For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.
The view is that that it is no business of activist judges to interfere with what ‘the people’ want.
It is a view that led the London government to oppose the supreme court determining the two Miller cases.
It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.
But it is a shallow view, adopted out of convenience and partisanship.
For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:
Also note the response of the London government’s former chief legal official:
So it seems the UK government is (after all) happy for the Supreme Court to police the boundaries of the constitution. Which is indeed its job. https://t.co/LgHsjphNdN
From a political perspective, this referral prompts mixed feelings.
My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.
As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.
But a political view is not always the same as a constitutionalist perspective.
And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.
(Whether those should be the constitutional arrangements is a different question.)
It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.
Either the supreme court is a constitutional court or it is not a constitutional court.
And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.
A constitutional court is not and should not be regarded as an imperial court.
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Anyone who knows and cares about the criminal justice system in England and Wales knows that the system is collapsing – and that the word ‘system’ is itself hardly still applicable.
On the face of it, however, this presents a paradox.
For we have a government – with loud and shouty political and media supporters – committed to ‘Law and Order!’.
You would think that a government with such a stated priority would ensure that the substance of policy would have some correspondence to the rhetoric of its politics.
You would be wrong.
For, as this blog has averred elsewhere, there is a distinction – a dislocation – between the politics and the actuality of the criminal justice system.
It is easy for a politician to get claps and cheers with demands for ‘tougher penalties’ and ‘crackdowns on crime’!
Time-poor political reporters will type easily about ‘new laws’ and ‘longer sentences’ and so on.
And voters will nod-along, as they are fooled into thinking some useful thing is being done.
But there is no point having tougher and tougher penalties, and longer and longer sentences, and more and more laws, if the criminal justice system itself is not working.
As the former attorney general Dominic Grieve sets out in this article, the reality is that the system is halting and crashing.
Part of the problem is lack of cash – and for the the reasons Grieve submits.
But another part of the problem is a lack of policy seriousness – an assumption that it ultimately does matter that the criminal justice system comprises a motley of inadequate court buildings, demoralised staff, badly let contracts, ancient IT systems, health and safety horrors, a general lack of safety for everyone involved, and a general drift of the system towards discharging greater re-offending, and not less.
If you invited a demon to devise the worst possible state of affairs in the criminal justice system the current situation is pretty much what you would get.
But: ‘new laws’ and ‘longer sentences’ and ‘tougher penalties’ and ‘crackdowns on crime’!
Slogans that are like loose gear sticks and brakes, not attached to any other part of the vehicle.
Perhaps the only consolation is that such an absolute system failure tells against England and Wales becoming, in practice, an authoritarian state.
But it is not only authoritarian states that need a functioning criminal justice system – modern liberal democracies need working criminal justice systems too.
And so we have a system that should satisfy nobody – other than of course, dishonest purveyors of easy criminal justice solutions: fraudsters of modern politics.
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Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.
The cause of death was a knife wound – which the police said was self-inflcited.
Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.
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Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.
Have a click and listen and watch.
The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.
Police Officer especially caught a certain mood about the police’s attitude.
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Here is the singer posing outside a south London police station on the cover of the single:
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The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.
That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.
But this – horrifically – was real, not a fiction.
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The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.
So what happened with his case?
Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.
After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.
(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)
According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:
‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.
‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’
The majority of the jurors accepted this as the explanation.
As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.
But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.
‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.
‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.
‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’
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That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.
Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.
‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.
‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.
‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’
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The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):
‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:
‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.
‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.
‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.
‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.
‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.
‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.
‘Notes to editors
‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.
‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.
‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’
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So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.
The coroner, in turn, also made recommendations.
Thanks to a tweeter, we have what appears to have a formal record of the recommendations:
Presumably this is report 208 on p39 at https://t.co/2zixUC50Q4 ? If the inquest had been 4 weeks later we could read the letter and responses.
No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.
And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.
But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.
Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.
But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.
And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.
So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.
I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.
I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.
It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.
**
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And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).
So, yes, it is a real tweet.
A real tweet by a real chair of a real police federation.
*
Having established the tweet’s authenticity, let us now look at its content.
The tweet states that the police are not public servants.
More exactly that ‘technically’ the police are not public servants.
As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.
That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.
Crown servants – and others employed by the state in whatever legal form – are public servants.
Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.
The reply denies that this is the case.
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But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.
‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’
Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.
As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.
Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.
But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.
This, like the tweeter’s other distinction, is itself worrying and telling.
Policing by consent is not an optional nice-to-have in modern society – it is foundational.
That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.
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Perhaps the tweet was a just a slip, not to be taken seriously.
(Though, remember the police themselves are often not so forgiving of the slips of others.)
Perhaps there will be a clarification, or something.
Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.
That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.
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Whenever a constitutional wrong becomes apparent there is a reflexive demand for a ‘written [or codified] constitution’.
Having a written constitution, it would seem, would just make things better – rather than, as is my view, probably make things just as bad but differently.
(On my scepticism about written constitutions as a panacea see my Prospect piece.)
But this post comes at the topic from a different angle.
Those who demand a written constitution often seem unaware that it is already set out in writing – if you know where to look.
And just as those who wish for a month of Sundays usually do not know what to do with a spare afternoon, those who pine for a written constitution do not read where the constitution is already set out in writing.
Here are four places where you can read the constitution of the United Kingdom online which you may or may not already now about.
Note, however, that each of these are practical rather than academic or theoretical materials.
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The first is the Cabinet Manual – which governments (of all parties) since 2010 have averred sets ‘out the main laws, rules and conventions affecting the conduct and operation of government’.
Of course, this is the government’s own view of the constitutional arrangements in which it operates – but it also is a comprehensive and clear overview of how the various elements of state are at least supposed to fit together.
So much for the ‘high level’ constitutional summary – now we turn to how public bodies make (or should make) decisions.
Here we have a wonderful publication published for government lawyers called ‘the Judge over your shoulder’ – which is described formally as ‘guidance to help you understand the legal environment in which government decisions are made and assess the impact of legal risk’ – and is described informally as pretty much a god-send.
This publication set out how decisions and actions by public bodies can be rendered ‘judge-proof’ – that is lawful – and it is updated from time to time.
We move on now from the executive to the legislature, that is parliament.
The key text for understanding what parliament can and cannot do – and the text of which can make a real difference at important political moments – is known as “Erskine May’.
More formally ‘a treatise on the law, privileges, proceedings and usage of parliament’ – this document was for a long time (indeed for far too long) only available to those who knew of its existence and could afford the prohibitive hundreds of pounds that it cost to purchase in hard form.
Such inaccessibility was an outrage – and so it was a boon when the entire text was placed online.
In particular to the the power of the courts to review (and sometimes quash) both government decisions and even statutory instruments made under acts of parliament (but not the acts of parliament itself).
The ‘Judge over your shoulder’ gives the government’s view – but to see it from the perspective of the courts (of England and Wales) you need to know about ‘Part 54’ of the civil procedure rules – and its attendant practice direction.
This is, of course, written in legalese – but they also provide an understanding of how the courts would go about holding the other elements of the state to account.
A grasp of what it actually means when you read that ‘the government has been taken to be court’ is invaluable to anyone following the tensions between ministers (and other public officials) and the judges.
Of course, these are not a substitute for a codified constitution – but they do set out in writing what – at least – should happen in the constitutional affairs.
Enjoy clicking and reading.
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And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.
Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:
But it was still not really noticed.
Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.
In allowing the appeal against conviction, the lord chief justice said:
In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.
(Declaration of interest: I was the appeal solicitor before the high court in that case.)
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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.
Some are convinced by this view:
This is particularly so when the Bill is explicitly restating the common law. I would expect the Courts to apply the old caselaw to the new, statutory offence.
— Yet Another Tweeting Barrister (@TweetingYet) March 20, 2021
But.
What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.
It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.
The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.
It is also can be what zealous complainants to the police say it to be.
And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.
They will just see an arresting and charging power – and a power to set conditions.
So it should not be left to the courts ‘to apply the old caselaw’.
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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.
And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
Even if that it not the government’s intention, that is how the current provision can be read.
And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.
Unless, of course, that is the government’s real intention.
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It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.
But.
It is sometimes strange how things turn out.
The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.
In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.
(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)
The concluding observations of the report could have even be a post on this very blog:
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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.
We want to keep this conversation going.
That’s why we’re launching a public consultation to explore further measures informed by the panel’s analysis.
Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.
The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.
The commission, to their credit, looked hard and reported on what they saw.
Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.
Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.
One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.
But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.
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Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.
So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights?
This is not a trivial or academic question.
The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.
For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.
And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.
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In constitutional theory, the next check – once legislation is proposed – is the house of commons.
But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.
And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.
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Next there is the house of lords, where (fortunately) the government does not have an in-built majority.
And the house of lords can vote things down and pass amendments.
But.
When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.
This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.
There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.
And that power is that: to delay.
A determined government, with the support of the house of commons, will get its legislative way in the end.
There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.
But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.
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And then we come to the courts.
Here we have another problem.
Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.
The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.
The judgments of the European court of human rights are not binding.
The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.
‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.
Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.
Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.
Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.
That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.
And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.
Brace, brace.
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The problem of political language not being tied firmly to particular meanings is not a new one:
‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH’
Indeed, it is no doubt a problem as old as political discourse itself.
But the fact that it is not a novelty does not make it any less irksome.
And nor does it mean that its instances should be left unremarked.
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Currently there is a severe dislocation between political words and things.
Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.
There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.
And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.
Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.
But the phrases are not meaningless – they still have purchase (else they would not be used).
The phrases are enough to get people to nod-along and to clap and cheer.
It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.
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Can anything be done?
An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.
That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.
Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.
Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.
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A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.
Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.
Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.
While pretending to itself and others that it has ‘libertarian instincts’.
And so it may not just be the gear stick which has come loose but also the brakes as well.
Brace, brace.
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What has happened is that a formal legal notice has been sent by the European Commission to the United Kingdom.
To say this is ‘launch[ing] legal proceedings’ is a little dramatic: no claim or action has been filed – yet – at any court or tribunal.
But it is a legally significant move, and it is the first step of processes that, as we will see below, can end up before both a court and a tribunal.
This blogpost sets out the relevant information in the public domain about this legal move – a guided tour of the relevant law and procedure.
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Let us start with the ‘legal letter’ setting out the legal obligations that the European Commission aver the United Kingdom has breached and the particular evidence for those breaches.
This is an ‘infraction’ notice.
As the European Commission is making some very serious allegations – for example, that the United Kingdom is in breach of the Northern Ireland protocol – then it is important to see exactly what these averred breaches are.
This information would be set out precisely in the infraction letter – informing the ministers and officials of the United Kingdom government of the case that they had to meet in their response.
But.
We are not allowed to see this letter.
Even though the European Commission is making serious public allegations about the United Kingdom being in breach of the politically sensitive Northern Ireland Protocol, it will not tell us the particulars of the alleged breaches.
This is because, I am told, the European Commission does not publish such formal infraction notices.
There is, of course, no good reason for this lack of transparency – especially given what is at stake.
The European Commission should not be able to have the ‘cake’ of making serious infraction allegations without the ‘eating it’ of publishing them.
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And so to work out what the alleged breaches are, we have to look at other, less formal (and thereby less exact) sources.
Here the European Commission have published two things.
Article 26 of the Vienna Convention regards the delightful Latin phrase Pacta sunt servanda.
In other words: if you have signed it, you do it.
Agreements must be kept.
You will also see in Article 26 express mention of ‘good faith’.
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We now go to the withdrawal agreement between the United Kingdom and the European Union.
There at Article 5 you will see that the United Kingdom and the European Union expressly set out their obligation of good faith to each other in respect of this particular agreement:
So whatever ‘good faith’ may or not mean in a given fact situation, there is no doubt that under both Article 26 of the Vienna Convention generally and under Article 5 of the withdrawal agreement in particular that the United Kingdom and the European Union have a duty of good faith to each other in respect of their obligations under the withdrawal agreement.
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The European Commission not only allege that the United Kingdom is in breach of its obligation of good faith but also that the United Kingdom is in breach of specific obligations under the Northern Ireland protocol (which is part of the withdrawal agreement).
The press release says there are ‘breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland’.
The ‘political letter’ says:
So it would appear that the relevant provisions of the withdrawal agreement are Articles 5(3) and (4) of the Northern Ireland and Annex 2 to that protocol.
Here we go first to Annex 2.
This annex lists many provisions of European Union law that continue to have effect in Northern Ireland notwithstanding the departure of the United Kingdom.
Article 5(4) of the protocol incorporates the annex as follows:
‘The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.’
As such a breach of Article 5(4) is a breach of the European Union laws set out in that annex.
Article 5(3) of the protocol is a more complicated provision and it is less clear (at least to me) what the European Commission is saying would be the breach:
My best guess is that the European Commission is here averring that the United Kingdom is in breach of the European Union customs code (which is contained in Regulation 952/2013.)
As regards the specific European Union laws set out in Annex 2 that the European Commission also says that the United Kingdom is in breach of, we do not know for certain because of the refusal of the commission to publish the formal infraction notice.
On the basis of information in the press release and the ‘political letter’ it would appear that the problems are set out in these three paragraphs:
Certain keyword searches of Annex 2 indicate which actual laws the European Commission is saying being breached, but in the absence of sight of the formal infraction notice, one could not know for certain.
The reason the detail of what laws are at stake matters is because each instrument of European Union law may have its own provisions in respect of applicability, enforceability and proportionality that could be relevant in the current circumstances.
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So: what next.
Two things – the European Commission is adopting a twin-track, home-and-away approach.
One process will deal with the substantive provisions of European Union law – and the other process will deal with the matter of good faith.
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In respect of the alleged substantive breaches of European Union law, the European Commission has commenced infraction proceedings – as it would do in respect of any member of the European Union.
As the ‘political letter’ pointedly reminds the United Kingdom:
The United Kingdom is still subject to the supervisory and enforcement powers of the European Union in respect of breaches of European Union law in Northern Ireland.
You thought Brexit meant Brexit?
No: the government of Boris Johnson agreed a withdrawal agreement that kept in place the supervisory and enforcement powers of the European Union – including infraction proceedings of the European Commission and determinations by the Court of Justice of the European Union.
And so in 2021 – five years after the Brexit referendum – the European Commission is launching infraction proceedings against the United Kingdom under Article 258 of the Treaty of Rome:
This means there could well be a hearing before the Court of Justice of the European Union.
One does not know whether this would be more wanted or not wanted by our current hyper-partisan post-Brexit government.
One even half-suspects that they wanted this all along.
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The other track – with the European Commission playing ‘away’ – is in respect of the general ‘good faith’ obligation – as opposed to the substantive European Union law obligations under Annex 2.
Here we are at an early stage.
In particular, we are are at the fluffy ‘cooperation’ stage of Article 167:
If this fails, then the next stage would be a notice under Article 169(1):
Article 169(1) provides that such a formal notice shall ‘commence consultations’.
And if these Article 169 consultations do not succeed, then we go to Article 170:
The arbitration panel – and not the European Commission nor the European Court of Justice – would then determine whether the United Kingdom is in breach of its general obligation of good faith.
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We could therefore end up with two sets of highly controversial proceedings.
The European Commission has intimated the processes for both to take place in due course.
From a legalistic perspective, the European Commission may have a point – depending on what the alleged breaches actually are.
A legal process is there for dealing with legal breaches – that is what a legal process is for.
But.
When something is legally possible, it does not also make it politically sensible.
A wise person chooses their battles.
And if the European Commission presses their cases clumsily, then the legitimacy and durability of the withdrawal framework may be put at risk.
Brace, brace.
***
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