Category: United Kingdom Law and Policy

Four truths about the Northern Irish Protocol

16th May 2022

Here are, to begin with, a couple of truths about the Northern Irish Protocol – both of which will be familiar to those who are hostile to or critical of Brexit.

First, the protocol was negotiated, signed and implemented by the Boris Johnson government – who even had changed government policy from Theresa May’s previous backstop.

Indeed, Johnson even went to the electorate for a mandate for this ‘oven-ready’ deal.

He and his government owns the protocol.

Second, triggering Article 16 will not do what the more excited media and political supporters of the government say (and perhaps think) it will do.

As this blog has previously set out, triggering the provision only means there will be talks and possible remedial measures within a narrow compass.

All because a thing can be triggered, it doesn’t make it weapon.

But.

There are other truths which those hostile to or critical of Brexit may not so easily want to admit.

For a third truth is that there is an issue not of black-letter law, but of – for want of a better word – application of the protocol.

This point is deftly summarised in a recent thread from Hilary Benn, who is hardly a fire-breathing Brexiter:

Of course, the European Union – including Ireland – are right to be concerned about maintaining the integrity of the single market.

Yet, it is less clear that that goods going to Northern Ireland from across the Irish Sea put the single market at risk – or at least at sufficient risk so as to justify the current regime of checks.

And ‘proportionality’ and ‘subsidiarity’ are, after all, concepts drawn from European Union law and policy.

In other words – without breaking (or amending) the Northern Irish protocol, a great deal of the commercial – and political friction – could be allayed – by a less strict (or more realistic) approach to concepts such as ‘at risk’.

Just because there are rules, they do not need a maximalist interpretation.

And fourth, and as this blog has averred before, Northern Irish politics do require there to be consent from both the unionist and nationalist communities.

Overall majorities are not enough.

Of course, the Democratic Unionist Party has only itself to blame for supporting Brexit – and the Johnson government – what else did they think would happen?

(And why the Democratic Unionist Party supported Brexit is a genuine mystery of the Brexit story.)

But the the practical political problem is that the protocol appears not to be supported by any elected unionist politicians.

You may think they should support the protocol – and you may be dismissive of them for not doing so – but the need for consent from both communities cannot be waved away.

So: there is a problem – of the Prime Minister’s own making and for which triggering Article 16 will not – by itself – solve.

But it is also a problem that needs to be considered flexibly and sensitively.

As this blog has said many times, not all problems have solutions.

Yet there is sometimes no alternative to seeing if there is a way forward – and such attempts should be given a chance.

It is just unlikely that a solution will come from the current government with its current bombastic silliness and confrontational gesturing.

The attitude of this government is a problem that can be solved – and as soon as possible.

 

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The outlaw ministry

12th May 2022

From time to time on social media you will get people asking about the difference between something being ‘unlawful’ and being ‘illegal’.

And whenever this happens you will invariably get some wacky funster replying that the difference is that one means someone is acting outside the law and the other is a sick bird.

Ho ho, every time.

But.

The real problem with this government is not that it acts unlawfully or illegally.

The problem is that it acts as if it is an outlaw – that for the government, law does not apply in the first place.

It is not so much that the government cares about breaking any law, or about whether it has any legal basis for what it does.

Instead, the government does not see law as even applying to it.

To use a lovely Scottish word – the government acts as if it is ‘outwith’ the law.

The law applies to little people, and not this government.

‘Law and Order’ is a campaigning slogan, but not a principle of government.

As this blog has previously averred, this government engages in three types of lawlessness.

First, it often conducts itself without any lawful basis.

Second, it seeks to introduce legislation that will enable it to freely break the law.

Third, it permits law-breaking at the highest level.

It is difficult to imagine a government with less respect for law, and for the rule of law.

This is not so much a government of law breakers, but a government of outlaws.

The law is an inconvenience which can be disregarded as and when it is inconvenient.

Such an approach has its hedonistic attractions, but it cannot end well.

Brace, brace.

 

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What Theresa May got right (but also very wrong) about Brexit – a look at her striking intervention in the Queen’s Speech debate

11th May 2022

Theresa May is a far better as a former Prime Minister than she ever was as a Prime Minister.

Other living former Prime Ministers have all stepped away from the House of Commons – and have also avoided appointment to the Lords.

Hers alone is the voice of a former Prime Minister in parliament at a time of this generally dire premiership.

Her premiership was not a good one – and from her early blundering over Brexit ‘red lines’ flowed almost all of the Brexit problems the United Kingdom has since had to deal with.

(And, of course, she was a worse Home Secretary, where she instigated the vile ‘hostile environment’.)

But.

May got one thing right.

And that was – given the respective positions of the United Kingdom and the European Union – there had to be either a ‘backstop’ or a trade border down the Irish Sea.

She chose the ‘backstop’ – which, in general effect, meant that if the United Kingdom and Ireland/European Union did not agree a trade agreement, certain measures would have to be implemented in Northern Ireland in respect of cross-border trade.

That proposal failed to pass the House of Commons – indeed, those versions of the  withdrawal Bill suffered one of the heaviest government defeats in parliamentary history.

The new Prime Minister Boris Johnson – in a cynical manoeuvre that must have seen very clever at the time – dropped the ‘backstop’.

As this blog has previously set out, this was very much his measure – he changed the United Kingdom policy, he negotiated and agreed a revised treaty, he got it through parliament, and he obtained a majority for it in a general election.

Johnson used every power of the Prime Minister to get this new Northern Irish Protocol through Parliament, and at speed.

Parliament was denied any real opportunity to scrutinise the measure.

And Brexit supporters clapped and cheered this splendid wheeze so as to ‘Get Brexit Done.’

They are not clapping and cheering now.

For the cost of the Brexit which got ‘done’ was the Northern Irish Protocol.

At the time, this seemed a price Brexit supporters were willing to pay.

But now they do not want to pay it.

They want it both ways – they want the United Kingdom outside of the European Union but they now want to reject the only means by which that was possible in late 2019/early 2020.

Cakes, eating, and so on.

And so it was not surprising that May took an opportunity to respond to an intervention from a Northern Irish unionist MP who opposed her ‘backstop’ in the following terms:

She said:

“I put a deal before the House that met the requirements of the Good Friday agreement and enabled us not to have a border down the Irish sea or between Northern Ireland and the Republic of Ireland. Sadly, the Democratic Unionist party and others across the House chose to reject that, but it was an opportunity to have what the right hon. Gentleman wanted.”

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Had May had her way, however, there would have been alternative problems.

This is because of her early ‘red lines’ blundering, the only two withdrawal agreements available by late 2019, were the ‘backstop’ and Johnson’s calamitous clever wheeze of a border in the Irish Sea.

And this is because of the fundamental problem – that has never been addressed – of how one maintains an open border on the island of Ireland with no customs or trade infrastructure, if Northern Ireland leaves the European Union customs union and single market.

Some problems do not have solutions.

And, as this blog has also previously averred, it is not enough for those critical of Brexit (and this government’s Brexit policy) to point and jeer at the government and remind ministers that they negotiated and signed the Northern Irish protocol.

It may be satisfying, but it is not sufficient.

And any significant move in Northern Ireland does not need a mere majority, but actual consent from the nationalist and unionist communities.

This was pointed out yesterday by a unionist politician who had been opposed to Brexit:

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When May took office she insisted Brexit would mean Brexit.

She insisted that the United Kingdom would leave the European Union customs union and single market.

Yet a Brexit with the United Kingdom remaining within the single market was possible – and this is the basis on which other non-European nations trade with the European Union (as part of EFTA).

So she may have been right in her answer to the unionist politician yesterday.

But on a more fundamental level, she and other Brexit-supporting ministers got it very wrong.

**

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This is not a proposal for “a Bill of Rights” – this is semi-waffle in support of vanity legislation

10th May 2022

Today it was announced in the Queen’s Speech that there will be a “Bill of Rights”.

Some are alarmed at this proposal – and warn darkly (and perhaps correctly) that this will be a fundamental attack on the Human Rights Act 1998 and on the protections we have under the European Convention on Human Rights (ECHR), to which that Act gives effect in domestic law.

One plausible consequence of the proposal is that there will no longer be a a law called ‘the Human Rights Act’ in our statute books.

This post, however, will take a sightly different approach.

This post is one more of derision than of alarm.

For the proposal set out today is all rather pathetic.

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Let us start with the Queen’s Speech.

The relevant portion of the speech was this:

“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

There is already a Bill of Rights – at least in the law of England and Wales.

That law from 1688 or1689 (depending on how pedantic you affect to be) is famous and significant, and it is one of few ancient pieces of legislation that those with an interest in such things can name.

Any government bringing forward a new (or revised) Bill of Rights would presumably be proud, promoting the legislation as a highlight of its new parliamentary schedule.

But this latest “Bill of Rights”?

It was 800 words into a 940-word speech

Even in the accompanying briefing for journalists, it made only page 118 of a 140-page document.

The Bill is not so much an initiative, but an afterthought.

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And now we turn to content.

There is no real content.

The government has not published the proposed legislation, and indeed the Ministry of Justice (MoJ) is not in a position to publish the proposed legislation.

The MoJ told me today that the consultation on the reform only closed on 19 April and the responses are still being reviewed.

This lack of content can also be seen in the briefing note:

“The purpose of the Bill is to:

● Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.

● End the abuse of the human rights framework and restore some common sense to our justice system.

The main benefits of the Bill would be:

● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.

● Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.

● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.

● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.

The main elements of the Bill are:

● Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.

● Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.

● Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant. 

● Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

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These three groups of bullet-points – ‘purpose…main benefits…main elements’ – indicate padding, and indeed the bullet-points are interchangeable between the sections.

Almost none of the bullet-points are concrete.

If anything they are almost all talking-points.

Some are semi-meaningless waffle – “restore some common sense” and “responsibilities exist alongside rights” are slogans rather than thoughts.

And to the extent any of these bullet-points do have meaning, their import is not to protect rights but to limit rights.

This is not a “Bill of Rights” but a Bill to, as far as possible, remove or restrict rights.

Only one bullet-point – and you can check if you doubt me – is even positive about substantive rights: “● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate”.

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Most significant of all – and this is what the government wants you to miss – is that this Bill of Rights will not substantially affect the position of the ECHR in the United Kingdom.

And this is because the Good Friday Agreement requires the United Kingdom to give effect to the ECHR in Northern Ireland.

If you look carefully at the proposals, there is mention of making sure the courts do not go further than the ECHR – “UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court” – but there is not (express) mention of getting rid of the ECHR in domestic law or any (express) suggestion that the United Kingdom follow Russia in leaving the Council of Europe.

So this proposal is, in part, an exercise in misdirection – an attempt to make it look like the government is ending the Human Rights Act but pretty much keeping the ECHR in domestic law.

*

Perhaps the government will put forward a Bill with more concrete proposals.

Perhaps the Lord Chancellor – facing chaos and crises in the court and prisons systems – will achieve his own political priority of replacing the Human Rights Act with some law that does much the same with a different name, but with added (and pointless) tinkering.

Perhaps any of this is worth the effort of new primary legislation – where (if needed) any changes could be done by amendment to the existing legislation.

Perhaps.

But.

The impression given by this proposal is that the new “Bill of Rights” is legislation for the mere sake of legislation.

None of the bullet-points – you can check – individually or together add up to the need for a new statute – let alone something with as hallowed and grandiose a title as a “Bill of Rights”.

On the face of today’s proposals, this is mere vanity legislation.

**

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

**

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The Lord Chancellor’s extraordinary tweet about the Tracey Connelly case

6th May 2022

Here is a tweet from the Lord High Chancellor and Secretary of State for Justice (and a qualified solicitor):

It is a tweet that goes to one of the most important issues for any constitution: the respective powers of the executive and the judiciary in individual legal cases.

Tracey Connelly, as is widely known, was the mother of Peter Connelly, who died in 2007.

In 2008 she was convicted of “causing or allowing the death of a child or vulnerable person” – though not of murder or manslaughter – and she was sentenced to indefinite imprisonment for public protection, with a minimum term of five years.

It was reported that the then Attorney General considered referring the sentence to the Court of Appeal for being unduly lenient – but it seems no such referral was ever made, no doubt because the sentence was appropriate for the offence for which Connolly was actually convicted.

(Steven Barker was also convicted of this and another offence involving another child – and in respect of Peter Connolly’s death the sentence was for twelve years.)

That minimum of five years for Tracey Connelly expired in 2013 – and it appears she was released on licence from 2013-15 – but almost ten years later she is in prison.

This is because the Parole Board has, until recently, repeatedly refused her parole.

As the parole specialist Andrew Sperling explains in this useful and important thread, the test for the Parole Board is preventative rather than punitive:

Sperling also helpfully sets out that the Ministry of Justice participated in the Parole Board’s deliberations.

The Ministry of Justice officials all supported Connolly’s release.

This is the Lord Chancellor’s very own department.

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The Lord Chancellor even had the opportunity to challenge the Parole Board decision – and that was rejected.

In a fully reasoned and detailed decision, each of the Lord Chancellor’s grounds for his application were rejected.

The judgment even contained these remarkable paragraphs:

Ouch.

The Lord Chancellor – seriously – instructed counsel to say that the Parole Board had not taken proper account of his views, but he did not and could not identify what those views were.

That is embarrassingly bad.

*

The Lord Chancellor now wants to do things differently.

He wants to be able, as a politician and a minister, to personally overturn decisions of the Parole Board even when his own department’s officials support release.

Presumably this would be a power that would be exercised in those few cases that are selected by the media to be notorious.

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What is the Lord Chancellor’s motivation for wanting a ministerial veto?

Here, again, Sperling is spot on:

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Let us look again at the extraordinary tweet of the Lord Chancellor:

There is no sensible doubt that the cruelty in the Connolly case was substantial and warranted significant punishment.

And the court sentenced her for that offence.

A sentence which the government did not (and probably could not) challenge at the time as being unduly lenient.

The question is whether it is now safe for Tracey Connelly now to be released.

That question has been considered, with reference to relevant material, by the Parole Board, an independent body, with input from the Lord Chancellor’s own officials.

An answer was then reached by the Parole Board, which the Lord Chancellor could and did challenge in court, and the the Parole Board’s answer survived that challenge.

And the answer the Parole Board reached was ‘yes’.

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The issue is not that the executive should not have any role in questions of sentencing and probation in individual cases.

The executive should and does have a role.

The executive can refer seemingly unduly lenient sentences to the Court of Appeal.

The executive can make representations and submissions to the Parole Board.

The executive can apply so as to challenge a decision of the Parole Board.

This is how the separation of powers should and does work in practice.

Punishments should not be at the personal fiat of any minister, even that of the Lord High Chancellor.

**

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Russia’s flimsy constitution and the USA’s rigid constitution, and the notion that codified constitutions are necessarily a good thing

5th May 2022

From time to time this blog (and my commentary elsewhere) is accused of being against a codified constitution for the United Kingdom.

(A codified constitution is often also known – inexactly – as a ‘written’ constitution, but uncodified constitutions are usually written down, just not in one place.)

This accusation of being against a codified constitution for the United Kingdom is, in my view, unfair and incorrect.

A codified constitution for the United Kingdom may be a good and welcome thing.

Or it could be a horrible and unwelcome thing, entrenching domestic executive power yet further.

It all depends.

This is because codified constitutions can be good things or bad things.

The view of this blog (and my commentary elsewhere) is that a codified constitution of the United Kingdom is not necessarily a good thing.

And it rejects the casual plea ‘and this is why we need a written/codified constitution’ that often follows some political outrage.

A codified constitution is not a liberal panacea.

It is not even necessarily better than our current constitutional arrangements – so the alternative plea of ‘at least it would be a step in the right direction’ is also misconceived.

A codified constitution could be, from a liberal perspective, very much a step in the wrong direction.

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Codified constitutions are relevant to two of the current main international news stories – the Russian invasion of Ukraine and the likely overturning in the United States of Roe v Wade.

As this blog has previously set out, there are few constitutions which on paper are as liberal and wonderful as that of Russia.

And yet the Russian president had unlimited illiberal powers at home and no check on what he orders to be done (or attempted) abroad.

In the United States, the fundamental right of a woman of access to the means of aborting a pregnancy may no longer be a constitutional right, and thereby enforceable in all the states of the union.

This is because its status as a constitutional right rests only on mere case law, and not on the express provisions of the constitution itself.

And that, in turn, is because the constitution of the United States is difficult to amend generally, and it is practically impossible to amend on the issue of abortion – and so the constitutional right depended on litigation rather than on any formal enactment.

Other rights that seemed significant in the eighteenth century are set out in writing and cannot (easily) be removed.

Americans have the right to a well-regulated militia, but not a right to regulated and safe abortions.

But…. but….

…those are different, will come the defiant response of the constitution-mongers.

A codified constitution of the United Kingdom would be just right – not too flimsy, and not too rigid.

Perhaps this ideal codified constitution will be drafted by Goldilocks.

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Again, nothing on this blog should be taken to mean a codified constitution will necessarily be a bad thing.

But one should be critical, and one should not even presume that a codified constitution would tend to be a liberal panacea.

The government – backed by the considerable resources of the government legal service and the treasury panel of barristers – would seek to game any written constitution in the executive’s favour.

And against such a concert, mere wishful thinking will be no match

But…. but….

…this should be different, will come the response of the gamed constitution-mongers.

But.

Be careful what you clamour for.

A liberal constitutional order is not easy to achieve.

And that it may be the current arrangements without codification are more liberal than anything that the government would permit to be put in place as a codified constitution.

**

Thank you for reading – and please do support this blog, so that it can carry on for you and others.

These free-to-read law and policy posts every week-day do take time and opportunity cost to put together, as do the comments to pre-moderate.

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***

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Fundamental rights vs legal rights vs constitutional rights – the case of abortion and the United States Supreme Court

4th May 2022

Those with too much interest in law or politics will talk about different sorts or rights – fundamental rights, legal rights, constitutional rights, and so on.

Some of those people will even know what they mean by each of these (similar) terms.

Others, however, may find the feast of terms confusing.

This post is for those who want to better understand such terms.

And for the purpose of exposition, I will take the topical issue of abortion in the United States (which this blog covered yesterday)

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First, what is a ‘right’?

A right is the absolute ability to elect to do something in a given situation.

If that ability can be withdrawn by another, then it is better understood as a privilege, and not as a right.

If you need to obtain the prior consent of another before exercising that ability then it is not a right but a permission.

What makes it a right is that no prior permission is required and it cannot (easily) be withdrawn.

Sometimes these rights are expressly articulated and set out in a formal code.

And sometimes they arise by implication because of a certain legal state of affairs.

The right to an abortion under Roe v Wade in the United States is an example of the latter.

The Supreme Court held that it would be unconstitutional for there to be certain legal prohibitions on abortion.

This rested on a right to privacy, which is not expressly stated in the constitution, but was implied into the constitution by the court.

The right to abortion therefore is the implication of it being unconstitutional for there to be certain legal prohibitions in respect of people’s private lives.

And because Roe v Wade was decided by the Supreme Court on the basis of what was constitutional, the right is a ‘constitutional right’ .

This means that it is not open to Congress (on a federal level) or individual states to interfere with the right.

A lower level of right would be a legal right – for example, a right to an abortion as provided for in laws made by Congress or an individual state.

But such legal rights are subject to the constitution, and so if they do not conform with the constitution then they can be quashed.

This means that, if the Supreme Court holds that it is a matter for individual states to regulate access to abortions, but Congress purports to enact a nation-wide right to abortion, such a legal right may be struck down by the Supreme Court.

(Legal rights are useful, but constitutional rights are stronger.)

A third category of rights are ‘fundamental’ or ‘natural’ rights – these are rights which exist (or should) exist, independent of whether they are posited by the legal system.

Sometimes these rights correspond with constitutional or legal rights, sometimes they do not.

From a liberal perspective (the perspective of this blog), the right of a woman to elect to have an abortion is a fundamental right.

The principle is that – in general – it is for the woman to decide, and not a legislature.

(And if a legislator or voter is opposed to abortion, then they are free to not have one – but it should not be an absolute rule imposed on another.)

This general principle is subject to a limitation of there being a point in a pregnancy after which no abortion should be normally be performed – and views will differ on when that limit is.

But the fact that views will differ as to when that limit is does not mean that there should not be a general right to elect to have an abortion before that limit.

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If the Supreme Court do remove the constitutional status of the implicit right to an abortion then it may still be a legal right in some states, and it still will be a fundamental right, even if an ineffective fundamental right in other states.

If the Supreme Court overrules Roe v Wade, the only other way to return the right to an abortion to being a constitutional right – and thereby exercisable in every American state is for the constitution to be amended.

That would then put it beyond the grasp of an illiberal Supreme Court and any illiberal Congress.

But until and unless that happens, you have a fundamental right which may be a legal right in some states and not others, but is not a constitutional right.

And that – well – would not be right.

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The suggestion that the Prime Minister give evidence to the privileges committee under oath and pain of perjury

2nd May 2022

Did you know there is a Parliamentary Witness Oaths Act?

This 1871 statute – which is still in force – provides among other things that any committee of the House of Commons may administer an oath to the witnesses examined before such committee.

And, while an examination of witness by a parliamentary committee is not a judicial proceeding, it would still be perjury for a person to lie such an oath (or affirmation) – with the penalty being up to seven years in prison.

This information comes from a fascinating and informative article at the New Statesman by Alexander Horne, a former parliamentary legal adviser.

In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.

If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.

(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)

On the face of it, administering such an oath has its attractions.

No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.

Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.

Horne mentions where such oaths have been used:

“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”

*

But.

It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.

That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.

And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.

Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?

(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)

Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?

It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.

And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.

*

That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.

This is certainly a constitutional problem that needs a practical solution.

The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.

The fear would be that in seeking go solve one constitutional problem, another is caused.

And so the problem remains: what can you do – constitutionally and practically –  with a dishonest Prime Minister?

*

POSTSCRIPT

Horne has provided a link to a useful post where he deals with the issues in more detail:

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The false and misleading statements of Boris Johnson and Matt Hancock about the Covid care homes judgment

29 April 2022

On Wednesday the prime minister was asked by Daisy Cooper MP about the high court decision holding that the government had acted unlawfully in its covid guidance for care homes.

Hansard sets out the exchange as follows:

Note that key phrase from the prime minister:

“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”

The former health secretary Matt Hancock gave an interview to ITV News, where he said:

“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”

(The switch midway that sentence is interesting – he seems to go from wanting to say that knowledge about asymptomatic transmission had not been known earlier to carefully stating that he personally did not know.)

Hancock then put out a statement to the press as follows:

“This court case comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts. 

“The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission.”

So: is what the prime minister and the former health secretary said in response to this judgment true?

Let us see.

*

The judgment contains evidence about what was said and done, and when.

The evidence does not appear to have been contested by the government in the hearing, though the government’s lawyers would dispute the weight and meanings to be placed on that evidence.

What did the evidence say?

At paragraph 65 of the judgment (emphasis on date added):

“…on 9 March [2020] the Health Minister Lord Bethell, said in the House of Lords that “large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit.” “

At paragraph 69 of the judgment (emphasis on date added):

“On 12 March [2020] the European Centre for Disease Prevention and Control (ECDC) published a paper entitled ‘Novel coronavirus disease 2019 (COVID-19) pandemic; increased transmission in the EU-EEA and the UK- 6th update.’ It made a number of observations about asymptomatic transmission. It noted that “over the course of the infection, the virus has been identified in respiratory tract specimens 1-2 days before the onset of symptoms…”. Referring to the Japanese National Institute of Infectious Diseases’ field briefing entitled ‘Diamond Princess COVID-19 cases update March 10, 2020,’ it observed that the virus has “been detected in asymptomatic persons. On a rapidly evolving cruise ship outbreak where most of the passengers and staff were tested irrespective of symptoms, 51% of the laboratory confirmed cases were asymptomatic at the time of confirmation”.

At paragraph 73 (emphasis on date added):

“On the morning of 13 March [2020], on BBC Radio 4’s Today programme, Sir Patrick Vallance, the Government’s Chief Scientific Advisor, said this about the means of transmission of the virus:

” “It looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are very mild symptoms”.”

At paragraph 78 (emphasis on date added):

“on 15 March [2020], an important paper from Imperial College and Columbia University was published. ‘Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus’ by Li and Pei et al. discussed the transmission rate of undocumented infection.”

And so on.

The judgment also lists various papers that were published in March 2020, including a paper published on 31 March that stated:

“between a third and a half of transmissions occur from pre-symptomatic individuals.”

*

That was all in March 2020 – now let us turn to April 2020.

Paragraph 286 of the judgment:

“On 2 April 2020, a week after the lockdown had been given legal effect (by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)) , the Admissions Guidance was published. As noted above, this included the following about new admissions (emphasis in the original):

” “Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic.  All of these patients can be safely cared for in a care home if this guidance is followed.  If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.” “

The court then states in the next paragraphs about this April guidance:

“there is no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission. […]

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

“It is notable that on 25 and 28 March, days before the publication of the 2 April Admissions Guidance, the Minister for Social Care (Ms Whately) was raising concerns about this aspect of the guidance.

“It was not until 15 April in the Action Plan of that date that the Department recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community. Such isolation was to be either in the care home itself or using “local authority-based arrangements”, that is to say quarantine facilities.

“This was a significant delay at a critical period.

“We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.

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And so, as this blog set out yesterday, the court held that the April guidance was irrational in that it failed to take account of a relevant consideration – and at a time where the government was seeking to discharge as many as possible from hospital and into care homes.

This is not about whether the government knew with absolute certainty whether there would be asymptomatic transmission.

But it is about that the government knowing there was a risk before the guidance was issued.

Government ministers and their advisers had spoken expressly of the risk.

Mounting scientific evidence stated there was a risk.

Given that all this can be shown as being known in March 2020, there can be no sensible reason for the April guidance to care homes not to have referred to this risk.

*

And now let us come back to the statements from the prime minister and the former health secretary.

The prime minister:

“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”

The former health secretary:

“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”

Both these statements are misleading, and indeed false.

The judgment puts together all the evidence possessed and available to the health department (and the health secretary) at the time.

The passages in the judgment where the court considers the government lawyer’s attempts to explain all this away (paragraphs 272 to 278 and 290) show just how weak the government’s position on this was.

Either the accumulated detail of the judgment of what was known and when – undisputed by the government in court – is true or the statements of the prime minister and the former health secretary are true.

But not both.

The government said it was throwing its protective arms around the care homes at that critical moment, when it was seeking to discharge as many as possible from hospital into care homes.

But the government instead issued guidance that made no mention of a risk that it knew existed – and that can be shown that the government knew existed.

And so people died.

Far from ‘clearing’ the former health secretary of ‘wrongdoing’, the judgment sets out that what was done was very wrong indeed.

**

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