Category: Policy and Policy-Making

The European Commission launches legal proceedings against the United Kingdom – a guided tour

 16th March 2021

The European Commission announced yesterday that it had ‘launched legal proceedings’ against the United Kingdom.

What has happened is that a formal legal notice has been sent by the European Commission to the United Kingdom.

To say this is ‘launch[ing] legal proceedings’ is a little dramatic: no claim or action has been filed – yet – at any court or tribunal.

But it is a legally significant move,  and it is the first step of processes that, as we will see below, can end up before both a court and a tribunal.

This blogpost sets out the relevant information in the public domain about this legal move – a guided tour of the relevant law and procedure.

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Let us start with the ‘legal letter’ setting out the legal obligations that the European Commission aver the United Kingdom has breached and the particular evidence for those breaches.

This is an ‘infraction’ notice.

As the European Commission is making some very serious allegations – for example, that the United Kingdom is in breach of the Northern Ireland protocol – then it is important to see exactly what these averred breaches are.

This information would be set out precisely in the infraction letter – informing the ministers and officials of the United Kingdom government of the case that they had to meet in their response.

But.

We are not allowed to see this letter.

Even though the European Commission is making serious public allegations about the United Kingdom being in breach of the politically sensitive Northern Ireland Protocol, it will not tell us the particulars of the alleged breaches.

This is because, I am told, the European Commission does not publish such formal infraction notices.

There is, of course, no good reason for this lack of transparency – especially given what is at stake.

The European Commission should not be able to have the ‘cake’ of making serious infraction allegations without the ‘eating it’ of publishing them.

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And so to work out what the alleged breaches are, we have to look at other, less formal (and thereby less exact) sources.

Here the European Commission have published two things.

First, there is this press release.

Second there is this ‘political letter’ – as distinct from the non-disclosed ‘legal letter’.

What now follows in this blogpost is based primarily on a close reading of these two public documents.

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We start with the heady international law of the Vienna Convention on the law of treaties.

Article 26 of the Vienna Convention regards the delightful Latin phrase Pacta sunt servanda.

In other words: if you have signed it, you do it.

Agreements must be kept.

You will also see in Article 26 express mention of ‘good faith’.

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We now go to the withdrawal agreement between the United Kingdom and the European Union.

There at Article 5 you will see that the United Kingdom and the European Union expressly set out their obligation of good faith to each other in respect of this particular agreement:

So whatever ‘good faith’ may or not mean in a given fact situation, there is no doubt that under both Article 26 of the Vienna Convention generally and under Article 5 of the withdrawal agreement in particular that the United Kingdom and the European Union have a duty of good faith to each other in respect of their obligations under the withdrawal agreement.

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The European Commission not only allege that the United Kingdom is in breach of its obligation of good faith but also that the United Kingdom is in breach of specific obligations under the Northern Ireland protocol (which is part of the withdrawal agreement).

The press release says there are ‘breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland’.

The ‘political letter’ says:

So it would appear that the relevant provisions of the withdrawal agreement are Articles 5(3) and (4) of the Northern Ireland and Annex 2 to that protocol.

Here we go first to Annex 2.

This annex lists many provisions of European Union law that continue to have effect in Northern Ireland notwithstanding the departure of the United Kingdom.

Article 5(4) of the protocol incorporates the annex as follows:

‘The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.’

As such a breach of Article 5(4) is a breach of the European Union laws set out in that annex.

Article 5(3) of the protocol is a more complicated provision and it is less clear (at least to me) what the European Commission is saying would be the breach:

My best guess is that the European Commission is here averring that the United Kingdom is in breach of the European Union customs code (which is contained in Regulation 952/2013.)

As regards the specific European Union laws set out in Annex 2 that the European Commission also says that the United Kingdom is in breach of, we do not know for certain because of the refusal of the commission to publish the formal infraction notice.

On the basis of information in the press release and the ‘political letter’ it would appear that the problems are set out in these three paragraphs:

Certain keyword searches of Annex 2 indicate which actual laws the European Commission is saying being breached, but in the absence of sight of the formal infraction notice, one could not know for certain.

The reason the detail of what laws are at stake matters is because each instrument of European Union law may have its own provisions in respect of applicability, enforceability and proportionality that could be relevant in the current circumstances.

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So: what next.

Two things – the European Commission is adopting a twin-track, home-and-away approach.

One process will deal with the substantive provisions of European Union law – and the other process will deal with the matter of good faith.

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In respect of the alleged substantive breaches of European Union law, the European Commission has commenced infraction proceedings – as it would do in respect of any member of the European Union.

As the ‘political letter’ pointedly reminds the United Kingdom:

The United Kingdom is still subject to the supervisory and enforcement powers of the European Union in respect of breaches of European Union law in Northern Ireland.

You thought Brexit meant Brexit?

No: the government of Boris Johnson agreed a withdrawal agreement that kept in place the supervisory and enforcement powers of the European Union – including infraction proceedings of the European Commission and determinations by the Court of Justice of the European Union.

And so in 2021 – five years after the Brexit referendum – the European Commission is launching infraction proceedings against the United Kingdom under Article 258 of the Treaty of Rome:

This means there could well be a hearing before the Court of Justice of the European Union.

One does not know whether this would be more wanted or not wanted by our current hyper-partisan post-Brexit government.

One even half-suspects that they wanted this all along.

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The other track – with the European Commission playing ‘away’ – is in respect of the general ‘good faith’ obligation – as opposed to the substantive European Union law obligations under Annex 2.

Here we are at an early stage.

In particular, we are are at the fluffy ‘cooperation’ stage of Article 167:

If this fails, then the next stage would be a notice under Article 169(1):

Article 169(1) provides that such a formal notice shall ‘commence consultations’.

And if these Article 169 consultations do not succeed, then we go to Article 170:

The arbitration panel – and not the European Commission nor the European Court of Justice – would then determine whether the United Kingdom is in breach of its general obligation of good faith.

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We could therefore end up with two sets of highly controversial proceedings.

The European Commission has intimated the processes for both to take place in due course.

From a legalistic perspective, the European Commission may have a point – depending on what the alleged breaches actually are.

A legal process is there for dealing with legal breaches – that is what a legal process is for.

But.

When something is legally possible, it does not also make it politically sensible.

A wise person chooses their battles.

And if the European Commission presses their cases clumsily, then the legitimacy and durability of the withdrawal framework may be put at risk.

Brace, brace.

***

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The ugly scenes from the Clapham Common protest tell us about wider policing problems – and how policing the coronavirus regulations is being treated as a public order matter instead of a public health problem

14th March 2021

The scenes of the policing of the protest at Clapham Common last night were ugly.

The scenes were also shocking.

By ‘shocking’ I do not mean that they were surprising and unpredictable. 

Anyone with any awareness of policing in Northern Ireland, or of the miners strike, or of inner cities and BAME communities, will not be surprised.

This is what police do – when they can get away with it.

Something can be unsurprising and predictable and still be shocking – as anyone who has licked a light socket would tell you, if they are still able to do so.

And police brutality – and their other abuses of coercive power – should always be shocking.

Once it ceases to shock then the authoritarians and illiberals will have prevailed.

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During this pandemic this tendency for the police to misuse and abuse their powers has had a further feature.

The coronavirus regulations – which restrict freedom of movement and assembly as well as other fundamental rights and freedoms – are public health measures.

But they have been enforced by the police as if they were in respect of public order.

Public health is not the same as public order.

The scenes from last night did not evidence any sincere concern for public health from the police.

Indeed – a responsible and socially distanced protest was entirely possible (and warranted) – but the police turned it into something else instead.

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These ugly scenes were then followed by ugly evasions.

Reading that ugly statement is as sickening as the scenes from the protest were ugly and shocking.

‘Look at what you made us do,’ is – in the circumstances of this protest that was prompted by the death of Sarah Everard – an especially unfortunate stance for the police to take.

Even former home office ministers – not the most liberal of politicians – were not able to stomach this.

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And in command of the metropolitan police is, of course, Cressida Dick.

How the career of Cressida Dick even survived the killing of Jean Charles de Menezes is one of wonders of recent policing history.

How her career then continued to prosper is one of its deepest disgraces.

But the police are very good indeed at deflection.

Any criticism is usually first met by being told that one does not understand the pressures of policing, and so on.

And when the wrongs are established beyond doubt, the police effortlessly switch to their bland lessons-will-be-learned assurances.

But at no point will there even be any genuine accountability and redress.

Which is kind of ironic given that the police are, well, charged with the policing the rest of us and holding us to account.

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This is not the sort of blog to comment on ongoing individual criminal cases – and this is not just because of the (outdated and inadequate) laws on contempt of court but instead because a blog is not a court room and serves a different purpose.

One purpose of this blog is to identify and explain the wider law and policy contexts of topical events.

The ugly scenes from last night can be seen as an example of police abuses of power generally and in respect of their illiberal and misconceived approach to the coronavirus regulations in particular.

The ugly doubling-down of the police this morning can, in turn, be seen as an example of their inability ever to accept that they have made operational mistakes.

And there are few – if any – official communications as misleading if not dishonest as the police PR after something has gone very wrong.

Shocking – but never surprising.

***

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Post-Brexit policy does not need to be like this – no, it really does not – but there are no other post-Brexit policies in town

13th March 2021

The best blogger about Brexit is Chris Grey and his weekly blog is a valuable resource in understanding Brexit as it has gone along.

In particular, the blog correctly emphasises that at each step there were choices made and not made – that things could have gone differently – and how (usually) the bad decisions ended up being made.

As the tricks of mind of hindsight and evasion begin to have their effects on the collective memory, Grey’s blog will be a crucial reminder of how things were at the time.

His post this week, however, is a detailed – and brutal and delightful – critique of a recent column by the new Brexit cabinet minister David Frost – and it is not only a critique but also a warning.

The warning is that the current government is – out of the various options available – choosing one which is especially damaging for the United Kingdom.

But the option being chosen is – in the minds of the Brexiter ministers – validated by the experience (so far) of ‘getting Brexit done’.

Of course, for the reasons that Grey sets out, the Brexiter ministers have drawn the wrong lessons from this formative experience.

Part of this is down to personalities – in particular the personalities of Frost and prime minister Boris Johnson.

And politics often does come down just to personalities. 

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But.

There is a risk that a preoccupation on personalities means that the lack of alternative policies being promoted is overlooked.

For although the Frost-Johnson approach is, as Grey avers, ‘a sorry mixture of blather, nonsense, disingenuity and dishonesty’ – it also has another quality.

It is the only post-Brexit policy in town.

The Labour opposition has no post-Brexit policy – and is (no doubt for strategic and tactical reasons) opting not to put forward an alternative policy.

Those who are former remainers and are seeking the United Kingdom to (re)join the European Union do not have a post-Brexit policy as such – unless simply not wanting to be outside the European Union can be a policy.

And the moderate and practical Conservatives who might have advocated a more constructive post-Brexit policy were largely purged from the house of commons at the last general election.

So there is a vacuum where an alternative, constructive post-Brexit policy should be.

In contrast to this void, Frost-Johnson not only have a policy but also maintain that the policy is validated by the experience so far of Brexit – and so it has a certain superficial plausibility.

And until and unless there is another post-Brexit policy in town – which accepts the brute political fact of Brexit but seeks to go in another direction – then the Frost-Johnson approach will face no challenge other than from reality.

Such an alternative, constructive policy is perfectly possible – as Grey’s blog and other commentary shows, there are choices available.

But unless the politics of this post-Brexit period change radically, the Frost-Johnson approach has the political town to itself – and it is very good at misdirection and evasion when things go wrong.

Although commentators can point this out in real-time that will make no difference unless opposition politicians also act in real-time to put forward other post-Brexit policies.

And – yes, the Frost-Johnson post-Brexit approach can and should be blamed for many things, but it cannot be blamed for a lack of policy and political alternatives.

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When constitutional norms are for other people: Boris Johnson and the danger of constitutional indifference

11th March 2021

Yesterday the prime minister Boris Johnson misled the house of commons twice.

As you read that, you may perhaps shrug: so what? 

This post sets out the ‘so what’.

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The constitution of the United Kingdom is comprised to a significant degree of conventions.

In short: a constitutional convention is a thing that should happen in a given constitutional situation – and has a purpose – but which one could not get any court to order its enforcement.

As such constitutional conventions are distinct from the laws of the constitution which, in principle, would admit of a judicial remedy in the event of a breach.

A breach of a convention, however, is not a matter for any court.

This means that matters of compliance and breach of constitutional conventions are usually a law-free zone – and the means of compliance and sanctions (if any) for breach are dealt with other than by lawyers and judges.

That a prime minister – or any member of parliament – is honest in parliament is one such constitutional convention.

It is a powerful convention – for example, one implication of the convention is members of parliament cannot call each other liars in the house of commons.

The fiction is that there should never be a need to call another ‘honourable’ member a liar as there is a general obligation not to lie.

But the convention is even more powerful than this.

The convention that ministers shall not lie means that the entire system of parliamentary accountability is possible – debates have meaning, oral and written questions have a point, and so on.

Take away the obligation not to lie, and we would have even less practical accountability in our parliamentary system than we do already.

It would poison the wells.

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For Johnson, however, such concerns must seem quaint.

For Johnson any given encounter is a game for him to win – and if he breaches any norm then he will seek to get away with it.

So confident is he in his ability to get away with any breaches of norms that he does not care even for the moral hazard of such breaches being opportunities for others.

(That one should comply with a rule because it means others would also have to comply with that rule is only an incentive if it matters to you whether others break the rules.)

It is not so much that Johnson wants to break the rules as an end in and of itself – he will comply with rules if it suits him,

Instead it is a general indifference to the rules – they will be broken or complied with as it suits him personally and politically.

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Such an approach will always be attractive to certain politicians from time to time.

And so because of the possibility of such indifference, there has to be some means of enforcing constitutional conventions – or sanctions for breach.

These cannot be legal sanctions, as they are not matters for a court.

But not all checks and balances are legal mechanisms.

The problem with Johnson’s indifference is that there seems to be no effective means of enforcement or sanction.

Johnson does not care for the ministerial code and has already shown he will disregard it (as in the case of the home secretary).

The old stand-by of ‘being responsible on the floor of the commons’ has no purchase, as it is his conduct on the floor of the house of commons that is the problem.

And if the speaker of the commons – or anyone else – seeks to hold Johnson accountable, then the hyper-partisan bullies among Johnson’s political and media supporters will seek to attack the intervention.

So in effect, Johnson is immunised from being held accountable for misleading elected politicians in the house of commons.

And if that matters to you, that is your problem, and not his.

He will get away with it, and he knows he will get away with it.

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And this is a problem – a meta-problem – that cannot be solved with demands for a written constitution.

Writing down conventions and publishing them does not give them life.

The issue also is not about his indifference – as this approach will be adopted from time to time by a certain type of politician.

The problem is about a lack of willingness to make this matter – for such a breach to have such consequences that the Johnsons of the political world do not see it as a viable political practice.

And it is the absence of practical checks and balances – of gatekeepers and of those credited with authority – that is the constitutional problem here.

Until and unless it can be made to matter that a minister should not lie to the house of commons – and by non-legal means as it cannot be a legal matter – then it will just carry on, because it can.

It is a depressing prospect.

***

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

10th March 2021

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

This blog post expands on this brilliant observation.

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The starting point is sovereignty.

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

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

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

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

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

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

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

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

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

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But.

Sovereignty is not the same as legitimacy.

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

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

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

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

CTL+F “crown” > CTL+R “the people”.

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

But that does not seem to matter.

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

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

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

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

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

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

And a prime minister and government is accountable to parliament.

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

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

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

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

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

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

So this need for constant validation.

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

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

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

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

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

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

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

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

We therefore have the worst of both worlds.

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

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

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Most of the time this gap does not matter.

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

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

But.

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

And there may be a reckoning.

The constitutional equivalent of a credit crunch.

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

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

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

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

***

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The issues of the Ireland/Northern Ireland Protocol are more fundamental than the political antics of David Frost and Boris Johnson

9th March 2021

Those who follow Brexit are likely to have strong opinions on the merits of Brexit, and those strong opinions will in turn to influence how each development is approached.

Supporters of Brexit will clap and cheer at certain things, and opponents of Brexit (or of this government’s approach to Brexit) will rage and jeer.

One side will tend to see the government as doing nothing wrong, and the other side will see the government as doing everything wrong.

And such partisanship means any problem is seen either as not existing or as entirely the fault of the government of the United Kingdom.

But not everything is the fault of a bunch of politicians in one place and at one time.

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In a recent post at the London School of Economics blog, Professor Katy Hayward of Queen’s University Belfast has done a short explainer on the Ireland/Northern Ireland Protocol – and it is perhaps one of the best short explainers on Brexit generally.

But the one phrase in that post which stood out for me was this:

‘It is true that – with the best will in the world (which is evident among most businesses in NI) – the new border regime is still far from ready for full implementation.’

So used are many of us at seeing as every failing of Brexit as being directly attributable to the expedient follies of the United Kingdom government that it can sometimes be forgotten that even if we were suddenly to have a sensible and practical government many Brexit problems would still be there.

For this is the very nature of fundamental problems: mere superficialities cannot and do not make any difference.

That is why the problems are, well, fundamental.

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Hayward’s post reminds us of how the Ireland/Northern Ireland protocol is exceptional: it affects an internal boundary of one of the parties; it applies different rules to goods moving in one direction than the other; the applicable rules in one direction are that of the European Union and not the United Kingdom; and that in respect of those applicable rules, it will be the United Kingdom that will be applying them, not the European Union.

As Hayward wisely observes: ‘This entails a great deal of trust on the EU side and a great deal of responsibility on the UK side.’

And these are just the structural problems.

There are then many practical problems, as with any trade agreement – which were, of course, exacerbated by the reckless, last-minute approach to the negotiation and implementation of the protocol.

And.

And to demonstrate the adage that there is nothing in political affairs that the current government of the United Kingdom cannot make worse, there are the clumsy and confrontational antics of the relevant minister David Frost.

In the words of Hayward: 

‘The EU is frustrated at the lack of readiness, compliance and, now, the trustworthiness of the UK.’

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But the value of Hayward’s post is not just in that pay-off line, but in it showing us that even if Frost was not playing to the gallery, the structural and practical problems would still be there – and just as pressing and urgent.

This means that the European Union – and the rest of us – should not get preoccupied with the current political problems – as distinct from the structural and practical problems.

Just as the claps and cheers of the political and media supporters of the government are not enough to get Brexit ‘done’ – a similar but opposite superficial response to such political idiocy is not sufficient as a remedy to the current problems.

Put bluntly: if prime minister Boris Johnson and various of his ministers all resigned this evening, the structural and practical problems identified by Hayward would still be there in the morning.

And so Hayward is right to aver that the European Union should seek to avoid getting too caught-up in our current government’s short-term silliness – the ‘moral hazard’ of which I set out in a recent post.

The problems addressed by – and caused by – the Ireland/Northern Ireland Protocol will be there as long as the United Kingdom is out of the European Union and Northern Ireland is part of the United Kingdom.

***

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The United Kingdom government says yet again it will break international law – and why this is daft, dangerous, and dishonest

7th March 2021

Another month, another move by the government by the United Kingdom that will break international law.

This time it is the announcement of a unilateral move in respect of a grace period for for temporary agrifood movements to Northern Ireland.

This, of course, from a United Kingdom government that repeatedly boasted of its readiness for a swift withdrawal from the European Union without any agreements in place.

Now the government of the United Kingdom wants grace periods – the latest in a succession of extensions and ‘implementation’ and ‘transition’ arrangements, all with the effect of the government of the United Kingdom pretending to itself and others that there has not been any actual departure from the European Union.

And this is not in respect of any old international obligation imposed by some outside body – but in respect of obligations that this United Kingdom recently negotiated, signed, obtained a mandate for at a general election, and rushed through parliament without scrutiny.

It is all rather daft.

One of the wonders of the age is that so many political and media supporters of the government still clap and cheer at these self-inflicted pratfalls.

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In turn, the European Union is unequivocal:

‘Following the UK government’s statement today, Vice-President Šefčovič has expressed the EU’s strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.

‘This is the second time that the UK government is set to breach international law.’

This response from the European Union indicates not only why the threatened unilateral breach is daft – but also why it is also dangerous.

The post-Brexit future of the United Kingdom now depends on being able to be taken seriously as an independent international trade partner.

But each signal that the government of the United Kingdom will casually breach obligations into which itself negotiated and entered is a signal that the United Kingdom is not to be trusted.

This bad faith will have two effects.

First, doors will silently close on the United Kingdom – as why would any trading nation strike a substantial deal with the United Kingdom when the United Kingdom shows itself willing to break such an agreement within weeks?

And second, those agreements that do go ahead will have built into them protections and allocations of risk to address the United Kingdom’s untrustworthiness.

No sensible country watching any of this will assume there will be good faith from the United Kingdom in any international agreement.

The trade negotiators of the United Kingdom may as well all turn up to any negotiation sessions wearing sandwich boards saying ‘kick us’.

This is the moral hazard that the United Kingdom has created for itself.

And it is the very last thing a country in the position of the United Kingdom should be doing, as it moves into its post-Brexit future.

Indeed, the government should be doing the opposite: making sure that every move and statement is geared towards building up international credibility.

*

As the historian Robert Saunders avers, the ultimate problem here is honesty – with itself and its supporters, as well as others:

That this observation is, well, so obvious would make one think there could perhaps be a quick moment of realisation – that the government and its supporters will realise the folly of their bad faith.

But there is a real risk that the government of the United Kingdom will keep on with this daft, disastrous and dishonest approach – as the marginal political gains seem preferable to facing up to the structural and strategic damage.

The adverse consequences will just be factored into elsewhere in the international arrangements (and lack of arrangements ) of the United Kingdom.

There is no such thing as a free lunge to lawlessness and bad faith.

***

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Law and policy after Trump and Brexit: what happens if hyper-partisanship and populist nationalist authoritarianism does not fade away?

6th March 2021

As the year 2016 recedes there will be a temptation to think that the politics of 2016 will eventually recede too.

Things come and go, and human affairs often move in circles – a period of illiberalism will surely be followed, soon enough, by a liberal spring.

The days will start getting lighter, and so on.

But what if that does not happen – and the days stay just as dark, and perhaps get even darker.

What if Trump and Brexit were not low-points but preludes?

Such have been the various social, economic, technological and media dislocations of the last couple of decades, there is no particular reason to believe that we will have a happy return to the certainties of a previous political order.

In the United Kingdom, for example, we still have the government gaming legality and threatening – again – to break the law to the claps and cheers of the easily impressed.

In the United States, Trump may have (temporarily) gone – but Trumpism certainly has not.

Certain politicians know that appealing to and motivating a particular illiberal constituency will be sufficient to keep them in or close to power. 

And this sort of politics will mean that constitutional norms will continue to be contested and politicised.

If this dismal prospect is in the offing, then what is there to do from a liberal constitutionalist perspective?

From the point of view that there is a balance between the rights of an individual and the powers of the state, and that each element of the state – and especially the executive – should be subject to checks and balances.

What should one do if things do not, eventually, settle down?

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This is a serious problem – as liberal constitutionalism is not well suited to hyper-partisanship.

Liberal constitutionalists who react with outrage or despair are the ‘owned libs’ whose adverse reactions are validation of the provocations.

And those who seek to avoid confrontation run the unpleasant risks of quietism.

Perhaps, as one Victorian politician put it: not all problems have solutions.

Perhaps it is now the lot of liberal constitutionalists just to try to protect what they can in the face of illiberal onslaught.

As this blog contended back on new year’s eve, there is a public good in pointing out that things are wrong, and in explaining how and why those things are wrong.

That is: in describing the world that is passing away.

It is a depressing predicament.

*

All this said, there is some scope for optimism.

Even taking Brexit and Trump at their highest, both were checked by constitutionalism.

There was no hard Brexit – and the two Miller cases and the Benn Act ensured that there was both a withdrawal agreement and a trade and cooperation agreement.

There was not a successful coup in the United States of America – the electoral college was not subverted.

Liberal constitutionalism has taken a substantial bashing in both the United Kingdom and the United States – as well as elsewhere – but it has not (yet) collapsed, and indeed it has shown marked resilience.

Liberal constitutionalism is perhaps turning out to have been stronger than those of us at the time realised.

And so there is still a role for liberal constitutionalism in the post-Brexit and post-Trump age.

The huffs and puffs have not (yet) blown the liberal constitutionalist house down.

We may be in in a post-Brexit and post-Trump age – but we not (yet) in a post-liberal and pst-constitutionalist age.

*****

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A close reading of public domain information regarding the settlement between Philip Rutnam and the Home Office

5 March 2021

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 ‘Time to form a square around the Prittster’

– prime minister Boris Johnson, as reported on 20th November 2020

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‘Expected value is the product of variable such as a risk multiplied by its probability of occurrence’

– Central Government Guidance on Appraisal and Evaluation (‘the Green Book’), 2020 edition, p. 140

*

We now know what appears to be the financial value of a square formed about the Prittster.

According to my Financial Times colleague, the well-connected Sebastian Payne, the cost of yesterday’s settlement of the claim brought by Philip Rutnam against the home offic is at least £340,000 plus £30,000 of legal costs.

https://twitter.com/SebastianEPayne/status/1367517429115609091

There would also be other costs incurred by the home office, including for its own external counsel.

This is a substantial – indeed extraordinary – amount of money for a settlement of a claim – especially when on other matters the home office are often somewhat parsimonious over similar amounts of money

*

So what can be worked out about this settlement?

Let us start on a light note with how the news of the settlement was released.

Here we should imagine a zoom call discussion between a home office lawyer and media advisor:

Media adviser – How do we spin – I mean present – the settlement with Rutnam?

Lawyer – We can say we have settled without admitting liability

Media adviser – Doesn’t that just mean the same thing as the case has settled?

Lawyer – Yes, but political reporters will not know that

Media adviser – Ok – but can we pad it out even more?

Lawyer – We can also say that we were right to defend the case

Media adviser – But isn’t that just another way of saying no liability is admitted?

Lawyer – Yes 

Media adviser – So we should say in effect that we have settled because we settled because we settled?

Lawyer – Exactly

Media adviser – And that will fill up their ‘breaking news’ tweets leaving little room for anything else – oh, that is genius

Lawyer – Thank you, that is kind

Ahem.

All that government statement says in that statement is that the home office has settled the case, three times.

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More important – and interesting – is how that settlement amount was authorised.

The home office released this statement yesterday:

‘The government and Sir Philip’s representatives have jointly concluded that it is in both parties’ best interests to reach a settlement at this stage rather than continuing to prepare for an employment tribunal.’

This statement shows that a decision was made by the government to settle rather than to proceed to trial.

The statement also expressly states that this decision was made in the government’s best interests.

This indicates – if not demonstrates – that the decision to settle was made in accordance with the principles set out in the ‘Green Book’ – the common name for Central Government Guidance on Appraisal and Evaluation.

The Green Book sets out how a government department should approach dealing with liabilities and risks.

In essence, the Green Book provides the basis for how cost-benefit analyses are conducted in Whitehall.

In civil service speak: ‘[e]xpected value is the product of variable such as a risk multiplied by its probability of occurrence’.

The ‘concluded…best interests’ language of the home office statement means that a decision was made that settlement was more beneficial to the home office than the risks of proceeding with the case.

Or more bluntly: the home office realised it was likely to lose at trial and to lose badly.

Only if this decision was made on that basis, would – absent a ministerial direction overruling officials – such a payment be permissible in accordance with Green Book principles.

And the ‘concluded…best interests’ language tells against any ministerial direction (which, in any case, would one day be disclosed).

So, if this assumption is correct, then the case was closed down not (just) to save a minister from embarrassment but because of the real risk of a heavy defeat at the tribunal – a defeat which ran the serious risk of costing the home office more than £370,000.

The prime minister may have wanted a square to be formed around the Prittster – but that would not itself explain a payment made in accordance with Green Book principles.

*

And so we come to the claim.

The amounts recoverable from most employment tribunal claims are capped, and so an employment tribunal claim even by a highly paid senior civil servant would not normally result in compensation in the area of the amount paid in this settlement.

And employment tribunals do not normally award costs – in lawyer speak, costs do not ‘follow the event’.

So what was different here?

If we go back to the statement made by Rutnam’s trade union when the claim was launched, there is a clue:

‘This morning, Sir Philip, with the support of his legal team and the FDA, submitted a claim to the employment tribunal for unfair (constructive) dismissal and whistleblowing against the Home Secretary.’

This was, in part, a whistleblowing claim.

And as such – under sections 103A and 124(1A) of the Employment Rights Act 1996 (as amended) there is no cap on compensation if the reason – or principal reason – for the dismissal is in respect of a protected disclosure.

On this basis, and given the settlement amount, the claims made were regarded (at least potentially) as principally a whistleblowing case.

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But – is not this case more about bullying than whistleblowing?

Here a passage in this Guardian report may be relevant:

‘Rutnam’s case was expected to focus on his claims that in late 2019 and early 2020 he challenged Patel’s alleged mistreatment of senior civil servants in the Home Office, and that he was then hounded out of his job through anonymous briefings.

‘Reports claimed that a senior Home Office official collapsed after a fractious meeting with Patel. She was also accused of successfully asking for another senior official in the department to be moved from their job.

‘Rutnam, a public servant for 30 years, subsequently wrote to all senior civil servants in the department highlighting the dangers of workplace stress. He also made clear that they could not be expected to do unrealistic work outside office hours.’

Under section 1 of the Public Interest Disclosure Act 1998 there are many ways a disclosure can qualify for legal protection – but the key thing is that such disclosure can be internal to a workplace, even to a boss, and not external disclosure to, say, the press.

On the face of the available information, and on the assumptions made above, it would appear that:

(a) in 2019-20 Rutnam made one or more disclosures internally within government in respect of workplace bullying;

(b) his claim for unfair dismissal in April 2020 had as a principal ground that such disclosure was the main reason for his constructive dismissal; and

(c) by March 2021 it was plain to the home office that this principal ground would be likely to succeed at trial.

Unless these (or similar) facts are true, then it is hard to explain why the home office, following Green Book principles, would settle this claim, for this amount, and at this time.

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And so now: timing.

The obligations under the Green Book are constant and so would have been just as applicable when the claim was made as they are now.

But the home office waited nearly a year before settling the claim.

And a trial was fixed for September this year.

So something must have happened for the claim to have settled now rather than before now or later.

Something must have tipped the Green Book decision-making in favour of settlement.

There is more than one possibility for this.

It may well be that this was just when the settlement negotiations happened to come to an end, and the Green Book decision happened some time ago.

Or, if you are a conspiracy theorist, you can posit political pressure and even intervention – even though there is no evidence of a ministerial direction.

Or it could have something to do with the judicial review just launched by the FDA trade union in respect of bullying and the ministerial code.

But the most likely explanation is that something has happened in the litigation process that has changed things.

In civil litigation such a shift can sometimes be explained by some sort of costs tactic – where one side springs an offer with such costs implications which, in the words of the noted jurist Don Vito Corleone, is an offer that the other side can’t refuse.

But such costs traps are (I understand) uncommon in employment tribunal cases where there is a special costs regime.

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So if not costs, then evidence.

At this stage of this sort of claim, there would be what is called a ‘disclosure’ exercise where the parties ascertain and share the relevant documentary and witness evidence.

It is the one moment when the parties get to see the actual strengths and weaknesses of their cases.

Other than in respect of costs traps, it is the one stage where claims are most likely to suddenly settle.

On this basis, the most plausible explanation for a claim that launched in April 2020 and was scheduled to be heard in September 2021 to settle in March 2021 is that some documentary or witness evidence has emerged – or has failed to come up to proof.

And given the nature of the claim and the amount at which the parties have settled, this development in respect of documentary or witness evidence would have to be in respect of a protected disclosure under the Public Interest Disclosure Act.

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So if this is a whistleblowing case, does that mean the settlement silences the whistle?

Here one answer is given by section 43J(1) of the Employment Rights Act 1996:

‘Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.’

A similar answer is given by the Cabinet Office Guidance on Settlement Agreements, Special Severance Payments on Termination of Employment and Confidentiality Clauses:

‘Staff who disclose information about matters such as wrongdoing or poor practice in their current or former workplace are protected under PIDA, subject to set conditions, which are given in the Employment Rights Act 1996. This means that confidentiality 4 Settlement Agreements – guidance for the Civil Service – 18-July- 2019 clauses cannot and should not prevent the proper disclosure of matters in the public interest.’

On this basis, it is unlikely that the settlement agreement will contain such a confidentiality clause or, if it purports to do so, whether it would be enforceable.

The whistle is not silenced – at least at law.

It may well be that Rutnam believes his internal disclosures were sufficient.

Or it may well be that there may be another appropriate opportunity for disclosure, perhaps related to the FDA judicial review case.

We do not know.

*

But what we do know that the government has gone from this (as reported in the Guardian):

‘After a report in the Times highlighted tensions between Rutnam and Patel, sources close to Patel were quoted in several newspapers as saying that Rutnam should resign.

‘In an article in the Times, allies of the home secretary said he should be stripped of his pension, another source in the Telegraph said he was nicknamed Dr No for negative ideas, while one in the Sun likened him to Eeyore, the pessimistic donkey from Winnie the Pooh.

‘At that time the prime minister’s official spokesman said Johnson had full confidence in the home secretary and in the civil service, though the same guarantee was not given to Rutnam specifically.’

To this, in yesterday’s statement:

‘Joining the civil service in 1987, Sir Philip is a distinguished public servant. During this period he held some of the most senior positions in the civil service including as Permanent Secretary of the Department for Transport and the Home Office. The then Cabinet Secretary wrote to Sir Philip when he resigned. This letter recognises his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service.’

And:

‘The government regrets the circumstances surrounding Sir Philip’s resignation.’

We can bet they do.

*

So, on the basis of the above we can perhaps understand how and why the government has settled at such a high payment.

The amount is not only ‘substantial’ – it is extraordinary.

And it can be explained best by an understanding of the Green Book as applied to the effects of relevant employment and whistle-blowing law in this particular case.

But what is perhaps most notable in yesterday’s statement from the government is what it does not say.

In his resignation statement, Rutnam said:

‘In the last 10 days, I have been the target of a vicious and orchestrated briefing campaign.

‘It has been alleged that I have briefed the media against the home secretary.

‘This – along with many other claims – is completely false.

‘The home secretary categorically denied any involvement in this campaign to the Cabinet Office.

‘I regret I do not believe her.’

As well as several other serious accusations against the home secretary.

Not one of these accusations is withdrawn – not even ‘clarified’.

The home office instead now commends ‘his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service’.

If any square has formed, it is now around Rutnam and not the Prittster.

*****

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How the power of the home secretary to deprive a person of their United Kingdom citizenship is creating a second class of United Kingdom citizens from immigrant families

3rd March 2021

Despite modern political discourse being dominated by demands of what the ‘state’ should and should not do, there is often little in practice that ministers can do towards their political objectives.

Laws may be passed that may or may not have wanted effects; revenues can be raised and resources allocated that may or may not have any desired impact; international agreements may be made – or broken – that may or may not have certain effects; speeches can be made, and lines spun.

But a good deal of this activity and inactivity is at least one step removed from ensuring any real social and economic change (or lack of change), for government and administration is not an exact science.

And for anything that actually affect the rights of individuals, there would then be the pesky courts with their activist judges and scoundrel lawyers.

Over the last decade, however, one government department realised there were things it could do.

The home office has hit upon the one area of policy where it can make decisions that have direct social and economic consequences, but in a largely law-free way.

The home office could take people’s citizenship and residency rights away.

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Certain manifestations of this general policy approach can be seen with the Windrush scandal and in the deportation of those with certain criminal convictions.

And so on.

*

Just as important as these executive actions, of course, was the threat of such executive actions.

This was not an accident – it was the design of the policy.

That policy was the ‘hostile environment’.

As the former home secretary Theresa May said candidly in a 2012 interview:

“The aim is to create here in Britain a really hostile environment for illegal migration.”

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Billboards and signs on vans are one thing, but ready and easy use of executive powers are another.

And the home office – like any addict – began to use this legal power of international displacement more and more.

The home office could do things – and (more-or-less) get away with them.

The next step from stripping people of any residency rights they may have was to deprive them, when possible, of their citizenship rights.

From removing illegal immigrants, to removing those who were from immigrant families but were in the United Kingdom lawfully and indeed were citizens of the United Kingdom.

And so this is what they did.

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The outstanding Free Movement blog has compiled this table:

According to Colin Yeo, in this detailed and informative survey of the use of the power to deprive a United Kingdom citizen of their citizenship:

‘until quite recently, the power to deprive a person of their British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies…in practice, ‘deprivation powers were not used at all between 1973 and 2002’.

The cases mentioned by Yeo will show why many might not mind many of the deprivations – unpleasant individuals who have done highly unpleasant things.

Many would even clap and cheer and shout good riddance.

But each case is also an instance of simple executive power – a ministerial decision, rather than a prior judgment by a court or tribunal – that strips a person of their citizenship of the United Kingdom – even if that person was born a United Kingdom citizen.

Under section 40 of the British Nationality Act 1981 (as amended heavily over the years), the right of citizenship of a person is entirely at the satisfaction of the home secretary.

(See this blog’s post here.)

And once the home secretary is satisfied that you should lose your citizenship then the citizenship is lost, by instant operation of law.

The person affected may seek to appeal such a decision – but they do so from the position of no longer being a United Kingdom citizen.

The decision takes effect before – sometimes long before – it can be considered by any court or tribunal.

This is what raw executive power looks like.

And the home office likes it this way.

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Because of the international law in respect of ‘statelessness’ (which this blog set out here), this executive power is usually used (or should be used) only where the person affected already has the status at law of citizenship of another country.

This means it can be used against people with dual citizenship.

And this means it can be used most readily against those who are from first or second generation immigrant families.

So there are now two classes of United Kingdom citizen.

A first class of those who have no other nationality, and so against whom the home secretary cannot (or should not) use their power to deprive them of their citizenship of the United Kingdom.

And a second class of those who will also have another nationality and so can have their citizenship of the United Kingdom instantly removed at the satisfaction of the home secretary.

These second class citizens will primarily be comprised of those from first or second generation immigrant families.

This means, in turn, that many of those affected will tend to be those from black and minority ethnic backgrounds.

On this basis, the operation of this law and policy would be discriminatory against those from black and minority ethnic backgrounds.

The very structure of this law and policy would mean it cannot work any other way.

And so a citizen of the United Kingdom – born in the United Kingdom and with no personal relationship with any other country – can have their citizenship instantly removed by a government minister without any prior judicial step just because they are from an immigrant family.

And the home office likes it this way.

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This post is part of a series of posts on the Shamima Begum case.

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

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

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

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

Previous posts have included:

  • initial thoughts on the illiberal supreme court decision (here)
  • the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
  • the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)
  • statelessness and the law and the case of Shamima Begum (here)

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

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

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

*****

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Each post takes time, effort, and opportunity cost.

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Comments are welcome, but they are pre-moderated.

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