The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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Whitehall is the new Brussels – and Westminster is as weak as ever

15th March 2023

There are many things which were not true about Brexit.

Brexit was never going to be quick and easy: indeed, we were still this year re-negotiating the exit deal.

Brexit was never going to lead to a rush of new free trade deals.

Brexit was never going to make it easier for the United Kingdom to control its borders.And Brexit was not about reclaiming sovereignty: we had sovereignty all along, and that is how we were able to make the Article 50 notification.

But the untruth about Brexit which perhaps is the most irksome from a law and policy perspective is that it was about the Westminster parliament (re)gaining power from Brussels.

For what has happened instead is that Whitehall – that is ministers and civil servants – used Brexit as a pretext for its own power-grab.

There is a version of Brexit – unrealistic, of course – where parliament is given maximum powers over new trade deals and where parliament decides on a case-by-case basis which of the retained European Union laws it keeps or replaces.

A Brexit which was used to empower Westminster and our democracy.

In some ways – and this will annoy some of you – that would not have been a bad Brexit.

But the rhetoric of “taking back control” instead cloaked an increase in discretionary and unaccountable power by the government.

The Westminster parliament seems as powerless as ever against the executive.

Whitehall has become the new Brussels.

And we may have to “take back control” all over again.

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The foreign policy of the United Kingdom is improving, while the domestic policy remains clownish or cruel

14th March 2023

If one tries to look objectively at the current government of the United Kingdom as a government then a balanced view would say that it was doing certain things better than others.

In foreign policy, for example, the government is beginning to look almost normal.

Here is a former senior official at the foreign office:

And this thread is very interesting on that integrated review.

But.

But, but, but.

In domestic policy the government is still either clowning around and/or being cruel with its culture war stuff.

The illegal migration bill is being forced through parliament without any proper scrutiny.

The outstanding Dr Hannah White of that fine squadron of analysts at the Institute of Government has set out the dangers of this reckless speed – and how it is becoming too common a feature of modern legislation.

It does not need to be this way.

And the new almost-normality of the international policies of the government shows that the government is able to shift its approach – when it wants to do so.

Unfortunately the government ministers in charge of domestic policy appear to be wedded to culture war antics because they cannot think of anything else to do.

Yet, it is not inevitable – and perhaps the government will drop this and other awful Bills – on retained EU law and the Bill of Rights – as well as dropping the ministers who promote such bills.

Perhaps.

It is unlikely, of course – but then a few months ago, it seemed unlikely we would have a grown-up approach to foreign policy.

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The BBC and impartiality – a sideways glance from the courtroom

13th March 2023

What follows is an analogy – and all analogies in human affairs are inexact, and this is because no two situations involving people are identical absolutely.

If your mind starts racing along the lines of “they are not the same” – I agree, and I can think of many points of contrast too.

But bear with me, as the points of comparison may be interesting and even thought-provoking.

(And any comments underneath which just list differences will probably not get through moderation.)

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Imagine a court judgment – in a civil case where there has been a trial.

That there was a trial implies there was more than one side – and this in turn means that on at one least issue there was a difference of view.

Imagine reading that judgment.

The judge sets out the applicable law.

If there is a dispute as to the applicable law the judge sets out the submissions of the parties and why one view of the law was preferred instead of another.

(Sometimes a judge may provide their own view of the law and why that is to be preferred instead of the views of the parties.)

If there is a dispute as to the applicable facts then the judge will often set out why the evidence of one party was to be preferred to another.

If the factual dispute is complex then a good part of the judgment will be devoted to setting out why one set of facts was preferred to another – whether the evidence is witness evidence, or in the form of exhibits, or contested expert evidence.

And the judge is required – by the rules of natural justice no less – to decide the dispute impartially and having given each side a fair hearing.

What the judge will not do – even though they are duty-bound to be impartial – is to treat both sides as having equal weight and not make any material decisions at all.

This is because the obligations of impartiality and to hear each side go to how the judge approaches their task of exercising their judgement, rather than being reasons to not make any evaluation at all.

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Now let us turn to the BBC.

The BBC charter provides (among other things) that the purpose of the corporation is “to provide impartial news and information to help people understand and engage with the world around them: the BBC should provide duly accurate and impartial news, current affairs and factual programming to build people’s understanding of all parts of the United Kingdom and of the wider world. Its content should be provided to the highest editorial standards.”

The charter also states “the BBC should provide high-quality news coverage to international audiences, firmly based on British values of accuracy, impartiality, and fairness”.

And:

“The Mission of the BBC is to act in the public interest, serving all audiences through the provision of impartial, high-quality and distinctive output and services which inform, educate and entertain.”

Under section 319 of the Communications Act 2003, the Ofcom code must ensure “that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with”.

Section 320 of the same Act provides that the impartiality requirements include “the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters”.

The 2022 framework agreement between the government and the BBC provides that the BBC board should “ensure in particular that any such guidelines set appropriate standards to secure the fairness, due impartiality, due accuracy and editorial integrity”.

You get the message.

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The obligation of “impartiality” is as (ahem) enshrined in the instruments that govern and regulate the BBC as much as they are for any judge.

But impartiality does not necessarily mean facile both-sides-ism.

For these instruments also refer to the following (emphasis added):

“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions […]” (The Charter)

“the desirability of maintaining the independence of editorial control over programme content“ (section 319 of the Communications Act)

“The UK Government will continue to recognise and respect the editorial, creative and operational independence of the BBC, as set out in the Charter.” (2022 framework agreement)

And so on – there are many more.

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None of the instruments that govern and regulate the BBC provide that impartiality should mean an absence of editorial judgment.

Indeed, for like a judge who approaches their task with impartiality, the editor of a news programme also should exercise their editorial judgement with impartiality.

But there is still an exercise of judgement.

Impartiality – at least in the courtroom – does not mean that each side should be treated as being equally compelling.

And it should not in a newsroom either.

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The prehistory of referendums in the United Kingdom – this week’s Substack essay on legal history

11th March 2023

Over at my Substack, this week’s essay on legal history for paying subscribers is on the prehistory of referendums in the United Kingdom.

The essay begins as follows:

For Philip Larkin a certain kind of intercourse began in 1963 – between the Lady Chatterley obscenity trial and the Beatles’ first LP.

Similarly referendums can appear to have started, at least in the United Kingdom ten years later in 1973 – not long after the Oz obscenity trial and the Beatles’ last LP.

For 1973 was the year of the border poll in Northern Ireland, which is usually considered to be the first referendum in the United Kingdom; and 1973 is also the year that the United Kingdom joined the European Economic Community (EEC), the membership of which was then to be subjected to a referendum in 1975.

For many of us in 2023, fifty years later, the most notable referendum was the one in 2016 on whether the United Kingdom should depart the successor to the EEC, the European Union.

Others are preoccupied with other referendums. Some are seeking a further Scottish independence referendum, to reverse the result of the result of the 2014 vote. And there is also the real prospect of a further border poll in Northern Ireland which may, in turn, lead to Irish unification.

Our recent politics are dominated by one referendum in particular, and the future of the United Kingdom itself may depend on two referendums yet to come.

And this is in addition to the referendums which led to the current devolved settlements in Scotland, Wales and Northern Ireland, all of which are now fundamental parts of our constitutional order.

But there was once a time before any of these referendums had been mooted or taken place or were even contemplated.

A time when 1973, and what then followed, was decades in the future.

And so this essay tells the story of the early history of referendum issue in the constitutional and political affairs of the United Kingdom.

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You can read the rest of the essay here.

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These essays are on topics to do with legal history and legal lore – and they are in addition to my free-to-read topical law and policy commentary here and at Substack every weekday.

Other essays include:

The lore of Lady Justice.

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign.

The 1712 case of Jane Wenham and the last of the English witch trials.

Taff Vale (1901) – perhaps the most important case in trade union history.

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness.

Malone (1979) – perhaps the most significant constitutional case of the last 50 years.

How the courts improvised legal solutions in the hard case of George Blake between 1990 and 2000.

When William Rees-Mogg and James Goldsmith in 1993 asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty

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If you are not yet a paying Substack subscriber, please consider becoming one.

The subscriptions help support my daily free-to-read law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money on PayPal to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” saying when you donated below, with your email address.  (It is important that nobody pays twice for my drivel.)

If you are a regular reader of this blog and are currently not able to afford a paying subscription, also leave a comment below marked “Private” saying so, with your email address, and I will consider providing a short-term complimentary subscription.

Libraries and books

10th March 2023

I recently spent a few days in some wonderful, world-famous academic libraries, and I noticed two things different from when I was an undergraduate a few decades ago.

The first was that the library was full of working students and researchers – packed – with either almost no or no desks available.

This, on the face of it, is a good sign.

In the early 1990s I remember the same libraries being fairly empty, and you could have a whole row – sometimes a whole room – to yourself, and not just a desk.

Libraries are (ultimately) instruments and not ornaments, and so they ought to be busy and not empty.

But.

If you looked carefully, you also noticed that almost none of those working in the libraries were using any of the books from the shelves or from the stack.

Indeed, almost every student and researcher was working on a laptop (or at least staring at one).

A librarian explained to me that while they are delighted that libraries are being used more than before, they are sad that it rarely for any of the library stock.

It was more about ambiance, it seems: the librarian mentioned that students say they work better when surrounded by books, even if they are not using any.

The reason I was there was to look at some volumes from the shelves or brought up from the stacks – books which one could not get anywhere else.

And so I waited with my pile of books for a desk to become free.

And waited.

Standing there, with nothing more advanced than a pad of A4 paper and a pencil case, feeling like a dinosaur or time traveller; wondering about the paradox of book-lined libraries being more used than before, but with the books themselves as ornaments, even if the library was itself being used as an instrument.

And then I realised I was just as “culpable” – for in the olden days, one would have written a letter to a newspaper or made a private journal article about such an observation – and I am posting an electronic blogpost instead.

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Sovereignty, again

9th March 2023

In law and policy commentary – especially since 2016 – we go from the general to the particular, and from the particular to the general.

We swing constantly between the grandest constitutional concepts – the separation of powers, the rule of law, sovereignty – to the exact wording of particular clauses and other texts.

It really should not be this exciting, but it is.

Today we will look at sovereignty again.

And some of you will complain about who I am about to quote, but it is an example of a frame of mind which still has not gone away.

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Sovereignty is generally about the ability of states to decide things as they wish and to do things (or attempt to do things) as they want.

More exactly, it is about the autonomy, capacity and legal personality of states.

One general feature of sovereignty is therefore about the ability of states to enter into agreements with other states, or not.

Just as it is a general feature of adulthood to enter into various legal relationships, or not.

(And please note, the uses of “general[ly]” means, yes, there are exceptions, so no need to scroll down to list them in a comment.)

It is thereby an exercise of sovereignty to enter into treaties and to become a member of various international organisations.

That is what sovereign states do.

And they do it, in part, because they can.

As such, to say that a state being party to an international agreement is a negation of sovereignty is to fundamentally misunderstand what sovereignty means.

The very fact that the United Kingdom is a party to the United Nations shows that it is a sovereign state.

Indeed, one useful working definition of what is a sovereign state is whether it is (or is capable of becoming) a member of the United Nations.

And membership of an organisation will generally confer rights and impose obligations.

If a state does not want to have those rights and obligations then it can leave, either by an agreed exit process (such as the once-famous Article 50 of the Treaty on European Union) or by treaty or even by denunciation.

One of the most telling passages in the story of Brexit was in a government white paper before departure:

“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.”

Membership of the European Union has “not always felt like” we had sovereignty.

This suggested Brexit was an exercise in political therapy: so as to make us feel that we had (and have) sovereignty.

But we had sovereignty all along.

We could have left the European Economic Community and then European Union at any point – though before the treaty of Lisbon (which introduced Article 50), it would have had to have been by treaty (as happened when Greenland left) or by denunciation.

And we could have, at any time, repealed the European Communities Act 1972 without asking any one’s permission.

What Farage and others mean by “sovereignty” is isolationism.

Their ideal is for the United Kingdom not to be bound by any unwanted international obligations, or indeed by any international obligations at all.

But treaties generally require those who enter into them to limit or forego certain rights in return for some benefit.

For that is the nature of international agreements.

Yes, we can – ultimately – always walk away.

And we should be careful which obligations we accept when we enter such agreements.

But such obligations are the essence of the dealings of a sovereign state.

And that sovereignty is always there, even when it does not feel like it.

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Legislation as an annual or biennial virility event

8th March 2023

In times past, communities used to come together every year or so to assert and celebrate rebirth and virility.

Nowadays, our politicians do something similar – although instead of costumes and spectacles they pass legislation.

Consider these two lists.

First, here are the Acts of Parliament since 2000 which have migration/immigration/borders/nationality in their short title:

This list, of course, excludes statutory instruments and other legislation that may have amended the law on migration and related aspects.

But it is about an Act every other year.

And here is a second list, of primary legislation since 2000 with terrorism or “investigatory powers” in the title:

Again, an Act of Parliament on average every couple of years or so.

Amusingly, our legislature cannot make its mind up whether the statutes should be title “terrorism” or “anti-“ or “counter-terrorism”.

(Perhaps one reason we have so many is because they keep cancelling each other out.)

Taking the two lists together, this means that the Home Office has had since 2000 about an Act every year on immigration or national security, or both.

An annual (biennial) legislative event which shows the Home Office is doing something.

We are told this year, like before, that the migration-related Bill is needed to solve the perceived borders issue.

We are told that those against this latest Bill are against the national interest:

One suspects similar sentiments could have been expressed (and indeed were) about those who may have had reservations about each of the previous Bills on borders and/or national security since 2000.

And like an addict, the Home Office will say in 2024 and 2025 that just some more Bills will be needed to show how serious we are about borders and/or national security.

Perhaps one day the Home Office will think it has enough legislation in place on borders and/or national security.

But until that happy day, Home Office ministers will pass a new Act every year or so to show that they are virile and that they are doing things.

Then they will hope we will forget the alarmism so that they can do it all over again in the next year or two.

The legislation will accumulate on the statute book, with different variations of the same few words in the titles.

Until perhaps they are all one day consolidated in a Terrorism, Anti-Terrorism, Counter-Terrorism, Borders, Migration, Immigration and Nationality Act.

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The Illegal Migration Bill is about political theatre, not serious law-making

 7th March 2023

Today we were supposed to see the government’s new Illegal Migration Bill.

According to today’s Order Paper, the Bill was to be presented to Parliament:

A minister told peers that the Bill was to be introduced today:

And there was even a Commons statement by the Home Secretary.

But.

There is no Bill – at least by mid-afternoon today.

This is odd.

That there is a delay was indicated by part of the Home Secretary’s statement:

“Mr. Speaker, I won’t address the bill’s full legal complexities today.  Some of the nation’s finest legal minds have been – and continue to be – involved in its development.”

And why would the “nation’s finest legal minds” still be “developing” something which was supposed to be published today?

The ministerial letter above provides a possible explanation:

Section 19 of the Human Rights Act 1998 provides:

Nothing much of legal significance turns on section 19 statements either way – whether a minister views a Bill’s provisions as compatible or otherwise.

The lack of a compatibility statement will not make a statutory provision breach the ECHR, and the presence of a compatibility statement will not save a statutory provision from being found incompatible.

Section 19 is an ornament not an instrument.

Lord Hope in a 2001 House of Lords case said the following about one such statement of compatibility (emphasis added):

“It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998. But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament’s intention to cut across a Convention right […]  No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister.  They are not binding on the court, nor do they have any persuasive authority.“

That was just after the Human Rights Act was passed – but it is pretty much the conventional wisdom of the courts and practitioners on such statements.

Of course, ministers will want to assure waverers in the Commons and the Lords that this is not yet another piece of legislation which will break international legal obligations.

More concerning will be the substance of the Bill, which may face heavy amendment in the Lords and litigation in the Courts.

But we cannot know what the Bill says, as it has not been published.

What we do know, in addition to the Home Secretary’s statement (and ignoring the media briefing) is this from the Order Paper:

And this on the Home Office website:

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The emphasis on media briefing for this Bill indicates that these proposals are more to do with political theatre, not law-making.

For the one thing which would do the most to stem any abuses of our asylum regime would be to have an adequately resourced and competent asylum system.

And until and unless we have an adequately resourced and competent asylum system, then everything else proposed by this government on asylum is hogwash.

The impression this Bill gives is that the government is not engaged in serious policy making and legal implementation, and it wishes to use its remaining months in office to play to various galleries and to evade any blame.

And this can be done by leaks, briefings, announcements and press releases – again, political theatre – with any actual legislation an afterthought.

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STOP PRESS

The Bill has now been published.

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Why the appointment of Sue Gray is both a mistake and not a mistake

6th March 2023

The senior civil servant Sue Gray has been appointed by the leader of the opposition as his chief of staff.

This, as you no doubt are aware, is the stuff of political controversy – not least because of Gray’s famous (infamous?) role in compiling the Partygate internal report.

From a policy perspective, however, is this controversial appointment a mistake?

Tactically and politically the appointment is an error.

It raises questions of propriety and timing for the leader of the opposition, and it opens up the  question of whether her role in the Partygate report was politically motivated.

It also distracts from any focus on the wrongdoing of Boris Johnson over Partygate.

But.

Strategically and governmentally the appointment is sensible.

If the leader of the opposition becomes prime minister then he needs aides who (genuinely) know the Whitehall machine, who are used the glare of the media, and who are unafraid of speaking truth to power, or at least to Prime Ministers.

As such Gray’s appointment can be compared to that of Margaret Thatcher’s aides, the recently deceased Bernard Ingham and Charles Powell, and Tony Blair’s appointment of Jonathan Powell.

Such appointments are a mark of taking government and policy seriously.

The timing of the appointment is dreadful, and it may be politically counterproductive in March 2023, but it may look less problematic if Labour win the next general election.

And in the run up to the next election, it means the party (currently) most likely to win that election will have guidance which enable it to better prepare for the realities of implementing manifesto promises and translating policy into practice.

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