Category: Legislation and Law-Making

The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’

15th March 2021

There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.

This new offence – as currently set out in the bill – is itself causing annoyance and distress.

Why is it being proposed?

And what should parliament do about it?

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Like a lamp in Aladdin – it is a new offence for an old one.

If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.

The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.

(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)

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On the face of it, reform and simplification are good things.

Who could possibly oppose something as laudable as reform and simplification?

And the Law Commission does have a point – the current law is somewhat vague and archaic.

The current law is usually stated as:

‘A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’

The bill before parliament proposes that old offence to be replaced by this:

As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.

Words like ‘annoyance’ are added.

But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.

The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.

The Law Commission summarises their view as (at paragraph 3.12):

‘One question is the nature of the right or interest which public nuisance seeks to protect.  In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’

Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.

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But.

Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.

Never trust the home office.

And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.

For example (with emphasis added):

‘A person commits an offence if— (a) the person— (i) does an act […]  [which](b) the person’s act or omission […] (ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and (c) the person  […]  is reckless as to whether it will have such a consequence. […]  (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or (d) is put at risk of suffering anything mentioned […].

The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.

And there does not need need to be any directed intention – mere recklessness will suffice.

The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.

Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.

Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.

And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.

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This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.

As such, such provisions should receive the anxious scrutiny of parliamentarians. 

Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.

Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.

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Under the hood: how the United Kingdom state authorises people to commit criminal offences and then protects them from prosecution

12th March 2021

A recent court of appeal case has provided an insight into how the United Kingdom state both authorises people to commit criminal offences and then protects them from prosecution.

To show how this is done is not necessarily to condemn – or endorse – such governmental practices.

You may well believe that it is right that in certain covert operations those acting on behalf of the state should be able – as part of their cover – be able to break both the criminal and civil law for the greater good.

Or you may believe it should not be legally possible and that such things have the effect of placing state agents above the law.

In either case there is value in understanding just how it is done.

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The starting point is to know – in general terms – about the two-stage ‘code’ test for bringing criminal prosecutions.

The first stage is to determine whether there is sufficient evidence against a defendant – this is called the evidential test.

The second test – treated as a routine formality in most every-day cases – is whether, distinct from the evidential test, there is a public interest in a prosecution – this is called the public interest test.

The notion is that there is a presumption that a prosecution is in the public interest unless there is a reason why such a prosecution was not in the public interest.

And it is at this second stage that state-authorised criminals are protected from prosecution.

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But it is important to note that this protection is not a legal immunity.

Oh no, not at all, definitely not, how could you think such a thing?

The contention is that because in theory a prosecution can still occur then state agents are not technically above the law.

And placing state agents above the law would be a bad thing, and such a bad thing would never happen.

An authorisation for a state agent to break the law does not confer immunity from prosecution – it instead provides a factor which a prosecutor takes into account when making the decision whether a prosecution is in the public interest or not.

In this elaborate – and for some, artificial – form the state has both its cake and a file inside it.

State agents are protected from prosecutions for their criminal acts – but are not given immunity.

It is just that the prosecutions will not happen.

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The court of appeal case is the latest (and perhaps last) stage in an important public interest case which, among other public benefits, has led to the disclosure of hitherto secret guidance on authorising state agents to commit criminal effects.

The judgment at paragraph 14 even published a redacted version of the guidance.

One paragraph of that guidance describes the legal effect and consequences of an authorisation (which I break up into smaller paragraphs for flow):

‘9. An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.

‘Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.

‘In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.

‘Accordingly, any such authorisation should, on its face, clearly establish that the criteria for authorisation are met, in terms which will be readily understood by a prosecutor.

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To a certain extent the court of appeal case is of historic interest, because the government has now legislated to place part of this system on a statutory basis.

In the grand tradition of giving important legislation complicated and forgettable names, this is the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.

This inserts the glamorous-sounding ‘section 29B – Covert human intelligence sources – criminal conduct authorisations’ into the Regulation of Investigatory Powers Act 2000, including this definition:

‘A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

You will note – perhaps worryingly – that there is no limit on what criminal actions may be authorised.

And here on should bear in mind the circumstances of the murder of Pat Finucane.

(And those circumstances explain why the Pat Finucane Centre were one of the groups bringing the legal challenge.)

 

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On the face of it: murder and other serious criminal offences can be authorised by the state: there is no express limit.

But, of course, such things would never happen.

Ahem.

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Paragraph 113 of the judgment also reveals something interesting:

‘The undisputed evidence generally was that the Security Service works closely with the police in counter-terrorism operations. The evidence also reveals that there is, for example, a Memorandum of Understanding between the Security Service, the police and the Counter Terrorism Division of the Crown Prosecution Service.’

This memorandum of understanding, of course, does not seem to be in the public domain.

As a ‘memorandum of understanding’ this would be a formal, legal-looking document – complete with pompous earnest language and paragraph numbers – but it is as much an imposter as any covert agent.

The purpose of a memorandum of understanding between government entities is to have the effect of a binding agreement – but without any of the inconveniences of it actually being a legal instrument, such as transparency.

There are memorandums of understanding all over the state (and between the United Kingdom and other states) – many of which are secret – but all of which are crucial in the conduct of government and public affairs.

The court of appeal’s helpful mention of the existence of this memorandum of understanding tells us how – as a matter of process – the authorisations are in practice converted into decisions not to prosecute.

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Again: you may take the view that all this is not something to worry about and that government is doing what it has to do so as to keep us all safe.

Nothing in this post should be taken to gainsay such an entirely valid view.

The purpose of this post is to use information in the public domain so as to show how the state goes about doing what it does.

And there is even a reason to welcome the 2021 act even if one is a liberal or progressive.

The more of what the state does that is placed on a public statutory basis the better in any democratic society that values the rule of law.

So although the various public interest groups failed in their appeal, their dogged-determined litigation has led to certain things becoming public knowledge and perhaps being placed on a statutory footing that were not public knowledge before.

Just because some things should be covert it does not mean all things have to be covert.

And there is not a good reason why the ways and means by which the state authorises criminal conduct and then protects its agents from prosecution should not be in public domain – and in a democratic society that values the rule of law there is a good reason why it should be.

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EDIT

The first version of this post had a mention of the Criminal Injuries Compensation Scheme – but the point I made now appears to be incorrect – so I have deleted that section so I can consider it again.

Apologies.

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The contest between sovereignty and legitimacy – the dilemma for the Crown

10th March 2021

Yesterday the writer Reni Eddo-Lodge tweeted a brilliant observation about our constitutional and media arrangements:

This blog post expands on this brilliant observation.

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The starting point is sovereignty.

In the United Kingdom – or at least in England and Wales – the ultimate source of all legal power is the crown.

Acts of parliament derive their force from royal assent – and thereby so do all powers exercised under those acts of parliament.

Certain entities – such as the British Broadcasting Corporation – owe their legal existence to the legal magic of a royal charter.

Executive power other than under acts of parliament often is exercised under the royal prerogative or under the Queen’s privy council.

The jurisdiction of the high court is based on the old courts of the king’s (and queen’s bench) and the lord chancellor as keeper of the monarch’s conscience.

Magistrates are often justices of the (king’s and queen’s) peace.

And prosecutions and other proceedings in public interest are brought in the name of the crown – including at, well, the crown court.

The legal sovereignty of the crown – like turtles – goes all the way down.

(There are those who aver that this doctrine is a royal peculiar in respect of the constitutional law of England and Wales, and that the sovereignty of the crown may not have the same effect in the laws of Scotland and Northern Ireland.)

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But.

Sovereignty is not the same as legitimacy.

The legal source of power does not, by itself, render that power acceptable by the governed – at least in many complex societies. 

Those who have and use ultimate power also need to have – or be seen to have – legitimacy.

In a republic, this problem can be addressed by the term ‘the people’.

The authority of a constitution is derived from ‘the people’ – and even prosecutions can be brought in the name of ‘the people’.

CTL+F “crown” > CTL+R “the people”.

Of course, in practice ‘the people’ may well have as little actual influence as they would do under a monarchy.

But that does not seem to matter.

Things are expressly done in the name of ‘the people’ and this appears to make all the difference.

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In a monarchy such as the United Kingdom the contest between sovereignty and legitimacy is met by the phrase ‘constitutional monarchy’.

The sovereignty – and powers – of the crown are thereby subject to the constraints – the checks and balances – of a constitution.

(And, yes: a country does have a constitution even if that constitution is not codified in a single written document – for there is a descriptive answer to the question ‘how is this country constituted?’) 

These checks and balances apply not only to things done (or can be done) by a monarch himself or herself but also to things done with powers derived from the crown.

For example, an act of parliament will still need to be interpreted and applied by a court, regardless of royal assent.

And a prime minister and government is accountable to parliament.

Parliaments, in turn, are subject to periodic general elections.

And so the people are, in an indirect way, in charge – even if not formally as ‘the people’.

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But what happens when a ‘constitutional monarchy’ does not have (much) legitimacy?

As this blog set out in a recent post, the crown is a markedly fragile and malleable institution – notwithstanding its familiarity and durability.

For example, when the Queen was born in 1926, her grandfather had taken the throne as king of both Great Britain and Ireland, as well as emperor of India and elsewhere – and as she grew up, the majority of Ireland became a republic and the empire converted to a commonwealth, while the next king – her uncle – was forced to abdicate by a bunch of politicians.

The Queen and her inner circle are acutely aware of the precariousness of the monarchy.

So this need for constant validation.

For as Eddo-Lodge points out, the one thing that the monarchy really cannot do – by definition – is expressly seek the consent of the governed. 

And so, not being able to obtain our consent, it seeks our approval.

But the approval – or apparent approval – of the people cannot be easily sought or obtained other than through the structures of the established media.

(The extent to which the internet and social media has disrupted and will continue to disrupt this predicament is not yet clear.)

Here we come to the tweet to which Eddo-Lodge herself was responding, from the commentator Mic Wright:

That the monarchy constantly needs such approval is not a bug of our constitutional arrangements, but a core feature.

And that the media – that can regulate that approval – in turn will use and abuse that power of conferring (apparent) public approval is also not a surprise.

With great power usually comes great irresponsibility, whatever the political philosopher Benjamin Parker says otherwise.

We therefore have the worst of both worlds.

A source of sovereignty that is needy for legitimacy, but one which cannot obtain that approval directly and so is dependent on a media that will naturally abuse its power.

There is therefore a hole at the centre of our constitutional arrangements.

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Most of the time this gap does not matter.

Days and weeks pass, royal scandals come and go, and things look calm and carry on.

Crises are averted – and the crown and the media negotiate a new relationship of use and abuse.

But.

Sometimes crises may not be averted, and the problems that do come will not then conveniently go.

And there may be a reckoning.

The constitutional equivalent of a credit crunch.

Perhaps the fall-out from the Meghan and Harry interview will not lead to any great upset – nor any fall-out from the activities of other members of the royal family.

Perhaps all this will be soon forgotten, with the coming of spring and the (heralded) end of lockdown.

Yet, even if the ship of state stabilises it will still be just as prone to capsizing.  

And that is ultimately because the sovereign cannot obtain legitimacy directly from consent, and so needs our approval instead.

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The legal power of the Home Secretary to deprive a person of United Kingdom citizenship – looking closely at the Begum case part 1

28th February 2021

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Is the fault with the substantive law and general government policy?  Or with the particular decisions made by home secretaries?  Or with the lower courts and tribunals?  Or with the higher appeal courts?

Of course, one easy answer is say ‘all of them’ – but even then: what is the allocation and distribution of wrongness in the system?

Previous posts on this blog on the case have put forward some initial impressions on the supreme court judgment of last week and, yesterday, compared the case in general terms with the 1941 decision of Liversidge v Anderson.

Today’s post is on the general subject of the power of the home secretary to deprive a person of British citizenship, subject to the (supposed) prohibition on rendering a person ‘stateless’.

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The power of a home secretary to deprive a person of British citizenship is set out in section 40 of the British Nationality Act 1981.

Note, however, that this is not about powers that actually date back to 1981 – as this provision and the act generally have been heavily amended by successive governments.

This legal power, like many other powers that can be used illiberally, is a legal work-in-progress – constantly being tuned (if not finely) by home office lawyers by legislative amendment so as to make it ever-more difficult for a home secretary’s decisions to be checked and balanced.

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The key power in the Begum case is at section 40(2):

‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.’

This is it – this is the deprivation power.

On the face of section 40(2) alone, any person can be deprived of citizenship not by a decision of an independent court or tribunal but at the simple discretion of a cabinet minister.

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But.

There is then section 40(4), which provides:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

(The ‘he’ here also means ‘she’ under section 6 of the Interpretation Act 1978.)

On the face of it, section 40(4) would thereby prevent the deprivation power being used so as to render a person stateless.

Yet note, the deft use of the words ‘he is satisfied’.

Read the provision again without those three words to see the difference those words make: ‘The Secretary of State may not make an order under subsection (2) if  […] that the order would make a person stateless.’

The direct legal test is thereby not whether a person is made stateless, but (again) the ‘satisfaction’ of the home secretary.

As we come to look more closely at the Begum case in particular, you will see what rides on words and phrases like this.

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Turning now to the Begum case, we can now see the legal basis of the decision by the then home secretary Sajid Javid of 19th February 2019 (emphases added):

‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.

‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.’

As you can see, the notice of 19th February 2019 ticks the boxes for both (1) the basic deprivation power and (2) avoiding the statelessness exception.

This determination being made by the home secretary – and given the evidence on which the home secretary purports to rely – the only immediate avenue of appeal of Begum was to the special immigration appeals commission.

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The next post in this series of posts on the Begum case will set out the relevant law on ‘statelessness’.

Further posts will then show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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A government department or minister has been found to have acted unlawfully or illegally – but what does this mean? And what does it not mean?

21st February 2021

The news item is dramatic.

The high court in London has decided that a government department – or a specific secretary of state – has acted illegally or unlawfully.

The department or minister has, as the saying goes, broken the law!

There will then be a flurry of tweets, retweets and likes – and then demands for resignations, or prosecutions, or whatnot – followed by complaints that the news media (usually the BBC) have not adopted a similarly breathless approach.

And then there will be a sense of anti-climax or disappointment as the news fades and nothing significant seems to happen.

Nobody resigns, nobody is sacked, nobody is prosecuted, nobody has any personal legal liability.

Why is this?

Surely breaking the law has consequences?

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Well.

Part of the problem is that the words ‘illegal’ and ‘unlawful’ are wide in their meaning.

(For convenience, the terms ‘illegal’ and ‘unlawful’ will be used as synonyms n this post – though some lawyers will have very strong opinions as their distinction in certain contexts.)

Their core meaning of being ‘illegal’ and ‘unlawful’, of course, is that there has not been compliance with a law – or that a thing has been done without a lawful basis.

That core meaning, by itself, does not tell you what laws have been broken, how they were broken, and what the consequences (if any) are for that breach.

And in the case of there not being a lawful basis for a thing, it may even mean no specific law has been broken as such.

There are many ways in which a thing may be ‘illegal’ or ‘unlawful’.

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Yet for many the phrase ‘broken the law’ will mean a person has done something criminally wrong.

That such a person has breached a prohibition for which the criminal law provides a sanction for that breach.

But that is only one way the law can be breached.

This is because criminal law is only a sub-set of the law.

And so the illegality that gives rise to criminal liability is just a sub-set of illegality.

There are other ways a thing can be ‘illegal’ or ‘unlawful’ without any criminal offence being committed.

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Another way a thing can be ‘illegal’ or ‘unlawful’ is when a person does not comply with the conditions of a contract, or with the terms of a licence, or commits a wrong such as trespass or negligence.

Such an action or inaction will be to ‘break the law‘ – but these will not usually result in any criminal sanction.

Such wrongs are usually enforced, if at all, by a wronged party suing in a court.

This is what the law regards as ‘civil’ law as opposed to ‘criminal’ law.

Some people can commit dozens – if not hundreds – of such breaches – and nothing happens, because nobody is able or willing to sue for the wrong.

People act unlawfully and illegally every day.

People just like you.

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Another way a thing can be ‘illegal’ or ‘unlawful’ is when a public body does not comply with the provisions of the law or its relevant legal duties.

Here the relevant law is called ‘public law’ – a general term for the special laws that regulate what public bodies can and cannot do.

As a general rule, a public body can only do what the law provides for that body to do, and when doing so that body also has to comply with certain duties.

And if that public body does not do so, then it will be acting ‘illegally’ or ‘unlawfully’.

This means the public body, as a matter of law, has not done what it should have done.

The common way for such bodies to be held legally to account for the lawfulness of what they do is called ‘judicial review’ – though the question of legality can also sometimes be raised other legal proceedings.

Judicial review is, in England and Wales, usually before the high court.

When the question of legality is raised, the high court will ascertain the relevant laws and legal duties of the public body, and the court will then determine whether the public body has acted in accordance with those laws and duties or not.

If not, the court can decide whether the public body (or minister in charge of a government department in their official capacity) has acted illegally/unlawfully.

And that…

…is it.

At least that is it, in respect of the substance of the case.

If necessary, the court can then make a ‘quashing order’ that will render the act – a decision, or measure, or policy – as unlawful.

The quashing order will then, by legal magic, remove any legal meaning from what was done (or not done).

In practice, this usually means the public body (or minister) can make the quashed decision (or measure or policy) again, but this time lawfully.

A court may sometimes think a quashing order is not necessary, and may make what is called a ‘declaration’ instead – where the high court declares what the relevant legal position is (or is not).

And sometimes a court can even view that neither a quashing order nor a declaration as having any practical use, and regard the breach as moot or academic.

So a finding by the high court of illegality by a public body may mean there is a remedy, on not, depending on the circumstances.

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The role of the court in judicial review is to, literally, review a thing judicially – to see if a thing done or not done by a public body was lawful or not. 

And if so, to see if anything practically needs to be done as a consequence.

Nothing more.

No automatic orders to pay damages, still less impositions of criminal convictions.

And sometimes not even a quashing order or other order, or a declaration, as not even that remedy is required to put right the wrong.

This is because the job of public law is not to deal with civil or criminal wrongs directly but to ensure lawful actions by those with public power – and to issue what corrective orders are necessary to ensure that public bodies keep within their powers and fulfil their duties.

Telling the swimmers to stay in their lanes, and blowing a whistle if required.

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There is a public interest in this discrete question of legality of public bodies being examined by courts.

Of course, there will always be a clamour for greater sanctions for those individually responsible for such unlawful conduct.

And both the civil law and criminal law do provide the means for civil claims and criminal prosecutions to also be brought in certain circumstances.

Judicial review is not the only legal redress.

Such claims and prosecutions can, however, be complex and time-consuming, involving extensive witness and other evidence, and the need for witness evidence to be examined and cross-examined.

It is harder to impose individual culpability than to review generally whether a public body has acted lawfully or not – especially if intention has to be proved or causation of damage to be shown.

This is not to say there should be no role for civil and criminal liability when things go wrong in the public sphere – but to aver instead that the allocations and inflictions of such liabilities on individuals raise wider legal issues than the narrow question of whether a public body acted within or without its legal powers and duties.

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So when the news is that the high court has found that a public body (including a secretary of state) has acted unlawfully or illegally then this means the court has reviewed what has happened and found it legally wanting.

A ‘cross’ rather than a ‘tick’ against the public body’s action or inaction.

The swimmer is in the wrong lane.

And, if required, an order or declaration so as to correct what has gone wrong.

That this does not carry any personal legal consequences for the ministers or officials involved will disappoint some of those following the news.

But to insist that there also has to be personal legal consequences for the ministers or officials whenever there are unlawful or illegal actions by a public body would be to make judicial review ineffective as a useful tool.

And there would be no public interest in that.

*****

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Comments are welcome, but they are pre-moderated.

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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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Why not every discussion about the Crown should be just another debate about its abolition – and what Netflix’s ‘The Crown’ gets right

 13th February 2021

This week the Guardian has run a sequence of pieces about the right of the Queen and the Prince of Wales in respect of proposed legislation that affects their private interests.

See here, here, and here.

Such a right is, as this blog averred, unacceptable and should be abolished (and indeed could be easily abolished without even an act of parliament).

But even mentioning this particular wrong triggered the usual broader reaction: ‘Let’s abolish the monarchy while we are at it’.

And so a particular point becomes the most general of demands, and in the end – as always – nothing will be done about either of them.

This is, in live action, the constitutional utopianism recently described by this blog (here and here).

It is similar to what happens with any attempt to highlight or expose a constitutional wrong by the government.

There such an exposure or highlight triggers the general demand for a written (that is, codified) constitution. 

And again, nothing ends up being done to address, still less remedy, the specific problem.

(I have set out in this provocatively titled Prospect column, why we should stop talking about about a written constitution.)

These general reactions are not so much ways of thinking about constitutional issues but a way of not thinking about them.

You hear or read of a problem, type out your demand in a tweet or other comment, bit ‘enter’ and gain a ‘like’ or even a retweet, and: job done!

But the job is not done.

In fact, nothing gets done.

And the constitutional abuses carry on as before.

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Of course, there is a strong if not compelling case – in principle – for republicanism in any mature polity.

Strange women lying in ponds distributing swords is no basis for a system of government.

Supreme executive power should derive from a mandate from the masses, and not from some farcical aquatic ceremony.

(Ahem.)

Against the strong if not compelling case for republicanism as a matter of principle, however, there is a plausible case as a matter of practice for the monarchy in the instance of the United Kingdom.

This practical argument is not so much about what powers the Crown has – but what powers it prevents others from having.

In particular, the office of prime minister has few direct and express powers (and indeed there are relatively few mentions of ‘prime minister’ in statute or case law), meaning that almost all exercises of prime ministerial power are negotiated and are thereby contestable.

Even the convention that Crown will do whatever the prime minister ‘advises’ was shown to be open to challenge by the supreme court of the United Kingdom in the second Miller case.

These checks and balances on ultimate executive power are weak – but the challenge for any republican is that they should show how any replacement to the monarchy would also have checks and balances.

For a solution to the problem of the monarchy that would mean even more unchecked and imbalanced executive powers would not be an improvement – at least not from any liberal perspective.

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In constitutional theory the Crown is the ultimate basis of not only executive power but legislative power (the ‘Queen-in-Parliament’) and even the judiciary (the Queen-in-her-courts).

This can lead to pleasing if not amusing events such as an application for judicial review brought in the name of the Crown (‘Regina‘) in respect of the exercise of the royal prerogative to prorogue parliament so that there can be a new Queen’s speech.

(That was the constitutional essence of the second Miller case.)

An understanding of the Crown therefore is essential to understanding at least the theory of the current constitutional arrangements of the United Kingdom.

And as the ‘United Kingdom’ label on the tin suggests, the Crown is the single most significant unifying factor in the current political union of England, Scotland, Wales and Northern Ireland.

If and when there is a republic then what replaces the Crown will also have to function as this all-purpose constitutional glue.

This is not to say abolition of the monarchy should not be done – but, like Brexit, there will be an awful lot of work to do just to duplicate current arrangements under a new label.

And, again like Brexit, the question has to be whether it would be really worth all the time and effort, regardless of your position as a matter of principle.

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In the meantime, the powers of the Crown – both in respect of the public powers of the royal prerogative and the private powers such as the Queen’s Consent – still need anxious scrutiny.

That there is a broader question of whether there should be a republic should not mean any narrower questions should be disregarded.

The one thing that the Netflix series The Crown gets right – even if it gets a lot wrong in respect of historical detail – is that it conveys that the monarchy is an ongoing work-in-progress.

The Crown adapts, and it seeks to avert or survive crises with a combination of stubbornness and reinventions: an institution highly alert to its own precariousness.

And those who want to limit the misuses of the power of the Crown (and what is done in its name by the prime minister and others) should adopt a similar but opposite approach.

For keeping the powers of the monarchy properly in check is also an ongoing work-in-progress.

And in the happy event that we do one day become a republic, then keeping the powers of any presidency would also be an an ongoing work-in-progress.

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The noises made by United Kingdom ministers complaining of exclusion from European Union decision-making is the sound of Brexit

9th February 2021

One delight of the internet age is that you are more likely to see copies of original political correspondence.

Before the late 1990s you could have a serious interest in politics and public affairs and never see a copy of an official letter on headed paper.

Now, though usually when it suits a politician or official involved, you will see formal correspondence as images attached to tweets or embedded in news articles for you to scroll and look at for yourself.

On the face of it, this is a boon for transparency: you get to see what these letters say for yourself, rather than relying on the spin of ‘a friend of the minister’ or the rushed summary of a busy reporter.

But this is somewhat illusory, for three reasons.

First, as mentioned, one almost always only gets to see what it suits somebody with power for you to see.

Second, some of the politicians most adept at the game of letter writing for publication – such as Michael Gove at the cabinet office – are in charge of government departments with miserable records in respect of freedom of information.

And third, the letters are invariably political rather than administrative devices, written with the audience of supporters and media in mind, rather than to inform the recipient.

So, notwithstanding the grand headings and formal paraphernalia, such letters should be presumed to be mere propaganda and gestures, unless a more serious nature can be shown.

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But.

Sometimes such letters can be unintentionally revealing.

And two such telling letters entered the public domain yesterday.

The first is from Gove and it is in respect of article 16 of the Irish protocol.

2020_02_02_-_Letter_from_CDL_to_VP_Šefčovič

As with any Gove letter the first task is to strip off the all the performative politeness, as one would do with the needless extra wrapping of something that may be useful underneath.

But what I saw as notable about this letter was not the supposed main subject of the botched invocation of article 16 by the European Union – on which the United Kingdom has a fair point, though here it is being shamelessly exploited – but a comment made by Gove in passing.

‘We were not consulted on this Regulation either.’

There was no formal need for the European Union to have consulted the United Kingdom on this new regulation.

The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.

But this was not the case with the replacement regulation.

The revised regulation was entirely a matter for the European Union.

And the reason why it was entirely a matter for the European Union is, well, because the United Kingdom has departed from the European Union.

Not being part of the formal decision-making, policy-making and law-making of the European Union is what Brexit means.

Of course, Brexit also means many different other things to different people.

But the one thing which Brexit has to mean is that the United Kingdom is no longer part of those institutions of the European Union that make decisions, or formulate and apply policy, or adopt and implement laws.

This is the necessary implication of the United Kingdom ‘taking back control’.

What did Gove and other Brexit-supporting politicians think Brexit meant?

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Another letter from another minister was from George Eustace.

Here the United Kingdom government is ‘surprised’ that the European Union has ‘changed its position’.

One fears that the United Kingdom will have to get used to be being ‘surprised’.

(Though any minister or official who is genuinely ‘surprised’ by what a counterparty does is not doing their job properly – as the awareness of and planning for possible contingencies is the basis of any sound public policy.)

Again, as with Gove’s letter, the United Kingdom government does not appear to realise that the United Kingdom is now merely a ‘third country’ for the purposes of European Union decision-making, policy-making and law-making.

Unless the European Union has agreed otherwise in the withdrawal or the trade and cooperation agreements, the interests of the United Kingdom has no more purchase on the conduct of the European Union than any other non-member of the European Union.

That is what Brexit means.

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There will be, no doubt, many more complaints from United Kingdom ministers – and from their political and media supporters – about the European Union making decisions, formulating and applying policy, and adopting and implementing laws, that are not to the advantage of the United Kingdom.

Supporters of Brexit tended to emphasise the positive-sounding ‘taking back’ of ‘control’ – but the immediate and necessary consequence of Brexit is instead the formal exclusion of the United Kingdom from general European Union decision-making, policy-making, and law-making.

And so, just as ministers complaining about adverse judicial decisions is the sound of a working constitution, the noises of ministers unhappy about what the European Union does and does not do is the sound of Brexit.

**

FOLLOW-UPS

From time to time, this blog will link to interesting things relevant to previous posts.

On yesterday’s post on the Queen’s Consent, please see these further Guardian reports (here and here) and also this informative article by Adam Tucker, the leading constitutional law academic on the subject.

On the post on ‘Sovereignty’ and Brexit, many have pointed to this post by Alastair Campbell.

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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.

*

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.

*

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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“But: sovereignty” – why the question needs to keep on being asked of Brexit as to how any of this is worthwhile

7th February 2021

The front cover of the Observer this morning provides some indication of what the United Kingdom is doing to itself in respect of its botched endeavour of Brexit.

As Michael Gove himself could well put it: this country appears to have had enough of exports.

Elsewhere are news reports of the realisation of Northern Irish unionists that the manner of this Brexit means that there is now a trade barrier down the Irish Sea.

Even the fishermen and fisherwomen, in whose names the very last stand of this government’s Brexit negotiation strategy was made, are unhappy.

Day by day, news report by news report, the true nature of Brexit is becoming apparent.

There will be deflections and misdirections from those who supported and urged through this government’s approach to Brexit.

And, to the annoyance and frustration of those who opposed either Brexit in principle or this government’s Brexit policy in particular, these deflections and misdirections will in good part stick.

There will be no grand ‘oh gosh’ moment when all those responsible for this folly will admit to it having been a folly.

But.

This does not mean that those who are watching this folly unfold should be silent.

*

For the question that needs to keep on being asked – whether one is against Brexit in principle or this government’s Brexit policy in particular – is simple:

How is any of this worthwhile?

Or alternatively:

What is the point of Brexit?

This is not a complaint from principle but from practice – regardless of one’s view of membership of the European Union, those responsible for the United Kingdom’s post-Brexit policy are still required to justify what they are doing.

*

The answer from Brexit supporters to the question of why any of this is worthwhile seems to be one word: ‘sovereignty’.

All these disruptions and all these reversals are supposed to be worth it, because of ‘sovereignty’.

But, as this blog has previously averred, the United Kingdom had sovereignty all along.

That is why the United Kingdom was able to decide to leave the European Union, and that is why parliament was able to repeal the European Communities Act 1972.

Sovereignty was never lost.

And to the extent that the United Kingdom was bound by international rules and decisions, this was (and is) no different in principle to the obligations that the United Kingdom has under NATO, or the World Trade Organisation, or the United Nations.

Though curiously, many of those in favour of Brexit are at ease with our obligations in respect of those international organisations, and even boast of trading under ‘WTO rules’ or of the United Kingdom’s permanent membership of the UN security council.

One could even say that Brexit is nothing actually to do with ‘sovereignty’ (with or without scare quotes) and more to do with hostility to the ‘E’ word, Europe.

What Brexit certainly has little to do with in practice is the supremacy of parliament – indeed under the cloak of Brexit, the United Kingdom government is seeking to legislate as much as possible by executive action.

Powers are being taken away by Whitehall from Westminster rather than from Brussels.

Even on the one topic on which the current government has struck lucky – and that was more by chance than design – it was possible under European Union law for the United Kingdom to procure the AstraZeneca vaccine on its own terms.

And, indeed at the time, the United Kingdom was still subject to European Union law under the transition arrangements.

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No assertions – however loud – about Brexit in practice being justified by ‘sovereignty’ in principle add up with a moment’s thought.

Not one incident of Brexit so far has shown any value of Brexit as an exercise in regaining ‘sovereignty’.

And this is not so much because Brexiters are wrong to prioritise sovereignty above everything else – but because none of this is really about sovereignty in the first place.

And so the question needs to keep on being asked as to why any of this is worthwhile.

Because it is only by pressing this question that we can ascertain the real reasons for certain botched policies and decisions – and then once the real reasons are ascertained then something useful can be done to mitigate the disruption and damage.

For like some character in an ancient myth or a folklore tale, the United Kingdom has chosen to bring destruction upon itself in supposed pursuit of a thing it had already.

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