Category: Legal Words and Phrases

An introduction to Article 16 of the Northern Irish Protocol

16th February 2021

Article 16 of the Protocol on Ireland/Northern Ireland seems to be fated to become one of those legal provisions known by their number alone, like Article 50 or Section 28.

The provision has already been the feature of a political controversy, when the European Commission made the horrible mistake of invoking Article 16 in respect of proposed regulations about the coronavirus regulations – a proposal that was promptly, and correctly, withdrawn.

The prime minister of the United Kingdom Boris Johnson has also been reported as saying that he would be minded to trigger Article 16 in certain circumstances.

In these circumstances, a working knowledge of what Article 16 says, and does not say, may be useful for those who follow public affairs.

This post provides a basic introduction to the provision, and it complements a video that I recently narrated for the Financial Times.

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As a preliminary point, just as one does not simply walk into Mordor, one should never go straight to a clause or other provision within a wider legal instrument without an understanding of the purpose of that wider legal instrument.

By analogy: one can perhaps make sense of a line of computer code, but one also needs to understand how that line of code fits in the wider program to elicit its full meaning.

Similarly, an undue focus on the wording and contents of a single provision in any legal instrument can be misleading.

Every article, clause, section – or whatever word used for a discrete portion of legal text – has a context.

And so with Article 16 we have to understand something about the purpose of the Protocol on Ireland/Northern Ireland.

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The protocol, in turn, does not exist in isolation.

The protocol is attached to the Brexit withdrawal agreement – one of the two vast and complex international agreements between the European Union and the United Kingdom that provide the legal framework for Brexit.

The recitals to the withdrawal agreement – which (literally) recite the background and shared understandings of the parties to that agreement – describe the purpose of the the protocol:

Not just specific, but ‘very specific’.

You will also note the word ‘durable’ – and this indicates that it was the shared understanding of the European Union and the United Kingdom that the protocol would not be a temporary arrangements.

Article 125 of the withdrawal agreement then provides for how and when the protocol takes effect:

You will see Article 16 is not included in the provisions that had immediate effect on the departure of the United Kingdom from the European Union – and so Article 16 has only had legal force since 1 January 2021.

The other main mention of the protocol in the main withdrawal agreement is that there shall be a specialised committee dealing with the protocol as part of the ‘Joint Committee’ that oversees the agreement:

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Now we can turn to the protocol itself.

Confusingly – and welcome to European Union legal instruments! – the protocol itself has its own recitals and articles.

And the protocol has a lot of recitals – twenty-three recitals (as opposed to nineteen operative articles).

Each one of these recitals sets out expressly a shared understanding of the European Union and the United Kingdom.

In particular, the government of the United Kingdom has put its name to each one of the recitals as a statement of its own understanding.

The recitals are not agreements in themselves, and they are not legally enforceable by themselves, but they do set out the common understandings of the European Union and the United Kingdom that are relevant to the articles that follow.

And these recitals, in particular, are significant:

And:

Note the word ‘guarantee’.

And:

And:

A common response from those unhappy with the protocol is to insist something about what the Good Friday Agreement does and does not provide in respect of a ‘hard’ border.

These recitals, however, do explicitly set in firm and emphatic language the shared understandings of the European Union (including Ireland) and the United Kingdom in respect of there not being a hard border.

And this is in the very ‘oven-ready’ withdrawal agreement for which Johnson and the Conservative Party won a mandate at the December 2019 general election and that was then endorsed by the Westminster parliament.

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Now the articles – the substantive operative provisions that are entitled to have legal effect as between the parties.

You will see that the articles provide for substantive obligations in respect of the free movement of persons and goods (and Article 5 in turn incorporates an annex listing hundreds of European Union regulations and directives).

There are also provisions for State aid and VAT.

The protocol is, in effect, the legal mechanics for Northern Ireland remaining, in effect, part of the European Union single market and customs arrangements whilst still being part of the United Kingdom single market.

It is a complex and – regardless of one’s political views – remarkable piece of legal drafting, especially given the rush of the exit negotiations.

But as with any legal instrument – especially ones devised at speed and in respect of sensitive issues – there will be problems and disputes and unintended effects.

And this brings us to Article 16.

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Article 16 comprises just three paragraphs:

The article is entitled ‘Safeguards’ – and not, for example, ‘Sanctions’ or ‘Retaliatory measures’.

The first paragraph then provides the triggers for the safeguards.

There are two triggers.

First: ‘if the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist’.

Here note the requirements that the difficulties need to be ‘serious’ and ‘liable to persist’ – that it, not trivial or temporary.

Second: ‘if the application of this Protocol leads to…diversion of trade’.

Again, ‘diversion’ indicates something significant and lasting.

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If either of these triggers are met then either the European Union or the United Kingdom ‘may unilaterally take appropriate safeguard measures’.

Note the requirement that the measures be ‘appropriate’ – and also (deftly) the measures have to be ‘safeguard’ measures, and not any old measures.

Paragraph 1 of the article then also adds further requirements in respect of the scope and duration of the safeguard measures, and subjects the measures to a test of strict necessity.

And – and! – priority should be given to ‘such measures as will least disturb the functioning’ of the protocol.

Paragraph 2 of the article then provides for similar tests for any ‘balancing’ measures of the other party.

These are all onerous substantive tests – and each one must be met for a safeguard measure to be adopted.

And these are just the substantive tests – for Annex 7 to the protocol also provides for the procedure that also has to be followed.

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Annex 7 contains six ‘points’:

You will see point 1 provides a duty of notification at the stage the safeguard measure is being considered.

Point 2 then provides that the next stage is consultations.

Point 3 then imposes a general one month delay, unless the consultations have ended quickly or there are ‘exceptional circumstances’ and the measures are ‘strictly necessary’.

Point 5 then provides that, in addition to the requirement that the safeguard measures not endure longer than necessary, there is a three month review period.

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All of these substantive and procedural provisions are consistent with the measures being of the nature as described on the tin: ‘safeguard measures’.

The measures are to be protective – and what is to be protected is the operation of the protocol and the shared understandings on which the protocol rests.

This means any attempt to use the safeguard measures to, say, alter the operation of the protocol, or to disturb the shared understandings on which the protocol rests, is outside the purpose of the safeguard measures.

In simple terms: that is not what the safeguard measures are safeguarding.

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Of course, politicians being politicians, there will be a temptation to use the Article 16 safeguard measures for other purposes – as leverage in trade discussions, or as retaliatory weapons, or as an attempt to re-write or even discard the protocol.

But even if the intention is to misuse the safeguard measures, the measures are – at least in theory – subject always to the substantive requirements of Article 16 and the procedural requirements of Annex 7.

Of course: all legal instruments are only ever as powerful as the human will to enforce their terms.

For Quis custodiet ipsos custodes? – the eternal question of who watches the watchmen – applies here, as elsewhere.

What – or who – shall safeguard the safeguards?

*****

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The Queen’s Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished

8th February 2021

This post is about a thing of which you may not have heard.

The Queen’s Consent.

No, not that.

The Queen’s Consent is instead an odd and generally unknown feature of the constitution of the United Kingdom.

It is in the news today because of some investigative reporting by the Guardian newspaper.

The news report is here and their explainer about the Queen’s Consent is here.

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So what is the Queen’s Consent – and why, if at all, does it matter?

Let us start with what it is not.

The Queen’s Consent is not the ‘royal assent’ that is given to a bill passed by parliament that transforms it, by legal magic, into an act of parliament.

True, the royal assent is itself not widely understood.

Many think it is the queen herself that signs the legislation, but royal assent to legislation is done on the monarch’s behalf (and the last monarch to give royal assent personally was Victoria).

But Queen’s Consent is a different constitutional beast.

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Queen’s Consent is the right of the monarch (and the heir to the throne) to be consulted on – and thereby to veto – any legislation that affects the private interests of the crown.

Imagine if the constitution of the United States provided formally for the president of the day – Donald Trump or otherwise – to intervene in congress to stop or to amend proposed legislation that affected the financial interests of the president or the president’s family.

That is what the Queen’s Consent provides for in the United Kingdom.

It is a structural right to lobby beyond the dreams of any cynical Westminster ‘public affairs’ firm.

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There are a couple of things to note before we get onto just how strange this constitutional device is.

First, this is not about placing the crown beyond or above the law – it is instead (ahem) ‘upstream’ from the law being in place.

It is about being able to shape the law before it takes any effect.

Second, it is not about the public powers of the crown – the so-called ‘royal prerogative’ though the crown also has the right also to be consulted about legislation that affects those powers.

This is about the right to be consulted about proposed laws that affect the crown’s private interests rather than its public powers.

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And now we come to four strange things about the Queen’s Consent.

First – and notwithstanding today’s front page splash in the Guardian – a good deal about the Queen’s Consent is in the public domain, hiding in plain sight.

It is just that few people know about it or care.

In the cabinet office’s guide to legislation for civil servants it warrants an entire chapter.

There is also an entire 32-page pamphlet devoted to the topic for the benefit of those who draft legislation.

The detailed ‘Erskine May’ book of authority on parliamentary procedure also has a section on the subject.

(Look carefully at the wording of what Erskine May says here.)

And in 2014 there was even a parliamentary select committee report on the practice.

But unless you are a constitutional obsessive you would, however, not be aware of any of this.

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The second curious feature of the Queen’s Consent is perhaps the most extraordinary one.

The Queen’s Consent has no legal basis whatsoever.

There is no statute, nor even (it seems) any parliamentary resolution.

It is instead is something that is just, well, done.

If you scroll back up you will see that even Erskine May does not even offer any authority for the procedure.

And if you look at the practitioner’s legal encyclopaedia Halsbury’s Laws of England the authority that is given for the practice is Erskine May.

The 2014 select committee took evidence from specialists in parliamentary procedure and constitutional law experts – and the select committee could not identify any legal basis for the practice.

The only (supposed) authority is that it is ‘long-established’.

Given that the parliamentary bible Erskine May insists that the Queen’s Consent is ‘required‘ one would hope (and even expect) there to be some legal basis for the consent, but there is none.

To the extent that the Queen’s Consent has any formal basis at all, it is entirely based on parliamentary procedure.

And this means that it would be easy to abolish, for what is giveth by parliamentary procedure can be be taketh away by parliamentary procedure.

No law would need to be passed at all.

The queen would not need to be consulted, either by the Queen’s Consent or otherwise.

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The third oddity about the Queen’s Consent is similar to the second.

For just as there is no visible legal basis for this structural bias, there is also hardly any visible effect.

It is all done in secret.

And this is why today’s Guardian report has some significance.

It appears to be a documented example where the Queen’s Consent was used to actually shape legislation.

Yes, it is from nearly fifty years ago.

And yes, it is partly dependent on a 1975 speech from Geoffrey Howe in parliament, who delightfully savages us like a dead sheep all these years later.

But – given the secrecy that cloaks the use of the Queen’s Consent procedure, and the general restrictions on official records in the United Kingdom – that is the best evidence we are likely to readily get in practice.

Some will note the lack of evidence of this formal step having any effect and will contend from that lack of evidence that the formal step is merely a formality.

That there is nothing to look at here, and that there is nothing for us too worry our heads about.

But.

The evidence we do have indicates that the process is taken seriously and is intended to be practical.

Chapter 6 of the guide for those drafting legislation is insistent that notice be given to the court with sufficient time for it to have effect – and also that it should not be done prematurely.

None of this would be relevant, still less stipulated, if the stage was merely formal and ceremonial.

Those responsible for legislation are reminded again and again to make sure that the stage is treated so that it is efficacious for the crown.

Here it is worth noting that until fairly recently this guidance was hidden from public view using the excuse that it was covered by legal professional privilege – from the 2014 select committee report:

Steers on mere ceremonial steps are usually not anywhere close to being subject to legal professional privilege.

A further indication that the Queen’s Consent is a consequential stage rather than some ceremonial gimmick is the sheer detail of what has been and can be covered.

None of this would make sense if the Queen’s Consent was a mere formality.

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The fourth curious – and somewhat quaint and amusing – feature of the Queen’s Consent is how it make a private solicitors’ office a formal part of the constitution of the United Kingdom.

You would think this elevated role for a private individual this was the stuff of fiction – like George Smiley visiting Connie Sachs at her country cottage, or Sherlock Holmes visiting his brother at the Diogenes Club:

‘I did not know you quite so well in those days. One has to be discreet when one talks of high matters of state. You are right in thinking that he is under the British government. You would also be right in a sense if you said that occasionally he is the British government.’

But it is there in black and white.

For this formal stage of the Queen’s Consent a letter has to be sent to a private solicitor in Lincoln’s Inn Square:

The ‘language of the letters should be formal in nature’ – so presumably a bill could be frustrated if ‘Dear Sirs’ was followed by an incorrect ‘Yours sincerely’ – or even, gods forbid, there was not a ‘.’ after ‘Mr’.

It is all rather silly.

But what is not rather silly but rather serious is that that this is not to a lawyer in any public capacity in the royal household, and still less to the government’s own treasury solicitor, but to a private solicitor professionally charged with protecting and promoting private interests – and that the whole procedure is geared around the convenience of the private solicitor obtaining and then executing instructions from that solicitor’s private client.

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And this being England – and this is more an English trait rather than a British one – there is no express mention of ‘veto’ in any of the official documents.

The language used is in terms of a consent that is ‘required’ but the implications of the consent not given are left unspoken.

In practice, and given the lack of evidence of the consent being formally withheld, what this means is that the crown is given the right and opportunity to shape prospective legislation – or in the case today disclosed by the Guardian – to make alternative arrangements before the legislation passes.

The question is not about what happens if consent is not given, but what things need to change for the necessary consent to be given.

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There will be some who, even with all this information, will just shrug with a ‘so what?’.

There is no evidence – at least recent evidence – of the practice doing any harm.

But.

If the practice is, in fact, a mere formality then nothing will be lost with its abolition.

And if the practice does – as the procedure implies – have real effects, then it also should be abolished.

There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process. 

This would be wrong it had been for the benefit of President Trump’s family for bills before congress, and it is just as wrong here.

*****

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What can be worked out about the ‘best efforts’ clause in the AstraZeneca vaccine supply agreement?

28th January 2021

Over at the Financial Times I have done a brief summary post on the ‘best efforts’ clause that features in the current public row between the European Commission and AstraZeneca – please click and read here.

This post sets out the ‘workings out’ for that summary, based on the information available to me this morning.

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First, what is the public row?

The inkling of the row was on (Friday) 22nd January 2021: EU hit by delay to Oxford/AstraZeneca vaccine delivery.

The European Commissioner responsible in respect of the vaccine tweeted:

Here, note two things.

First, the information comes from AstraZeneca – in effect, the European Commission is being formally notified of a delay.

Second, the delays are against a ‘forecast’.

As we will see below, both of those things may be significant.

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We now move to (Monday) 25th January 2021, and to the published remarks of the commissioner.

In particular, this passage:

‘Last Friday, the company AstraZeneca surprisingly informed the Commission and the European Union Member States that it intends to supply considerably fewer doses in the coming weeks than agreed and announced.

‘This new schedule is not acceptable to the European Union.’

Here note the following.

First, the ‘forecast’ is now a thing which was ‘agreed and announced’.

Second, the information coming from AstraZeneca is described as ‘surprising’.

Third, the reference to a ‘new schedule’.

We will come back to these details.

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Now the interview with the CEO of AstroZeneca at la Repubblica dated (Tuesday) 26th January 2021 (and I rely on that site’s English translation).

The CEO is quoted as saying in part of his response to a question as to whether there is a feasible basis for a potential legal action against AstraZeneca:

“I can only tell you what’s in their contract. And the contract is very clear. Our commitment is, I am quoting, “our best effort”.’

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Now back to the European commissioner, on (Wednesday) 27th January 2021 and further published remarks:

‘The view that the company is not obliged to deliver because we signed a ‘best effort’ agreement is neither correct nor is it acceptable.

‘We signed an Advance Purchase Agreement for a product which at the time did not exist, and which still today is not yet authorised. And we signed it precisely to ensure that the company builds the manufacturing capacity to produce the vaccine early, so that they can deliver a certain volume of doses the day that it is authorised.’

Note here the ambiguous sentence about what was signed.

Did the commission not sign an agreement with a ‘best effort clause’?

(Which was my first impression.)

Or did the commission sign a ‘best effort’ agreement but this does not remove the obligation of AstraZeneca to deliver the vaccine?

(Which is also a possible meaning of the statement, but not a meaning that would be immediately obvious to most people.) 

Also note the express reference to this being an ‘Advance Purchase Agreement’.

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The advance purchase agreements are part of the European Commission’s vaccine policy announced last June.

In a detailed paper, both the nature and structure of these agreements are set out:

‘These agreements will be negotiated with individual companies according to their specific needs and with the aim of supporting and securing an adequate supply of vaccines. They will de-risk the necessary investments related to both vaccine development and clinical trials, and the preparation of the at-scale production capacity along the entire vaccine production chain which is required for a rapid deployment of sufficient doses of an eventual vaccine in the EU and globally. The conditions of the contract will reflect the balance between the prospect of the producer providing a safe and effective vaccine quickly and the investment needed to deploy the vaccine on the European market.’

The agreements were therefore (and were intended to be) balanced allocations of risk between the commission and the supplier.

These agreement would thereby not be bog-standard standard-form supply contracts, but agreements alert to and mindful of the particular risks in respect of the manufacture and the supply of the vaccine.

*

The agreement between the commission and Astra Zeneca is not in the public domain.

But what is in the public domain – helpfully – is a redacted version of an advance purchase agreement between the commission and another supplier.

The link to this agreement was (I am told by the commission press office) published on 19th January 2021 and so was published before this row.

This means that the redactions would not be informed by the subsequent row.

The agreement is here.

Of course, this is not the agreement between the commission and AstraZeneca, and it would only be sight of that contract that would mean you could say what was agreed with absolute confidence.

But, that said, a careful reading of this published contract is revealing.

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Before we look at the contract, an assumption: the advance purchase agreement with AstraZeneca will be substantially similar to the published contract.

The contracts will not be absolutely identical, because there will be negotiated commercial and other terms (which are probably the redacted parts of the published contact).

And I think it is safe to assume that the agreement will not be on AstraZeneca’s own terms, given the importance the commission placed on the advance purchase agreements being a careful balance for all concerned.

Therefore I am assuming that the the advance purchase agreement with AstraZeneca and the published contract will have many identical and similar terms, even if not absolutely the same.

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If we look at the published contract, and search, you will quickly find that ‘reasonable best efforts’ is a defined term.

(Some commentators, who have also seen the agreement, start and then sadly finish with just this definition – but as you will see, a defined term is only one step in understanding what is going on.)

The definition of the term is detailed, and indeed rather elaborate:

The size and scope of the definition tells us two things.

First, the parties did not want to leave it to the court (which in this case is the Belgian court) to construe what is a ‘reasonable best effort’ – the parties have defined it for themselves.

And second, such a detailed and elaborate definition in respect of a key component of the contract is likely to have been used in all the advance purchase agreements, not just the published one.

The fact it is not redacted in the published contract also indicates it is not a bespoke definition for just that particular contract.

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But.

Any defined term is only as important as the operative provision in which it is used.

(This is where some other commentators have not taken the further step.)

A defined term does not exist in a vacuum.

‘Reasonable best efforts’ is not a free-floating term, to be produced like a joker in a card game.

It will be used, and its effect limited, in particular provisions.

And a search of the published contract shows that this detailed and elaborate definition is used only once (at least in the not-redacted text).

This is article 1.3 of the published agreement:

Here we will see that ‘reasonable best efforts’ is used for two things:

‘(i) to obtain EU marketing authorisation for the Product and (ii) to establish sufficient manufacturing capacities to enable the manufacturing and supply of the contractually agreed volumes of the Product to the participating Member States in accordance with the estimated delivery schedule set out below in Article I.11 once at least a conditional EU marketing authorisation has been granted.’

This means that ‘reasonable best efforts’ is only relevant for two specific purposes.

If the published contract is similar to the AstraZeneca contract, then it would be the second limb of this provision which would be relevant.

AstraZeneca would have an obligation to use ‘reasonable best efforts’ to ‘establish sufficient manufacturing capacities’ for the manufacture and supply of the vaccines ‘in accordance with the estimated delivery schedule‘.

Note the mention of the schedule, which ties in with the commissioner’s published remarks.

And note also the mention of ‘to establish sufficient manufacturing capacities’ – which would not mean, say, a diversion of what is manufactured once there are capacities.

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And there is more.

If we now look at what happens with delays to the ‘estimated delivery schedule’ we go down to article 1.12 of the published agreement:

Here – significantly – both parties explicitly agree in article 1.12.1 that there is a risk of delays in production.

And in the event of such a delay there is an obligation under article 1.12.2 on the supplier to notify the commission and to provide a revised schedule.

Going back to what has happened in the last week, and assuming the contract with AstraZeneca is on similar terms to the published contract, we can see this is exactly what happened.

AstraZeneca informed the commission that it could not keep to the estimated delivery schedule on Friday 22nd January 2021 – and this accords with the mentions of ‘forecast’ and ‘schedule’ by the commissioner.

There was then push-back (to say the least) from the commission, and AstraZeneca – as described by the CEO – sought to rely on the estimated delivery schedule being subject to the ‘best efforts’ provision.

And the commission responded by denying that that ‘best efforts’ provision covers the delay – presumably because AstraZeneca has the capacity but is diverting it from the EU.

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Of course, without the actual contract entered into with AstraZeneca we cannot be certain.

But it is telling how neatly the details provided in the public row fit with the steps of the terms of the published contract.

Unless there is something significant about which we do not know, it is more likely than not that the details provided in the public row mean that the contract with AstraZeneca are materially the same as that in the public contract.

If the reasoning in this post is correct then the following two things can be contended.

First, the remark of the commissioner that ‘[t]he view that the company is not obliged to deliver because we signed a ‘best effort’ agreement is neither correct nor is it acceptable” is capable of giving a misleading impression – for the agreement did have a ‘best efforts’ provision.

And second, the existence of that ‘best efforts’ provision may not be that helpful to AstraZeneca, if the correct construction of the contract is that it does not cover diverted capacity as opposed to lack of capacity – and so citing the ‘best efforts’ provision will not be enough to meet the commission’s complaint.

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The moral of the story, of course, is that such public supply contracts should be published as a matter of course – and there is no good reason for such contracts not to be published.

The benefit of access to public money should be the burden of transparency.

But that is a far wider issue to which this blog may return.

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Why the first paragraph of the lawsuit brought by Dominion Voting Systems against Rudolph Giuliani is a splendid piece of legal drafting

26th January 2021

You would need a heart of stone not to laugh like a drain at the lawsuit brought by Dominion Voting Systems against Rudolph Giuilani.

The pleading is worth reading for its own sake, and the first paragraph – which, as this post will show, rewards re-reading – is a cracker.

But once one eventually stops laughing, what should one make of it?

Of course, the defendant Rudolph Giuilani is now regarded by many as a figure of political fun, a villain in the Trump pantomime.

But principle is – or should be – blind to the person to whom it applies.

So here is a thought experiment.

Imagine – for the sake of argument and exposition – that there was a corporation that provided voting machines and, unlike the plaintiff in this case, there was a serious and consequential issue as to the efficacy of the equipment.

And imagine that the political or media figure bringing loud attention to this issue was not the defendant in this situation but instead a credible and likeable politician or journalist.

Would you still clap and cheer if that noble figure was faced with a 107-page legal claim for $651,735,000 or some other absurdly precise amount?

Or would you re-tweet furiously about threats by corporates to whistleblowing and freedom of expression?

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So how can the court tell the good cases from the bad?

How can the court strike the right balance?

*

This thread from American lawyer Mike Dunford sets out the legal challenges for Dominion Voting Systems:

And as would be the position with a similar case in England and Wales, you will see that the legal issue quickly becomes one of showing malice – and there it is called ‘actual malice’:

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At this point the non-lawyer will ask, understandably: what is malice?

And a lawyer will respond, frustratingly: it all depends.

But here it is interesting to now go back to the first paragraph of the the legal pleading of Dominion Voting System (and this is why it is worth re-reading):

“During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign “doesn’t plead fraud” and that “this is not a fraud case.” Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the “Big Lie,” which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from “cyberthieves.” Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again.”

This is not just racy narrative – if you look carefully you will see that it is a clever attempt to show malice.

Giuliani said a thing he knew he could not say in court; he knew it would go viral; he had a financial incentive; and he was irresponsible in respect of its consequences.

Every sentence – every clause – of that well-crafted first paragraph is serving a purpose in showing that there was ‘actual malice’.

It is a lovely piece of legal drafting – enough to make one want to clap and cheer, regardless of the identity of the defendant.

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Corporations – especially those providing public services or supplying equipment for use in public services – should not have it easy when it comes to making legal threats.

Even when they are threatening pantomime villains.

Public figures, especially those in the worlds of politics and media, should have some protection when they are complaining of such corporations.

Even when those figures are pantomime villains.

The purpose of the law in these situations is to strike a balance – to provide for what both sides would need to show in court.

Here the corporation – rightly – cannot just sue because of damaging false statements, it may also need to show that there was malice.

And the lesson of the first paragraph of the pleading and of the rest of the complaint is that in certain circumstances this can be shown, at least arguably.

What comes of this case cannot be guessed at this time – and most civil claims tend to settle.

But Giuliani has a genuine legal fight on his hands here.

And you would need a heart of stone not to laugh like a drain.

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The inauguration of a new president: mere ceremonial form and hard constitutional substance

21st January 2021

One of the few benefits of lockdown is that you are no longer expected to go to weddings and other ‘happy’ ceremonies.

Instead of days of tiresome travel and hours of boredom, one can watch the ceremony and speeches on a laptop for an hour or so and then go and do something more useful instead.

(For more on form vs substance regarding marriage ceremonies, see my 2011 New Statesman post.)

*

Much of this impatient disdain for mere ceremonial form can and should be applied to constitutional matters.

Certain symbolic events symbolise nothing other than symbolism is important only for the sake of symbolism.

Interesting perhaps for the fogeys and other enthusiasts, but often a bore for the rest of us.

And presidential inaugurations in the United States are usually fairly meaningless occasions, other than that they happen to be around the same time as when by automatic operation of law one presidential term ends and another one begins.

But the inauguration ceremony yesterday was different.

It was riveting.

*

Just as lockdown has had a few benefits notwithstanding the immense misery, so has the presidency of Donald Trump.

And one of those few benefits is that far more people now realise how the constitutional law of the United States works (and does not work) in practice.

Certain things before Trump were taken for granted to the extent that anyone realised those things existed at all.

Take, for example, what happens between a November presidential election and the January inauguration of a new presidential term.

The rights to recounts and re-run ballots; the certification of votes by each individual state; the appointment of electors for the electoral college and their obligations; and the congressional counting of the vote and certification of the winner.

Previously each of these steps – even with the contested 2000 result and Bush v Gore – was a mere formality.

One could have an informed interest in American politics and not know much or indeed anything about these obscure procedural steps.

Now many people know exactly the process that exists between the national vote and the start of a new presidential term.

And widespread knowledge about constitutional arrangements is a good thing.

It may be a bad thing for constitutional law to be exciting –  politics should take place within an agreed framework rather than constantly being about undermining that framework – but understanding the rules of any game is important for those taking part and those watching.

*

And we watched the ceremony yesterday with anxious scrutiny.

Few people in the future will realise just how nervous many of us were in the last hours and indeed minutes of the Trump presidency.

What would he do? 

What could happen?

Is it over yet?

(And indeed Trump issued another pardon with only minutes of his term to go.)

Even watching the chief justice swear in the new president was not enough: it still was not noon Eastern Standard Time.

The final one or two minutes seemed to last an eternity, even though the new president was well in to his acceptance speech.

And then: it was twelve noon EST.

Not since Charles Perrault’s Cinderella has there been a strike of twelve that produced such a wonderful general transformation.

It was over.

*

The greatest (if flawed) writer about the constitution of the United Kingdom – at least from an English perspective – Walter Bagehot made a distinction between the efficient and the dignified elements of a constitution.

Some who only know of this famous distinction misrepresent it as meaning that the dignified elements are somehow useless elements.

But this is not what Bagehot meant – what he actually said was:

“There are indeed practical men [and women] who reject the dignified parts of Government. They say, we want only to attain results, to do business: a constitution is a collection of political means for political ends, and if you admit that any part of a constitution does no business, or that a simpler machine would do equally well what it does, you admit that this part of the constitution, however dignified or awful it may be, is nevertheless in truth useless.

“And other reasoners, who distrust this bare philosophy, have propounded subtle arguments to prove that these dignified parts of old Governments are cardinal components of the essential apparatus, great pivots of substantial utility; and so they manufactured fallacies which the plainer school have well exposed.

“But both schools are in error. The dignified parts of Government are those which bring it force—which attract its motive power. The efficient parts only employ that power.”

He continued:

“[The dignified elements] may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of all work. They raise the army, though they do not win the battle.”

In other words, it is not just important that institutions work well but they are legitimate and seen to be legitimate.

And thereby the purpose of any constitutional ceremony is not just an exercise in form but part of what confers legitimacy on those who exercise the power of the state.

Of course, we could have got by without any ceremony yesterday and just watched the clock run down in silent dread.

And of course, the ceremony was not ‘efficient’ – even the chief justice got the law wrong in that Biden was not yet the new president, at least for thirteen minutes.

But as Bagehot averred, to say part of a constitution is dignified is not to say that it is useless, but that it serves another purpose.

To be sworn in at the seat of the legislature by the head of the judiciary is a powerful indication of constitutional legitimacy, especially as it was at the very place where an insurrection happened just days ago.

This will not be enough for some Trump supporters, but it could not have been done better in the circumstances.

In more than one sense, therefore, the inauguration ceremony of Joseph Biden sought to bring dignity back to the government of the Unites States – not only in his personal manner but also in Bagehot’s sense of demonstrating to all those watching that this new presidency is constitutionally legitimate.

*****

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Beggaring the pardons – why the presidential power to pardon needs to be regulated

20th January 2021

Yesterday, on his last full day in office, President Donald Trump is reported as having issued seventy pardons, as well as having commuted seventy-three other sentences.

This in and of itself is not unusual: on his last day of office President Bill Clinton issued about twice as many pardons – including one for his brother.

Issuing a raft of pardons on one’s final day as president is now as established a tradition as the president pardoning a turkey on Thanksgiving.

Of the many things one should be annoyed or disappointed about Trump and his presidency, the mere fact of last-day questionable pardons is certainly not something unique to him.

Yet, Trump’s (actual and threatened) uses and abuses of pardons, and of his power to commute, do warrant further consideration, as they go to the heart of the relationship between the course of justice and the powers of the executive.

In essence: at what point do pardons cease to complement the justice system – showing mercy to those duly convicted – and become something else instead that undermines the justice system itself?

*

To beg for a pardon is to plead for forgiveness.

It is just that the phrase ‘I beg your pardon’ is so familiar – it now means little more than ‘can you please repeat?’ or ‘what the Dickens have you just said or done?’ – that we overlook what the word ‘pardon’ actually means – or should mean.

And to forgive an act or omission requires certainty as to what that act or omission was – else how do you know what is being forgiven?

Accordingly a pardon should be as exact in its particulars as an indictment – almost a mirror image.

A person has been convicted of and sentenced for [x] – and so it is [x] that is being forgiven.

The conviction would – or should – still stand as a public and formal finding of criminal culpability – but the convicted person would be relieved from the burden of the sentence.

It would also be implicit that an acceptance of a pardon was an admission of criminal guilt – else how can one be forgiven for a wrong, if there was no wrong in the first place?

All this is what a pardon should be about, from first principle of it being an exercise of forgiveness.

(A commutation of a sentence raises a different issue as an exercise of mercy, and does not require any implicit admission of guilt.)

*

But this is not what a presidential pardon is now understood to mean.

A presidential pardon is now, following President Gerald Ford’s pardon of President Richard Nixon for example, something that does not need to be exact in its particulars nor something that carries any implicit admission of guilt.

There does not even need to be a prosecution in place, or even envisaged.

A presidential pardon is now understood to be a ‘get out of jail, free’ card.

*

The use of the ‘understood to be’ qualification above touches on another aspect of presidential pardons – they are rarely litigated and so have not (yet) been regulated by the courts or effectively by congress.

There is significant legal uncertainty as to the scope of pardons that depart from the classic model of exactness in respect of the punishment being forgiven.

The pardon for Nixon, for example, may be a political precedent but it is not a judicial precedent.

A pardon the scope of which Ford granted to Nixon may not survive judicial scrutiny.

(The way a pardon presumably would be litigated is when a prosecution appealed a defendant using a (purported) pardon as a bar on proceedings.)

This may explain why Trump did not announce a self-pardon nor Nixon-like pardons for his family and associates. 

(There may also be other practical considerations, such being able to invoke the fifth amendment against self-incrimination, which would be difficult if you were protected from such incrimination.)

*

But the lack of regulation and case law raises another non-trivial possibility.

There is a fascinating piece at CNN about ‘secret pardons’.

And it is correct that there is nothing on the face of the constitution that requires a pardon to be publicly announced when it is granted.

Trump has also not complied with other conventions when granting pardons, and so there is not inherent reason why he would not flout the convention that a pardon be publicly announced.

If this happened, the first we would ever know of such a pardon would be if and when it was raised by a defendant as a bar to proceedings.

By which time this presidential term of Trump will be long gone.

And what could be done? 

Even impeaching Trump again (and again) would be pointless.

*

As was once averred, power tends to corrupt and absolute power corrupts absolutely.

And so it is not surprising that it is in the two areas where an executive has, in effect, absolute power – the bestowal of honours and the granting of pardons – that there is corruption.

Those with political power will always tend to do what they can get away with, unless they are checked and balanced.

(The principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.)

On the face of the constitution of the United States it would appear that the power to grant pardons is absolute.

Yet such an absolute power would make a nonsense of the careful separation of powers set out in the constitution generally, and of the express obligation of the president that he or she ‘shall take Care that the Laws be faithfully executed’ (Article II, section 3) in particular.

All because there has not yet been regulation of this power does not mean that a supreme court or congress may not one day set out the scope of the presidential power of pardon that accords with the constitution as a whole.

*

If the word ‘pardon’ has drifted in meaning, so has the word ‘beg’.

It does not only mean ‘to plead’ – but also in the form ‘to beggar’ it can mean broadly ‘to reduce in value’: to ‘beggar belief’ is to say a thing is not worthy of belief, and to ‘beggar thy neighbour’ is to seek to aggrandise at the expense of a competitor.

In this way, Trump’s (actual and threatened) pardons – and other presidential pardons – can be seen as beggaring pardons.

But begging your pardon for that pun, there is now a compelling case for placing the power of presidential pardons on a basis so that they remain exercises of mercy to complement the course of justice, rather than undermining justice itself.

Such a congressional act or supreme court decision would be one good way for the presidency of Donald Trump to be remembered.

*****

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The reluctance of the Home Office to deny publicly that it is reconsidering the restoration of the death penalty – an example of government-media relations

15th January 2021

On 25th December 2020, of all days, the following was tweeted:

There are three immediate things to observe about this tweet.

First, the content.

This is a sensational claim but it is one which, for some people, would seem plausible.

The home secretary is a past supporter of the death penalty and the home secretary is also known as being willing to use home office policy on ‘law and order’ in a politicised way.

And elsewhere the United States has resumed federal executions in the run-up to a presidential election, and the similarly populist government of Turkey has signalled that it would want to reintroduce capital punishment.

Second, the provenance.

The account is anonymous but it does have a reasonably sized following, including followers from many areas of law and the media.

The account does not link to a site for the organisation named, and nor does a Google search indicate that the organisation has any existence beyond that twitter account.

We therefore do not know who the “us” is in the tweet and how much credibility their claim should have.

As such the claim cannot and should not be accepted without corroboration.

(This is not to diss the named organisation and what they campaign for, but is just a normal exercise in fact-checking.)

Third, the circulation of thee tweet.

As of today, the tweet has had an extraordinarily wide circulation.

It has had around 1,800 retweets and 1,900 quote-tweets – often from accounts that have accepted the claim in the tweet to be true or at least plausible.

This means a considerable number of people will now believe that the claim is correct or at least has some substance to it: that the home secretary has asked civil servants at the home office to scope a policy paper on the restoration of the death penalty.

(I do not have access to the tweet’s analytics, but in my experience, such a widely circulated tweet would have been seen by over one hundred thousand and possibly up to a million other twitter users – for that is the multiplying effect of thousands of retweets and quote-tweets.)

At this stage, now click on and read this magnificent post by Matthew Scott on the legal and practical difficulties of such a restoration of the death penalty, including the range of international legal instruments that prohibit such a restoration by the United Kingdom.

In essence: the United Kingdom could, in principle, restore the death penalty – it is a sovereign nation – but it would be in breach of many international agreements if it did so.

*

So either the claim is true – which would be important for us to know – or it is untrue – and, in view of the extraordinarily wide circulation of the tweet, it would be also important for the false claim to be publicly corrected.

(In saying that the claim may be untrue, this again is not to diss the account that tweeted – they may be only as good as their source, and it is possible they heard this from a‘little bird’ in good faith.)

I happen to be in the process of preparing and writing a few things at different titles (and here on this blog) that touch on populism and the use (and misuse and abuse) of law.

I had seen the tweet several times in quote tweets, and so my first step was to find out whether there was any other relevant information in the public domain.

 

There was none.

And so it seemed that the claim should be put to the home office to ascertain whether it was true.

My email query was:

“There is a widely circulated assertion that the Home Secretary has asked Civil Service to scope a policy paper on the restoration of the death penalty – source: https://twitter.com/BameFor/status/1342495556732649478 

Can I please have a Home Office statement on this? Normally, and view of UK’s international obligations, one would expect a straight denial, without equivocation.”

*

At this stage, I expected to just get an email containing either a bland denial that the claim was untrue or perhaps an equally bland if evasive statement about not commenting on tweets.

What happened instead was a telephone call where I was told that the claim was ‘rubbish’.

Now ‘rubbish’ is one of those press officer words – like ‘nonsense’ and ‘ridiculous’ – that is used instead of a straight denial such as ‘incorrect’.

And any telephone call from a press office is rarely about providing information (that is what emails are for), it is about the press office trying to obtain information about what is to be published and then attempting to shape what is published – and not published.

It was quickly plain that the home office did not want anything published on this at all, notwithstanding the wide circulation of the original tweet.

So I asked for a statement in writing (I never take quotes over the telephone, especially not from government press offices).

The press office’s response to this request was to question its journalistic value (although one would think that a journalist is in a better place than a press office than to make that assessment).

Given the significance and the circulation of the original claim, it seemed to me that there should be a home office statement on the record.

Indeed, you would expect that the home office would be proud and open in stating that the United Kingdom was complying with its international obligations.

*

Later yesterday afternoon a statement was emailed:

“This is a completely untrue and unsubstantiated claim from an unverified Twitter account. We are surprised that despite telling [you] this, [you] are still insisting on reporting it.”

The references ‘[you]’ in the statement is to the title they assumed would publish the statement.

The statement is worth unpacking.

The explicit reference to ‘despite telling [you] this’ placed beyond doubt that the telephone conversation was not ‘background’ – the public statement only makes sense if the previous conversation was also on the record.

The ‘completely’ and ‘unsubstantiated’ are both examples of over-emphasis – if the claim is untrue, then that is all that needs to be said.

(Like a politician who says ‘absolutely clear’ instead of ‘clear’, such additional words indicate potential evasion and misdirection.)

The denial is limited to the content and detail of the tweet – there is no general statement such as ‘the home office will not be restoring capital punishment’ and still less ‘the home office is proud to respect and comply with the international obligations of the United Kingdom’. 

Instead of such statements, there is an explicit attack on the credibility of the source and an implicit attack on the journalistic point of even putting this claim to the home office.

The ‘insisting’ is a perfect touch – and yes, one should insist that the home office should publicly state its position on restoring capital punishment when there is widely circulated claim that such restoration is being considered.

The home office wanted the statement to either be unusable or, if published, to discredit the news title publishing the story.

(I am happy to publish the public statement here, with the appropriate context set out.)

All this, instead of a simple statement that the claim was untrue and a statement that the home office is not seeking to reintroduce capital punishment and the United kingdom will comply with its international obligations.

*

There is nothing special about what happened here – this is what happens every day between government press offices and anyone in the media seeking to obtain information which the government does not want to publish.

The only difference is that I am in a position to set out the exchange on this blog.

It is a good thing that, despite their initial reluctance, the home office was able to publicly confirm that a widely circulated claim that restoration of the death penalty was “completely untrue and unsubstantiated”.

It is disappointing that the home office sought to do this with a quote intended to deter the use of the quote and thereby prevent any coverage of that denial.

And it is disappointing, but not surprising, that despite the public interest in such a widely circulated claim being openly denied, the home office insisted on going about it in this way instead.

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Can a presidential pardon be revoked?

11th January 2021

As we enter the last ten days of this presidential term one of the matters being widely discussed is the extent and nature of presidential pardons generally, and the possibility of a ‘self-pardon’ in particular. 

This blog has already looked at the general issue – and on the self-pardon issue in particular, it seems to me to be a logical and legal absurdity.

But this post is about a related issue, which has not yet featured prominently in the debate about pardons: regardless of whether any power to pardon, can a pardon be revoked?

Would it be open to an incoming president to revoke the pardons of President Trump, including any (purported) self-pardon?

*

From first principles, and from a United Kingdom perspective, such a revocation would seem possible.

The power to pardon is, in the United Kingdom, part of the royal prerogative.

And just as no parliament can bind another, it would appear no sovereign can do so either.

The crown can make – and unmake – any treaty whatsoever.

The crown can bestow honours, which in turn can be ‘cancelled and annulled’ by the crown.

And so if these exercises of the royal prerogative are analogous, then it would appear that the sovereign could rescind a pardon – for example if it were wrongly made.

*

Turning to the United States, there are two examples of revoked presidential pardons.

In 1869, we are told by the Congressional Research Service, ‘after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation’.

The case report is here, where you will see that the judge stated in passing:

‘The law undoubtedly is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act.’

More recently, in 2008 President George W. Bush revoked a pardon he had himself granted, because of an outcry.

The New York Times then reported ‘when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.’

Again, the pardon had not been delivered.

*

In both of these precedents the revocation was possible because it had not been completed – the procedural equivalent of dashing to the post room to intercept a letter before it is actually sent out.

Neither of these precedents therefore are directly on the point of whether a pardon, once completed, can be revoked.

The opinion of the judge in 1869 is not binding for, among other things, that was not the issue which the court was being asked to determine.

*

So how would a modern court approach the issue?

In most circumstances, the effect of a pardon would be immediate: a person would be released from their sentence and so on.

And once that person has been relieved from their punishment, then any revocation would raise practical and other issues as to what would happen to the pardoned person.

One can see why it would be unfair that such a pardon was revoked, just as no person should not be punished twice for the same offence.

But what about a (blanket) pardon that is intended to pre-empt any possible prosecution?

Procedurally, the person who (purportedly) received the pardon would (presumably) raise the pardon as a bar to any proceedings.

The court would then (again presumably) examine the (purported) pardon (as in 1869), and if the pardon was valid then there would be would be a bar on the prosecution.

It would be – almost literally – a ‘get out of jail free’ card, which the person would raise in front of a judge.

(Of course, if it were known that a pardon had been given then a prosecution would normally not be brought in the first place – but, if it were brought, this is procedurally how a pardon would act as a bar on any prosecution.)

So, now imagine two fascinating possibilities.

First, imagine a court not accepting such a presented pardon at face value – and applying anxious scrutiny whether such a pardon (even if correct in form) had been within the powers of the president.

And second, imagine a court presented with two formal instruments – one purporting to grant a pardon, and another purporting to rescind it (like the cancellation and annulment of an honour, which reverses an otherwise completed act).

The first of these (delicious) legal puzzles would not be a revocation, of course, but an inquiry as to the legality of an instrument.

The second possibility, however, would require a court to review the possibility of a revocation of a pardon.

We would then see whether the 1869 dictum was a correct statement of the law.

*

The straight answer to the question at the head of the post is, as always with interesting legal questions, ‘we do not know’.

An approach from first principles points (at least for me) in one direction, but the precedent of 1869 (although it is not binding) points firmly in the other direction.

But given the lack of binding authority, it cannot be assumed casually that if a pardon – or self-pardon – is granted by President Trump that it is absolutely beyond the reach of revocation.

We may still get more constitutional excitement from the Trump presidency.

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How the Trump experience both weakens and strengthens the case for a ‘written constitution’

6th January 2021

Imagine – just for the sake of this post – that the United States did not have a written constitution.

And now imagine that there had been a president like Donald Trump in office over the last four years who had pretty much done what Trump had done – every outrage, every attack on a minority, every sacking and every appointment, every manipulative or threatening telephone call, every high crime and misdemeanour, and so on.

There would be pundits who, when presented with such a catalogue of wrongful conduct, would assert confidently: ‘you see, this shows the need for a written constitution!’

But the thing is: there was a written constitution, and all these bad things happened anyway.

*

Back in November 2020 – and more in hope than expectation – my column at Prospect magazine was entitled ‘Why we need to stop talking about a written constitution’.

My three main contentions were as follows.

First, a written constitution (that is, for the purpose of discussion, a codified constitution) is inherently neither a good nor a bad thing – and, indeed, such a constitution can either entrench or mask illiberalism or tyranny.

Accordingly, the knee-jerk demand for a written constitution at every constitutional trespass is misconceived, as such a constitution is not a panacea.

Second, in England (and, as presently constituted, the United Kingdom) there is no plausible path to entrenching any constitutional code, regardless of any theoretical attractions.

And third, the demands for a written constitution whenever there is a constitutional trespass are too often a substitute for attempting any actual constitutional improvement.

All a pundit will announce is ‘you see, this shows the need for a written constitution!’ and nothing else will be said.

And this insistence on an absolute ideal in any conversation about the constitution, instead of any practical suggestions, was and is (in my view) part of the problem.

*

But.

Regardless of the (provocative) title of that column, there are times to revisit the debate about the merits and otherwise of a codified constitution.

This morning, the news reports from the United States are that the Democrats may have won both Georgia senate seats – and, if so, that would mean the Republicans will lose control of the senate.

Today the United States congress will meet and it is expected that the electoral college vote will be certified, meaning Donald Trump has lost and Joseph Biden has won.

The Trump presidency will thereby end, and the Biden presidency will begin, on 20 January 2021 by automatic operation of law.

These are welcome political developments for anyone opposed to the nasty authoritarian nationalist populism of Trump and his Republican supporters.

They have lost.

So surely: this shows the merits of a written constitution?

*

Tony Benn famously posited the five questions of any democracy:

‘What power have you got?’

‘Where did you get it from?’

‘In whose interests do you use it?’

‘To whom are you accountable?’

‘How do we get rid of you?’

Of these five questions, the one which (in my view) has the most power is the last one: ‘How do we get rid of you?’

And applying this question to the Trump experience, the answer is stark and indeed unavoidable.

Donald Trump has been got rid of because of the provisions of the constitution of the United States.

As the events since his election defeat have shown, there is nothing he would not resort to doing so as to keep office.

In an extraordinary and significant intervention, all living former United States defense secretaries wrote in the Washington Post warned against the armed services being used to affect the result of elections.

The same newspaper also released a similarly extraordinary and significant telephone conversation where Donald Trump was placing illegitimate pressure on the Georgia secretary of state to overturn an election result.

The grim reality is that if Donald Trump could find a way to stay in office he would use it.

And if this grim reality is accepted, then it must also be conceded that the only reason he has not stayed in office is because there was something more powerful in his way.

And that thing which is more powerful is the (codified) constitution of the United States.

*

Being, on one hand, critical of constitutional trespasses and abuses and, on the other hand, sceptical of the claims made for codified constitutions, has the merits of being an independent and (I hope) intellectually consistent point of view – even if it appears not to have the benefit of also being a popular one.

The Trump experience does not show (at least to me) the merits of a written constitution – every single bad thing that has happened over the last four years has happened despite there being a written constitution in place.

Every single one.

And this evidences, if not proves, that a written constitution is not a panacea – and those in favour of codification should stop pretending otherwise.

But.

Taking the last of Tony Benn’s questions seriously, it also has to be admitted that codification, in certain extreme situations, can help in getting rid of those in power who seek to abuse power.

(Of course, the tyrant can seek to amend such a constitutional provision – but at least it provides an additional high hurdle.)

The outstanding constitutional question, however is not about how Donald Trump was finally removed from office, but how he was allowed to get away with so many wrongs in the meantime?

And that is a far more difficult question for supporters of codification to answer.

*****

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

2nd January 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There is no self-restraint.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*****

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

Each post takes time, effort, and opportunity cost.

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

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You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.