Category: United Kingdom Law and Policy

Hyper-partisanship and constitutionalism

13th December 2020

Consider three political situations.

The first is where constitutional issues play no real part in day-to-day politics.

Here issues about the economy, law and order, health, social welfare, the environment, defence and so on dominate both party politics and media coverage.

The second is where a discrete constitutional issue becomes part of the political debate.

For example in the United Kingdom, this could be devolution, or House of Lords reform, or proportional representation.

That issue will tend to be addressed though normal party politics, and such issues do come and go from time to time.

And there is a third category, where constitutional issues are themselves gamed for party issues.

This is what is happening in the United States currently, and to a lesser extent in the United Kingdom.

In the United States, for example, there is the extraordinary attempt by Republicans in Congress and many states to overturn the result of the 2020 presidential election.

In the United Kingdom, for example, the government is politically exploiting attacks on the courts, on lawyers and on the very ability of judiciary to hold the executive to account.

I have many times said that it is a bad thing for constitutional law to be exciting.

If contesting the rules of the game themselves becomes the focus then the game itself is subverted.

What can be fairly called ‘hyper-partisanship’ – which goes far beyond the normal knockabout of party politics – is a dangerous thing for constitutions and constitutionalism.

In any modern political system an immense amount depends on legitimacy and being governed by consent.

A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation – and, in any case, many totalitarian states use propaganda, symbolism and vilification of the ‘other’ to manufacture legitimacy and consent.

Remove that shared sense of legitimacy of institutions by having a permanent revolution and constitutional culture war and then the state will find it more difficult to govern.

Why should anyone accept the decisions of a court, or of a legislature, or even of an electorate, when the legitimacy of each is a partisan issue?

There is certainly a need for constitutional reforms from time to time, but this should be on the basis of making various institutions and practices more legitimate not less.

Constitutional law and constitutional issues are far too exciting, and this is a bad thing.

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Sovereignty and ‘Sovereignty!’

11th December 2020

One feature of contemporary politics in both the United Kingdom and United States is the way descriptive words and phrases have become slogans with a very different meaning.

This blog has already described the unhappy juxtaposition between ‘Law and Order!’ and law and order – and we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law, while the populist government of the United Kingdom sought recently to expressly legislate that it could break the law.

And a similar distinction can be made about sovereignty and ‘Sovereignty!’.

In the United Kingdom it would seem that one explanation of the ongoing failure for a trade agreement to be finalised with the European Union is because of this ‘s’ word.

Here, as examples, are some recent tweets from the United Kingdom’s head negotiator.

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So what does this ‘s’ word mean?

From a legal perspective, sovereignty is really about two things.

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First, sovereignty is about the ultimate source of political power in any given polity.

In the United Kingdom, as its name suggests, the ultimate source of political power is the crown.

Some would say is not correct to even speak of the ‘sovereignty of parliament’ – the power of parliament to make or unmake any law always depends on a bill receiving royal assent.

Only with the crown’s approval does a law then have super-duper magical power.

Resolutions and motions of either or both houses of parliament may bind parliament but they do not have the same effect outside as legislation.

That is why I and others tend to write of ‘supremacy’ of parliament, not sovereignty.

The crown also is the source of political power elsewhere in the United Kingdom constitution.

It is the source of power – somewhat obviously – in respect of the so-called ‘royal prerogative’ – where the executive gets to do things which have legal effect without any legislative basis.

It is the source of power with ‘royal charters’, instruments which can have legal effects similar to legislation.

And the crown is the ultimate source of power for the judiciary, at least for the high court of England and Wales.

(This means that in constitutional terms, the two Miller cases on prime ministerial power can be characterised as being about the crown in the courts adjudicating on the powers of the crown as exercised by ministers so as to circumvent the crown in parliament.)

This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.

Just as parliament was always able to repeal the European Communities Act 1972, parliament will be able to make or unmake any law which flows from the post-Brexit relationship agreement, and that will be respected by the courts.

So this cannot be the meaning of sovereignty that Johnson and Frost have in mind.

Nothing in any post-Brexit trade agreement is relevant to this meaning of sovereignty at all.

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The second legal meaning of sovereignty is not so much about the source of power but about legal capacity.

A sovereign thing can do and not do as it wishes.

And one thing a sovereign thing can do is to enter agreements with other sovereign things.

This is where Johnson and Frost appear to misunderstand the ‘s’ word.

For them, ‘Sovereignty!’ means that the United Kingdom cannot and should not enter into and be bound by any international agreements.

But one test of sovereignty is that a thing is capable of entering into international agreements – the cart is not before the horse.

In general terms, being able to accept obligations is the very point of sovereignty: that a nation state can enter into a treaty means that it is a sovereign state.

(For more on the fascinating history of sovereignty and treaties, see here.)

This is why, for example, Canada, Australia and New Zealand insisted on being separate signatories to the surrender instrument of Japan, and to not allow the United Kingdom to sign on behalf of the then empire.

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Sovereignty thereby does not mean that the United Kingdom cannot and should not enter into international agreements.

Sovereignty means that the United Kingdom can do so.

And any international agreement means accepting obligations that restrict autonomy, for that is the nature of an obligation.

Under the North Atlantic treaty, for example, the United Kingdom has an obligation to go to war even if it not attacked itself. 

Article 5 of that treaty provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

Some would say that Article 5 of the North Atlantic treaty is a greater interference with the ‘s’ word of the United Kingdom than anything which has come from the European Union.

And it is difficult to reconcile many statements of government-supporting politicians on sovereignty in respect of the European Union with their continued support for the United Kingdom being part of NATO.

Similar points can also be made for the United Kingdom’s obligations under the United Nations charter and indeed under any other international treaties.

Trade-offs on autonomy are a feature and not a bug of being a sovereign state.

An analogy is with being able to marry: when a person reaches their majority they can enter into a marriage contract should they so wish, but being in their majority does not compel them to either marry or not marry, and if they marry they can always divorce.

The Johnson-Frost approach to the ‘s’ word is confused.

They seem to think sovereignty means that the United Kingdom cannot and should not enter into international agreements, whereas sovereignty actually means that the United Kingdom can do so should it want to do so.

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An indication of the United Kingdom government’s incorrect understanding of sovereignty was set out in a white paper earlier in the Brexit process:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

This is about “feelings” – not law or policy.

Brexit as therapy – so as to make the United Kingdom “feel” it is a sovereign state.

And this is the fundamental misconception of those who assert ‘Sovereignty!’ just to make themselves feel better.

Sovereignty exists anyway.

Sovereignty does not care about your feelings.

**

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The fundamental problem of Brexit is that a complex and slow task has been treated as easy and to be done at speed

10th December 2020

Three photographs summarise perfectly the course of the Brexit negotiations.

Few people will claim that the negotiations for the terms of the departure of the United Kingdom from the European Union and then for the terms of the future relationship have gone perfectly, or even well.

Is there a single cause for this?

Some would say that Brexit in and of itself could never have gone well – that for the United Kingdom to leave the European Union was a project that would always have ended badly.

That Brexit was misconceived to begin with.

Perhaps.

But a Brexit done slowly and gradually, over several years, with full acknowledgment of how complicated an exercise would have been possible (even if not desirable).

Also possible would have been a Brexit where the United Kingdom had properly worked out what it wanted from departure before starting the exit process.

But these things did not happen.

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For me, the most fundamental problem with Brexit is not so much the principle of departure but the constant underestimation by the United Kingdom government of what would be involved in a member state unravelling over 45 years of entwined law and policy.

The task was always going to be complex, and it was not one which could be done at speed.

But those in charge of United Kingdom policy have treated the task as if it were simple – David Davis winging it, Theresa May believing it would all be as easy as when she opted in and out of European Union policy areas as home secretary, and the slogans and bravado of Boris Johnson.

Taking back control, Brexit means Brexit, get Brexit done.

Of course, the terms of Article 50 itself did not help in this respect – with its envisaged brisk two year period – but this period was capable of extension, and indeed it was extended.

There was also the somewhat artificial distinction between the exit agreement and the agreement for the future relationship, and it would have been much better if there had been one overall negotiation and agreement.

Yet even taking those process points into account, the Brexit exercise would still have been botched because the United Kingdom government had not properly prepared and thought-through its Brexit policy before embarking on departure.

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Perhaps Brexiters thought – not without good reason – that any delay would mean a Brexit denied.

And so, unless Brexit was done at speed, it would not be done at all.

Perhaps.

But a Brexit delayed and maybe not done at all would have been preferable to this botched Brexit.

The complexity of Brexit will not go away because it is ignored and the process done at undue speed – the problems will just manifest themselves differently.

Brexit will never ‘be done’ – at least not for the rest of the 2020s.

Brace, brace.

**

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The fork in the road to Brexit – Boris Johnson has to choose between being irresponsible or being unprincipled

9th December 2020

The United Kingdom prime minister Boris Johnson has come to a fork in the road on his Brexit journey.

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One direction is for those who are irresponsible.

To take this route he has to go for ‘no deal’ – that is for the United Kingdom to not have a relationship in place with the European Union once the Brexit transition period ends on 31st December 2020.

This will mean no agreement on tariffs, or on the trade in services, or on security and information sharing, or on numerous policy areas not to do with fishing as well as fishing, or on regulatory equivalence and how any divergence is managed.

This would be an extraordinary disruptive change in our relationship with the European Union in just a few days from now.

But the irresponsible route has been taken before in the Brexit journey: a referendum without any preparation for a Leave vote; an Article 50 notification without planning or thought; and a refusal to extend the transition period when there was an opportunity to do so.

The ‘irresponsible’ route has been taken before: it has ‘form’.

One can imagine that route being chosen.

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The other direction is for the unprincipled.

To take this route Johnson has to renege on many things he has said he would not do.

He needs to accept the European Union’s unbending position on regulatory equivalence and on governance of the agreement.

And this will conflict with the things he has said to his political supporters and others on ‘sovereignty’ and limiting the reach of Brussels.

To now go against these commitments would be hypocritical

But this route also has been taken before in his Brexit journey: he wrote two columns, for and against, and made promises to the then prime minister before supporting leave; he voted against and then for the next prime minister’s deal; he accepted the withdrawal agreement on terms he had previously opposed; and he told the electorate he had an ‘oven ready deal’ before then legislating so as to break that same deal.

The unprincipled route too has been taken before and has ‘form’.

One can imagine that route being taken instead.

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Clever wags will, of course, respond to the title of this post with ‘both’.

But he cannot do both, not on this occasion.

While there are elements of irresponsibility and lack of principle in many actions he – and most other politicians – will take, there is a real and stark decision here.

A binary situation: either/or.

Johnson either accepts the terms on offer from the European Union, or he does not.

There may be other apparent routes: he could affect that the European Union has given in on something, or there could perhaps be (yet another) extension of the Brexit process.

But these deflections hide or delay the ultimate decision: no deal or a deal on the terms of the European Union.

The decision that is taken may perhaps one day seem to historians as inevitable all along.

But looking at it from the outside in early December 2020, it is genuinely difficult to work out which route this prime minister will take.

Both directions have the force of narrative behind them.

Both seem plausible next chapters in the book of Brexit.

So the question for our prime minister is: are you more irresponsible than unprincipled, or vice versa?

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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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Brexit will be with either no deal or a deal on the terms of the European Union – and it is difficult to see how any Brexit could have ended differently

8th December 2020

We are now at the latest Brexit endgame.

Another endgame in that succession of contests between the United Kingdom and the European Union that we call Brexit.

This latest contest is about whether there will be an agreement between the European Union and the United Kingdom for the relationship following the end of the transition period on 31st December 2020.

And the United Kingdom has a difficult choice.

The choice is between the United Kingdom agreeing to the terms on offer or refusing those terms.

Take these terms or leave them.

This outcome, like previous outcomes in this process, will be determined by whether the United Kingdom refuses to agree a thing or agrees that thing on the terms of the European Union.

And this is how ‘taking back control’ has worked out in practice.

The European Union’s way, or the highway.

And, as before, it is more likely than not that the United Kingdom will agree a thing on the terms of the European Union.

This latest agreement was to be called the ‘treaty of London’ as a patriotic gesture.

But instead, it is Boris Johnson who has been summoned this week to Brussels.

Perhaps the European Union will not be so insensitive as to provide a disused Eurostar railway carriage as the venue for any reeluctant signature of instruments of the trade agreement.

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Is ‘no deal’ still possible?

There is a real prospect that Johnson going to Brussels will not mean he agrees to the presented trade agreement.

Even with the United Kingdom government jettisoning the makeweight issues of fisheries and the Internal Market Bill clauses, there are two serious issues of contention.

The outstanding issues are the governance of the agreement (that is, how is to be enforced if things go wrong) and the ‘level playing field’ of regulatory equivalence (that is, how is any divergence from the current common commercial standards be managed).

A moment’s thought should make any sensible person realise that these two issues go to the very centre of any future relationship agreement.

For these issues to still be open just days before the end of the Brexit transition period is not a good sign.

There is no indication or reason to believe that the European Union will compromise on either issue.

Not least because the European Union will be fully aware of how any compromise in this agreement will affect its credibility in other trade agreements, and European Union negotiators are not fools.

So it will either be the European Union’s way, or the highway.

And the United Kingdom is perfectly capable of choosing the daft way.

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Could things have been different?

What if, for example, the United Kingdom had exercised its (now lost) power to request an extension of a further year to the transition period?

That certainly would have been prudent from a practical perspective: it would have enabled the European Union and the United Kingdom to deal with other pressing issues, not least the coronavirus pandemic.

Yet.

Does anyone seriously think the United Kingdom government would have used this further year working out what it wanted from Brexit?

It has had since 2016 to work out its position, and there is no reason to think that another year would have made any difference.

Had there been a year’s extension to the transition period, the United Kingdom’s (lack of) position would have been the same in December 2021 as it is now in December 2020.

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So, if this is the current predicament – who is to blame?

There are currently pundits putting forward the view that the lack of a ‘soft’ Brexit, with the United Kingdom staying in either the single market and/or the customs union is somehow the fault of those who were not in government since 2016.

Remainers are certainly culpable for losing the referendum – after 43 years of membership, the referendum was theirs to lose.

And, in my view, Remain lost the 2016 referendum far more than Leave won it.

But once Theresa May made ‘Brexit means Brexit’ the basis of her bid to become prime minister and Conservative party leadership, there is no plausible chain of events that would have led to any Brexit being a ‘soft’ Brexit rather than a hard one.

(Brexit may have been avoided by a general election or a further referendum, or there may have been endless delays in sending the Article 50 notification – but if Brexit was to happen it was never going to be a happy one.)

‘Brexit means Brexit’ quickly became the red lines, and the red lines in turn necessarily meant the United Kingdom  leaving the customs union and the single market.

Remainers can be blamed for losing the referendum, but not for government policy on Brexit thereafter.

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Now we are a few days before the end of the transition period, without either an agreement or much clue.

Both a trade agreement on the terms of the European Union and no deal seem possible.

This is perhaps the worst possible position for the United Kingdom to be in at this time.

But since May told us ‘Brexit means Brexit’ it is difficult to see how any departure of the United Kingdom from the European Union could have ended up any better.

Brace, brace.

**

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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The Fixed-term Parliaments Act 2011 has been a failure – but the decision for an early general election should not be in the hands of the prime minister

7th December 2020

The Fixed-term Parliaments Act 2011 is an odd and unloved piece of legislation.

And it has not been a successful piece of legislation – in that the parliament elected in 2015, which should have lasted until 2020, did not run its full course, and neither did the parliament after that.

Indeed, instead of no general elections between 2015 and 2020, we had two – in 2017 and 2019 – instead.

No general election held since the Act was passed has resulted (so far) in a parliament of a fixed term.

In this key sense, the Act has been a failure.

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But.

Is it an entirely useless piece of legislation?

No, as there is one important thing the statute gets right.

Before 2011 the decision for a parliament to dissolve and for there to a fresh general election was, in effect, in the hands of the prime minister – subject to a statutory long-stop of five years.

Nominally the source of this power was the the royal prerogative, for the crown had the ability to dissolve one parliament and to then issue a proclamation for a general election.

But in practice, it was ‘on the advice of’ the prime minister, and it was a powerful political weapon.

The 2011 Act took this power out of the hands of the prime minister.

Now, again subject to a five year long-stop, there cannot be an ‘early’ general election just at the whim of a prime minister.

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So far, so welcome.

But.

Where the statute goes wrong is in respect of how there can still be an ‘early’ general election.

On the face of the Act there are two ways, both of which are problematic.

The first is that there is a ‘super majority’ of MPs – and this is how the then prime minister Theresa May got her general election in 2017.

The second is if an elaborate scheme of two successive ‘confidence’ motions – one of ‘no confidence’ and, if there is not then a ‘confidence’ motion soon after passed by MPs, there is a general election.

This second route has not been used, not least as it is not clear what should happen in the period between the two confidence motions.

And in any case, it does not really matter what the Act provides on the face of it, for parliament can just pass a ‘notwithstanding’ statute for there to be an early general election anyway.

This does not need a ‘super majority’ or elaborate succession of confidence motions.

It just needs a bare majority in the house of commons and a lack of opposition in the house of lords (and the house of lords will tend not to deny the commons its way on questions of appeals to the electorate).

And this is how the current prime minister got his general election a year ago.

The Early Parliamentary General Election Act 2019 was passed in a matter of days.

It was as if the early election provisions in the Fixed-term Parliaments Act 2011 made almost no real difference at all.

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There is now a review of the 2011 Act.

The government has published a draft bill repealing the Act and seeking to revive the royal prerogative of dissolution.

Clever constitutional lawyers will argue about (a) whether the prerogative was abolished with the 2011 Act and (b) whether it can be revived.

(My own view only goes so far as (a) the 2011 Act did not expressly abolish the prerogative power and (b) a new statute can purport to say that the 2011 Act had no effect on that prerogative power – but I do not know which way a court would go if the point was ever litigated.)

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Repealing the Act outright would, in my opinion, be a mistake.

Instead, the two mechanisms for an early general election should be replaced by the need for a majority of MPs (including vacant seats) to pass a motion for an early general election.

Given that, as in 2019, the early election mechanisms in the 2011 Act can be side-stepped anyway, this would be an affirmation of what the real practical position.

A prime minister unable to command a majority in the Commons should not be able to use the threat of an early general election against opponents and their own party.

It should be a matter for the elected representatives themselves to make that significant decision.

The 2011 Act may be odd and unloved and, in practice, not that successful.

But it did get one thing right.

Early general elections should be possible, but the decision should not be in the hands of the prime minister of the day.

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Brexit, deal, no deal, and the politics of easy answers

6th December 2020

Today is a Sunday, one of the last Sundays of the year, and we still do not know if there will be a deal in place from 1st January 2021 for the relationship between the United Kingdom and the European Union.

One hand, there are three big pointers to a deal being possible: both parties want a deal, it is in the best interests that there is a deal, and both sides are still talking.

And it is still only the first week of December and, even taking the impending public holidays into account, there is still time for a deal to be finalised and even ratified if minds are focused and there is goodwill among all those involved.

But.

On the other hand, no amount of goodwill and focus will lead to a deal if the parties cannot agree on substantial issues.

There appears to be three issues of unresolved contention: fisheries, the ‘level playing field’ (that is, common and enforceable commercial and trade standards), and governance (that is, the ongoing enforceability) of the agreement.

Of these, it is difficult to believe that fisheries is really that significant – it is a relatively small commercial sector, and the parties have mutual interests in one side catching the fish and and selling the fish to the other.

A cynical person may think that the fisheries issue is only still prominent so as to provide domestic cover to the United Kingdom government against domestic political concern about the other two issues, which do go to  post-Brexit sovereignty and control.

Fisheries policy as a red herring.

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The trade agreement between the United Kingdom and the European Union was supposed to be so easy.

The then-international trade secretary said in 2017:

“The free trade agreement that we will have to do with the European Union should be one of the easiest in human history.”

His reasoning?

“We are already beginning with zero tariffs, and we are already beginning at the point of maximal regulatory equivalence, as it is called. In other words, our rules and our laws are exactly the same.”

What he missed, of course, is that one main purpose of an agreement would be about what happens after day one: how is equivalence maintained and any divergence managed?

Points so obvious it is painful to realise that an international trade secretary did not realise this.

A Brexit secretary once boasted it would be easy to put in place a free trade area ten times bigger than the European Union.

Leaving aside the fact that such an area would be larger than the world’s economy, and so presumably would include the Clangers and other extraterrestrials, the United Kingdom has actually ended up with a free trade area smaller than the United Kingdom – with a trade barrier down the Irish sea.

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It all seemed so easy, and it has it not turned out to be easy at all.

And this comes to the most basic problem with the United Kingdom’s approach to Brexit.

A complex problem has been treated as if it was a simple problem.

Any difficulty was to be met with chants of ‘Taking Back Control’ and ‘Get Brexit Done’.

The huge political and economic challenges of extracting the United Kingdom from forty-seven years of entangled and entwined law and policy was for the likes of Boris Johnson and Michael Gove no more difficult than writing a punchy 1100-word column against a slightly flexible deadline.

This is what often happens with populism – which (as this blog has said before) can be described as the promotion of easy answers in exchange for electoral support.

And so we have ended up with a month to go, with no idea what will be the agreed substantial and enforceable terms of trade between the European Union and the United Kingdom, and a real possibility that there will be no agreed terms of trade.

Brace, brace.

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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

If you value this free-to-read and independent legal and policy commentary at this blog and at my Twitter account please do support through the Paypal box above.

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The myths of ‘arrogant judicial power’ and ‘human rights gone mad’ and the Dolan judgment

5th December 2020

A ‘myth’ is often a word we use to describe a thing we disagree with.

But sometimes the word has its uses.

Some things are believed in as true without evidence or despite the evidence.

Take the example the prevalence in modern politics of two views about the relationship between the courts and politics.

The first view is that there is an over-reaching judiciary: that judges are often deciding matters of policy and other political questions against the government and parliament.

The second view is that the law of human rights has ‘gone too far’ and beyond the limits of common sense.

And now take the Dolan case on the legality of the coronavirus lockdown regulations, which this blog considered yesterday.

This was a case where the government had, in effect, legislated by decree – without any prior parliamentary scrutiny and approval – so as to remove fundamental rights of movement, of assembly, of public worship, of being able to trade lawfully and so on.

These widest possible blanket prohibitions one could imagine, all done with no real consideration of the proportionality of each measure and with no accountability.

Law and policy as sledgehammer.

If there was ever a case where there should be anxious scrutiny of the use of delegated legislation this was it.

The courts would surely surely step in, where the legislature had been sidelined.

After all, we have an over-reaching judiciary and human rights law is powerful.

Of course not.

Both the court of appeal and the court of first instance could not have sided more with the executive if they had wanted to do so.

Each fundamental right was a mere tick box for the court to approve the interference by the state.

The reasons for this outcome are familiar to anyone with a detailed interest in public law.

Our courts are invariably deferent to the executive on matters of policy.

The few cases where the government is defeated often turn on their own extraordinary facts.

And human rights law in the United Kingdom is weak and usually impossible to rely on in any practical case.

Almost all the rights under the European Convention on Human Rights, for example, are ‘qualified rights’, which mean that it is not difficult for an executive to interfere with those rights when it says it is in the public interest to do so.

And so the most illiberal legal measures in peacetime could be imposed by the government without prior parliamentary scrutiny and approval, and the courts could not nod any harder at the government doing this.

(My own view, as I set out yesterday, is that even if the individual measures were warranted at a time of a public health emergency, the measures should have been done via Civil Contingencies Act, which provides for detailed legislative and judicial oversight, and not through the Public Health Act which meant no real legislative and judicial oversight at all.)

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There is a famous statement by a judge in a case during the second world war – a statement which every law student knows.

This is Lord Atkin in Liversidge v Anderson:

‘In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.’

But what most law students also forget is that this was said in a dissenting judgment: Lord Atkin was in a minority.

The depressing fact is that in England there is often almost little to nothing the courts can or will do against executive action, even when there is no prior parliamentary approval for the measures imposed.

Courts and judges are far better at finding reasons not to intervene than to do so.

If the Human Rights Act, for example, had a quarter of the power which its populist detractors accuse it of having, the Dolan case would not have been so one-sided.

Yes: it was a public health case, but that should make a court more anxious in its scrutiny of emergency legislation, not less.

To paraphrase Lord Atkin: amid a pandemic, the laws should not be silent.

Those who promote the views that there is an over-reaching judiciary and that the law of human rights has ‘gone too far’ do not care about this, of course.

For these cherished views are their myths, and so they will stick with them.

But these views are, in fact, fantasies.

We do not have an over-reaching judiciary and the law of human rights has not ‘gone too far’ – and the Dolan case shows this.

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Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

4th December 2020

A few days ago the Court of Appeal handed down its judgment in the Dolan case.

This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.

The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.

There are a couple of things in the judgment that are interesting from a liberal perspective.

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First, it was the approach of the court to the exercise of a freedom.

The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.

This is the sort of liberty emphasised by those who trumpet freedom under the common law.

The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.

For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.

Here is the court’s reasoning on freedom of movement.

And then on freedom of assembly.

To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.

The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.

Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.

And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.

That a person was never free to do anything, only to have the reasonable permissions of the authority.

What could possibly be wrong with that?

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In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.

Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.

On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.

The government, of course, chose the latter.

And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.

At paragraph 77 of the judgment:

“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”

The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.

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None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.

This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.

Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.

A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.

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Brexit makes no legal difference to the United Kingdom being able to authorise the new coronavirus vaccine

3rd December 2020

For the launch of any vaccine, credibility is essential.

And so senior government ministers and other politicians should not be lying about the regulatory aspects of the new vaccine so to score points for Brexit.

This is the Leader of the House of Commons, the cabinet minister responsible for the government’s legislative programme.

https://twitter.com/Jacob_Rees_Mogg/status/1334068994345754625

This is a health minister.

And this is a government-supporting backbencher.

You will see these statements are not about Brexit allowing the United Kingdom to authorise the new vaccine more quickly as a matter of policy.

Each statement directly and expressly attributes the speed of the authorisation to a change in the law made possible by Brexit.

This, however, is false.

The Medicines and Healthcare products Regulatory Agency confirmed yesterday it was acting under EU law when it it made the authorisation.

Even the Prime Minister did not endorse the claim that Brexit made any legal difference.

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The fact is that Brexit made no legal difference to the authorisation of the new vaccine.

Such an authorisation was (and is) possible under European Union law.

The relevant provision is Article 5(2) of the Directive 2001/83/EC.

Here is the proof in back and white.

European Union Directives do not necessarily need to be implemented to have legal effect, but for completeness the implementing domestic legislation for Article 5(2) is Regulation 174 of the Human Medicines Regulations 2012.

Until 31 December 2020 under the Brexit transition arrangements, Article 5(2) has legal effect in the United Kingdom – and even after 1 January 2020 Regulation 174 would still be part of domestic law.

Brexit therefore made no legal difference.

So what is the recent amendment mentioned by the politicians?

That appears to be a reference to the The Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2020.

But those regulations do not amend or directly affect Regulation 174 – you will see they skip straight over it and add supplementary provisions.

The recent amendment is thereby irrelevant to the legal ability of the United Kingdom to authorise the vaccine.

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The cabinet minister responsible for the government’s legislative programme and health ministers would know that Brexit made no legal difference to the United Kingdom’s ability to authorise the new vaccine.

They would know the correct legal basis for authorisation of the new vaccine: that is their job and they would have been briefed.

But they chose to knowingly promote a falsehood instead, just to score a point for Brexit.

This was dangerously irresponsible, given that any false statements about the new vaccine may be exploited by anti-vaxxers.

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