Category: Policy and Policy-Making

The Real Citizens of Nowhere – statelessness and the law and the case of Shamima Begum – looking closely at the Begum case part 2

not 2nd March 2021

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‘…you’re a citizen of nowhere.’

Theresa May, then prime minister of the United Kingdom, Birmingham, 2016

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What is a stateless person – a person who is (literally) a citizen of nowhere?

The best starting point for answering this question – a question that is relevant in the topical case of Shamima Begum as well as important generally – is the declaration of human rights of the United Nations.

Article 15 of the declaration provides:

‘(1) Everyone has the right to a nationality.

‘(2) No one shall be arbitrarily deprived of his [or her] nationality nor denied the right to change his nationality.’

A stateless person would thereby a person without nationality, either because they have never had one or because they have been deprived of any nationality that they did have.

That person would be an alien in every country on the planet, without a government obliged to offer protection or help, and without anywhere where they can reside as of right.

Such a predicament would be fundamentally inhumane.

And so that is why the rights to a nationality and against being deprived of any nationality arbitrarily are in the United Nations declaration.

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You will notice that article 15(2) of the declaration is not an absolute prohibition on a person being deprived of nationality, but a bar on such deprivation being done ‘arbitrarily’.

This would be most relevant when a person has more than one nationality, when one or more of those nationalities is being removed.

But the basic right under article 15(1) is not subject to exceptions: the ‘right to a nationality’ is a right for ‘everyone’. 

And that, for what it is worth, is the fundamental position under international law.

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The next step is a 1954 convention of the United Nations – the Convention Relating to the Status of Stateless Persons – which took effect in 1960.

The key provision of the 1954 convention is article 1(1), which provides a legally significant definition of a ‘stateless person’ (and thereby ‘statelessness’):

‘For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.’

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This definition in article 1(1) of the 1954 convention repays careful consideration.

Indeed, as you will see later, this particular definition matters a lot.

Note what the definition does not say.

For example (omitting certain words and replacing ‘by’ with ‘of’) it does not say:

‘For the purpose of this Convention, the term “stateless person” means a person who is not […] a national [of] any State […].’

So what difference do the omitted words make?

The difference is the crucial phrase (perhaps known better in other contexts): ‘the operation of law.’

This phrase means that, regardless of the facts of a person’s predicament, their nationality is a matter of law.

Not a matter of fact, or of opinion – but a matter of law.

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So, for example, imagine person [Y].

If the law of country [X] provides that person [Y] is a national of that country, then the legal position is that person [x] has nationality and is not stateless.

It does not matter if person [Y] has never been to country [X].

It does not matter if person [Y] has no personal connection to country [X] and, for example, does not speak the language of country [X] and may even be persecuted or tortured if they were to go to country [X].

It also follows that the mere opinion of anybody involved does not matter.

Even if the government of country [X] opines that person [Y] is not a national, that opinion does not matter if, as a matter of law, person [Y] is a national of country [Y].

All that ultimately matters on the issue is what the law of country [X] provides on the issue, and nothing else.

And once it can be ascertained that person [Y] is, as a matter of law, a national of country [X] then that person is not stateless.

Person [Y]’s personal relationship with country [X] and the state opinion of the government of country [Y] are all irrelevant.

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This absolute priority for the legal position – above the practical facts of the situation – is, as you will see, a feature of this area of law.

Some lawyers will use the Latin phrases de jure and de facto as respective labels for the position as a matter of law and the situation as a matter of fact.

Adopting such terms, the law is that one’s nationality in respect of statelessness is de jure rather than de facto.

Even if the relevant country is far away and about which you know nothing.

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So, in practice: a government of a country (for example, Bangladesh) may well say a person is not a national (or not wanted as a national) – yet what makes that person stateless is not that mere statement by the government, but whether that person is stateless by operation of law of that country.

When the government of a country (for example, Bangladesh) says one thing about whether a person is a national, but the law of that country says another, then the law trumps the government.

The rejection by a government (for example, Bangladesh) may make a person (for example, Begum) stateless de facto but not de jure.

You will see the consequences of this (legalistic) approach in some of the relevant cases (for example, the case of Begum).

And this (legalistic) approach is hard-wired into the very wording of article 1(1) of the 1954 convention.

Let us look at it again (with emphasis added): 

‘For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law.’

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Our next step is another United Nations convention – the Convention on the Reduction of Statelessness – of 1961 and which took effect in 1975.

The 1961 convention provides at article 8(1):

‘A Contracting State shall not deprive a person of its nationality if such deprivation would render him [or her] stateless.’

This right looks robust and unequivocal, with no deft legalistic exceptions or qualifications.

This right is subject to exceptions under the article 8(2) of the 1961 convention (which relate to those who obtain nationality by naturalisation) and under the article 8(3) of the 1961 convention (certain disloyal activities).

You did not think that countries would make it that easy for a person to rely on the right under article 8(1) of the 1961 convention, did you?

Of course not.

Article 8(2) and article 8(3) envisage some situations where a person themselves fulfils a condition that allows a country to deprive a person of their nationality.

The notion is that they will only have themselves to blame.

(As for the position under the law of the United Kingdom at the time the 1961 convention took effect, see section 20 of the British Nationality Act 1948 – the predecessor of the current 1981 Act)

However, in the case of Begum, article 8(2) and article 8(3) are not (supposedly) directly relevant, as the position of the government of the United Kingdom in respect of the Begum case is, of course, that depriving her of her United Kingdom citizenship does not render her stateless.

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The position of the government is that Begum is de jure a citizen of Bangladesh.

This is, in part, because the government takes statelessness to mean as it is defined in the 1954 convention – that is as statelessness de jure not de facto.

And so, in his letter of 19th February 2019, the home secretary Sajid Javid said (emphases added):

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

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

The emphasised text is crucial.

Without that text, the home secretary may have be barred by section 40(4) of the British Nationality Act 1981:

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

And so, if Begum – by operation of law – is indeed a citizen of Bangladesh then she can – in principle – be deprived of her United Kingdom citizenship without that deprivation being barred by section 40(4) of the 1981 Act (and thereby contrary to international law).

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But it is no longer just the view of the home secretary of the United Kingdom.

The question of whether the deprivation would be such as to render Begum stateless has also been considered by the Special Immigration Appeals Commission, in paragraphs 27 to 139 of its decision.

The commission heard expert evidence on both sides and decided that the law of Bangladesh would be that Begum would be a national of Bangladesh, regardless of the lack of any personal connection with that country.

This is paragraph 121 of the commission decision:

The commission has held that Begum was a citizen of Bangladesh by operation of the law of Bangladesh – regardless of what the government of Bangladesh has said and does say.

Begum has not, according to the commission decision, been rendered stateless.

The commission may be wrong: perhaps the expert evidence was wrong, or the wrong weight has been placed on the evidence, or the commission has applied the wrong legal tests, or the commission has applied legal tests incorrectly.

But, as it stands, the view of the home secretary that the deprivation decision has not made Begum stateless has also been endorsed by an independent body.

This issue of whether Begum would or would not be rendered stateless has, however, been decided only as one preliminary issue – there are several other issues – and there still has not been a final decision by the commission on Begum’s overall appeal of the deprivation.

The recent appeals up to and including the supreme court have been in respect of Begum’s ability to participate in this appeal and on a separate policy matter (which we will look at in another post).

The substantive appeal of the deprivation order is still incomplete (and at the moment it appears that it may be indefinitely stayed  – that is, in effect, adjourned).

The appeal before the commission is in limbo, as is – of course – Shamima Begum.

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This post is part of a series of posts on the 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)

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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The issue with vaccine certification – or ‘vaccine passports’ – is not that they are discriminatory – as all certification is discriminatory, if you think about it

1st March 2021

Over at the Financial Times I have a piece today on ‘vaccine passports’ – that is, a system of certification that a person has or has not had the coronavirus vaccine.

That article demonstrates my weakness as a commentator in the traditional media sense, as on this subject I do not happen to have strong views either way.

I do not have an ‘angle’ that will (conveniently) last from between 800 to 1100 words – no ultimate position that I am arguing for and articulating on your behalf for your claps and cheers.

Instead, on this policy (as on many others) I can only see difficulties – and difficult choices.

And these difficulties are, in turn, because of the very nature of certification.

All certification is discriminatory – that is its very point.

Certification enables (or should enable) a state of affairs to be asserted in a manner that then allows a decision-maker to make one decision instead of another.

That is: to discriminate.

The problem is not with discrimination in and of itself.

The problem is when that discrimination is unfair – either directly or indirectly.

Accordingly, it is not a complete answer to the proposal of any form of certification to dismiss it as discriminatory.

For all you are then saying is that a system of certification is acting, well, as a system of certification should.

The more important questions are whether that a policy of certificates would be reliable – and, if reliable, whether the benefits will outweigh the costs and whether it will not create unwanted inequalities, either directly or indirectly.

These are problematic things to consider – and for which there may not be an easy solutions – and in respect of which difficult choices will need to be made.

And to point such things out is a purpose of law and policy commentary.

Not all commentary is cheerleading for one position or the other.

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‘Not giving the Home Secretary’s assessment the respect that it deserves’ – some initial thoughts on the Shamima Begum decision of the Supreme Court of the United Kingdom

26th February 2021

This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.

The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.

With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.

The decision will take time to digest and to comprehend.

But.

That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.

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The first impression comes from the decision being unanimous.

This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.

A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.

This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.

Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.

This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.

It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.

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The second impression is that, as well as being unanimous, the judgment is executive minded.

For example, here is how the court of appeal described the background of Begum:

But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:

What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.

We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.

For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.

The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:

Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.

That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:

The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.

It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.

The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.

Perhaps the use of words here is a slip – but one fears instead it is again a tell.

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The third immediate impression is that it is a defeatist judgment.

The court of appeal found a compromise which balanced the rights of Begum with those of the executive.

It was an impressive and elegant judgment, and I did a video for the Financial Times:

The supreme court was to have none of this.

For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.

Instead, in such a dilemma, there is no judicial compromise:

Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.

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The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.

(As opposed to the notion that the rights of either side will always trump the other.)

If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.

For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.

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

21st February 2021

The news item is dramatic.

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

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

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

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

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

Why is this?

Surely breaking the law has consequences?

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Well.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

People act unlawfully and illegally every day.

People just like you.

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

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

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

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

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

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

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

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

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

And that…

…is it.

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

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

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

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

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

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

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

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

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

Nothing more.

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

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

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

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

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

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

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

Judicial review is not the only legal redress.

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

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

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

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

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

The swimmer is in the wrong lane.

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

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

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

And there would be no public interest in that.

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The significance of the appointment of Lord Frost as a cabinet minister for Brexit

18th February 2021

Compare and contrast two government statements.

The first – which was released to the media though not (it seems) published on the government website – is from just before Christmas 2019.

The statement read:

“The Department for Exiting the European Union will be wound up once the UK leaves the EU on the 31 January.

“DExEU staff have been spoken to today. We are very grateful for all their work and we will help everyone to find new roles.”

The notion was that, now Brexit had been ‘delivered’ there was no need for a cabinet-level minister to be dedicated to Brexit.

But Brexit had not been delivered.

Brexit had hardly begun.

For as this blog as previously averred – and as I set out in this Financial Times video – Brexit will be a negotiation without end. 

This is because in part of the enormity of the issues that still need to be settled – but it also because of the deliberate structure of the withdrawal agreement and the trade and cooperation agreement.

Both of the Brexit agreements create institutions and frameworks for ongoing negotiations, and negotiations, and negotiations.

That the ‘delivery’ of Brexit will be an ongoing matter for substantial and intense engagement with the European Union is a feature of the withdrawal arrangements, not a bug.

The content and form of the exit agreements are not about once-and-for-all and one-bound-and-we-are-free.

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And so we come to the second government announcement, from yesterday.

Regardless of the personalities involved – Frost is, in effect, taking over from Michael Gove as the cabinet minister responsible for Brexit, and Gove is a politician many have very strong opinions about – this is a sensible and welcome appointment for four reasons.

First, it shows the government has realised that the task and tasks ahead for Brexit are such that it needs a dedicated minister at cabinet level (even if not, strictly speaking, a secretary of state).

Indeed, the United Kingdom’s relationship with the European Union is likely to be a far more visible and prominent feature of public policy after Brexit than before.

And the cabinet office – and thereby Gove – has many other responsibilities. 

Second, it indicates that the government has realised the folly of creating a special pop-up department for the purpose of dealing with Brexit and is instead working with the grain of the planks of Whitehall than against them.

The cabinet office has many faults, but it at least has the departmental weight, and the expertise and (now) institutional memory on Brexit, that an entirely new department would lack.

Third, as Frost was the United Kingdom’s negotiator of the trade and cooperation agreement, there is a benefit for him also being in place for the negotiations that are to take place within the framework of the agreement.

The many delicate compromises of the agreement, and the agreed processes established to address hundreds (if not thousands) of technical issues (as well as various big ones) will not be – or should not be – news to him.

And fourth, the appointment regularises the position of Frost in the government – making him a formal minister so as to end his limbo state as a politicised adviser and ‘sherpa’.

As such he will be responsible to parliament directly.

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Not all government decisions – even with Brexit – are calamitous.

Sometimes the government of the United Kingdom can surprise you and do something (eventually) that makes sense.

Of course: there should have been in place a dedicated cabinet minister for Brexit all along – and, if so, various problems over the last year may not have the effects that they did.

But the primary significance of the appointment is that it implies an official acknowledgement that the real work of Brexit is still to come.

If so, perhaps Brexit reality is finally seeping in.

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

 13th February 2021

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

See here, here, and here.

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

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

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

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

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

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

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

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

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

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

But the job is not done.

In fact, nothing gets done.

And the constitutional abuses carry on as before.

*

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

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

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

(Ahem.)

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

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

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

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

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

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

*

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

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

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

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

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

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

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

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

*

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

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

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

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

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

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

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

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

9th February 2021

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

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

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

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

But this is somewhat illusory, for three reasons.

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

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

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

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

*

But.

Sometimes such letters can be unintentionally revealing.

And two such telling letters entered the public domain yesterday.

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

2020_02_02_-_Letter_from_CDL_to_VP_Šefčovič

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

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

‘We were not consulted on this Regulation either.’

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

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

But this was not the case with the replacement regulation.

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

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

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

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

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

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

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

*

Another letter from another minister was from George Eustace.

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

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

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

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

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

That is what Brexit means.

*

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

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

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

**

FOLLOW-UPS

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

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

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

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The Queen’s Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished

8th February 2021

This post is about a thing of which you may not have heard.

The Queen’s Consent.

No, not that.

The Queen’s Consent is instead an odd and generally unknown feature of the constitution of the United Kingdom.

It is in the news today because of some investigative reporting by the Guardian newspaper.

The news report is here and their explainer about the Queen’s Consent is here.

*

So what is the Queen’s Consent – and why, if at all, does it matter?

Let us start with what it is not.

The Queen’s Consent is not the ‘royal assent’ that is given to a bill passed by parliament that transforms it, by legal magic, into an act of parliament.

True, the royal assent is itself not widely understood.

Many think it is the queen herself that signs the legislation, but royal assent to legislation is done on the monarch’s behalf (and the last monarch to give royal assent personally was Victoria).

But Queen’s Consent is a different constitutional beast.

*

Queen’s Consent is the right of the monarch (and the heir to the throne) to be consulted on – and thereby to veto – any legislation that affects the private interests of the crown.

Imagine if the constitution of the United States provided formally for the president of the day – Donald Trump or otherwise – to intervene in congress to stop or to amend proposed legislation that affected the financial interests of the president or the president’s family.

That is what the Queen’s Consent provides for in the United Kingdom.

It is a structural right to lobby beyond the dreams of any cynical Westminster ‘public affairs’ firm.

*

There are a couple of things to note before we get onto just how strange this constitutional device is.

First, this is not about placing the crown beyond or above the law – it is instead (ahem) ‘upstream’ from the law being in place.

It is about being able to shape the law before it takes any effect.

Second, it is not about the public powers of the crown – the so-called ‘royal prerogative’ though the crown also has the right also to be consulted about legislation that affects those powers.

This is about the right to be consulted about proposed laws that affect the crown’s private interests rather than its public powers.

*

And now we come to four strange things about the Queen’s Consent.

First – and notwithstanding today’s front page splash in the Guardian – a good deal about the Queen’s Consent is in the public domain, hiding in plain sight.

It is just that few people know about it or care.

In the cabinet office’s guide to legislation for civil servants it warrants an entire chapter.

There is also an entire 32-page pamphlet devoted to the topic for the benefit of those who draft legislation.

The detailed ‘Erskine May’ book of authority on parliamentary procedure also has a section on the subject.

(Look carefully at the wording of what Erskine May says here.)

And in 2014 there was even a parliamentary select committee report on the practice.

But unless you are a constitutional obsessive you would, however, not be aware of any of this.

*

The second curious feature of the Queen’s Consent is perhaps the most extraordinary one.

The Queen’s Consent has no legal basis whatsoever.

There is no statute, nor even (it seems) any parliamentary resolution.

It is instead is something that is just, well, done.

If you scroll back up you will see that even Erskine May does not even offer any authority for the procedure.

And if you look at the practitioner’s legal encyclopaedia Halsbury’s Laws of England the authority that is given for the practice is Erskine May.

The 2014 select committee took evidence from specialists in parliamentary procedure and constitutional law experts – and the select committee could not identify any legal basis for the practice.

The only (supposed) authority is that it is ‘long-established’.

Given that the parliamentary bible Erskine May insists that the Queen’s Consent is ‘required‘ one would hope (and even expect) there to be some legal basis for the consent, but there is none.

To the extent that the Queen’s Consent has any formal basis at all, it is entirely based on parliamentary procedure.

And this means that it would be easy to abolish, for what is giveth by parliamentary procedure can be be taketh away by parliamentary procedure.

No law would need to be passed at all.

The queen would not need to be consulted, either by the Queen’s Consent or otherwise.

*

The third oddity about the Queen’s Consent is similar to the second.

For just as there is no visible legal basis for this structural bias, there is also hardly any visible effect.

It is all done in secret.

And this is why today’s Guardian report has some significance.

It appears to be a documented example where the Queen’s Consent was used to actually shape legislation.

Yes, it is from nearly fifty years ago.

And yes, it is partly dependent on a 1975 speech from Geoffrey Howe in parliament, who delightfully savages us like a dead sheep all these years later.

But – given the secrecy that cloaks the use of the Queen’s Consent procedure, and the general restrictions on official records in the United Kingdom – that is the best evidence we are likely to readily get in practice.

Some will note the lack of evidence of this formal step having any effect and will contend from that lack of evidence that the formal step is merely a formality.

That there is nothing to look at here, and that there is nothing for us too worry our heads about.

But.

The evidence we do have indicates that the process is taken seriously and is intended to be practical.

Chapter 6 of the guide for those drafting legislation is insistent that notice be given to the court with sufficient time for it to have effect – and also that it should not be done prematurely.

None of this would be relevant, still less stipulated, if the stage was merely formal and ceremonial.

Those responsible for legislation are reminded again and again to make sure that the stage is treated so that it is efficacious for the crown.

Here it is worth noting that until fairly recently this guidance was hidden from public view using the excuse that it was covered by legal professional privilege – from the 2014 select committee report:

Steers on mere ceremonial steps are usually not anywhere close to being subject to legal professional privilege.

A further indication that the Queen’s Consent is a consequential stage rather than some ceremonial gimmick is the sheer detail of what has been and can be covered.

None of this would make sense if the Queen’s Consent was a mere formality.

*

The fourth curious – and somewhat quaint and amusing – feature of the Queen’s Consent is how it make a private solicitors’ office a formal part of the constitution of the United Kingdom.

You would think this elevated role for a private individual this was the stuff of fiction – like George Smiley visiting Connie Sachs at her country cottage, or Sherlock Holmes visiting his brother at the Diogenes Club:

‘I did not know you quite so well in those days. One has to be discreet when one talks of high matters of state. You are right in thinking that he is under the British government. You would also be right in a sense if you said that occasionally he is the British government.’

But it is there in black and white.

For this formal stage of the Queen’s Consent a letter has to be sent to a private solicitor in Lincoln’s Inn Square:

The ‘language of the letters should be formal in nature’ – so presumably a bill could be frustrated if ‘Dear Sirs’ was followed by an incorrect ‘Yours sincerely’ – or even, gods forbid, there was not a ‘.’ after ‘Mr’.

It is all rather silly.

But what is not rather silly but rather serious is that that this is not to a lawyer in any public capacity in the royal household, and still less to the government’s own treasury solicitor, but to a private solicitor professionally charged with protecting and promoting private interests – and that the whole procedure is geared around the convenience of the private solicitor obtaining and then executing instructions from that solicitor’s private client.

*

And this being England – and this is more an English trait rather than a British one – there is no express mention of ‘veto’ in any of the official documents.

The language used is in terms of a consent that is ‘required’ but the implications of the consent not given are left unspoken.

In practice, and given the lack of evidence of the consent being formally withheld, what this means is that the crown is given the right and opportunity to shape prospective legislation – or in the case today disclosed by the Guardian – to make alternative arrangements before the legislation passes.

The question is not about what happens if consent is not given, but what things need to change for the necessary consent to be given.

*

There will be some who, even with all this information, will just shrug with a ‘so what?’.

There is no evidence – at least recent evidence – of the practice doing any harm.

But.

If the practice is, in fact, a mere formality then nothing will be lost with its abolition.

And if the practice does – as the procedure implies – have real effects, then it also should be abolished.

There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process. 

This would be wrong it had been for the benefit of President Trump’s family for bills before congress, and it is just as wrong here.

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Does the Handforth Parish Council viral video show that local government should be abolished? Or does it show that all local government meetings should be virtual?

6th February 2021

The interest in that Handforth Parish Council video is extraordinary.

Even at this blog, yesterday’s post has already had more views than any other post here has had in total over the last five years – with the single exception of the post that explained Article 50 the day after the shock of the referendum result.

(Yesterday’s post even attracted a commenter who, without any apparent irony, described Jackie Weaver’s actions as ‘the worst kind of Fascism’ – and one can only wonder what they then thought when their comment was binned rather than published.)

Without doubt the video has added for some to what used to to be called the ‘gaiety of the nation’ – though for others it was a less cheerful public illustration of the abuses, disruption and misconduct in such meetings that is usually hidden from view.

But as interest fades and new memes come along, what – if anything – is the more general significance of the story of that parish council meeting?

*

One problem of local government is lack of interest.

People, it would seem, can only bear so much democracy.

The turnout in local government is lower than parliamentary elections.

And – as with political parties – the fewer people who are engaged, the more unrepresentative are those who stay involved.

When those unrepresentative representatives have actual powers then this means it is more likely that bad decisions will be made instead of good decisions. 

*

One response to this observation will be that the solution is to encourage more interest and more engagement.

And such a stirring exhortation will garner claps and cheers – or, at least, their modern equivalent, ‘likes’ and RTs.

But when the nods finish and good intentions are superseded, there will still be little interest in local government.

Because nothing has changed substantially to make local government more accessible.

And so in local government continues to be dominated by those who would only get elected because of that lack of interest.

To which, in turn, there are two three responses.

The first is to shrug and say one gets the local elected representatives one deserves.

The second is to question the need for the democratic element in the provision of local services – after all, many people will not care who their local councillors are, so long as their bins are collected on time.

The third is to see lack of interest as the result of the lack of real powers for local government – and if local bodies had more powers then there would be more local interest.

*

None of these three responses are, for me, compelling.

But.

The Handforth incident suggests there is a way for there to be more interest in local government – and that is simply to make it easier for people to follow what is going on (and even participate) in the making of local government decisions.

One of the few benefits of the coronavirus lockdowns has been that various bodies are now deliberating online rather than in unknown council chambers, and that those deliberations are publicly available.

As a matter of democratic principle, and from the perspective of increasing transparency, there is great deal to be said for deliberations to be done virtually.

Here I do not mean that council proceedings should just be streamed, but that the actual meetings should be done virtually rather than in some council chamber or committee room.

Indeed, one could question whether – given new technology – there is now any need for council chambers at all, other than for ceremonial events and for showing determined tourists.

And we would be free from the tiresome mock-parliamentary debating society macho pedantic silliness of some oral debates – and it would be easier for all representatives to contribute rather than budding after dinner speakers and those who bray in their support.

Councillors would also be able to readily attend around their other professional and home responsibilities, rather than giving up whole days in the manner of leisurely amateurs in frock coats.

At a stroke such virtual proceedings as the norm would be instantly more accessible to the public – and also to otherwise sidelined councillors.

*

Much of what we take as the natural norms in our public affairs are just practices and categories we have inherited from previous generations.

And big set-piece meetings in ornate council chambers may have suited Victorians and Edwardians – but, if we were starting from a blank page today, would we come up with the same model?

(Indeed, would practically minded Victorians and Edwardians have insisted on their model had they been aware of our technology?)

Similar points can also be made about other formal meetings – and indeed court hearings.

Other than when the credibility of witness under examination is at issue – and there is no substitute for that being done in person – or when there are necessary reporting restrictions, there is no overwhelming reason why most court hearings cannot be done virtually.

*

The fact that we inherited practices from a time without virtual technology is no reason, by itself, to persist with those practices, as long as other principles such as due process and fairness are not adversely affected.

Making public affairs more accessible is not only a public good, but would have the practical utility of ensuring more engagement.

People watching – or participating  in – the Handforth council meeting on their laptop or their phone (or indeed iPad) was for many a novelty.

But it would be good for democracy if virtual council and their formal meetings and hearings became the new natural norm.

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Four examples of Prime Ministerial power – how Boris Johnson in fact ‘did everything he could’ for there to be a trade barrier down the Irish Sea

4th February 2021

You will no doubt have an opinion on Boris Johnson, the current prime minister of the United Kingdom.

For my part, the best and most insightful depictions of Johnson as a politician are this piece by Marina Hyde and this by Rafael Behr.

This post, however, will look at the prime minister not just as politician but also through the lens of constitutional law and practice – and, in particular, will examine one statement he made yesterday.

Everyone who cares knows that Johnson will not do – and has not done – ‘everything’ to avoid a barrier down the Irish Sea.

The fact that this statement is untrue is by itself neither here nor there: more than most politicians, Johnson knowingly says false things.

But for this blog, what is interesting about this lie is that its falsity engages four distinct examples of prime ministerial power.

For Johnson did everything as a prime minister for there to be a barrier down the Irish Sea.

*

Within a parliamentary system such as the United Kingdom, and with the constitutional theory that executive power flows from the crown, there are limits to what any prime minister can and cannot do.

But the Irish barrier question shows the ways in which a prime minister can exercise power.

*

First, a prime minister can change and set government policy.

And here Johnson broke with the policy of his predecessor on the (once infamous) ‘backstop’ in the withdrawal agreement.

Johnson, of course, did this for cynical reasons of political convenience – but it is a decision that only a prime minister could have made.

And Johnson did.

*

Second, a prime minister can enter into international agreements.

In constitutional theory, this is the prime minster using the royal prerogative to enter into those international agreements.

So having reversed the policy of his predecessor, he proceeded to agree the withdrawal agreement providing for a trade barrier down the Irish Sea.

And again, this was something he could only have done as prime minister.

*

Third, a prime minister – as leader of the party that wins a general election – can win a mandate for their policies.

Currently, calling a general election is outside the powers of a prime minister, by reason of the Fixed-term Parliaments Act.

But when there is a general election, and that election is won, the prime minister (and the winning party) then enjoys a mandate for their manifesto commitments.

And this mandate is constitutionally significant – for example: any policy with such a mandate cannot be blocked or delayed by the house of lords.

The (then) ‘oven-ready’ deal was mandated by the 2019 general election.

So, again, a mandate was something Johnson achieved as a prime minister (and which his predecessor failed to do with the 2017 general election).

*

And fourth, a prime minister is ultimately responsible for the government’s programme of legislation.

So: having reversed policy, entered into an agreement with the European Union giving effect to that new policy, and having won a mandate for the policy in a general election…

…the prime minister now ensured that the policy was implemented into domestic law with an act of parliament.

(Legislation that, of course, was pushed through with minimal scrutiny using the government’s newly obtained overall majority so as to ‘Get Brexit Done’).

*

That there is now a trade barrier in the Irish Sea is a perfect illustration of the various powers of a prime minister under our constitutional arrangements.

The trade barrier in the Irish Sea was Boris Johnson’s policy (which he reversed from his predecessor), which he agreed with the European Union and for which won a mandate in a general election, and that he then ensured was enacted into domestic law.

There was nothing more Johnson as prime minister could have done for there to be this trade barrier in the Irish Sea.

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