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.
*
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.
**
Thank you for reading – and please do support this blog, so that it can carry on for you and others.
These free-to-read law and policy posts every week-day do take time and opportunity cost to put together, as do the comments to pre-moderate.
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There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.
One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.
Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.
And there is a third way, which requires stepping back to wonder if something more significant is going on.
Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?
For it is one thing to campaign against one’s political opponents.
But it seems another to actively seek that they face police attention.
Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.
And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.
Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.
But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.
And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).
Now, however, police involvement could not be more central to politics.
The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.
Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.
(It would only become a matter for the courts if those police decisions are not accepted.)
Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.
Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.
So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.
For it may not be a good place for our politics to go.
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My first piece for the @NewStatesman looks at the powers of the @HoCPrivileges and poses the question: should the hearing to determine whether the PM misled Parliament be held in public and under oath: https://t.co/BKMGgJrPz2
In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.
If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.
(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)
On the face of it, administering such an oath has its attractions.
No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.
Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.
Horne mentions where such oaths have been used:
“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”
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But.
It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.
That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.
And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.
Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?
(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)
Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?
It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.
And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.
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That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.
This is certainly a constitutional problem that needs a practical solution.
The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.
The fear would be that in seeking go solve one constitutional problem, another is caused.
And so the problem remains: what can you do – constitutionally and practically – with a dishonest Prime Minister?
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POSTSCRIPT
Horne has provided a link to a useful post where he deals with the issues in more detail:
David raises some interesting and important constitutional points in his response to my piece in @NewStatesman There are very few precedents relating to the prosecution of witnesses for perjury – but I address a couple here for anyone interested:https://t.co/pOi5ifQD5T
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On Wednesday the prime minister was asked by Daisy Cooper MP about the high court decision holding that the government had acted unlawfully in its covid guidance for care homes.
'Will the PM apologise to the families of the people who died in care homes during the pandemic?' – Lib Dem MP Daisy Cooper.
“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”
“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”
(The switch midway that sentence is interesting – he seems to go from wanting to say that knowledge about asymptomatic transmission had not been known earlier to carefully stating that he personally did not know.)
Hancock then put out a statement to the press as follows:
“This court case comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts.
“The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission.”
So: is what the prime minister and the former health secretary said in response to this judgment true?
Let us see.
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The judgment contains evidence about what was said and done, and when.
The evidence does not appear to have been contested by the government in the hearing, though the government’s lawyers would dispute the weight and meanings to be placed on that evidence.
What did the evidence say?
At paragraph 65 of the judgment (emphasis on date added):
“…on 9 March [2020] the Health Minister Lord Bethell, said in the House of Lords that “large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit.” “
At paragraph 69 of the judgment (emphasis on date added):
“On 12 March [2020] the European Centre for Disease Prevention and Control (ECDC) published a paper entitled ‘Novel coronavirus disease 2019 (COVID-19) pandemic; increased transmission in the EU-EEA and the UK- 6th update.’ It made a number of observations about asymptomatic transmission. It noted that “over the course of the infection, the virus has been identified in respiratory tract specimens 1-2 days before the onset of symptoms…”. Referring to the Japanese National Institute of Infectious Diseases’ field briefing entitled ‘Diamond Princess COVID-19 cases update March 10, 2020,’ it observed that the virus has “been detected in asymptomatic persons. On a rapidly evolving cruise ship outbreak where most of the passengers and staff were tested irrespective of symptoms, 51% of the laboratory confirmed cases were asymptomatic at the time of confirmation”.
At paragraph 73 (emphasis on date added):
“On the morning of 13 March [2020], on BBC Radio 4’s Today programme, Sir Patrick Vallance, the Government’s Chief Scientific Advisor, said this about the means of transmission of the virus:
” “It looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are very mild symptoms”.”
At paragraph 78 (emphasis on date added):
“on 15 March [2020], an important paper from Imperial College and Columbia University was published. ‘Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus’ by Li and Pei et al. discussed the transmission rate of undocumented infection.”
And so on.
The judgment also lists various papers that were published in March 2020, including a paper published on 31 March that stated:
“between a third and a half of transmissions occur from pre-symptomatic individuals.”
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That was all in March 2020 – now let us turn to April 2020.
Paragraph 286 of the judgment:
“On 2 April 2020, a week after the lockdown had been given legal effect (by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)) , the Admissions Guidance was published. As noted above, this included the following about new admissions (emphasis in the original):
” “Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic. All of these patients can be safely cared for in a care home if this guidance is followed. If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.” “
The court then states in the next paragraphs about this April guidance:
“there is no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission. […]
“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
“It is notable that on 25 and 28 March, days before the publication of the 2 April Admissions Guidance, the Minister for Social Care (Ms Whately) was raising concerns about this aspect of the guidance.
“It was not until 15 April in the Action Plan of that date that the Department recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community. Such isolation was to be either in the care home itself or using “local authority-based arrangements”, that is to say quarantine facilities.
“This was a significant delay at a critical period.
“We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.
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And so, as this blog set out yesterday, the court held that the April guidance was irrational in that it failed to take account of a relevant consideration – and at a time where the government was seeking to discharge as many as possible from hospital and into care homes.
This is not about whether the government knew with absolute certainty whether there would be asymptomatic transmission.
But it is about that the government knowing there was a risk before the guidance was issued.
Government ministers and their advisers had spoken expressly of the risk.
Mounting scientific evidence stated there was a risk.
Given that all this can be shown as being known in March 2020, there can be no sensible reason for the April guidance to care homes not to have referred to this risk.
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And now let us come back to the statements from the prime minister and the former health secretary.
The prime minister:
“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”
The former health secretary:
“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”
Both these statements are misleading, and indeed false.
The judgment puts together all the evidence possessed and available to the health department (and the health secretary) at the time.
The passages in the judgment where the court considers the government lawyer’s attempts to explain all this away (paragraphs 272 to 278 and 290) show just how weak the government’s position on this was.
Either the accumulated detail of the judgment of what was known and when – undisputed by the government in court – is true or the statements of the prime minister and the former health secretary are true.
But not both.
The government said it was throwing its protective arms around the care homes at that critical moment, when it was seeking to discharge as many as possible from hospital into care homes.
But the government instead issued guidance that made no mention of a risk that it knew existed – and that can be shown that the government knew existed.
And so people died.
Far from ‘clearing’ the former health secretary of ‘wrongdoing’, the judgment sets out that what was done was very wrong indeed.
**
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But one paragraph stands out – and goes to the heart of the relationship between policy on one hand and law on the other.
It is paragraph 289:
“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”
This is not an example thereby of a hard policy decision being made between competing options.
Most sensible people would say that is a matter for the government and not for the courts.
It was instead a decision which failed absolutely to take account of a relevant consideration.
As such, it was a policy decision that was not lawfully open to the decision-maker.
As those bringing the case set out, the secretary of state was the relevant decision-maker “and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed”.
How the court applied this legal principle in this case is interesting:
The court has held, in effect, that by the time the relevant guidance was issued, the risk of asymptomatic transmission was obvious and well-known – it was even being mentioned publicly by government scientific advisers.
But the government blithely put out guidance to care homes that did not even consider that risk, let alone provide for what care homes should have done to manage the risk.
The court elsewhere in the judgment rejects challenges on other grounds – and the court is careful to say that earlier stages of the pandemic, it would not have been fair or realistic for the government to have known that there was a risk.
But by the time of the April 2020 guidance, this was not the case – and the government could not pretend that was the case.
The government instead published guidance on which care homes were supposed to rely and did not care to consider the risk of asymptomatic transmission.
That took the decision out of the realm of administration and policy and into the realm of public law.
The judgment does not refer expressly to the famous Wednesbury principle, but this is an example of a decision so unreasonable no reasonable decision-maker could have made it.
And that is even after giving due latitude and deference to a government dealing with a pandemic – that offers no excuse to have got this guidance so completely – lethally – wrong.
Far from throwing their arms around the care home sector, the department of health instead threw their hands over their eyes.
And care homes should not have been placed in the dreadful predicament of having to decide whether it was safe to follow department of health guidance, or whether they should have locked their doors instead.
**
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We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.
This government cannot even get political gangsterism right.
Great credit here should go to the opposition parties.
Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.
And had the opposition done so, it would have been defeated – perhaps on a whipped vote.
But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.
And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.
Against this tactical savviness, the government position collapsed.
First there was to be an amendment: but that went.
Then the vote was to be unwhipped: and that went.
And in the end, there was not even a vote.
The motion went through on the nod.
Let’s just think about that.
A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.
Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.
But – in and of itself – that such a motion should go through without any objection is remarkable.
One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.
Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.
A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.
Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.
The constitutional Wednesday Addams in any of us can only smile at all of this not going away.
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What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.
What do you do with a law-breaking prime minister who has misled the house of commons?
Can this be checked and balanced?
The answer to this should not be a civil servant’s report – however independently minded the civil servant.
Nor should it be a decision by the police to issue a penalty, or not.
It is – rightly – a matter for parliament.
And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.
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