Category: Legislation and Law-Making

Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

 9th February 2023

Oh dear old Thoburn, what shall be done with you?

Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?

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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.

Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.

But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.

Incredible, if true.

And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.

But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.

What will law students and pundits do?

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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.

This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.

But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.

How should the courts deal with this situation?

The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.

But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.

And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.

(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)

And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.

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But in 2002 the court was faced with another seemingly awkward situation.

It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.

On the merits of the case, the court found that this was not the position.

But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.

Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?

On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.

But.

As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.

And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.

If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.

His dictum was as follows (which I have broke out into one-sentence paragraphs):

We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.

The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

The special status of constitutional statutes follows the special status of constitutional rights.

Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.

It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.

The ECA is, by force of the common law, a constitutional statute.

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This was exhilarating, provocative stuff.

And it was utter flapdoodle.

There was no basis for positing such “constitutional statutes” – either then or now.

They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.

The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.

It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.

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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.

The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.

But the Supreme Court was unimpressed by the Thoburn point.

The court described the submission (again broken up into one-sentence paragraphs):

On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.

In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.

At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:

“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.

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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.

The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

“Academic.”

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.

“Even if”

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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.

But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.

For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.

The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.

But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.

Or has it?

No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.

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The importance of giving important legislation very dull names

25th January 2023

In his informative post today on Dominic Raab and his “Bill of Rights”, Joshua Rozenberg quotes today’s important report by a parliamentary committee:

“What’s more, says the all-party committee, it’s not a bill of rights at all. If the government decides to press on with it, the bill’s title should be changed to something more meaningful — such as the European Convention on Human Rights (Domestic Application) Bill.”

And indeed the committee even states this as a conclusion:

The committee make a good point – and this is a missed trick by the justice secretary Dominic Raab.

Had Raab gone for a bill with such a boring title it may even now been an Act.

But he went for perhaps the most portentous title for legislation he could think of – other than Magna Carta II – and so looks like he will have no legislation passed at all.

Raab wanted to evoke and allude to the Bill of Rights of 1688-89 when all he was doing was fiddling around at the margins of how the European Convention on Human Rights was given effect in English law.

Had he been content with a more drab descriptive title, he may now have a legislative achievement to chalk up against his name.

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There is nothing wrong with dull titles for legislation.

For example, one of the most important statutes in property and contract law has the sterling, stirring title of the Law of Property (Miscellaneous Provisions) Act 1989.

What matters is the substance of a statute, not what can be said in a press release with its title.

A less pompously named statute tidying up some of the acknowledged problems with the Human Rights Act may have actually been welcome.

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But.

The problem is not just with Raab.

The Human Rights Act itself has a needlessly provocative title.

Had it been called the European Convention on Human Rights (Domestic Application and Miscellaneous Provisions) Act 1998, then there would probably be far less political and media opposition, even if the substance was the same.

Part of the reason why the 1998 Act is still contested in some political and media quarters is because of its name.

So let us worry less about the the titles of legislation and more about the substance.

And perhaps “political” titles for legislations should be banned.

The prohibition could even be contained in a Banning Daft Legislation Titles Act.

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We have a coalition government, and we have had for some time

12th January 2023

Another day, another news report about the government not being able to get support from its own backbenchers for its legislative programme:

This is becoming a regular event.

The stuff of the politics of the governing party at the moment is pretty much U-turns and rebellions.

This is a governing party that was elected with a majority of 80.

Indeed, the governing party forced through Brexit in 2019-20 so as to to gain this party majority.

And this governing party has done almost nothing substantial with this nominal majority.

For despite the majority on paper, this is a government in constant negotiation with its own backbenchers.

If we drop the formalities, this is a coalition government, between the warring factions of the governing party.

And this has been the case since it was elected.

If we then look back before 2019 we also can see coalition governments: the 2010-15 formal coalition and the 2017-19 informal deal between the governing party and the Democratic Unionist Party.

Indeed, other than between 2015-17, an argument can be made that we have had, either formally or in effect, coalition government almost continuously since 2010.

Of course, this may seem counter-intuitive.

Coalitions are often seen as nice cuddly things, allowing centrists and environmental and regional parties to have disproportionate influence.

And one of the stock arguments for proportional representation is that we would have the benefit of more coalitions.

But we have had coalitions anyway.

We have just had, from a small-l liberal perspective, the wrong sort of coalitions.

But when a government cannot carry its own business without continual compromises and retreats caused by competing factions then there is perhaps no other good word for what we have.

For what we do not have is a party-based government able to implement a manifesto programme.

Indeed, other than in 2015-17, it is difficult to remember when we last had one.

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From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

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And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

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Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

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You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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How the campaign to stop the United Kingdom government from making it more difficult to prosecute war crimes was won

16th December 2022

Sometimes legal things do not always end badly.

Two years ago, in 2020, I did a video for the Financial Times on how the United Kingdom government was then making it more difficult for former United Kingdom service personnel to be prosecuted for war crimes.

The government was in 2020-21 using a Bill to make it more difficult for any historic civil or criminal legal action to be brought against former service personnel and – for some reason – torture and war crimes would be among those offences that would be made more difficult to prosecute.

Whatever that reason was, it was not a good reason.

There are certain offences so grave that there should not be formal or effective immunity for those who commit those crimes.

And this was not about battlefield or front line operations, but about the treatment of civilians or captives.

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Many – including serving and former military personnel – were deeply unhappy with this proposed immunity.

And the fine people at Freedom from Torture and at other campaign groups put together an impressive and persuasive campaign against the proposed legislation:

The pressure mounted, and the Bill’s progress through Parliament was getting trickier.

And then, in April 2021, the government capitulated:

And so the Bill passed into law with the following exemptions:

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Two years later, as this blog set out yesterday, a full statutory inquiry has now been announced into illegal actions by service personnel in Afghanistan,

For such an inquiry to be announced there must be some significant prima facie evidence which has come to light, even if that evidence is not conclusive about any wrongdoing.

Yet just two years ago, the United Kingdom government was anxiously seeking to legislate so as to make it far more practically difficult for any historic war crimes to be prosecuted.

Thanks to the campaigners at Freedom from Torture and elsewhere, that legislative proposal was checked.

As the post on this blog also averred yesterday, it is difficult – legally, politically, culturally – for our armed services (and security services and police services) to ever be held to account for possible wrongdoing.

And the fact that there is sufficient information now available to trigger a full statutory inquiry (and this can be said without prejudice to that inquiry’s conclusions) means that those who campaigned against the exemption for war crimes were entirely right to do so.

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Today 71 Members of Parliament supported a Bill that would have allowed the government to break international law on asylum seekers

14th December 2022

Earlier today, 71 Members of Parliament supported a Bill that would allow the government to send asylum seekers back to the countries from where they had most immediately come from, regardless of international law.

The Asylum Seekers (Return to Safe Countries) Bill is here.

You will see in the Bill there is this clause one:

It is not a well-drafted Bill.

Look at that clause one again, and see if you can spot the term “asylum seeker”.

You will not find it in the substantive and operative text, but only in the title of the clause.

Nonetheless, clause four of the Bill defines “asylum seeker” as follows:

(This is therefore a shoddy bit of legislative drafting: defining a term and then not actually using it in the substantive and operative provision is a howler.)

But let us pretend that the drafter of the Bill had got it right and included the defined term in the substantive and operative provision, rather than just in a title of a clause.

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As it stands, my understanding is that whether an asylum seeker has come from a “safe country” may affect the credibility of an asylum application:

This means it is a factor that goes to the exercise of the discretion of the decision maker on the asylum application.

But.

The Bill presented today goes beyond such issues of credibility, and requires that provisions be made for the asylum seeker’s immediate removal if they have arrived from a “safe country” – even if that is not where from where they are ultimately fleeing.

If you look at the scheduled list of “safe countries” you will see that it is unlikely for any asylum seeker to have arrived here – at least by boat – without coming from one of those listed:

Ireland, Spain, Portugal, France, Belgium, the Netherlands, Germany, Norway, Iceland – and all other geographically close countries – are “safe countries”.

And so if today’s Bill was passed into law, then any asylum seeker – even if they were fleeing from Afghanistan, Iraq or elsewhere – would be returned to the “safe country” from which they had most immediately left to get to the United Kingdom, regardless of the United Kingdom’s obligations under the Convention Relating to the Status of Refugees.

The United Kingdom’s obligations under the Convention Relating to the Status of Refugees apply regardless to the route by which the asylum seeker has reached our shores.

Even the current law sets out that a route here via “safe countries” only goes to credibility.

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Some may want to dismiss today’s vote – perhaps even scoff at it.

But it is significant.

I remember back in October 2011 the scoffing at the 111 Members of Parliament who voted against the government for a referendum on the European Union.

We are not scoffing now.

Similarly, 71 is not a trivial number of Members of Parliament.

And despite the government not supporting today’s Bill, the 71 Members of Parliament voted so as to enable the government to break international law anyway.

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There is something worrying with the readiness of Members of Parliament to support legislation that expressly enables the government to break its international legal obligations, whether it is the Northern Irish Protocol Bill or today’s Asylum Seekers (Removal to Safe Countries) Bill.

Yes, the Bill’s supporters lost – today.

But as in 2011, such a rebellion is perhaps a sign of things to come.

Today’s vote is not a good sign.

Brace, brace.

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What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

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But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

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How three Bills now before Parliament tell us the story of Brexit

7th December 2022

Here is a story about three Bills.

The Bills are not chaps called William, but legislative proposals placed before the Westminster parliament by the government of the United Kingdom.

Taken individually – and especially taken together – these three Bills tell a tale.

They tell the story of Brexit.

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The first Bill is the Northern Ireland Protocol Bill.

This is a proposal that would enable the government of the United Kingdom to break the exit agreement it signed with the European Union.

This agreement was signed in a rush, so as to “get Brexit done”.

This was the agreement which, if you recall, was promoted by the-then prime minister Boris Johnson as an “oven-ready deal”.

And this was the agreement which sought to square the rushed Brexit with no commercial border in the island of Ireland.

(An alternative way of addressing the same problem, with the “backstop”, was rejected when Theresa May was prime minister.)

The current Bill is an attempt to somehow unwind this solemnly agreed position.

Many think this Bill has no good purpose – indeed, many regard the Bill as having no purpose other than to placate some government supporters.

And it certainly is a rum thing for any government to so openly proclaim its lack of good faith in entering international agreements.

The Bill, therefore, tells us about the lack of thought and preparation of the government of the United Kingdom in how it approached Brexit.

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The second Bill is the Retained EU Law (Revocation and Reform) Bill.

The Bill shows us that the government of the United Kingdom, having got Brexit done, does not know what to do with it.

This is the proposed legislation promoted by Jacob Rees-Mogg which would automatically repeal all European Union law still in force.

It does not matter whether that law is useful – or even essential.

It does not matter if the law was negotiated by the United Kingdom and serves to protect certain public interests.

The retained law is going to be repealed automatically anyway.

There is no good reason for this silly Bill.

The only reason it exists is to show that the British government is doing something – anything – with the supposed “Brexit opportunities”.

And as no concrete, discrete opportunities have been identified, it is doing this daft and potentially dangerous thing instead.

This second Bill, therefore, tells us that not only did the government rush through Brexit without proper preparation, but it also has no idea what will follow Brexit.

(In this, this second Bill is akin to the rushed and disadvantageous “international trade agreements” which were also signed so as to show “Brexit opportunities”.)

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The third Bill is the Bill of Rights Bill.

This legislation is not directly about the European Union, but it tells us everything about the need for there to be new “European” courts and laws for the government to attack.

Brexit was simply not enough, and so the next target is the European Convention of Human Rights.

This third Bill shows the need for Tories to have a perpetual war with “Europe” (even if not the European Union) that has been unsatisfied by Brexit.

The Bill itself is not a good piece of legislation, and it has been roasted by judges and Conservative politicians.

It seeks to repeal the Human Rights Act, and to make it as difficult as possible for anyone to rely in domestic courts on their rights under European Convention of Human Rights.

This third Bill, therefore, tells us that Brexit was not really about the European Union, but about trying to satisfy (but failing to satisfy) the endless demand of some government supporters for confrontation and retreat with something European.

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If Brexit was worthwhile, then it would take only one good government Bill to show the benefits of Brexit: for the United Kingdom government to show what it could do with its new autonomy from the European Union.

But there is no such good Bill.

Instead there are these three misconceived and illiberal Bills, each trying to do something pointless or needless.

Each in their way, and when taken together, telling us all we need to know about Brexit: that the exit was rushed and botched, that the exit has provided no practical benefits, and that that the exit will never be enough for many of those who supported it.

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We are not only in the age of easy answers but also in the age of easy-to-avoid questions

28th November 2022

Somebody over on Twitter thoughtfully dug up something I wrote back in 2017:

https://twitter.com/sunildvr/status/1595914638109048832

I think the piece – which links Brexit with the Iraq invasion and other follies – holds up well.

But I also now think the problem identified is only part of the problem.

This because “easy answers” are only possible when hard questions are easily evaded.

For example, one of the most depressing features of contemporary political discourse is the frequency of answers that begin with “I will take no lectures from…”, “I give no apologies for…”, “what people want to know is…”, “what the public expects is….”, and, of course, “let me be absolutely clear….”.

These non-answers render almost all political interviews – and many parliamentary questions – pointless.

Few questions can land, and accountability is brushed off.

And what is most depressing: those watching and listening do not seem to care.

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This blog has previously averred that the problem is not so much that politicians lie but that voters do not seem to care about being lied to.

And so, until and unless voters care about being lied to, then politicians will get away with their dishonesty.

Similarly, until and unless voters care about politicians not answering questions, then politicians will get away with their evasions.

Often this is not the fault of the interviewer or other questioner.

There are some cracking questions asked of politicians.

But there are not many cracking answers.

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There is a fundamental disconnect about accountability in our politics.

At law, of course, a witness will be under pain of perjury.

(And the professional advocate asking the questions will be under their own rules about what questions can be properly put.)

There is an attractive notion that ministers, for example, should also be put under pain of perjury for their answers.

Attractive – but misguided.

The solution to the failure of accountability in parliament is not, in my view, to make parliament more like a court.

It is to make those in and watching Parliament care more about the standard of answers.

As it stands, neither the Speaker nor anyone else is personally responsible for ensuring that questions are properly answered in Parliament.

Instead, as with the investigation into Boris Johnson, it is left to a committee some months later to make a determination or not.

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Rather than some paper reforms or legislative changes, it is the culture of Parliament which is most urgently in need of reform.

Members of Parliament, on both sides of the House of Commons, need to care more about the answers they are given, and to be less tolerant of evasions – even if the questions are from political opponents.

For when questions have purchase – where questions cannot be deflected – then non-answers and easy answers have no hiding place.

Politicians showing leadership on this matter makes it more likely that the public will come to care more about what they are told – and what they are not told.

And that is the real answer to the hard question of how political accountability and scrutiny is made more effective.

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Comments Policy

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 and comments will not be published if irksome.