A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability?

8th March 2024

Yesterday over at Prospect I did a post on the curious situation of the Michelle Donelan libel settlement. Please click and read the post here.

Here I want to set out some further thoughts on what is, in one way, a remarkable law and policy news story – and what was, in another way, an accident waiting to happen given the practices now common in politics and media.

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This is her statement:

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Donelan is a Secretary of State and a Member of Parliament – and, as such, she can say and publish whatever she wants in a libel-safe way, as long as she goes about it sensibly and in the right way. The law of the United Kingdom is configured so as to allow ministers and parliamentarians an “absolute privilege” for what they say in parliament. The law is further configured so that in official correspondence, defamatory things can be freely stated (with “qualified privilege”) as long as the recipient has an interest in receiving the information, and it is said in good faith and without malice.

This configuration can be seen as unfair and one-sided – especially as, with qualified privilege, the onus is on the complainant to provide there was malice and bad faith. But this is how, in this context, the overall balance between free expression and reputation rights has been set in the public interest.

All this means that if Donelan, or any other minister, had genuine concerns about the appointments to a board of an agency which their department supervised, those concerns can be expressed and received, and it would be hard-to-impossible for any person mentioned to actually bring a claim in libel.

And so it is pretty remarkable for a minister to (purport to) do this and end up facing personal liability for libel – and to also expose their department to liability for libel.

Something wrong happened, and it needs explanaing.

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What converted this into a situation where the minister and her department became exposed to legal liability was the decision by the minister to tweet a copy of the letter stating these concerns about specific individuals.

At a stroke (of the keypad) the qualified privilege that would otherwise have protected that communication was lost. The thousands of people to whom the letter was now published had no proper interest in the contents.

And as the key accusations had not been investigated with any duly diligent checks, the publication of the letter on Twitter also could not be said to be in the public interest, which meant that an alternative defence to libel was also not available.

So not only was it a very strange thing for the minister to do, it was legally reckless.

Since the Prospect piece was written and published, it has been reported in the news that the minister had had advice before the letter was tweeted.

If this is correct, and the advice was legal advice (and not, say, a non-legal adviser nodding along), then either:

(a) the minister went against that legal advice; or

(b) the minister was given the wrong legal advice.

If the latter, then the decision to publish the letter on Twitter does not become any the less strange as an act, but the minister can at least say that she was not properly warned of the legal consequences. (And the latter is perhaps possible if the government lawyer concerned was not a media law specialist, though the law here is pretty straightforward and basic.)

But, in any case, no competent lawyer with a knowledge of media law could have advised that publishing the letter on Twitter would be covered by qualified (or absolute) privilege.

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From looking closely at information in the public domain, it would appear that the lawyers for the complainant (and she will not be named in this post, as she has suffered enough) sent a letter before claim to Donelan in her personal capacity.

(This can be inferred because the letter complained of was tweeted from her personal Twitter account, and the retraction was also tweeted from her personal account – hence the legal threat was made against her personally.)

But.

It would seem that the government immediately took the claim as meaning the department would be on the line, and so the government legal service acted for Donelan and not any private law firm.

(This can be inferred from the government statement “This [settlement] was subject to all the usual cross-government processes and aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”  The reasoning for this inference is in the Prospect piece.)

Normally the government would not need to do this.

Indeed, given the rules on public expenditure, the government should not have done this – unless the government believed itself to be exposed to potential liability.

But something about how the claim was framed put the frighteners on the government, and the government legal service jumped in.

Yesterday in Prospect I averred there were two possible reasons for the government dealing with the claim, but recent news reports now suggest a third.

The first is that the government saw the tweet as being connected to her role as Secretary of State – it was part of her departmental work and, although the tweet was from her personal Twitter account, it should be treated as an official communication.

The second is that although the tweet was in her personal capacity, the litigation would drag in the department in a costly and time-consuming way, and this litigation could also develop so as to expose the department to direct legal liability about the letter to the agency. In particular, the department may be anxious that “disclosure” of internal documents could undermine any qualified privilege it had in the letter to the agency.

The third – further – reason is that the department gave the minister duff legal advice saying that the letter was safe to publish on her personal Twitter account.

Whatever the reason – whether it be one of the above, or a mix of them, or a reason not currently obvious – a decision was made that this was the department’s problem, and not just the minister’s unfortunate personal political predicament. And this decision presumably was made by a senior official under government accounting rules.

That this is the position is the only natural meaning of the government’s statement: “This [settlement] […] aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”

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Once the government realised it was on the libel hook then it was sensible for the department to close down this litigation as soon as possible.

It appears that the litigation did even not get beyond pre-action correspondence. It seems no claim was issued at the High Court or served on Donelan.

The government legal service seems not to have indulged in any tiresome litigation posturing along the lines of “as taxpayers money is involved we really would need to see the case properly set out in served particulars of claim” or any other similar nonsense.

Government lawyers needed to settle this case, and fast.

There was a problem here.

Fortunately for the government, it was also in the interests of the complainant to settle this matter quickly.

A retraction was offered, with damages and costs, and this suited the complainant.

Had the complainant pressed on, there is little doubt she could have secured an apology – and the word “sorry” was not in the published retraction.

(Given the news coverage, the minister may have well apologised – as it has been widely but incorrectly reported as an apology.)

In the circumstances, both sides could be satisfied with this outcome – though one suspects there was a rather loud “Phew!” in Whitehall when the settlement was reached.

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For a government minister to visit potential legal liability on their department is remarkable, given how the law generally protects ministerial statements and communications. This required a special fact situation.

But.

This sort of thing was also an accident waiting to happen.

There is a information economy in and about Westminster – where ministers and special advisers and lobbyists and researchers and pressure groups and journalists are constantly swapping material between themselves (and sometimes those involved are wearing more than one hat).

It was perhaps only a matter of time before an example of this spilled into official correspondence, and then was tweeted from a minister’s social media account.

And when it happens there can be legal consequences.

Here it was the law of libel – but one can conceive of situations where other areas of law could be engaged, such as misfeasance in public office.

For not only is the law configured so as to protect ministers and politicians in some situations, it also configured so as to impose immense legal liabilities in others.

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Disclosure: I was a government lawyer about twenty years ago.

*****

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

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*****

Many thanks to those of you who support my blogging: I have had to have a short period away from this blog (and pretty much social media generally), but I am now refreshed and regular blogging should now resume.

A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision

10th February 2024
This week Prospect posted something by me on the issue of a potential border poll in Northern Ireland.

Please click (and read!) here.

This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.

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The starting point is that a potential referendum in Northern Ireland has been in the news.

On one hand:

On the other hand:

The Sinn Fein quote was:

“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”

Asked if she meant before 2030, Ms McDonald said “yes”.

The Prime Minister’s quote was:

Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.

The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister

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Now we will look at the relevant legislation – the Northern Ireland Act 1998.

There are two key provisions.

First, there is section 1, which should be read carefully:

(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)

That section 1 needs to be seen in the context of, well, other sections 1s.

Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):

You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).

By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:

And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.

The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.

At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.

However, sometimes, things change – and demographics change.

Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.

Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.

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Having set out that context, let us go back to the text of section 1 of the 1998 Act:

Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.

The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.

But.

There is that second sub-section, beginning with a “But”.

And this is where it becomes interesting and departs substantially from previous legislation:

The word “shall” in that provision is highly significant.

For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.

If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.

But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.

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So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.

(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)

Here are the first two paragraphs of the schedule:

The two paragraphs are doing different things.

The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.

The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.

On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.

But in invisible ink, so to speak, there are limits to be discretion that are implied by law.

The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.

But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.

(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)

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Now let us look at the fascinating and significant second paragraph:

This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.

The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.

The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.

But.

Element (B) limits that subjective discretion.

Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.

There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

It would become literally incredible.

At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.

The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.

A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.

And that would then make it potentially a matter for the courts.

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The courts will not want to deal with it.

The courts will view this as a political question.

And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.

But.

The judges may not get to duck out of it, as much as they would like to do so.

For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.

Here we need to look at the Good Friday Agreement.

The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:

Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.

And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.

The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.

The other parties were wise to do so.

For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.

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Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.

But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.

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Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.

Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.

Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.

There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.

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Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.

But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.

It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.

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Holding a border poll for Northern Ireland is essentially a political matter.

And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.

Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.

And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.

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Going back to the quotes at the top of this post:

The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.

You can see why, for both, these are the lines-to-take.

An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.

But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.

As always: law shapes policy and politics; and politics and policy shape law.

And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.

*****

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

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How the government is seeking to change the law on Rwanda so as to disregard the facts

30th January 2024

The decisions of judges, other than about case and court management, can be divided into two sorts.

First, there are rulings. These rulings can be about the substantive law, or they can be rulings on the admissibility of evidence, or they can be rulings on procedural technical points. In each instance, the judge will identify the rule, apply it to the situation before the court, and decide the outcome.

Add second, there are findings. These are determinations of fact which are required for the case before the court to be decided at a trial. These facts are, in turn, based on the evidence admitted before the court.

If there is no dispute, then a judge can make a finding of fact based on the undisputed evidence before the court; but if there is a dispute of fact then the judge has to weigh the conflicting evidence and make a finding.

The judge will then apply the rules to the facts found.

(In a criminal trial – and some civil trials – where there is a jury, it will usually be the jurors that will determine any disputes of fact and thereby any consequential legal liability.)

A reasoned judgment by a court deciding a case can include both types of decision; though in a straightforward case there is normally only a dispute of fact.

The key point for the purpose of this post is that rulings and findings are different.

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Now let us go to the Supreme Court judgment on the Rwanda policy.

The court set out the statutory criteria for determining whether Rwanda is a safe third country (emphasis added):

A country is a safe third country for a particular applicant, if:

“(i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;

“(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;

“(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and

“(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”

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After a detailed examination of the evidence, ultimately the Supreme Court decided (again emphasis added):

“As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”

In other words the Supreme Court made a finding of fact based on the evidence placed before it. The evidence “established” a thing, and that thing in turn determined the case.

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Let us now look at the government’s Rwanda Bill currently before the House of Lords on its passage through parliament.

Here is clause 2 (note a Bill has “clauses” as it passes through parliament, which then become “sections” when it becomes an Act):

You can see what the government is seeking to do.

Instead of it being a matter for a court to decide whether Rwanda is a safe third country, the Bill removes that discretion absolutely – regardless of any evidence. Indeed such evidence may not even be relevant with this deeming provision.

A court will not be able to make its own findings, it “must conclusively” decide Rwanda is safe – whatever the actual facts.

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And now let us go to a speech in the House of Lords from the former Conservative Lord Chancellor Kenneth Clarke:

According to Hansard, Clarke said:

“[Ministers] have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country.

“If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.

“That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law.

“Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?

“As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country.

“The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.”

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Yes, Clarke had at best a mixed record as Lord Chancellor – especially in respect of the severe funding cuts to legal aid.

But he is absolutely right to set out, with first principles, the fundamental danger this bill presents.

The government should leave findings of fact to the courts – and if the court’s findings are unwelcome, then ministers should work to change the facts.

Using the law to deem a country safe which the Supreme Court found to be unsafe after a detailed examination of the evidence, is an unwelcome move by this government.

And even a former Conservative Lord Chancellor can spot this.

 

 

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

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How the next general election in the United Kingdom is now less than a year away

29 January 2024

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The next general election in the United Kingdom is now less than a year away.

The latest possible date the next general election can be held is 28 January 2025.

How is this so?

Well, let this blog explain.

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The maximum length of any parliamentary term is governed by statute.

Historically, the maximum term of a parliament has varied.

Once there was no limit. (Imagine that.)

Then there was a three year limit. (Imagine that.)

And then under the Septennial Act of 1715 the maximum length of a parliament was set at seven years. (Imagine that.)

That was then amended under the Parliament Act 1911:

The position is now governed by the Dissolution and Calling of Parliament Act 2022 (which repealed the fixed-term legislation you may recall):

The current parliament first met on 17 December 2019:

This means that under the 2022 legislation, the current parliament has to end by 17 December 2024.

Then under another Act, there will be a period of six days after that dissolution for nominations:

And then the poll has to take place nineteen days after that deadline:

That makes twenty-five days.

On the face of it that would mean a date in early-to-mid January 2025.

But.

We also have this provision:

As the period in question goes over the Christmas and new year period, this moves the maximum date to 28 January 2025.

This is the House of Commons’ own reckoning:

You are welcome, as the sort of people who read and comment on blogs, to see if you can reckon the date differently.

But even if you do reckon the date differently, it is unlikely to be later than 28 January 2025, and so the contention of this post stands: we are less than a year away from the next general election.

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Of course, parliament can now dissolved by (the Crown on the advice of) the Prime Minister before the maximum length of parliament.

Perhaps the Prime Minister will go for May, or for October/November, or some other date?

Who knows?

Perhaps not even the Prime Minister.

Perhaps they may not even still be Prime Minister at the time.

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Is there anyway the maximum period can be extended?

In theory, yes.

It is possible for a parliament to extend its own duration.

The parliament elected in 1935, for example, was extended on annual basis until the second world war had ended in Europe, and there was similar legislation in first world war:

Similar legislation could, in theory, be passed again, invoking some supposed emergency (and some of you may suspect that some government supporters would like to do so).

But even if the House of Commons was to pass such legislation, it cannot be forced through against rejection of the House of Lords as a matter of law (emphasis added):

And, in any case, there would not be enough time to force an extension through against House of Lords opposition (emphasis again added):

So this parliament could be extended, but only with the agreement of the House of Lords, and not just by the government forcing through legislation with its House of Commons majority.

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And so less than one year to go.

The end of this parliament is in sight.

 

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

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

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How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice

 

Comments Policy

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

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

More on the comments policy is here.

The coming year: how the parameters of the constitution will shape the politics of 2024

What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers

15th December 2023

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Those criticising human rights law and lawyers often shy away from spelling out the substance of a particular right

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You may or may not remember Abu Qatada and how he once featured in British politics.

About ten or so years ago, he was the Rwanda policy of his time.

The British government under both Labour and then the coalition of Conservatives and Liberal Democrats wanted to deport him to Jordan.

But the pesky human rights lawyers and pesky human rights judges and pesky human rights courts would not let this deportation happen.

And how the politicians and the media fumed.

The headlines seem somewhat familiar:

But what was missing from almost all the news coverage and political discussion was the actual reason why human rights law was preventing the deportation of Abu Qatada.

And that reason featured an ugly word, a word which politicians and the media of the United Kingdom like to avoid.

That word was torture.

In particular, in this case, whether it was open for a person to face legal proceedings where the evidence had been obtained by torture.

This meant that if you wanted to deport Abu Qatada by withdrawing from the European Convention on Human Rights (ECHR) what you were really saying was that it was fine for a person to face criminal charges based on evidence gained by torture.

Of course, that is not what was being said: what was being blamed were the pesky human rights lawyers and pesky human rights judges and pesky human rights courts.

But all the pesky human rights lawyers and pesky human rights judges and pesky human rights courts in the world can do little or nothing unless there is an actual right being infringed.

In the end the United Kingdom resolved the problem not by breaking human rights law or withdrawing from the ECHR, but by negotiating a treaty with Jordan where it was agreed that torture-gained evidence would not be used:

Abu Qatada was deported not because then Home Secretary Theresa May stood up to the pesky human rights law, but because she and the United Kingdom government complied with human rights law.

And what then happened?

Without being able to rely on torture-gained evidence, Abu Qatada was cleared in Jordan of the criminal charges he faced:

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Ten years or so later, we are repeating the same sort of story.

The pesky human rights lawyers and pesky human rights judges and pesky human rights courts are stopping the government implementing the Rwanda scheme.

But, as with Abu Qatada, most (if not all) of those upset by this non-implementation leave unsaid the actual substantial right at issue.

The principle of non-refoulement means that an asylum-seeker should not be returned (or otherwise removed) to a country where their human rights will be violated.

As the Supreme Court set out in the recent appeal judgment:

Those in favour of the Rwanda scheme do not say (aloud) that they actually want asylum-seekers to end up in places where their lives and freedoms will be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

Just as those in favour of Abu Qatada’s deportation did not say (aloud) that they wanted a person to face charges based on torture-gained evidence.

But in both cases that is the necessary – inescapable – implication of their position.

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Sometimes, of course, when it suits, those opposed to human rights law will happily spell out the substance of their grievance: take prisoner votes, for example.

In that example, both the substance of the right and pesky human rights lawyers and judges and pesky human rights courts could be attacked, and were.

But even with prisoner votes, the underlying problem was resolved by political negotiation and case law rather than defiance:

Again: reform and compliance, rather than confrontation.

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Unlike the prisoner votes issue, however, those in favour of the Rwanda scheme do not want to spell out the underlying human rights issue.

And that omission is – or should be – a tell.

It tells us that those wanting to rid us of human rights law do not want to address why there is a human rights issue at stake.

They want to tell you the tale of pesky human rights lawyers and judges and of pesky human rights courts as being a political problem in and of itself.

No doubt many human rights lawyers and judges are irksome, but it is only possible for them to be obstructive when there is a fundamental right at stake in a concrete case.

And, as with Abu Qatada and prisoner votes, such obstructions can be resolved by, well, politics: reform, negotiation, compliance.

You know: the sort of things which politicians are supposed to do, when they are not blaming human rights law instead.

Using ugly situations as the means to attack human rights law indicates that there is something else going on.

It shows that what is really being clamoured for is for brute executive might to be allowed, despite the violations of rights in individual cases.

But that bit is usually left unsaid.

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A role-reversal? – a footnote to yesterday’s post

1st December 2023

Discussing yesterday’s post with a long-suffering friend, the following thought came to mind.

In the Rwanda judgment, the Supreme Court goes into detail as to the work needed on the ground to make the removals policy robust and practical; and, in turn, the government is seeking to use parliament to simply declare a policy legal instead of illegal.

This seems quite the role-reversal: the court setting out what needs to be done as a matter of policy, instead of the executive and the legislature, and the executive threatening to use the legislature to decide whether something is lawful.

Strange, if you think about it.

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On yesterday’s Supreme Court judgment on the Rwanda policy

16th November 2023

Yesterday the Supreme Court handed down its appeal judgment in the Rwanda policy case.

For an informed view on the case, it is worth taking the time to watch Lord Reed, the President of the court, giving the summary of the judgment:

A court-approved summary can also be read here – and the full judgment is here.

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I wrote a couple of quick posts on the case yesterday for the mainstream media.

At the Financial Times, I did an “instant insight” (and it certainly had one of those two qualities) which emphasised two things which were immediately evident about the case.

First, it was remarkable – and, to me, a surprise – that the current Supreme Court under Lord Reed, which is generally regarded as deferent to the executive and legislature on “policy” matters, went unanimously against the government.

In essence, and to echo John Kander and Fred Ebb’s New York, New York: if a government cannot win on a “policy” matter before a Lord Reed Supreme Court, it cannot win that case anywhere.

Second, the court – perhaps showing more political sense than the entire cabinet – deftly avoided resting the case on the European Convention of Human Rights or the Human Rights Act.

Both instruments were, of course, mentioned in passing – but the effect of the judgment would have been just the same had neither instrument applied to the facts.

The court instead had regard to a range of other legal instruments and sources of law, including what is called customary international law.

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Over at Prospect, I approached the judgment from a different perspective, and I averred that the government could have won the case had they wanted to do so – by which I meant that the government could have negotiated a treaty with Rwanda that would have addressed the concerns ultimately expressed by the Supreme Court, instead of relying on a flimsy Memorandum of Understanding.

And this was not just a commentator-with-hindsight, it was what the government had been explicitly warned about a year ago by a House of Lords committee:

Some other commentators are not with me on this point – and they say that even a substantial treaty with Rwanda, which ensured there was no risk of asylum seekers being wrongly returned to their country of origin, may not have been enough to save the policy in this appeal.

Perhaps they are right and more would have been needed, but on any view such a treaty would have been necessary, if not sufficient: a non-enforceable MoU was inherently inadequate.  It would not have been relied upon had the government been actually serious about this policy.

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I am now thinking about writing a detailed post on the case from a constitutionalist perspective; but in the meantime, let me know below what you think about the decision and what you reckon to be its significance.

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The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday

10th November 2023

Even if the United Kingdom government wins on the lawfulness of the policy, it has already lost in respect of procedure

Those interested in day-to-day politics in the United Kingdom are now looking to next Wednesday for the Supreme Court decision to be handed down on the lawfulness of the Rwanda policy.

The conventional wisdom is that if the current Home Secretary is still in post on Wednesday, a Supreme Court defeat for the government may be the basis for the Home Secretary to resign and campaign for the United Kingdom’s departure from the European Convention on Human Rights, or something.

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Nobody outside the court will know the result in advance and so the hand-down will be a moment of drama and excitement.

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On balance, any legal challenge to “policy” – that is an approach to general political problems – is likely to fail.

For an entire policy to be quashed it would require that each and every possible application of the policy in any concrete situation must be unlawful – that there is nothing that can be done to save a decision in a particular case.

Courts are reluctant to do this – not least because policy is usually the province of politicians, and judges will not want to trespass.

And the current Supreme Court under Lord Reed often seems cautious in dealing with “policy” challenges.

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There perhaps are reasons why this particular policy may be unlawful in the round – and if it was not arguable that the policy was itself unlawful the Supreme Court would not have heard the case – but it would not be shocking if the Supreme Court sides with the government and holds that some applications of the policy may be lawful, subject to certain conditions.

And here is the nub of the situation, which many in politics and the media seem to be overlooking: the courts have already held that there are strict and onerous conditions in particular cases.

These conditions are so strict and so onerous, it may well be that few if any asylum seekers will be relocated to Rwanda, even if the Supreme Court rules that the general policy is legal.

Followers of this blog may recall posts about this at the time of the initial High Court decision and the Court of Appeal decision:

As this blog has before averred, the government can both win and lose a legal case at the same time.

And even if the government wins on whether the policy is lawful, the procedural protections already insisted upon by the courts in the application of the Rwanda policy will present difficulties for a Home Secretary after next Wednesday.

Whoever that is.

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

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