Category: United Kingdom Law and Policy

The problem of the dislocation between political language and policy substance

17th March 2021

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

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

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH’

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

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

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

*

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

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

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

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

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

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

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

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

*

Can anything be done?

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

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

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

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

*

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

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

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

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

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

Brace, brace.

***

Thank you for reading this post.

If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

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

 16th March 2021

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

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

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

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

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

*

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

This is an ‘infraction’ notice.

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

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

But.

We are not allowed to see this letter.

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

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

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

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

*

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

Here the European Commission have published two things.

First, there is this press release.

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

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

*

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

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

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

Agreements must be kept.

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

*

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

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

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

*

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

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

The ‘political letter’ says:

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

Here we go first to Annex 2.

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

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

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

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

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

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

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

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

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

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

*

So: what next.

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

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

*

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

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

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

You thought Brexit meant Brexit?

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

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

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

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

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

*

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

Here we are at an early stage.

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

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

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

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

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

*

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

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

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

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

But.

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

A wise person chooses their battles.

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

Brace, brace.

***

Thank you for reading this post.

A detailed post on this blog like this takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

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

15th March 2021

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

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

Why is it being proposed?

And what should parliament do about it?

*

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

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

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

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

*

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

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

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

The current law is usually stated as:

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

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

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

Words like ‘annoyance’ are added.

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

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

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

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

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

*

But.

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

Never trust the home office.

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

For example (with emphasis added):

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

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

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

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

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

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

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

*

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

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

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

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

***

Thank you for reading this post.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The ugly scenes from the Clapham Common protest tell us about wider policing problems – and how policing the coronavirus regulations is being treated as a public order matter instead of a public health problem

14th March 2021

The scenes of the policing of the protest at Clapham Common last night were ugly.

The scenes were also shocking.

By ‘shocking’ I do not mean that they were surprising and unpredictable. 

Anyone with any awareness of policing in Northern Ireland, or of the miners strike, or of inner cities and BAME communities, will not be surprised.

This is what police do – when they can get away with it.

Something can be unsurprising and predictable and still be shocking – as anyone who has licked a light socket would tell you, if they are still able to do so.

And police brutality – and their other abuses of coercive power – should always be shocking.

Once it ceases to shock then the authoritarians and illiberals will have prevailed.

*

During this pandemic this tendency for the police to misuse and abuse their powers has had a further feature.

The coronavirus regulations – which restrict freedom of movement and assembly as well as other fundamental rights and freedoms – are public health measures.

But they have been enforced by the police as if they were in respect of public order.

Public health is not the same as public order.

The scenes from last night did not evidence any sincere concern for public health from the police.

Indeed – a responsible and socially distanced protest was entirely possible (and warranted) – but the police turned it into something else instead.

*

These ugly scenes were then followed by ugly evasions.

Reading that ugly statement is as sickening as the scenes from the protest were ugly and shocking.

‘Look at what you made us do,’ is – in the circumstances of this protest that was prompted by the death of Sarah Everard – an especially unfortunate stance for the police to take.

Even former home office ministers – not the most liberal of politicians – were not able to stomach this.

*

And in command of the metropolitan police is, of course, Cressida Dick.

How the career of Cressida Dick even survived the killing of Jean Charles de Menezes is one of wonders of recent policing history.

How her career then continued to prosper is one of its deepest disgraces.

But the police are very good indeed at deflection.

Any criticism is usually first met by being told that one does not understand the pressures of policing, and so on.

And when the wrongs are established beyond doubt, the police effortlessly switch to their bland lessons-will-be-learned assurances.

But at no point will there even be any genuine accountability and redress.

Which is kind of ironic given that the police are, well, charged with the policing the rest of us and holding us to account.

*

This is not the sort of blog to comment on ongoing individual criminal cases – and this is not just because of the (outdated and inadequate) laws on contempt of court but instead because a blog is not a court room and serves a different purpose.

One purpose of this blog is to identify and explain the wider law and policy contexts of topical events.

The ugly scenes from last night can be seen as an example of police abuses of power generally and in respect of their illiberal and misconceived approach to the coronavirus regulations in particular.

The ugly doubling-down of the police this morning can, in turn, be seen as an example of their inability ever to accept that they have made operational mistakes.

And there are few – if any – official communications as misleading if not dishonest as the police PR after something has gone very wrong.

Shocking – but never surprising.

***

Thank you for reading this post.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Post-Brexit policy does not need to be like this – no, it really does not – but there are no other post-Brexit policies in town

13th March 2021

The best blogger about Brexit is Chris Grey and his weekly blog is a valuable resource in understanding Brexit as it has gone along.

In particular, the blog correctly emphasises that at each step there were choices made and not made – that things could have gone differently – and how (usually) the bad decisions ended up being made.

As the tricks of mind of hindsight and evasion begin to have their effects on the collective memory, Grey’s blog will be a crucial reminder of how things were at the time.

His post this week, however, is a detailed – and brutal and delightful – critique of a recent column by the new Brexit cabinet minister David Frost – and it is not only a critique but also a warning.

The warning is that the current government is – out of the various options available – choosing one which is especially damaging for the United Kingdom.

But the option being chosen is – in the minds of the Brexiter ministers – validated by the experience (so far) of ‘getting Brexit done’.

Of course, for the reasons that Grey sets out, the Brexiter ministers have drawn the wrong lessons from this formative experience.

Part of this is down to personalities – in particular the personalities of Frost and prime minister Boris Johnson.

And politics often does come down just to personalities. 

*

But.

There is a risk that a preoccupation on personalities means that the lack of alternative policies being promoted is overlooked.

For although the Frost-Johnson approach is, as Grey avers, ‘a sorry mixture of blather, nonsense, disingenuity and dishonesty’ – it also has another quality.

It is the only post-Brexit policy in town.

The Labour opposition has no post-Brexit policy – and is (no doubt for strategic and tactical reasons) opting not to put forward an alternative policy.

Those who are former remainers and are seeking the United Kingdom to (re)join the European Union do not have a post-Brexit policy as such – unless simply not wanting to be outside the European Union can be a policy.

And the moderate and practical Conservatives who might have advocated a more constructive post-Brexit policy were largely purged from the house of commons at the last general election.

So there is a vacuum where an alternative, constructive post-Brexit policy should be.

In contrast to this void, Frost-Johnson not only have a policy but also maintain that the policy is validated by the experience so far of Brexit – and so it has a certain superficial plausibility.

And until and unless there is another post-Brexit policy in town – which accepts the brute political fact of Brexit but seeks to go in another direction – then the Frost-Johnson approach will face no challenge other than from reality.

Such an alternative, constructive policy is perfectly possible – as Grey’s blog and other commentary shows, there are choices available.

But unless the politics of this post-Brexit period change radically, the Frost-Johnson approach has the political town to itself – and it is very good at misdirection and evasion when things go wrong.

Although commentators can point this out in real-time that will make no difference unless opposition politicians also act in real-time to put forward other post-Brexit policies.

And – yes, the Frost-Johnson post-Brexit approach can and should be blamed for many things, but it cannot be blamed for a lack of policy and political alternatives.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

Under the hood: how the United Kingdom state authorises people to commit criminal offences and then protects them from prosecution

12th March 2021

A recent court of appeal case has provided an insight into how the United Kingdom state both authorises people to commit criminal offences and then protects them from prosecution.

To show how this is done is not necessarily to condemn – or endorse – such governmental practices.

You may well believe that it is right that in certain covert operations those acting on behalf of the state should be able – as part of their cover – be able to break both the criminal and civil law for the greater good.

Or you may believe it should not be legally possible and that such things have the effect of placing state agents above the law.

In either case there is value in understanding just how it is done.

*

The starting point is to know – in general terms – about the two-stage ‘code’ test for bringing criminal prosecutions.

The first stage is to determine whether there is sufficient evidence against a defendant – this is called the evidential test.

The second test – treated as a routine formality in most every-day cases – is whether, distinct from the evidential test, there is a public interest in a prosecution – this is called the public interest test.

The notion is that there is a presumption that a prosecution is in the public interest unless there is a reason why such a prosecution was not in the public interest.

And it is at this second stage that state-authorised criminals are protected from prosecution.

*

But it is important to note that this protection is not a legal immunity.

Oh no, not at all, definitely not, how could you think such a thing?

The contention is that because in theory a prosecution can still occur then state agents are not technically above the law.

And placing state agents above the law would be a bad thing, and such a bad thing would never happen.

An authorisation for a state agent to break the law does not confer immunity from prosecution – it instead provides a factor which a prosecutor takes into account when making the decision whether a prosecution is in the public interest or not.

In this elaborate – and for some, artificial – form the state has both its cake and a file inside it.

State agents are protected from prosecutions for their criminal acts – but are not given immunity.

It is just that the prosecutions will not happen.

*

The court of appeal case is the latest (and perhaps last) stage in an important public interest case which, among other public benefits, has led to the disclosure of hitherto secret guidance on authorising state agents to commit criminal effects.

The judgment at paragraph 14 even published a redacted version of the guidance.

One paragraph of that guidance describes the legal effect and consequences of an authorisation (which I break up into smaller paragraphs for flow):

‘9. An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.

‘Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.

‘In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.

‘Accordingly, any such authorisation should, on its face, clearly establish that the criteria for authorisation are met, in terms which will be readily understood by a prosecutor.

*

To a certain extent the court of appeal case is of historic interest, because the government has now legislated to place part of this system on a statutory basis.

In the grand tradition of giving important legislation complicated and forgettable names, this is the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.

This inserts the glamorous-sounding ‘section 29B – Covert human intelligence sources – criminal conduct authorisations’ into the Regulation of Investigatory Powers Act 2000, including this definition:

‘A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’

You will note – perhaps worryingly – that there is no limit on what criminal actions may be authorised.

And here on should bear in mind the circumstances of the murder of Pat Finucane.

(And those circumstances explain why the Pat Finucane Centre were one of the groups bringing the legal challenge.)

 

*

On the face of it: murder and other serious criminal offences can be authorised by the state: there is no express limit.

But, of course, such things would never happen.

Ahem.

*

Paragraph 113 of the judgment also reveals something interesting:

‘The undisputed evidence generally was that the Security Service works closely with the police in counter-terrorism operations. The evidence also reveals that there is, for example, a Memorandum of Understanding between the Security Service, the police and the Counter Terrorism Division of the Crown Prosecution Service.’

This memorandum of understanding, of course, does not seem to be in the public domain.

As a ‘memorandum of understanding’ this would be a formal, legal-looking document – complete with pompous earnest language and paragraph numbers – but it is as much an imposter as any covert agent.

The purpose of a memorandum of understanding between government entities is to have the effect of a binding agreement – but without any of the inconveniences of it actually being a legal instrument, such as transparency.

There are memorandums of understanding all over the state (and between the United Kingdom and other states) – many of which are secret – but all of which are crucial in the conduct of government and public affairs.

The court of appeal’s helpful mention of the existence of this memorandum of understanding tells us how – as a matter of process – the authorisations are in practice converted into decisions not to prosecute.

*

Again: you may take the view that all this is not something to worry about and that government is doing what it has to do so as to keep us all safe.

Nothing in this post should be taken to gainsay such an entirely valid view.

The purpose of this post is to use information in the public domain so as to show how the state goes about doing what it does.

And there is even a reason to welcome the 2021 act even if one is a liberal or progressive.

The more of what the state does that is placed on a public statutory basis the better in any democratic society that values the rule of law.

So although the various public interest groups failed in their appeal, their dogged-determined litigation has led to certain things becoming public knowledge and perhaps being placed on a statutory footing that were not public knowledge before.

Just because some things should be covert it does not mean all things have to be covert.

And there is not a good reason why the ways and means by which the state authorises criminal conduct and then protects its agents from prosecution should not be in public domain – and in a democratic society that values the rule of law there is a good reason why it should be.

**

EDIT

The first version of this post had a mention of the Criminal Injuries Compensation Scheme – but the point I made now appears to be incorrect – so I have deleted that section so I can consider it again.

Apologies.

***

Thank you for reading this post.

Each post on this blog takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

When constitutional norms are for other people: Boris Johnson and the danger of constitutional indifference

11th March 2021

Yesterday the prime minister Boris Johnson misled the house of commons twice.

As you read that, you may perhaps shrug: so what? 

This post sets out the ‘so what’.

*

 *

The constitution of the United Kingdom is comprised to a significant degree of conventions.

In short: a constitutional convention is a thing that should happen in a given constitutional situation – and has a purpose – but which one could not get any court to order its enforcement.

As such constitutional conventions are distinct from the laws of the constitution which, in principle, would admit of a judicial remedy in the event of a breach.

A breach of a convention, however, is not a matter for any court.

This means that matters of compliance and breach of constitutional conventions are usually a law-free zone – and the means of compliance and sanctions (if any) for breach are dealt with other than by lawyers and judges.

That a prime minister – or any member of parliament – is honest in parliament is one such constitutional convention.

It is a powerful convention – for example, one implication of the convention is members of parliament cannot call each other liars in the house of commons.

The fiction is that there should never be a need to call another ‘honourable’ member a liar as there is a general obligation not to lie.

But the convention is even more powerful than this.

The convention that ministers shall not lie means that the entire system of parliamentary accountability is possible – debates have meaning, oral and written questions have a point, and so on.

Take away the obligation not to lie, and we would have even less practical accountability in our parliamentary system than we do already.

It would poison the wells.

*

For Johnson, however, such concerns must seem quaint.

For Johnson any given encounter is a game for him to win – and if he breaches any norm then he will seek to get away with it.

So confident is he in his ability to get away with any breaches of norms that he does not care even for the moral hazard of such breaches being opportunities for others.

(That one should comply with a rule because it means others would also have to comply with that rule is only an incentive if it matters to you whether others break the rules.)

It is not so much that Johnson wants to break the rules as an end in and of itself – he will comply with rules if it suits him,

Instead it is a general indifference to the rules – they will be broken or complied with as it suits him personally and politically.

*

Such an approach will always be attractive to certain politicians from time to time.

And so because of the possibility of such indifference, there has to be some means of enforcing constitutional conventions – or sanctions for breach.

These cannot be legal sanctions, as they are not matters for a court.

But not all checks and balances are legal mechanisms.

The problem with Johnson’s indifference is that there seems to be no effective means of enforcement or sanction.

Johnson does not care for the ministerial code and has already shown he will disregard it (as in the case of the home secretary).

The old stand-by of ‘being responsible on the floor of the commons’ has no purchase, as it is his conduct on the floor of the house of commons that is the problem.

And if the speaker of the commons – or anyone else – seeks to hold Johnson accountable, then the hyper-partisan bullies among Johnson’s political and media supporters will seek to attack the intervention.

So in effect, Johnson is immunised from being held accountable for misleading elected politicians in the house of commons.

And if that matters to you, that is your problem, and not his.

He will get away with it, and he knows he will get away with it.

*

And this is a problem – a meta-problem – that cannot be solved with demands for a written constitution.

Writing down conventions and publishing them does not give them life.

The issue also is not about his indifference – as this approach will be adopted from time to time by a certain type of politician.

The problem is about a lack of willingness to make this matter – for such a breach to have such consequences that the Johnsons of the political world do not see it as a viable political practice.

And it is the absence of practical checks and balances – of gatekeepers and of those credited with authority – that is the constitutional problem here.

Until and unless it can be made to matter that a minister should not lie to the house of commons – and by non-legal means as it cannot be a legal matter – then it will just carry on, because it can.

It is a depressing prospect.

***

Thank you for reading this post.

Each post on this blog takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The contest between sovereignty and legitimacy – the dilemma for the Crown

10th March 2021

Yesterday the writer Reni Eddo-Lodge tweeted a brilliant observation about our constitutional and media arrangements:

This blog post expands on this brilliant observation.

*

The starting point is sovereignty.

In the United Kingdom – or at least in England and Wales – the ultimate source of all legal power is the crown.

Acts of parliament derive their force from royal assent – and thereby so do all powers exercised under those acts of parliament.

Certain entities – such as the British Broadcasting Corporation – owe their legal existence to the legal magic of a royal charter.

Executive power other than under acts of parliament often is exercised under the royal prerogative or under the Queen’s privy council.

The jurisdiction of the high court is based on the old courts of the king’s (and queen’s bench) and the lord chancellor as keeper of the monarch’s conscience.

Magistrates are often justices of the (king’s and queen’s) peace.

And prosecutions and other proceedings in public interest are brought in the name of the crown – including at, well, the crown court.

The legal sovereignty of the crown – like turtles – goes all the way down.

(There are those who aver that this doctrine is a royal peculiar in respect of the constitutional law of England and Wales, and that the sovereignty of the crown may not have the same effect in the laws of Scotland and Northern Ireland.)

*

But.

Sovereignty is not the same as legitimacy.

The legal source of power does not, by itself, render that power acceptable by the governed – at least in many complex societies. 

Those who have and use ultimate power also need to have – or be seen to have – legitimacy.

In a republic, this problem can be addressed by the term ‘the people’.

The authority of a constitution is derived from ‘the people’ – and even prosecutions can be brought in the name of ‘the people’.

CTL+F “crown” > CTL+R “the people”.

Of course, in practice ‘the people’ may well have as little actual influence as they would do under a monarchy.

But that does not seem to matter.

Things are expressly done in the name of ‘the people’ and this appears to make all the difference.

*

In a monarchy such as the United Kingdom the contest between sovereignty and legitimacy is met by the phrase ‘constitutional monarchy’.

The sovereignty – and powers – of the crown are thereby subject to the constraints – the checks and balances – of a constitution.

(And, yes: a country does have a constitution even if that constitution is not codified in a single written document – for there is a descriptive answer to the question ‘how is this country constituted?’) 

These checks and balances apply not only to things done (or can be done) by a monarch himself or herself but also to things done with powers derived from the crown.

For example, an act of parliament will still need to be interpreted and applied by a court, regardless of royal assent.

And a prime minister and government is accountable to parliament.

Parliaments, in turn, are subject to periodic general elections.

And so the people are, in an indirect way, in charge – even if not formally as ‘the people’.

*

But what happens when a ‘constitutional monarchy’ does not have (much) legitimacy?

As this blog set out in a recent post, the crown is a markedly fragile and malleable institution – notwithstanding its familiarity and durability.

For example, when the Queen was born in 1926, her grandfather had taken the throne as king of both Great Britain and Ireland, as well as emperor of India and elsewhere – and as she grew up, the majority of Ireland became a republic and the empire converted to a commonwealth, while the next king – her uncle – was forced to abdicate by a bunch of politicians.

The Queen and her inner circle are acutely aware of the precariousness of the monarchy.

So this need for constant validation.

For as Eddo-Lodge points out, the one thing that the monarchy really cannot do – by definition – is expressly seek the consent of the governed. 

And so, not being able to obtain our consent, it seeks our approval.

But the approval – or apparent approval – of the people cannot be easily sought or obtained other than through the structures of the established media.

(The extent to which the internet and social media has disrupted and will continue to disrupt this predicament is not yet clear.)

Here we come to the tweet to which Eddo-Lodge herself was responding, from the commentator Mic Wright:

That the monarchy constantly needs such approval is not a bug of our constitutional arrangements, but a core feature.

And that the media – that can regulate that approval – in turn will use and abuse that power of conferring (apparent) public approval is also not a surprise.

With great power usually comes great irresponsibility, whatever the political philosopher Benjamin Parker says otherwise.

We therefore have the worst of both worlds.

A source of sovereignty that is needy for legitimacy, but one which cannot obtain that approval directly and so is dependent on a media that will naturally abuse its power.

There is therefore a hole at the centre of our constitutional arrangements.

*

Most of the time this gap does not matter.

Days and weeks pass, royal scandals come and go, and things look calm and carry on.

Crises are averted – and the crown and the media negotiate a new relationship of use and abuse.

But.

Sometimes crises may not be averted, and the problems that do come will not then conveniently go.

And there may be a reckoning.

The constitutional equivalent of a credit crunch.

Perhaps the fall-out from the Meghan and Harry interview will not lead to any great upset – nor any fall-out from the activities of other members of the royal family.

Perhaps all this will be soon forgotten, with the coming of spring and the (heralded) end of lockdown.

Yet, even if the ship of state stabilises it will still be just as prone to capsizing.  

And that is ultimately because the sovereign cannot obtain legitimacy directly from consent, and so needs our approval instead.

***

Thank you for reading this post.

Each post on this blog takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The issues of the Ireland/Northern Ireland Protocol are more fundamental than the political antics of David Frost and Boris Johnson

9th March 2021

Those who follow Brexit are likely to have strong opinions on the merits of Brexit, and those strong opinions will in turn to influence how each development is approached.

Supporters of Brexit will clap and cheer at certain things, and opponents of Brexit (or of this government’s approach to Brexit) will rage and jeer.

One side will tend to see the government as doing nothing wrong, and the other side will see the government as doing everything wrong.

And such partisanship means any problem is seen either as not existing or as entirely the fault of the government of the United Kingdom.

But not everything is the fault of a bunch of politicians in one place and at one time.

*

In a recent post at the London School of Economics blog, Professor Katy Hayward of Queen’s University Belfast has done a short explainer on the Ireland/Northern Ireland Protocol – and it is perhaps one of the best short explainers on Brexit generally.

But the one phrase in that post which stood out for me was this:

‘It is true that – with the best will in the world (which is evident among most businesses in NI) – the new border regime is still far from ready for full implementation.’

So used are many of us at seeing as every failing of Brexit as being directly attributable to the expedient follies of the United Kingdom government that it can sometimes be forgotten that even if we were suddenly to have a sensible and practical government many Brexit problems would still be there.

For this is the very nature of fundamental problems: mere superficialities cannot and do not make any difference.

That is why the problems are, well, fundamental.

*

Hayward’s post reminds us of how the Ireland/Northern Ireland protocol is exceptional: it affects an internal boundary of one of the parties; it applies different rules to goods moving in one direction than the other; the applicable rules in one direction are that of the European Union and not the United Kingdom; and that in respect of those applicable rules, it will be the United Kingdom that will be applying them, not the European Union.

As Hayward wisely observes: ‘This entails a great deal of trust on the EU side and a great deal of responsibility on the UK side.’

And these are just the structural problems.

There are then many practical problems, as with any trade agreement – which were, of course, exacerbated by the reckless, last-minute approach to the negotiation and implementation of the protocol.

And.

And to demonstrate the adage that there is nothing in political affairs that the current government of the United Kingdom cannot make worse, there are the clumsy and confrontational antics of the relevant minister David Frost.

In the words of Hayward: 

‘The EU is frustrated at the lack of readiness, compliance and, now, the trustworthiness of the UK.’

*

But the value of Hayward’s post is not just in that pay-off line, but in it showing us that even if Frost was not playing to the gallery, the structural and practical problems would still be there – and just as pressing and urgent.

This means that the European Union – and the rest of us – should not get preoccupied with the current political problems – as distinct from the structural and practical problems.

Just as the claps and cheers of the political and media supporters of the government are not enough to get Brexit ‘done’ – a similar but opposite superficial response to such political idiocy is not sufficient as a remedy to the current problems.

Put bluntly: if prime minister Boris Johnson and various of his ministers all resigned this evening, the structural and practical problems identified by Hayward would still be there in the morning.

And so Hayward is right to aver that the European Union should seek to avoid getting too caught-up in our current government’s short-term silliness – the ‘moral hazard’ of which I set out in a recent post.

The problems addressed by – and caused by – the Ireland/Northern Ireland Protocol will be there as long as the United Kingdom is out of the European Union and Northern Ireland is part of the United Kingdom.

***

Thank you for reading this post.

Each post on this blog takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The day after the Meghan and Harry interview – how the crown is more precarious than many realise

8th March 2021

A recent post at this blog averred that while the Netflix show The Crown gets a lot of the historical detail wrong it probably gets one wider point right – that there is a constant sense of precariousness felt by the Queen in respect of the monarchy of the United Kingdom.

By ‘precarious’ I do not mean a fear that the whole shabang will suddenly crash down – but instead that there is an ongoing sense of insecurity and instability which may or may not lead to wider insecurities and instabilities, and that this needs management and vigilance.

One suspects that the Queen is highly conscious of the institution’s fundamental changeability – she was ten when her uncle was forced to abdicate by a bunch of politicians; when she was twelve Ireland elected their own president and when she was twenty-two Ireland was explicitly a republic; and as she grew up generally the British empire was converting into a commonwealth, as elsewhere other monarchies declined and fell.

Only with hindsight do we see the period after 1952 as one of continuity and durability in our constitutional history – it probably did not seem that it would necessarily go that way seventy years ago.

*

Of course: the monarchy of the United Kingdom is to a certain extent a special case.

Indeed – the very term ‘United Kingdom’ indicates that it is the monarchy that defines the current combined political identity of Great Britain and Northern Ireland.

Few other countries make the very political form of their constitutional arrangements the term by which they are generally known – the obvious other example is the United States.

And as that previous post on this blog also averred, the crown is so deeply embedded in our constitutional arrangements – it is, for example, the conceptual basis of power for each of the executive, the legislature and the judiciary – that to change everything over to a republic scarcely seems worth the time and effort.

(Though, of course, once upon a time, the United Kingdom leaving the European Union also scarcely seemed worth the time and effort – but it happened anyway.)

The crown also has its loud and intimidating defenders in the media – though that very loud intimidation may in turn be seen as an indication of insecurity.

Because of all these things, the institution of the monarchy is not likely to disappear in a political instance.

*

But.

The institution of the monarchy is also not bound to stay in its present form either.

In the lifetime of the Queen herself, the monarchy has gone through profound changes – while projecting the comforting image of things staying much the same.

From king of Great Britain and Ireland and emperor of India, and elsewhere, to what we have now – via a forced abdication comparable in constitutional significance to the ejection of James II in 1688-9.

The monarchy has, since the year of the Queen’s birth in 1926, perhaps gone thorough more changes than in any ninety-five year period since 1701.

So to project the last ninety-five years of royal history forward is not to see more stability, but to expect more fundamental change – including maybe the departure of Northern Ireland and Scotland from the United Kingdom.

(Though no doubt the ‘United Kingdom’ will keep calling itself that, just as some gongs are still named the order of the British empire.)

In essence: the present – and, for us, familiar – arrangements of the monarchy of the United Kingdom are not fixed and eternal.

They have profoundly changed in the lifetime of the current monarch – and they can profoundly change further.

***

Thank you for reading this post.

Each post on this blog takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

****

You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

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

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.