Category: The Union, Northern Ireland, Scotland, Wales

On why this break from day-to-day political activity may be a Good Thing

14th September 2022

Over at his substack, the estimable political journalist Adam Bienkov sets out why he thinks it is a bad thing that normal politics have been suspended.

There is a great deal of force in what Bienkov says.

But.

I want to put forward an alternative view.

The run of day-to-day politics has certainly been paused, but politics operates on a number of levels.

And at a deeper level, what is happening at the moment is politics of a more fundamental kind.

We are reminding ourselves of the institutions of the state and the arrangements of our constitutional order – and the role of the Crown as the most important organising principle in our political system.

This is a good thing for our polity, and it should be done from time to time.

Yes: the timing could be better.

But the timing will never be perfect – there will always be some crisis or controversy.

A period of such reflection is not necessarily a conservative thing.

It may well be that the contemplation of our monarchy – about what it has been and what it may become – will lead people to consider or accept change.

Such thoughts are rare in the hustle-bustle of daily politics.

And so in this way I do not see what is currently happening as the political life of the nation being put on hold, but a continuation of politics by other means.

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The sentiment above is a general one – and it would be applicable at any time.

But there is also a particular reason why the current pause in day-to-day politics is to be welcomed.

Our current politics is characterised by the “3 Ps” – populism, polarisation, and post-truth.

This is especially the case after the downfall of Boris Johnson and the rise to power of Elizabeth Truss after a leadership campaign in which the candidates necessarily had to appeal to partisan supporters.

A break from – and a brake on – such a manic political trend is healthy.

And given the circumstances of this pause – marking the death of someone who, on any view, was a committed public servant – the contrast with certain recent leading politicians is stark.

*

We have an energy crisis and a cost-of-living crisis, and we have a war in Europe and an ongoing climate emergency.

All of these need to be addressed, all of them are urgent.

But we may also be having a broader political crisis – a crisis of legitimacy and accountability.

And, if so, that also needs addressing, for that also would be urgent.

*

Reminding ourselves that there are other parts of the constitution than what Johnson misused or disregarded is a good thing.

Such moments should be rare in any political system, but they should happen from time to time.

And this is not necessarily a monarchist notion – for what it is worth, I am a non-militant republican, opposed to the hereditary principle.

Normal political activity will resume soon enough.

But this short time out from day-to-day politics is good for us, and it good for our politics.

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Why the broadcast of the Accession Council was informative and significant

12th September 2022

The Accession Council was broadcast live on Saturday morning.

That broadcast was a boon for the public understanding of the constitution of the United Kingdom, showing the sort of things that are usually hidden from public view.

It was fascinating watching for anyone interested in the nature of our constitutional arrangements.

You can watch it here – and I will explain below why various aspects of it were important and/or interesting:

https://www.youtube.com/watch?v=aKci6iKET2Q

*

The Accession Council is a configuration of the Privy Council.

David Torrance, who has written an outstanding briefing for the House of Commons library on what happens when a monarch dies, explains the background of the Accession Council:

That there is now no longer a strict statutory requirement for an Accession Council should not mislead you into thinking that the council meeting was mere ceremony and its content mumbo-jumbo.

There was actually a point to a good part of it, even if that point was constitutional rather than strictly legal(istic).

*

For example, take the oath in respect of the Church of Scotland.

(Here note I am neither Scottish nor a Scots lawyer, and so please nudge me in the comments below if I put my foot wrong.)

The taking of the oath is a legal requirement, under the Protestant Religion and Presbyterian Church Act of 1707.

Under this Act, it is provided among other things:

“And Lastly That after the decease of her present Majesty (whom God long preserve) [Anne] the Sovereign succeeding to her in the Royal Government of the Kingdom of Great Britain shall in all time comeing at his or her accession to the Crown Swear and Subscribe that they shall inviolably maintain and preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline Right and Priviledges of this Church as above established by the Laws of this Kingdom in prosecution of the Claim of Right”.

This is an Act not of the Parliament at Westminster but of the Parliament of Scotland.

Indeed, it appears to be the legislation passed just before that parliament voted for union with England:

The Act was passed by the Scottish Parliament at a time when the then Queen looked as if she was to be succeeded by distant relatives – and the Scottish Parliament was presumably anxious to ensure that its position would be protected by the new monarch.

The 1707 Act has (as far as I can tell) a unique legal and constitutional status.

The Westminster Parliament cannot repeal this Act if there is a regency in place.

Under the Regency Act of 1707:

“The Regent shall not have power to assent to any Bill for changing the order of succession to the Crown or for repealing or altering an Act of the fifth year of the reign of Queen Anne made in Scotland entitled “An Act for Securing the Protestant Religion and Presbyterian Church Government.””

I am not aware of any other statutory provision which prevents the Royal Assent of an otherwise passed Bill – and it is a deft device to achieve a measure of entrenchment.

*

Now let us turn to seals.

It is a mark of our age that it is difficult not to think of aquatic animals when the word “seal” is used:

Unhelpful.

But if we can put out pinniped friends aside for a moment, seals were – and are – important.

Part of the business of the Accession Council was for the new king to approve the various seals still used in government business.

These seals convert documents that have no legal standing and effect into instruments that can have just as much legal standing and effect as any Act of Parliament.

Seals are an important part of the business of government.

The current seals have the name, image and chosen inscription of the late Queen:

(From Wikipedia.)

There was no legal requirement for Charles to confirm that the current seals could continue to be used, for the Succession to the Crown Act 1707 provides:

“And be it further enacted by the Authority aforesaid That the Great Seal of Great Britain the Privy Seal Privy Signet and all other Publick Seals in being at the Time of the Demise of Her Majesty Her Heirs or Successors shall continue and be made use of as the respective Seals of the Successor until such Successor shall give Order to the contrary”.

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There was also a confirmation that Charles will surrender the (considerable) revenues of the Crown Estate in return for the Sovereign Grant.

And today (the Monday after the Saturday) there has already been a statutory instrument amending this provision of 2011:

With this one:

Given the amounts involved – the annual revenue of the Royal Estate is about half a billion pounds – one can appreciate why the government would want to act quickly to ensure the legal framework was up-to-date.

It should be noted that Charles referred to the “tradition” of surrendering the revenue of the Royal Estate, as if it were a voluntary act which he just happens to wishes to continue with, rather than being a firm legal obligation.

This “tradition” dates back to George III and it is unthinkable that the surrender would ever be rescinded, but it is an element of our uncodified constitution which owes more perhaps to a “good King’s theory of the constitution” rather than the more well known “good chap’s”.

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Charles also approved legislation for a bank holiday for the State Funeral.

This approval was legally required under the Banking and Financial Dealings Act 1971:

The usual statutory bank holidays are listed in schedule 1 to that Act – and so for England and Wales they are:

The eagle-eyed among you will see that neither Christmas Day nor Good Friday are statutory bank holidays.

This is because they are bank holidays at common law, a point which is recognised by this wonderful sub-section that follows the one just quoted:

This means the King and his Privy Council has the legal power, by proclamation, to make it like Christmas everyday.

 

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The broadcast of a meeting of the Privy Council itself – even if this special one – is illuminating.

The business is done directly between the monarch and the ministers attending, seeking approval for various measures.

A famous such meeting took place three years ago:

Note the “Note” at the bottom.

The business of the council is conducted standing up:

Orders in Council can cover many things, ranging from important constitutional acts to trivial-seeming amendments of existing royal charters.

They are, however, a system of making law parallel to the legislative process at Westminster.

Many would be surprised at what can be given legal effect outwith the Westminster Parliament.

The meetings take place wherever the monarch happens to be – and, as Torrence explains in another outstanding briefing, the Queen would engage with ministers on the measures to be approved:

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The public broadcast of the Accession Council was a decision that must have been made some time ago.

It is difficult to believe that the filming was arranged at speed after the death of the Queen.

There seems to be no inherent reason why they cannot be filmed and broadcast – and so it is presumably in the gift of the King as and when other Privy Council meetings are filmed and broadcast.

Perhaps future meetings will also now be filmed and broadcast – showing Charles engaging face-to-face with government ministers on a range of issues.

This may be good – or bad – for Charles and/or the ministers involved.

If so, they would be an interesting complement to the filming and broadcast of parliamentary proceedings.

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The business of the Accession Council included matters that went back to the Stuarts.

The content included the monarch’s promise to protect of the Church of Scotland; the monarch’s tradition of surrendering the revenues of the Crown; the practical need to carry on the Monarch’s government; and the proclamation of a public holiday.

As the historian Judy Stephenson noted, the Accession Meeting was in the round a reminder of various agreements and compromises over centuries that have shaped our current constitutional arrangements:

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The decision to film and broadcast the Accession Council was a wise and informative one.

A whole sector of the usually hidden constitution was opened to the public gaze – and it was informative, and not just for constitution geeks.

It was also a reminder of the key distinction between the Crown and those who have served the Crown.

The King on one side, and – roped-off – some familiar faces on the other:

The Accession Council meeting should now be required viewing for history and law students, among others.

And let us hope that further Privy Council meeting are now televised.

There are few events in which varied elements of our constitution, from different times, are brought together in one place and at one time.

I wish it could be possible to have such insights every day.

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The Queen

8th September 2022

While we wait for news from Balmoral – from which the last reports were of the Queen’s ill-health – it is good to remind ourselves of what an extraordinary thing she achieved in securing the future of the monarchy.

It was not inevitable that the United Kingdom would stay, well, a kingdom.

When she was young the Crown was weak.

The United Kingdom over which her grandfather ruled – that of Great Britain and Ireland – had already been re-confingured in the years before her birth.

Her uncle had been forced from the throne in circumstances which showed the relative weakness of the king to the political class.

Monarchies and royal families throughout Europe were being removed and exiled.

The Empire was being decolonised and it was not certain the “Commonwealth” would take off as an idea.

The politics of the 1930s and 1940s in Europe and elsewhere often pushed in radical and extreme directions.

Any young royal in the Europe of the 1930s and 1940s would have seen the monarchy as precarious.

Even by her coronation in 1953, it was not obvious that the Crown would survive.

Yes, with hindsight, it looks as if it would not have been any other way.

But the devices of what became known as “the Firm” – the use of the extended royal family and the “balcony” royals, and the clever use of the media and imagery – were not as familiar as they once were.

Looking at the challenge before her in 1952/3 must have been daunting.

The monarchy now seems secure for at least another generation or two.

It will slim down, with more empty space on the balcony, but there seems no prospect of there being a republic in the next twenty or so years.

Even if her successors are unimpressive (or worse) the consequences will be likely to be dealt with within a monarchical framework, rather than a huge constitutional upheaval that would make Brexit seem like a jubilee street party.

Of course, the kingdom itself may be reconfigured further – with Irish unification and Scottish independence.

But something called a United Kingdom will survive – even if it will be akin to a pop band on the nostalgia circuit with only two of its original members.

A wise historian friend once said that while the Queen survives the twentieth century has not yet fully ended.

Such has been her longevity – and how with hindsight the period since 1952 seems all as one coherent piece – the sheer amount of change (and lack of change) can be overlooked.

She took a monarchy that was not in good form in the inter-war years and ensured that it has lasted to deal with the problems of the mid twenty-first century.

Even liberal republicans (of which I am one) can respect what she has achieved, even if a different model of state still would be preferred.

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Article 16, again – what, if anything, has changed?

26th August 2022

Article 16, again.

Here is this blog in February 2021:

In September 2021:

And in October 2021:

There are many more.

Like many commentators on Brexit, it feels like I have written sixteen articles on Article 16.

There was a time when every weekend had a Sunday newspaper briefed that Article 16 was about to be triggered.

*

And here we go again.

What new can be said?

In some ways, there is not a lot that is new to say.

Triggering Article 16 will not have the dramatic – cathartic  – effect that some breathless political and media supporters of the government believe it will have.

A gun is not fired, just a talking shop established.

And the provision cannot be used to dismantle the Northern Irish Protocol.

If you want to read more along those lines. click on the links to the explainers above.

But.

Some things have changed.

And it may actually be wise for the government to trigger the provision.

This is because the United Kingdom is now in the absurd position of proposing primary legislation on the Northern Irish Protocol under the pretence that it is “necessary” for the United Kingdom government to not perform or comply with its obligations under the protocol.

The government raced to putting forward this draft legislation without going down the Article 16 route that was intended to deal with any problems with the protocol.

By actually setting up a formal talking shop on the protocol then there is the possibility of constructive engagement with the European Union, rather than this silly legislative exercise.

Article 16 should have been triggered ages ago – as it would enable structured talks.

The reason one suspects that the government has not triggered Article 16 is that ministers know – or should know – that it will not have the exhilarating effects set out in the government-supporting media.

But it could have beneficial effects – and any safeguard measures would have to proportionate and time-limited.

Article 16 may therefore offer a way of choreographing a resolution of the perceived issues over the Northern Ireland Protocol.

Of course: this assumes that our government under the incoming Prime Minister wants a solution and is operating in good faith.

Just typing those words makes one realise how unsound such an assumption is.

But.

Structured talks under the Article 16 regime can only be a good thing and the government’s scarce time and resources would be better used in doing this than in pursing the misconceived primary legislation to allow the government to break the law.

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One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

*

More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

*

But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

*

Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people. 

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court. 

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair) President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar Chair of the Judicial Appointments Commission
Sir Geoffrey Vos Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament.  As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer. 

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.  

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

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So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

*

But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

***

Thank you for reading.

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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The question of whether Boris Johnson, in effect, lied to the Queen

[ADD – I have now done a short summary of the argument advanced in this post here.]

 

15 August 2022

On Twitter a number of accounts have recently commented in respect of front page of the Daily Mirror from 12 September 2019:

The online version of the article is here.

The comments are critical of the headline and of the apparent source of the headline, which is me.

I am quoted in the article, on the front page, as follows:

“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””

This seemingly renders me the source of the “Boris lied to the Queen myth”.

Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.

I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.

(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)

*

Do these critics have a point?

One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.

The “in effect” was not mere surplusage – I used the phrase for a reason.

Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.

But I did not say that, because I did not mean that.

I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.

And so I cannot defend the Mirror headline, and I do not do so.

It is not the headline I would have chosen for the piece that quoted me.

*

And there is another preliminary point.

The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.

No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.

The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.

Any judgment is a text and my role as a commentator is to place that text in a context.

This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.

*

But.

That is not good enough.

Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?

Let us see.

*

We now need to go back in time and remind ourselves of the relevant dates.

It was 2019, and the United Kingdom was still a member of the European Union.

The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.

Johnson became Prime Minister in July 2019.

On 28 August 2019, the Queen made the following order:

“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.

But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.

As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).

But the legal question at the time was whether the prorogation was lawful.

And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.

*

The prorogation faced legal challenges, including one in Scotland.

The appeal judgment of the Scottish case dated 11 September 2019 set out the following events:-

15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

16 August 2019 – the Prime Minister wrote the following response:

“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this proposition

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.

23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:

“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”

The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).

*

So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.

*

The Scottish court decided as follows:

“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”

The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.

They were false reasons.

The court stated that there had been an improper purpose.

*

Now we come to something which was missing from the case – and from the concurrent case in England.

The dog that did not bark in the night.

As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.

This lack of a witness statement was referred to in the judgment:

“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.” 

This absence, in my opinion, was and is highly significant.

Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?

If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.

The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.

If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.

*

This is when I wrote the article which was quoted by the Daily Mirror.

My reasoning was as follows:

1. There had been contact with the Queen by telephone, as well as a formal advice.

2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.

3. Those reasons were not the true reasons for the prorogation.

4. Those giving the reasons knew that that they were not the true reasons for prorogation.

Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.

Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.

*

The Scottish case, like the concurrent English case, then went to the Supreme Court.

This was after my statement which was quoted by the Daily Mirror.

The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.

It approached the case as follows (my emphasis added):

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The crucial element here is the requirement for a “reasonable justification”.

And again, that lack of a witness statement made all the difference (emphasis again added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

That dog was still not barking.

*

Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.

(I have since spoken with a number of people involved in the case, and they agree.)

The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.

But still no signed witness statement was forthcoming.

*

So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.

But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.

And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.

If someone can come up with a better  explanation than the above for (a) and (b) then I will change my view and recant.

But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.

 

**

POSTSCRIPT

I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:

***

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How the Good Friday Agreement means the United Kingdom government cannot leave the ECHR (without breaching the Good Friday Agreement)

12 August 2022

From time to time the demand will come from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious difficulty for the government in doing this.

The difficulty – if that is the correct word – is the Good Friday Agreement.

This thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission […]”

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

The ECHR is integral to the Good Friday Agreement – and that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.

This means that if the United Kingdom (including Northern Ireland) leaves the ECHR there will be breaches of the Good Friday Agreement.

*

When this is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It would thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This is in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

And so, one can either have the United Kingdom outside of the ECHR or one can have the Good Friday Agreement, but it is difficult to see how you could have both.

*

There are other ways to deal with the problems (as perceived) with decisions of the European Court of Human Rights.

In 2012 – during the Conservative-led coalition – there was the “Brighton Declaration”.

And the Supreme Court is already unafraid of showing its independence, as it did in 2013 – and which was welcomed by Conservative ministers:

*

As this blog previously averred, there is also a distinction to be made between human rights law as a legal reality and “Human Rights Law!” as an event of political rhetoric.

Last October, the Lord Chancellor made a speech to the Conservative party conference where (tellingly) the only example he gave of a wayward human rights court decision was where the law had already been changed.

As such “Human Rights Law!” is often a turnip-ghost, which has been created by politicians and the media just to scare themselves and others.

For every actual problem with the ECHR there is a practical way of addressing that problem that does not require the United Kingdom’s departure from the ECHR.

And often, stripped of political and media gloss, the apparent problems are not there.

As with the Brighton Declaration, and as with the Supreme Court, problematic features of the ECHR and its application by the Strasbourg court can be dealt with in other ways.

Ways that do not also involve breaching the Good Friday Agreement.

That is what politicians should do.

And that – one hopes though no longer expects – will be what politicians will end up doing.

***

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The resignation of Boris Johnson – and why that is not enough for good government to return

7th July 2022

Well.

This morning I was writing a Twitter thread on what would happen if all government minsters resigned.

For such a surreal thing to be of any practical concern, rather than for academic speculation, indicates that it has been an odd few days in the politics of the United Kingdom.

And now the current Prime Minister has announced his resignation.

He is not going immediately – but the process for a finding a new Conservative party leader will now start and it seems to me that Johnson cannot now do anything to stop that process.

Once that process produces a new leader, that leader will be invited to form a government by the Queen, and Johnson – by automatic operation of the constitution – will instantly cease to be Prime Minister.

He may go even sooner, with a ‘caretaker’ Prime Minister put in place until a new Conservative leader emerges.

Johnson may remain in office, but his announcement today means he has lost ultimate control of his political fate.

*

His resignation shows the operation of another constitutional rule – perhaps the most fundamental constitutional rule of all.

That rule is that Hubris is usually followed by Nemesis.

Wise politicians know this – and so they run tight ships, knowing that the pull of the tides can result in capsizing or being wrecked.

Less wise politicians assume their moment of great power will last forever.

Johnson – a successful electoral politician – was brought down not by any great policy issue or national crisis.

From Partygate and the Owen Paterson affair, he and his circle made unforced error after unforced error.

He and his circle believed that they could casually defy rules and conventions.

And so the ship of state became a ship of fools.

*

Johnson in December 2019 had the greatest prizes that the constitution of the United Kingdom can bestow on a Prime Minister.

He had won an emphatic general election victory – and so he had the “mandate” that meant he could translate his programme into practice without delays in the House of Lords.

And he had a substantial majority – of eighty – which meant he could get through the House of Commons legislation and revenue provisions without opposition.

He even had, with Covid and then Ukraine, two huge unifying issues for him to pose as a Churchillian leader.

Yet, two-and-a-half years later, he is resigning.

And the mandate and the majority have been wasted.

The latest Queen’s Speech was an embarrassing sequence of proposals, showing that the government had no direction.

And the one thing that Johnson and his government did do – Brexit with a withdrawal agreement – he was seeking to break.

Power without responsibility, as another Prime Minister once said in a different context.

*

Brexit was begat by the Conservative and Unionist Party.

The 2016 referendum was an exercise in party management, and it was from that egg that Brexit first emerged.

After 2016 the Conservative and Unionist Party said Brexit should mean Brexit, and they campaigned on that basis.

And under Johnson, the Conservative and Unionist Party “got Brexit done”.

But Brexit, being ungrateful, is destroying the Conservatives and dismantling the Union.

The revolution is devouring its begetters.

It is a political morality tale.

*

And so good bye then Boris Johnson, if not now but soon.

The curious thing is that he may not even be the worst of the post-2010 Prime Ministers.

It was David Cameron who risked the future of the country on a single turn of pitch-and-toss – and with no preparation for a Leave vote.

It was Theresa May who insisted that Brexit had to be done, at speed, with its ‘red lines’ that kept the United Kingdom outside the Single Market.

These macro political mistakes were profound.

And we now have the greatest political mess in living memory, if not modern history.

It is time for the excitement to die down, and for a return to the dull work of taking government seriously.

The ejection of the repugnant Johnson from the body politic is a necessary step towards such political good health – but it is not a sufficient one.

Let us hope that we have not left it too late for there to be a recovery.

**

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Should the “Bill of Rights” make provision for the right to an abortion?

29th June 2022

At Prime Minister’s questions today, the Lord Chancellor – deputising for the Prime Minister – was asked if the right to an abortion should be placed in the “Bill of Rights” currently before parliament.

He responded:

“…the position on abortion is settled in UK law and it is decided by hon. Members across the House.  It is an issue of conscience, and I do not think there is a strong case for change.  With the greatest respect, I would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House.”

Is he right?

*

In respect of abortions, the Labour MP Stella Creasy recently tweeted:

And, after the Lord Chancellor’s comments today, she tweeted the following:

Does she have a point?

*

I happen to be strongly in favour of a woman’s right to choose to have an abortion – but the question here is not about the ultimate rights and wrongs of the abortion issue.

It is about whether the “Bill of Rights” should be put to this use.

From the Lord Chancellor’s perspective, the abortion issue is “settled” – at least in England and Wales – and here he presumably means the Abortion Act 1967.

And to the extent that abortion was legalised in England and Wales by an Act of Parliament, rather than by a (contentious) Supreme Court decision as it was in the United States, the Lord Chancellor has a little bit of a point about it having been determined by parliament, and not by the courts.

But it is not much of a point.

In part, the issue is not politically “settled” – and as recently as 2008 MPs were substantially divided as to the term limits for abortions.

And as Creasy avers, the position in Northern Ireland was not legally changed until very recently (with her astute and deft amendment to the Northern Ireland (Executive Formation etc) Act 2019):

And so, thanks to that amendment, there are now the Abortion (Northern Ireland) Regulations 2020.

Of course, making access to abortions legal is not the same as providing practical access to abortions, as many on Twitter pointed out in response to Creasy’s first tweet.

And some may say there is not much point providing legal access in Northern Ireland but not practical access:

*

The “Bill of Rights” issue is not whether the substantive law on abortion should be changed – the substantive legal position has been changed.

The issue is whether a general right to an abortion should be placed in the “Bill of Rights”.

Here the position is less straightforward

On one hand, this blog has repeatedly warned of the folly of “enshrining” things in law.

This is because nothing can be meaningfully “enshrined” in law – as amendment or repeal is only a parliamentary exercise away.

And the “Bill of Rights” already has provisions that are legally meaningless – there is, for example, a proposed right to a trial by jury which goes no further than saying that if you already have a right to a trial by jury then you have a right to a trial by jury.

But.

If we are going to have a “Bill of Rights” then there is an argument that it should, well, contain some rights – and perhaps rights which have not been articulated plainly in other statutes.

And the Lord Chancellor’s objection that including such a right in the “Bill of Rights” would mean “the issue is litigated through the courts, rather than settled, as it is now settled, by hon. Members in this House” makes no sense.

A statement of a general right in the “Bill of Rights” would not, by itself, lead to any more litigation than there would be already under the current legislation.

The United Kingdom would not suddenly become the United States just by adding this right to the “Bill of Rights”.

Indeed, providing the right in primary legislation is pretty much the opposite of what has happened in the United States.

The real reason, one suspects, for the opposition of the Lord Chancellor and other government ministers, is that the “Bill of Rights” is not for this sort of rights.

The right to an abortion is the wrong sort of right for what they are seeking to do with the “Bill of Rights”.

It is not intended that the legislation will actually confer new rights – despite its portentous title.

The intention is that the legislation will make it more difficult for people to practically rely on their rights.

So, although one can doubt the efficacy of “enshrining” things in domestic law, Creasy’s proposed amendment perhaps serves a helpful purpose in exposing the “Bill of Rights” as not being about rights at all.

And if such a right is included in the “Bill of Rights” then it may lead to the issue being more “settled” than the 2008 debates and the Northern Ireland experience indicates it to be.

If we are to have a “Bill of Rights” then this is presumably the sort of right – highly relevant to actual people – that should be included.

But what do you think?

**

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The need for evidence and the Northern Irish Protocol Bill – the background to a rather interesting parliamentary amendment

28th June 2022

One of the most fundamental distinctions in legal practice is that between law and evidence.

Anybody can assert “[X] is guilty of murder” or “[Y] had broken a contract” but mere assertion is not enough for a court.

A court will need to see and assess the evidence that [X] is guilty of murder or [Y] had broken a contract.

And it is only when the evidence is applied to the law, and the law applied to the evidence, that a court will hold (or not hold) [X] to be a murderer or [Y] to be in breach of contract.

Mere assertion is not enough.

*

Yesterday in the House of Commons the Foreign Secretary asserted that that the proposed Northern Irish Protocol Bill was ‘necessary’.

The asserted ‘necessity’ justified, the minister claimed, the legislation being brought forward.

Legislation that on the face of it is a breach of international law – and can only only be saved from being such a breach by the doctrine of ‘necessity’.

But.

It is one thing to assert that a thing is the case, and another to show that it is the case.

And so it is with the use of “necessity” by this government to justify bringing forward this otherwise law-breaking bill.

It is not enough for the government to tell us it is “necessary” – they need to show it.

As any competent screenwriter would tell you: show, don’t tell.

One government backbencher, Sir Bob Neill, asked about the evidence which supported the government’s position:

“To return to the legal point, she will know that the application of the doctrine of necessity requires both the legal tests to be met and the evidential base to be there, because it is largely fact-specific to show whether those tests have been met. I know that the Government have been working hard to assemble that evidential base, but can she tell us when it will be available to the House so that we can form a judgment as to whether those legal tests are met and, therefore, proportionality and necessity are met? It would be helpful to have that before we come to a conclusion on the Bill.”

The Foreign Secretary’s response indicated she had missed the point:

“I thank my hon. Friend for that point. There are clearly very severe issues in Northern Ireland, including the fact that its institutions are not up and running, which mean that the UK has to act and cannot allow the situation to drift. I do not think that we have heard what the Opposition’s alternative would be, apart from simply hoping that the EU might suddenly negotiate or come up with a new outcome.”

It is not enough to ask the opposition about what they will do – it is for the government to make out the necessity.

And it is not enough for her to assert that there are “clearly very severe issues” – and as this blog has said before many times, anything described by a politician as “clear” tends not to be.

Neill also asked this question of a former Lord Chancellor, Robert Buckland:

“He refers to the doctrine of necessity and the tests that must be met. I think he will agree that, whether it be imminent or emerging, there has to be evidence that the high threshold is met. Does he think that, in common with the approach adopted in the United Kingdom Internal Market Bill, if there is evidence so pressing as to justify a departure from an international agreement, with the risks that that involves, it should be brought back to this place for the House to decide in a vote? As was then suggested in that Bill, on the evidence available, there should be a parliamentary lock on the use of that important step.”

The former Lord Chancellor also did not have a clue:

“My point is simply that this is not a matter of law or a question of legality. There is a respectable argument that can be deployed by the British Government to assert necessity, but this is not about the law; it is about the evidence that the Government will need to marshal to demonstrate that point. The Government’s responsibility is to be a good steward of the Good Friday/Belfast agreement.”

And the former Lord Chancellor also said:

“…a lot has been said about necessity, as if it requires imminent peril or an immediate threat facing us just outside the door. Nobody is saying that we face that, but necessity in this context does not require that degree of imminence; it requires a degree of real threat, and growing evidence of a real threat to our essential interests. 

“I would argue that there is such growing evidence. Clearly north-south is entirely unaffected—the respect we are showing for the single market is clear—but there is a growing problem when it comes to east-west.”

Buckland asserts there is “growing evidence” but – other than broad generalisations – he cannot point to any.

This is not impressive.

Neill’s comment that there are those in government putting together an evidence base for saying that the bill is “necessary” may be well-informed or it may be, well, charitable.

But it can only be right that the evidence for necessity be made available to Members of Parliament before this bill is passed.

Neill has now put down an amendment for the next stage of the bill’s passage which will require there to be a dedicated vote in the House of Commons before the powers in the bill can be used.

This would mean that a minister would have to come to he House of Commons to make a positive and specific case of necessity before the powers in the bill could be replied upon on the basis of “necessity”.

It would be a wise provision – and there cannot be a good argument against it in the circumstances (though there will be plenty of bad ones).

Strangely, the strongest criticism of the bill in yesterday’s debate came from Theresa May, in a speech that nobody following this blog could have put better – read it in full here.
Of course, this is the same Theresa May whose fateful decisions after the referendum to rule out membership of the single market and customs union led directly to the current botched Brexit.

(And, yes, it it tempting to keep re-fighting the battles of 2016, like a military re-enactment society.)

But here May is spot-on.

It is disappointing, of course, that Neill, May and other government backbenchers did not vote against the principle of the bill at the reading yesterday.

This, however, may owe to the logistics of the exercise of amending the bill at the next stage – they are keeping their various powders dry.

What is obvious, however, is that the government cannot – as of yet – make out the evidence base for “necessity”.

If the Neill amendment is adopted, ministers may be required to put forward their evidence base, if they have one.

And if they cannot put forward the evidence base, then ministers may not be able to rely on necessity.

Their bluff would be called.

And sometimes it is, well, necessary to call the bluff of ministers.

**

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