Access to decision and policy-making is a right but not a privilege: David Cameron, lobbying, and regulation

13th April 2021

Let us start with one proposition, so as to see if it is sound or not.

The proposition is: that in a liberal democracy there should be no closed class of those who can seek to influence public policy.

Just as – in theory – any person can go to the lobby of the house of commons or write a letter to a member of parliament, any person can also attempt to speak to a minister or protest outside a ministerial office.

If this proposition is sound, then there is nothing, in principle, wrong with any person seeking to lobby any parliamentarian or minister.

And if that is a correct statement of principle, then it follows that the principle can be asserted by persons one disagrees with or disapproves of – including finance companies and former prime ministers.

Framed in this way there is a certain superficial plausibility to the contention that the former prime minister did nothing wrong in seeking to influence ministers about a company in which he had a personal interest.

Any wrongdoing would, it can be contended, be at the ‘supply-side’ of ministers and officials who wrongly were influenced by such lobbying, not the ‘demand side’ of the person seeking to obtain influence.

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Let us now look at rules.

As the estimable Dr Hannah White explains in this informative and helpful article, it would appear that the issue of Cameron’s lobbying is not about whether rules have been broken but that there appear to be no rules to be broken.

And so we have a gap.

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But.

There is something wrong.

It may be that there are no rules that have been engaged, still less broken.

And it may well be that one can (just about) aver that the general principle of openness means that any person from you to Cameron can seek to lobby a minister.

But it still seems wrong.

Yet a general sense of wrongness is not the same as effective regulation.

What can be done, if anything can be done?

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Part of the problem is indeed with the ‘supply side’ – any approaches by any person, former prime ministers or otherwise, should be reported and logged, and those approaches must be spurned unless there is absolute transparency.

It is not enough that we have the ‘good chaps’ theory that, of course, no minister or official would be (wrongly) influenced.

The general principle that any person in a liberal democracy should be able to seek to influence a minister does not mean such approaches should be cloaked – the quality of openness that attends the former carries over to the latter.

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Switching to the ‘demand side’ of seeking political or policy influence, the general principle that any person in a liberal democracy should be able to seek to influence a minister does not mean that there has to be an ‘anything goes’ approach.

Just as everyone has the ‘right’ to dine at the Ritz – but it an empty right when one cannot afford it – a right to lobby those with power is an empty right if one does not have connections or the know-how about making such access effective.

Unless lobbying is regulated then there will be a natural tendency for those with money – such as a finance company – and those with the best connections – such as a former prime minister – to have far more effective access and influence than others.

This then undermines if not negates the rights of others, as influencing decision-making, rule-making and policy-making becomes the preserve of those with better connections.

It is the right of the privileged, but one masquerading as a a general right of openness.

Any company should have the right to make representations to the government – but only on the same terms as as any other company.

This would mean that it is the merits of the representation that makes a difference, rather than the extent of the access.

And any lobbyist – of whatever background –  should not have a greater right of access than any other lobbyist.

This means by implication that there are certain individuals – such as former ministers and former senior officials – who if they are to be permitted to approach their former colleagues, should only do so under the full glare provided by absolute openness and transparency, and in accordance with published procedures.

And if such absolute openness and transparency and procedural certainty is not feasible, then they should not be able to directly approach ministers and officials at all – even if it is in respect of their personal interest (as opposed to on behalf of a paying client, which is a gap Cameron was able to exploit).

They can write a letter to a member of parliament, or wave a placard on Whitehall, like anyone else.

***

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Beware the excuse of ‘the king’s evil counsellors’

2nd April 2021

Every so often with Boris Johnson as prime minister there will be, in effect, the excuse of ‘the king’s evil counsellors’.

This useful excuse means that the prime minister is not really culpable for his decisions, but somebody else on whom he relied.

For example: it may be in the form of ‘Boris takes control‘ news report – which, of course, suggests that those who hitherto had responsibility did so without the prime minister’s support or direction.

Or: it may be in the form of the Prime Minister ‘distancing himself’ from a report or a decision issued by Downing Street. 

In any case it is a form of plausible deniability – that is is one of the prime minister’s advisors or ministers to blame, and not the prime minister.

Johnson is especially adept at this evasion.

It means that somebody else is always to blame – and he can shake his head and affect to be innocent – he was merely advised badly.

That his ‘evil counsellors’ were at fault, but not him.

Beware.

 

 

 

 

 

Government communications – another departure from the notion of serving the public?

1st April 2021

There is controversy in the news today about central government communications

In particular, there is – correct – criticism that government press offices are generally unhelpful to those from the outside making the enquiries and too motivated by serving the political interests of the ministers of the day.

This, sadly, is nothing new – though it does appear to be getting worse.

This is, of course, a subjective and personal perspective – other commentators and journalists may have less frustrating – indeed happier – experiences.

But if the current criticisms – as affirmed by my own experience – are valid then the most likely explanation is akin to the view adopted by that police officer the other day.

You will recall the officer who insisted that the police were crown servants as distinct from public servants.

Press offices, ditto.

(Also freedom of information offices – but that is for another post.)

Government press officers seem to see their role as actively not providing information to the public and the press, but instead seeking to withhold information and misdirect media attention.

Unless a journalist has an already good relationship with a press officer, there is little or no point asking for anything useful from a press office.

This is why, for example, I prefer to work with public domain and open source information – and to spot connections and identify discrepancies.

Harder, slower work – but worthwhile.

This means I usually only go to government press offices in two situations.

First, if there is genuinely no other way I can obtain the information from public domain or open source material.

Second, if I need some specific thing verified (or rebutted) before publication – where I have worked that thing out by other means.

This approach means that there is little scope for a government press office to shape my writing and commentary – only to influence it, if at all, at the margins.

My approach here is not unique – and it is because government press offices are so adept at being (ahem) gatekeepers that they sometimes pay the price by not being involved in reports and commentary, other than perhaps to provide a statement or not.

Tight media management can only achieve so much.

This is not the only way government press officers are being avoided – as ministers and ministerial special advisers build up their own direct trusted relationships with political journalists.

And so government press offices – although they seem to be expanding in size – are also being squeezed in substance.

Employing more and more people to say less and less.

Government comms disappearing into a hole of its own creation.

And in the meantime, the notion of a government press office being there to serve and inform the public becomes a smaller and smaller speck in the law and policy sky.

***

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Why Ministers are less practically accountable than Judges – and how the accountability gap is the most fundamental problem in United Kingdom government and politics

29th March 2021

Many will have Very Strong Opinions about the basic ills in the United Kingdom political system.

Some will point to individual politicians (Thatcher, Blair, Johnson, Corbyn, Farage etc) or political parties (Tories!).

Others will point to political ideas (Brexit, Remain, Centrism, neo-liberalism, ‘woke’-ism).

A minority will aver that there are structural failures – unelected head of state or upper chamber, the lack of proportional representation, and so on.

Perhaps these views are correct, but the more I write about the law and policy of the United Kingdom, the more there seems one particular fault in the conduct of public public affairs.

Accountability.

It is almost impossible – in practical terms – to hold many with executive power to account.

Of course, there is constitutional theory – such as the supposition that ministers are accountable to parliament.

But even typing or saying that  feels artificial if not ridiculous.

Ministers routinely avoid saying things to parliament and, if they do, they are adept at saying untrue, or misleading, or incomplete things.

And there is no real sanction if a minister does mislead or disregard parliament.

That ministers are accountable to parliament is not so much a constitutional principle, but a lack of a principle.

It is a rhetorical cloak that hides the lack of any real accountability.

Contrast with, say, judges.

A judge has to give reasons for their decision – and those decisions must explain why they took that decision and not any other decision; the decisions of judges can be appealed or reviewed by other courts; and the law applied by a judge can be changed.

You may sneer at judges in their (daft) robes and wigs, but they are practically day-to-day accountable in at least three ways.

Ministers, in contrast, do not need to have reasons that add up for most of their decisions; they are free from having those decisions properly scrutinised by their political peers; and there is no real limit to what they can legislate if they are so minded.

And apart from the remote possibility of a legal challenge, or an eventual general election, they are safe from actual accountability.

There are various causes of this:

– the elective dictatorship of parliament, where the government also has control of the elected part of the legislature, is a primary cause;

– the lack (with a few notable exceptions) of a press that is geared to holding ministers to account rather than being a means of transmission of information from/about the government to the public;

– the hold that political parties continue to have in the recruitment and promotion of candidates;

– our tribal and increasingly hyper-partisan political culture;

– the increasing lack of care of voters about being lied to by ministers – for, as this blog has previously averred, there is no practical point exposing the lies of ministers if people do not mind being lied to; and

– the absence – despite the Very Strong Opinions of constitutional hobbyists – of a consensus for what alternative constitutional arrangements would be an improvement.

(‘We demand a written constitution’ say those who rarely then explain how a written constitution would not just be an opportunity by the executive to entrench its own power.)

An index of how weak our constitution is in respect of accountability is how, when things go wrong, it is customary to demand a public inquiry.

For if our constitutional worked well in respect of accountability then there would be proper scrutiny at the time – and public inquiries would be an exceptional event.

Mere exposure of problems is not enough – indeed, few of those who think anything about our public affairs will be unaware of many of the problems.

It is instead an everyday failure to get ministers to engage with those problems, to explain what went wrong and to say how the problems can be addressed – the very stuff of accountability.

So many things in our political system now point away from this lack of accountability being fixed quickly.

And so the accountability gap widens and widens.

Brace, brace.

***

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Why the Deloitte clause for drafting ministerial answers is a further assault on civil service norms

25th March 2021

One of the marvels of modern story telling is, of course, Bagpuss.

And one of the most instructive stories of Bagpuss is The Mouse Mill, where the mice devise and construct a mill for the provision of chocolate biscuits.

[Spoiler warning for episode eight of Bagpuss.]

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*

The mice, however, are not making the chocolate biscuits out of butterbeans and breadcrumbs as they aver.

They are instead simply recycling chocolate biscuits, thereby controlling both ends of a supply chain.

Until now, the mice’s chocolate biscuit factory was perhaps the most ingenious method yet conceived of having it both ways in the provision of a good or a service.

But now we have the Deloitte contract for track-and-trace, where they appear to be able to answer parliamentary questions and freedom of information requests about their very own services.

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Over at the Huffington Post, the experienced and well-regarded political journalist Paul Waugh has disclosed that Deloitte are drafting the answers to parliamentary questions in respect of matters for which Deloitte are providing the government with services.

I have not seen the contracts, but on the safe assumption that Waugh is a reliable news source, we can trust the following report (emphasis added):

‘Four different contracts show that Test and Trace has been using Deloitte for “general management consultancy services” ranging from building testing capacity to stockpiling and logistics oversight.

‘But buried within the contracts are details of help provided with PR and communications, with a requirement to “draft and respond to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” and to “support lines to take and Q&A’s in anticipation of queries”.’

*

You do not need to have suffered years of experience with government contracts to know that legalese here quoted by Waugh rings true.

It is certainly not the sort of wording anyone would invent – and so it is no doubt the case that this is an actual contractual provision.

And the legalese is precise – crucially the contractual wording is not about simply providing the information that would allow the civil servants to draft and respond to parliamentary questions and freedom of information requests.

Had that been the purpose and intention of that contractual provision, then that is what the provision would have said.

Instead the parties chose to use wording where the external provider is obliged to draft and respond – and not the civil servants.

As you will see, this detail matters when we come to the government’s rejoinder.

*

As Gemma Abbott, legal director of the Good Law Project, is quoted as saying:

‘We have a government so addicted to outsourcing that it has even outsourced being held to account.

‘If a member of the public submits an FOI request, or an MP asks a parliamentary question about the government spending millions on contracts with Deloitte, it seems that it’s Deloitte at the other end marking its own homework – it is beyond parody.’

Her point is well made.

*

‘…the mice put breadcrumbs and butterbeans in the top, and they work the mill, and out come the chocolate biscuits…’

– Bagpuss

‘Impossible, impossible, it isn’t true. I am going round the back to what is happening’

– Professor Yaffle

*

There is, of course, nothing wrong with any consultancy firm providing services to the government – and, indeed, there is an advantage to certain tasks being allocated to external professional advisers and service providers.

But there are certain tasks which should not be contracted-out and outsourced.

The problem here is not with Deloitte offering to provide the service of providing answers to parliamentary questions and freedom of information requests – for they are a provider of services – but the agreement of the government that this job be undertaken by external providers.

The real culpability lies with the government.

The effect of the transaction is that a service provider will be responsible for providing “draft[s] and respon[ses] to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” about their very own services.

This cannot be right in principle.

*

At the end of the Huffington Post story there is a rejoinder from the government:

‘The government employs contractors in the same vein that private businesses do and responsibility for answering parliamentary questions, freedom of information requests and media enquiries rests firmly with a team of civil service communications professionals within the Department of Health and Social Care. Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’

If this was the case, then it is difficult (if not impossible) to explain the legalese quoted in the news report.

Either the contractual wording sets out the true intention of the government or that press statement does – both cannot be (equally) true.

And if the government’s rejoinder is true, then the legal drafting quoted in the news report would (and could) have been different.

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Why does this matter?

The constitutional significance of this is set out well in a thread by Alex Thomas of the Institute of Government:

*

So the contractual provisions – and presumably the services performed thereunder – are an assault on the norms of the civil service.

Another assault, to go with all the others.

This one, however, does not seem especially directed or deliberate – just a shrug and a signing of some contracts.

We do not even get the glamour of a chocolate factory, or the elusive near-satisfaction of chocolate biscuits being procured only to then be taken away.

The government should not sign any further contracts with the wording of this clause.

There should, of course, be a contractual obligation on service providers to assist the government in respect of freedom of information requests and parliamentary questions and to provide necessary information.

But contracting to provide the service of ‘drafting and responding’ is a significant step too far.

Having control of both ends of the line of accountability is inappropriate – a service provider to the government should not be ‘drafting and responding’ to queries about that service.

One should not be able to both have a chocolate biscuit and to eat it. 

***

Declaration: I was a central government lawyer 2003-2005 dealing with freedom of information requests on central government commercial matters.

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Whoopsie: the government did not get the commission report on judicial review that it was hoping for

 19th March 2021

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‘Toulouse’s suggestion was not what Audrey wanted to hear.’

– Moulin Rouge

*

Sometimes – just sometimes – in the world of law and policy there are moments when welcome things do happen.

Back in August 2020 this blog covered the government’s announcement of an ‘independent panel to look at judicial review’.

It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.

But.

It is sometimes strange how things turn out.

The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.

In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.

(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)

The concluding observations of the report could have even be a post on this very blog:

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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.

*

‘We want to keep this conversation going.’

We can bet they do.

Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.

*

At bottom, the problem here is a mismatch, a dislocation – such as those recently discussed on this blog.

The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.

The commission, to their credit, looked hard and reported on what they saw.

Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.

Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.

One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.

But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.

**

For a more detailed account of the just-published report, see Paul Daly’s blogpost here.

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What now stands between a populist authoritarian government with a huge majority and a full scale assault on civil liberties and human rights?

 18th March 2021

Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.

So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights? 

This is not a trivial or academic question.

The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.

For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.

And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.

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In constitutional theory, the next check – once legislation is proposed – is the house of commons.

But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.

And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.

*

Next there is the house of lords, where (fortunately) the government does not have an in-built majority.

And the house of lords can vote things down and pass amendments.

But.

When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.

This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.

There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.

And that power is that: to delay.

A determined government, with the support of the house of commons, will get its legislative way in the end.

A government in these circumstances would not even need to resort to an ‘enabling act’ – as it would get through any desired illiberal legislation anyway.

There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.

But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.

*

And then we come to the courts.

Here we have another problem.

Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.

The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.

The judgments of the European court of human rights are not binding.

The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.

‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.

Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.

(And the courts have taken an illiberal turn anyway: and we now have a president of the supreme court, in an unanimous judgment, telling the court of appeal off for not according ‘respect’ to a home secretary’s assessments.)

*

Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.

Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.

That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.

And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.

Brace, brace.

***

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The problem of the dislocation between political language and policy substance

17th March 2021

The problem of political language not being tied firmly to particular meanings is not a new one:

‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH’

Indeed, it is no doubt a problem as old as political discourse itself.

But the fact that it is not a novelty does not make it any less irksome.

And nor does it mean that its instances should be left unremarked.

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Currently there is a severe dislocation between political words and things.

Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.

There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.

And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.

Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.

But the phrases are not meaningless – they still have purchase (else they would not be used).

The phrases are enough to get people to nod-along and to clap and cheer.

It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.

*

Can anything be done?

An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.

That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.

Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.

Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.

*

A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.

Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.

Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.

While pretending to itself and others that it has ‘libertarian instincts’.

And so it may not just be the gear stick which has come loose but also the brakes as well.

Brace, brace.

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The European Commission launches legal proceedings against the United Kingdom – a guided tour

 16th March 2021

The European Commission announced yesterday that it had ‘launched legal proceedings’ against the United Kingdom.

What has happened is that a formal legal notice has been sent by the European Commission to the United Kingdom.

To say this is ‘launch[ing] legal proceedings’ is a little dramatic: no claim or action has been filed – yet – at any court or tribunal.

But it is a legally significant move,  and it is the first step of processes that, as we will see below, can end up before both a court and a tribunal.

This blogpost sets out the relevant information in the public domain about this legal move – a guided tour of the relevant law and procedure.

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Let us start with the ‘legal letter’ setting out the legal obligations that the European Commission aver the United Kingdom has breached and the particular evidence for those breaches.

This is an ‘infraction’ notice.

As the European Commission is making some very serious allegations – for example, that the United Kingdom is in breach of the Northern Ireland protocol – then it is important to see exactly what these averred breaches are.

This information would be set out precisely in the infraction letter – informing the ministers and officials of the United Kingdom government of the case that they had to meet in their response.

But.

We are not allowed to see this letter.

Even though the European Commission is making serious public allegations about the United Kingdom being in breach of the politically sensitive Northern Ireland Protocol, it will not tell us the particulars of the alleged breaches.

This is because, I am told, the European Commission does not publish such formal infraction notices.

There is, of course, no good reason for this lack of transparency – especially given what is at stake.

The European Commission should not be able to have the ‘cake’ of making serious infraction allegations without the ‘eating it’ of publishing them.

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And so to work out what the alleged breaches are, we have to look at other, less formal (and thereby less exact) sources.

Here the European Commission have published two things.

First, there is this press release.

Second there is this ‘political letter’ – as distinct from the non-disclosed ‘legal letter’.

What now follows in this blogpost is based primarily on a close reading of these two public documents.

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We start with the heady international law of the Vienna Convention on the law of treaties.

Article 26 of the Vienna Convention regards the delightful Latin phrase Pacta sunt servanda.

In other words: if you have signed it, you do it.

Agreements must be kept.

You will also see in Article 26 express mention of ‘good faith’.

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We now go to the withdrawal agreement between the United Kingdom and the European Union.

There at Article 5 you will see that the United Kingdom and the European Union expressly set out their obligation of good faith to each other in respect of this particular agreement:

So whatever ‘good faith’ may or not mean in a given fact situation, there is no doubt that under both Article 26 of the Vienna Convention generally and under Article 5 of the withdrawal agreement in particular that the United Kingdom and the European Union have a duty of good faith to each other in respect of their obligations under the withdrawal agreement.

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The European Commission not only allege that the United Kingdom is in breach of its obligation of good faith but also that the United Kingdom is in breach of specific obligations under the Northern Ireland protocol (which is part of the withdrawal agreement).

The press release says there are ‘breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland’.

The ‘political letter’ says:

So it would appear that the relevant provisions of the withdrawal agreement are Articles 5(3) and (4) of the Northern Ireland and Annex 2 to that protocol.

Here we go first to Annex 2.

This annex lists many provisions of European Union law that continue to have effect in Northern Ireland notwithstanding the departure of the United Kingdom.

Article 5(4) of the protocol incorporates the annex as follows:

‘The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.’

As such a breach of Article 5(4) is a breach of the European Union laws set out in that annex.

Article 5(3) of the protocol is a more complicated provision and it is less clear (at least to me) what the European Commission is saying would be the breach:

My best guess is that the European Commission is here averring that the United Kingdom is in breach of the European Union customs code (which is contained in Regulation 952/2013.)

As regards the specific European Union laws set out in Annex 2 that the European Commission also says that the United Kingdom is in breach of, we do not know for certain because of the refusal of the commission to publish the formal infraction notice.

On the basis of information in the press release and the ‘political letter’ it would appear that the problems are set out in these three paragraphs:

Certain keyword searches of Annex 2 indicate which actual laws the European Commission is saying being breached, but in the absence of sight of the formal infraction notice, one could not know for certain.

The reason the detail of what laws are at stake matters is because each instrument of European Union law may have its own provisions in respect of applicability, enforceability and proportionality that could be relevant in the current circumstances.

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So: what next.

Two things – the European Commission is adopting a twin-track, home-and-away approach.

One process will deal with the substantive provisions of European Union law – and the other process will deal with the matter of good faith.

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In respect of the alleged substantive breaches of European Union law, the European Commission has commenced infraction proceedings – as it would do in respect of any member of the European Union.

As the ‘political letter’ pointedly reminds the United Kingdom:

The United Kingdom is still subject to the supervisory and enforcement powers of the European Union in respect of breaches of European Union law in Northern Ireland.

You thought Brexit meant Brexit?

No: the government of Boris Johnson agreed a withdrawal agreement that kept in place the supervisory and enforcement powers of the European Union – including infraction proceedings of the European Commission and determinations by the Court of Justice of the European Union.

And so in 2021 – five years after the Brexit referendum – the European Commission is launching infraction proceedings against the United Kingdom under Article 258 of the Treaty of Rome:

This means there could well be a hearing before the Court of Justice of the European Union.

One does not know whether this would be more wanted or not wanted by our current hyper-partisan post-Brexit government.

One even half-suspects that they wanted this all along.

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The other track – with the European Commission playing ‘away’ – is in respect of the general ‘good faith’ obligation – as opposed to the substantive European Union law obligations under Annex 2.

Here we are at an early stage.

In particular, we are are at the fluffy ‘cooperation’ stage of Article 167:

If this fails, then the next stage would be a notice under Article 169(1):

Article 169(1) provides that such a formal notice shall ‘commence consultations’.

And if these Article 169 consultations do not succeed, then we go to Article 170:

The arbitration panel – and not the European Commission nor the European Court of Justice – would then determine whether the United Kingdom is in breach of its general obligation of good faith.

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We could therefore end up with two sets of highly controversial proceedings.

The European Commission has intimated the processes for both to take place in due course.

From a legalistic perspective, the European Commission may have a point – depending on what the alleged breaches actually are.

A legal process is there for dealing with legal breaches – that is what a legal process is for.

But.

When something is legally possible, it does not also make it politically sensible.

A wise person chooses their battles.

And if the European Commission presses their cases clumsily, then the legitimacy and durability of the withdrawal framework may be put at risk.

Brace, brace.

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The proposed new clause 59 offence of ‘intentionally or recklessly causing public nuisance’

15th March 2021

There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.

This new offence – as currently set out in the bill – is itself causing annoyance and distress.

Why is it being proposed?

And what should parliament do about it?

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Like a lamp in Aladdin – it is a new offence for an old one.

If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.

The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.

(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)

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On the face of it, reform and simplification are good things.

Who could possibly oppose something as laudable as reform and simplification?

And the Law Commission does have a point – the current law is somewhat vague and archaic.

The current law is usually stated as:

‘A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’

The bill before parliament proposes that old offence to be replaced by this:

As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.

Words like ‘annoyance’ are added.

But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.

The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.

The Law Commission summarises their view as (at paragraph 3.12):

‘One question is the nature of the right or interest which public nuisance seeks to protect.  In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’

Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.

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But.

Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.

Never trust the home office.

And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.

For example (with emphasis added):

A person commits an offence if— (a) the person— (i) does an act […]  [which](b) the person’s act or omission […] (ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and (c) the person  […]  is reckless as to whether it will have such a consequence. […]  (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity, or (d) is put at risk of suffering anything mentioned […].

The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.

And there does not need need to be any directed intention – mere recklessness will suffice.

The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.

Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.

Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.

And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.

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This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.

As such, such provisions should receive the anxious scrutiny of parliamentarians. 

Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.

Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.

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