Category: Constitutionalism

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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The new Prime Minister of the United Kingdom – a constitutionalist perspective

6th September 2022

We have today a new Prime Minister.

You may have Very Strong Opinions about them as a person and as a politician.

But let us put those Very Strong Opinions to one side, and let us look at the appointment from a constitutionalist perspective.

Constitutions are about, among other things, parameters of political action – constitutions provide what certain political and other actors can and cannot do, and when.

So the first point to make is that the new Prime Minister only has a short period so as to make any political impression before the next general election.

It is now September 2022 – and the next general election has to be called by December 2024, in just over two years’ time.

The last possible date for an election, once called, is January 2025.

This means that any controversial legislation – especially if it outside the scope of the Conservatives’ 2019 manifesto – is unlikely to get through the House of Lords in time.

And the new Prime Minister may even want to call a general election sooner, which they can do because the Fixed-term Parliaments Act is now repealed.

The second point to make is how weak the new Prime Minister is, despite the governing party’s majority in the House of Commons.

Only 50 of the new Prime Minister’s colleagues supported them on the first vote, out of 358.

The new Prime Minister did not even have a majority support of their parliamentary party at the final round before it went to the party membership vote.

This means that there seems to be little positive support in the Conservative parliamentary party for the new Prime Minister.

Indeed, both the departing Prime Minister and the defeated leadership contender will probably have as much substantial support in the parliamentary party as the new Prime Minister.

The new Prime Minister, in their first appointments, seems to be rewarding their supporters rather than building a party-wide coalition.

As any Prime Minister only has so much autonomous power, the lack of a natural and positive parliamentary majority will be a problem.

The governing party is currently prone to rebellion and revolt, and there is nothing about the appointment of the new Prime Minister and their first cabinet appointments that looks as if this propensity to rebellion and revolt will change.

So, not only is there a looming general election and the practical inability to force contentious measures through the upper chamber, there is the possibility that the new Prime Minister may not even be able to get legislation through the lower chamber.

Within the United Kingdom more widely, the matter of the Northern Irish Protocol is no nearer resolution, and the Scottish government is pressing for a further referendum.

Serious questions about the future of the Union are being posed at a time where the new Prime Minister is not in a strong position.

And all this – all of this – is in addition to the pressing political problems of the cost-of-living crisis and the escalating energy crisis, as well as war in Europe.

Any one of these would be a challenge to a Prime Minister in a strong position.

It is difficult to see how the new Prime Minister, who is in a weak position, is going to be able to address, let alone resolve, these issues.

As this blog has said before: do not underestimate any politician who clambers to the top of what Benjamin Disraeli called the “the greasy pole”.

And this blog will give the new Prime Minister a clean slate.

But.

Given the circumstances of the appointment, the outlook for the new Prime Minister Elizabeth Truss is not looking good.

It is difficult to be optimistic – even if one supports her politically.

Brace, brace, as they say.

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Judicially reviewing a political party – and why Tortoise has a point as well as a weak legal case

30th August 2022

Before I became a lawyer, I wanted to be a historian and, in particular, a historian of the concept of the “state”.

The “state” – forgive the quotation marks – is, in one way – something which exists only in the mind, as a label we give certain things around us.

Yet in another way the “state” has a real existence – and some on the left demand “the state should do this” or on the right that “the state should not do that”, both presupposing that something called the “state” exists, and it can be called on to do or not do things.

Some attribute to the “state” the same qualities of omnipotence, omniscience and omnibenevolence that some people even now ascribe to various gods (or “gods”).

But.

I did not do the envisaged postgraduate work on intellectual history, and I fell into being a lawyer instead.

And part of the reason was that with law there were debates and discussions about what the “state” should do and not do, and what were its limits, that seemed more practical, urgent and uncertain in their outcomes than in the academic study of political ideas.

Indeed it was a 1996 article about whether the Jockey Club was amenable to judicial review that first started me thinking seriously about  a career in advising on public law.

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Judicial review is the term lawyers in England and Wales give to both procedure and the substance of holding public bodies to account in the courts.

Often what constitutes a public body – such as ministers of the crown or statutory corporations – is obvious.

But the test is functional – if you are an entity exercising a public function then you are amenable to judicial review.

And this means you are subject to certain special legal duties and remedies that may not otherwise be the case.

So it matters – practically – whether you fulfil the test of exercising a public function.

(Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.)

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The folk at the Tortoise news and commentary site have decided to send a legal letter threatening an application for judicial review against the Conservative Party.

The letter is worth reading in full.

There are two things worth saying about the letter.

First, the application is what a judge would say is “ambitious”.

Each element of the application is arguable (sometimes only just) – but that an element of a case is arguable certainly does not make it strong.

In essence, that a point is arguable is the test for simply getting it before a tribunal – the minimum required.

Perhaps a positive judge on a sunny day and after a hearty breakfast may give the envisaged claim the judicial thumbs up.

Predicting litigation is never an exact science.

But.

It is unlikely that any court will want to bolt political parties onto the state for the purposes of judicial review – especially when political parties have their own special regulatory regime, and it is the Queen who choses who is invited to be Prime Minister.

The case is likely to fail.

Two, Tortoise has a point – despite the weak legal merits.

A membership-based national political party is conducting an exercise that will lead to the successful candidate being – almost certainly – invited to become Prime Minister and we know very little about how that exercise is being conducted.

(The position would be different if only members of parliament were involved.)

Tortoise are asking for disclosure of the following information:

“(1) Anonymised data you hold on the demographic of the Party’s membership: 

(a) Particularly, we invite you to provide, where held, the number of Party members who:

(i) Live abroad;

(ii) Are foreign nationals; and

(iii) Are under voting age.

(b) We also ask you to provide data in respect of:

(i) The age range of members; 

(ii) The geographic distribution of members; and

(iii) The genders of members.

(2) An explanation of whether, and if so how, the Party keeps its membership database up to date, ensuring that it sends ballot papers to correct addresses. 

(3) Anonymised data you hold on variations in member numbers over time, presented quarterly over the past 10 years. The public interest is particularly acute in respect of quarterly membership numbers for the past twelve months.

(4) An explanation of the Party’s system of compliance, including but not limited to the following questions:

(a) How does the Conservative Party check that new members are who they say they are?

(b) Who oversees compliance? i.e. who independently checks whether the Conservative Party is checking? 

(5) What is the number of efforts at infiltration which the Party has thwarted, i.e. how many cases have you discovered of a fictional person, a dead person, a person of non-voting age, a member of another political party or a pet registering as Conservative member?

(6) An explanation of any third party compliance mechanisms in place to ensure that only those eligible to vote do so, that they vote only once each, and that the election is not manipulated.

(7) An explanation of the circumstances by which GCHQ came to offer advice on the distribution of Conservative party ballots.

(8) An explanation of why non-UK citizens who join the party abroad are eligible to vote even if they pay no tax and spend no time in the UK. 

(9) Confirmation of whether Party members under the national voting age can vote in the election of Party leader and Prime Minister.”

On the face of it, this is the sort of information which should be in the public domain – and this would apply equally to the Labour Party or other political party in a similar situation.

The (likely) legal fact that judicial review is not the appropriate way of getting such information does not take away from this being information which should be publicly known.

Indeed, that Tortoise is resorting to judicial review indicates – if not demonstrates – that the special regulatory regime for political parties is deficient.

And it is that special regulatory regime that should change – rather than the ambit of judicial review be extended.

Political parties are not private clubs, where there is a limited public interest in their internal affairs.

Political parties are a central feature of our political system.

They are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.

So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits.

That objective should be achieved by changes in legislation, and not by judicial expansion.

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Cheney and Constitutionalism – why there needs to be conservative constitutionalists as well as liberal constitutionalists

17th August 2022

Now, there’s a title.

As Vice President, Richard Cheney was a supporter of the notion of “executive privilege” – the notion that the executive can do things which it otherwise would not be allowed to do because they have the constitutional privilege to do so.

This is not a view a liberal constitutionalist blog such as this one supports.

But this blogpost is not about Vice President Cheney, but about Representative Elizabeth Cheney.

She is the Republican congresswoman who, notwithstanding party pressures, has taken a lead in condemning the unconstitutional behaviour of President Donald Trump.

And she has now paid for that politically, losing the primary for her party’s nomination in her state.

But, we may not have heard the last of her politically, because today brought this news:

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Constitutionalism is the idea that there are certain fundamental political rules and principles that should be complied with, regardless of any personal or partisan benefit.

This is my own defintion, formed over thirty years of being fascinated with constitutional issues.

(There are other definitions – and, if you have one which is better than mine, then tell me and I shall adopt it instead.)

Cheney and a handful of other Republicans have placed constitutional rules and principles ahead of their own personal and partisan advantages.

Those conservative constitutionalists must be commended for doing so.

Perhaps if Cheney is elected President, she may be as great an advocate of executive privilege as her father, the former Vice President.

(It is easy to be liberal when you do not have executive power.)

But even her father was a constitutionalist, though a conservative one.

And constitutionalism and liberalism are not the same thing.

Conservative constitutionalism exists, and it is crucial.

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That Cheney keeps on going in the face of hostility if not hatred from Trump supporters in her own party shows there is hope for constitutionalism in the United States.

Because for constitutionalism to be viable, there has to be both conservative constitutionalists and liberal constitutionalists.

For if constitutionalism is seen as the preserve of only liberals – an entirely liberal project – then it cannot claim to be a thing that is regardless of partisan advantage.

So while there are still conservative constitutionalists there is the possibility of constitutionalism being reasserted in American politics.

But.

If all the political careers of the surviving non-Trumpite Republicans end in failure, then constitutionalism itself becomes partisan.

And as constitutionalism cannot be partisan, it will – like Douglas Adams’ God –  promptly vanish in a puff of logic.So let us hope the political careers of American conservative constitutionalists have not come to an end.

Else: brace, brace.

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