Category: United Kingdom Law and Policy

Do referendums now have a special constitutional status? And has the Supreme Court made it far harder for the UK government to ignore the results of any further “advisory” referendum? Some fascinating passages in today’s Supreme Court judgment

23rd November 2022

This morning the United Kingdom Supreme Court gave judgment in the reference made by the Scottish government about whether the Scottish Parliament could legislate for a non-binding referendum on Scottish independence.

This post is not about the specific issue of the Scottish independence referendum, which I have commented on at the Financial Times.

This post is instead about some fascinating passages in the judgment about referendums.

By way of background, the usual position is that there is a binary: on one hand there is parliament, and on the other hand there are extra-parliamentary exercises, such as referendums and consultation exercises.

These extra-parliamentary things are usually seen as advisory.

Sometimes there is an exception – the electoral reform referendum would have had a direct legal effect had a majority supported change.

But generally, referendums and such like are glorified opinion polls.

Any mandate is political, not legal.

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In today’s judgment, a unanimous Supreme Court seems to have put forward a different view (which I have broken up into sentences for flow and added bold for emphasis):

“78. The effect of the Bill, however, will not be confined to the holding of a referendum. Even if it is not self-executing, and can in that sense be described as advisory, a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion.

“It is a democratic process held in accordance with the law which results in an expression of the view of the electorate on a specific issue of public policy on a particular occasion. Its importance is reflected, in the first place, in its official and formal character.

“Statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.

“79. That legislative framework is put in place because the result of a lawfully held referendum is a matter of importance in the political realm, even if it has no immediate legal consequences.

“That has been demonstrated in practice by the history of referendums in this country, and has also been recognised by this court.

“For example, in relation to the 2014 referendum on Scottish independence, Lord Hodge stated in Moohan v Lord Advocate […] with the agreement of the majority of the court, that “the referendum is a very important political decision for both Scotland and the rest of the United Kingdom”.

“In relation to the 2016 referendum on leaving the European Union, the majority of the court stated in R (Miller) v Secretary of State for Exiting the European Union […] : “[T]he referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation. But that in no way means that it is devoid of effect. It means that, unless and until acted on by Parliament, its force is political rather than legal. It has already shown itself to be of great political significance.”

[…]

“81. A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it.

“A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate.

“The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement.

“It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.”

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With regard to these “important political consequences”, the Supreme Court held that such a non-binding referendum would “in all the circumstances […] relate to” the reserved matters of the Union and the sovereignty of parliament, even if the referendum was not legally binding.

In particular, the Supreme Court emphasised that “statutory authority is needed (and would be provided by the Bill) to set the date and the question, to define the franchise, to establish the campaign period and the spending rules, to lay down the voting rules, to direct the performance of the counting officers and registration officers whose function it is to conduct the referendum, and to authorise the expenditure of the public resources required. Statutory authority, and adherence to the statutory procedure, confer legitimacy upon the result.”

A dedicated referendum, under a dedicated statute, is not to be taken lightly.

The key point in these passages is that “a lawfully held referendum is not merely an exercise in public consultation or a survey of public opinion”.

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The import of this judgment would seem to be that dedicated referendums set up by statute now occupy an intermediate position in the constitution of the United Kingdom.

They do not bind parliament (or presumably the courts), but they are not mere opinion polls either.

Such referendums and their results are, as a judge may say, “seen”.

The results of these referendums have a force which, even if not legally binding, is legally recognised and which may, in certain legal cases, make a legal difference.

Perhaps this may have implications in certain legal cases where there are “legitimate expectations” that a public body will act or not act in a certain way.

Perhaps it may have implications for what will follow a border poll in Northern Ireland, or in a further Scottish independence referendum.

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To an extent this is a judicial statement of the obvious political reality of referendums – but it is significant for it not only to be expressly acknowledged in a judgment but also (via “all the circumstances”) to have made a difference in this case.

Special referendums now appear to have a special constitutional status.

They matter and their results will be judicially recognised – even, as the Supreme Court expressly said here, if the United Kingdom government has not given any political commitment to act upon them.

If so, let us see what happens with the next one – that is, if there is a next one.

The consequential litigation may be fun.

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The one big problem with House of Lords reform

22nd November 2022

As today is a palindrome day – 22/11/22 – here is another palindrome: 111.

One hundred and eleven.

That is, the number of years since this statute was passed:

And if you read the preamble above, you will see that Act was only intended to be temporary, until there was a second chamber constituted on a “popular” basis.

But one hundred and eleven years later, the House of Lords is still there.

For reform is easy to announce, but hard to accomplish.

And in the House of Lords there are still ninety-one hereditary peers – and even twenty-six bishops from the Church of England (which, remember, is the established church in only one of the four constituent nations of the United Kingdom).

There are also several hundred life peers, each of whom is the beneficiary of some sort of patronage, or closed selection process, and none of whom are elected or in any meaningful way politically accountable.

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Of course, the House of Lords should be reformed or replaced.

Of course.

But how?

And here is a big problem about the House of Lords in our constitutional arrangements.

We need to first understand what a second chamber is for.

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Any reform of, or replacement for, the House of Lords has to be carried by the government of the day with the support of the House of Commons.

And neither the government of the day nor the House of Commons will usually want to strengthen the power of a second chamber.

This means that any reform or replacement is likely to strengthen both the government or the House of Commons, or both.

You may be think that would be a good thing, and perhaps it is, but as it stands the House of Lords provides a check and and a balance to any government that commands the House of Commons.

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The House of Lords cannot veto any legislation.

And the House of Lords will not (by convention) delay any legislation for which there is a mandate at a general election.

But for legislation which has been forced through the House of Commons with little or no scrutiny, the House of Lords currently provides an essential function, despite its lack of democratic legitimacy.

How can this function be maintained – even enhanced – with reform or replacement?

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This problem is why any fundamental reform of, or replacement for, the House of Lords really needs to be complemented by fundamental reform of the House of Commons.

For, as it stands, the House of Lords currently saves the House of Commons – and government ministers – from themselves.

Repeatedly, routinely, almost daily.

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Replacing life peers with elected politicians seeking re-election will removed the independence and expertise that provides the merit of the House of Lords.

Using some other basis of election – by regions or otherwise – may create a chamber with an equal claim to democratic legitimacy, thereby creating logjams, rather than revision.

As with the Crown, one useful feature of the House of Lords is not so much the power it has, but the power it prevents others in the polity from having.

So any serious discussion about reform or replacement should be preceded by anxious consideration of function and purpose: what is the House of Lords or new other chamber to do?

What is it actually for?

And then we should work backwards from that so as to see how it should be comprised.

By putting the question of composition before the question of function and purpose, one is perhaps putting the state coach before the horses.

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It is to be welcomed that the Leader of the Opposition, who has a real chance of being Prime Minister after the next general election, is openly discussing doing something with the House of Lords.

The first term of a left-of-centre government is usually the only time we will ever get a programme of constitutional reform – for example in 1945-50 or 1997-2001.

There are certainly a number of smaller reforms which could be made, including excluding the bishops and remaining hereditary peers, and reducing the scope of patronage by existing and exiting prime ministers.

All easy, quick wins.

But anything more significant requires there to be a balancing exercise, between the new chamber and the House of Commons and the executive.

And that balancing exercise should not be rushed.

Though, of course, we should not have to wait another one hundred and eleven years.

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A “Swiss-type” post-Brexit arrangement with the European Union for the United Kingdom?

21st November 2022

We had another Sunday special this weekend:

The newspaper considered the story so important that it was splashed on their front page:

You may have prejudices – indeed Very Strong Opinions – about political journalists and Sunday newspapers, but the starting assumption here must be that the reporters and the editor believed this story had sufficient substance so as to warrant such prominence.

The story would not have been invented.

If you look at the report, the basis for the story is as follows:

And:

Reading this closely we can note that (a) this is set for the “next decade” rather than an immediate policy and (b) the source(s) quoted is(/are) not said to be ministerial level.

Although “ministers” are said to be “confident” about the “thaw”, the “senior government sources” in favour of this Swiss-type arrangement would appear to not to be ministers.

Had it been ministers, the newspaper would presumably have said so.

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Many readers of this blog will also have Very Strong Opinions about a Swiss-type arrangement.

I have two initial responses.

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The first is that this was another example of British exceptionalism and unilateralism, with the assumption that just because the United Kingdom wants something, it will get it.

Perhaps we can click our fingers and speak loudly and slowly in English as we demand this arrangement.

There seems no realisation that any agreement requires all parties to agree, and there is no indication that the European Union would want a Swiss-type relationship with the United Kingdom.

The European Union does not even want a Swiss-type relationship with the Swiss.

A Swiss-type relationship requires a number of discrete agreements to be negotiated and implemented in respect of sectors and subjects.

The European Union would be unlikely to have the patience or the inclination to deal with the United Kingdom, with the latter’s still-raw post Brexit politics and continuing governing party psychodrama, in such a fiddly manner.

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But.

My second response was a mild cheer.

Regardless of the impracticality of the suggestion, it at least showed a glimmer of realism in Whitehall that the United Kingdom does need to re-think its relationship with the European Union internal market and for that relationship to be placed on a better footing.

And if we read carefully, this was not a demand for action tomorrow, but a proposal for the direction of travel over the next ten years.

The source is correct that “it is overwhelmingly in the businesses interests on both sides”.

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But, but.

Today’s political news has been about the government denying this report.

I suspect that this denial is true too, on its own terms.

This denial is not incompatible with the actual words of the source quoted above, given Sunak and his government are unlikely to still be in power in three years’ time, let alone in ten years.

The commercial and economic pressures for a closer and more sustainable relationship will continue.

The politics, of course, are toxic – but there are at least two general elections in the next ten years.

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The preference of this blog is, as many of you will know, for a close association between the United Kingdom and European Union, with shared institutions and agreed processes, which would allow us to participate in the internal market.

(“But that will mean we are ‘rule-takers!’ “ will comment Pavlov’s commenters, not caring that we are now very much rule-takers in our current predicament.)

And such an association is better done as a single agreement rather than many Swiss-type bilateral agreements.

The politics in the United Kingdom will need to settle down before this can happen.

But the commercial and economic case will continue to be there, getting stronger and more compelling with each economic quarter.

Piloting the United Kingdom to such a relationship, and convincing the European Union that it is sustainable to agree it with us, is the great challenge for United Kingdom statecraft over the next decade.

That, and the great challenge of even keeping the United Kingdom together in one union.

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“Is it time to retire the .gb top level domain?”

17th November 2022

Here is (what may be) an amusing question – what should be done, if anything, with the .gb domain?

According to the United Kingdom government, there is no need for the .gb domain, given the pervasiveness of the .uk domain.

And so it seems it can be just got rid of.

But.

Getting rid of .gb may presume or preempt the outcome of possible constitutional changes in the next few years.

In the event there is Irish unification – which is possible in the next few years – then we would no longer be the United Kingdom of Great Britain and Northern Ireland.

And so we may then need .gb.

Though we could perhaps then be the United Kingdom of Great Britain, full stop.

And so still be .uk.

At least in our own minds.

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But if there is Scottish independence, then presumably we will no longer even be Great Britain – and thereby not .gb.

Maybe, without Scotland or Northern Ireland, England and Wales will try to persist in calling themselves either the United Kingdom or Great Britain.

You know, just like those pop bands from the 1970s and 1980s that tour the nostalgia circuit but with only one or two of their original members.

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Perhaps, if Scotland and Northern Ireland do leave the union, England and Wales could adopt the domain .ew ?

 

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Or perhaps not.

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Given it seems that it would not cost anything to get rid of it, and that it appears nobody else could take it, there may be no practical risk in letting .gb go.

But this will be one of many questions about our self-identity if and when Northern Ireland and Scotland (and less probably Wales) leave the union.

And just as the history of these islands to 1922 can be told as a move from separate nations to one union with ever grander names, the history of these islands from now may be told as a sequences of less expansive domains for the London-based government:

.uk > .gb > .ew > .eng > .lon ?

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Getting any quick international trade deal is easy, if you give in to the other side

15th November 2022

There is one way to get a “quick win” international trade deal.

That way is to just give in to what the other side want, but without gaining anything of equal value in return.

It really is quite easy.

All you have to do is turn up to the negotiation, ask what the other side’s negotiators want, give it to them, and – Hey Peston! – the United Kingdom has a trade agreement.

It is as easy as falling off a eucalyptus tree.

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This week in the House of Commons there was a debate on the Australian trade deal.

In that debate the former minister George Eustice said (and this should be read carefully):

“…the Australia trade deal is not actually a very good deal for the UK, which was not for lack of trying on my part.

“Indeed, as my right hon. Friend pointed out, there were things that we achieved, such as a special agricultural safeguard for years 10 to 15, staged liberalisation across the first decade and the protection of British sovereignty in sanitary and phytosanitary issues.

“It is no surprise that many of these areas were negotiated either exclusively or predominantly by the Department for Environment, Food and Rural Affairs on behalf of the UK team, but it has to be said that, overall, the truth of the matter is that the UK gave away far too much for far too little in return.”

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It gets worse:

“…we should not set arbitrary timescales for concluding negotiations.

“The UK went into this negotiation holding the strongest hand—holding all the best cards—but at some point in early summer 2021 the then Trade Secretary my right hon. Friend the Member for South West Norfolk (Elizabeth Truss) took a decision to set an arbitrary target to conclude heads of terms by the time of the G7 summit, and from that moment the UK was repeatedly on the back foot.

“In fact, at one point the then Trade Secretary asked her Australian opposite number what he would need in order to be able to conclude an agreement by the time of the G7.

“Of course, the Australian negotiator kindly set out the Australian terms, which eventually shaped the deal.”

Ooof.

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As regular readers of this blog will note, this idiotic approach to negotiations was pretty much also that adopted by the government of the United Kingdom with the withdrawal and relationship agreements with the European Union.

Instead of taking negotiations seriously, there were artificial deadlines imposed for domestic and media political consumption, regardless of the quality of the agreement.

In essence: the government of the United Kingdom did not and does not take international agreements seriously.

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Part of this lack of seriousness is down to faux-nostalgia.

The notion that because nearly two hundred years ago the United Kingdom could go around the world agreeing trade deals on its own terms.

The idea that, like some latter-day Richard Cobdens, we can pop across the channel and agree a free trade deal, and still be back for tea.

Indeed, the very phrase “international trade deals” is invoked and bandied about by supporters with Brexit with misty-eyed sentimentality.

Being able to enter into such agreements was, it was claimed, one of the advantages of Brexit.

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But.

International trade agreements are not creatures of sentiment.

International trade negotiations are perhaps the most hard-headed, unsentimental things one can imagine in the commercial world.

Indeed, international trade law is commercial law for grown-ups.

Any real benefits gained from such a deal are hard-negotiated and will come at a cost elsewhere.

And a benefit, in any case, may only have an overall marginal economic effect.

For forty-five years, the United Kingdom benefitted from the experience and expertise of the European Commission in negotiating trade deals, with the commission being able to deploy the clout of the single market and twenty-eight member states.

In this way, the commission were able to negotiate deals with mattered and were worth having.

That has now been thrown away, with the United Kingdom leaving the European Union’s common commercial policy and internal market.

What we have now have instead are bravado and bluster, and Elizabeth Truss asking what the other side want so that we simply can give it to them.

And we also have the moral hazard of Boris Johnson and David Frost agreeing to the Northern Irish Protocol and then saying we will renege on it.

We could not be in a less impressive place on the world stage.

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Yes, perhaps, Eustice should have resigned rather than go-along with what he knew to be a bad trade agreement with Australia.

Perhaps.

But it is a Good Thing that he has set out the real position now on the floor of the House of Commons.

The United Kingdom, in a post-Brexit world, is going to learn slowly and painfully that the superficial approach of Johnson and Truss to international agreements is disadvantageous.

Well, at least the limitations of this approach are becoming apparent.

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

8th November 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All Souls Day, 2022

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

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

On Monday she told members of parliament:

“…I have never ignored legal advice.

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

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

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

The home secretary herself makes that distinction and juxtaposition.

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The home secretary also said in her prepared statement:

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

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

Note that “also”.

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

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

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

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

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

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

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

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The home secretary in another reply said:

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

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

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

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

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

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

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

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

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

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

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

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

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On Hallowe’en, ITN reported this further information:

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

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

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

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

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

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If so, what is a home secretary to do?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The leader of the opposition then asked the prime minister:

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

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

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

*

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

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

She has decided that the non-legal factor prevails.

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

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

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

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

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

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

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

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

*

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

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

***

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

All Saints’ Day, 2022

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

*

The resignation letter contained the following passage:

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

“This constitutes a technical infringement of the rules.

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

“Much of it had already been briefed to MPs.

“Nevertheless it is right for me to go.

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

*

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

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

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

Read that sentence carefully.

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

*

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

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

You can read this letter in HTML and in pdf.

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

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

Now let us have a close look.

*

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

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

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

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

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

*

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

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

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

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

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

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

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

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

That last sentence is curiously worded.

It is carefully limited to “data”.

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

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

But the author chose not to do this.

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

But the denial is limited carefully to “data”.

We can only wonder why.

*

The draft statement was incomplete.

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

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

*

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

The covering message was:

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

What did he think of what?

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

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

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

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

*

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

This unexpected reply was at 8:34am:

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

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

The “before” here is vague.

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

When was that moment?

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

And what did the author decide to do?

Two things.

*

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

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

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

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

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

*

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

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

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

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

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

*

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

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

*

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

“Suella

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

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

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

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

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

“Andrew Percy.”

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

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

*

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

We are then told of a coincidence.

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

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

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

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

*

It is now noon:

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

*

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

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

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

And who does she “communicate in full” to?

Her Private Secretary?

No.

Her Permanent Secretary?

No.

The Cabinet Secretary?

No.

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

We are then told:

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

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

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

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

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

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

*

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

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

There are two very interesting turns of phrase here.

The “Immediately” implies promptness.

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

*

It is now almost 1pm on the Wednesday.

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

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

And then:

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

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

*

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

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

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

*

But.

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

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

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

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

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

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

The author also did not inform the Cabinet Secretary.

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

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

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

*

For completeness, the further letter also states:

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

Note: six.

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

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

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

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

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

*

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

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

Note: “first time”.

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

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

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

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

*

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

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

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

The further letter raises more questions than provides answers.

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

But not both.

***

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

Hallowe’en, 2022

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

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

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

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

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

*

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

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

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

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

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

No.

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

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

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

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

You comply.

Simple as that.

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

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

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

*

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

This is wholesale non-compliance.

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

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

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

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

Who knows.

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

*

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

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

Brace, brace.

 

***

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For and against changing the electoral system

27th October 2022

Here is a brief post on a constitutional topic that I have avoided on this blog: the electoral system.

This is a topic on which many of you will have Very Strong Opinions – and, as with a codified constitution and membership of the European Union, it may be difficult for you to comprehend why someone could possibly not be in favour.

But.

The value, at least for me, in the current system is twofold.

First, I think there is merit in one person being the representative for a distinct, meaningful area – for example, Birmingham Edgbaston, or the Isle of Wight, or the Western Isles, and so on.

This is especially so given the convention that Members of Parliament refer to each other by their constituencies.

It means that parliamentary debate is itself a congress of places and local identities.

One member constituencies also mean we have by-elections, which provide a form of accountability between general elections that can be surprisingly effective – for example, Johnson’s fall from office followed two huge by-election defeats.

Second, many systems of proportional representation seem to give disproportionate power to party lists and party managers, breaking the direct link between the voter and the candidates.

But, but.

Those two factors are not overwhelming, and perhaps can be offset by other factors.

It cannot be right for certain parties, such as the Green Party, to have so low a parliamentary presence given their national share of the vote.

The current party system is also somewhat artificial, and the parties are themselves faction-ridden coalitions kept together by the needs of the electoral system, and this just causes different political problems – as we have seen with both the Conservative and Labour parties in recent years.

The current system has not even avoided hung parliaments – for example, in the late 1970s, the mid 1990s, and between 2010-15 and between 2017-19.

And the powers of party managers and party lists is just exercised in different ways, with certain candidates benefiting from safe seats.

*

So my mind is not made up, and recent experiences have tested my assumptions in favour of the current system.

(I do not have Very Strong Opinions on every constitutional issue!)

Can a case be made for electoral reform which (a) does not involve name-calling of those opposed, (b) keeps the geographic links without giving party lists and managers too much power, and (c) keeps the possibility of by-elections as a potent political device between elections?

I open to persuasion – and so may be many others who have hitherto been wary of electoral reform.

***

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