Category: United Kingdom Law and Policy

How one paragraph in the significant Covid and care homes judgment describes Matt Hancock’s lethal, unlawful policy

28th April 2022

One of the most outstanding lawyers I know works a lot with care home clients.

Sometime ago they told me about what happened when the hospitals started seeking to release patients into care homes at the start of the pandemic.

A hospital was trying to force a care home to take a potentially positive patient.

The lawyer advised their care home client to lock all the doors, and to not accept anyone from the hospital untested.

Robust advice yes – but it was a bleedingly obvious problem – and now the High Court has said, in effect, my friend’s legal advice was correct.

The Covid and care homes judgment handed down this week is long and complicated – 75 pages and 299 numbered paragraphs.

But one paragraph stands out – and goes to the heart of the relationship between policy on one hand and law on the other.

It is paragraph 289:

“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.”

This is not an example thereby of a hard policy decision being made between competing options.

Most sensible people would say that is a matter for the government and not for the courts.

It was instead a decision which failed absolutely to take account of a relevant consideration.

As such, it was a policy decision that was not lawfully open to the decision-maker.

As those bringing the case set out, the secretary of state was the relevant decision-maker “and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed”. 

How the court applied this legal principle in this case is interesting:

The court has held, in effect, that by the time the relevant guidance was issued, the risk of asymptomatic transmission was obvious and well-known – it was even being mentioned publicly by government scientific advisers.

But the government blithely put out guidance to care homes that did not even consider that risk, let alone provide for what care homes should have done to manage the risk.

The court elsewhere in the judgment rejects challenges on other grounds – and the court is careful to say that earlier stages of the pandemic, it would not have been fair or realistic for the government to have known that there was a risk.

But by the time of the April 2020 guidance, this was not the case – and the government could not pretend that was the case.

The government instead published guidance on which care homes were supposed to rely and did not care to consider the risk of asymptomatic transmission.

That took the decision out of the realm of administration and policy and into the realm of public law.

The judgment does not refer expressly to the famous Wednesbury principle, but this is an example of a decision so unreasonable no reasonable decision-maker could have made it.

And that is even after giving due latitude and deference to a government dealing with a pandemic – that offers no excuse to have got this guidance so completely – lethally – wrong.

Far from throwing their arms around the care home sector, the department of health instead threw their hands over their eyes.

And care homes should not have been placed in the dreadful predicament of having to decide whether it was safe to follow department of health guidance, or whether they should have locked their doors instead.

**

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What the next Queen’s Speech may tell us about this government

27th April 2022

Yesterday’s I newspaper had this interesting front page about the upcoming Queen’s Speech:

The article supporting the front page told us:

“At least a dozen Government bills which were promised at the Queen’s Speech a year ago will not become law in time for the next speech which takes place on 10 May. Downing Street is seeking to push through another 10 pieces of legislation in the next few days.”

What is especially interesting about this front page is its timing.

We are more-or-less at the midpoint of this parliament.

The last general election was on 12 December 2019, and the latest date for the next election, it would seem, is 24 January 2025.

The next Queen’s Speech – which has been set for 10 May 2022 – will mark the start of the last full parliamentary session where there would be adequate time for any significant reforms to be properly carried through after enactment.

In other words: if the government was to attempt major changes through legislation, this is the time.

But.

This government does not appear to have the appetite for major reforms.

Promised overhauls of, for example, our complex systems for planning or procurement will again not be put forward.

The (impartial) House of Commons Library provides the following list of Bills promised in the last Queen’s Speech that are yet to be introduced:

(‘Procurement Bill’ sounds like a bloke who works in supplier management in a less exciting sequel to Postman Pat.)

The library also lists the bills ‘foreshadowed’:

But as any decent scriptwriter will tell you, foreshadowing is not character (or story) development.

And it would seem that this government finds it easier to announce fundamental reforms than to actually take them forward and implement those reforms.

The ultimate reason for this is simple.

Reform is hard, policy is hard, law-making is hard.

Getting one’s thoughts together to the extent of actually having a Bill ready to introduce to parliament is hard.

The first reading in parliament of a Bill is not stage one of a process, but about stage seven or eight.

The hard work takes place on the departments and with parliamentary drafters.

Handing a Bill to ministers to pilot through parliament is not to be done lightly.

*

The former Downing Street adviser Dominic Cummings had – regardless of his other merits and otherwise – ambitious plans to shake our planning and public procurement regimes.

No sensible person with knowledge of planning or public procurement would say the current arrangements are perfect.

An ambitious, reforming government would now be ready to grapple with fundamental reforms in planning, public procurement, and many other areas.

And this government would be in a strong position to do – on paper.

For this government has the greatest prize that the constitution of the United Kingdom can bestow: a large working majority in the House of Commons.

This means the government not only has all the advantages of extensive executive power (under the royal prerogative and otherwise), and access to the government legal service and the treasury panel of barristers for fighting cases in the courts.

It also means that the government can be confident of passing legislation through the House of Commons and, if necessary, forcing it through the House of Lords too.

Few Prime Minsters win this prize.

Clement Attlee had this prize, and used it to drive through welfare state legislation; Thatcher did with trade union and privatisation legislation; and even Tony Blair, in his first term, was able to get the Human Rights Act and other legislation on the statute book.

And our current government?

Here is a challenge: take a moment to name one flagship Act of Parliament passed since the general election.

Yes, there has been Brexit and Covid legislation – but this would have to have been passed whoever won the last general election.

Can you think of one?

I am a law and policy commentator – and I can can only think of a possible few – though various nasty laws on borders and protests are about to come enacted.

Of course: Brexit and Covid have taken a lot of government and parliamentary time, as have Afghanistan and Ukraine.

But.

At this mid-term moment, a government with a large working majority should be raring to go.

Yet it is not.

It a government that cannot even be confident to block or amend a reference to the privileges committee about the Prime Minister.

As Norman Lamont once said of then Prime Minister John Major, we have a government in office but not in power.

And that was when Major government had a very small majority, not the working majority of nearly eighty of Boris Johnson.

So this could be a significant Queen’s Speech – but its true significance may be about what it does not contain, rather than what it does.

**

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Why it will really matter when the Prime Minister realised he had misled the House of Commons – even if his four misleading statements were in good faith

22nd April 2022

As the cliché of American political reporting has it: what did the president know, and when did he know it?

Applying this same sort of question to current British politics, it may not be important so much that the prime minister (says he) did not realise he had misled the house of commons on four occasions, but about when he realised he had done so.

Here we need to look at this Twitter thread by the estimable Alexander Horne:

It will be impossible for any sensible person to believe that the prime minister did not realise at the time he misled the commons that he was lying.

Of course he did.

But – let’s pretend that the prime minister inadvertently misled the house of commons and that he believed in the truth of what he was saying.

Let’s pretend.

At some point between then and this week, he would have come to the realisation that he had misled the house of commons.

That might be when he had subsequent advice and briefings in respect of his evidence to the Sue Gray investigation.

It might have been when he had sight of the Sue Gray report.

It might have been when he had subsequent advice and briefings in respect of his evidence to the metropolitan police investigation.

But it is unlikely that the first time he realised was when he received his (first) fixed penalty notice.

Now, let us turn to a curious form of words used by the prime minister last Tuesday in his statement to the house of commons (emphasis added):

“Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules.”

At the time, that the two words “or subsequently” struck me as odd and in need of explanation.

The words did not seem like mere surplusage.

And now, given Horne’s highly useful and informed thread, the meaning of those two words are apparent.

For it is one thing for the prime minister to claim that he did not realise at the time of his four statements that he was misleading the house of commons.

But it is quite another for him to also maintain that he corrected “any inadvertent error at the earliest opportunity”.

At some point between the four misleading statements to the house of commons and last week’s statement, the prime minister became aware that those four statements were not true.

(Of course, he knew at the time he misled the house, but let us continue pretending for the sake of exposition and analysis.)

And if and when the Sue Gray report is published (and/or the briefing given to the prime minister for the metropolitan police inquiry is disclosed) it may become plain that the prime minister did not correct “any inadvertent error at the earliest opportunity”.

Those two words “or subsequently” are going to be doing a lot of work.

For, if it can be shown that even if the prime minister did in good faith mislead the house of commons on each of those four occasions, he also needs to satisfy the privileges committee that he corrected “any inadvertent error at the earliest opportunity”.

And it may be that the Sue Gray report – or other information – may show that is just not true.

Given the powers of the privileges committee, that will not be a comfortable position for the prime minister.

He should brace, brace.

**

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Partygate and parliament: law and policy, tactics and strategy, privileges and penalties

21st April 2022

Well.

Those were an interesting few days in parliament.

We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.

This government cannot even get political gangsterism right.

Great credit here should go to the opposition parties.

Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.

And had the opposition done so, it would have been defeated – perhaps on a whipped vote.

But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.

And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.

Against this tactical savviness, the government position collapsed.

First there was to be an amendment: but that went.

Then the vote was to be unwhipped: and that went.

And in the end, there was not even a vote.

The motion went through on the nod.

Let’s just think about that.

A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.

Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.

But – in and of itself – that such a motion should go through without any objection is remarkable.

One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.

Another reason is that – as this blog has previously averred – a parliamentary majority is no barrier to Nemesis following Hubris.

Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.

A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.

Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.

The constitutional Wednesday Addams in any of us can only smile at all of this not going away.

*

What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.

What do you do with a law-breaking prime minister who has misled the house of commons?

Can this be checked and balanced?

The answer to this should not be a civil servant’s report – however independently minded the civil servant.

Nor should it be a decision by the police to issue a penalty, or not.

It is – rightly – a matter for parliament.

And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.

**

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***

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Along with Fake News and Fake Law, we have Fake Policy

20th April 2022

A ‘policy’ can be understood as a means to an end.

In a political context, a policy is the means by which various elements of the state can be used to achieve an outcome that would not be achieved, but for that policy.

Those elements can be ‘hard’ – for example, the use of legal prohibitions or coercive sanctions.

And other elements can be ‘soft’ – such as budget allocation and funding, administrative priority, the issuing of guidance, or the exercise of leadership.

But whatever combination of elements, the usual notion is that a policy is there to do something in practical terms – to have an ‘in real life’ (IRL) effect.

And then…

…and then we have the ‘policies’ of our current home secretary.

Of course, the home secretary is not the only minister to make announcements of policies which were not really intended to ever have effect, so as to ‘play well’ with the media or voters.

But it is difficult to think of a politician so adept at promoting such fake policies.

Take the Rwanda proposal (which has already featured on this blog).

A moment’s thought will indicate to any sensible person that the policy makes no sense IRL.

For example: that the proposal is for only some but not all of the asylum seekers to be transported onto Rwanda does not and cannot ‘break’ any ‘business model’.

The traffickers will instead just adjust their model so as to focus on those who are less likely to be moved on.

This is a point so bleedingly obvious that even the former home secretary and prime minister Theresa May – who promoted the vile ‘hostile environment’ policy – can see that it will not work.

Even Theresa May.

But.

The Rwanda proposal is not being promoted because it will work – or is capable of working.

The home secretary even admitted in formal correspondence published on the government’s own website that there is no evidence that the policy will work to deter anyone.

The proposal is there as a thing in itself – to rally illiberal supporters and ‘to own the libs’.

In the event this policy ever gets implemented, this fake quality will still be true as to its essence.

It is not a policy in any practical or meaningful sense – it is a signal.

And signals something positive or negative, depending on one’s values.

The publicity, like the cruelty, is the point.

**

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The ‘Blackford Paradox’ – how can accusing someone of lying to parliament result in a greater sanction than lying to parliament?

19th April 2022

There was once a Scottish MP whose probing gave rise to the ‘West Lothian question’ – named after his constituency.

Now the situation of another Scottish MP gives rise to a thorny constitutional puzzle.

Ian Blackford, parliamentary leader of the Scottish National Party, was in January 2022 ordered to leave the house of commons because he called the prime minister a liar.

The effect of this stark: there is a greater sanction for a member of parliament who calls a prime minister (or other MP) a liar than there is for a prime minister (or other MP) who lies.

This cannot be right – but it is true.

One reason for this (what I will dub) Blackford Paradox is that the policing of the language used in the house – the speaker – does not have authority over the content of what is said.

The speaker can police tone, not substance.

Another reason is that – sensibly – there are rules in a legislature – as there are in a court room – about how things are said, with the aim of taking the edge off otherwise confrontational situations.

And so there are rules on when MPs can accuse other MPs of dishonesty.

Indeed, if MPs could accuse each other freely of being liars, they would probably not accuse each other of anything else.

But.

These reasons are a triumph of form over substance.

For what can you do with a dishonest prime minister (or other MP)?

There are some procedures for formally making such a serious allegation – as this blog has described before.

But they are cumbersome – and do not lead necessarily to the sanction that was meted out to Blackford.

If a minister or other MP is found to be dishonest, the sanction should be at least as onerous as that which was imposed on Blackford.

Otherwise the polity cannot stand with stability, and the Blackford Paradox will harden into a contradiction, that will exploited by knavish ministers and others.

Whatever happens with ‘Partygate’ there has to be some reform of our constitutional arrangements so that the Blackford Paradox is resolved rather than hardens.

There has to be a change so that lying to parliament is taken at least as seriously as accusing someone of lying to parliament.

And that reform can, in turn, perhaps be named after the current prime minister.

It will be one way to remember him.

 

**

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***

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

*

The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

*

So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

*

To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

*

Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

*

The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

*

So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

*

For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

*

Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

**

Thank you for reading – and please support this blog.

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

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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The misconceived politics of “Law and Order!” and “Red Tape!”

14th April 2022

On theme of this blog is the relationship between political discourse and underlying law and policy.

For example, the difference between “Law and Order!” as a slogan, complete with capital letters and an exclamation mark, and – well – law and order.

A contrast, of course, which is very telling this week as the leader of the party of “Law and Order!” conceded he had broken the criminal law on government property, and only one minister resigned.

Law and order is for other people.

*

Other phrases – again complete with capital letters and exclamation marks, are “Health and Safety!” and “Red Tape!”.

And here too the political vocabulary plays strange things with reality.

Over at the Guardian, there is a fascinating and informative article by the deputy news editor of Inside Housing on the Grenfell inquiry, Lucie Heath.

Heath says:

“the inquiry has consistently painted a damning picture of the deregulation drive that was a key focus during Cameron’s time as prime minister.

“The obsession with abolishing red tape saw ministers at that time ignoring warning signs about a growing building safety crisis, and civil servants too disaffected to speak up.”

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Rarely a month goes by without some minister getting easy applause for saying that we should get rid of “Red Tape!”

Dynamic words are often used, such as “unleash” or “unshackle”.

But such words are not an articulation of a policy, but a substitute for one.

And usually those who speak generally about cutting “Red Tape!” are unable to provide particularised examples.

Of course, some rules and regulations need to be revisited – especially those that have been put in place because of that other political phrase “Something Must Be Done!” – but this should be conducted on a case-by-case basis.

Regulations – in and of themselves – are neither inherently bad nor inherently good.

And getting rid of regulations – or not taking regulations seriously – for the sake of it is just as misconceived as putting in regulations for the sake of it.

Sometimes – as is being uncovered by this inquiry – what seems like mere “Red Tape!” can be very important indeed.

And so just as we would have better politics if politicians and the media did not confuse “Law and Order!” with law and order, we would also benefit if we did not clap and cheer on attacks on “Red Tape!” but looked at each case to see if regulations were needed or not.

If so, we would be “unleashing” or “unshackling” sensible political discourse.

And wouldn’t that be a thing?

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A close look at the resignation letter of David Wolfson QC as Justice Minister

13th April 2022

The justice minister David Wolfson QC has published a letter:

He is (at least) the third senior legal figure to resign from this government in respect of the Rule of Law.

The Treasury Solicitor and the Advocate General for Scotland resigned when the government sought to introduce legislation to enable it to break the law.

And now a justice minister has resigned because cabinet ministers themselves have broken the criminal law (which is the necessary implication of the Prime Minister and the Chancellor of the Exchequer to not to contest the fixed penalty notices) and seem not to care.

*

Wolfson has a very good reputation within the legal profession – and is highly regarded even by those who disagree starkly with his political allegiance.

It is – on any basis – a significant resignation.

But the letter is worth looking at carefully – especially the second paragraph:

These five sentences are perfectly composed and structured.

The first sentence is the general finding of fact: there was not only repeated rule-breaking but also (as rules can sometimes just be for policy or guidance) breaches of the criminal law.

This general finding is incontrovertible – the paid penalties are conclusive proof.

The second sentence then sets out a further finding of fact: the breaches were not merely trivial but were of such a “scale, context and nature” that such conduct cannot pass “with constitutional impunity”.

So not just breaches, but significant breaches.

The second sentence then sets out the factors which go to this significance – that others complied at personal cost, and were prosecuted and even criminalised for lesser breaches.

And, as with the first sentence, what is stated is incontrovertible.

Having established these two conclusions, the third and fourth sentences then distinguish between what happened but also the official response: the implication here is that a more measured official response could have perhaps cured the problem.

But the official response was not measured.

Then having set out the facts, and stated that the official response was deficient, the fifth sentence (somewhat inevitably) then follows – including a deft last stab that the prime minister does not see the problem in the same way.

And the paragraph then ends with the firm stamp of the word “resignation”.

No tiresome “I am resigning because” waffle here – the paragraph ends where other paragraphs would have began.

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Compare this response with that of another government minister – the Lord Chancellor, who has a recognised constitutional role to defend the Rule of Law:

What in Wolfson’s first and second sentences can this custodian of the Rule of Law disagree with?

Indeed, Dominic Raab’s tweet is no doubt a very instance of the “official response” which Wolfson describes in his fourth and fifth sentences.

Wolfson’s letter and Raab’s tweet are a study in contrast: how to take something constitutionally seriously and how not to do so.

Any minister who professes to care about the Rule of Law – including those who are lawyers – must ask themselves: which part of Wolfson’s letter is wrong?

And if they cannot fault its reasoning or its conclusions they should also do what Wolfson did: resign.

**

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Boris Johnson’s Triple-Whammy of Unlawfulness

12th April 2022

Constitutional law is not supposed to be interesting.

Constitutional law is supposed to be boring.

And Boris Johnson could not make it any more exciting.

To take three examples.

First, the Supreme Court held that he gave unlawful advice to the Queen over prorogation of parliament.

(An incident that managed to engage all four of the monarch, parliament, the courts and the executive – the constitutional law equivalent of a full house.)

Second, his government actually introduced legislation to Parliament to enable it to break the law.

(Just typing that seems strange – but it happened, although the government averred that the law would be broken in a “limited and specific” way.)

And now, an even more extraordinary thing has happened.

The prime minister has been found by the metropolitan police to have broken this governments own laws on gatherings under lockdown.

And the necessary implication of this sanction is that the prime minister knowingly misled parliament when denying such a gathering took place.

He cannot even say he was misinformed, as he was at the gathering himself.

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Johnson has not been prime minister a long time, and there are many prime ministers who have been in office far longer with far less constitutional excitement.

Of course he should resign – but that is not the point of this blogpost.

The point instead is to convey the sheer magnitude of what Johnson has ‘accomplished’ in his trashing of constitutional norms – and in under three years..

Just one of the above examples – and there have been many more, it is just those three came readily to mind – would be career-ending for a politician in any normal political system.

And that even now nobody knows if he will resign is an indication of how abnormal politics are at the moment.

It takes a certain quality for a prime minister in three years to contrive this triple-whammy of unlawfulness.

Indeed, it is difficult to conceive what he could still yet do as a fourth instalment.

Brace, brace.

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