement, Mr Cummings had behaved legally in respect of that excursion.

Of this there can be no serious doubt: it is the natural meaning of what she tweeted.

She may not have intended to do so, and she may not have even read the statement she was endorsing, but that is what she did.

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By way of context, the Attorney General was not the only government minister who tweeted that morning.

Other ministers tweeted about the same time with similar statements quoting the same journalist’s tweet containing the statement.

The impression that gave, of course, was this was a coordinated attempt by ministers to support Mr Cummings in what was then an emerging political scandal.

The problem is that the office of Attorney General is not just another government ministry.

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The office of Attorney General is special.

The Attorney General is the government’s senior legal adviser.

The Attorney General superintends the Crown Prosecution Service.

The Attorney General has a constitutional function as safeguarding the public interest in certain legal cases.

The Attorney General can intervene in private prosecutions and bring them to an end.

The Attorney General also happens to the “leader of the Bar”.

Although the office is held by a politician, the role is to be independent.

(For more on the historic office of Attorney General, click into and read this superb though detailed post by the late Sir Henry Brooke, the former appeals judge.)

One role for the Attorney General therefore is not to make public statements on particular cases, for either political or other reasons.

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Once the tweet was tweeted there was plainly a problem.

It was not the sort of endorsement an Attorney General should be publishing to the world.

Had there been a mistake?

The current Attorney General is new to the office, and although a barrister she is not a senior one.

So perhaps she did not realise what she was doing.

But as she sets out on her own website:

“In 2010, the Attorney General appointed me to the specialist Panel of Treasury Counsel, which meant that I represented Government Departments in Court.”

So even if she did not realise the import of what she was doing, she should have done so.

Nonetheless, the tweet was evidently an error and she could have swiftly apologised, acknowledging that it was a tweet that should not have been sent.

Had she apologised and retracted the statement, few would have pressed the issue further.

But she chose not to apologise.

She chose to do something else instead.

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The shadow Attorney General, rightly, set out his concerns about the matter in a letter.

The Attorney General sent a letter in reply, and is set out in this tweet.

The wording of her letter is strained – and one gets the sense of someone at the Attorney General’s office working hard to word the indefensible.

But it was false of her to state that there was “no question of [her] having offered any public legal view”.

There was more than a “question” of her having done so: she had.

She had publicly endorsed a statement that had expressly described Mr Cummings’ conduct as legal.

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And if the false statement in the letter was not enough, she yesterday repeated the false statement on the floor of the House of Commons.

Please watch this video clip.

https://twitter.com/elliereeves/status/1268574169119285251

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So both in a formal letter to her shadow and in the House of Commons, the Attorney General has falsely maintained that she had not expressed a public legal view on the Cummings case.

This is even though this is directly contradicted by her own tweet.

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This is not just a technical or trivial problem, where the Attorney General erred with a daft tweet.

This goes to the confidence the public can have in the holder of that office having sufficient independence within government.

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There is even the suggestion that her involvement in this particular case went further than a misconceived tweet.

If this is true, then not only did the Attorney General publicly state her legal view on the merits of Mr Cummings’ conduct but also according to a source gave advice to cabinet on the case.

But even if that is not true, her refusal to apologise and retract her public statement endorsing Mr Cummings’ conduct as legal is a serious ground for concern.

And making false statements about whether she had made such a public statement is incompatible with her office.

For these reasons, the appropriate step would be for the current Attorney General to now resign.

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