Category: Policy and Policy-Making

Sovereignty and ‘Sovereignty!’

11th December 2020

One feature of contemporary politics in both the United Kingdom and United States is the way descriptive words and phrases have become slogans with a very different meaning.

This blog has already described the unhappy juxtaposition between ‘Law and Order!’ and law and order – and we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law, while the populist government of the United Kingdom sought recently to expressly legislate that it could break the law.

And a similar distinction can be made about sovereignty and ‘Sovereignty!’.

In the United Kingdom it would seem that one explanation of the ongoing failure for a trade agreement to be finalised with the European Union is because of this ‘s’ word.

Here, as examples, are some recent tweets from the United Kingdom’s head negotiator.

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So what does this ‘s’ word mean?

From a legal perspective, sovereignty is really about two things.

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First, sovereignty is about the ultimate source of political power in any given polity.

In the United Kingdom, as its name suggests, the ultimate source of political power is the crown.

Some would say is not correct to even speak of the ‘sovereignty of parliament’ – the power of parliament to make or unmake any law always depends on a bill receiving royal assent.

Only with the crown’s approval does a law then have super-duper magical power.

Resolutions and motions of either or both houses of parliament may bind parliament but they do not have the same effect outside as legislation.

That is why I and others tend to write of ‘supremacy’ of parliament, not sovereignty.

The crown also is the source of political power elsewhere in the United Kingdom constitution.

It is the source of power – somewhat obviously – in respect of the so-called ‘royal prerogative’ – where the executive gets to do things which have legal effect without any legislative basis.

It is the source of power with ‘royal charters’, instruments which can have legal effects similar to legislation.

And the crown is the ultimate source of power for the judiciary, at least for the high court of England and Wales.

(This means that in constitutional terms, the two Miller cases on prime ministerial power can be characterised as being about the crown in the courts adjudicating on the powers of the crown as exercised by ministers so as to circumvent the crown in parliament.)

This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.

Just as parliament was always able to repeal the European Communities Act 1972, parliament will be able to make or unmake any law which flows from the post-Brexit relationship agreement, and that will be respected by the courts.

So this cannot be the meaning of sovereignty that Johnson and Frost have in mind.

Nothing in any post-Brexit trade agreement is relevant to this meaning of sovereignty at all.

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The second legal meaning of sovereignty is not so much about the source of power but about legal capacity.

A sovereign thing can do and not do as it wishes.

And one thing a sovereign thing can do is to enter agreements with other sovereign things.

This is where Johnson and Frost appear to misunderstand the ‘s’ word.

For them, ‘Sovereignty!’ means that the United Kingdom cannot and should not enter into and be bound by any international agreements.

But one test of sovereignty is that a thing is capable of entering into international agreements – the cart is not before the horse.

In general terms, being able to accept obligations is the very point of sovereignty: that a nation state can enter into a treaty means that it is a sovereign state.

(For more on the fascinating history of sovereignty and treaties, see here.)

This is why, for example, Canada, Australia and New Zealand insisted on being separate signatories to the surrender instrument of Japan, and to not allow the United Kingdom to sign on behalf of the then empire.

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Sovereignty thereby does not mean that the United Kingdom cannot and should not enter into international agreements.

Sovereignty means that the United Kingdom can do so.

And any international agreement means accepting obligations that restrict autonomy, for that is the nature of an obligation.

Under the North Atlantic treaty, for example, the United Kingdom has an obligation to go to war even if it not attacked itself. 

Article 5 of that treaty provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

Some would say that Article 5 of the North Atlantic treaty is a greater interference with the ‘s’ word of the United Kingdom than anything which has come from the European Union.

And it is difficult to reconcile many statements of government-supporting politicians on sovereignty in respect of the European Union with their continued support for the United Kingdom being part of NATO.

Similar points can also be made for the United Kingdom’s obligations under the United Nations charter and indeed under any other international treaties.

Trade-offs on autonomy are a feature and not a bug of being a sovereign state.

An analogy is with being able to marry: when a person reaches their majority they can enter into a marriage contract should they so wish, but being in their majority does not compel them to either marry or not marry, and if they marry they can always divorce.

The Johnson-Frost approach to the ‘s’ word is confused.

They seem to think sovereignty means that the United Kingdom cannot and should not enter into international agreements, whereas sovereignty actually means that the United Kingdom can do so should it want to do so.

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An indication of the United Kingdom government’s incorrect understanding of sovereignty was set out in a white paper earlier in the Brexit process:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

This is about “feelings” – not law or policy.

Brexit as therapy – so as to make the United Kingdom “feel” it is a sovereign state.

And this is the fundamental misconception of those who assert ‘Sovereignty!’ just to make themselves feel better.

Sovereignty exists anyway.

Sovereignty does not care about your feelings.

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The fundamental problem of Brexit is that a complex and slow task has been treated as easy and to be done at speed

10th December 2020

Three photographs summarise perfectly the course of the Brexit negotiations.

Few people will claim that the negotiations for the terms of the departure of the United Kingdom from the European Union and then for the terms of the future relationship have gone perfectly, or even well.

Is there a single cause for this?

Some would say that Brexit in and of itself could never have gone well – that for the United Kingdom to leave the European Union was a project that would always have ended badly.

That Brexit was misconceived to begin with.

Perhaps.

But a Brexit done slowly and gradually, over several years, with full acknowledgment of how complicated an exercise would have been possible (even if not desirable).

Also possible would have been a Brexit where the United Kingdom had properly worked out what it wanted from departure before starting the exit process.

But these things did not happen.

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For me, the most fundamental problem with Brexit is not so much the principle of departure but the constant underestimation by the United Kingdom government of what would be involved in a member state unravelling over 45 years of entwined law and policy.

The task was always going to be complex, and it was not one which could be done at speed.

But those in charge of United Kingdom policy have treated the task as if it were simple – David Davis winging it, Theresa May believing it would all be as easy as when she opted in and out of European Union policy areas as home secretary, and the slogans and bravado of Boris Johnson.

Taking back control, Brexit means Brexit, get Brexit done.

Of course, the terms of Article 50 itself did not help in this respect – with its envisaged brisk two year period – but this period was capable of extension, and indeed it was extended.

There was also the somewhat artificial distinction between the exit agreement and the agreement for the future relationship, and it would have been much better if there had been one overall negotiation and agreement.

Yet even taking those process points into account, the Brexit exercise would still have been botched because the United Kingdom government had not properly prepared and thought-through its Brexit policy before embarking on departure.

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Perhaps Brexiters thought – not without good reason – that any delay would mean a Brexit denied.

And so, unless Brexit was done at speed, it would not be done at all.

Perhaps.

But a Brexit delayed and maybe not done at all would have been preferable to this botched Brexit.

The complexity of Brexit will not go away because it is ignored and the process done at undue speed – the problems will just manifest themselves differently.

Brexit will never ‘be done’ – at least not for the rest of the 2020s.

Brace, brace.

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The fork in the road to Brexit – Boris Johnson has to choose between being irresponsible or being unprincipled

9th December 2020

The United Kingdom prime minister Boris Johnson has come to a fork in the road on his Brexit journey.

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One direction is for those who are irresponsible.

To take this route he has to go for ‘no deal’ – that is for the United Kingdom to not have a relationship in place with the European Union once the Brexit transition period ends on 31st December 2020.

This will mean no agreement on tariffs, or on the trade in services, or on security and information sharing, or on numerous policy areas not to do with fishing as well as fishing, or on regulatory equivalence and how any divergence is managed.

This would be an extraordinary disruptive change in our relationship with the European Union in just a few days from now.

But the irresponsible route has been taken before in the Brexit journey: a referendum without any preparation for a Leave vote; an Article 50 notification without planning or thought; and a refusal to extend the transition period when there was an opportunity to do so.

The ‘irresponsible’ route has been taken before: it has ‘form’.

One can imagine that route being chosen.

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The other direction is for the unprincipled.

To take this route Johnson has to renege on many things he has said he would not do.

He needs to accept the European Union’s unbending position on regulatory equivalence and on governance of the agreement.

And this will conflict with the things he has said to his political supporters and others on ‘sovereignty’ and limiting the reach of Brussels.

To now go against these commitments would be hypocritical

But this route also has been taken before in his Brexit journey: he wrote two columns, for and against, and made promises to the then prime minister before supporting leave; he voted against and then for the next prime minister’s deal; he accepted the withdrawal agreement on terms he had previously opposed; and he told the electorate he had an ‘oven ready deal’ before then legislating so as to break that same deal.

The unprincipled route too has been taken before and has ‘form’.

One can imagine that route being taken instead.

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Clever wags will, of course, respond to the title of this post with ‘both’.

But he cannot do both, not on this occasion.

While there are elements of irresponsibility and lack of principle in many actions he – and most other politicians – will take, there is a real and stark decision here.

A binary situation: either/or.

Johnson either accepts the terms on offer from the European Union, or he does not.

There may be other apparent routes: he could affect that the European Union has given in on something, or there could perhaps be (yet another) extension of the Brexit process.

But these deflections hide or delay the ultimate decision: no deal or a deal on the terms of the European Union.

The decision that is taken may perhaps one day seem to historians as inevitable all along.

But looking at it from the outside in early December 2020, it is genuinely difficult to work out which route this prime minister will take.

Both directions have the force of narrative behind them.

Both seem plausible next chapters in the book of Brexit.

So the question for our prime minister is: are you more irresponsible than unprincipled, or vice versa?

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Brexit, deal, no deal, and the politics of easy answers

6th December 2020

Today is a Sunday, one of the last Sundays of the year, and we still do not know if there will be a deal in place from 1st January 2021 for the relationship between the United Kingdom and the European Union.

One hand, there are three big pointers to a deal being possible: both parties want a deal, it is in the best interests that there is a deal, and both sides are still talking.

And it is still only the first week of December and, even taking the impending public holidays into account, there is still time for a deal to be finalised and even ratified if minds are focused and there is goodwill among all those involved.

But.

On the other hand, no amount of goodwill and focus will lead to a deal if the parties cannot agree on substantial issues.

There appears to be three issues of unresolved contention: fisheries, the ‘level playing field’ (that is, common and enforceable commercial and trade standards), and governance (that is, the ongoing enforceability) of the agreement.

Of these, it is difficult to believe that fisheries is really that significant – it is a relatively small commercial sector, and the parties have mutual interests in one side catching the fish and and selling the fish to the other.

A cynical person may think that the fisheries issue is only still prominent so as to provide domestic cover to the United Kingdom government against domestic political concern about the other two issues, which do go to  post-Brexit sovereignty and control.

Fisheries policy as a red herring.

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The trade agreement between the United Kingdom and the European Union was supposed to be so easy.

The then-international trade secretary said in 2017:

“The free trade agreement that we will have to do with the European Union should be one of the easiest in human history.”

His reasoning?

“We are already beginning with zero tariffs, and we are already beginning at the point of maximal regulatory equivalence, as it is called. In other words, our rules and our laws are exactly the same.”

What he missed, of course, is that one main purpose of an agreement would be about what happens after day one: how is equivalence maintained and any divergence managed?

Points so obvious it is painful to realise that an international trade secretary did not realise this.

A Brexit secretary once boasted it would be easy to put in place a free trade area ten times bigger than the European Union.

Leaving aside the fact that such an area would be larger than the world’s economy, and so presumably would include the Clangers and other extraterrestrials, the United Kingdom has actually ended up with a free trade area smaller than the United Kingdom – with a trade barrier down the Irish sea.

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It all seemed so easy, and it has it not turned out to be easy at all.

And this comes to the most basic problem with the United Kingdom’s approach to Brexit.

A complex problem has been treated as if it was a simple problem.

Any difficulty was to be met with chants of ‘Taking Back Control’ and ‘Get Brexit Done’.

The huge political and economic challenges of extracting the United Kingdom from forty-seven years of entangled and entwined law and policy was for the likes of Boris Johnson and Michael Gove no more difficult than writing a punchy 1100-word column against a slightly flexible deadline.

This is what often happens with populism – which (as this blog has said before) can be described as the promotion of easy answers in exchange for electoral support.

And so we have ended up with a month to go, with no idea what will be the agreed substantial and enforceable terms of trade between the European Union and the United Kingdom, and a real possibility that there will be no agreed terms of trade.

Brace, brace.

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The myths of ‘arrogant judicial power’ and ‘human rights gone mad’ and the Dolan judgment

5th December 2020

A ‘myth’ is often a word we use to describe a thing we disagree with.

But sometimes the word has its uses.

Some things are believed in as true without evidence or despite the evidence.

Take the example the prevalence in modern politics of two views about the relationship between the courts and politics.

The first view is that there is an over-reaching judiciary: that judges are often deciding matters of policy and other political questions against the government and parliament.

The second view is that the law of human rights has ‘gone too far’ and beyond the limits of common sense.

And now take the Dolan case on the legality of the coronavirus lockdown regulations, which this blog considered yesterday.

This was a case where the government had, in effect, legislated by decree – without any prior parliamentary scrutiny and approval – so as to remove fundamental rights of movement, of assembly, of public worship, of being able to trade lawfully and so on.

These widest possible blanket prohibitions one could imagine, all done with no real consideration of the proportionality of each measure and with no accountability.

Law and policy as sledgehammer.

If there was ever a case where there should be anxious scrutiny of the use of delegated legislation this was it.

The courts would surely surely step in, where the legislature had been sidelined.

After all, we have an over-reaching judiciary and human rights law is powerful.

Of course not.

Both the court of appeal and the court of first instance could not have sided more with the executive if they had wanted to do so.

Each fundamental right was a mere tick box for the court to approve the interference by the state.

The reasons for this outcome are familiar to anyone with a detailed interest in public law.

Our courts are invariably deferent to the executive on matters of policy.

The few cases where the government is defeated often turn on their own extraordinary facts.

And human rights law in the United Kingdom is weak and usually impossible to rely on in any practical case.

Almost all the rights under the European Convention on Human Rights, for example, are ‘qualified rights’, which mean that it is not difficult for an executive to interfere with those rights when it says it is in the public interest to do so.

And so the most illiberal legal measures in peacetime could be imposed by the government without prior parliamentary scrutiny and approval, and the courts could not nod any harder at the government doing this.

(My own view, as I set out yesterday, is that even if the individual measures were warranted at a time of a public health emergency, the measures should have been done via Civil Contingencies Act, which provides for detailed legislative and judicial oversight, and not through the Public Health Act which meant no real legislative and judicial oversight at all.)

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There is a famous statement by a judge in a case during the second world war – a statement which every law student knows.

This is Lord Atkin in Liversidge v Anderson:

‘In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’

But what most law students also forget is that this was said in a dissenting judgment: Lord Atkin was in a minority.

The depressing fact is that in England there is often almost little to nothing the courts can or will do against executive action, even when there is no prior parliamentary approval for the measures imposed.

Courts and judges are far better at finding reasons not to intervene than to do so.

If the Human Rights Act, for example, had a quarter of the power which its populist detractors accuse it of having, the Dolan case would not have been so one-sided.

Yes: it was a public health case, but that should make a court more anxious in its scrutiny of emergency legislation, not less.

To paraphrase Lord Atkin: amid a pandemic, the laws should not be silent.

Those who promote the views that there is an over-reaching judiciary and that the law of human rights has ‘gone too far’ do not care about this, of course.

For these cherished views are their myths, and so they will stick with them.

But these views are, in fact, fantasies.

We do not have an over-reaching judiciary and the law of human rights has not ‘gone too far’ – and the Dolan case shows this.

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Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

4th December 2020

A few days ago the Court of Appeal handed down its judgment in the Dolan case.

This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.

The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.

There are a couple of things in the judgment that are interesting from a liberal perspective.

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First, it was the approach of the court to the exercise of a freedom.

The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.

This is the sort of liberty emphasised by those who trumpet freedom under the common law.

The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.

For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.

Here is the court’s reasoning on freedom of movement.

And then on freedom of assembly.

To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.

The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.

Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.

And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.

That a person was never free to do anything, only to have the reasonable permissions of the authority.

What could possibly be wrong with that?

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In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.

Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.

On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.

The government, of course, chose the latter.

And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.

At paragraph 77 of the judgment:

“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”

The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.

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None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.

This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.

Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.

A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.

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Brexit makes no legal difference to the United Kingdom being able to authorise the new coronavirus vaccine

3rd December 2020

For the launch of any vaccine, credibility is essential.

And so senior government ministers and other politicians should not be lying about the regulatory aspects of the new vaccine so to score points for Brexit.

This is the Leader of the House of Commons, the cabinet minister responsible for the government’s legislative programme.

https://twitter.com/Jacob_Rees_Mogg/status/1334068994345754625

This is a health minister.

And this is a government-supporting backbencher.

You will see these statements are not about Brexit allowing the United Kingdom to authorise the new vaccine more quickly as a matter of policy.

Each statement directly and expressly attributes the speed of the authorisation to a change in the law made possible by Brexit.

This, however, is false.

The Medicines and Healthcare products Regulatory Agency confirmed yesterday it was acting under EU law when it it made the authorisation.

Even the Prime Minister did not endorse the claim that Brexit made any legal difference.

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The fact is that Brexit made no legal difference to the authorisation of the new vaccine.

Such an authorisation was (and is) possible under European Union law.

The relevant provision is Article 5(2) of the Directive 2001/83/EC.

Here is the proof in back and white.

European Union Directives do not necessarily need to be implemented to have legal effect, but for completeness the implementing domestic legislation for Article 5(2) is Regulation 174 of the Human Medicines Regulations 2012.

Until 31 December 2020 under the Brexit transition arrangements, Article 5(2) has legal effect in the United Kingdom – and even after 1 January 2020 Regulation 174 would still be part of domestic law.

Brexit therefore made no legal difference.

So what is the recent amendment mentioned by the politicians?

That appears to be a reference to the The Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2020.

But those regulations do not amend or directly affect Regulation 174 – you will see they skip straight over it and add supplementary provisions.

The recent amendment is thereby irrelevant to the legal ability of the United Kingdom to authorise the vaccine.

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The cabinet minister responsible for the government’s legislative programme and health ministers would know that Brexit made no legal difference to the United Kingdom’s ability to authorise the new vaccine.

They would know the correct legal basis for authorisation of the new vaccine: that is their job and they would have been briefed.

But they chose to knowingly promote a falsehood instead, just to score a point for Brexit.

This was dangerously irresponsible, given that any false statements about the new vaccine may be exploited by anti-vaxxers.

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Why today’s deportations to Jamaica are nothing for the Home Secretary to be boastful about

2nd December 2020

There are many illiberal and misconceived things going on that a blog like this, which offers commentary and context on just one law and policy thing a day, cannot keep up.

But one especially brutal and unfortunate thing is to take place later today.

There is set to be a deportation flight from England to Jamaica, which will take place notwithstanding the ongoing covid pandemic and in the run-up to Christmas.

Those being deported are people with criminal convictions who have served their sentences but, because they are (in some cases only technically) foreign nationals, they are now to suffer this further sanction of the state.

The deportees include those with families and children in the United Kingdom – and so the Home Office are depriving children of parents and partners and other dependents of potential breadwinners.

The deportees include those who came to the United Kingdom as children and have no real connection with Jamaica.

One aspect of this deportation that is especially worrying and distasteful is the sheer glee that the current Home Secretary and it seems Home Office officials are taking in this exercise of sheer state power.

‘We make no apology…’ are the first four boastful words of the Home Office statement.

The Home Secretary herself is using this to make party political points.

 

There is no sense of ‘more in sorrow than…’ and that it is unfortunate but somehow must be done.

Instead, Home Office politicians and officials seem to be revelling in it, with the attitude of ‘look what we can do’.

They also appear to want as many legal interventions as possible, so that they can have the added bonus of pointing to meddlesome ‘activist’ lawyers.

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The impression the affair gives is not one of reluctant necessity but that this is a propaganda stunt – and one which comprises detaining people, marching them in handcuffs, using coercive power to send them to countries that are not their homes, and inflicting damage to innocent children and families.

Again, during an emergency pandemic and in the run-up to Christmas.

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The justification that the Home Office politicians and officials will give to themselves and others for this is that the criminals brought it upon themselves, and so the politicians and officials are absolved from any blame.

Yet this deflection is not convincing.

First, it is not justice to inflict double or disproportionate penalties – all because a crime has been committed, that does not mean ‘anything goes’ for the state in retaliation.

Second, this is an exercise of discretion by the Home Office – a deliberate choice, not an automatic process.

And so the Home Office is choosing to prioritise deportations above the very real effect of depriving families and partners – and remember, the families, dependents and partners have not committed any crime but they will suffer and be damaged anyway.

Third, it is notable that there seems to be no trumpeting by the home office of deportations to other commonwealth countries such as Canada, New Zealand and Australia – and this is perhaps for the obvious reason.

Fourth, the Home Office policy of the hostile environment and its treatment of Windrush families demonstrates that it is not well placed to make sensible decisions in respect of families from the Caribbean – and it would be wise for the Home Office to step back from such coercive moves as this deportation until it gets a wider policy grip.

And fifth, to the extent that those convicts who have been released from sentences remain ‘dangerous’ then the question must be why they have been released from prison.

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This deportation is an ugly spectacle, and it is one which nobody involved can take pride.

And the fact that there will be those who nod and clap and cheer at this brutal exercise of sheer state power tells us more about our society than anything about the families that are about to be forcibly broken up, so that the Home Secretary can tweet her party political ‘owns’.

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Why the phrase ‘to enshrine in law’ is a fraudulent device

25th November 2020

Every so often the demand is made by a politician or someone in the media that a thing be ‘enshrined in law’.

The impression that they wish to promote is of absolute seriousness – that the thing will somehow be set out in law in a way that will ensure its preservation and enduring respect.

A super-duper way of using law.

But this is an untrue and misleading impression.

In the constitution of the United Kingdom, by reason of the doctrine of parliamentary supremacy, there is not a thing that can be ‘enshrined’ in law.

A thing set out in an Act of Parliament can be repealed and amended by another Act of Parliament.

Or a way can be found of frustrating or circumventing the statutory provision.

And often there is not even a need to repeal or amend, or to frustrate or circumvent, because there is no real enforcement mechanism for the enshrined thing.

The notion that a thing can be ‘enshrined in law’ is a fraud.

*

To take a topical example, the International Development (Official Development Assistance Target) Act 2015 provides for a statutory target of 0.7% of gross national income is sent on overseas aid.

Section 1(1) provides:

“It is the duty of the Secretary of State to ensure that the target for official development assistance (referred to in this Act as “ODA”) to amount to 0.7% of gross national income (in this Act referred to as “the 0.7% target”) is met by the United Kingdom in the year 2015 and each subsequent calendar year.”

Looks impressive.

But.

But what section 1 provides is weak even on the face of the Act, as section 2(3) provides wide exceptions:

“(a) economic circumstances and, in particular, any substantial change in gross national income;

(b) fiscal circumstances and, in particular, the likely impact of meeting the target on taxation, public spending and public borrowing;

(c) circumstances arising outside the United Kingdom.”

And if an exception is invoked, the consequence of not meeting the target is that the government must try to meet the target next year, and so on.

Yet even these exceptions do not matter…

…as section 3 explicitly robs the entire duty of any legal usefulness whatsoever:

“(1) The only means of securing accountability in relation to the duty in section 1 is that established by the provision in section 2 for the laying of a statement before Parliament.

(2) Accordingly, the fact that the duty in section 1 has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.”

The duty supposedly ‘enshrined in law’ expressly has no legal effect.

‘Enshrined not in law’ would be more accurate. 

Yet politician after politician, and activist after activist, will parrot the line that the 0.7% spending commitment is ‘enshrined in law’ as if that actually means something in any legal sense.

(A similar thing happened with the various attempts to ‘enshrine’ in law the date of the departure of the United Kingdom from the European Union.)

*

A possible defence of the term ‘enshrine in law’ may be that it is a mere turn-of-phrase – verbal filler for those in politics and the media.

But this defence does not wash.

The term is invariably used to raise false expectations as to whether a thing will have enhanced legal protection – and as such it is a fraudulent device, as it will not.

And it leads to statutes being enacted, such as the the International Development (Official Development Assistance Target) Act 2015 that are nothing other than glorified press releases – and this is a misuse, even an abuse, of law.

‘To enshrine in law’ is a phrase which usually means the law is to be used for a non-legal purpose so as to mislead voters and readers (or listeners or viewers, depending on the medium).

*

By reason of the doctrine of parliamentary supremacy, it is impossible to ‘enshrine’ anything in law in any meaningful way.

Entrenchment is not available.

And by reason of parliamentary drafting, it will often be that the supposedly enshrined thing has no legal consequence.

There should therefore be a general prohibition on politicians and those in the media misleading others with the fraudulent device of saying a thing can be ‘enshrined’ in law…

…if there was only some way of entrenching such a ban.

**

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Biden, Brexit, and the politics of process

24th November 2020

Process is the friend of President-elect Joseph Biden.

As long as the States duly certify their votes, and the Electoral College then duly votes in accordance with those certifications, and Congress then duly accepts the Electoral College result, there is little Biden really needs to do so as to become President of the United States on 20 January 2021.

Unless something extraordinary happens, Donald Trump will cease to become President on 20th January 2021 by automatic operation of the Constitution of the United States.

Process is his friend.

There is, of course, still litigation and political pressure from the Trump campaign.

(And it is testament to the lack of confidence many have in the integrity and independence of the currently composed Supreme Court of the United States that many can easily imagine at least two or three of the Justices voting in favour of the side of Trump in any election case before that court, regardless of the merits of that case.)

None of the current litigation, however, really adds up.

Indeed, the lawyering in some of the cases brought by the Trump campaign has been unimpressive.

And even if each of these cases are taken at their highest, it is not conceivable that it would ‘flip’ the result in a single State, let alone the entire presidential election.

Understandably, many are still anxious as to whether Trump will really go, and are concerned that some grand litigation trick may keep him in the White House after 20 January 2021.

After all, many strange things have happened in the United States (and the United Kingdom) since 2016.

But here it looks like process will prevail.

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Process is the enemy – the negation – of the disruptive approach to politics of Trump and Bannon in the United States and of Johnson and Cummings in the United Kingdom.

That approach to politics prioritises mobilising a political base so as to enable those in political power to govern without checks and balances.

And as such, both politics and policy becomes a sequence of gestures, expediences and contrivances.

Process is an alien concept to this approach of constant disruption.

*

Take, for example, Brexit.

In approaching the negotiations of the exit agreement and then of the subsequent relationship on trade, the European Union has been dull, methodical, and relentless.

The United Kingdom, on the other hand, has constantly sought to rely on bluster and bullying, but at each stage has been at a disadvantage.

Johnson and others prioritised playing to their political and media constituencies over engaging properly in a structured negotiation process.

They have received claps and cheers, but those claps and cheers have quickly faded and are becoming less loud and enthusiastic each time.

Process has been the friend of the European Union over Brexit, just as process is now the friend of Biden in the United States.

This is not to say that process was always going to favour the European Union (even though the Article 50 procedure is rigged against the departing Member State).

The United Kingdom can also be rather good at the politics of process, when its political leaders take process seriously.

But throughout Brexit, a distrust of ‘Remoaner’ expertise and experience meant that United Kingdom did not have the benefit of those who were the match to the procedural politicians of the European Union.

Think of Ivan Rogers, among many others.

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The populist nationalist authoritarian politics of Trump and Johnson, and of Bannon and Cummings, has shaken many liberals and constitutionalists.

Disapproval and tuttery has no effect; conventions are disregarded; inconvenient laws are circumvented and even sometimes broken.

It is akin to a wild animal loose in a village.

The unpredictability and noise and damage is unwelcome.

But, just as there are advantages for those who promote this destabilising approach to politics, there are also weaknesses.

And one of those weaknesses is that it cannot easily deal with process, if that process survives the attempts to disrupt it.

But.

The scary thing is when populist nationalist authoritarians master the political arts of process, rather than the lesser political arts of disruption.

We are (relatively) fortunate: Trump will soon no longer be in office; Bannon and Cummings are both no longer in central political positions; and Johnson now seems politically weak.

The next wave of populist nationalist authoritarianism in the United States and the United Kingdom may be harder to dislodge.

**

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