The four ways the government of the United Kingdom is abusing and misusing the law – and the reason the government is getting away with it

2nd January 2021

Those with political power tend to want more power, and those who want more power will tend to then abuse it.

This is not a new observation, and it is perhaps one which can be made of most if not all human societies.

The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.

That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.

That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.

Those with political power will tend to try and get away with misusing or abusing it.

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The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.

And what is also striking is what has changed politically so as to enable them to be so open.

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First, the current government sought to give itself the power to break the law.

This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.

This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.

And then it was even supported by a majority of the house of commons.

The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.

But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

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Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.

This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.

 

From one perspective, these two proposals simply give formal effect to the practical position.

It has always been difficult to prosecute members of the armed services for war crimes.

And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).

And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.

The primary significance of these two current proposals is that the de facto positions are being made de jure.

The government believes (rightly) that it can legislate to this effect and get away with it.

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The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.

Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.

But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.

And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.

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The fourth way is the flip-side of the government seeking more legal power.

The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.

This can be done formally: by reducing the scope of judicial review or the reach of the laws of human rights and civil liberties, or by ‘ouster’ clauses, limiting the jurisdiction of the courts.

It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.

It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.

If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.

Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.

But again, what is different from before is the openness of these attempts.

There is no self-restraint.

The government is going to get away with as many of these barriers as it can.

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The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.

That is a problem no doubt as old as law and government itself.

What is remarkable is how the United Kingdom government is now so brazen about it.

The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.

The ‘libs’ are ‘owned’ and those with grins will clap and cheer.

In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.

What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.

People cared about such things – or at least those in government believed people cared.

But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

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And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.

It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.

And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).

This requires a shift – not in media and communications – but of politics and of political leadership.

Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.

And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.

*****

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

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

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How a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period – or why populism keeps prevailing over prudence

Winter Solstice, 2020

How did it come to pass that a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period,?

Why is the United Kingdom having to deal simultaneously with the effects of both a pandemic and the departure from the European Union?

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The Brexit withdrawal agreement provided for a transition period, where the United Kingdom remained part of the European Union in substance if not in legal from (though not part of the law and policy making institutions).

Article 126 of that exit agreement provided that this extension period would end on 31 December 2020.

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The exit agreement also provided that the transition period could be extended – either by one or even two years.

This was a prudent provision –  just in case something happened which meant the brisk ‘let’s get Brexit done’ timetable was not possible because of some significant development – well, like a worldwide pandemic.

Yet 1st July 2020 came and went with no extension to the transition period.

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This deadline for putting in place an extension was not a mere omission – the sort of thing a busy government may not have noticed in the rush of events.

The  failure to put in place the extension was a deliberate decision of the United Kingdom.

On 12 June 2020, the cabinet minister responsible for negotiations with the European Union announced proudly:

‘We have informed the EU today that we will not extend the Transition Period. The moment for extension has now passed.’

Had he perhaps not realised there was a pandemic on at the time?

Remarkably, the following sentence of the minister’s statement expressly stated that the decision not to extend was in view of the pandemic:

‘At the end of this year we will control our own laws and borders which is why we are able to take the sovereign decision to introduce arrangements in a way that gives businesses impacted by coronavirus time to adjust.’

The United Kingdom government promoted the decision not to extend as a news story.

The deadline was even the topic of direct discussion between the prime minister and the presidents of the European Council and the European Commission on 15 June 2020:

‘The Parties noted the UK’s decision not to request any extension to the transition period. The transition period will therefore end on 31 December 2020, in line with the provisions of the Withdrawal Agreement.’

The United Kingdom government knew the extension deadline was about to pass, and the government decided deliberately to not have an extension with full awareness (and explicit mention) of the ongoing pandemic.

Getting Brexit done’ was more important.

Populism prevailed over prudence.

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This option to extend the transition period was the only way to do so that was written into the exit agreement.

This means that, on the face of it, there is no way there can be an agreement now to extend the transition period.

The opportunity to extend the agreement would appear to have come and gone.

That said, there may be other ways of an extension – as set out by Georgina Wright and others in this report by the estimable Institute for Government.

And few legal feats are beyond the wits of clever European Union and United Kingdom government lawyers in a crisis.

But such an alternative approach to extension would not be easy nor  can it be instant – it would be an elaborate patch and workaround.

For such an extension to put in place now – ten days before the end of the transition period, with the Christmas holidays and a weekend in the middle – would require extraordinary political goodwill and legal ingenuity.

And all to have the same effect as the opportunity squandered by the government in June 2020.

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The decision to ‘cancel Christmas’ was, as this blog set out yesterday, not one any government would have wanted to make.

The fundamental mistake of this government was not to prepare people for the possibility – indeed probability – of this decision.

Days before the decision was made, the prime minister was loudly deriding the leader of the opposition on this very point.

Just click  below and watch and listen.

(Alongside this banality, the Secretary  of State for Education was also threatening a London council with a high court mandatory injunction so as to keep schools open.)

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Had the prime minister and others been acting responsibly, and in the public interest, and given it appears that the government had known about the new coronavirus variant for some time, there should not have been derision of the opposition for the possibility of ‘cancelling Christmas’.

A prime minister and government acting responsibly, and in the public interest, would have been explaining that the public and businesses had to brace themselves for the possibility – indeed probability – of such restrictions and to prepare accordingly.

But the prime minister went for easy claps and cheers instead.

Again, populism prevailed over prudence.

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Yesterday, this story was published by the government-supporting media.

The ugly truth, however, is that every single significant error in Brexit and with coronavirus has been because of the UK government ‘playing to its domestic audience’.

Every single one.

*****

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

Each post takes time, effort, and opportunity cost.

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

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‘Cancelling Christmas’ days after deriding the possibility shows how the prime minister is caught in the trap of populism

20th December 2020

Just days ago, at the last Prime Minister’s Questions (PMQs), this exchange took place.

Click and watch it.

At this point, the prime minister knew that there was a real risk that, to use the phrase, ‘Christmas would have to be cancelled’ – at least for London and the south east.

A responsible prime minister would have used the moment of PMQs – where there is a platform both before elected representatives and before the media and public – to prepare people for this sad possibility.

(Indeed, it may be that on Wednesday he knew that it was far more than a possibility.)

But what did this prime minister do instead?

He derided the leader of the opposition and he dismissed the risk.

We once had a prime minister – who was not without other faults – who candidly warned the public of sweat and tears.

We now have a prime minister who goes for claps and cheers.

Indeed, ‘populism’ can be illustrated, if not defined, by this prime minister sneering that others want to ‘cancel Christmas’ for claps and cheers – days before then having to cancel Christmas.

The constant putting-off of difficult decisions, and the promotion of easy answers.

(On this, this column by Rafael Behr is magnificent.)

Now some government-supporting politicians are spinning that this is a prime minister unafraid of difficult decisions.

This is untrue.

The difficult decision was not the one forced yesterday – there was by then no real choice – but at PMQs, where there was a choice to be made.

Does the prime minister tell members of parliament and the watching media and and public to brace themselves that something bad may happen – and to thereby give everyone time to plan accordingly – or does he go for the glib jibe?

Watch the footage again, and see what he decides to do.

It is difficult – genuinely – to imagine a more incompetent prime minister.

Yes, other government-supporting politicians – from the home secretary to the leader of the house of commons – would be just as dreadful.

But they would only be as bad in different ways.

For as, scientists tell us, one cannot go below absolute zero, one cannot go beneath a level of absolute incompetence.

No prime minister would have relished facing up to ‘cancelling Christmas’ for millions of people.

But our prime minister is caught in the trap of populism.

And politicians that can only play to the crowd invariably end up letting the crowd down.

*****

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

Each post takes time, effort, and opportunity cost.

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

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Law is not magic – and lockdown regulations are not spells

19th December 2020

Of  course, law is not magic.

Magic is about old men in elaborate robes, in oddly furnished rooms, saying or setting down words in certain special orders that will then have real-world effects on those to whom those words are addressed.

Ahem.

In fact, law has a lot in common with magic – or, at least, magical thinking – and not only in the facetious characterisation above.

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If we move from the courtroom to government, and indeed to the public more generally, there is a common view that to make a law against something is to deal  with it.

A thing should be banned, and so just putting some words on a piece of paper – or on a computer screen – and then saying some magic words – either

Izzywizzylet’s get busy!

or

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’

or some other similarly daft formula, the words will leap from the page – or the screen – and will change the world around us.

This is a habit of thought with which we are so familiar that is difficult to dislodge it from our minds.

But just setting out words, and chanting some special phrases, has little direct effect on anything – other than in respect of what meanings, concepts and values we in turn give to those words.

And with prohibitions, more is often needed for a thing to stop than for the words to have been typed ‘this thing is prohibited’.

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For some people, a prohibition may be enough: they will know that a thing has been banned and will act – or not act – accordingly.

For others, however, the banned thing can just continue – it is just that there is a risk that further instances of the banned thing may now be attended with certain legal consequences and, ultimately, coercive sanctions.

A person faced with such a risk may chose to eliminate the risk and not do the prohibited thing, or they may instead manage or even disregard the risk.

But unless one is in a totalitarian society, the mere threat of a coercive sanction is not enough – most modern societies rely on government by consent, and the state does not have sufficient resources to police everyone completely.

Put simply: laws and sanctions are usually not sufficient to effect behavioural change.

Instead many prohibitions work not because of words on a page, or because of enforcement, but because the purpose of the ban is aligned with social norms and is accepted (broadly) as legitimate – that the ban makes sense and is for a good purpose and so will be respected.

If a prohibition is not accepted as legitimate –  if it does not make sense or seems unfair or disproportionate – then no amount of legal magic or coercive force will give effect to the prohibition.

The prohibition then just breaks down.

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And now we come to the lockdown regulations.

The belief appears to be that just by making laws against social activity – either during Christmas or otherwise – is by itself sufficient.

That the government should lock down more firmly – and if the government does not do this, then it will be the government to blame if the pandemic spreads.

But typing banny words are not enough, with or without magic phrases, and there is certainly not enough police to enforce such banny words.

A lockdown will only be effective if people actually regulate their social behaviour in reality.

The government could issue regulations until it is blue in its face, but if there is a disconnect with social behaviour, then it is futile.

(And the sensible response to this is unlikely to be ‘more laws!” and ‘harsher penalties!’ – just as it is rarely a solution to bang one’s head harder against the wall.)

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Law and laws are only one aspect of how those who govern us can influence and control our behaviour, to get us to change from what we would otherwise do.

People have to understand the purpose and point of prohibitions, rather than to just be expected to comply with them when they are imposed.

And for this a government needs to be transparent and credible: there needs to be trust more than law, and policy rather than policing.

There needs to be leadership.

Resources need to be in place for testing, tracing, and treatments.

Fair account needs to be taken of other possible priorities, even if those other priorities are less important.

Prohibitions and coercive sanctions still have a role – but they are not sufficient by themselves.

In essence, a government needs to govern, and not just make laws.

That is what govern – ments do.

There should be no magic to this.

*****

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

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

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The shoddy legal direction of Gavin Williamson to Greenwich Council

15th December 2020

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

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

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

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

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

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

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

The relevant section of the Act is section 38.

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

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

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

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

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

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

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

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

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

How is this duty to be enforced?

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

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

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

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

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

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

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

These requirements are also imposed by the general law.

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

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

There is also no local data.

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

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

Has proper regard been made to local conditions?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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POSTSCRIPT

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

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

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

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

8th December 2020

We are now at the latest Brexit endgame.

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

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

And the United Kingdom has a difficult choice.

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

Take these terms or leave them.

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

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

The European Union’s way, or the highway.

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

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

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

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

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Is ‘no deal’ still possible?

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

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

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

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

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

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

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

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

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

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Could things have been different?

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

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

Yet.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brace, brace.

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Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

4th December 2020

A few days ago the Court of Appeal handed down its judgment in the Dolan case.

This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.

The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.

There are a couple of things in the judgment that are interesting from a liberal perspective.

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First, it was the approach of the court to the exercise of a freedom.

The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.

This is the sort of liberty emphasised by those who trumpet freedom under the common law.

The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.

For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.

Here is the court’s reasoning on freedom of movement.

And then on freedom of assembly.

To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.

The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.

Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.

And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.

That a person was never free to do anything, only to have the reasonable permissions of the authority.

What could possibly be wrong with that?

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In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.

Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.

On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.

The government, of course, chose the latter.

And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.

At paragraph 77 of the judgment:

“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”

The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.

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None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.

This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.

Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.

A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.

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Brexit makes no legal difference to the United Kingdom being able to authorise the new coronavirus vaccine

3rd December 2020

For the launch of any vaccine, credibility is essential.

And so senior government ministers and other politicians should not be lying about the regulatory aspects of the new vaccine so to score points for Brexit.

This is the Leader of the House of Commons, the cabinet minister responsible for the government’s legislative programme.

This is a health minister.

And this is a government-supporting backbencher.

You will see these statements are not about Brexit allowing the United Kingdom to authorise the new vaccine more quickly as a matter of policy.

Each statement directly and expressly attributes the speed of the authorisation to a change in the law made possible by Brexit.

This, however, is false.

The Medicines and Healthcare products Regulatory Agency confirmed yesterday it was acting under EU law when it it made the authorisation.

Even the Prime Minister did not endorse the claim that Brexit made any legal difference.

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The fact is that Brexit made no legal difference to the authorisation of the new vaccine.

Such an authorisation was (and is) possible under European Union law.

The relevant provision is Article 5(2) of the Directive 2001/83/EC.

Here is the proof in back and white.

European Union Directives do not necessarily need to be implemented to have legal effect, but for completeness the implementing domestic legislation for Article 5(2) is Regulation 174 of the Human Medicines Regulations 2012.

Until 31 December 2020 under the Brexit transition arrangements, Article 5(2) has legal effect in the United Kingdom – and even after 1 January 2020 Regulation 174 would still be part of domestic law.

Brexit therefore made no legal difference.

So what is the recent amendment mentioned by the politicians?

That appears to be a reference to the The Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2020.

But those regulations do not amend or directly affect Regulation 174 – you will see they skip straight over it and add supplementary provisions.

The recent amendment is thereby irrelevant to the legal ability of the United Kingdom to authorise the vaccine.

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The cabinet minister responsible for the government’s legislative programme and health ministers would know that Brexit made no legal difference to the United Kingdom’s ability to authorise the new vaccine.

They would know the correct legal basis for authorisation of the new vaccine: that is their job and they would have been briefed.

But they chose to knowingly promote a falsehood instead, just to score a point for Brexit.

This was dangerously irresponsible, given that any false statements about the new vaccine may be exploited by anti-vaxxers.

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The departure of Dominic Cummings

14th November 2020

Dominic Cummings is a genius at politics but was a failure in government about policy.

And this is because politics and policy are fundamentally different.

For example, politics can be linear while (good) policy will tend to be complex.

The approach of Cummings to the 2016 referendum and the 2019 general election was to be focused and unfussed about niceties and conventions and indeed the truth.

‘Take Back Control’

‘Get Brexit Done’

And so on, and many other statements, including those written on the side of a bus.

There are many things that one can and should object to in this electoral ruthlessness but it worked – twice.

Policy, on the other hand, is not (easily) amenable to such rush jobs.

Cummings believes, wrongly, that grand projects were easy, as long as you approached them with the right attitude.

On his blog, for example, he wrote about “the history of the classified programme to build ICBMs and the way in which George Mueller turned the failing NASA bureaucracy into an organisation that could put man on the moon. The heart of the paper is about the principles behind effective management of complex projects. These principles are relevant to Government, politics, and campaigns.” (Emphasis in original.)

He also published a series of posts on the unrecognised simplicities of effective action“, including this 31 page paper.

Such stuff must have been interesting and exciting to write.

But the examples he used were not transferrable, even if those examples were accurately understood to begin with.

And when faced with two immense policy challenges in government: the departure of United Kingdom from the European Union and the coronavirus pandemic, the heady precedents of the Manhattan Project and putting men on the moon turned out not to be that useful.

Successful policy making is hard and it can rarely (if ever) be done just by making strident demands from the centre and upsetting (in both senses of the word) all those on who you depend to implement policy.

And, as Cummings has said many times, the current planning and public procurement regimes may be cumbersome and problematic – but disregarding them so as to make decisions and award contracts with no safeguards against abuse is no solution to those problems.

The news yesterday is that Cummings has left government, though it is not clear the extent to which he will carry on ‘working from home’.

He had everything a policy blogger could have ever have wanted credibility (after those two electoral victories), a place in the centre, direct access to the prime minister, and a large majority.

He even had immense policy challenges in Brexit and Covid to which he could apply and show off his policy prowess.

But it did not work out, and his substantive policy achievements were such that they could fit in a cardboard box.

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