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.
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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Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.
There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.
But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.
And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.
That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.
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More seriously.
Some say there is something unsatisfactory about the appointments this week.
Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.
And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.
Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.
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But.
What – if anything – should be done?
It is one thing to say there is a problem, and it is another one to solve it.
Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.
Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.
But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.
Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:
I consider that the secrecy, involvement of SC justices in process, and "consultation" of senior judiciary are the routes by which subconscious biases most easily enter. They favour self-replication. If asked what merit looks like, it's too tempting for judges to say: "like us".
That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.
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Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.
So I asked them.
Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:
“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people.
“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.
“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court.
“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.
“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:
Lord Reed of Allermuir (Chair)
President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE
Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas
Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar
Chair of the Judicial Appointments Commission
Sir Geoffrey Vos
Master of the Rolls and Head of Civil Justice
“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament. As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer.
“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.
“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.
“To give you some background: the strategy does not address the appointments process which is governed by statute. Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.
“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”
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So the positions were advertised, and the selection commission would seem to be a model of diversity.
There are things in what the spokesperson said there which are good to see.
There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.
And the process could be more transparent – with, as Rose avers – published shortlists and criteria.
So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.
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But.
In the end, despite the above process, two more Davids were appointed.
Does this mean that the Supreme Court should do more?
Can it – or those who control the process – do anymore?
Or is this a wider problem in the legal system which needs a wider solution?
***
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Yesterday’s post caused a little bit of excitement elsewhere on the internet, and so I think it may be useful to set out the core of that longer post in one shorter post today.
The reasoning for my argument is as follows.
1. There was communication between the Prime Minister and the Queen.
This is not in dispute, and the evidence before the court was that a formal telephone call was to take place on 27 August 2019 between the Prime Minister and the Queen the day before she would be attended by Privy Councillors to make the relevant order.
The reason this was a telephone call was because the Queen was in Balmoral.
2. In this telephone call the Prime Minister would have given reasons for the prorogation order.
This should not be a controversial point, as that would have been the purpose of the call, and the Queen and her private office would have wanted to be confident that all was proper and constitutional.
That the Prime Minister would have given reasons is supported by the witness evidence for the prorogation case of the former Prime Minister John Major:
3. The reasons the Prime Minister would have given would have been those recorded in the contemporaneous documentation.
As the litigation revealed, there had been internal documentation created in August 2019 which purported to set out the reasons for the prorogation.
In essence, the purported reasons were as follows:
“The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”
The Prime Minister is unlikely to have admitted that the reasons for the prorogation was to stymie parliamentary accountability in the run-up to the then exit day of 31 October 2019.
4. The reasons he would have given were not the real reasons.
The Scottish appeals court – the Inner House of the Court of Session – found that the request for a prorogation had an “improper motive”.
“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”
The reasons given were either improper or insufficient – but in either case the reasons were not accurate.
They were not the real reasons.
5. Those who put forward those reasons knew them not to be the real reasons.
This point is in part based on the Scottish appeal court’s finding of improper purpose, but it is mainly based on the absence of a signed witness statement from a minister or official setting out the reasons for the request.
This absence was conspicuous – and it was referred to in the litigation.
The government lawyers just put in as relevant evidence the contemporaneous documentation quoted above.
The Supreme Court expressly set out the consequence of the lack of witness evidence in the passage already quoted above (different emphasis added):
“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”
The need for such a witness statement would have been obvious to the government lawyers and would have been reported to senior officials and ministers.
But still nobody seemed willing, under the peril of perjury, to put their name to the purported reasons.
Had the reasons given in the contemporaneous documentation been the correct reasons then there would have been no problem whatsoever in setting them out in a witness statement.
And so there can only be one plausible explanation for the lack of a witness statement.
Those in a position to know the real reasons knew the reasons stated in the documentation (and thereby the reasons which would have been given to the Queen) were not the true reasons.
Conclusion
Given the above points, the conclusion seems to me to be inescapable.
When the Prime Minister spoke to the Queen to give reasons for the prorogation, he knew those were not the correct reasons.
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If anybody can show a fault with any of the five points above, or with my chain of reasoning, or with my conclusion, then I will be happy to adjust my view or recant it outright.
***
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The comments are critical of the headline and of the apparent source of the headline, which is me.
I am quoted in the article, on the front page, as follows:
“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””
This seemingly renders me the source of the “Boris lied to the Queen myth”.
Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.
I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.
(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)
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Do these critics have a point?
One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.
The “in effect” was not mere surplusage – I used the phrase for a reason.
Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.
But I did not say that, because I did not mean that.
I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.
And so I cannot defend the Mirror headline, and I do not do so.
It is not the headline I would have chosen for the piece that quoted me.
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And there is another preliminary point.
The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.
No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.
The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.
Any judgment is a text and my role as a commentator is to place that text in a context.
This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.
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But.
That is not good enough.
Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?
Let us see.
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We now need to go back in time and remind ourselves of the relevant dates.
It was 2019, and the United Kingdom was still a member of the European Union.
The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.
Johnson became Prime Minister in July 2019.
On 28 August 2019, the Queen made the following order:
“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”
The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.
But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.
As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).
But the legal question at the time was whether the prorogation was lawful.
And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.
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The prorogation faced legal challenges, including one in Scotland.
15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”
16 August 2019 – the Prime Minister wrote the following response:
“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust
2. So I don’t see anything especially shocking about this proposition
3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.
23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:
“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”
The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).
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So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.
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The Scottish court decided as follows:
“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”
The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.
They were false reasons.
The court stated that there had been an improper purpose.
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Now we come to something which was missing from the case – and from the concurrent case in England.
The dog that did not bark in the night.
As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.
This lack of a witness statement was referred to in the judgment:
“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.”
This absence, in my opinion, was and is highly significant.
Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?
If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.
The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.
If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.
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This is when I wrote the article which was quoted by the Daily Mirror.
My reasoning was as follows:
1. There had been contact with the Queen by telephone, as well as a formal advice.
2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.
3. Those reasons were not the true reasons for the prorogation.
4. Those giving the reasons knew that that they were not the true reasons for prorogation.
Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.
Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.
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The Scottish case, like the concurrent English case, then went to the Supreme Court.
This was after my statement which was quoted by the Daily Mirror.
The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.
It approached the case as follows (my emphasis added):
“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”
The crucial element here is the requirement for a “reasonable justification”.
And again, that lack of a witness statement made all the difference (emphasis again added):
“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”
That dog was still not barking.
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Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.
(I have since spoken with a number of people involved in the case, and they agree.)
The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.
But still no signed witness statement was forthcoming.
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So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.
But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.
And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.
If someone can come up with a better explanation than the above for (a) and (b) then I will change my view and recant.
But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.
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POSTSCRIPT
I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:
***
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The case was about whether a toy was a stuffed toy or not.
In particular, as the tribunal put it, it was about “how two soft children’s toy animals that contained a soundbox that produced soothing sounds, intended to assist babies and children to sleep, should be classified for Customs purposes”.
If the toy was regarded as a stuffed toy its classification would have one tax consequence, and if it was not a stuffed toy it would have another consequence.
And so, eight years ago today, in Bedford Square in London, a two-person tribunal earnestly debated with two barristers about the nature of stuffed toys.
The judgment is a joy:
“The Appellant’s principal contention had been that when there was no definition of the word “stuffed”, one should look to the intended use of the product to decide whether it was stuffed. In that quest, the word “stuffed” should be taken to suggest a toy designed to be cuddled and played with by babies and children.”
Against this, the HMRC’s barrister contended:
“The products could hardly thus be said not to be stuffed, when as a pure physical matter of content they were stuffed and they plainly looked to be stuffed, and when, even on the Appellant’s test that “stuffed” meant that the toy was suitable to be cuddled, it was indeed asserted that it was a “cuddly companion and toy”.”
The tribunal considered the point carefully:
“While there is no definition of the word “stuffed” in the present context, its meaning is relatively obvious, and indeed in turning to consider the function of the product and then asserting that stuffed products can be identified because they will be soft to cuddle, the Appellant itself assumes the same obvious meaning of “stuffed” in reaching the conclusion that it must mean something along the lines that will make a toy cuddly. And what makes a toy cuddly is of course the insertion of stuffing…”
And so the tribunal concluded, with a straight face:
“this product is a cuddly toy, and that it is stuffed.”
All good fun – and it is one of those cases, like the Jaffa Cake case, which lighten up the reports of tax cases, and so add to the gaiety of the nation.
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But why is this case of interest on 4 August 2022, eight years later?
Because the victorious HMRC barrister in that case is now the Attorney General, Suella Braverman.
And the case is significant because it shows that Braverman’s bread-and-butter at the Bar was everyday public law cases.
It is often contended that Braverman is not qualified or sufficiently experienced to be an Attorney General.
But in fact she was a perfectly competent barrister specialising in public law cases and indeed was appointed to the Attorney General’s panel to conduct cases on behalf of the government.
As far as can be ascertained, the Attorney General had a good, wide-ranging public law practice, including advising on human rights law.
This blog is not a fan of the Attorney General, but it is important to be fair and accurate in what can be criticised.
It is sometimes assumed – perhaps condescendingly – that the reason why some politician-lawyers are illiberal about the law is because they do not really understand the law.
But the thing about Braverman and also the Lord Chancellor Dominic Raab is that they do have experience in and knowledge of public law.
Some may say that makes their illiberalism worse – for they “should know better”.
I think that is the wrong approach.
I think one should credit the illiberals with knowing and understanding the relevant law – it is just that they do not care for it.
And this means that those of us who are liberal in their approach to the law need to make a more compelling case for it than assuming the conservatives do not “get it”.
***
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On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:
The retirement was to be on 10 January 2020.
This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.
Lady Hale’s retirement by 31 January 2020 was thereby inevitable.
There was nothing she – or anyone else – could do about it.
This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.
“With iron determination we saw off Brenda Hale and we got Brexit done.”
But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).
So what did he mean?
In terms of practical litigation, the statement also makes no sense.
The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.
Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.
So presumably he does not mean that, either.
*
What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.
The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.
But the more ardent supporters of Brexit did not – and still do not – see it that way.
And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.
If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.
Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.
If so, these interpretations would accord with something else the Prime Minister said yesterday:
“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”
Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.
Perhaps him using that terms is an indication of the deep state we are actually in.
If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.
This is not a healthy frame of mind.
And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.
*
Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.
The worst thing of all is Johnson’s apparent belief that it would be something to crow about if he had indeed been responsible for Lady Hale’s stepping down.
Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.
As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.
Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.
And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.
Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.
But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.
For, if anything, that is what needs to be “seen off”.
***
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Of course, there are always odd and worrying things happening – increasingly in the area of law and policy.
But this is a rather odd and very worrying thing.
It is the curious incident of the government’s legal advice on its forthcoming proposal for the Northern Irish Protocol.
But to understand why what is happening is just so very odd and very worrying, we need to go back in time and also to understand how legal advice works in government.
*
The current government of the United Kingdom does not like the Northern Irish Protocol of the Brexit withdrawal agreement.
This is itself odd, as it is the same government, with the very same Prime Minister, that changed the previous policy on this, negotiated and signed the agreement, sought and obtained a general election mandate for the agreement, and pushed it through into domestic legislation.
The current government, and our Prime Minister Boris Johnson, could not have done more to go from scratch in putting the Northern Irish Protocol in place.
But they have come now to regret this once “oven-ready” agreement.
And they would like it to change.
The problem, of course, is that it takes all parties to an agreement to change an agreement – and the counter-party here is the European Union, and it does not want to change the agreement.
So what is the United Kingdom government to do?
*
The government tried – remarkably – to break the law,
It is astonishing to type this, and it should be astonishing for you to read this, but that is what the government sought to do, openly and expressly.
The breach was framed – you may remember – as breaking law “in a very specific and limited way”.
The Advocate General – a government law officer – resigned, as did the government’s own most senior legal official, the Treasury Solicitor.
They were right to do so – it was an extraordinary and preposterous thing for the government to do: an outrage, constitutionally and otherwise.
The government did not go ahead with this ploy.
The government learned its lesson.
The lesson was never to openly and expressly state that you were intending to break the law, either “in a very specific and limited way” or otherwise.
*
Since that botched approach the government has been very careful to say that what it is proposing does not break the law.
What the government actually wants to do, in substance, has not changed.
But now it wants to have legal cover for what it wants to do: to be able to say that a thing is lawful and not unlawful.
And under that cover, you can see through the fabric ever more desperate contortions and distortions.
Within the government there will be those insisting that there has to be “sign off” on the legalities of what is being proposed.
It is similar in this way to the attempts within government to get legal cover for the Iraq invasion, which led to the resignation of the senior government lawyer Elizabeth Wilmshurst – her resignation letter is here.
You may recall how the legal advice within government was then being chopped and changed until the advice was what the then Prime Minister Tony Blair and Foreign Secretary Jack Straw were happy with and also satisfied service chiefs and senior civil servants who wanted legal sign-off.
What happened behind the scenes came out at the Iraq Inquiry:
The Chilcot Inquiry concluded that the “circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory”.
You will see from the BBC report above, the government was shopping around for the legal advice that it wanted – because it did not like the advice of the responsible government lawyer.
In the end the then Attorney-General Lord Goldsmith managed to provide (that is, concoct) the advice the government wanted, instead of the advice of the relevant government lawyer.
And although that was a Labour government, as opposed to the current Conservative government, there was an important lesson learned and committed to institutional memory.
The lesson learned was that it is better not to shop around for new, alternative advice if you can say that you have not had adverse advice in the first place.
*
Now let me introduce you to the Devil.
That is, the “Treasury Devil” – the nickname for First Treasury Counsel.
In essence, the Treasury Devil is an external senior barrister who is activated when the government has a Really Serious Legal Problem.
Usually, this means going to court to represent the government in the most difficult and serious legal challenges.
Or it can mean advising in advance when a difficult and serious legal challenge is foreseeable.
The Treasury Devil is the legal cross between Winston Wolf and Mycroft Holmes.
He or she solves the government’s trickiest legal problems, or sits there and advises the government how best to deal with those problems in advance.
Some of the greatest judges were once Treasury Devils: Lord Slynn, Lord Woolf and Sir John Laws, as well as one member of the current Supreme Court, Lord Sales.
(I happen to be a former government lawyer, and I know of one instance where an impending legal problem was put before the Treasury Devil well before there was any litigation.)
Referring such a matter to the Treasury Devil is not routine – it is exceptional.
But it is a thing (despite what some other commentators asserted).
Indeed, when it is as plain as a pikestaff that something important will be challenged – perhaps all the way to the Supreme Court – then it is a very prudent thing.
That sometimes the Devil will be consulted on potential legislation has been affirmed by a well-regarded expert on legislation:
The current Treasury Devil is Sir James Eadie.
And you can see some of this Devil’s handiwork here.
*
Now, back to the Northern Irish Protocol.
Recently, a post on this blog set out an interesting shift in rhetoric from the current Foreign Secretary:
The Foreign Secretary had said:
“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.
“Our preference remains a negotiated solution with the EU.
“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]
“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”
In other words, the government was now to ‘comply’ with international law.
Applying the first of the lessons set out above, the government was now going to be lawful, not unlawful.
They had found a way to call what they wanted to do lawful.
“The attorney-general has approved the scrapping of large parts of the Northern Ireland Brexit deal amid mounting cabinet divisions over the plan, The Times has been told.
“Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.
“In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.
“Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”
“Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”
Suella Braverman, the Lord Goldsmith of her generation, had found a way.
Some of the vocabulary in the Times report is not strictly accurate – what is being described is reasoning and advice, not evidence or submissions – but it would appear that the newspaper had sight of the advice.
Internal, legally privileged advice had been leaked.
The desired legal advice was now in place, and the government could now do what it wanted to do anyway with the Northern Irish Protocol.
*
But.
There was one thing which could ruin this exercise in political and legal expediency.
Applying the second lesson set out above, the government needed this to be the only legal advice in town.
Whitehall was not going to be big enough for more than one advice, given the speed with which the government wanted to proceed.
A second opinion – usually helpful – would be most unhelpful to the government.
There would not be enough time to do what Goldsmith had once managed to do with the unwelcome foreign office advice.
Like the final scenes of a situation comedy, those in government would be desperate that somebody else was not asked certain questions.
*
Now we come to this week’s news.
Again internal government legal correspondence and advice has somehow found itself into the public domain.
More internal, legally privileged advice had been leaked.
.@politicshome understands, as @SamCoatesSky reports, that First Treasury Counsel James Eadie was *not* consulted by government on the legality of the Protocol legislation
Eadie would be expected to be asked for his opinion on such a high-profile & consequential bill – v unusual
Payne (a fine political journalist but not a legal specialist) may not be entirely correct here – for as set out above, the Devil is not consulted routinely on legislation.
But if something big was afoot, it would not be unusual for somebody somewhere in senior government to suggest that this is a matter for First Treasury Counsel.
“Correspondence seen by PoliticsHome has cast doubt over the government’s argument that its plan to override parts of the post-Brexit treaty without an agreement with the European Union would not breach international law.
[…]
“The government insists that this would not break international law. Suella Braverman, the attorney general, approved the plan having concluded that it was legal, The Times reported last month. When unveiling the plan to parliament, Foreign Secretary Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”.
“But in the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.
“They add they find that position “more convincing” than the view put forward by Braverman and others that the government was on solid legal footing in pursuing unilateral steps.”
*
Sam Coates, another fine political journalist, reported at Sky:
“…Sky News is told that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, has not been consulted on the question of whether the plans to overhaul the Northern Ireland Protocol will break international law.
“He is nevertheless understood to have indicated he believes it will be very hard for the UK to argue it is not breaching international law if it goes ahead with some of the moves under consideration.”
“Last night Sky News reported that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland Protocol would break international law.
“Sir James Eadie was consulted about the forthcoming legislation.
“However – in a highly unusual and possibly unprecedented move – he was asked not to give a specific legal opinion on whether the plan would breach international law.
“For the first time we can set out in detail what Sir James said.
“Eadie starts by confirming that the government has received advice from an array of other lawyers about the international legal issue raised by the planned protocol legislation.
“He goes on to say that he has been asked only to “assume” there is a respectable legal basis on which to support the arguments made by the other lawyers.
“He says he is happy to comply with this request – “I do so,” he writes – but then adds “I am not asked to opine on the merits of those views”.
“Sky News understands it is extremely rare for the First Treasury Counsel not to be consulted on an issue such as this, and be directed by government to rely on the opinion of others.
“However Eadie’s agreement to do as directed – and rely on the view of other lawyers – allows the government to say he was consulted more generally and is on board with the plan.
“Inconveniently, however, he is understood to have then volunteered a view in his submission: that he found the argument of one particular lawyer advising government “considerably easier to follow and more convincing”.
“The lawyer he cites says that it would be “very difficult” for the UK to argue it is not “breaching international law”.”
*
What appears to have happened is as follows: the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel; a clever compromise was reached where it would be referred to Eadie on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.
This is hilarious.
And it is now a mess.
One significant issue here is not that the Devil was not formally consulted – it is rare for First Treasury Counsel to be involved in pending legislation.
It would not normally be a snub.
The significant point is that for Eadie’s name and position to be even mentioned in this leaked correspondence can only mean there is almighty row going on in government over the legality of these proposals.
Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.
And not only has somebody senior insisted on this – they are so senior (or important) that they have partially got their way, and what looks like compromise instructions were then given for the First Treasury Counsel for advice.
We now have the extraordinary situation that there is convenient legal advice and also very serious grounds for doubting that advice (though not formally competing advice, because of the assumptions).
This is the worst of both worlds – for at least in the Goldsmith/Wood situation above, there could be and was a decision to prioritise one advice over another.
Here there is only one advice, and it is dubious – with no less than the Treasury Devil saying so.
*
And now, there has even been an urgent question in Parliament.
Also confirmed:
Urgent question from @amcarmichaelMP: "To ask the Minister for the Cabinet Office if he will make a statement on requests made to the First Treasury Counsel to assess government proposals to override the Northern Ireland Protocol."
— UK House of Commons (@HouseofCommons) June 9, 2022
The government is hiding behind a convention of legal privilege that it has already undermined by giving incomplete and inaccurate information to MPs in order to assert that its position is legal. The legal advice must be published, in full. https://t.co/E3Cs8lrbKI
— Alistair Carmichael MP (@amcarmichaelMP) June 9, 2022
The government minister said – with a straight face – that despite the several leaks in this matter, the government does not by convention usually disclose legal advice.
*
What we have are leaks of the Attorney General’s advice and leaks of the seeming compromise advice from the Treasury Devil, which casts serious and significant doubt on the Attorney General’s advice.
The supposed legal cover has, well, had its cover blown.
The government has now placed itself in a difficult position – by its own shenanigans.
It must have seemed such a good idea to get legal cover in this way – but it has now created a situation where somebody is in a position to leak legally privileged advice indicating there is an utter mess internally.
This is where a misconceived, seemingly clever way of getting legal cover gets you.
*
The true political problem here isn’t that First Treasury Counsel was not consulted in respect of the new proposals for the Northern Irish Protocol.
The problem is that the government tried to go out of its way not to consult First Treasury Counsel when somebody with sufficient clout insisted on it, and then the government only did so with “assumptions” so as to limit the scope of the advice.
And now it seems the government wants to suppress and disregard the First Treasury Counsel’s serious doubts as to legality.
This is an extraordinary situation.
When news broke about the Eadie advice, I tweeted that this was an extraordinary and potentially highly significant and worrying development.
Some wrongly took the development to which I referred to be that Eadie had not been consulted.
No.
The extraordinary and potentially highly significant and worrying development is that Eadie was involved at all, was being mentioned in internal emails as an alternative source of advice, and that we knew any of this about it.
That there are serious rows inside government, botched attempts to get legal cover, and frequent leaking of privileged advice is very worrying indeed.
Something odd is happening.
**
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Whatever is – and is not – in her published report, it is more likely than not to be in accordance with these terms of reference.
It is also useful to remind yourself of her truncated interim ‘update’.
That update indicated – though not in any definite way – where there may be problems for Downing Street when the final report is published (see this blog’s previous post here).
Two paragraphs of the update, in particular, are worth reminding yourself of:
“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.”
Whether the report leads to any political change – and whether it is, in fact, the timebomb suggested by the earlier post – is, of course, determined by politics and the remarkable capacity of the current Prime Minister to evade accountability.
*
The second consequence of Partygate is – on the face of it – potentially more significant constitutionally.
This is the House of Commons committee’s investigation into whether the Prime Minister misled parliament.
Here a difficulty for the Prime Minister is not so much whether he realised the parties he attended were unlawful gatherings, but when he knew.
This is important because, as this blog has previously set out, it appears that the Prime Minister is not only under an obligation to put the record straight, but also to do so at the earliest opportunity.
This point was well explained by Alexander Horne in this thread:
However, the rule also has a second limb – which to my mind is equally important. Ministers are expected to correct “any inadvertent error at the earliest opportunity.” Thus, it is not sufficient for the PM to say that he did not “knowingly” mislead Parliament. /4
Even if the Prime Minister did not realise at the time the gatherings were unlawful, he no doubt knew once he saw the Sue Gray report and/or was advised in response to the Metropolitan Police investigation.
The committee may perhaps find that Boris Johnson did tell parliament at the first available opportunity, or it may hold the rule somehow does not apply, or it may censure him.
Again, the political consequences of any censure – or sanction – are not predictable with the current Prime Minister.
But misleading the House of Commons and not correcting the record as soon as one can are still serious matters, even in this age of Johnson, Brexit and 2022.
*
A third possible consequence of Partygate is the worrying normalisation of politically motivated reporting of opponents to the police.
This is an issue distinct from the obvious truth that politicians should not be above the law.
This issue is about when there is political pressure for there to be police intervention in respect of opponents, where such pressure would not be applied in respect of one’s own ‘side’.
Unless a report would be made to the police in the same circumstances when it was a political ally rather than an opponent, the report is being made on a partisan basis.
And routine goading of police involvement – and their coercive powers – on a partisan basis is not a good sign in any political system.
*
The fourth possible consequence is more optimistic.
The covid regulations were an exercise in bad and rushed legislation, where – even accounting for it being a pandemic – insufficient care was given to the rules imposed and to how they were enforced.
This was pointed out at the time – by this blog and many other legal commentators.
The fact there was a pandemic was used as an excuse for shoddy drafting rather than it being the reason.
And part of the shoddiness was, no doubt, because these were seen by those in the executive as being rules for other people – that is, for the rest of us.
One perhaps positive thing about Partygate is that senior officials, politicians and advisers in the government now are aware that such rules can apply to them.
This may mean that in the event of another pandemic requiring similar rules, the provisions will have more anxious scrutiny before being put in palce and enforced.
That said, of course, it is perhaps also possible that the government will just make sure that future rules expressly do not apply to Whitehall.
But we have to take what possible positives that we can from this gods-awful governmentally-self-inflicted political, legal and constitutional mess, known as Partygate.
**
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From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.
And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.
Ho ho, every time.
But.
The real problem with this government is not that it acts unlawfully or illegally.
The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.
It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.
Instead, the government does not see law as even applying to it.
To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.
The law applies to little people, and not this government.
‘Law and Order’ is a campaigning slogan, but not a principle of government.
Today it was announced in the Queen’s Speech that there will be a “Bill of Rights”.
Some are alarmed at this proposal – and warn darkly (and perhaps correctly) that this will be a fundamental attack on the Human Rights Act 1998 and on the protections we have under the European Convention on Human Rights (ECHR), to which that Act gives effect in domestic law.
One plausible consequence of the proposal is that there will no longer be a a law called ‘the Human Rights Act’ in our statute books.
This post, however, will take a sightly different approach.
This post is one more of derision than of alarm.
For the proposal set out today is all rather pathetic.
*
Let us start with the Queen’s Speech.
The relevant portion of the speech was this:
“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”
There is already a Bill of Rights – at least in the law of England and Wales.
That law from 1688 or1689 (depending on how pedantic you affect to be) is famous and significant, and it is one of few ancient pieces of legislation that those with an interest in such things can name.
Any government bringing forward a new (or revised) Bill of Rights would presumably be proud, promoting the legislation as a highlight of its new parliamentary schedule.
The Bill is not so much an initiative, but an afterthought.
*
And now we turn to content.
There is no real content.
The government has not published the proposed legislation, and indeed the Ministry of Justice (MoJ) is not in a position to publish the proposed legislation.
The MoJ told me today that the consultation on the reform only closed on 19 April and the responses are still being reviewed.
This lack of content can also be seen in the briefing note:
“The purpose of the Bill is to:
● Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.
● End the abuse of the human rights framework and restore some common sense to our justice system.
The main benefits of the Bill would be:
● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.
● Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.
● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.
● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.
The main elements of the Bill are:
● Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.
● Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.
● Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.
● Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”
*
These three groups of bullet-points – ‘purpose…main benefits…main elements’ – indicate padding, and indeed the bullet-points are interchangeable between the sections.
Almost none of the bullet-points are concrete.
If anything they are almost all talking-points.
Some are semi-meaningless waffle – “restore some common sense” and “responsibilities exist alongside rights” are slogans rather than thoughts.
And to the extent any of these bullet-points do have meaning, their import is not to protect rights but to limit rights.
The first “Bill of Rights” in the common-law world whose purpose is to reduce citizens’ rights and to limit their ability to hold the executive to account when it infringes those rights. pic.twitter.com/GMnFA86Nuk
— George Peretz KC 🇺🇦 (@GeorgePeretzKC) May 10, 2022
This is not a “Bill of Rights” but a Bill to, as far as possible, remove or restrict rights.
Only one bullet-point – and you can check if you doubt me – is even positive about substantive rights: “● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate”.
*
Most significant of all – and this is what the government wants you to miss – is that this Bill of Rights will not substantially affect the position of the ECHR in the United Kingdom.
And this is because the Good Friday Agreement requires the United Kingdom to give effect to the ECHR in Northern Ireland.
If you look carefully at the proposals, there is mention of making sure the courts do not go further than the ECHR – “UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court” – but there is not (express) mention of getting rid of the ECHR in domestic law or any (express) suggestion that the United Kingdom follow Russia in leaving the Council of Europe.
So this proposal is, in part, an exercise in misdirection – an attempt to make it look like the government is ending the Human Rights Act but pretty much keeping the ECHR in domestic law.
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Perhaps the government will put forward a Bill with more concrete proposals.
Perhaps the Lord Chancellor – facing chaos and crises in the court and prisons systems – will achieve his own political priority of replacing the Human Rights Act with some law that does much the same with a different name, but with added (and pointless) tinkering.
Perhaps any of this is worth the effort of new primary legislation – where (if needed) any changes could be done by amendment to the existing legislation.
Perhaps.
But.
The impression given by this proposal is that the new “Bill of Rights” is legislation for the mere sake of legislation.
None of the bullet-points – you can check – individually or together add up to the need for a new statute – let alone something with as hallowed and grandiose a title as a “Bill of Rights”.
On the face of today’s proposals, this is mere vanity legislation.
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