Category: Police and Policing

Guest Post: Adam Wagner’s Emergency State reviewed by the legendary police blogger Nightjack

18th October 2022

The legal blogger Adam Wagner has written a book about the coronavirus regulations.

But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.

Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.

Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.

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Emergency State by Adam Wagner

Review by Richard Horton

 

A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.

Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”

I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.

I was being offered one of those fabled “glide path to retirement” jobs.  This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.

Of course I snatched his arm off.

*

I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.

I had my feet underneath me, everything was going well and then March 2020 happened.

From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.

The world had caught a virus and here in England, the Government tried to take control.

*

Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.

On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.

My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.

The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk  for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.

Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.

I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.

Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.

*

Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.

As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”

What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance?  How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?

*

As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.

Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.

He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.

This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.

*

From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.

He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.

*

The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.

Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.

*

If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.

We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.

I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?

This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation  were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.

*

As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.

If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.

There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.

We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing.  Will those lessons be remembered when we pass this way again?

Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.

Richard Horton

TAFKA NightJack

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

*

Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

*

“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

*

And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

*

But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

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Never underestimate archivists and librarians – as Donald Trump is discovering

31st August 2022

Here is a lovely story about libraries and public policy.

The year is 1983.

The library is the British Library, formerly hosted in the reading room at the British Museum and other sites.

Nicolas Barker, then the library’s head of conservation, and Lord Dainton, then the chair of the British Library Board, had a problem.

Public finances were under pressure, and spending cuts were everywhere.

But.

They needed to work out a way to convince the then Prime Minister Margaret Thatcher about the urgent need for the move of the library to a new purpose-built building.

They decided to keep the issue simple: no lengthy paragraphs in a wordy report, still less charts or tables.

And certainly no waffly arguments.

They instead took her half a dozen books, as well as a novel by one of her favourite authors, which were falling apart, regardless of the care being taken to conserve them.

They placed the books on the table in front of Thatcher.

Silence.

She looked with horror at the state of the books.

Silence.

And then they then said:

‘Mrs Thatcher, we need a new building because all our books will fall to pieces if they stay where they are.’

So horrified was the Prime Minister at the potential fate of the national collection that they got the go-ahead for the new building.

*

There are perhaps two morals to this tale (which I have told before here and is recorded in this obituary).

One is that sometimes exhibits are more persuasive than words.

The other is never to underestimate archivists and librarians.

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That there seems a real prospect of legal jeopardy for former President Donald Trump because of a breach of American archival law.

For many watching this is evocative of Al Capone being nailed on tax evasion charges.

Archival offences seem to Trump’s supporters a convenient pretext for legal action, rather than a substantive wrong.

But.

It is a substantive wrong.

For keeping documents and other information safe both for now and for posterity is a central function of the state.

It is how the government (and legislature and judiciary) of one day speaks to those charged with power in the future.

It is how those with power can be confident that certain information does not go to those who would use that information to cause damage and injury.

Like the integrity of the currency and protecting the realm, preservation of certain information is a core duty of those entrusted with power.

And like the damaged books put in Thatcher, visual evidence can be telling:

(Source.)

Of course, few of us know the facts.

It may well be that this legal exercise comes to nothing, and Trump escapes personal legal liability again.

And Trump is entitled to due process, like you and me.

But the wrongful removal of information from a government is not a trivial thing.

For without properly documented information, modern governments could not function.

That is why laws and policies about document management and retention are so important.

And there would be a wonderful irony if laws and policies about ensuring the integrity of written information were used to check the arch-abuser of political language and post-truth politics.

POSTSCRIPT

The historian Dr Adam Chapman has provided us with this similar story – click through to read more:

 

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Of Partygate, questionnaires and police discretion – some footnotes to yesterday’s post

27th May 2022

The response to yesterday’s post – offering an explanation as to why the current Prime Minister only received one fixed penalty notice over ‘Partygate’ – was rather overwhelming.

The post was linked to by both the Guardian and Guido Fawkes – which must be rare – and commended by a former (proper) Lord Chancellor and a former Treasury Solicitor (the government’s most senior legal official) – and the post had over 12,000 hits.

The thing is that I do not know – could not know – if that explanation were true.

The current Prime Minister is entitled to legal advice and the protection of legal privilege – and, in a way, it is not a bad thing for a Prime Minister to have access to competent legal advice.

(The problem, of course, is that ready access to competent legal advice when facing criminal sanctions is something which everyone should be entitled – and that entitlement is under constant threat by government cuts to Legal Aid.)

The only merit of my explanation was that it explained the facts as we understand them better than any other explanation, without resorting to a conspiracy theory.

In an interesting thread today, the journalist Peter Walker has set out some useful background which also supports my suggested explanation.

https://twitter.com/peterwalker99/status/1530131395133284352

https://twitter.com/peterwalker99/status/1530132726048858112

The decision to issue a notice is not a judicial decision – no judge or court is involved.

The decision is made by a police officer, who must reasonably believe that an offence was committed.

The safeguard against people having sanctions based on just police discretion is that an individual can refuse to pay the penalty and, as the dreadful phrase goes, have their day in court.

Payment of a penalty also does not, by itself, constitute an admission to a criminal offence such that would, like accepting a caution, give you a criminal record.

If the police officer does not reasonably believe that an offence was committed then no notice will be – or should be – issued.

The suggested explanation I set out yesterday may not be compel a court or convince a jury or a judge – but that was not the test.

The suggested explanation had to be enough for a police officer not to reasonably believe that an offence had been committed.

And which police officer would gainsay that a senior minister had to perform an, ahem, ‘essential function’ of leadership of thanking staff and making them feel appreciated?

It was not much of an excuse, but it was enough for the job that it needed to do, and it looks like it did it.

*

But stepping back, there is a certain strangeness – if not idiocy – in investigating possible wrongdoing by questionnaire.

Especially if – as it seems – the questionnaires were not issued under caution (though I have not seen a copy of the actual questionnaires in question).

As any good regulatory lawyer would tell you – a regulator is only as good as the information to which it has access.

And so – as techies would say – Garbage In, Garbage Out (or GIGO).

The current Private Eye states that certain senior figures did not even return their questionnaires – or may have not completed all the answers.

From their perspective, that was prudent – even if maddeningly frustrating for the police and for those who wanted those who wanted the partying Downing Street staff and advisers to face sanctions.

One fears that senior figures – with access to competent legal advice – were advised not to complete or return the questionnaires, while more junior figures – not aware of their options and perhaps even trying to be helpful – basically wrote out their own fixed penalty notices.

If this is the case – and few will know for certain – then what was being actually sanctioned was not wrongdoing, but naivety.

And, if so, that would be one of many things which make ‘Partygate’ an unsatisfactory moment in our constitutional and political history.

*

Lastly, on questionnaires. here are the wise words of one of the greatest jurists never to be appointed as a judge, E. L. Wisty:

“… they’re not very rigorous. They only ask one question. They say ‘Who are you?’, and I got seventy-five percent for that.”

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The lawyering-up of Boris Johnson – how the Prime Minister’s statement on the Sue Gray report may give clues to how he escaped more penalties

26th May 2022

Let us start with one stark fact that demands explanation.

That fact is that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present received many more.

One response to this striking fact is to posit that there must have been a stitch-up or some other conspiracy – and nothing in what follows in this post denies that possibility.

This blog, however, is not a conspiracy blog, but a place for law and policy analysis and commentary.

And on that basis, let us look to see if there can be another explanation.

*

Let us now go to what the current Prime Minister said in the House of Commons yesterday, in his pre-prepared statement.

One passage was especially interesting:

“The exemption under which those staff were present in Downing Street includes circumstances where officials and advisers were leaving the Government, and it was appropriate to recognise them and to thank them for the work that they have done. [Interruption.] 

“Let me come to that, Mr Speaker. I briefly attended such gatherings to thank them for their service—which I believe is one of the essential duties of leadership, and is particularly important when people need to feel that their contributions have been appreciated—and to keep morale as high as possible. [Interruption.] 

“I am trying to explain the reasons why I was there, Mr Speaker.”

*

This passage seemed to be very carefully put together – and (as a former government lawyer) I gained the impression that it owed far more to legal advice than to any genuine articulation of Boris Johnson’s state(s)-of-mind.

Johnson was present, he claims, because he was fulfilling a management function – an ‘essential dut[y] of leadership’.

He was, he says, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible.

*

If you read the last sentence again, you will see it says much the same thing in three different ways.

This is a trick many lawyers know and use to make it look like an obligation has been fulfilled.

It takes the form of [duty A] was fulfilled because of [x, y and z], where [x, y and z] are synonyms or near-synonyms.

*

The impression I had on listening to this passage of Johnson’s statement was that some lawyers had been presented with the unhappy facts of the Prime Minister attending leaving parties and giving toasts, with glass in hand.

How does one possibly convert that situation into something that brings it within the legal exemption of being part of a gathering that was reasonably necessary for work?

After all, a leaving party is not reasonably necessary for work, and toasts are not reasonably necessary for work.

But if you flip the description of what happened from parties and toasts to performing an ‘essential dut[y] of leadership’ by synonym, near-synonym, and near-synonym – ahem, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – then, there you have it, a reasonable excuse.

That excuse may not cover others present at the same gathering – but it would cover the one providing ‘essential leadership’.

And it would not cover the one gathering where that excuse – I mean, explanation  – would and could not apply – the birthday gathering.

That is why, I aver, he got a penalty for that indoor gathering but not the other parties.

My suspicion – which may or may not be well-founded – is that this is the very reason why someone is quoted as saying that the Prime Minister was assured that he would only get one penalty.

(Of course, this may be wrong and it may be that there were Metropolitan Police leaks or undue contacts between the Prime Minister’s office and Scotland Yard – but my theory has the merit of not needing any such conspiracy.)

*

Yesterday I set out this theory in a brief Twitter reply – which was not sufficiently clear – and I was told that I was wrong – that leaving parties and toasts were not and should not be reasonably necessary for work.

But I agree with those points.

My suggestion is not that leaving parties and toasts were, by themselves, reasonably necessary.

It is instead that providing ‘essential leadership’ is reasonably necessary – and this can be distinct from how that leadership manifested itself in particular circumstances.

And synonym, near-synonym, and near-synonym – thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – may all be supposed examples of such ‘essential leadership’.

Of course, there were many other ways a senior manager could have performed these ‘essential’ tasks – by Zoom calls, or thank-you notes, and so on.

And indeed, during the lockdown, this is what other senior managers did so as to provide their (genuinely) essential leadership.

If your view is that the current Prime Minister could have performed his role without giving toasts at leaving parties, no sensible person will disagree.

But from a legal perspective, if that was his reason for being at a gathering – and if it is accepted that thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible can all be elements of a leadership function – then you can now see how the Prime Minister has managed to take the benefit of the exemption.

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The theory set out above has the merit of explaining the striking fact stated at the head of this post: that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present at those gatherings received many more.

And if this theory is sound then it shows the irony – hypocrisy – of Johnson’s many attacks on ‘activist’ lawyers for others while taking the benefit of legal advice for himself.

It is also shows the unfairness of the more senior people in ‘Partygate’ getting lawyered-up when more junior figures were not able to do so, and so were penalised instead.

If Johnson should be toasting anyone, then it should be the lawyers that gave him a way of avoiding legal liability in this awkward situation.

But, no doubt, he will ‘move on’ – and start attacking lawyers again.

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The Prime Minister says he “takes full responsibility” – but what does this mean in constitutional terms, if anything?

25th May 2022

Today we take in the now-published Sue Gray report.

The quick-takes have already been given and a parliamentary statement has come and gone, as the rest of us who have an interest digest the details of the report.

This post is not about the report in detail, but about the current Prime Minister’s response.

It is a response that Boris Johnson often gives at times of trouble.

It is the response of saying that he ‘takes full responsibility’.

What could this phrase mean?

Note the ‘responsibility’ he purports to take is ‘full’ – and so, presumably, this is intended to mean something (or to convey that it means something) distinct from taking mere responsibility.

Oh no – this is ‘full’ responsibility.

Rhetorically, it is an impressive statement – to which some may even nod-along.

But it is hard, if not impossible, to see what it means.

For example: what actually is different as a consequence of Johnson saying he ‘takes full responsibility’?

What things change that otherwise would not change, but for the Prime Minister saying that he ‘takes full responsibility’.

What is different from the Prime Minister saying instead “I am not taking full responsibility” or “I am not taking any responsibility whatsoever?”.

There is not any real difference; nothing changes.

If the Prime Minister instead said a sequence of nonsense words, it would have the same constitutional import.

This is because, in constitutional terms, when the Prime Minister says he is taking ‘full responsibility’, he is saying nothing meaningful.

In constitutional terms, the position is exactly the same after the moment Johnson says it, as when he does not say it.

It is instead a rhetorical device – a political tactic to get him through an awkward moment, cynically giving the impression to the listener that something grave is being conceded or admitted, when nothing is being accepted at all.

For, in constitutional terms, a Prime Minister taking ‘ full responsibility’ for a serious wrong is to perform an action, rather than to say a thing.

The action the Prime Minister would perform is to resign.

And if there is not a resignation after a serious wrong then ‘ full responsibility’ has not been taken.

Indeed, by using it as a deft rhetorical trick, Johnson evades taking full responsibility.

So next time you hear the current Prime Minister assure you and others that he ‘takes full responsibility’, substitute for that phase a sequence of random words and sounds, for it will have the same constitutional meaning.

That is to say: no constitutional meaning at all.

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‘Partygate’ is not ultimately about lying to parliament, or breaking the criminal law, or putting lives at risk – it is about fair dealing

24th May 2022

‘What is justice?’ is a question that has been long discussed by clever philosophers, jurists and political theorists.

But one way of understanding justice is to see it not as a thing, but the absence of a thing: justice means a lack of injustice.

Justice is thereby defined by what it is not.

A just society is one where concrete injustices have been addressed; a just outcome is the solution to an actual unjust situation; and so on.

And for many it is injustices that matter, for injustices rankle.

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With ‘Partygate’ it seems what rankles most is the unfairness of it, the injustice.

That the current Prime Minister lied to Parliament and to the rest of us surprises no sensible person, for it is the one quality about Boris Johnson that all sensible people will know to be true.

That the current Prime Minister broke the law and guidance again is no shock – and, indeed, it would be more of a shock if, in any given situation, Johnson had followed the law and any guidance when he did not need to do so.

It does not even seem to matter to that many – though there are exceptions – that Johnson broke laws and guidance designed to keep people safe.

The anger about ‘Partygate’ appears (at least to me) not to be motivated primarily by the concern that Johnson was personally putting others at risk (though this will anger some).

What seems to be what upsets people about ‘Partygate’ is that while others were immensely affected because they had to comply with rules, or were punished if they did not, the Prime Minister and others in Downing Street casually did not comply with those rules.

The rules, of course, that Johnson and his government imposed upon the rest of us – the laws his government issued and enforced, the guidance he and his government promoted night after night.

The stories which appear (again to me) to be getting the most traction on news sites and on social media are those from people who, for example, could not visit their loved ones on their deathbeds or were not able to attend funerals.

Had the story been about Johnson in a serious dilemma choosing to break the rules to see a loved one in hospital or attend a funeral, then people would perhaps be more forgiving.

Many people in extreme situations may choose to break rules.

But the situations in which Johnson and his circle broke the rules were not extreme situations or dreadful dilemmas.

And this disparity in the seriousness with which one abided with the rules is what annoys – disgusts – people who would otherwise shrug.

Not the lies, not the rule-breaking itself – but the unfairness.

*

‘Partygate’ is not about parties or cakes; and it is not ultimately about lying to parliament, or about breaking the criminal law, or about putting lives at risk; it is at bottom about fair dealing.

And that is why – months into this scandal – ‘Partygate’ will not go away easily.

Downing Street partied while the rest of us were prevented from going to visit deathbeds or attend funerals, at the behest of Downing Street.

That was unfair.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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Four possible consequences of Partygate

19th May 2022

Partygate, again.

Today the Metropolitan Police announced the end of their investigation.

This means that, in small part, the Partygate issue comes to an end.

But there are at least four things which may now flow from the circumstances of the unlawful gatherings at Number 10 during the pandemic.

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The first, of course, is publication of the Sue Gray report.

This unseen report now has many expectations loaded onto it.

It is useful to remind yourself of her terms of reference.

Whatever is – and is not – in her published report, it is more likely than not to be in accordance with these terms of reference.

It is also useful to remind yourself of her truncated interim ‘update’.

That update indicated – though not in any definite way – where there may be problems for Downing Street when the final report is published (see this blog’s previous post here).

Two paragraphs of the update, in particular, are worth reminding yourself of:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Whether the report leads to any political change – and whether it is, in fact, the timebomb suggested by the earlier post – is, of course, determined by politics and the remarkable capacity of the current Prime Minister to evade accountability.

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The second consequence of Partygate is – on the face of it – potentially more significant constitutionally.

This is the House of Commons committee’s investigation into whether the Prime Minister misled parliament.

Here a difficulty for the Prime Minister is not so much whether he realised the parties he attended were unlawful gatherings, but when he knew.

This is important because, as this blog has previously set out, it appears that the Prime Minister is not only under an obligation to put the record straight, but also to do so at the earliest opportunity.

This point was well explained by Alexander Horne in this thread:

Even if the Prime Minister did not realise at the time the gatherings were unlawful, he no doubt knew once he saw the Sue Gray report and/or was advised in response to the Metropolitan Police investigation.

The committee may perhaps find that Boris Johnson did tell parliament at the first available opportunity, or it may hold the rule somehow does not apply, or it may censure him.

Again, the political consequences of any censure – or sanction – are not predictable with the current Prime Minister.

But misleading the House of Commons and not correcting the record as soon as one can are still serious matters, even in this age of Johnson, Brexit and 2022.

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A third possible consequence of Partygate is the worrying normalisation of politically motivated reporting of opponents to the police.

This blog recently set out this concern – and the concern has also been articulated by newspaper columnists:

This is an issue distinct from the obvious truth that politicians should not be above the law.

This issue is about when there is political pressure for there to be police intervention in respect of opponents, where such pressure would not be applied in respect of one’s own ‘side’.

Unless a report would be made to the police in the same circumstances when it was a political ally rather than an opponent, the report is being made on a partisan basis.

And routine goading of police involvement – and their coercive powers – on a partisan basis is not a good sign in any political system.

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The fourth possible consequence is more optimistic.

The covid regulations were an exercise in bad and rushed legislation, where – even accounting for it being a pandemic – insufficient care was given to the rules imposed and to how they were enforced.

This was pointed out at the time – by this blog and many other legal commentators.

The fact there was a pandemic was used as an excuse for shoddy drafting rather than it being the reason.

And part of the shoddiness was, no doubt, because these were seen by those in the executive as being rules for other people – that is, for the rest of us.

One perhaps positive thing about Partygate is that senior officials, politicians and advisers in the government now are aware that such rules can apply to them.

This may mean that in the event of another pandemic requiring similar rules, the provisions will have more anxious scrutiny before being put in palce and enforced.

That said, of course, it is perhaps also possible that the government will just make sure that future rules expressly do not apply to Whitehall.

But we have to take what possible positives that we can from this gods-awful governmentally-self-inflicted political, legal and constitutional mess, known as Partygate.

**

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

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