Category: Policy and Policy-Making

Removing all the European Union law in the United Kingdom may be a practical process on which the sun will never set

8th November 2022

Back in August 2016, a month-or-two after the Brexit referendum, I wrote the following at the Evening Standard:

“So extensive are the EU ties which bind the UK that they take at least a political generation to untangle. Gus O’Donnell, the former head of the UK civil service, has pointed out that it took Greenland, with a population less than Croydon and with only the issue of fish, three years to leave the old EEC. And in the Eighties the EEC was a far less complicated entity than the modern EU.

“Thousands of UK laws — nobody knows exactly how many — are based on EU law. Many of these laws only have effect because of the European Communities Act, which would need repeal or substantial amendment. Some of the laws have effect without any UK-implementing measure.”

The phrase I want to emphasise here is “nobody knows how many”.

Six years later, still nobody knows how many laws of the United Kingdom are based on the law of the European Union.

*

This situation has to come to prominence because of the daft notion of the current government that somehow all the laws of the United Kingdom are based on the law of the European Union can be identified and replaced at speed.

The entire exercise is ludicrous, as well as probably impossible.

The idea can only have been conceived by someone with no real idea of how entangled domestic and European Union law was by 2016 (or 2019-2020, when we actually departed in practice).

It is not a question of simply going to a database and using the right search terms – say to find all the regulations made under section 2 of the European Communities Act 1972.

Even with those regulations many were revoked or amended other regulations –  so that, without considerable time, you would never know the full extent of the entanglement.

Regulations were also made under other statutes, and much European Union law took effect without needing any local enactment at all.

And the important thing to note is that at the time – 1973 to 2016 – nobody ever thought the whole thing would need to disentangled, and so nobody thought to keep any track of it.

This is why, with the hurried departure of the United Kingdom after the referendum, the whole problem was kicked into the the future with the notion of “retained European Union law”.

Such a disentanglement could not be done at speed before departure, and for the same reason the disentanglement cannot be quickly done now.

It matters not that some politician confidently asserts that “something needs to be done” by some artificial “sunset” date.

And to the surprise of nobody who knows about European Union law, entire tranches of European Union law are still being found:

*

It will take a long time – perhaps decades, perhaps never – to unwind all the European Union law that had effect in the United Kingdom and replace or revoke it.

That is not a pro- or anti- Brexit statement, but the simple fact of the matter.

Some of these laws were championed by the United Kingdom when a member state of the European Union.

Some of the laws were hard-fought triumphs by United Kingdom ministers and officials.

Some of the laws are good and beneficial, and some are not good and need removing.

But this can only be done on a slow, methodical law-by-law basis.

As I averred back in August 2016: it may take at least a political generation.

The moment this is realised and accepted by the current government then we may be moving into a practical rather than an ideological understanding of our post-Brexit predicament.

That realisation, however, may itself take a political generation.

It is even likely to be a process on which the sun will never set.

***

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What does the Home Secretary mean by “taking legal advice into account”?

All Souls Day, 2022

What does it mean for a home secretary to “take legal advice into account”?

*

This question is prompted by statements by the home secretary to the House of Commons in respect of the escalating problems at the Manston asylum processing centre.

On Monday she told members of parliament:

“…I have never ignored legal advice.

“As a former Attorney General, I know the importance of taking legal advice into account.

“At every point, I have worked hard to find alternative accommodation to relieve the pressure at Manston.”

*

So whatever “taking legal advice into account” means, it does not – for her – mean “ignor[ing]” that advice.

The home secretary herself makes that distinction and juxtaposition.

*

The home secretary also said in her prepared statement:

“As Members will be aware, we need to meet our statutory duties around detention, and fulfil legal duties to provide accommodation for those who would otherwise be destitute.

“We also have a duty to the wider public to ensure that anyone who has entered our country illegally undergoes essential security checks and is not, with no fixed abode, immediately free to wander around local communities.”

Note that “also”.

*

Those quotations are from her prepared statement, but in response to an opposition question she then also stated:

“I have not ignored or dismissed any legal advice with which I have been provided.

“I cannot go into the details of that legal advice because of the Law Officers’ convention.

“That is part of the decision-making process that all Ministers go through.

“We have to take into account our legal duties not to leave people destitute; I have to take into account the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”

*

Again the distinction is made with ignoring advice, but you will also see that taking into account legal advice is now set against other (competing?) things for her to take into account: “the fact that I do not want to prematurely release hundreds of migrants into the Kent community; I have to take into account value for money; I have to take into account fairness for the British taxpayer.”

These factors are presented as being alongside – and perhaps of at least equal importance to – “tak[ing] into account our legal duties not to leave people destitute”.

*

The home secretary in another reply said:

“I confirm that I have not ever ignored legal advice.

“The Law Officers’ convention, which I still take seriously, means that I will not comment on the contents of legal advice that I may have seen.

“What I will say is this: I am not prepared to release migrants prematurely into the local community in Kent to no fixed abode.

“That, to me, is an unacceptable option.”

The impression one gets from this further reply is that her not being “prepared to release migrants prematurely into the local community in Kent to no fixed abode” is not merely a factor to consider alongside any legal advice, but is actually the determining factor.

She seems to see that as the “unacceptable option” to which all other factors presumably, including legal advice, must yield.

If so, this accords with the “also” passage in her prepared statement.

*

On Sunday, the day before that commons statement, the well-connected political journalists at the Sunday Times reported:

“Suella Braverman has been accused of failing to act on legal advice that the government was illegally detaining thousands of asylum seekers. The move could cost taxpayers an expensive court action.

“The home secretary received advice at least three weeks ago warning that migrants were being detained for unlawfully long periods at the Manston asylum processing centre in Ramsgate, Kent. According to five sources, Braverman, 42, was also told that the legal breach needed to be resolved urgently by rehousing the asylum seekers in alternative accommodation.

“Two sources said she was also warned by officials that the Home Office had no chance of defending a legal challenge and the matter could also result in a public inquiry if exposed.

“A government source said: “The government is likely to be JR’d [judicially reviewed] and it’s likely that all of them would be granted asylum, so it’s going to achieve the exact opposite of what she wants. These people could also launch a class action against us and cost the taxpayer millions.””

*

On Hallowe’en, ITN reported this further information:

If this ITN report is correct – and it is certainly plausible – this would explain why so many home office “sources” are aware of this issue.

As this blog has mentioned before, it is a significant but not unknown step to go to the Treasury Devil – James Eadie, the government’s senior external legal adviser – for an opinion, especially before any actual litigation.

(You may recall that the Devil was invoked in another matter involving the current home secretary when she was attorney general.)

For the Devil to be invoked and for the advice just to come back as reinforcing the internal home office advice would have been rather the setback for the home secretary.

It would have meant that not only did she have advice before her which was unwanted from internal lawyers, but that the unwelcome advice had been upheld by the most senior external lawyer available to the government.

*

If so, what is a home secretary to do?

One thing a home secretary can do is to comply with legal advice,

That is what is expected by the ministerial code and, indeed, by the principle of the rule of law.

Of course, there will be situations – especially in respect of exercises of discretion in individual cases – where legal views may legitimately differ, and so a minister can take a view in respect of litigation risk.

But that latitude is not there in respect of compliance with general statutory duties.

The only option with a statutory duty for a government department is to comply with that duty.

*

Now we go back to what the home secretary said, and what she did not say.

The home secretary said that she did not “ignore” legal advice.

And the home secretary said that she took legal advice and legal obligations “into account”.

But the home secretary has not said – expressly – that she complied with the legal advice.

If the home secretary had complied with the legal advice she could simply say “I have complied with the legal advice”.

But she has chosen not to do so, and has used what seems to be evasive wording instead.

The most plausible explanation for this is that she has not complied with the legal advice.

Given the nature of statutory duties, it is not clear how this can be done.

They tend to be legally binary: you either comply or you do not comply.

They are not an item in a basket with other items.

*

In the house of commons today, an opposition politician said:

“The Prime Minister promised integrity, professionalism and accountability in Government. His Home Secretary has leaked information, is overseeing chaos in the Home Office and has broken the law. What will she actually have to do to get the sack?”

[An earlier version of this post wrongly attributed this quote to the leader of the opposition. This was not the case, and I have amended this post accordingly. I apologise for this error.]

She would not have said “broken the law” lightly.

Perhaps she was referring to something else (and please let me know in the comments below if you think that was the case) but the impression I formed was that she was referring to the Manston situation.

The leader of the opposition then asked the prime minister:

“Did the Home Secretary receive legal advice that she should move people out—yes or no?”

When this question was not directly answered, he then said:

“I think the answer to the question of whether the Home Secretary received legal advice to move people out of Manston is yes.”

*

Presumably the legal advice to which the leader of the opposition was referring is the same legal advice which was provided by the Devil and internal legal advisers.

If so, then it seems that that the home secretary has placed a non-legal factor above compliance with the law.

She has decided that the non-legal factor prevails.

In doing so, the home secretary presumably thinks that this weighing exercise means that she has not “ignored” the legal obligation.

Instead, she has seemingly given less weight to that factor than to another factor.

If this interpretation is correct then it accords what she told the house of commons on Monday and it also accords with what the home office “sources” are saying to reporters.

I cannot think of any other interpretation that accords better with the available information.

(If you can, please do set it out below.)

The problem with this position would be that the relevant legal obligations are not just another item in a basket.

Instead, it is the breaking of those legal obligations that should be the “unacceptable option” to any home secretary, and indeed to any minister or official.

But this home secretary appears to think there is an option that trumps such compliance.

*

For the reasons set out above, it seems that the home secretary was advised to comply with the law and she has chosen not to do so, maintaining that “taking account” of the law in such a situation is somehow not to “ignore” the law.

That would be a remarkable position for the home secretary to adopt and, if so, one would expect the courts to take a different view if the matter is actually litigated.

***

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A close reading of Suella Braverman’s account of her unauthorised email

All Saints’ Day, 2022

On Wednesday 19 October 2022, at 4.55pm, the then (and now again) home secretary Suella Braverman tweeted her resignation:

*

The resignation letter contained the following passage:

“Earlier today [ie, the Wednesday], I sent an official document from my personal email to a trusted parliamentary colleague as part of policy engagement, and with the aim of garnering support for government policy on migration.

“This constitutes a technical infringement of the rules.

“As you know, the document was a draft Written Ministerial Statement about migration, due for publication imminently.

“Much of it had already been briefed to MPs.

“Nevertheless it is right for me to go.

“As soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary.”

*

Those sentences largely speak for themselves and so do not need much of a gloss.

But do note that last sentence: “As soon as I realised my mistake, I rapidly reported”.

Not just “as soon as I realised” but also “rapidly reported”.

Read that sentence carefully.

The image that the author of that letter wishes to convey here is striking: the author acted quickly, and by the author’s own initiative.

*

Now let us turn to another text by the same author.

This is the further letter sent by the author, this time to the Home Affairs Select Committee yesterday.

You can read this letter in HTML and in pdf.

This further letter is longer than the first letter, at six pages with a one page appendix.

Pleasingly it has numbered paragraphs, which rather makes it look like a court pleading or statement of case, but also makes it easier to navigate our way around – and so where relevant I will refer to the relevant paragraphs in brackets as [Para (x)].

Now let us have a close look.

*

We are not told the reason for this letter: it seems not to be a letter that has been requested by the Committee or required by any provision or resolution.

It appears thereby to be a volunteered and unsolicited account of the circumstances of the resignation – and this is reinforced in the letter:

“Given the level of speculation about the sequence of events that led to my resignation, including several inaccuracies, herewith is a detailed account about the circumstances of my resignation. I know how important the issues being raised are, and that is why I want to be fully transparent with Parliament and specifically with your Committee.” [Para 3]

As there was no request or requirement for creating and publishing this text, it is not clear what the motivation is for the creation and publishing of the text.

One possibility is that it is an attempt by the home secretary to frame and spin certain content of the letter that may come into the public domain by some other means.

*

Contained in this further letter is the following information about what was emailed.

The letter tells us about a written ministerial statement to be laid in parliament on the Thursday (the day after the email and then the resignation). [Para 4]

The letter also tells us that the statement was connected to the Office of Budget Responsibility forecast in respect of the then expected fiscal statement on 31 October 2022, and this indicates the possibility of the statement having some market sensitivity. [Para 4]

On the Tuesday (the day before the email and the resignation) the statement was a four-page document in near-final form. [Para 5]

The statement, we are told, “contained high level policy on illegal migration and legal migration proposals” and that it “consisted of high-level proposals for liberalising our migration rules under the Points Based System for workers, for example increasing the number of low-skilled foreign workers, as well as general plans for controlling illegal migration”. [Para 6 and 8]

(The hyphen comes and goes for “high level” and “high-level” for some reason.)

We are not told the statement’s security classification, though we are assured it was not “SECRET” or “TOP SECRET”. [Para 7]

We are also told that the statement did not contain “any information relating to national security, the intelligence agencies, cyber security or law enforcement. It did not contain details of any particular case work. It did not contain any market-sensitive data as all the data contained in the document was already in the public domain.” [Para 7]

That last sentence is curiously worded.

It is carefully limited to “data”.

If there was nothing in the statement which was market sensitive then the obvious thing to say would be to say there was no information which was market sensitive.

The author could have then just added “market sensitive” to the information listed in the preceding sentences.

But the author chose not to do this.

There are many kinds of market-sensitive information other than data – for example, how the data was to be used and what models or assumptions were to be employed.

But the denial is limited carefully to “data”.

We can only wonder why.

*

The draft statement was incomplete.

There were “some sentences which had not been fully agreed by all departments” and there was to be a meeting at 1pm that Wednesday of the relevant sub-committee that was to agree a final version. [Paras 6 and 9]

Given the mention of the Office for Budget Responsibility, one of the departments would presumably have been the Treasury.

*

At 7.25am the author used her personal email address to email the draft incomplete statement to the government backbench member of parliament John Hayes. [Para 12]

The covering message was:

“Dear John, What do you think? I’ll need to take a view this morning by 10am.” [Para 12]

What did he think of what?

Presumably the request was for his thoughts on the proposed amendments in the text from other departments, as he would know from previous briefings the position of the author.

This would accord with the 10am deadline, which would allow the author time to consider Hayes’ views in advance of the 1pm cabinet committee meeting.

We are then told about how the email was sent with an unintended recipient:

“I addressed it to Sir John’s parliamentary email and intended to copy his secretary’s parliamentary email address. However, I entered the incorrect email address for his secretary unintentionally and unknowingly.” [Para 12]

*

Hayes did not reply by 10am, but somebody else did.

This unexpected reply was at 8:34am:

“‘This has been sent to me in error.’ I did not recognise the person who had sent this message, but noted that it was from a parliamentary email address with a similar name to Sir John’s secretary.” [Para 14]

The author then tells us that at “before or around 10am” she saw this 8:34am message from the unintended recipient.

The “before” here is vague.

Nonetheless, “[t]his was the moment that I realised that I had made a mistake by sending it to an unintended recipient.”

When was that moment?

The “before” could mean any time between 8:34 and 10am.

And what did the author decide to do?

Two things.

*

First, the author sent an email at 10:02 to this stranger:

“Please can you delete the message and ignore. Thanks”.

Note that at this point the author says she does not know the recipient – just that it is someone with a similar name to the intended recipient.

Note also the author does not ask the recipient to confirm deletion, and just leaves it with it with a mere “Thanks”.

Perhaps she thought that was which was needed, and that is all that would come of it.

*

The second thing we are told the author decides to do is “that I would inform my officials as soon as practicable”.

This term “as soon as practicable” is also vague.

But whatever it means it does not mean promptly or immediately, or indeed “rapidly”.

As it happens, the author does not seem to inform her officials for quite some time.

This is even though she is, on her own account, located at the Home Office. [Para 17-18]

*

At 11:31am, the Chief Whip sends a WhatsApp message to the author asking her to speak to Andrew Percy, the member of parliament to whose assistant the email had been unintentionally sent.

The author tells us she did not see this message at the time.

*

At 11:33am Percy emailed the author as follows:

“Suella

“I am really not sure that government documents should be being shared with members of your former campaign team via gmail.

“Can you tell me what the Ministerial Code says on this and what the processes are in the Home Office for the sharing of sensitive government documents via gmail.

“Simply asking my team to delete this email and ignore it is not an acceptable response to what appears, on the face of it, to be a potentially serious breach of security.

“I am considering a point of order on this issue and have raised it with the Chief Whip.

“I hope an explanation will be forthcoming. You are nominally in charge of the security of this nation, we have received many warnings even as lowly backbenchers about cyber security.

“Andrew Percy.”

The author claims not to have seen this Percy email at the time, and the Percy email is only quoted later in the letter which gives an impression that it was a later development.

Indeed, both the Chief Whip’s message and the Percy email are deftly inserted in this further letter outside of the strict chronology of the day’s events, and so it is not obvious on first reading how early in the day’s events they had been sent.

*

By 11.50am there is no indication that the author has informed her officials when she encounters the Chief Whip and Percy. [Para 19]

We are then told of a coincidence.

“At 11.50 in Members’ Lobby, and by coincidence, I saw the Chief Whip and Andrew Percy MP. The Chief Whip asked me to speak to Mr Percy MP. He told me that my email had been received by a member of his parliamentary staff. He was concerned about my having sent the email to Sir John and to his staff member.” [Para 19]

She then gives an apology (to which we will return), but there is still no indication that she had informed her officials.

This is now nearly two hours after her “Thanks” email and three-and-a-half hours after the 8.35am email alerting her to the mistake.

On her own account, it is only at this point she knows who the email was sent to – for at 10:02 she had not known who the recipient was and assumed that whoever they were they would just delete it as requested (without confirmation).

*

It is now noon:

“At midday I decided that I would not attend PMQs as planned, so that I could take action regarding my mistake. I returned to my parliamentary office. This was the first opportunity I had had to communicate in full what had happened.” [Para 21]

*

The “in full” here is doing a lot of lifting.

The author had been at the Home Office by her own admission between 10am and 11.20am.

Some communication with her officials would have been possible after the 8.34am email or the 10.02 email.

And who does she “communicate in full” to?

Her Private Secretary?

No.

Her Permanent Secretary?

No.

The Cabinet Secretary?

No.

It is to her Special Adviser (a political appointee), and not her Private Secretary or her department’s Permanent Secretary, or the Cabinet Secretary.

We are then told:

“There, I explained the above chronology to my Special Adviser and asked him to phone my Private Secretary immediately.” [Para 23]

She does not herself tell the Private Secretary directly, for some reason.

“I asked [my Special Adviser] to inform my Private Secretary of the chain of events set out above and make clear that I wanted to fully report the breach and follow official processes. I wanted official advice on what I needed to do next. This included any reviews that were deemed appropriate by senior civil servants.” [Para 23]

She does not herself tell the Private Secretary of the chain of events, for some reason.

We are then told it is only after she has asked her Special Adviser to tell the Private Secretary that she reads the Percy email of 11:33am. [Para 23]

And then we are told that it only after seeing the Percy email that she saw the Chief Whip’s message of 11:31am. [Para 24]

*

Back to the Special Adviser being asked to inform the Private Secretary:

“Immediately after being told, my Private Secretary discussed the issue with the Permanent Secretary, and with his agreement then flagged the issue on my behalf to the Prime Minister’s Private Office and the Cabinet Secretary’s Private Office. This was the first time the Prime Minister’s Private Office or the Cabinet Secretary’s Office had been informed. As a result of my actions, the Cabinet Secretary was told for the first time. Separately, and unbeknownst to me at the time, the Chief Whip had also notified the Prime Minister of this issue. This was not known to me until after these events.”

There are two very interesting turns of phrase here.

The “Immediately” implies promptness.

And the “As a result of my actions” suggests that she was directly responsible for the Prime Minister’s private office and Cabinet Secretary’s office being informed, when in fact it had gone as follows: Author > Special Adviser > Private Secretary > Permanent Secretary > Cabinet Secretary.

*

It is now almost 1pm on the Wednesday.

The original email had been sent at 7.25am; the email from the unintended recipient was at 8.34am; the thanks-and-please-delete email had been sent by her to a stranger at 10:02am; the Chief Whip’s message had been at 11:31am; Percy’s email had been at 11:33am; and the meeting with the Chief Whip and Percy had been at 11:50am.

But on the author’s own account, she still has not spoken or otherwise communicated directly with any Home Office officials (as opposed to her own Special Adviser) about the matter.

And then:

“At 12.56 and 12.57, I emailed all of the relevant emails to my Private Secretary as part of my referral to officials.” [Para 27]

There is no reason given why this did not happen before.

*

Ministers are busy people, and they can be swamped with information and communications.

And so nothing in the above should be taken to mean that the author is not being accurate as to when she actually saw messages.

Indeed, this post is set out on the basis of the author being accurate in what she says in the further letter.

*

But.

If we go back to the author’s resignation letter, we see the following:

“As soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary.”

This statement is not consistent with what the author said in the further letter.

If we accept that the 8.33am email was not seen at the time, the mistake was realised “before or about” 10am.

Her Special Adviser was not asked until after noon to contact officials , and there was no direct contact with officials until almost 1pm.

If her further letter is correct, then “[a]s soon as I realised my mistake, I rapidly reported this on official channels” cannot also be correct.

The author also did not inform the Cabinet Secretary.

On her own account, it was: Author > Special Adviser > Private Secretary > Permanent Secretary > Cabinet Secretary.

Yet the normal and natural meaning of “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” is that the author herself directly informed the Cabinet Secretary.

This was not the case, if her account in the further letter is correct.

*

For completeness, the further letter also states:

“Following my referral and subsequent resignation, the Home Office conducted a review of my use of personal email and verified the above sequence of events. The review also identified that within the period between 6 September and 19 October, I had sent official documents from my government email to my personal email address on six occasions.”

Note: six.

Note also that it is not said that she only sent official documents to her personal email six times, but only that six occasions have been “identified”.

It would have been easier just to say that author only did this six times, but this other form of words was chosen instead.

Those six occasions would have been in addition to the incident described above.

We are also not told how many times those official documents had been forwarded.

And note the dates: there may have been, on the face of this wording, other occasions in her other government roles, outside of those specified dates.

*

At the meeting with the Chief Whip and Percy, the author says she said:

“I apologised and said that this was the first time that I had used my personal email to send an official Home Office document to someone outside government, that there was no risk to security due to the content, and that I would ensure that this would never happen again.” [Para 19]

Note: “first time”.

The appendix to the letter lists six times the author had forwarded emails from her official email to her personal email:

The 19 October incident above is not one of these, because the relevant draft statement was forwarded to her from her Special Adviser.

If what the author says what she assured the Chief Whip and Percy is correct, then the position would be that not one of these six documents was then forwarded.

We must also assume that none of the times official documents were forwarded to her by her Special Adviser (such as above) that they were not also sent outside of government.

*

The letter of 31 October 2022 from the home secretary to the chair of the Home Affairs Select Committee is carefully drafted and, as with any carefully drafted document, rewards careful attention.

There are turns of phrase and framing of information in that letter that could give an impression different to that which would be gained from a close reading.

But a close reading shows that the portion of the resignation letter that says “[a]s soon as I realised my mistake, I rapidly reported this on official channels, and informed the Cabinet Secretary” cannot be correct.

The further letter raises more questions than provides answers.

Either her resignation letter is correct or this further letter is correct.

But not both.

***

Thank you for reading – and this blog needs your support to carry doing these close readings.

Close readings take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above (suggested donation £1 to £5), or become a Patreon subscriber.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The comments policy is here.

The Home Secretary, the Home Office, and “statutory duties”

Hallowe’en, 2022

The uses made of certain law-related phrases in political discourse can be fascinating.

Take the current political row about the treatment of asylum seekers in Manston.

It appears from news reports that the current home secretary Suella Braverman and/or the previous home secretary Priti Patel failed to ensure there was sufficient accommodation for asylum seekers.

This failure was, in turn, a breach of the law – and, it is alleged, that this breach of the law was knowingly made.

In essence, the accusation is that the home secretary was told what the law was and the home secretary chose not to comply with that law.

*

I do not know – and I suspect you do not know – the truth of the matter (at least not yet).

But the language in which the accusations are framed is interesting.

This is not, it seems, about human rights gone mad or “woke” or both.

It is not about a minister “taking a view” on the risk of there being a successful challenge, either by an application for judicial review or otherwise.

It is not thereby about an area of law with “grey areas” or “fuzzy edges” or whatever evasive language one can get away with.

No.

This row is about good-old, old-fashioned, domestic law “statutory duties”.

That is the sort of binary law in respect of which you either comply or do not comply.

It is not the sort of law in respect of which, for example, you take a view on whether you have acted “proportionately” or not in a particular case, and in respect of which you guess (ahem, forecast) how a court will deal with a challenge.

Where the law provides binary “statutory duties”, a government department (and indeed anyone else, including you) should not “take a view”.

You comply.

Simple as that.

The Act of Parliament says you should do [x], and so you do [x] – else you are in breach of your duty to do [x].

It is therefore not open to Braverman or any other partisan to ignore the law on the basis that it is about woke human rights and assert that the courts will strike the wrong balance for proportionality.

And this is why, in part, I think this row has reached the public domain.

*

This is not about exercises of discretion in individual cases, where the home secretary or relevant official can take one view or another on a case-by-case basis.

This is wholesale non-compliance.

That is why I think officials are more jumpy than they otherwise would be.

This is not a decision to interfere with right in individual cases, but an apparent decision to disregard entire legal rules.

Perhaps the relevant home secretary did not realise or care for the distinction.

Perhaps the disdain for “individual case” human rights law has tripped over to disdain for the general rules of legal compliance with statutory duties.

Who knows.

But we have got to a point where even Home Office officials – Home Office officials! – are sufficiently alarmed by a home secretary’s proposals to disregard the law that they are contacting and briefing journalists.

*

First it was individual human rights, and now it is general statutory duties.

Once you start making exceptions to the rule of law, those exceptions become wider and more troubling.

Brace, brace.

 

***

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Re-visiting the “codified constitution” debate after the Johnson and Truss premierships

26th October 2022

From time to time it is worth revisiting the question of whether we should have a codified constitution.

For many the answer is self-evident.

Indeed, one sometimes cannot imagine a political situation in the United Kingdom where somebody, somewhere would not add “and this shows why we need a written constitution”, as if it were some universal panacea.

The view of this blog, as you may know, is more sceptical.

There is nothing inherently good or bad about a codified constitution: the test is is whether the constitution is liberal or illiberal.

In other words: whether or not the constitution tends to permit unchecked and unbalanced executive, judicial or legislative power.

Those constitutions which do not check and balance such powers tend to be illiberal, and those which do tend to check and balance such powers tend to be liberal.

The test, for me, of a constitution is not whether it is codified or not, but whether it is liberal.

And if we were to somehow have a codified constitution it should be at least as liberal as the current uncodified constitutional arrangements.

*

So: are our current constitutional arrangements liberal?

Some of you reading this will have Very Strong Opinions – and are undoubtedly and impatiently scrolling through this irksome post.

But.

Take a moment.

Here are three counter points to consider.

First, during Brexit, the Supreme Court twice stopped the executive from acting against the rights of parliament, in the two Miller cases.  And parliament itself was able to legislate for the Benn Act in the face of opposition from the executive.

Second, since 2016 the body politic has been able to regurgitate and spit out a sequence of Prime Ministers and other ministers who have been repugnant for one reason or another – Cameron, May, Johnson, Truss, and so on.

And third, and notwithstanding the nominal overall majority, we have ended up with, in effect, a hung parliament anyway.

If we were to have a more rigid, codified constitution that entrenches executive power, none of these things may have been the case.

We could, like in the United States, be stuck with a Trump-like politician for a term with only the clumsy and practically useless weapon of impeachment.

*

That said, there are problems.

For example – yes, we have been able to spit out a succession of repugnant politicians, but it is hardly to the credit of our constitutional arrangements that we have had such figures becoming Prime Minister in the first place.

And we are still only one competent tyrant (and a parliamentary majority) away from the “supremacy of parliament” being used to create Enabling Acts conferring wide discretionary powers on minsters that courts will have to accepts as being unchallengeable.

Our constitutional arrangements may be liberal in some respects, but there is still the scope for abuse, as well as it providing a framework for inadequate politicians to take (as well as lose) powerful jobs.

And recent years have shown the limits of the “good chap” approach of ministerial self-restraint, with Johnsonian anything-goes.

The counter-case is strong.

*

So there are reasons to be in favour of our current constitutional arrangements, but also reasons to be worried.

The next two years are, from a liberal and progressive perspective, likely to be grim – especially if the new Prime Minister and his cabinet are alert to avoiding the unforced errors of the last two Prime Ministers, and are able to “deliver” (ahem) their policy agenda.

We cannot always trust illiberal ministers to make easy mistakes.

And the next two years will be the real test of whether our constitutional arrangements are robust as well as liberal.

Brace, brace.

***

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Here we go again: Raab returns to the Ministry of Justice

25th October 2022

When Dominic Raab left the Ministry of Justice when Elizabeth Truss became Prime Minister, the blog teased that the Human Rights Act was still there and Raab was not.

Well.

Raab has today returned to the Ministry of Justice as Secretary of State and Lord Chancellor (and Deputy Prime Minister).

And this means things do not look good for the Human Rights Act.

As this blog has previously averred, the Human Rights Act is Moby Dick to Raab’s Captain Ahab:

And so when Raab went, it seemed the Act was safe.

The new Truss administration dropped the “Bill of Rights”, a dreadful mess of a Bill.

That reversal was, it seems, the price exacted by Robert Buckland, the former Lord Chancellor, for serving as Welsh Secretary in Truss’s cabinet.

But earlier today, Buckland announced he was leaving the cabinet under the new Prime Minister Rushi Sunak:

Buckland’s letter refers to a meeting, and one wonders if he again asked for an assurance about the Human Rights Act – and, if so, what the answer was.

*

While Raab was away, his replacement Brandon Lewis had the confidence and sense to negotiate a resolution to the strike by criminal barristers.

It is unlikely that resolution would have happened had Raab stayed on, and it should not be taken for granted that action by criminal lawyers has come to an end.

*

As this blog has previous stated, those who sneer at Raab for not understanding human rights law are wrong.

It is that he does understand it – he just does not care for it.

And this makes him a more formidable opponent to liberals and progressives than someone who is merely ignorant of the applicable law.

We do not know yet whether Raab will now seek to revive the “Bill of Rights” many of us had assumed would pass into oblivion.

There are at least two years left of this parliament and so there is perhaps enough time for him to have a go at forcing the Bill through if he can, regardless of any backbench worries.

He may have difficulty in the House of Lords, however, as the 2019 Conservative Manifesto stopped short of promising to repeal the Human Rights Act.

But for Raab this is unfinished business, and so such an attempt is more than likely.

And for those who have a liberal or progressive interest in the law, we are again that fabled bowl of petunias:

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was Oh no, not again.”

Oh no, not again.

***

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So this is what happens when we do not have a functioning Prime Ministership

20th October 2022

I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.

But I have never seen political chaos like yesterday – which is carrying on into today.

On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.

There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.

All pretty normal in these not-normal political times.

But.

The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.

Even Wikipedia could not keep up:

*

Well.

All the drama from yesterday points to one thing.

There has been an absolute collapse of Prime Ministerial power.

The details from yesterday (and today) are effects, not causes.

They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.

One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.

But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.

We can now see.

*

This is not – yet – a constitutional crisis.

It is certainly a political crisis – indeed, it is an exemplar of a political crisis.

And it certainly is a constitutional drama.

But not all political crisis tip into constitutional crises.

This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do

The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.

Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.

Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.

And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.

*

Brace, brace – as this blog often says.

But alas that warning is too late for the Prime Ministership of Elizabeth Truss.

That has already crashed.

***

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

18th October 2022

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

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

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

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

**

Emergency State by Adam Wagner

Review by Richard Horton

 

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

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

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

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

Of course I snatched his arm off.

*

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

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

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

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

*

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

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

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

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

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

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

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

*

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

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

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

*

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

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

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

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

*

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

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

*

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

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

*

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

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

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

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

*

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

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

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

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

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

Richard Horton

TAFKA NightJack

***

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A Prime Minister in Name Only

17th October 2022

For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.

Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.

It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.

And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.

*

Billy the Fish and the Green Baize Vampire

*

One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.

The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).

But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.

And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.

An allusion, in a playful way, to the distinction made by the greatest of  our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.

*

Many assume there will have to be a general election in the current circumstances – and there certainly should be.

But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.

And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.

For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.

We now have a Prime Minister in name only.

***

(Apologies to Billy the Fish and Billy the Kid and the Green Baize Vampire.)

***

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

*

Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

*

The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

*

We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

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***

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The comments policy is here.