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Recent Posts

  • A close reading of the “AI” fake cases judgment 9th May 2025
  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
  • A note about injunctions in the context of the Abrego Garcia case 14th April 2025
  • How Trump is misusing emergency powers in his tariffs policy 10th April 2025
  • How Trump’s tariffs can be a Force Majeure event for some contracts 7th April 2025
  • The significance of the Wisconsin court election result 2nd April 2025
  • “But what if…?” – constitutional commentary in an age of anxiety 31st March 2025
  • A significant defeat for the Trump government in the federal court of appeal 27th March 2025
  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
  • “Oopsie” – the word that means the United States has now tipped into a constitutional crisis 17th March 2025
  • Oh Canada 16th March 2025
  • Thinking about a revolution 5th March 2025
  • The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States 25th February 2025
  • The president who believes himself a king 23rd February 2025
  • Making sense of what is happening in the United States 18th February 2025
  • The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires 11th February 2025
  • Why Donald Trump is not really “transactional” but anti-transactional 4th February 2025
  • From constitutional drama to constitutional crisis? 1st February 2025
  • Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end 25th January 2025
  • Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said 21st January 2025
  • A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss 18th January 2025
  • Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech 17th January 2025
  • Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things 16th January 2025
  • Why did the DoJ prosecution of Trump run out of time? 14th January 2025
  • Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead 13th January 2025
  • A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter 9th January 2025
  • How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March 1st January 2025
  • Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench 31st December 2024
  • “Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending 20th December 2024
  • An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion 28th November 2024
  • The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion 18th November 2024
  • New stories for old – making sense of a political-constitutional rupture 14th November 2024
  • The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next 8th November 2024
  • A postcard from the day after an election: capturing a further political-constitutional moment 6th November 2024
  • A postcard from the day of an election – capturing a political-constitutional moment 5th November 2024
  • “…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore 31st October 2024
  • Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion 28th October 2024
  • A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties 22nd October 2024
  • What explains the timing and manner of the Chagos Islands sovereignty deal? 20th October 2024
  • Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court 1st October 2024
  • Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again 30th September 2024
  • Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy 24th September 2024
  • On writing – and not writing – about miscarriages of justice 23rd September 2024
  • Miscarriages of Justice: the Oliver Campbell case 21st September 2024
  • How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy 11th September 2024
  • Supporting Donald Trump is too much for Richard Cheney 7th September 2024
  • A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong 30th August 2024
  • Update – what is coming up. 29th August 2024
  • Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness 21st August 2024
  • Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice 19th August 2024
  • This week’s skirmish between the European Commission and X 17th August 2024
  • What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable 7th August 2024
  • How the criminal justice system deals with a riot 5th August 2024
  • The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)? 26th July 2024
  • And out the other side? The possible return of serious people doing serious things in law and policy 10th July 2024
  • What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before 9th July 2024
  • The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome 8th July 2024
  • How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases 28th June 2024
  • What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance” 25th June 2024
  • Seven changes for a better constitution? Some interesting proposals from some good people. 24th June 2024
  • The wrong gong 22nd June 2024
  • The public service of an “Enemy of the People” 22nd June 2024
  • Of majorities and “super-majorities” 21st June 2024
  • The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act? 12th June 2024
  • The predicted governing party implosion in historical and constitutional context 11th June 2024
  • Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy 1st June 2024
  • The unwelcome weaponisation of police complaints as part of ordinary politics 31st May 2024
  • Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end 29th May 2024
  • Another inquiry report, another massive public policy failure revealed 21st May 2024
  • On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed 4th May 2024
  • Trump’s case – a view from an English legal perspective 24th April 2024
  • Law and lore, and state failure – the quiet collapse of the county court system in England and Wales 22nd April 2024
  • How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive 17th April 2024
  • Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal 25th March 2024
  • The curious incident of the Afghanistan war crimes statutory inquiry being set up 21st March 2024
  • A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability? 8th March 2024
  • A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision 10th February 2024
  • How the government is seeking to change the law on Rwanda so as to disregard the facts 30th January 2024
  • How the next general election in the United Kingdom is now less than a year away 29th January 2024
  • Could the Post Office sue its own former directors and advisers regarding the Horizon scandal? 16th January 2024
  • How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice 12th January 2024
  • The coming year: how the parameters of the constitution will shape the politics of 2024 1st January 2024
  • The coming constitutional excitements in the United States 31st December 2023
  • What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers 15th December 2023
  • A role-reversal? – a footnote to yesterday’s post 1st December 2023
  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
  • The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday 10th November 2023
  • The extraordinary newspaper column of the Home Secretary – and its implications 9th November 2023
  • Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost 1st November 2023
  • Proportionality is an incomplete legal concept 25th October 2023
  • Commissioner Breton writes a letter: a post in praise of the one-page formal document 11th October 2023
  • “Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly 30th September 2023
  • COMING UP 23rd September 2023
  • Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency 9th September 2023
  • One year on from one thing, sixteen months on from another thing… 8th September 2023
  • What is a section 114 Notice? 7th September 2023
  • Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism 24th August 2023
  • Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences 21st August 2023
  • Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process 15th August 2023
  • A note of caution for those clapping and cheering at the latest indictment of Donald Trump 8th August 2023
  • Witch-hunt (noun) 2nd August 2023

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Category: Parliament

How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases

28 June 2024

Some may be tempted to clap and cheer at the news that a Conservative politician is facing a Metropolitan police investigation in respect of alleged political insider betting.

But this may not be something to clap and cheer, given the potential implications.

By way of background, there is an offence under the Gambling Act in respect of “cheating” when gambling.

Over at Prospect I have done a post (click here) on that offence and why it is perhaps hard to prosecute in practice for insider betting – that is betting based on confidential information.

That said, if the Gambling Commission or any other appropriate investigating body or prosecuting authority believes it can make out a case for the “cheating” offence in these circumstances, then there is nothing inherently wrong with that.

But.

The Metropolitan police appear not to be investigating the politician in respect of the “cheating” offence – but for another offence, known as Misconduct in Public Office.

This is a far more easy and elastic charge to bring – although it is reserved for public officials and civil servants.

As such, this is the offence that the police officers allegedly caught up in this scandal face.

But the primary politician caught up in this matter is not and was not a public official or a civil servant.

At the material time he was what is called a “parliamentary private secretary” – an unpaid and nominal post which, as the “parliamentary” part of its title suggests, exists only the context of parliament.

In effect, a “parliamentary private secretary” is merely a ministerial bag-carrier and go-fer when parliament is sitting, a post to give to a certain kind of backbencher.

It is not in any meaningful way a public office.

If that is the basis for the hapless politician facing Met investigation then that is fundamentally misconceived.

(And if it is his (former) status as a member of parliament then that is also fundamentally misconceived.)

If there is misconduct as a parliamentarian then that is a matter for parliament, and not the police.

In essence: if the Gambling Commission or the Met can make out the “cheating” offence – or any other general offence – then they should proceed as normal. No sensible person would object.

But if the Gambling Commission or the Met cannot make out the “cheating” offence – or any other general dishonesty offence – then there should be no further action.

For the notion of the Met self-extending its remit so as to regulate parliamentarians under an inflated defintion of “public office” is an overreach.

All because an offence is seen as easier to prosecute it should not always be preferred.

For that, in itself, may be a form of procedural cheating.

***

Comments Policy

*AS THIS IS A LIVE CRIMINAL CASE BE CAREFUL HOW YOU COMMENT*

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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 28th June 2024Categories Criminal Law, Parliament, Police and Policing, United Kingdom Law and Policy12 Comments on How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases

Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

*

Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

  • independent enforcement of a new ministerial code;

  • establishing new systems for managing conflicts of interest;
  • ditto, for lobbying;
  • improving regulation of post-government employment;
  • ensuring appointments to the Lords are only made on merit;
  • ensuring other public appointments are rigorous and transparent; and
  • strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

*

Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

***

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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 24th June 2024Categories Constitutional Law, Constitutionalism, Courts and Politics, Legislation and Law-Making, Liberalism and Illiberalism, Parliament, Policy and Policy-Making, United Kingdom Law and Policy29 Comments on Seven changes for a better constitution? Some interesting proposals from some good people.

One year on from one thing, sixteen months on from another thing…

8th September 2023

On this anniversary of Elizabeth II’s death, we are still in the legislative session commenced with the Queen’s Speech of May 2022 – one monarch and two prime ministers (and several cabinet ministers) ago.

This, by itself, illustrates the drift of the current government. Neither Truss nor Sunak when they commenced their premierships signalled a new legislative programme. Instead they carried on with what was, in any case, primarily a gimmicky pick-and-mix miscellany of poorly conceived legislative proposals.

And so we are are still, in one sense, in the age of Johnson. And he is now not even in parliament, let alone the head of a government pushing through his last legislative package.

The knock-on effect of this is, as my Substack has previously averred, that the government is running out of time before the next election to pass legislation – especially anything fundamental or controversial. Many will think this a good thing, but it is not the sign of a government with direction or drive.

We are one year on from one thing, sixteen months on from another thing, and still perhaps a year away from that one thing, a general election, that can bring about any meaningful change.

****

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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 8th September 20238th September 2023Categories Accountability, Constitutional Law, Parliament, The Crown, United Kingdom Law and Policy9 Comments on One year on from one thing, sixteen months on from another thing…

The government is running out of time

26th June 2023

In the words of the eminent jurist Paul Simon:

“Time, time, time
See what’s become of me

“Time, time, time
See what’s become of me
While I looked around for my possibilities”

*

One hard structural fact about the politics of the United Kingdom is that the government is running out of time.

By automatic operation of law the next general election has to take place by 28 January 2025.

That gives the current government about 580 days left, maximum, before a general election which many forecast that the governing Conservative party will lose.

About 580 days sounds a lot, but it really is not – at least in parliamentary terms.

That date presupposes that the general election is called at the last possible moment – 17 December 2024 – leaving the longest possible election campaign.

Current speculation is that the next general election will be in October 2024, which means the last parliamentary session will need to be over by September 2024, and given summer breaks, that basically means legislation will need to passed by June/July 2024.

So that is about 365 to 400 days.

*

We are still – remarkably – within the same parliamentary session that commenced two prime ministers and one monarch ago in May 2022.

And as the Hansard Society averred in May, few of the Bills announced in that speech have become law:

It is expected that there will be a new King’s Speech this November.

This means that it is highly likely that there is just one more parliamentary session left before a general election – November 2023 to June/July 2024.

(There is the theoretical possibility of more than one remaining parliamentary term if the government has a sequence of truncated parliamentary sessions, with multiple openings of parliament.)

One implication of there being only one more parliamentary session before an election is that it is probable that there is not enough time to force any new legislation through the House of Lords under the Parliament Act, for that requires a Bill to be approved in successive sessions.

And then there are the recesses:

As one adds up the delays and holidays, and the speculation of an election by October 2024, the gross figure of 580 days becomes a lot less in practical legislative terms.

The grand hourglass of parliamentary time is running out for the current government.

We are not talking years, we are now talking months – and soon we will be talking weeks.

*

And not only time is against them – there is the problem of legislative preparation.

Put simply: this government is not very good at preparing legislation.

As the Hansard Society politely put it:

Parliamentary time for bills should not be, say, “step one’‘ of a process but about “step four” – after policy formulation, consultation and development – all within or by departments.

And so if you factor in the time to actually put together new practical – that is, passable – legislation then not even the maximum 580 days are really enough.

Even if following the conference season this year there is a “whizz-bang” King’s Speech with lots of legislative proposals, that whizzery and bangery needs to being prepared now in departments, and there is not a lot of evidence of any whizzery and bangery taking place anywhere in Whitehall at present.

Not only does the government need enough time to get legislation through parliament and implement it before the next general election, ministers and departments need lead-in times to get the legislation to be in any state to pass.

The time left looks very tight.

Too tight.

*

What we have is a government that not only is running out of time, but in some ways has already ran out of time to do anything radical and substantial in its one (likely) remaining parliamentary term.

And what makes this even more remarkable that this is a government elected in December 2019, on the back of Brexit, which had a substantial majority – only the second overall majority the Conservatives had had since 1992.

In legislative and policy terms, that majority has been largely wasted.

(Which may be a good or bad thing, depending on your politics.)

This is a government running out of possibilities.

*

“Time, time, time
See what’s become of me

“Time, time, time
See what’s become of me
While I looked around for my possibilities”

 

**
This has been cross-posted from my (newly renamed) Empty City substack.

***

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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 26th June 2023Categories Legislation and Law-Making, Parliament, United Kingdom Law and Policy14 Comments on The government is running out of time

Process and evidence will cause severe setbacks for populists like Johnson and Trump, but process and evidence are not enough to defeat them

15th June 2023
*
Words! Words! Words! I’m so sick of words!
I get words all day through;
First from him, now from you!
Is that all you blighters can do?
– Eliza Doolittle
*
Words, words, words.
So many words – strong words, vivid words, striking words.
Words like “…a kangaroo court…skewed…sole political objective of finding me guilty…prejudicial…not be tolerated in a normal legal process…incredulous…time-wasting procedural stunt…puzzling…This is rubbish…It is a lie…this deranged conclusion…patently absurd…transparently wrong…Complete tripe…a load of complete tripe…ludicrous…a rehash of their previous non-points…nothing new of substance to say…preposterous…totally ignored…How on earth do these clairvoyants know exactly what was going on at 21.58…It is a measure of the Committee’s desperation that they are trying incompetently and absurdly to tie me to an illicit event…utterly incredible…artifice…Charade…This report is a charade…I was wrong to believe in the Committee or its good faith…The terrible truth is that it is not I who has twisted the truth to suit my purposes…This is a dreadful day for MPs and for democracy…vendetta…trumped up charges”.
All these words, words, words are from this morning’s statement from Boris Johnson.
But sometimes words – even colourful and extreme words – can make no difference.
For against such any sophistical rhetorician, inebriated with the exuberance of their own verbosity, are the twin deadly enemies of the populist and charlatan: process and evidence.
And in this way, today’s Privileges Committee Report has wings that are like a shield of steel.
Words, words, words, will all bounce off.
Each of the findings of the committee is based on stated evidence, and each of the conclusion rests on the findings.
And at key stages the committee has been at pains to ensure Johnson (and his lawyers) had an opportunity to respond to any potentially adverse findings and conclusions.
Try as he may, with ever-stronger words, there is nothing Johnson can do to dislodge the evidence and the findings and the conclusions.
They shall squat there, over him, and they do not care about Johnson’s fierce words.
As such, the privileges committee report complements the federal indictment of Trump.
There, similarly, a calm reasoned, evidenced and through document will be hard for Donald Trump to derail or discredit.
*
Alas, however, the soft and malleable politics of the populists will not be defeated only by process and evidence.
It is only at extremes that process and evidence can be invoked to tame the unruly and untruthful.
The challenge is to defeat populists like Johnson and Trump not with exceptional proceedings where they cannot lie their way through, but in the day-to-day bustle of practical politics.
Unfortunately it is not possible to make every politician sign a statement of truth, under a plausible pain of perjury, for everything they say.
Yes, there will be times where the likes of Johnson and Trump will hit the limits of what they can get away with.
But what those opposed to the likes of Johnson and Trump need to do is find ways of defeating them without resort to processes and evidence.
Process and evidence have their valuable place within any polity, but they are not enough.
The likes of Johnson and Trump need to be defeated politically too.

***

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, or if they risk derailing the discussion.

More on the comments policy is here.

Posted on 15th June 202315th June 2023Categories Inquiries and Investigations, Parliament, United Kingdom Law and Policy20 Comments on Process and evidence will cause severe setbacks for populists like Johnson and Trump, but process and evidence are not enough to defeat them

Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

The public are sick of Just Stop Oil’s planned programme of deliberate disruptions to daily lives. I’ve just signed an SI to change the law, giving Police power to stop protests causing more than a “minor hindrance” to a journey. This comes into effect at midnight tonight. pic.twitter.com/Zt9V4T0nko

— Chris Philp MP (@CPhilpOfficial) June 14, 2023

*

By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

*

The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

An unelected House of Lords can’t block an elected House of Commons.

If you don’t want Tory laws to go through Parliament elect a Labour government.

— Wes Streeting MP (@wesstreeting) June 13, 2023

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

*

The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

*

The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

*

The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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Posted on 14th June 2023Categories Constitutional Law, Constitutionalism, Courts and Politics, Home Office, Legislation and Law-Making, Parliament, Regulatory law, Transparency, United Kingdom Law and Policy, Whitehall15 Comments on Telling the story of how the “serious disruption” public order statutory instrument was passed

What if acceptance of Boris Johnson’s resignation from the House of Commons had been delayed – or even refused?

12th June 2023

For a brief, wonderful moment today it seemed that yet more constitutional drama could be squeezed out of the ongoing antics of former prime minister Boris Johnson.

On Friday Johnson announced his resignation from the House of Commons:

“So I have today written to my Association in Uxbridge and South Ruislip to say that I am stepping down forthwith and triggering an immediate by-election.”

Some (including me) took his deftly worded statement to mean that he was resigning as a Member of Parliament with immediate effect.

But look where “immediate” is actually inserted in his statement.  Clever.

In fact, Johnson did not resign from the House of Commons on Friday.

*

Of course – strictly speaking – a Member of Parliament cannot “resign” – though there is no point in making this distinction in general commentary.

What a voluntarily departing Member of Parliament has to do is to place themselves in disqualification from sitting in the House of Commons.

And in practice, this means applying for and being appointed to one of two ancient offices for profit.

This is section 4 of the House of Commons Disqualification Act 1974:

In practice what this means is that a Member of Parliament has to make an application to the Chancellor of the Exchequer for appointment to one of these offices – and when the Chancellor of the Exchequer endorses the warrant of appointment, the parliamentary seat becomes vacant.

This, in turn, means – thought this is a distinct step – a writ for a by-election can then be moved in the House of Commons.

*

This is what Erskine May, the parliamentary rulebook says:

*

Usually, there is no problem with any of this pantomime – for usually such a resignations are one-offs and occasional.

And so normally the appointments gently alternate between the two ancient offices.

If more than two Members of Parliament resign at once – as when the Northern Irish unionist Members of Parliament did in 1985 – the appointments have to be staggered so that each office is nominally filled in turn.

These are the lists from Wikipedia of the most recent appointments to both offices, and the reasons for the Member of Parliament leaving the House of Commons:

And although the system does not really make much sense, and is based ultimately on a constitutional fiction (there is no pay – or profit – for holding the office), it works.

There may be no way of resigning as a Member of Parliament in a technical sense, but there is a means of doing so by employing some quaint, archaic mumbo-jumbo.

It is another example of how our constitutional arrangements miss the direct point, and so we have to have a charming work-around instead.

*

But.

Earlier today there was the prospect of Johnson bringing excitement to another odd little constitutional corner – though here unwillingly on his part.

(And remember constitutional matters should not be exciting, they should be dull.)

What if…

…the Chancellor of the Exchequer did not appoint Johnson to one of these two offices?

What if, in effect, Johnson’s resignation from the House of Commons was delayed or even refused?

According to the fine experts at the House of Commons Library, it is possible for the appointment to be refused by the Chancellor of the Exchequer – thereby preventing the resignation from taking effect- though this has not happened since Victorian times:

*

There is an argument that a Member of Parliament facing an imminent report into their conduct should not be able to resign and avoid any sanction.

And if, in such circumstances, the Chancellor of the Exchequer refused to make the appointment until after the Commons voted on the report and any sanction, it is difficult to see what Johnson could have done about it.

(Though it would have been fascinating and fun to see whether this exercise of discretion by a government minister was amenable to judicial review by the High Court.)

Johnson would have been forced to stay as a Member of Parliament while the privileges committee report was debated and any sanction voted on.

And it is hard to see how he could have avoided it.

*

But alas, we shall not have this constitutional amusement.

For this afternoon Johnson resigned.

Johnson was appointed to the stewardship of the Chiltern Hundreds, and Wikipedia was updated accordingly.

So we will have to wait a bit longer for our next constitutional excitement.

**

For more on this procedure, please read the excellent House of Commons Library briefing.

***

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Posted on 12th June 202312th June 2023Categories Constitutionalism, Parliament25 Comments on What if acceptance of Boris Johnson’s resignation from the House of Commons had been delayed – or even refused?

The resignation of Boris Johnson from the House of Commons

10 June 2023

The silence now seems significant: we should have realised something was up.

Earlier this week former Prime Minister Boris Johnson received the draft report of the Privileges Committee.

And then, something did not happen.

We did not have leaks to political journalists that Johnson was going to be “cleared”.

We did not even have “friends” quoted as being “increasingly optimistic” that Johnson was going to escape a recommendation that he be suspended for ten or more days, which could have led ultimately to a by-election.

We had nothing which could be an attempt to either bounce the committee, or the House of Commons, or public opinion.

Instead, we had silence.

*

As is well-known, Johnson has had “top lawyers” – at public expense – to advise him on what is non-legal, parliamentary matter.

(How and why Johnson secured public funding for this is a story for another day.)

But presumably his lawyers told him that the report was unassailable.

They could again send a raft of legalistic objections to the committee but, frankly, the game is up.

You may be old enough to remember Johnson briefing that a previous exercise in legalistic nonsense was “absolutely devastating” to the committee.

Yet in the end the absolute devastation was to Johnson’s current political and parliamentary career.

*

Perhaps without “top lawyers” giving frank and firm advice Johnson may have pressed on – and, if so, some may say the public money was well spent in bring finality to the matter.

Remember, this was a process in which Johnson had many inherent advantages: a Conservative majority on the committee, who could only make a recommendation to the House of Commons anyway; a Conservative majority in the House of Commons – a majority brought about by his leadership at the last general election; and, if a by-election was required, a Conservative majority in his own seat, in a city where he once was a popular and re-elected mayor.

These structural advantages were in addition to expensive “top lawyers” at public expense – and to the immense influence he has over the media narrative.

All these advantages meant that the process was heavily biased: but heavily biased in Johnson’s favour.

And somehow, Johnson still lost.

*

The committee can – and should – publish the report anyway, so that we can see for ourselves whether it corresponds to Johnson’s attack on the integrity of the committee and its report.

By resigning now, rather than in response to a published report or to an adverse parliamentary vote, Johnson had the best chance of “framing the narrative”, and he took it.

This, again, should have been obvious to us when Johnson did not even try to spin the draft report this week.

And we had the sound of silence instead.

*

“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

– Silver Blaze, The Memoirs of Sherlock Holmes

 

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Posted on 10th June 202310th June 2023Categories Constitutional Law, Coronavirus - COVID-19, Parliament, United Kingdom Law and Policy44 Comments on The resignation of Boris Johnson from the House of Commons

Can anything actually be done to improve parliamentary scrutiny?

18th May 2023

Over at The House Magazine – in effect, parliament’s in-flight magazine – there is a thoughtful and informative article by Dr Alice Lilly entitled The Slow Death of Parliamentary Scrutiny.

One merit of her piece is that is looks at other long-term and structural reasons for the difficulties parliament have in scrutinising draft legislation – that is, other than the obvious one that any government does not want to be scrutinised.

And although ministers and their media supporters often play-act about the undemocratic House of Lords, it is plain that the government is increasingly relying on the upper house to save the government from itself in the legislative process.

Peers are now doing the tidying up of bills that really should be done before legislation is even presented to parliament.

And, in turn, departments, are seeking to shove more through by means of unscrutinised secondary legislation.

In essence: the House of Commons is becoming an ornament – though not a pretty one – rather than an instrument of the state.

But.

Although the problem can be stated, it is less clear what – if anything – could be the solution.

Scrutinising legislation is dull, thankless work – and so, unless it is made a well-resourced priority for active members of the the House of Commons, then the natural tendency will be for politicians to do other things.

And one can take for granted that ministers (of any party) and officials will seek to avoid scrutiny if they can.

Abolishing – or restricting – the House of Lords would cause more problems, unless such a change was part of a broader package of fundamental parliamentary reform.

The current situation is far from ideal – and it may be unsustainable: for there is only so much one can expect from members of the House of Lords.

Yet unless Members of Parliament make scrutiny of legislation a priority – and insist to ministers and departments that enough time is provided for scrutiny, and also insist on there being proper resources in place for that scrutiny – then it may be we have a worsening problem without any likely solution.

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Posted on 18th May 2023Categories Legislation and Law-Making, Parliament, United Kingdom Law and Policy10 Comments on Can anything actually be done to improve parliamentary scrutiny?

A stitch in time saves…

24th March 2023

Yesterday’s post on the appearance of Boris Johnson before the committee of privileges was supposed to the last on that topic…

…but.

It is really such a delicious constitutional moment – the legislature holding the former head of the executive to account with contested views of whether there should be a judicial process is a heady concoction of the supposed separation of powers.

And so here is a further thought, brought about by the lethal questioning of Johnson by the Conservative backbencher Alberto Costa on exactly what advice Johnson had taken, and from whom.

Johnson admitted that he did not taken legal or any other official advice before telling the House of Commons that he had been advised that the applicable rules and guidance had been followed.

It seems the advice was merely from a political adviser.

Well.

Johnson has certainly taken a lot of legal advice since.

If only he had taken legal advice at the right time, then he would have been saved having to take all this legal advice afterwards.

A stitch in time saves the need for any stitch-up later.

Have a good weekend.

***

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Posted on 24th March 2023Categories Accountability, Coronavirus - COVID-19, Parliament, United Kingdom Law and Policy18 Comments on A stitch in time saves…

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