Regulatory law – The Law and Policy Blog

A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties

22nd October 2024

Not all cases of constitutional import involve the high drama of cheering campaigners and disappointed ministers – or of cheering ministers and disappointed campaigners.

But the cases set out what is constitutionally proper and improper all the same.

Last Wednesday to relative media silence (other than in local media) the Supreme Court handed down its decision in a Northern Ireland case about appropriate legal action for a complainant to take so as to prevent harmful chemical gases and noxious smells escaping from a waste disposal site.

This is perhaps not the most glamorous set of facts for any legal case – and this is perhaps a pity, as the Supreme Court decision asserts a point of fundamental constitutional importance: about the ability of a person to access the courts for judicially reviewing public bodies not doing their regulatory job.

By way of background, there is an excuse which is deployed again and again by public bodies seeking to escape being taken to court for judicial review.

(In general terms, judicial review is the process by which a court will decide whether a public authority is correctly exercising its legal powers.)

The excuse is that the complainant has to “exhaust other remedies” as judicial review “is the remedy of last resort”.

In this case, the complainant Mrs McAleenon was told that she could not go to court to get public bodies to properly regulate what was going on at a waste disposal site.

On the face of it, the local council and the Northern Irish Environment Agency and the Northern Ireland department of Agriculture, Environment and Rural Affairs all had powers to do something about it:

But the complainant (and other local people) believed that these public bodies were not doing what they should be doing about the problem.

And it was a problem – this was certainly not a trivial issue:

One would think that this was a straightforward position: some local people had a problem, and there were public bodies who could and should do something about problem.

This would seem to be as basic a situation for modern public law and administration as one can conceive.

The public authority regulator should do its regulatory job.

But for Mrs McAleenon and her neighbours it was not a straightforward position.

When she threatened to take the public bodies to court so as to make them perform their public duties, she was told that she could not do this.

Instead, she was told that she had to do other, far more risky and expensive legal things first.

She was told by the public bodies, seriously, that judicial review should be not be available because she had “adequate alternative remedies”, in that she could herself launch a private prosecution against the owner of the waste disposal site, or could bring nuisance claim against the owner of the site.

Mrs McAleenon applied for judicial review anyway, and at first instance the court sided with her.

But then the public bodies appealed and the Northern Irish court of appeal went against her in a detailed judgment.

The appeal judges ruled that “there were two alternative remedies open to the appellant to provide her with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site. Each of these remedies, we find, offered her the opportunity of obtaining relief against the alleged wrongdoer”.

She should not be able to go to court against the regulator, the judges said, because her real complaint was against the site.

Mrs McAleenon applied to appeal to the Supreme Court, and she was given permission.

One issue in the case was that there were disputes over facts and contested evidence – and judicial reviews usually do not deal with factual disputes and contested evidence. Judicial reviews are normally about pure issues of law in respect of agreed facts. As such, cross-examination of witnesses and competing expert reports and so on are rare in judicial reviews.

This looks as if it may have influenced the appeal judges – as other legal procedures were more used to assessing evidence at trial.

But it is entirely open to a judicial review court to deal with factual and evidential conflicts.

The Supreme Court took the view that judicial review should not be refused just because there were factual and evidential conflicts.

But the Supreme Court went far further than this, and said – in effect – that for Mrs McAleenon the availability of criminal and private law procedures were not even alternative remedies in the first place.

In essence, when the complaint is against a public body as a regulator, it is irrelevant that the complainant may also have a remedy against a party that is not being properly regulated.

In two key paragraphs, the Supreme Court set out the public importance – and public benefits – of the complainants having access to judicial review against regulators:

The Supreme Court also made the point that access to an Ombudsman may not also be an adequate alternative legal remedy:

This dicta should please those who (correctly) are concerned about the general ineffectiveness of the Ombudsman system.

The Supreme Court remitted the case back to the Northern Irish court of appeal for it to be properly decided.

This is the press release from the successful appeal solicitors Phoenix Law, who should be congratulated for a great piece of appellate work on a crucial if unglamorous issue:

This case may have significant implications across regulatory law, both in respect of environmental issues and otherwise.

The decision strengthens the “public” element of public regulation.

Regulated entities already often have rights of appeal as well as access to judicial review. (And many regulated entities often seem to have “captured” their regulator and have established cosy relationships.)

But members of the public who are unhappy with how the regulator is performing its public duties are now in a stronger position.

No longer can such complainants be palmed-off and-waved away by the regulator with the message that they should just directly sue – or prosecute – the regulated entity bothering them.

No longer can they just be told that they should – at great expense and risk – first exhaust “alternative remedies” and not bother the regulator.

Complainants now have Supreme Court authority for being able to go to court to get regulating public authorities to do their jobs properly.

There is a great deal of discussion about whether the Supreme Court of the United Kingdom is small-c conservative or not.

But this case, perhaps together with the 2021 Majera case, show that when it comes to the province of judicial power, the Supreme Court will firmly assert and defend the proper role of the courts in our political system.

For not all cases of constitutional importance, limiting what the executive in its various forms can get away with doing and not doing, are glamorous actions about high politics.

Sometimes they are about other, more mundane noxious things.

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Direct links (as Bailii links can be problematic on some apps):

Supreme Court decision: https://www.bailii.org/uk/cases/UKSC/2024/31.html

Northern Irish Court of Appeal decision:

https://www.bailii.org/nie/cases/NICA/2023/15.html

2021 Majera decision:

https://www.bailii.org/uk/cases/UKSC/2021/46.html

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This week’s skirmish between the European Commission and X

17th August 2024

Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance”

25th June 2024

Imagine you are a business person faced with an irksome or onerous regulation.

The regulation means that a course of action you would like to take for your business may not be available.

What do you do?

1. Breach

You can breach the regulation.

But if you breach the regulation then that can have adverse consequences for your business and even potentially for you.

In practice, this will depend on the nature of the regulation, the likelihood of detection and investigation, the likelihood of sanction, the seriousness of the sanction, and whether the sanction can be shrugged off as a “cost of business”.

A decision to breach a regulation can be be framed in terms of “taking a view” (this is an infamous phrase, as I set out in this 2022 post) – and obliging lawyers may use phrases like “this may upset the regulators” or “this may attract criticism”.

But whichever way it is dressed up, it is still a decision to take the risk of being found in breach of a regulation.

No sensible business would want to be found in breach of a regulation: it has knock on effects, especially if that business is seeking to attract investors, purchasers or to have good relations with companies that care about due diligence. It also risks adverse publicity.

So what else?

2. Challenge

You can challenge the regulation in court, usually be means of an application for judicial review.

This, however, is not common – for various reasons.

First, it is often not wise to upset your regulator.

Second, you may lose in court and even find the regulation is fortified by (for you, unhelpful) judicial comments.

Third, you may win in court and find that the regulator just makes the same regulation again but with better legal advice so as to render it challenge-proof.

Fourth, you are also unlikely to get damages if you win in court and you may not even recover your legal costs. (And those who say “it is not the money, it is a matter of principle” invariably do not still say so after the first lawyers’ bill.)

In practice, commercial judicial review is often the last resort, where the commercial consequences of not challenging a regulation outweigh any other option. Or commercial judicial review can be used in a strategic way so as to they and shape the activity of your regulator.

But, in practice, few regulated companies are in a position to fund and mount a court challenge to a regulation, even if they they would like to do so.

So what else?

3. “Compliance”

You can comply – or “comply” – with the regulation.

If you comply with a regulation then you lessen – and you hope eliminate – the risk of any sanction. You also do not need to fund any futile court challenge.

But there is compliance and there is “compliance”.

Here we nod towards a classic 1947 book by Stephen Potter: The Theory and Practice of Gamesmanship, or the Art of Winning Games without Actually Cheating:

And so, in practice, this is what most sensible regulated entities do when faced with an irksome or onerous regulation: they find a way of complying with it, either to their advantage or at least reducing the disadvantage.

It is akin to that old chestnut of a distinction between “tax avoidance” and “tax evasion”.

(The difference often being the quality of the advice.)

This is because regulation generally is not magic, and particular regulations are not spells. An undesirable activity cannot be extinguished just by typing out a law against it, any more than it can be banished by pointing a wand at it and reciting some cod-Latin.

Yes, there is often the call that “something should be done” and that there be “crackdowns” and so on.

But good and effective regulation is not easy, and not only does a regulator need to have the wit and the resources to enforce the regulation against breaches; the regulation itself needs to be crafted so as to limit creative “compliance” and also so as to avoid undesirable knock-on effects.

There is a fourth, longer-term approach, which is to engage with your regulator so as to avoid irksome and onerous regulations in future.

This is called “regulatory capture” – and it is what will tend to happen in any regulated commercial sector over time, despite the good intentions of those who set up the regulatory regime.

But in the shorter-term, creative “compliance” is often the preferred course. And if done in a smart way, there is little or nothing that can be done.

And now we come to football.

If you think about it, it should not be any great surprise that those that make money out of games are particularly good at gaming a system.

Just as a team can develop a style of play that benefits from whatever offside rule is in force that season, and thereby benefits more often than not from VAR, then a football club as a commercial organisation can work out how to work within a given system to its commercial advantage (or at least to minimise disadvantages).

(Yes, I am an Aston Villa fan.)

The current regulations about profit and sustainability (PSR) are based, like many regulatory regimes, on good intentions.

But if good intentions were always enough, there would be no need for regulations.

That transactions between football clubs now are carefully – somewhat artificially – structured so as to comply with this PSR regime should not be a shock. Indeed, it would be shock if this was not the case.

But it is less clear what any of this now has to do with sustainability – other than perhaps to sustain certain privileged clubs in their privileged positions.

(Yes, again I am an Aston Villa fan.)

All because, as with football, there needs to be some rules in place in respect of how clubs operate as commercial entities.

But there is a distinction between formulating a rule and achieving the desired regulatory outcome.

From time to time, there will be breaches and perhaps challenges, but the real problem will be when the issue becomes “compliance”.

That is, of course, until the unhappy regulated entities are able to change the rules of the game.

UTV

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On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed

Star Wars Day, 2024

I once came across a quote in a history book which I have never been able to re-find. It was from an acquaintance of I think Lord Randolph Churchill (Winston’s father), or perhaps of Benjamin Disraeli, and it was along the lines of:

“Dear Sir, you do not believe that there are actually solutions to political problems?”

This astonished admonishment from a Victorian politician has lingered.

There is a conceit in the notion that just because a problem can be stated it thereby can be solved. Maybe this fallacy comes about by reason of human optimism, that articulating a problem means that somewhere somehow it can be remedied.

If course, stating a problem accurately and plainly is a necessary condition of it being solved.

But it often is not sufficient – at least not in terms of public policy.

And one problem is how, if at all, the media should be regulated.

Not long ago the media were far easier to regulate.

This was because there were fewer media entities to regulate and the ability to publish and to broadcast was more restricted.

Indeed, until the 1990s it was was actually quite difficult for most people to publish or broadcast to the world – or even to circulate things beyond your immediate circle or place. You had to go through gatekeepers who had a near-monopoly of the means of publication and broadcast: newspaper titles, publishing housed, broadcast stations.

From time to time there would be the spirited eccentrics who would, say, set up up a pirate radio station in the North Sea or self-publish books and pamphlets. But such self-publication was derided as a “vanity”.

(Little did they realise the upcoming relentless mass self-publications of social media.)

That such self-publication was possible at least in theory was always an important principle- indeed, it was the original meaning of the phrase “freedom of the press” (a 2012 New Statesman post on this is one of my favourite pieces).

But few if any sensible people had a press at home, even though could have one.

Now most people have access to the means of publishing and broadcasting to the world.

The device you are reading this on is no doubt capable of such worldwide publication or broadcast, at least via a social media platform.

And just as it was once odd to possess a personal printing press or pirate radio ship, it is now similarly odd not to personally possess something capable of far greater publication or broadcast.

For want of a better word, this is an information and communications revolution. A fundamental shift, comparable to the first writing and alphabets, or the invention of movable type.

And the implications of this revolution are still being worked out – if they can be worked out at all.

How – if all – can media be regulated now that everyone is a potential publisher?

My day job is as a media and communications (and commercial) lawyer – constitutional law is a mad hobby – and I see everyday the attempted use of law and policy to try to make people and companies do things (and not do things) which they otherwise would not do (or would do) but for that law and policy.

Such regulation is hard. Sometimes it is ineffective. Sometimes it is ignored. Sometimes it has unintended effects. Sometimes, even, it works.

Turning to the wrongful conduct of parts of the news media in the first decade of this century (and before), there is no doubt bad things happened – and there is also no doubt that we do no know the extent of the bad things that happened.

And the one thing that can be correctly said of the Leveson Inquiry – and of the criminal and civil litigation that followed – is that a lot of these bad things were placed into the public domain which otherwise would not have been placed into the public domain.

This was a boon for the public understanding of the news media.

But.

The purpose of the Leveson Inquiry (of which only one of two parts took place) was to use that investigation for the purpose of proposing a new regulatory model.

And this is where there is maybe a category error.

For what happened in the UK news media before around 2012 is not a good data set for regulating the news media in 2024 and beyond.

Indeed, it is far harder to say what is now news media. You cannot walk down Fleet Street and its environs and point, saying “there” and “there” and “there”.

For example, if a freelance journalist has a social media following of hundreds of thousands they often can have a bigger “circulation” than any title they work for. In those circumstances, what practical purpose would there be in just regulating the latter? And if you try to regulate the former, at what point do you stop trying to regulate everyone?

Anyway, please now click here and read my article at Prospect on whether “Leveson 2” should take place.

And tell me and other readers of this blog what you think.

For, dear Sirs and Madams, you – unlike me – may believe that there are actually solutions to political problems.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Law and lore, and state failure – the quiet collapse of the county court system in England and Wales

22nd April 2024

One theme of my blogging is the relationship between law and lore. By ‘law and lore’ I mean what people believe to be the law to be, as opposed to what the ‘black letter’ law actually is.

Few people, if any, regulate their lives by what the law actually is – for no (normal) human being can know the detail of all the laws that apply at every moment of their lives, from statutes and by-laws to contractual terms and conditions. The best that one can do is know as much actual law as you can and hope that what you believe about law corresponds with what the law actually is.

(And, of course, it may not always be plain what the law actually is, in any case.)

Another theme of my blogging is state failure. By ‘state failure’ I mean the acts and omissions by and on behalf of public officials and public bodies that indicate fundamental and/or systemic failings.

Sometimes these state failings can be hidden deliberately from the public and indeed politicians and the media, and sometimes there is perhaps no need to deliberately hide them as too few people care. In either case the ultimate problem is either lack of resources or lack of accountability, or both.

Over at Prospect I have done a piece that illustrates these two themes: the unsexy and perhaps uninteresting topic of local civil justice – and in particular, the county court system.

Please click and read here.

I fell onto this topic by chance. I was looking at the transcript of the recent ‘liaison committee’ of the House of Commons for something I am writing about parliamentary accountability. This committee, comprised of select committee chairs, is one of the few recent improvements in holding the executive account, with its periodic examinations of the Prime Minister.

At the most recent session, I saw that the Justice committee chair devoted about half his allotted questions to the county court system. He could have chosen many other topics – from international law to prisons – but this was the subject he selected. That in turn led me to seeing that the justice committee has started an investigation into the county court system. Such an inquiry is welcome.

The reason the county court system combines state failure (of which it is an example) with law and lore is that, for most people the county court system would be where they would enforce their everyday legal rights and obligations in respect of civil law – contract, torts, family law, property law, and so on.

Few people would be able to commence such litigation in the more expensive and exclusive High Court – just as few people would be able to lunch at the Ritz.

Of course, most people will not ever litigate. Indeed most people will happily go through their lives without attending a county court – or even knowing where their nearest one is situated.

But they will conduct themselves often on the assumption that certain rights and obligations can be enforced ultimately.

However, if the county court system continues to collapse, then that assumption will become increasingly academic. In essence, what people believe they can enforce at court will become more lore than law.

This is not to say that there will suddenly be anarchy and lawlessness: systems of customary oral law can be very enduring, and some systems of non-enforceable law can be rather resilient.

But eventually the mismatch between what is understood to be the law and what can actually be enforced will have some effect, and that effect will, in turn, modify behaviours – and in an adverse way.

We are getting close to local civil justice not being meaningful to many in the community.

Let us hope that, unless local civil justice is somehow revitalised, that the lag between law and lore is a long one.

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Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost

All Saints’ Day, 2023

The Leveson Inquiry ended badly: the recommendations of the report were botched and then ignored.

But the Inquiry was not without value: the Inquiry placed into the public domain substantial evidence about the nature of the news media that otherwise would have been lost. As such the Inquiry was a boon for the public understanding of the media, even if it was a failure as a means of bringing about regulatory change.

We cannot know yet whether any recommendations of the current Covid Inquiry will be similarly of little or no import. But, as with the Leveson Inquiry before it, it is a boon of the public understanding of those with power – though this time it is revealing the doings and goings-on of those with political power instead of media power.

This is because the Covid Inquiry has “teeth” with its powers to obtain evidence. And without such teeth there can never be real accountability. The sound of accountability are the complaints and greivances of those being forced to disclose evidence against their will.

Of course, the Covid Inquiry has not got all the evidence it wants – and some of the excuses for non-disclosure seem at best implausible. But the Inquiry has got far more than any attempt by parliament or the press to hold ministers and officials accountable.

And there is no reason to believe that the actions and attitudes revealed by the disclosed evidence before the Covid Inquiry is exceptional: one can only presume that, say, Brexit was dealt with in the same way. That evidence, however, is forever hidden from us.

But the Covid Inquiry is giving us a snapshot of the nature of political power in Whitehall in the early part of this decade – and one which will assist historians for generations.

Part of the value of statutory inquiries is not in the results but in the process and what is revealed in the process – and, perhaps paradoxically, that is why many public inquiries are also indicative of the failure of our political institutions and media to otherwise hold the state properly to account.

“How did this person die? – And what lessons can we learn?”

27 June 2023

A sensible policy proposal to monitor the recommendations of coroners’ inquests

“How did this person die?”

In any organised society this is one of the most important and basic questions that can and should be asked.

Was it a death that could have been prevented?

Are there things that can be done so that similar deaths can be avoided?

These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.

“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.

But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.

There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.

A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.

And there is such another way.

In England there is the ancient office of the coroner.

Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.

It is difficult to think of anything that serves a more fundamental public interest.

But.

There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.

And this is a serious problem about our coronial system.

Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:

And here is another case study:

As Inquest say at the end of that case study:

“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”

In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.

A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.

That there is even this gap is extraordinary.

Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.

There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).

Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.

Inquest are today launching a campaign for such a body:

Inquest have also published this persuasive guide – from which the above case studies are taken.

Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.

And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.

It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.

For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.

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Over at his Substack, Joshua Rozenberg has written a good post on this topic.

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This has been cross-posted from my Empty City substack.

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Photo credit: wikimedia commons.

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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, or if they risk derailing the discussion.

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Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

The public are sick of Just Stop Oil’s planned programme of deliberate disruptions to daily lives. I’ve just signed an SI to change the law, giving Police power to stop protests causing more than a “minor hindrance” to a journey. This comes into effect at midnight tonight. pic.twitter.com/Zt9V4T0nko

— Chris Philp MP (@CPhilpOfficial) June 14, 2023

By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation. They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

An unelected House of Lords can’t block an elected House of Commons.

If you don’t want Tory laws to go through Parliament elect a Labour government.

— Wes Streeting MP (@wesstreeting) June 13, 2023

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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Why [x] should be regulated.

17th May 2023

Concerns about the implications of [x] have led to calls for it to be regulated.

In a “nightmare scenario” one leading politician has said that “[x] could get out of control” with “unimaginable consequences”.

The politician added that they had read reports about [x] and that “something really should be done”.

“Why is the government not doing something about [x]? Doesn’t the government care?”

“Doesn’t the government care?”

An official spokesman rejected the allegation that the government does not care about [x] and commented that “all options remain open, including regulation and even prohibition”.

Surveys show that members of the public when asked if “x should be regulated?” generally say that it should be regulated, unless those members of the public are asked if “[x] should be banned?”, and then they say it should be banned instead.

“Whatever [x] is,” said one person in a vox pop, “it shouldn’t be allowed. And what about the children?”

“What about the children?”

Independent observers said that [x] is not capable of being defined, let alone regulated or prohibited, and dismissed concerns as “being responses to loaded questions” but they also admitted fearing that their observations would be relegated to a long paragraph towards the end of this article which few would actually read.

Supporters of [x] yesterday refused to be interviewed for this article, commenting instead by email that whatever they said would be relegated to the end of this article, coming after and before what they said would be “scaremongering”.

“Scaremongering”

The final word must go to the politician who called for regulation of [x] who also said “[x] should now be allowed,” when asked with a differently framed question, adding “there is too much red tape”.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Here is evidence that we are moving – at last – into post-Brexit politics and policy-making

23rd January 2023

Last week there was a (very popular) post on this blog about regulation and the supposed “bonfires” of “red tape”.

Most of the points in that post were general, but a particular point was made about the misconceived Retained EU Law (Revocation and Reform) Bill.

That Bill contains this remarkable provision as clause 1:

In other words, laws – thousands of them – will all be repealed by automatic operation of law, unless specific exceptions are made.

And nobody knows how many:

Government now says 3200 pieces of identified and verified retained EU law so far (originally 2400). Dashboard to be updated to show this @UKandEU @jillongovt

— Catherine Barnard (@CSBarnard24) January 20, 2023

Rarely has there been an approach to legislation this daft, and it is hard to think of any legislative exercise where daftness has been on this scale.

Of course, this causes confusion, including to business.

One may think businesses would welcome such drastic deregulation – but, in fact, businesses are far more welcoming to consistency.

In his speech today, the director general of the Confederation of British Industry addressed the problems of this Bill.

First, he did not dismiss regulatory divergence in principle:

“…I must say something about the UK’s regulatory divergence from Europe. The Government is convinced this is a major opportunity for growth. And I agree it can be too.

“But it’s a bit more complicated, than scrapping overnight many of the terms of trade we’ve used for decades.”

So this means he is not opposed outright to what the government calls “Brexit opportunities”.

But it has to be done in a measured, case-by-case approach, and with hard realism:

“Because divergence is high-stake politics and economics.

“Often, we don’t consider the EU’s possible counterplay, and where they could outcompete us. We also need to recognise that divergence will often shrink our market size and/or add a skip-load of red tape. The party of deregulation risks simply doubling the amount we have.

“So, while it can definitely work – witness the historic success of the City of London and our rapid Covid vaccine approval – you have to run the numbers to make sure it’s not a complete own-goal.

“And it will take far more than a regulation play to make the UK win global share of global sectors.”

He then mentioned concrete examples:

“…the Retained EU Law Bill [is] creating huge uncertainty for UK firms.

“Companies are asking will we really erode maternity and paternity regulation or health and safety standards like the General Product Safety Directive?

“Or rapidly change regulations on REACH, which governs the use of chemicals? With billions of pounds of industry costs?

“Or create the potential for firms being underinsured because it’s harder for analysts – who don’t know what laws will be retained – to effectively price risk into products?

“Do we really want to subject the public – and industry – to another round of mass confusion and disruption, just when we’re trying to exit recession?”

The speech, however, did more than offer a critique, it also offered a contrast.

It referred to a development which I (and perhaps also you) missed just before Christmas: the appointment of Patrick Vallance and others to consider post-Brexit regulation in five particular areas – digital technology, green industries, life sciences, advanced manufacturing and the creative industries.

The speech avers:

“The Chancellor has appointed Sir Patrick Vallance to lead a thorough review into securing possible prizes in five high-growth sectors. This is the right approach. Serious reflection and consideration.

“The complete opposite in fact of the Retained EU Law Bill […]

“Instead, let’s review, retain, reform and – where appropriate – repeal EU law the Vallance way. Smartly. Not the Retained EU Law Bill’s way. Foolishly.”

This must be the correct approach in principle: “the Vallance way”.

Yes, the Vallance review may come to nothing.

Indeed, it may never be heard from again: such reviews come and go, and sometimes even disappear with anyone noticing, or caring.

But as a statement of principle, this approach is compelling.

And it shows that even this government is capable of going about legislative and regulatory reform the right way.

The CBI cannot be regarded as a vehicle for remoaners.

And the speech today was not expressly or implicitly a call for the United Kingdom to rejoin the European Union – or even just the single market.

It was instead refreshingly post-Brexit – about how we go about making policy and laws within our shifted post-Brexit parameters.

The more our politics and policy-making moves in this direction, the better.

The absolutist clamour of Brexiters and the purist refusal of Remainers are both, in their ways, failures to practically deal with our post-Brexit situation.

The Retained EU Law (Revocation and Reform) Bill is now as much an artefact from yesteryear as a leaflet calling for a further referendum.

We are at last moving, slowly, into post-Brexit politics and policy-making – and the government needs to catch up.

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Comments Policy

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, or if they risk derailing the discussion.