Category: Constitutional Law

For and against changing the electoral system

27th October 2022

Here is a brief post on a constitutional topic that I have avoided on this blog: the electoral system.

This is a topic on which many of you will have Very Strong Opinions – and, as with a codified constitution and membership of the European Union, it may be difficult for you to comprehend why someone could possibly not be in favour.

But.

The value, at least for me, in the current system is twofold.

First, I think there is merit in one person being the representative for a distinct, meaningful area – for example, Birmingham Edgbaston, or the Isle of Wight, or the Western Isles, and so on.

This is especially so given the convention that Members of Parliament refer to each other by their constituencies.

It means that parliamentary debate is itself a congress of places and local identities.

One member constituencies also mean we have by-elections, which provide a form of accountability between general elections that can be surprisingly effective – for example, Johnson’s fall from office followed two huge by-election defeats.

Second, many systems of proportional representation seem to give disproportionate power to party lists and party managers, breaking the direct link between the voter and the candidates.

But, but.

Those two factors are not overwhelming, and perhaps can be offset by other factors.

It cannot be right for certain parties, such as the Green Party, to have so low a parliamentary presence given their national share of the vote.

The current party system is also somewhat artificial, and the parties are themselves faction-ridden coalitions kept together by the needs of the electoral system, and this just causes different political problems – as we have seen with both the Conservative and Labour parties in recent years.

The current system has not even avoided hung parliaments – for example, in the late 1970s, the mid 1990s, and between 2010-15 and between 2017-19.

And the powers of party managers and party lists is just exercised in different ways, with certain candidates benefiting from safe seats.

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So my mind is not made up, and recent experiences have tested my assumptions in favour of the current system.

(I do not have Very Strong Opinions on every constitutional issue!)

Can a case be made for electoral reform which (a) does not involve name-calling of those opposed, (b) keeps the geographic links without giving party lists and managers too much power, and (c) keeps the possibility of by-elections as a potent political device between elections?

I open to persuasion – and so may be many others who have hitherto been wary of electoral reform.

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Re-visiting the “codified constitution” debate after the Johnson and Truss premierships

26th October 2022

From time to time it is worth revisiting the question of whether we should have a codified constitution.

For many the answer is self-evident.

Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.

The view of this blog, as you may know, is more sceptical.

There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.

In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.

Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.

The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.

And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.

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So: are our current constitutional arrangements liberal?

Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.

But.

Take a moment.

Here are three counter points to consider.

First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.  And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.

Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.

And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.

If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.

We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.

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That said, there are problems.

For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.

And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.

Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.

And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.

The counter-case is strong.

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So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.

The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.

We cannot always trust illiberal ministers to make easy mistakes.

And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.

Brace, brace.

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Here we go again: Raab returns to the Ministry of Justice

25th October 2022

When Dominic Raab left the Ministry of Justice when Elizabeth Truss became Prime Minister, the blog teased that the Human Rights Act was still there and Raab was not.

Well.

Raab has today returned to the Ministry of Justice as Secretary of State and Lord Chancellor (and Deputy Prime Minister).

And this means things do not look good for the Human Rights Act.

As this blog has previously averred, the Human Rights Act is Moby Dick to Raab’s Captain Ahab:

And so when Raab went, it seemed the Act was safe.

The new Truss administration dropped the “Bill of Rights”, a dreadful mess of a Bill.

That reversal was, it seems, the price exacted by Robert Buckland, the former Lord Chancellor, for serving as Welsh Secretary in Truss’s cabinet.

But earlier today, Buckland announced he was leaving the cabinet under the new Prime Minister Rushi Sunak:

Buckland’s letter refers to a meeting, and one wonders if he again asked for an assurance about the Human Rights Act – and, if so, what the answer was.

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While Raab was away, his replacement Brandon Lewis had the confidence and sense to negotiate a resolution to the strike by criminal barristers.

It is unlikely that resolution would have happened had Raab stayed on, and it should not be taken for granted that action by criminal lawyers has come to an end.

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As this blog has previous stated, those who sneer at Raab for not understanding human rights law are wrong.

It is that he does understand it – he just does not care for it.

And this makes him a more formidable opponent to liberals and progressives than someone who is merely ignorant of the applicable law.

We do not know yet whether Raab will now seek to revive the “Bill of Rights” many of us had assumed would pass into oblivion.

There are at least two years left of this parliament and so there is perhaps enough time for him to have a go at forcing the Bill through if he can, regardless of any backbench worries.

He may have difficulty in the House of Lords, however, as the 2019 Conservative Manifesto stopped short of promising to repeal the Human Rights Act.

But for Raab this is unfinished business, and so such an attempt is more than likely.

And for those who have a liberal or progressive interest in the law, we are again that fabled bowl of petunias:

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was Oh no, not again.”

Oh no, not again.

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So this is what happens when we do not have a functioning Prime Ministership

20th October 2022

I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.

But I have never seen political chaos like yesterday – which is carrying on into today.

On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.

There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.

All pretty normal in these not-normal political times.

But.

The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.

Even Wikipedia could not keep up:

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Well.

All the drama from yesterday points to one thing.

There has been an absolute collapse of Prime Ministerial power.

The details from yesterday (and today) are effects, not causes.

They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.

One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.

But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.

We can now see.

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This is not – yet – a constitutional crisis.

It is certainly a political crisis – indeed, it is an exemplar of a political crisis.

And it certainly is a constitutional drama.

But not all political crisis tip into constitutional crises.

This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do

The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.

Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.

Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.

And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.

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Brace, brace – as this blog often says.

But alas that warning is too late for the Prime Ministership of Elizabeth Truss.

That has already crashed.

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How the constitution of the United Kingdom has been tested continuously for over seven years

19th October 2022

Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.

Imagine that demonic scheme was as follows:-

First: the test of a supposedly non-binding referendum in what was normally a parliamentary system

Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.

Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.

Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.

Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.

Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.

And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.

I may have missed out some of the tests along the way.

We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.

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The constitution has been through a lot in the last ten years – perhaps too much.

Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.

In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.

The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.

But the constitution needs a rest, on any view.

Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.

And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.

The constitution is not going to get a rest anytime soon.

Brace, brace.

Again.

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A Prime Minister in Name Only

17th October 2022

For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.

Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.

It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.

And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.

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Billy the Fish and the Green Baize Vampire

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One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.

The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).

But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.

And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.

An allusion, in a playful way, to the distinction made by the greatest of  our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.

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Many assume there will have to be a general election in the current circumstances – and there certainly should be.

But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.

And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.

For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.

We now have a Prime Minister in name only.

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(Apologies to Billy the Fish and Billy the Kid and the Green Baize Vampire.)

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

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Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

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The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

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***

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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The Good Law Project has had another bad day in court – but this decision raises serious questions about enforcing the “public” element of “public procurement”

10th October 2022

The Good Law Project (GLP) has had yet another bad day in court.

Many are uncritical fans of the the GLP – I am not, but neither am I a committed opponent of it either.

But there is something in the recent defeat which I think should prompt wider discussion.

For not only did the GLP lose the case on the substance, it also lost outright on the question of “standing” – that is whether it was in the legal position to bring the case in the first place.

In essence: the GLP was not an “economic operator” adversely affected by the procurement decisions in question, and so it was not able to bring an application for judicial review.

If you read the court’s reasoning on this – from paragraph 498 onwards – you can see the judge’s points.

But.

The law of public procurement is distinct from the law relating to procurement generally because public authorities have to comply with certain public law principles when making decisions – principles with which a private entity making procurement decisions do not need to comply.

This is because those principles – such as transparency, equal treatment and so on – are for the public benefit, and not just the interests of the (potential) bidders.

And if these principles are to have teeth – that is, if they are to make a difference – then they need to be enforceable.

Else they are polite fictions.

An adversely affected competitor may perhaps have a private commercial interest in challenging a botched public procurement decision.

But that will be on private, selfish grounds – and not out of some sense of altruism.

So how are the unselfish public law principles to be enforced?

Given these principles are there to benefit the public generally, should it only be left to when the breach of principle overlaps with the private interests of a disappointed competitor?

One answer is to give bodies such as GLP standing to bring claims.

But the import of this judgment is that such a wide view is not valid.

And perhaps there are questions to be asked about self-appointed interest groups bring such strategic and tactical litigation.

But if not groups such as GLP, then who?

In the European Union there is an easy answer: the European Commission can bring proceedings for breaches of European Union procurement law.

But there is no such body in domestic law: there is not really a public procurement equivalent to the Office of Fair Trading.

Perhaps there should be.

But, with this decision on standing, it is not obvious what the “public” means in “public procurement”.

Yes, the GLP has many critics – and some of those criticisms are valid – but there is also something not quite right about a system of “public procurement” where the public law principles of transparency, equal treatment, and so on, can only be enforced if they happen to coincide with the private interests of a competing economic operator willing to assume litigation risk against a major customer.

(And few – if any – regular government suppliers want to litigate against their main customers, as it leaves a poor impression for the next tender.)

If the courts are going to take this strict view of standing, then the “public” element now needs to be built into the process some other way.

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The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

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This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

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As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

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Caption: legal commentators reading the committee report

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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

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This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

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Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

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