Category: Policy and Policy-Making

This agreement is not the end of Brexit, it is a five year political truce

28th December 2020

More is now becoming apparent of the nature of the draft trade and cooperation agreement between the European Union and the United Kingdom.

This post looks at two fundamental issues: structure and duration.

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In regard of structure, let us start with what is expressly stated as the ‘purpose’ of the agreement:

‘This Agreement establishes the basis for a broad relationship between the Parties […]’

The word ‘broad’ is significant, especially when one looks at the following provision.

This provision expressly provides that it is envisaged that there will be ‘other’ agreements that will both ‘supplement’ this agreement but will be subject to this agreement.

The key word here, at the end of the numbered paragraph, is that this agreement is a ‘framework’.

As such it is not, and is not intended to be, a once-and-for-all agreement, setting out all the terms of the post-Brexit relationship between the European Union and the United Kingdom.

This will not surprise many (no doubt they are already scrolling down to type ‘why is this a surprise?’ in the comment box below) but it is significant – and consequential – and needs spelling out.

This is explicitly not an agreement which shows that the United Kingdom has, in one single bound, ‘taken back control’ and become free.

The agreement instead shows, even in its first two substantive provisions, that Brexit will be an ongoing negotiation, maybe one without end.

All this agreement does – expressly and openly – is provide a ‘broad…framework’.

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Once this is understood then other parts of the agreement make sense.

For example, there are numerous specialised trade committees set up for various sectors.

Loads of talking shops.

But some have rightly noted that some sectors do not have specialised trade committees.

The specialised trade committees which have been set up, however, oversee certain parts of the agreement.

So, if a sector is not the subject of other provisions in the agreement, then there will not be a specialised trade committee to oversee that sector.

(This is akin to, say, parliamentary select committees that are set up to mirror government departments.)

The reason, therefore, there is not a financial services specialised trade committee under this agreement is that there are no substantive provisions under this agreement on financial services (yet) for that committee to monitor.

If and when there is a ‘supplementary’ agreement on financial services, for example, there will be a corresponding new specialised trade committee.

That new committees can be formed is expressly provided for in the powers of the partnership council, that can ‘by decision, establish Trade Specialised Committees and Specialised Committees’.

The agreement, therefore, envisages both new supplementary agreements and new specialised committees.

(And these envisaged potential extensions are elsewhere in this agreement.)

In other words, this agreement is intended and designed to be a dynamic arrangement between the parties, where areas of trade and cooperation can change and indeed become closer (or less close) over time.

This means one consequence of Brexit is that the United Kingdom has swapped the dynamic treaties of the European Union which envisages things becoming closer (or sometimes less close) over time for a new ‘broad…framework’ dynamic agreement that also envisages things becoming closer (or sometimes less close) over time.

And this is part of the design, as the examples above show.

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There is more.

Not only is the agreement envisaged and designed to be dynamic over time, it will also be subject to five-yearly reviews.

So slow, incremental changes within five periods will be complemented by possible far more substantive shifts every five years.

This again is part of the design.

Buried on page 402 of the agreement:

“The Parties shall jointly review the implementation of this Agreement and supplementing agreements and any matters related thereto five years after the entry into force of this Agreement and every five years thereafter.”

And once you realise there is this five year cycle, you notice it elsewhere in the agreement.

There are numerous references to ‘2026’ and ‘five years’.

And as John Lichfield has pointed out in this significant and informative thread, 2026 is also a significant date on the fisheries question:

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Five year periods, of course, accord neatly with the five year cycles of the European Union.

The European Commission is appointed for a five year term, for example, and the European Parliament is elected every five years.

Each President of the European Council also tends to serve a five year term.

So this five year cycle of reviews is convenient for (and is no doubt designed to be convenient for) the European Union.

Each Commission, each European Parliament, and each President of the European Council, will have its turn to shape the relationship with the United Kingdom, before handing it onto the next.

The five year cycle also may suit the United Kingdom.

The Fixed-term Parliaments Act provides that each parliament should last five years – though, of course, this statute is set for repeal.

But, in any case, the politics of the United Kingdom generally tends to follow cycles of four to five years.

And if Fixed-term Parliaments Act stays in place, the next general election is in 2024, just in time for the run-up to the next review of the agreement.

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The trade and cooperation agreement is expressly and openly designed to have both small changes within five year cycles and potentially big changes every five years.

As such, this agreement is not the end of Brexit.

The agreement is not (and is not intended to be) a once-and-for-all settlement of the relationship between the European Union and the United Kingdom.

It is instead – deliberately – a dynamic agreement, capable of enabling closer union (or less close union) over time.

The five year cycles accord exactly with the convenience of the terms of the European Union and also roughly match the political cycle of the United Kingdom.

This agreement does not bring Brexit to an end, it is instead a five year political truce.

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The United Kingdom-European Union trade agreement – the early emerging picture

27th December 2020

The draft trade agreement between the European Union and the United Kingdom and related documents were published yesterday.

As this blog has previously averred, there is not sufficient time for this agreement and related documents to be properly analysed and scrutinised before the Brexit transition period ends automatically on 31st December 2020.

All one can really do in the time available is read through the documents, spot patterns and complications, and notice the more obvious deficiencies, discrepancies and omissions.

Proper analysis and scrutiny of such a large legal instrument is not and cannot be a linear, read-through exercise.

It is instead complex: comparing provisions within the agreement and related documents, then matching the provisions with external legal instruments, and – most importantly – practically stress-testing the proposed provisions against reality.

As this blog has previously said, legal codes are akin to computer coding – and so quick reviews before deployment will not spot the inevitable bugs.

All that said, there are already some emerging shapes and overall impressions.

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The best starting point is the European Union page, which has links to a number of relevant documents.

You will see there that there is not just one draft agreement, for trade – there are also a security of information agreement and a civil nuclear Agreement.

There is also a 26-page document of ‘declarations’.

Also worth looking at is this 2-page table of consequences of the United Kingdom’s departure and the benefits of the agreement.

The corresponding page of the United Kingdom government has fewer resources but there is this 34-page explainer which summarises at a high-level the ‘core’ provisions of the agreement.

(Though without the contents pages and judicious use of spacing, numbering and tabes, that explainer would have significantly fewer pages.)

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A number of commentators and experts have also shared their early views and impressions.

The excellent team at the Institute of Government have provided initial analyses of the provisions at their site – see the links on the left of that landing page for their looks at individual areas.

Professor Steve Peers – author of various leading texts on European Union law – spent Christmas Day and Boxing Day putting together an explanatory thread on Twitter.

The thread, like the rest of his social media output, is an astonishing work of immediate legal commentary and is a boon for the public understanding of law.

There was other outstanding commentary.

Trade expert Dr Anna Jerzewska: 

Services expert Nicole Sykes:

Former United Kingdom senior trade official David Henig did a post and a thread:

Another trade expert Sam Lowe observed that the trade side of the agreement was thin and – but for politics and choreography – could have been completed more quickly:

John Lichfield provided an informative thread on fisheries:

And extradition lawyer Edward Grange had a similarly informative ‘quick look’:

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In my own area of particular interest – institutions, governance and dispute resolution – my own very preliminary tweet got widely shared:

https://twitter.com/davidallengreen/status/1342749971142029312

And it was even picked up by the Daily Express, which – in an extraordinary and unexpected turn of events – described this blog as an ‘influential blog’.

Anton Spisak looked at this far more closely and he compiled this helpful diagram:

This elaborate scheme was correctly described by Professor Phil Syrpis as follows:

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All this is only ‘first glance’ stuff – a Boxing Day walk-through a long and complicated legal text.

But what is already plain is that what the United Kingdom government is boasting and spinning about the agreement may not be accurate.

Remember, however, that the old saying ‘the devil is in the detail’ is often the opposite of the truth.

Devils lurk and thrive in generalities, mismatched expectations, mutual misunderstandings, and grand sweeping statements.

It is these that bedevil us.

Details – that is precise language – flush out these devils.

And as we understand more about what has actually been agreed in this ‘deal’ – and what was not agreed – we will no doubt see many devils flush past.

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Scenes from Brexit past – so as to keep the impending Deal ‘triumph’ in perspective

Christmas  Eve, 2020

Today political and media supporters are hailing as a triumph a Brexit agreement few of whom have read and many will probably one day disown.

It is now a familiar ritual.

And as Christmas Eve is a time for ghost stories, here are some scenes from Brexit past.

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First let us go before even the referendum.

It is late 2015, and the then prime minister David Cameron and a team of negotiators are seeking a ‘deal’ – a supposed re-negotiation that would be the basis for victory in a referendum expected to take place in 2016.

But the re-negotiation was a failure – though that too hailed by some at the time – and was hardly mentioned in the referendum campaign.

And – as this blog has set out previously – the wrong lessons were drawn from that deal by Brexiters, who believed demanding more things loudly was a deft negotiation technique with the European Union.

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We now go to the days after the referendum result, in the summer of 2016.

The governing Conservative party were in the midst of a leadership election – and the winning candidate asserted that ‘Brexit means Brexit’.

The European Union were, around the same time, putting in place negotiation priorities and strategies that would mean that they were ready to start negotiating by the end of that year.

The United Kingdom, in contrast, had no plans or even articulated idea of what it wanted out of Brexit when that new prime minister made the departure notification in March 2017.

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We now move on to the middle of the following year, where Brexit secretary David Davis promised ‘the row of the summer’ over the sequencing of the Brexit negotiations.

The ‘row’ lasted only days, as a far better prepared European Union got its way completely on sequencing.

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And now we go to December 2017 where the European Union accepts that there has been ‘sufficient progress’ in the talks and enters into a ‘joint declaration’ with the United Kingdom.

This joint declaration contains delicate but significant wording on the issue of the border in Ireland – wording which many political and media supporters of the government do not appreciate at the time or do not take seriously.

That joint declaration is hailed by those supporters anyway.

Brexit is getting done.

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We finally move on to December last year, where the Conservative party win a general election on the basis of an ‘oven ready’ withdrawal deal negotiated by the current prime minister.

That deal was, of course, hailed by political and media supporters of the government.

But months later, the United Kingdom government resorts to proposing legislation that would empower ministers to break that same ‘oven ready’ deal.

That legislation was hailed by political and media supporters of the government.

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There are many more such scenes from Brexit – you may now be thinking of others.

Some of these ghostly memories may be forgotten by the cheerleaders of the government.

But they have certainly not been forgotten by the European Union.

That is why the deal is likely to have strict provisions on governance, as the United Kingdom has consistently spooked the European Union in the conduct of these negotiations.

So when the deal is finally unwrapped its contents may horrify the political and media supporters of the government who are currently hailing it more than any ghost story.

And that may be a scene of Brexit yet to come.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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Why a two thousand page EU-UK relationship agreement cannot be properly scrutinised between now and 31 December 2020

23rd December 2020

A week tomorrow, on 31st December 2020, the Brexit transition period comes to an end.

This transition period has artificially kept in place most of the substance of membership of the European Union for the United Kingdom (other than representation on various institutions) even though as a matter of law the United Kingdom departed the European Union on 31st January 2020.

There is still no agreement in place for the future relationship.

There is still, it seems, not even an agreed draft text in final form.

And there certainly has not been ratification by the European Parliament.

(In the United Kingdom, parliament does not need to ratify an international agreement though parliament may need to legislate so as to implement what has been agreed.)

According to one well-connected and reliable commentator the current version of the agreement is two thousand pages long.

This is not a surprise, given the scope of what needs to be addressed in the agreement – the new ongoing relationship of the United Kingdom and the European Union on trade and other matters.

There are also news reports that the negotiators have missed the deadline for any agreement to be voted on by the European Parliament before the end of the year.

But even if somehow the European Parliament can reconvene before end of the year, there is not enough time for anyone other than those directly connected with the negotiation (and so will be familiar with the text) to scrutinise the agreement.

Today is a Wednesday – Christmas Eve and Christmas Day block out tomorrow and Friday, and then it’s the the weekend, and then it is the Boxing Day holiday on Monday.

That leaves only three full days to do everything.

The situation is ludicrous.

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A legal instrument is a complex thing.

Legal texts are not linear documents – you do not start reading on page one and go through to the end, and then stop.

A legal text is more akin to a computer program – law codes and computer coding are remarkably similar things.

Each provision – indeed, each word – in a legal instrument has a purpose.

Each provision has to, in turn, cohere with all the other provisions elsewhere in the text – so Article 45, for example, needs to fit with Article 54, and so on.

In an international agreement such as this relationship treaty, each provision also has to cohere with hundreds – perhaps thousands – of other provisions in other legal instruments.

(This is especially true of an agreement entered into by the European Union, which is a creature of law.)

Each provision also has to be capable of working in practice – and so needs to be assessed from a practical as well as a legal(istic) perspective.

And – perhaps most importantly – any significant legal instrument needs to be examined and approved by political representatives.

This last requirement is particularly important when the agreement will have huge consequences for people and for businesses.

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And there is something else.

The United Kingdom government has now twice – in a rush – signed up to something so as to ‘get Brexit done’ and then regretted it.

The first was the ‘joint declaration’ in withdrawal agreement negotiations, and the second was the withdrawal agreement itself – which the United Kingdom government sought to legislate so that it could break the law.

This means that nobody can have any real confidence that government ministers have any proper understanding of what they are signing up to.

If any agreement needs proper scrutiny, this one does.

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Charles Dickens in A Christmas Carol makes it so that all three visitations are packed into a single evening.

But not even an imagination as vivid as that of Dickens could make it plausible that a two thousand page agreement of such immense importance could be properly examined as a matter of law and for practicality, and to receive proper political scrutiny, in the few days available before the end of the year.

Brace, brace.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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How a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period – or why populism keeps prevailing over prudence

Winter Solstice, 2020

How did it come to pass that a government capable of ‘cancelling Christmas’ did not extend the Brexit transition period,?

Why is the United Kingdom having to deal simultaneously with the effects of both a pandemic and the departure from the European Union?

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The Brexit withdrawal agreement provided for a transition period, where the United Kingdom remained part of the European Union in substance if not in legal from (though not part of the law and policy making institutions).

Article 126 of that exit agreement provided that this extension period would end on 31 December 2020.

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The exit agreement also provided that the transition period could be extended – either by one or even two years.

This was a prudent provision –  just in case something happened which meant the brisk ‘let’s get Brexit done’ timetable was not possible because of some significant development – well, like a worldwide pandemic.

Yet 1st July 2020 came and went with no extension to the transition period.

https://twitter.com/davidallengreen/status/1278101059119075332

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This deadline for putting in place an extension was not a mere omission – the sort of thing a busy government may not have noticed in the rush of events.

The  failure to put in place the extension was a deliberate decision of the United Kingdom.

On 12 June 2020, the cabinet minister responsible for negotiations with the European Union announced proudly:

‘We have informed the EU today that we will not extend the Transition Period. The moment for extension has now passed.’

Had he perhaps not realised there was a pandemic on at the time?

Remarkably, the following sentence of the minister’s statement expressly stated that the decision not to extend was in view of the pandemic:

‘At the end of this year we will control our own laws and borders which is why we are able to take the sovereign decision to introduce arrangements in a way that gives businesses impacted by coronavirus time to adjust.’

The United Kingdom government promoted the decision not to extend as a news story.

The deadline was even the topic of direct discussion between the prime minister and the presidents of the European Council and the European Commission on 15 June 2020:

‘The Parties noted the UK’s decision not to request any extension to the transition period. The transition period will therefore end on 31 December 2020, in line with the provisions of the Withdrawal Agreement.’

The United Kingdom government knew the extension deadline was about to pass, and the government decided deliberately to not have an extension with full awareness (and explicit mention) of the ongoing pandemic.

‘Getting Brexit done’ was more important.

Populism prevailed over prudence.

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This option to extend the transition period was the only way to do so that was written into the exit agreement.

This means that, on the face of it, there is no way there can be an agreement now to extend the transition period.

The opportunity to extend the agreement would appear to have come and gone.

That said, there may be other ways of an extension – as set out by Georgina Wright and others in this report by the estimable Institute for Government.

And few legal feats are beyond the wits of clever European Union and United Kingdom government lawyers in a crisis.

But such an alternative approach to extension would not be easy nor  can it be instant – it would be an elaborate patch and workaround.

For such an extension to put in place now – ten days before the end of the transition period, with the Christmas holidays and a weekend in the middle – would require extraordinary political goodwill and legal ingenuity.

And all to have the same effect as the opportunity squandered by the government in June 2020.

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The decision to ‘cancel Christmas’ was, as this blog set out yesterday, not one any government would have wanted to make.

The fundamental mistake of this government was not to prepare people for the possibility – indeed probability – of this decision.

Days before the decision was made, the prime minister was loudly deriding the leader of the opposition on this very point.

Just click  below and watch and listen.

(Alongside this banality, the Secretary  of State for Education was also threatening a London council with a high court mandatory injunction so as to keep schools open.)

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Had the prime minister and others been acting responsibly, and in the public interest, and given it appears that the government had known about the new coronavirus variant for some time, there should not have been derision of the opposition for the possibility of ‘cancelling Christmas’.

A prime minister and government acting responsibly, and in the public interest, would have been explaining that the public and businesses had to brace themselves for the possibility – indeed probability – of such restrictions and to prepare accordingly.

But the prime minister went for easy claps and cheers instead.

Again, populism prevailed over prudence.

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Yesterday, this story was published by the government-supporting media.

The ugly truth, however, is that every single significant error in Brexit and with coronavirus has been because of the UK government ‘playing to its domestic audience’.

Every single one.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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‘Cancelling Christmas’ days after deriding the possibility shows how the prime minister is caught in the trap of populism

20th December 2020

Just days ago, at the last Prime Minister’s Questions (PMQs), this exchange took place.

Click and watch it.

At this point, the prime minister knew that there was a real risk that, to use the phrase, ‘Christmas would have to be cancelled’ – at least for London and the south east.

A responsible prime minister would have used the moment of PMQs – where there is a platform both before elected representatives and before the media and public – to prepare people for this sad possibility.

(Indeed, it may be that on Wednesday he knew that it was far more than a possibility.)

But what did this prime minister do instead?

He derided the leader of the opposition and he dismissed the risk.

We once had a prime minister – who was not without other faults – who candidly warned the public of sweat and tears.

We now have a prime minister who goes for claps and cheers.

Indeed, ‘populism’ can be illustrated, if not defined, by this prime minister sneering that others want to ‘cancel Christmas’ for claps and cheers – days before then having to cancel Christmas.

The constant putting-off of difficult decisions, and the promotion of easy answers.

(On this, this column by Rafael Behr is magnificent.)

Now some government-supporting politicians are spinning that this is a prime minister unafraid of difficult decisions.

This is untrue.

The difficult decision was not the one forced yesterday – there was by then no real choice – but at PMQs, where there was a choice to be made.

Does the prime minister tell members of parliament and the watching media and and public to brace themselves that something bad may happen – and to thereby give everyone time to plan accordingly – or does he go for the glib jibe?

Watch the footage again, and see what he decides to do.

It is difficult – genuinely – to imagine a more incompetent prime minister.

Yes, other government-supporting politicians – from the home secretary to the leader of the house of commons – would be just as dreadful.

But they would only be as bad in different ways.

For as, scientists tell us, one cannot go below absolute zero, one cannot go beneath a level of absolute incompetence.

No prime minister would have relished facing up to ‘cancelling Christmas’ for millions of people.

But our prime minister is caught in the trap of populism.

And politicians that can only play to the crowd invariably end up letting the crowd down.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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Law is not magic – and lockdown regulations are not spells

19th December 2020

Of  course, law is not magic.

Magic is about old men in elaborate robes, in oddly furnished rooms, saying or setting down words in certain special orders that will then have real-world effects on those to whom those words are addressed.

Ahem.

In fact, law has a lot in common with magic – or, at least, magical thinking – and not only in the facetious characterisation above.

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If we move from the courtroom to government, and indeed to the public more generally, there is a common view that to make a law against something is to deal  with it.

A thing should be banned, and so just putting some words on a piece of paper – or on a computer screen – and then saying some magic words – either

‘Izzy–wizzy, let’s get busy!

or

‘Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows’

or some other similarly daft formula, the words will leap from the page – or the screen – and will change the world around us.

This is a habit of thought with which we are so familiar that is difficult to dislodge it from our minds.

But just setting out words, and chanting some special phrases, has little direct effect on anything – other than in respect of what meanings, concepts and values we in turn give to those words.

And with prohibitions, more is often needed for a thing to stop than for the words to have been typed ‘this thing is prohibited’.

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For some people, a prohibition may be enough: they will know that a thing has been banned and will act – or not act – accordingly.

For others, however, the banned thing can just continue – it is just that there is a risk that further instances of the banned thing may now be attended with certain legal consequences and, ultimately, coercive sanctions.

A person faced with such a risk may chose to eliminate the risk and not do the prohibited thing, or they may instead manage or even disregard the risk.

But unless one is in a totalitarian society, the mere threat of a coercive sanction is not enough – most modern societies rely on government by consent, and the state does not have sufficient resources to police everyone completely.

Put simply: laws and sanctions are usually not sufficient to effect behavioural change.

Instead many prohibitions work not because of words on a page, or because of enforcement, but because the purpose of the ban is aligned with social norms and is accepted (broadly) as legitimate – that the ban makes sense and is for a good purpose and so will be respected.

If a prohibition is not accepted as legitimate –  if it does not make sense or seems unfair or disproportionate – then no amount of legal magic or coercive force will give effect to the prohibition.

The prohibition then just breaks down.

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And now we come to the lockdown regulations.

The belief appears to be that just by making laws against social activity – either during Christmas or otherwise – is by itself sufficient.

That the government should lock down more firmly – and if the government does not do this, then it will be the government to blame if the pandemic spreads.

But typing banny words are not enough, with or without magic phrases, and there is certainly not enough police to enforce such banny words.

A lockdown will only be effective if people actually regulate their social behaviour in reality.

The government could issue regulations until it is blue in its face, but if there is a disconnect with social behaviour, then it is futile.

(And the sensible response to this is unlikely to be ‘more laws!” and ‘harsher penalties!’ – just as it is rarely a solution to bang one’s head harder against the wall.)

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Law and laws are only one aspect of how those who govern us can influence and control our behaviour, to get us to change from what we would otherwise do.

People have to understand the purpose and point of prohibitions, rather than to just be expected to comply with them when they are imposed.

And for this a government needs to be transparent and credible: there needs to be trust more than law, and policy rather than policing.

There needs to be leadership.

Resources need to be in place for testing, tracing, and treatments.

Fair account needs to be taken of other possible priorities, even if those other priorities are less important.

Prohibitions and coercive sanctions still have a role – but they are not sufficient by themselves.

In essence, a government needs to govern, and not just make laws.

That is what govern – ments do.

There should be no magic to this.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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Section 007 – how the government authorises criminal activity by its agents, and a telling recent disclosure

16th December 2020

One theme in recent law and policy has been for the government of the United Kingdom to increasingly place itself and its agents above or beyond the law.

There is, of course, a certain hypocrisy in this given how loudly ministers shout about ‘Law and Order!’.

Sometimes this is done subtly, with limits on the scope judicial review, the law of human rights, and the entitlement to legal aid when one is challenging public bodies.

But sometimes it is done quite openly – indeed brazenly.

One example is the current attempt – which I explain in this video for the Financial Times – to make it effectively impossible to prosecute members of the armed forces for war crimes and torture.

 

Another attempt – though it has just been dropped – was to enable ministers to issue regulations that would break the Brexit withdrawal agreement.

And another attempt is the current Covert Human Intelligence Sources (Criminal Conduct) Bill before parliament.

The long title of the Bill expressly states that it is to:

‘Make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.’

The Bill provides for ‘criminal conduct authorisations’ which are defined as ‘authorisation[s] for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

On the face of the Bill there are no exempt criminal offences – and so, in theory, they would include murder, war crimes and torture.

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At this point one can imagine senior security officials with kindly faces and reassuring manners telling us that, of course, no such offences would ever be committed.

But.

It is a matter of public record that the United Kingdom state was complicit in the murder of civil rights lawyer Patrick Finucane in 1989.

The United Kingdom state has also been complicit in the torture of civilians, in Northern Ireland, Kenya and Iraq.

The sheer volume of accumulated historical evidence is that, yes, we really should be worrying our little heads about what the United Kingdom state and its agents are capable of when they think it can get away with it.

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And there is now a more up-to-date reason to be concerned about the lack of effective controls and accountability.

Here the relevant provision is the wonderfully numbered section 007 of the Intelligence Services Act 1994.

(Ok, it is section 7 – but it amuses me.)

This provides for ministerial authorisations for people to break the law outside the British and Irish isles and then not have any criminal or civil liability for those acts in the United Kingdom.

It is a remarkable and little-known provision, and is worth a good look.

This is the so-called ‘licence to kill’.

And, of course, senior security officials with kindly faces and reassuring manners will tell us that the power would never be abused, and that those granting the authorisations will only do so on the basis of full information.

But as set out in yesterday’s Guardian, there has been a problem.

This was spotted by the fine organisation Reprieve, hidden away on page 59 of a dense 168 page report, in two paragraphs 9.39 and 9.40 (emphasis added):

‘9.39 We reviewed a section 7 submission relating to a high-risk SIS [Secret Intelligence Service] agent case overseas. SIS identified a risk that the agent may be involved in serious criminality overseas. SIS did not encourage, condone or approve any such criminality on the part of their agent. In their submission, SIS set out that they had secured the agent’s cooperation on terms of full transparency about the activities in which the agent was involved. It included some clear ‘red lines’, setting out conduct that was not authorised and would result in the termination of SIS’s relationship with the agent.

‘9.40 On renewal, six months after the original submission, SIS set out a number of indicators that the agent may have been involved in, or have contemplated, the serious criminality referenced above. We concluded that, on the basis of this new information, SIS’s ‘red lines’ had most likely been breached, but the renewal submission failed to make this clear. Whilst the submission referred to SIS’s ‘red lines’ provided information about criminality that may have occurred and noted an increased risk in the case, it did not make expressly clear that SIS’s ‘red lines’ had probably been crossed. We concluded that the renewal did not provide a comprehensive overview of available information which we believe would have provided the Secretary of State with a fuller and more balanced picture. SIS immediately responded to these concerns by updating the FCO.’

Or, as the Guardian rightly put it:

‘MI6 failed to make clear to the foreign secretary that a “high risk agent” operating overseas had probably engaged in “serious criminality” until it was pointed out by an independent regulator last year.’

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This means that there is very recent evidence that the United Kingdom security services do not provide appropriate information to those making authorisations in respect of criminal activity.

If this is happening with section 7 authorisations for foreign law-breaking, there is no reason to believe this will not also happen under the current bill providing for authorisations for domestic law-breaking.

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The United Kingdom government has recently put forward legislative proposals for limiting torture and war crimes prosecutions, authorising criminal conduct for agents of the security forces, and even for powers to break the Brexit withdrawal agreement.

There has never been a government that has put so much legislative effort into making it possible to break laws rather than into making laws.

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Remembering David Cornwell – John le Carré – who would not be surprised at any of this.

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The shoddy legal direction of Gavin Williamson to Greenwich Council

15th December 2020

Amidst the flurry of government regulations closing down various things during the current pandemic comes this very different legal instrument from Gavin Williamson, the Secretary of State for Education.

Instead of ordering a thing to close, the Secretary of State is ordering things to stay open.

It is an extraordinary letter, and it is worth examining carefully.

(As a preliminary point, however, please note I am not an education law specialist and so there may be sector-specific legal aspects of this of which I am unaware – the examination in this post is on general legal principles and based on my experience as a former government lawyer and as a public lawyer generally.)

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First, let us look at the power on which the Secretary of State relies upon.

It would seem there is no general legal power for the Secretary of State to order that any school remain open (or close), and so the letter relies on a specific provision in the Coronavirus Act 2020.

(If there were such a general legal power to issue such a direction, then presumably the Secretary of State would rely upon that power instead of the Coronavirus Act 2020.)

The relevant section of the Act is section 38.

The relevant part of that section is section 38(1)(a) which provides for a power to enable the Secretary of State to give directions requiring the ‘provision, or continuing provision, of education, training and childcare’.

That provision in turn refers to a paragraph in a schedule to the Act.

(This is not a ‘paragraph’ as such – it is a wordy provision which goes on for three pages, like something from a W. G. Sebald book.)

The paragraph sets out in detail the requirements for a ‘temporary continuity direction’ under section 38 – like a checklist.

For example, the Secretary of State must have regard to medical advice (paragraph 1(3)(a) and the direction must be necessary and proportionate (paragraph 1(3)(b).

The direction can require the recipient to take ‘reasonable steps in general terms’ (paragraph 1(4)(a)) and require a relevant institution to stay open or to re-open (paragraph 1(4)(b).

There is also a catch-all power that the Secretary of State may make any other connected provisions which he or she ‘considers appropriate’ (paragraph 1(4)(i)).

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What is the duty of the recipient of such a direction?

The Act provides that it is ‘the duty of a responsible body or relevant institution to which a temporary continuity direction…to comply with the direction’.

How is this duty to be enforced?

If the recipient does not comply with a direction, the government can make an application to the courts for an injunction.

(Both the above are in paragraph 1(6) of the schedule.)

This would, of course, be an unusual injunction – most injunctions prohibit a person from doing a thing, while this will be a rarer ‘mandatory’ injunction requiring a person to do a thing.

A failure to comply with an injunction is, at law, a serious matter and can be a contempt of court, with (presumably) sanctions such as imprisonment and unlimited fines.

A breach of a mandatory injunction may also result in a court directing that the required act be completed by another person at the expense of the disobedient party (CPR 70.2A).

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This looks like a wide and arbitrary power for the Secretary of State to give directions, with serious sanctions for a breach of a direction.

But if you look carefully there are explicit statutory requirements for the Secretary of State to be reasonable and to use this power only where necessary and proportionate.

These requirements are also imposed by the general law.

These will be quite high hurdles for the Secretary of State to jump.

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Going back to the letter, you will see that in paragraph 2 of the letter the Secretary of State asserts that he ‘considers [the direction] to be reasonable’ – but there is almost no reasoning other than a general reference to a general interest (‘of securing that schools…allow pupils to attend school full time’ ) and a general reference to the Secretary of State’s guidance (but with no specific guidance quoted).

There is also no local data.

Any court would expect to see far more reasoning than this before enforcing such a direction with a mandatory order.

For example, can the education of the pupils not be done remotely?

Has proper regard been made to local conditions?

Is it proportionate and necessary to mandate a school to remain open with only days left in the school term?

Is it fair and equitable (a test of most injunctions) to insist a state school remain open when many private schools remain closed?

These are not ‘gotcha’ questions, but points which one knows a court will ask before granting an injunction – and so should be anticipated and covered in a letter threatening an injunction.

But there is nothing in this letter to meet these obvious and foreseeable questions that would need to be answered in court.

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This direction then, even if it is the right thing for the Secretary of State to order, is not a well-drafted piece of legal work.

If i were still a government lawyer I would have been embarrassed to have prepared this for a minister.

It is not enough to assert that a thing is reasonable, necessary or proportionate – these statutory requirements for a direction also need to be shown.

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The recipient of this letter – Greenwich Council – has already published an initial response.

Their initial response is as detailed as the Secretary of State’s letter is not.

“Yesterday we asked all schools in the Royal Borough of Greenwich to move to online learning for most pupils, but keep premises open for the children of key workers, vulnerable children and those with special educational needs. 

‘Other boroughs have asked schools to take similar measures, and the Mayor of London has also called for all secondary schools to close, with an extra week off in January to enable testing.  

‘Our request was based on information from Public Health England and supported by the Council’s Public Health team. In the Royal Borough of Greenwich, we currently have the highest rates of COVID-19 since March, with numbers doubling every four days. Our seven-day infection rate for the borough is now 59% higher than at the same point last week. 

‘Infection rates are particularly high amongst young people, with 817 children of school age testing positive for COVID-19. 4,262 children and 362 staff are self-isolating – that’s an increase of 640 people since Friday. In many cases, other members of the child’s household have also tested positive, impacting entire families. 

‘Schools across the borough have now organised online learning from tomorrow, whilst others are opening their premises to all pupils. This evening we received a legal direction from the Government to withdraw our request to schools. We are in the process of seeking legal advice and will respond to the Government in the morning.  

‘We have alerted schools, and will speak to them tomorrow. But given we received this notification just before 5pm, it was impossible to ask schools to change any of the arrangements they have in place for Tuesday.’

The person(s) who drafted that response have done a good job: they are showing how the closure is reasonable, necessary and proportionate.

The response is based on local data and shows that reasonable alternative arrangements have been made.

The response also shows the council is in a better position to asses the situation than the Secretary of State.

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On the basis of information in the Greenwich Council response, the government would be hard-pressed to obtain an injunction in support of their direction.

None of the above is to say that the government’s ultimate position is weak – a better prepared direction, based on local data, and with proper and detailed reasoning, may have been – or still be – possible.

But such a direction letter was not sent, and this shoddy one was sent instead.

The Secretary of State may issue a better direction – or government lawyers may turn up to court with a better application for an injunction.

The government is even threatening to go to court ‘without notice’ so that the council may be subjected to an injunction without any say in court, which would be inappropriate given the council have set out already that it believes it is acting reasonably.

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Ministerial directions are powerful legal instruments, but they should always be used with care.

When I was young I often had reports sent from school averring that I could do better.

But here we have what purports to be a formal government direction sent to keep schools open where one could say of the Secretary of State that they could do better.

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POSTSCRIPT

Sadly – at least for the legal commentary (at least) the council has decided not to contest the direction in court.

The council, of course, is entitled to take such a decision.

But its decision to comply with the direction does not take away anything from the critique above.

*****

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European Union law and the United Kingdom – an obituary

14th December 2020

Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.

Please go over there to have a read – and I just want to develop and add some points here.

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European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).

By ‘radical’ I mean (literally) that it went to the root of things.

The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.

The impact of European Union was also to how one thought about law – and about policy and politics.

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First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.

This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.

And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.

And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.

As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.

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Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.

(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)

In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.

There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.

European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.

The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.

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Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.

And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.

This was a recurring mistake for United Kingdom politicians.

For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.

But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.

There were, however, real limits to what the European Union could agree to, at least without treaty changes.

And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.

The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.

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You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.

Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).

And this is partly because my own ultimate view on Brexit is ambivalent.

In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.

It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.

(And it did not.)

But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.

(And it has not been.)

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The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.

It is not going to be a neat clean break.

And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.

The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.

 Its influence, however, will continue for decades.

The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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