Category: United Kingdom Law and Policy

The ‘Jeremy Corbyn test’ or the ‘Hillary Clinton test’ – how to uphold constitutionalism in an age of hyper-partisanship

12th February 2021

Yesterday this blog averred that the twin perils of constitutionalism – at least from an English law perspective – were fogeyism and utopianism.

Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.

Constitutionalism in a tweed jacket.

Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!

Constitutionalism waving a placard.

Both fogeyism and utopianism are normative approaches to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

But there is a far greater enemy for constitutionalism than either fogeysm or utopianism – both of which are at least often based on a sincere interest in constitutional affairs.

This greater enemy is hyper-partisanship.

For hyper-partisanship is the dark matter of constitutionalism.

It is anti-constitutionalism.

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Constitutionalism is the view that politics and government should normally take place within an agreed framework of principles and practices that regulate what happens when there are political tensions.

Of course, there will be – and should be – tensions within any polity – for that is the very stuff of politics.

Without tensions you do not even have politics.

The constitution of the polity then provides how these tensions are reconciled before they harden into contradictions: who gets their way, and on what basis.

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Hyper-partisanship, in turn, is the view that the constitution is – and should be understood to be – an entirely partisan device.

This goes beyond the normal partisanship of the party battle and the clash of politicians.

Hyper-partisanship weaponises the very constitution as part of those conflicts.

In particular, there will be no protection in the constitution – no check or balance – that cannot be dismissed as being politically motivated.

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The senate trial of the second impeachment of Donald Trump is an illustration of such hyper-partisanship.

There are republican senators who will vote to acquit Trump regardless of the merits of the case.

Similarly, no doubt, there will be democrat senators who will vote to convict Trump regardless of the merits of the case.

And this is notwithstanding that the constitutional purpose of impeachment is to address the issue of how to deal with certain behaviours outside of any election cycle.

If an otherwise impeachable offence could just be dealt with by the choices of electors then there would be no point having the power of impeachment.

Impeachments should not be partisan matters.

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Here it is perhaps useful to employ what can be called the ‘Jeremy Corbyn test’ – or, for the United States, the ‘Hillary Clinton test’.

That is to imagine in any constitutional controversy the politician(s) at stake being the opponents of the politician(s) at stake.

So, instead of Trump it would be Clinton.

And instead of Boris Johnson it would be Corbyn.

Would the current republican senators who are solemnly contending that the trial of Trump is ‘unconstitutional’ or insist that his conduct before and during the insurrection on 6 January 2021 was (literally) unimpeachable say the same, all other things being equal, if the proceedings were against Clinton?

Similarly, would political and media supporters of the government of the United Kingdom still nod-along (and indeed clap and cheer) if it were Corbyn threatening to break international law in respect of Northern Ireland?

Of course not.

Indeed, in respect of the Clinton example one only has to look at the casual republican partisanship of the impeachment of Bill Clinton in 1998 to show how easily roles can be reversed.

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So the basic test for any politician or media pundit when invoking any argument from constitutional principle should be simple.

Would that politician or media pundit still assert that principle, and just as emphatically, in respect of a political ally or opponent, as the case may be?

‘Would you say the same, if it were..?’

If so, the assertion of that constitutional principle has proper purchase, and it should be taken seriously.

And if not, like an unwanted book of David Hume, the contention should be committed to the flames, for invariably it will be sophistry and illusion.

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Why Vernon Bogdanor’s Telegraph piece needed a response – and why the constitution of the United Kingdom does not care about your nostalgia

11th February 2021

Over at Prospect magazine yesterday I set out a brief response to a piece by Vernon Bogdanor on Brexit and the constitution.

The first version of my Prospect post was a sentence-by-sentence ‘fisking’ of the Telegraph article – until I realised that such an approach gave equal space and prominence to each error and unsubstantiated assertion.

Such an approach would be a problem in this instance because there was one flaw so fundamental that it warranted addressing in and by itself.

The fundamental mistake was a refusal to accept that the Good Friday Agreement transformed the constitutional arrangements of the United Kingdom.

Indeed, as I set out in that piece and have said before: in practical terms, the Good Friday Agreement is now the most important single document in the constitution of the United Kingdom.

It is certainly far more significant than the old constitutional fogey favourites such as Magna Carta and the Bill of Rights.

Even before Brexit, the Good Friday Agreement’s express requirement that the European Convention on Human Rights must be capable of being directly enforceable in the courts of Northern Ireland severely limited the attempts of Tory politicians to repeal the Human Rights Act 1998.

And with Brexit, the Good Friday Agreement limited what forms of Brexit were available to the United Kingdom and the European Union.

Other than a ‘hard border’ requiring impediments on trade and commerce between the north and the south on the island of Ireland, there were only two possibilities.

One was that the whole of the United Kingdom remained (excuse the pun) within the European Union single market and customs union to the extent it affected any Northern Irish matter – and this was the approach favoured by former prime minister Theresa May.

Or the alignment was only between the north and south parts of the island of Ireland, thereby meaning the friction of customs and regulatory checks was between the island of Great Britain and Northern Ireland – and this was the approach favoured by prime minster Boris Johnson and for which he won a general election mandate.

There was no other way the problem could have been addressed.

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But stepping back from this problem and its practical solution, it is difficult to think of any other single legal instrument that has shaped public policy in such an emphatic way.

And this is rare in the politics of the United Kingdom.

This is because the doctrine of parliamentary supremacy means that usually a government in Westminster with an overall majority will get its way.

The notion is odd that anyone can point to a legal document and say ‘no, Westminster government, you cannot just do as you wish because of this legal instrument’.

But this is what has happened.

Faced with this unusual constitutional phenomenon, there are two approaches.

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The first approach, adopted by Bogdanor in the Telegraph article is to try to force the constitution into the box it was in before the Good Friday Agreement.

That is to take the pre-1999 constitutional arrangements of the United Kingdom as the standard from which things have since deviated, and to cure such deviations by reasserting a classic model.

Here the very final sentence of the Telegraph piece is the tell: “Today’s argument is about the cohesion of the kingdom”.

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The second approach is to try to see how the constitution has changed without prioritising one moment of the constitution’s development over the other.

The Good Friday Agreement is not about ‘the cohesion of the kingdom’.

The Good Friday Agreement is the recognition that in respect of Northern Ireland there is a contested polity.

The agreement then regulates that contested polity by positing the absolute standard of consent.

The United Kingdom, to invoke a phrase, has no selfish or strategic interest in Northern Ireland remaining part of the union, ‘cohesively’ or otherwise.

The agreement provides that any political question in respect of the position of Northern Ireland has to be approached not only from the perspective of the United Kingdom but also of Ireland.

The agreement also provides for an all-island and cross-border approach where possible, the granting of citizenship rights, and for the removal of visible infrastructure on the border.

To demand that the United Kingdom to again be ‘cohesive’ is to miss the point of the Good Friday Agreement.

The Good Friday Agreement is the (realistic and mature) recognition that in respect of Northern Ireland the ‘kingdom’ is no longer ‘cohesive’ but is contested.

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The twin perils of constitutionalism are fogeyism and utopianism.

Fogeyism is the view that previous constitutional arrangements (either real or imagined) are inherently meritorious and are prescriptive and binding – and that any departure from these previous arrangements is unsound and should be resisted.

Utopianism is the view that the only constitutional reforms worth contemplating are to achieve certain ideals: A written constitution! Abolition of the monarchy! Abolition of the House of Lords!

(I have written on this later approach here.)

Perhaps it is because we do not have a codified constitution that constitutional discourse in the United Kingdom – or in England, to be more exact – is so impoverished.

Both the fogeys and the utopians prioritise a normative approach to constitutionalism – preoccupied with what they aver the constitution should be, rather than what it actually is.

What both miss is a positive approach – for, in descriptive terms, all a constitution is is the answer to the question: how is this polity constituted?

And the descriptive answer to that question will change from time to time, sometimes in accordance with your values and sometimes in breach of them.

The constitution of the United Kingdom – that is, the descriptive answer to the question of how the United Kingdom is currently constituted –  is just there, and it will always be there is some form as long as the United Kingdom exists.

And the constitution does not care for your nostalgia – or your utopianism.

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POSTSCRIPT – 4pm same day

Bogdanor has now responded to my response here – nothing in each changes anything, and I stand by my position that his Telegraph article fundamentally misuunderstands the constitutional significance of the Good Friiday Agreement.

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‘What’s all this? This is a court, this ain’t fancy dress’ – If you think a cat filter is ridiculous, you should see what judges and barristers sometimes have to wear in court – and why they should not

10th February 2021

One of the joys of the internet are cat videos, and for those interested in the law there was this cat video yesterday.

This may indeed be one of the funniest things you will ever watch.

But there is a more serious point worth making, as we rightly collapse and giggle at this footage.

In the United Kingdom, at least, judges and barristers are often required to wear things which are no less ridiculous than a cat filter.

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Here two quotes come to mind.

First, a sanitised one from the immortal Withnail and I:

‘What’s all this? This is a court. This ain’t fancy dress.’

‘You think you look normal, your honour?’

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Second, and somewhat more earnest, is George Orwell in his essay the Lion and the Unicorn:

‘The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber. It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face. Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim. Why is the goose-step not used in England? There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing. It is not used because the people in the street would laugh. Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.’

And similarly, in the United Kingdom, we often dare not laugh at judges and barristers, regardless of how silly their paraphernalia looks.

Because of traditions, and deference.

Because we are conditioned in England to think it perfectly normal that our system of justice is administered in eighteenth-century costumes in ill-suited and creaking Victorian buildings.

That all these anachronisms are as much a part of the natural stuff of law as the doctrine of consideration or the rule against perpetuities.

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Of course, there are practical considerations.

Those at the criminal bar will say, with force, that the robes and wigs give them helpful anonymity.

But this argument from utility does not justify the wider use of fancy dress – and many other legal systems manage with no more than simple and almost inconspicuous robes, if that.

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Now look again at the cat filter video.

But this time watch the judge instead.

This is what the judge himself tweeted:

The judge was calm and professional.

The judge did not need fancy dress.

Indeed, no judge or barrister or any lawyer needs to wear fancy dress as an end in and of itself.

(Yes, there may be an exception for criminal practitioners.)

Those who witter on about the ‘majesty of the law’ may as well talk of the absurdity of the law.

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As this blog averred the other day, there is no inherent reason why many court hearings – as with council meetings – cannot now be done virtually as the norm.

And if this is the case, all the visual gimmicks insisted on in actual physical court hearings no longer have any purpose, if they had a purpose at all.

Wearing wigs and robes may perhaps give a sense of occasion in a large gloomy draughty court room, but they have no place in a virtual hearing.

A good judge does not need to rely on such devices, and a poor judge should not be able to hide behind them.

*****

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The noises made by United Kingdom ministers complaining of exclusion from European Union decision-making is the sound of Brexit

9th February 2021

One delight of the internet age is that you are more likely to see copies of original political correspondence.

Before the late 1990s you could have a serious interest in politics and public affairs and never see a copy of an official letter on headed paper.

Now, though usually when it suits a politician or official involved, you will see formal correspondence as images attached to tweets or embedded in news articles for you to scroll and look at for yourself.

On the face of it, this is a boon for transparency: you get to see what these letters say for yourself, rather than relying on the spin of ‘a friend of the minister’ or the rushed summary of a busy reporter.

But this is somewhat illusory, for three reasons.

First, as mentioned, one almost always only gets to see what it suits somebody with power for you to see.

Second, some of the politicians most adept at the game of letter writing for publication – such as Michael Gove at the cabinet office – are in charge of government departments with miserable records in respect of freedom of information.

And third, the letters are invariably political rather than administrative devices, written with the audience of supporters and media in mind, rather than to inform the recipient.

So, notwithstanding the grand headings and formal paraphernalia, such letters should be presumed to be mere propaganda and gestures, unless a more serious nature can be shown.

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But.

Sometimes such letters can be unintentionally revealing.

And two such telling letters entered the public domain yesterday.

The first is from Gove and it is in respect of article 16 of the Irish protocol.

2020_02_02_-_Letter_from_CDL_to_VP_Šefčovič

As with any Gove letter the first task is to strip off the all the performative politeness, as one would do with the needless extra wrapping of something that may be useful underneath.

But what I saw as notable about this letter was not the supposed main subject of the botched invocation of article 16 by the European Union – on which the United Kingdom has a fair point, though here it is being shamelessly exploited – but a comment made by Gove in passing.

‘We were not consulted on this Regulation either.’

There was no formal need for the European Union to have consulted the United Kingdom on this new regulation.

The previous version of the regulation – which had cited article 16 – did mean that the United Kingdom should have at least been notified in advance.

But this was not the case with the replacement regulation.

The revised regulation was entirely a matter for the European Union.

And the reason why it was entirely a matter for the European Union is, well, because the United Kingdom has departed from the European Union.

Not being part of the formal decision-making, policy-making and law-making of the European Union is what Brexit means.

Of course, Brexit also means many different other things to different people.

But the one thing which Brexit has to mean is that the United Kingdom is no longer part of those institutions of the European Union that make decisions, or formulate and apply policy, or adopt and implement laws.

This is the necessary implication of the United Kingdom ‘taking back control’.

What did Gove and other Brexit-supporting politicians think Brexit meant?

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Another letter from another minister was from George Eustace.

Here the United Kingdom government is ‘surprised’ that the European Union has ‘changed its position’.

One fears that the United Kingdom will have to get used to be being ‘surprised’.

(Though any minister or official who is genuinely ‘surprised’ by what a counterparty does is not doing their job properly – as the awareness of and planning for possible contingencies is the basis of any sound public policy.)

Again, as with Gove’s letter, the United Kingdom government does not appear to realise that the United Kingdom is now merely a ‘third country’ for the purposes of European Union decision-making, policy-making and law-making.

Unless the European Union has agreed otherwise in the withdrawal or the trade and cooperation agreements, the interests of the United Kingdom has no more purchase on the conduct of the European Union than any other non-member of the European Union.

That is what Brexit means.

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There will be, no doubt, many more complaints from United Kingdom ministers – and from their political and media supporters – about the European Union making decisions, formulating and applying policy, and adopting and implementing laws, that are not to the advantage of the United Kingdom.

Supporters of Brexit tended to emphasise the positive-sounding ‘taking back’ of ‘control’ – but the immediate and necessary consequence of Brexit is instead the formal exclusion of the United Kingdom from general European Union decision-making, policy-making, and law-making.

And so, just as ministers complaining about adverse judicial decisions is the sound of a working constitution, the noises of ministers unhappy about what the European Union does and does not do is the sound of Brexit.

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FOLLOW-UPS

From time to time, this blog will link to interesting things relevant to previous posts.

On yesterday’s post on the Queen’s Consent, please see these further Guardian reports (here and here) and also this informative article by Adam Tucker, the leading constitutional law academic on the subject.

On the post on ‘Sovereignty’ and Brexit, many have pointed to this post by Alastair Campbell.

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The Queen’s Consent – a strange and obscure feature of the constitution of the United Kingdom – and why it should be abolished

8th February 2021

This post is about a thing of which you may not have heard.

The Queen’s Consent.

No, not that.

The Queen’s Consent is instead an odd and generally unknown feature of the constitution of the United Kingdom.

It is in the news today because of some investigative reporting by the Guardian newspaper.

The news report is here and their explainer about the Queen’s Consent is here.

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So what is the Queen’s Consent – and why, if at all, does it matter?

Let us start with what it is not.

The Queen’s Consent is not the ‘royal assent’ that is given to a bill passed by parliament that transforms it, by legal magic, into an act of parliament.

True, the royal assent is itself not widely understood.

Many think it is the queen herself that signs the legislation, but royal assent to legislation is done on the monarch’s behalf (and the last monarch to give royal assent personally was Victoria).

But Queen’s Consent is a different constitutional beast.

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Queen’s Consent is the right of the monarch (and the heir to the throne) to be consulted on – and thereby to veto – any legislation that affects the private interests of the crown.

Imagine if the constitution of the United States provided formally for the president of the day – Donald Trump or otherwise – to intervene in congress to stop or to amend proposed legislation that affected the financial interests of the president or the president’s family.

That is what the Queen’s Consent provides for in the United Kingdom.

It is a structural right to lobby beyond the dreams of any cynical Westminster ‘public affairs’ firm.

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There are a couple of things to note before we get onto just how strange this constitutional device is.

First, this is not about placing the crown beyond or above the law – it is instead (ahem) ‘upstream’ from the law being in place.

It is about being able to shape the law before it takes any effect.

Second, it is not about the public powers of the crown – the so-called ‘royal prerogative’ though the crown also has the right also to be consulted about legislation that affects those powers.

This is about the right to be consulted about proposed laws that affect the crown’s private interests rather than its public powers.

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And now we come to four strange things about the Queen’s Consent.

First – and notwithstanding today’s front page splash in the Guardian – a good deal about the Queen’s Consent is in the public domain, hiding in plain sight.

It is just that few people know about it or care.

In the cabinet office’s guide to legislation for civil servants it warrants an entire chapter.

There is also an entire 32-page pamphlet devoted to the topic for the benefit of those who draft legislation.

The detailed ‘Erskine May’ book of authority on parliamentary procedure also has a section on the subject.

(Look carefully at the wording of what Erskine May says here.)

And in 2014 there was even a parliamentary select committee report on the practice.

But unless you are a constitutional obsessive you would, however, not be aware of any of this.

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The second curious feature of the Queen’s Consent is perhaps the most extraordinary one.

The Queen’s Consent has no legal basis whatsoever.

There is no statute, nor even (it seems) any parliamentary resolution.

It is instead is something that is just, well, done.

If you scroll back up you will see that even Erskine May does not even offer any authority for the procedure.

And if you look at the practitioner’s legal encyclopaedia Halsbury’s Laws of England the authority that is given for the practice is Erskine May.

The 2014 select committee took evidence from specialists in parliamentary procedure and constitutional law experts – and the select committee could not identify any legal basis for the practice.

The only (supposed) authority is that it is ‘long-established’.

Given that the parliamentary bible Erskine May insists that the Queen’s Consent is ‘required‘ one would hope (and even expect) there to be some legal basis for the consent, but there is none.

To the extent that the Queen’s Consent has any formal basis at all, it is entirely based on parliamentary procedure.

And this means that it would be easy to abolish, for what is giveth by parliamentary procedure can be be taketh away by parliamentary procedure.

No law would need to be passed at all.

The queen would not need to be consulted, either by the Queen’s Consent or otherwise.

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The third oddity about the Queen’s Consent is similar to the second.

For just as there is no visible legal basis for this structural bias, there is also hardly any visible effect.

It is all done in secret.

And this is why today’s Guardian report has some significance.

It appears to be a documented example where the Queen’s Consent was used to actually shape legislation.

Yes, it is from nearly fifty years ago.

And yes, it is partly dependent on a 1975 speech from Geoffrey Howe in parliament, who delightfully savages us like a dead sheep all these years later.

But – given the secrecy that cloaks the use of the Queen’s Consent procedure, and the general restrictions on official records in the United Kingdom – that is the best evidence we are likely to readily get in practice.

Some will note the lack of evidence of this formal step having any effect and will contend from that lack of evidence that the formal step is merely a formality.

That there is nothing to look at here, and that there is nothing for us too worry our heads about.

But.

The evidence we do have indicates that the process is taken seriously and is intended to be practical.

Chapter 6 of the guide for those drafting legislation is insistent that notice be given to the court with sufficient time for it to have effect – and also that it should not be done prematurely.

None of this would be relevant, still less stipulated, if the stage was merely formal and ceremonial.

Those responsible for legislation are reminded again and again to make sure that the stage is treated so that it is efficacious for the crown.

Here it is worth noting that until fairly recently this guidance was hidden from public view using the excuse that it was covered by legal professional privilege – from the 2014 select committee report:

Steers on mere ceremonial steps are usually not anywhere close to being subject to legal professional privilege.

A further indication that the Queen’s Consent is a consequential stage rather than some ceremonial gimmick is the sheer detail of what has been and can be covered.

None of this would make sense if the Queen’s Consent was a mere formality.

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The fourth curious – and somewhat quaint and amusing – feature of the Queen’s Consent is how it make a private solicitors’ office a formal part of the constitution of the United Kingdom.

You would think this elevated role for a private individual this was the stuff of fiction – like George Smiley visiting Connie Sachs at her country cottage, or Sherlock Holmes visiting his brother at the Diogenes Club:

‘I did not know you quite so well in those days. One has to be discreet when one talks of high matters of state. You are right in thinking that he is under the British government. You would also be right in a sense if you said that occasionally he is the British government.’

But it is there in black and white.

For this formal stage of the Queen’s Consent a letter has to be sent to a private solicitor in Lincoln’s Inn Square:

The ‘language of the letters should be formal in nature’ – so presumably a bill could be frustrated if ‘Dear Sirs’ was followed by an incorrect ‘Yours sincerely’ – or even, gods forbid, there was not a ‘.’ after ‘Mr’.

It is all rather silly.

But what is not rather silly but rather serious is that that this is not to a lawyer in any public capacity in the royal household, and still less to the government’s own treasury solicitor, but to a private solicitor professionally charged with protecting and promoting private interests – and that the whole procedure is geared around the convenience of the private solicitor obtaining and then executing instructions from that solicitor’s private client.

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And this being England – and this is more an English trait rather than a British one – there is no express mention of ‘veto’ in any of the official documents.

The language used is in terms of a consent that is ‘required’ but the implications of the consent not given are left unspoken.

In practice, and given the lack of evidence of the consent being formally withheld, what this means is that the crown is given the right and opportunity to shape prospective legislation – or in the case today disclosed by the Guardian – to make alternative arrangements before the legislation passes.

The question is not about what happens if consent is not given, but what things need to change for the necessary consent to be given.

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There will be some who, even with all this information, will just shrug with a ‘so what?’.

There is no evidence – at least recent evidence – of the practice doing any harm.

But.

If the practice is, in fact, a mere formality then nothing will be lost with its abolition.

And if the practice does – as the procedure implies – have real effects, then it also should be abolished.

There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process. 

This would be wrong it had been for the benefit of President Trump’s family for bills before congress, and it is just as wrong here.

*****

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.

*****

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).

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Comments are welcome, but they are pre-moderated.

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“But: sovereignty” – why the question needs to keep on being asked of Brexit as to how any of this is worthwhile

7th February 2021

The front cover of the Observer this morning provides some indication of what the United Kingdom is doing to itself in respect of its botched endeavour of Brexit.

As Michael Gove himself could well put it: this country appears to have had enough of exports.

Elsewhere are news reports of the realisation of Northern Irish unionists that the manner of this Brexit means that there is now a trade barrier down the Irish Sea.

Even the fishermen and fisherwomen, in whose names the very last stand of this government’s Brexit negotiation strategy was made, are unhappy.

Day by day, news report by news report, the true nature of Brexit is becoming apparent.

There will be deflections and misdirections from those who supported and urged through this government’s approach to Brexit.

And, to the annoyance and frustration of those who opposed either Brexit in principle or this government’s Brexit policy in particular, these deflections and misdirections will in good part stick.

There will be no grand ‘oh gosh’ moment when all those responsible for this folly will admit to it having been a folly.

But.

This does not mean that those who are watching this folly unfold should be silent.

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For the question that needs to keep on being asked – whether one is against Brexit in principle or this government’s Brexit policy in particular – is simple:

How is any of this worthwhile?

Or alternatively:

What is the point of Brexit?

This is not a complaint from principle but from practice – regardless of one’s view of membership of the European Union, those responsible for the United Kingdom’s post-Brexit policy are still required to justify what they are doing.

*

The answer from Brexit supporters to the question of why any of this is worthwhile seems to be one word: ‘sovereignty’.

All these disruptions and all these reversals are supposed to be worth it, because of ‘sovereignty’.

But, as this blog has previously averred, the United Kingdom had sovereignty all along.

That is why the United Kingdom was able to decide to leave the European Union, and that is why parliament was able to repeal the European Communities Act 1972.

Sovereignty was never lost.

And to the extent that the United Kingdom was bound by international rules and decisions, this was (and is) no different in principle to the obligations that the United Kingdom has under NATO, or the World Trade Organisation, or the United Nations.

Though curiously, many of those in favour of Brexit are at ease with our obligations in respect of those international organisations, and even boast of trading under ‘WTO rules’ or of the United Kingdom’s permanent membership of the UN security council.

One could even say that Brexit is nothing actually to do with ‘sovereignty’ (with or without scare quotes) and more to do with hostility to the ‘E’ word, Europe.

What Brexit certainly has little to do with in practice is the supremacy of parliament – indeed under the cloak of Brexit, the United Kingdom government is seeking to legislate as much as possible by executive action.

Powers are being taken away by Whitehall from Westminster rather than from Brussels.

Even on the one topic on which the current government has struck lucky – and that was more by chance than design – it was possible under European Union law for the United Kingdom to procure the AstraZeneca vaccine on its own terms.

And, indeed at the time, the United Kingdom was still subject to European Union law under the transition arrangements.

*

No assertions – however loud – about Brexit in practice being justified by ‘sovereignty’ in principle add up with a moment’s thought.

Not one incident of Brexit so far has shown any value of Brexit as an exercise in regaining ‘sovereignty’.

And this is not so much because Brexiters are wrong to prioritise sovereignty above everything else – but because none of this is really about sovereignty in the first place.

And so the question needs to keep on being asked as to why any of this is worthwhile.

Because it is only by pressing this question that we can ascertain the real reasons for certain botched policies and decisions – and then once the real reasons are ascertained then something useful can be done to mitigate the disruption and damage.

For like some character in an ancient myth or a folklore tale, the United Kingdom has chosen to bring destruction upon itself in supposed pursuit of a thing it had already.

*****

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Does the Handforth Parish Council viral video show that local government should be abolished? Or does it show that all local government meetings should be virtual?

6th February 2021

The interest in that Handforth Parish Council video is extraordinary.

Even at this blog, yesterday’s post has already had more views than any other post here has had in total over the last five years – with the single exception of the post that explained Article 50 the day after the shock of the referendum result.

(Yesterday’s post even attracted a commenter who, without any apparent irony, described Jackie Weaver’s actions as ‘the worst kind of Fascism’ – and one can only wonder what they then thought when their comment was binned rather than published.)

Without doubt the video has added for some to what used to to be called the ‘gaiety of the nation’ – though for others it was a less cheerful public illustration of the abuses, disruption and misconduct in such meetings that is usually hidden from view.

But as interest fades and new memes come along, what – if anything – is the more general significance of the story of that parish council meeting?

*

One problem of local government is lack of interest.

People, it would seem, can only bear so much democracy.

The turnout in local government is lower than parliamentary elections.

And – as with political parties – the fewer people who are engaged, the more unrepresentative are those who stay involved.

When those unrepresentative representatives have actual powers then this means it is more likely that bad decisions will be made instead of good decisions. 

*

One response to this observation will be that the solution is to encourage more interest and more engagement.

And such a stirring exhortation will garner claps and cheers – or, at least, their modern equivalent, ‘likes’ and RTs.

But when the nods finish and good intentions are superseded, there will still be little interest in local government.

Because nothing has changed substantially to make local government more accessible.

And so in local government continues to be dominated by those who would only get elected because of that lack of interest.

To which, in turn, there are two three responses.

The first is to shrug and say one gets the local elected representatives one deserves.

The second is to question the need for the democratic element in the provision of local services – after all, many people will not care who their local councillors are, so long as their bins are collected on time.

The third is to see lack of interest as the result of the lack of real powers for local government – and if local bodies had more powers then there would be more local interest.

*

None of these three responses are, for me, compelling.

But.

The Handforth incident suggests there is a way for there to be more interest in local government – and that is simply to make it easier for people to follow what is going on (and even participate) in the making of local government decisions.

One of the few benefits of the coronavirus lockdowns has been that various bodies are now deliberating online rather than in unknown council chambers, and that those deliberations are publicly available.

As a matter of democratic principle, and from the perspective of increasing transparency, there is great deal to be said for deliberations to be done virtually.

Here I do not mean that council proceedings should just be streamed, but that the actual meetings should be done virtually rather than in some council chamber or committee room.

Indeed, one could question whether – given new technology – there is now any need for council chambers at all, other than for ceremonial events and for showing determined tourists.

And we would be free from the tiresome mock-parliamentary debating society macho pedantic silliness of some oral debates – and it would be easier for all representatives to contribute rather than budding after dinner speakers and those who bray in their support.

Councillors would also be able to readily attend around their other professional and home responsibilities, rather than giving up whole days in the manner of leisurely amateurs in frock coats.

At a stroke such virtual proceedings as the norm would be instantly more accessible to the public – and also to otherwise sidelined councillors.

*

Much of what we take as the natural norms in our public affairs are just practices and categories we have inherited from previous generations.

And big set-piece meetings in ornate council chambers may have suited Victorians and Edwardians – but, if we were starting from a blank page today, would we come up with the same model?

(Indeed, would practically minded Victorians and Edwardians have insisted on their model had they been aware of our technology?)

Similar points can also be made about other formal meetings – and indeed court hearings.

Other than when the credibility of witness under examination is at issue – and there is no substitute for that being done in person – or when there are necessary reporting restrictions, there is no overwhelming reason why most court hearings cannot be done virtually.

*

The fact that we inherited practices from a time without virtual technology is no reason, by itself, to persist with those practices, as long as other principles such as due process and fairness are not adversely affected.

Making public affairs more accessible is not only a public good, but would have the practical utility of ensuring more engagement.

People watching – or participating  in – the Handforth council meeting on their laptop or their phone (or indeed iPad) was for many a novelty.

But it would be good for democracy if virtual council and their formal meetings and hearings became the new natural norm.

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Four examples of Prime Ministerial power – how Boris Johnson in fact ‘did everything he could’ for there to be a trade barrier down the Irish Sea

4th February 2021

You will no doubt have an opinion on Boris Johnson, the current prime minister of the United Kingdom.

For my part, the best and most insightful depictions of Johnson as a politician are this piece by Marina Hyde and this by Rafael Behr.

This post, however, will look at the prime minister not just as politician but also through the lens of constitutional law and practice – and, in particular, will examine one statement he made yesterday.

Everyone who cares knows that Johnson will not do – and has not done – ‘everything’ to avoid a barrier down the Irish Sea.

The fact that this statement is untrue is by itself neither here nor there: more than most politicians, Johnson knowingly says false things.

But for this blog, what is interesting about this lie is that its falsity engages four distinct examples of prime ministerial power.

For Johnson did everything as a prime minister for there to be a barrier down the Irish Sea.

*

Within a parliamentary system such as the United Kingdom, and with the constitutional theory that executive power flows from the crown, there are limits to what any prime minister can and cannot do.

But the Irish barrier question shows the ways in which a prime minister can exercise power.

*

First, a prime minister can change and set government policy.

And here Johnson broke with the policy of his predecessor on the (once infamous) ‘backstop’ in the withdrawal agreement.

Johnson, of course, did this for cynical reasons of political convenience – but it is a decision that only a prime minister could have made.

And Johnson did.

*

Second, a prime minister can enter into international agreements.

In constitutional theory, this is the prime minster using the royal prerogative to enter into those international agreements.

So having reversed the policy of his predecessor, he proceeded to agree the withdrawal agreement providing for a trade barrier down the Irish Sea.

And again, this was something he could only have done as prime minister.

*

Third, a prime minister – as leader of the party that wins a general election – can win a mandate for their policies.

Currently, calling a general election is outside the powers of a prime minister, by reason of the Fixed-term Parliaments Act.

But when there is a general election, and that election is won, the prime minister (and the winning party) then enjoys a mandate for their manifesto commitments.

And this mandate is constitutionally significant – for example: any policy with such a mandate cannot be blocked or delayed by the house of lords.

The (then) ‘oven-ready’ deal was mandated by the 2019 general election.

So, again, a mandate was something Johnson achieved as a prime minister (and which his predecessor failed to do with the 2017 general election).

*

And fourth, a prime minister is ultimately responsible for the government’s programme of legislation.

So: having reversed policy, entered into an agreement with the European Union giving effect to that new policy, and having won a mandate for the policy in a general election…

…the prime minister now ensured that the policy was implemented into domestic law with an act of parliament.

(Legislation that, of course, was pushed through with minimal scrutiny using the government’s newly obtained overall majority so as to ‘Get Brexit Done’).

*

That there is now a trade barrier in the Irish Sea is a perfect illustration of the various powers of a prime minister under our constitutional arrangements.

The trade barrier in the Irish Sea was Boris Johnson’s policy (which he reversed from his predecessor), which he agreed with the European Union and for which won a mandate in a general election, and that he then ensured was enacted into domestic law.

There was nothing more Johnson as prime minister could have done for there to be this trade barrier in the Irish Sea.

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How Theresa May casually decided that Brexit meant the United Kingdom would leave the single market and customs union – the fascinating and revealing interview with Philip Hammond

3rd February 2021

One response to the news that former chancellor Philip Hammond has given a candid and critical interview about the Brexit policy (or lack of policy) of the Theresa May administration is to sneer and jeer, announce that he should have resigned rather than be party to it, and to ‘like” and RT some tweet saying so.

And then to not give it a further thought.

Another, more worthwhile reaction is to look out the interview, and to read and consider it carefully.

And in doing so, you should compare what Hammond says now with your recollection of what Brexit seemed like at the time, from the outside.

What emerges is a picture that many of us onlookers – conscious of the issues at stake but unimpressed by the government’s shallow public messaging – suspected was true all along.

The interview – which is part of an impressive series of interviews with ‘witnesses’ of Brexit by UK in a Changing Europe – should be read in full by anyone wanting a real understanding of what happened within government on Brexit.

But below are some examples which, at least for me and my commentary, substantiated what some of us believed to be the case at the time – including about the casual nature of the huge decision to leave the single market and the customs union.

The transcript of the interview is here.

*

On the creation of the pop-up government departments, the Department for Exiting the European Union and the Department for International Trade, Hammond says:

‘Creating a new Government department, frankly, is a pretty cost-free signalling mechanism for an incoming Prime Minister. So, the Department for Exiting the European Union – a ludicrous notion, absolutely ludicrous; a rookie civil service trainee could tell you that that was a stupid idea – and the Department for International Trade, were both gestures.

‘They were ways of bringing in clear, committed Brexiteers to the Government, and plonking them in a place where they could assert their views, rally their troops, and, she hoped, provide a focal point for the hard-line Brexiteers in the parliamentary party. As well as finding out the hard way how difficult this was all going to be in practice.’

*

On the botched re-negotiation that preceded the referendum (which was so limited because it misunderstood what the European Union could offer without a treaty change):

‘We all interpreted German pragmatism as support for a more British view of the future of Europe. That was clearly not correct, so we definitely overestimated the flexibility of the Europeans.’

*

And perhaps most significantly, on the run-up to the fateful October 2016 conservative party speech in Birmingham – and its aftermath:

‘I was completely stunned by the speech that she made at the Conservative Party Conference in October 2016. I hadn’t seen the relevant part of it in advance. I’d had no input to the speech. Nick Timothy kept me completely away from it. […]

‘I was completely and utterly horrified by what I felt was almost a coup: a definition of Brexit without any proper Cabinet consultation at all. 

‘My assessment of Theresa May’s Prime Ministership, in terms of Brexit, is that she dug a 20-foot-deep hole in October 2016 in making that speech and, from that moment onwards, cupful by cupful of earth at a time, was trying to fill it in a bit so that she wasn’t in such a deep mess. […]

‘It was a disaster on all fronts, a total unmitigated disaster that scarred her Prime Ministership and should have sealed Nick Timothy’s fate, but I think she only realised later how badly that had constrained her ability to deliver any kind of practical Brexit at all.’

*

What this interview indicates – if not demonstrates – is how crucial those first few months were after the referendum were to the shape of Brexit, from June to October 2016.

That was when, in my view, the battle for Brexit was won and lost.

Until the conference speech it was possible to conceive of a number of different possible Brexits that could follow the referendum result.

(Or in my (incorrect) view at the time, that it was possible that the thing would just be delayed and delayed, as the sheer magnitude of the task became scarily apparent.)

But after the October speech, the only Brexit which was politically likely would be the absolute version with the United Kingdom leaving the single market and the customs union.

And the only way that such a Brexit could have been stopped, again in my view, would have been if the respective leaders of the labour, liberal democrat and other opposition parties had handled the prospect of a general election differently in late 2019.

In essence: in the whole of the story of Brexit so far, only (a) June to October 2016 and (b) November/December 2019 were the real turning points where Brexit could have turned out substantially different after the referendum.

The interview with Hammond, in particular, reminds us that there were non-Brexiter ‘pragmatists’ as well as (in his word) ‘refuseniks’ in those first few months after the referendum.

And notwithstanding the ‘Brexit means Brexit’ slogan of May in her party leadership bid of that summer, it was still possible to conceive of different outcomes.

The pragmatists could have prevailed.

But.

But something happened – a decision was casually made that will turn out to be as consequential for the United Kingdom as any other immensely important decision in our history.

And that decision was made by a prime minister who, on Hammond’s account, did not understand the import of her decision, and without reference to either cabinet or parliament.

An extraordinary moment, and one which is becoming more extraordinary over time.

*****

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For every Bingham there will be many more Hardings – why the law of public procurement matters – by a partial and prejudiced public procurement lawyer

2nd February 2021

Like constitutional law and practice, the law and practice of public procurement has recently been exciting.

And this is not a good thing, for also like constitutional law and practice, the law and practice of public procurement should be dull.

But unlike constitutional law and practice – the elements of which like the crown, parliament and the courts are at least well known – the elements of the law and practice of public procurement are not so well known.

Indeed, many commercial and public lawyers can go through their careers and never have to deal with a public procurement issue.

And many commercial companies – all potential government suppliers – will never engage with the public sector.

Public procurement is (usually) a minority interest.

*

But.

Public procurement – that is, in general terms, the purchase by public bodies of goods and services and works (that is, major projects) from the private sector – has become rather politically controversial.

And with Brexit, this public prominence is likely to continue.

So it seemed worthwhile to set out to non-lawyers – and other lawyers with no direct connection with public procurement – to set out some basic points about public procurement, from the subjective perspective of someone who has had some experience in public procurement for twenty years.

*

The starting point, at least in the United Kingdom, is that central government would in principle be able to lawfully buy anything from anyone at any price and on any terms – but for the law of public procurement.

This is because – and here comes some constitutional law mumbo-jumbo – the crown is regarded as a legal person with full capacity.

And just as you and I are able, as natural persons, to enter into contracts, so is the crown.

Of course, it is not Elizabeth Mountbatten-Windsor who is signing contracts for things from toilet rolls to nuclear submarines as part of some extraordinary Waitrose delivery.

But in principle, the crown is able to enter into any contractual obligations it so wishes.

The agreements are, in turn, usually entered into on the crown’s behalf by government departments – usually in the name of the relevant secretary of the state.

(Here it can get complicated, as many secretaries of state are regarded by the law as ‘corporations sole’ that can hold property and so on.)

And so this means that government departments are, in principle, are able to enter into any contractual obligations they so wish.

Apart from central government, there are many other public bodies with a mix of legal forms – from bodies established by royal charter to corporations set up by statute – and these bodies also can, in (very) general terms, enter into contracts as readily as any natural person.

(There used to be many cases where certain transactions were held to be ‘ultra vires’ the powers of local authorities, but legal changes have meant that this is less likely to be the case now.)

And this is the basis of the law of public procurement in the United Kingdom: that but for the law of public procurement, public bodies can in general lawfully enter into transactions freely.

In this way, the law and practice of public procurement should primarily be seen as like the ropes around Lemuel Gulliver or King Kong – preventing public bodies from doing what they otherwise would do.

*

So what are the restraints of public procurement?

In theory, the restraints are of two kinds.

First, there are general principles – at least under the law of the European Union (which has now been adopted as domestic law) and the rules of the World Trade Organisation.

Tenders should be advertised and open to all-comers; selection criteria should be published; public bodies should not discriminate in favour of incumbents and domestic companies; tenderers should be treated equally; procurement exercises should be competitive; there should be transparency; and there should be remedies in the event of unfair treatment.

All very fine and commendable.

And some would say that these principles really should be enough, and that as long as a public body accords with these principles, the public body should be able to be able to procure as it wishes.

Just as, say, an employer can recruit who they wish, as long as they do not discriminate against people with certain characteristics.

But.

The law and practice of public procurement goes further than these general principles – at least for high value procurements.

Much, much further.

This is because, in addition to these general principles, there are detailed procedures prescribed for public authorities to follow.

The theory is that these detailed procedures give practical effect to the general principles, by setting out what can and cannot be done at each of the many stages which a public procurement exercise can be broken down into.

And so behold, for example, the 122 sections and 6 schedules over 133 pages of the Public Contracts Regulations 2015.

Behold also the 178 pages of the European Union directive to which those regulations give effect – with no less than 138 recitals.

So, in practice, public procurement exercises can be long and expensive and complicated and legalistic.

And this, in turn, means that many procurement exercises are dominated by the same few mega-providers with specialist bidding teams – you know which companies, with deliberately bland and meaningless names – that can afford the lost costs of an adverse ratio of losing tenders to winning them.

The laws of public procurement can be seen as a well-intentioned way of opening up the government public procurement market that in fact makes things uncompetitive and inaccessible.

*

There are further problems.

Procurement exercises that start with specifications developed by officials can often mean that providers are expected to provide bespoke (and thereby expensive, unrealistic, risky and untried) products and services rather than commercially off-the-shelf products and services.

And suppliers can exploit their relative power at the final stages of a procurement exercise, or after the contract has been entered into, to remove or vary contractual protections for the public body.

Public bodies do not enforce the contractual rights that they do have.

There is also the the issue of the revolving doors between public bodies and purchasers, with many on both sides knowing each other far better than, say, the officials will know those in other parts of the public body.

And so on.

Many problems.

But.

And this is a big but.

*

As one politician once said of a certain political system, it is the worst form of government, except for all the others.

And the same can be said of public procurement.

Anyone who has been involved in the world of public procurement is alert to the problems.

And most public procurement officials do the best they can with the tools that they have got.

The problem is that, if it was not for the law of public procurement, with all its faults, the practice of public procurement would be worse than it is.

If there were no detailed processes for high-value procurements, then there would be even more of a chumocracy, more corruption, more political rather than commercial decisions, more incumbent bias.

The striking thing about the law and practice of public procurement in the United Kingdom is not that there are abuses but that, relatively speaking, there are so few.

If the law of public procurement was stripped away, even just to general principles, there would be little in practice to prevent a free-for-all with public cash.

The challenge for those, like me, who are critical of the law and practice of public procurement is to work out a better (or less bad) way.

And that is hard.

*

Yet sometimes public procurement exercises do need to be flexible.

The detailed processes sometimes need to be set aside.

The current political controversy over the procurement of vaccines seems to show the merits of the quick decision-making of the United Kingdom over the ponderous and inefficient approach of the European Commission. 

If this is the case, then: hurrah!

But for every Bingham there will be many more Hardings.

For every single successful urgent and informal procurement there will be many more botched and extravagant ones.

And this is because there are huge amounts of cash at stake – and public bodies are reliable payers – and where there is such money, there will be corruption and waste.

*

All large-scale procurement is not easy.

Large procurement exercises in the private sector can also be highly problematic – it is just that they are less likely to feature in the news.

This, in many ways, is not an especially ‘public sector’ problem.

And we should, generally, be glad that the law and practice of public procurement works as well as it does.

Yet, there are ways it could be better.

As this blog recently averred, there is actually no good reason why the terms of public contracts should be confidential – at least in respect of allocations of risk and sanctions for non-performance.

Public bodies should also be more ready to use the powers and sanctions they do have under agreements – as it is, it is rare for any public body to ‘go legal’ in a way that a private sector company would do in a similar way with a similar value contract.

There are grounds for legitimate concern that many high-value, elaborate, time-consuming and cumbersome procurement exercises seem perfectly tailored for the benefit of the tender departments of a certain type of mega-suppler.

In essence: far more transparency, and more realism about how current law and practices are abused.

(Leaving the European Union may also be an opportunity for the United Kingdom to revisit the complexity of our domestic procurement regime – though this opportunity will no doubt not be used well.)

*

What should be exciting in politics is the democratic contest between priorities and policies.

And once a priority has been asserted and a policy adopted, the implementation of that priority and policy should not itself be a political issue. 

This is why public procurement should be dull.

(Similarly, it is rarely a good thing when constitutional law, which sets the agreed parameters of political action, becomes the primary focus of sustained political attention, as this means things are not well in the polity.)

But an awareness of the law and practice of public procurement, and not only of its faults but the greater faults which it prevents, should be part of the stock of civic knowledge of every citizen.

Dull things can still be important things.

*****

The title of this post alludes, of course, to this.

*****

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.

*****

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