Category: Coronavirus – COVID-19

Boris Johnson’s Triple-Whammy of Unlawfulness

12th April 2022

Constitutional law is not supposed to be interesting.

Constitutional law is supposed to be boring.

And Boris Johnson could not make it any more exciting.

To take three examples.

First, the Supreme Court held that he gave unlawful advice to the Queen over prorogation of parliament.

(An incident that managed to engage all four of the monarch, parliament, the courts and the executive – the constitutional law equivalent of a full house.)

Second, his government actually introduced legislation to Parliament to enable it to break the law.

(Just typing that seems strange – but it happened, although the government averred that the law would be broken in a “limited and specific” way.)

And now, an even more extraordinary thing has happened.

The prime minister has been found by the metropolitan police to have broken this governments own laws on gatherings under lockdown.

And the necessary implication of this sanction is that the prime minister knowingly misled parliament when denying such a gathering took place.

He cannot even say he was misinformed, as he was at the gathering himself.

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Johnson has not been prime minister a long time, and there are many prime ministers who have been in office far longer with far less constitutional excitement.

Of course he should resign – but that is not the point of this blogpost.

The point instead is to convey the sheer magnitude of what Johnson has ‘accomplished’ in his trashing of constitutional norms – and in under three years..

Just one of the above examples – and there have been many more, it is just those three came readily to mind – would be career-ending for a politician in any normal political system.

And that even now nobody knows if he will resign is an indication of how abnormal politics are at the moment.

It takes a certain quality for a prime minister in three years to contrive this triple-whammy of unlawfulness.

Indeed, it is difficult to conceive what he could still yet do as a fourth instalment.

Brace, brace.

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Partygate returns – and a reminder about how this still matters in constitutional terms

29th March 2022

The ‘Partygate’ problem has come back for both the Prime Minister and those who work(ed) with him in Downing Street.

Perhaps he – and his political and media supporters – had hoped the fog of war in Ukraine would obscure this ongoing political crisis from view.

But: no.

It is here again – and in this latest stage there are fixed penalty notices for a number of Downing Street staff.

These – in effect – fines appear to be just the first round, and it may be that further penalties are issued.

There may even be one issued to the Prime Minister.

Currently Downing Street is maintaining that no rules were broken – even though these fixed penalty notices mean that the Metropolitan Police have reasonably concluded after investigation that offences have been committed.

Perhaps Johnson and his staffers want ‘their day in court’ before they accept any rules were broken.

This is all engrossing political drama – even political soap opera.

So it is important to not overlook why any of this really matters.

It matters for two reasons.

First, it is about legality.

Those in government are not above the law – and certainly not above the coercive restrictions that almost-casually imposed upon the rest of us during lock-down.

(By ‘casually’ I mean that the rules were imposed often without proper parliamentary debate or scrutiny and were often published at the last moment before taking effect.)

Second, it is about accountability.

The Prime Minister expressly told the House of Commons that rules were not broken and that he was unaware of the pandemic of partying in Downing Street.

On the face of it, it looks as if the Prime Minister was lying.

Of course, in the real world, politicians lie all the time.

But, taking such a cynical view at its highest, there should still be some adverse consequence to a Prime Minister misleading the democratic house of parliament.

‘Partygate’ is only incidentally about parties – the triviality of the circumstances co-exist with serious issues of legality and accountability.

And that is why it has not been obscured by the fog of war.

The problem of legality and accountability is still there, and it needs to be addressed.

And until and unless the problem is addressed, the problem will continue to de-stabilise British politics – because it is not really about partying at all.

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Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.

The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.

First, the court placed the police decision-making under anxious scrutiny.

This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.

This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.

Second, and just as refreshing, the court took the legal right to freedom of expression  – under Article 10 of the ECHR – seriously.

This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.

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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.

Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.

Well done to all who were involved.

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Today a “senior ally” of the Prime Minister appeared to place improper pressure on the police

11th February 2022

This was an interesting tweet from earlier today:

So much to unpack in this.

But perhaps the most striking thing is that such an utterance was made at all.

The journalist is experienced and well-regarded, and so we can safely assume this was said by someone.

Journalistic convention means “senior ally” could mean a range of people – including Boris Johnson himself – but it would be someone significant.

And what is this “senior ally” doing with this speech act?

Well.

It appears that they are seeking to influence the police investigation.

Indeed, in this context, the statement quoted could even amount to an attempt to intimidate or otherwise wrongly place pressure on the police.

You may remember that the Prime Minister said that there would not be “a running commentary” on the police investigation.

Well, this quoted remark is more of  “a getting carried away” commentary.

The correct position for the police would be to disregard such a statement – though it may irk them into imposing a sanction just so to show their independence.

And the correct position at Johnson’s end would be for a “senior ally” to have not said this at all.

But looking at the two Swinford tweets above, you get the sense that this is some “barrack-room” (or “cabinet-room”?) non-lawyer coming up with some clever-clever line – though one which would not survive contact with legal reality.

Such spinning and framing may work with the lobby, and thereby influence media processes, but it will not work with a legalistic process.

Wrong tool, wrong job.

Since that reported statement, it would seem wiser “allies” are aware of the unfortunate impression that statement gave:

That Downing Street even had to put out such an assurance is, by itself, telling.

It tells us that there are some in Number Ten who realise the legal danger the Prime Minister is in – and that effectively taunting the police is not a sensible tactic.

Perhaps this strange moment will be forgotten – but what may linger is the sense  that Johnson – either through his “senior allies” or otherwise – has a lack of seriousness about his legal peril.

That grave problems can be got out of by such desperate expedients.

Johnson and his “senior allies” should brace, brace.

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Sue Gray’s time bomb – why this “update” means more trouble for the Prime Minister

31st January 2022

An “update” of the Sue Gray report was published today.

It did not say a lot – but it said enough.

Any competent close reading of the update would indicate that the final report will be even worse for the (current) Prime Minister.

There are (at least) three “gatherings” under criminal investigation that the Prime Minister either attended or knew about.

And for there to these gatherings to be a police matter means there is already evidence of serious and flagrant breaches.

And there are nine other gatherings to be investigated by police.

Given that the report – even in these stymied conditions – was able to say the following, this could not be more serious for the Prime Minister:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Accountability for these Downing Street parties – while everyone else was under strict lockdown – is only a matter of time.

That is why this report is a timebomb for Boris.

And in any sensible political system, the Prime Minister would now resign than let this timebomb explode.

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Perversion of the course of public business – today’s clumsy Met intervention in Partygate

28 January 2022

Sometimes things are not straightforward.

And sometimes things just become more complicated.

Today was one of those times.

This morning the Metropolitan Police took it upon themselves to request that the Sue Gray report only makes “minimal reference” to matters in respect of which the police are investigating.

The effect of this intervention may be that the report is published without detail of the more damaging aspects of the Downing Street partying.

This truncated/redacted report may even “clear” the Prime Minister – at least according to his political and media supporters.

There would also be the prospect of the police investigation taking no further action, with the damaging details never being made public.

This is probably more an accident than a design – but the effect is likely to be to potentially cloak the more damaging detail from parliamentary and public view.

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It is difficult to understand the Metropolitan police position.

As breaches of the (obviously relevant) Covid rules are summary only then there is no risk of prejudicing a jury trial.

Perhaps they want to disclose information in their own way in any interviews with suspects – but such investigatory convenience should not be an absolute check.

The world should not be organised entirely for the benefit of the police – especially when they have been tardy.

Perhaps there are more serious offences afoot – the alleged direction that “mobiles should be cleaned” could, depending on circumstances, be perversion of the course of justice – and some are saying (with hope more than expectation) that there may even be grounds for charges for misconduct in public office.

But what makes the police position preposterous is that they delayed investigating at all until the Gray inquiry did the police’s job for them.

And now the police have belatedly decided to do their job, they now wish to interfere with the normal course of public business.

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All this continues to undermine political transparency and parliamentary accountability.

Inquires and investigations often take matters away from the floor of the House of Commons or the press conference, and ministers and their supporters get a rhetorical (and sometimes legal) basis for not answering questions.

“We need to wait for…”

And politicians don’t need much excuse to not answer questions.

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The Metropolitan Police have, of course, an interest in this matter.

The parties took place bang in the middle of no doubt the most heavily policed area of the UK – Whitehall.

And the parties took place while the police were freely handing out huge fines to those breaking Covid rules elsewhere.

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Had the Metropolitan Police investigated this matter properly when it should have done – and there can be no evidence before Sue Gray and her team which is not capable of being ascertained by the Police with their greater investigative powers – then the police would not now be disrupting the publication of a report.

And there is perhaps a lesson here for those who clamour for police investigations of politicians and their circles: be careful what you wish for.

Police investigations do not always go in accordance with wishful thinking.

Sometimes police investigations can pervert the course of public business.

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Two things about the launch of the Met’s Downing Street investigation

25th January 2022

Well.

Downing Street is now bing investigated by the Metropolitan Police.

And we are told that the Sue Gray report will not be ‘paused’ – and that it may even be delivered to the Prime Minister this evening, with it being published tomorrow.

What can be usefully said about this?

Perhaps two things.

First, look (again) at the Terms of Reference – that is the best corrective to getting carried away with what the report may or may not include.

In particular note that it is structured as a fact-finding exercise.

Indeed, had Gray been tasked with apportioning culpability then there may have been reason for the report to be delayed pending the police investigation.

What Downing Street gained by making it a fact-finding exercise they lost by not having a plausible excuse for it to be delayed at this stage.

And second, note that the Terms of Reference say:

“As with all internal investigations, if during the course of the work any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police and the Cabinet Office’s work may be paused. Matters relating to adherence to the law are properly for the police to investigate and the Cabinet Office will liaise with them as appropriate.”

This probably means that a government lawyer has had to advise on whether the threshold has been met for evidence to be referred to the police.

And – if so – this means that on that advice, Sue Gray has been satisfied that evidence does need to be referred.

In essence: for this evidence to be referred a government lawyer and a senior official have already had to be satisfied of its seriousness.

And, in commencing an investigation, the police concur.

This does not mean that anyone is necessarily guilty.

Suspicion does not mean guilt.

But.

The evidence uncovered is so serious that a certain threshold has been met.

Brace brace.

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Why the Downing Street parties matter from a law and policy perspective

22nd January 2022

If one day some unlikely but bored person was browsing the internet and looking through old posts on this blog, they would wonder why so many recently have been about parties over a year ago in Downing Street.

Russia is being aggressive in Ukraine, key voted and court cases are being lost in the United States, and this government is pushing through illiberal legislation on protests and refugees.

Surely, that person would ask, there were more important things in January 2022 for a law and policy blogger to write about?

Well.

They may have a point – and perhaps it will look odd.

But.

Law and policy bloggers and other commentators have to  deal with situations as they find them.

And the Downing Street parties, which on one level are the most trivial of things, are significant in practical law and policy terms – and not just because of the public interest in the subject.

The Downing Street parties and the Sue Gray investigation raise crucial questions about accountability in action: the Prime Minister and other ministers are using a civil servant (who is not even the most senior official in her own department) as the means of avoiding and deflecting accountability to the House of Commons.

By itself, this makes the affair of key constitutional significance.

The result of this report may lead to a Prime Minister losing office – a possibility that by reason of our uncodified constitution and its lack of formal mechanisms for removing sitting Prime Ministers from office is always one of the most fascinating moments that law and policy can provide.

The news story also indicates – perhaps demonstrates – the contradiction in the attitude to rules between the partying elite in Downing Street and the obligations which were accepted (and imposed) upon the rest of us.

And the Downing Street parties issue also shows us about the extent to which our body politic can deal with the political food poisoning  caused Boris Johnson’s ceaseless dishonesty – can it be vomited out?

Or will linger in the system, causing increasing pain and consternation?

(I had severe food poisoning over Christmas, and so this analogy comes readily to mind!)

Of course: the incidental subject matter is of little importance.

But sometimes little things can be a useful way into big things.

And there are few bigger things in law and policy – and in our constitutional affairs – than about how a Prime Minister can be removed, about how accountability of the government to parliament can be enforced and avoided, about the legitimacy of rule-making and the tolerance of law-breaking,  and whether the system is robust enough to survive the subversive hyper-partisan dishonest politics of Johnson.

So this is why this blog is following this situation so closely.

Who knows what will come of it?

What do you think will happen?

Comment below.

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A day in court

21st January 2022

Today – with my lawyer’s head on – I spent the day in an actual court at an actual hearing, my first since at least 2019.

And the dynamic was absolutely different to online hearings, so much that it felt like going back in time with Bill and Ted or the Doctor.

Not just different in quality, but different in the very nature of the advocacy and the the interaction with the judge.

I happen to be a great fan of things being done virtually whenever possible, from parish council meetings to parliamentary committees.

I am disdainful of ceremony and ritual, and of the theatre of politics and the law.

I do not like politics and law to be cosplay exercises that are better suited to historical enactment societies and fan conventions.

I would place wigs and gowns into the museums in which they belong.

If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.

But.

Strip away all of the daft paraphernalia, there are still the intellectual and forensic exercises that do not need stage props to make then interesting, even compelling.

And such exercises in the same room are radically different to lots of muted faces on a zoom call.

I was not expecting this.

I thought virtual hearings had superseded the need for actual hearings.

But I was wrong.

Some things cannot be replaced by a virtual substitute.

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The preposterous excuse of the Prime Minister – and why it matters

18th January 2022

It somehow keeps on getting worse.

Watch the Prime Minister’s interview today with Beth Rigby of Sky News in full:

In essence, the Prime Minister said he did not know what was happening in front of his very eyes was breaking the rules – because nobody told him.

He was head of the government that made the rules.

He gave press conferences and told the House of Commons about the rules.

If anyone had to know the rules – which were then unprecedented in peacetime – it would have been the head of the government formulating, implementing and enforcing them.

But he says he did not know that rules were being broken – for twenty-five minutes and in front of his face.

And this matters – and not just because of the current political drama.

At the same time as the Prime Minister’s drinks party, individuals up and down the country faced criminal liability for breaking coronavirus regulations.

We did not have the leisurely weeks of a Sue Gray investigation so as to ascertain if they broke the rules.

We had to make instant decisions.

And if we did not make the right decisions, the police had in turn to make their own instant decisions.

Everyone was expected to understand and follow the rules.

The situation is – utterly, literally – ridiculous.

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