The loss of the practical approach to UK-EU relations

12th December 2022

Thinking and writing about Brexit (and, yes, the book is still going) has made me realise that it is less about “Remain” losing and “Leave” winning, but more about the loss – or absence – of something else.

What that missing something is not the “middle” – for that suggests that it is merely a compromise between two extremes.

It was a particular approach to dealing with and understanding the European Union and its predecessor Community.

The approach can be seen in the works of the late economic historian Alan Milward.

See this from an obituary:

“Rejecting both past and present myths about the EU he argued that, far from being a federal project to transcend the nation state, it was (and is) a complex instrument aimed at maintaining the viability of nation states in Europe… 

…his approach calls into question the ‘founding myths’ of European unity associated with the names of Jean Monnet and Robert Schuman, while convincingly demolishing one of the long-standing clichés of anti-EU rhetoric in the UK, namely that the EU is a unifying federal project….

…here is what Alan considered a lazy cliché, though it is still widely held in some British political circles: that the EU was the result of an aggrandising federal strategy promoted by such figures as Schuman and Monnet, and reflecting a Franco-German accord aimed at domination by erasing national states. Alan pointed out that all these rather abstract approaches failed to account for the dynamics of the EU, and instead he conducted a detailed examination of the strategies and negotiations that had led to expansion…

….The ‘Eurosceptic’ nightmare of an encroaching federal project was in Alan’s view a serious misrepresentation of the record.

But if Alan Milward was uncomfortable reading for Eurosceptics he was no easier for Europhiles.”

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Milward, tongue-in-cheek, even entitled a chapter in a book as follows:

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Milward’s general approach was not an extreme view – indeed Milward was one of the official historians of the United Kingdom’s relationship with the European Communities.

It is also a view I associate with the primary architect of the form which the Single Market finally took, Arthur Cockfield.

Appointed to the European Commission by then prime minister Margaret Thatcher, Cockfield is in my mind the most significant Conservative politician of the 1980s, after the prime minister who appointed him.

As I once said on this blog, Lord Cockfield pushed forward the Single Market in a practical and sustainable way, rather than through grand design and heady rhetoric.

My January 2017 FT piece on Lord Cockfield is here.

In that I said about how he approached the Single Market:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter.”

Cockfield looked at what worked, and what would work, at a national level, and then moved on practically from there.

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The European Communities and then the European Union were not necessarily a grand federalist project, as wanted by some of its founders and as feared by its opponents.

It was (and still is) “supranational” – and so beneath the cloak of heady rhetoric, it was the means by which national interests could be and were promoted and reconciled.

For the United Kingdom, our membership record was in part rebates and opt-outs, so effective were we in promoting our (perceived) national interests.

And our policy on European integration was about putting aside the absolute positions of both sides and, well, just practically getting on with what worked for the United Kingdom.

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But.

By 2015-16, this sensible pragmatism was no longer in the political ascendency in the United Kingdom.

Which is odd, in a way, as the failure of the grandiosely titled “Constitutional Treaty” was ten years or so in the past (though many of its provisions were added by amendment to the existing Rome and Maastricht treaties), and there were no new major treaties in the offing.

It is this absence of a thing – rather than the presence of “Remain” and “Leave” – which is, in my view, a key to understanding Brexit.

And it is harder to explain something not being there than it is to explain what was there in 2015-16, and thereafter.

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“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

***

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***

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What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

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But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

***

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Law vs Lore

8th December 2022

When I decided to start a Substack I also had to decide what to call it.

I could not call it “law and policy” as that is the name of this blog.

Dear old folkloric wizard “Jack of Kent” is safely dead and buried.

And so I settled on “law and lore” as that put together two things which not only interest me but also are more closely connected than many people realise.

*

Let me explain.

Many of those reading this blog will not be lawyers and so have had little need to look up the raw black-letter texts of the law – in statutes, case reports and elsewhere.

Even those of you with the unfortunate affliction of being a lawyer, will not always have read the black-letter texts of every law about which you will have a view or an understanding.

And in society generally, a great deal of the law in practice is what people believe it to be – or should be.

“You cannot do that.”

“I cannot do that.”

“That is not allowed.”

“I have my rights.”

“Technically you are not allowed to do this.”

“Technically if you do this you don’t break a law.”

And so on.

Entire areas of law are, in practice, mini belief systems where people are confident about what the law is, free from ever looking it up: data protection, health and safety, consumer rights, Magna Carta.

And on the political plane, belief is (or was) a great deal of our uncodified convention: a general sense of balance and self-restraint.

This all fascinates me.

I have often wondered what an alien looking down would work out about our laws and legal system just by watching what people do and do not do.

Would such a Martian’s account correspond to what our legal texts say about the law?

And so my view is that to understand law in practice, one has to have an understanding of lore, which I see is helpfully defined online as “a body of traditions and knowledge on a subject or held by a particular group, typically passed from person to person by word of mouth”.

This is not to say that it is consciously invented: those with strong opinions about the law usually believe that they are actually correct.

Sometimes there is a close relationship between law and lore – in, for example, mercantile law, the practices of business folk often give rise to enforceable legal obligations.

And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law.

I would like to explore this distinction between law and lore more in future posts in particular areas.

Let me know if you have any ideas for subjects of such posts.

***

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How three Bills now before Parliament tell us the story of Brexit

7th December 2022

Here is a story about three Bills.

The Bills are not chaps called William, but legislative proposals placed before the Westminster parliament by the government of the United Kingdom.

Taken individually – and especially taken together – these three Bills tell a tale.

They tell the story of Brexit.

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The first Bill is the Northern Ireland Protocol Bill.

This is a proposal that would enable the government of the United Kingdom to break the exit agreement it signed with the European Union.

This agreement was signed in a rush, so as to “get Brexit done”.

This was the agreement which, if you recall, was promoted by the-then prime minister Boris Johnson as an “oven-ready deal”.

And this was the agreement which sought to square the rushed Brexit with no commercial border in the island of Ireland.

(An alternative way of addressing the same problem, with the “backstop”, was rejected when Theresa May was prime minister.)

The current Bill is an attempt to somehow unwind this solemnly agreed position.

Many think this Bill has no good purpose – indeed, many regard the Bill as having no purpose other than to placate some government supporters.

And it certainly is a rum thing for any government to so openly proclaim its lack of good faith in entering international agreements.

The Bill, therefore, tells us about the lack of thought and preparation of the government of the United Kingdom in how it approached Brexit.

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The second Bill is the Retained EU Law (Revocation and Reform) Bill.

The Bill shows us that the government of the United Kingdom, having got Brexit done, does not know what to do with it.

This is the proposed legislation promoted by Jacob Rees-Mogg which would automatically repeal all European Union law still in force.

It does not matter whether that law is useful – or even essential.

It does not matter if the law was negotiated by the United Kingdom and serves to protect certain public interests.

The retained law is going to be repealed automatically anyway.

There is no good reason for this silly Bill.

The only reason it exists is to show that the British government is doing something – anything – with the supposed “Brexit opportunities”.

And as no concrete, discrete opportunities have been identified, it is doing this daft and potentially dangerous thing instead.

This second Bill, therefore, tells us that not only did the government rush through Brexit without proper preparation, but it also has no idea what will follow Brexit.

(In this, this second Bill is akin to the rushed and disadvantageous “international trade agreements” which were also signed so as to show “Brexit opportunities”.)

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The third Bill is the Bill of Rights Bill.

This legislation is not directly about the European Union, but it tells us everything about the need for there to be new “European” courts and laws for the government to attack.

Brexit was simply not enough, and so the next target is the European Convention of Human Rights.

This third Bill shows the need for Tories to have a perpetual war with “Europe” (even if not the European Union) that has been unsatisfied by Brexit.

The Bill itself is not a good piece of legislation, and it has been roasted by judges and Conservative politicians.

It seeks to repeal the Human Rights Act, and to make it as difficult as possible for anyone to rely in domestic courts on their rights under European Convention of Human Rights.

This third Bill, therefore, tells us that Brexit was not really about the European Union, but about trying to satisfy (but failing to satisfy) the endless demand of some government supporters for confrontation and retreat with something European.

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If Brexit was worthwhile, then it would take only one good government Bill to show the benefits of Brexit: for the United Kingdom government to show what it could do with its new autonomy from the European Union.

But there is no such good Bill.

Instead there are these three misconceived and illiberal Bills, each trying to do something pointless or needless.

Each in their way, and when taken together, telling us all we need to know about Brexit: that the exit was rushed and botched, that the exit has provided no practical benefits, and that that the exit will never be enough for many of those who supported it.

***

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What is the remedy? And why this question matters in public interest litigation.

6th December 2022

The Good Law Project has lost another court case.

This was the use by government of WhatsApp, about which there was political controversy.

But.

Towards the end of the judgment there are these two paragraphs (emphasis added):

70. In the light of our conclusions, both the appeal and the Good Law Project’s claim for judicial review should be dismissed. We should, however, record that when permission to apply for judicial review was granted the Good Law Project had made a serious allegation (based on claims from the former Chief Advisor) that fake meeting records and notes were being made. Such conduct, if proved, would have been unlawful on a number of different public law grounds. The conduct was not, however, proved and the allegation was dropped without clear notice to the Ministers or to the court, as appears from [15]–[18] of the judgment of the Divisional Court.

“71. Thereafter the focus of the claim shifted to the breach of the eight policies. It was not, however, clear, at least until the draft order was produced on the second day of the appeal, exactly what relief was being sought. It is true that the particulars of the policies and the evidence suggesting breaches of the policies were not available at the time that the claim form and statement of facts and grounds were prepared. It is, however, also right to note that the policies and the evidence about breaches were disclosed by the Ministers and became known during the proceedings. The Good Law Project amended its statement of facts and grounds accordingly. But the claim for relief remained unparticularised in the amended Statement of Facts and Grounds. The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.“

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This is a problem for a great deal of seemingly public interest litigation – and not just with this particular claimant.

(I think the GLP do some good things, though I am not an uncritical fan.)

There is a newsworthy wrong – a public grievance – and so somebody goes to court.

It is almost as if going to a court is an end in and of itself.

Litigation as theatre, or as therapy, or as a proxy for politics.

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But.

From a practical lawyers’ perspective, that approach is back-to-front.

As a trainee and as a junior litigation solicitor, I was taught to always think backwards from the remedy.

The primary questions were: What is the actual remedy your client is seeking? And how do you go about obtaining that remedy?

Turning up to court with a sense of “what do we ask for now?” means, in my view, there has been a failure in litigation tactics or strategy.

Of course: sometimes where you can show there is a plain wrong, a judge may come up with their own remedy.

This is the sort of thing Denning used to do.

But a claimant or applicant must always be conscious as to what they are actually asking for from a judge.

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This is not a problem about a particular claimant.

It is instead a wider problem about politically charged, crowd-funded and/or pressure group brought claims.

“We think this is wrong, so we are going to court!” is not sufficient.

What are you going to court for?

What are you asking the judge to do?

For as the judge here pointed out: “The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.”

Public outrage does not mean, by itself, that a judge can grant a remedy – or even find any legal breach.

It is not always the case that where there is blame there is a claim.

***

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News: will be crossposting on substack

5th December 2022

I have decided to also start a substack, which I have called “the law and lore blog”.

You can find it here.

For now, I will just crosspost my daily blogpost from here over there, thereby running them in parallel.

I will always post here first, so you will keep getting the usual notification email.

I intend to keep posting here every weekday, as usual.

And once I have got used to the new medium, I will offer free subscriptions to the substack to all those who support and sponsor this blog.

But, in the new year, there may be some longer pieces, that take a lot of time and research, which I may offer on a subscription basis at new site.

Nobody who supports this law and policy blog though Patreon or Paypal will have to pay any subscription to the new blog.

If you have paid to support this blog, you will get a free pass at the new site if you want one.

The intended revenue stream will be brand new subscribers.

 

 

Centralisation is inevitable in the United Kingdom, unless there are radical reforms which no government will make

5th December 2022

The former prime minister Gordon Brown, on behalf of the opposition Labour party, has put forward proposals for de-centralising the state of the United Kingdom.

This is rather ironic in that Brown, as chancellor of the exchequer, was one of the most centralising ministers of modern times.

Under Brown the Treasury dominated Whitehall and the civil service generally, and it also sought to enforce discipline on the public sector generally.

(I know this, as I was a civil service lawyer at Brown’s Office of Government Commerce, which was one of the ways the Treasury sought to control and shape central and local government.)

Perhaps Brown has since had a conversion.

He was, after all, the politician who once gave away the powers of the Treasury in respect of interest rates to an independent Bank of England.

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But the problem of centralisation is bigger than Brown or any one politician.

Centralisation is the gravitational pull of the constitution of the United Kingdom.

The force can be bucked from time-to-time, but it will always be there.

In legal terms, the gravitational pull comes from the doctrines of the supremacy of parliament and the royal prerogative.

All public bodies, other than parliament and the crown, are subject to the ultimate control of law made by the crown-in-parliament.

Even the Scottish Parliament, as the Supreme Court recently decided, is effectively no more than a statutory corporation subject to a strict rule of ultra vires.

Local government bodies are in similar but worse positions.

In policy and political terms, a further gravitational pull comes from the Treasury.

The Treasury dominates public spending and public revenues.

No other public body is likely to be given absolute autonomy over spending and revenues.

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Politicians may go through the motions of de-centralisation, with a token development here and some well-meaning gesture there.

But the fundamental forces generated by the Westminster parliament and HM Treasury will not go away.

It would only be by devolution and regional settlements so radical that the powers of Westminster and Whitehall were vanquished forever that de-centralisation would be sustainable.

Self-denial would not enough – what would be needed would be constitutional self-destruction.

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This self-destruction is never going to happen – at least not easily.

Scotland and Wales are not going to be granted dominion status, like Australia or Canada, with their Parliament and Senedd being co-equal with Westminster’s assembly.

The regions are not going to be permitted to become like American states or German Länder, with powers that no central government can gainsay.

But without such radical constitutional surgery, the relentless force of centralisation will be there.

No United Kingdom government is going to freely give away its legislative power in parliament or its policy dominance with the Treasury.

And so we will just have tokens and gestures of de-centralisation again, only to fail; and then – in a few more years – these motions of de-centralisation will be repeated, and they will fail again.

***

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Prisons will not be reformed until and unless we rethink our views on punishment and retribution

2nd December 2022

Here is the introduction to a thing about prisons I wrote at the Financial Times in 2013:

We are all, of course, familiar with the notion of prisons – and many of us will have Very Strong Opinions about the lengths of custodial sentences:

“Six years! Eight years! Fifteen years! More, more!”

“Higher, higher, higher!”

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But.

For the reasons set out in that Financial Times piece, prisons are a strange as well as counter-productive idea for dealing with most crimes.

Prisons, generally speaking, are an expensive way of making bad people worse.

But the notion of incarceration is so deeply embedded in our collective consciousness it takes real effort to dislodge it.

It was not always like this.

In some earlier times, prisons were where you kept those charged with a crime until their cases could be heard and any sentences – capital, corporal, transportation – could be imposed.

Imprisonment itself was thereby a means to an end, rather than the punishment for criminal activity.

(The position for civil matters was different, with the debtors’ prisons, asylums and workhouses, all keeping certain undesirables out of the way.)

Around 1800 imprisonment became the normal punishment itself for crime – though for many onlookers the loss of liberty was not enough: prisons also had to be as miserable if not brutal as possible.

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And little, if any, thought is ever given to the (innocent) families and dependents of those incarcerated.

If they are thought about at all, it is with a shrug and a vague idea that it is the criminals who are to be blamed and/or that their (innocent) families and dependents are tainted by association.

And so that the innocent suffer becomes an output of the criminal justice system, as well as the protection of the innocent being the system’s supposed purpose.

The state has to destroy innocent lives, so as to protect them.

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There are at least two problems for any reform of prisons.

The first is that imprisonment is central to how society thinks about the punishment of crime.

A convicted person receiving a range of sanctions will still be described “as walking free from court” by outraged newspapers to their outraged readers.

The second is a consensus of what should replace imprisonment, especially given the popular view that retribution is the central purpose of punishment.

Of course, those who pose a danger to others or commit murders and other serious offences against the person should be locked away – and, unlike many liberals, I even support whole-life tariffs in exceptional circumstances.

But until and unless we rethink our views about punishment and retribution, the current expensive and damaging system will continue, for want of any alternative.

I was once asked what current day practice would be looked on in the future as akin to how we now see those who facilitated slavery.

My answer, more with hope than expectation, was: incarceration being considered the norm for punishments, with any alternative having to be justified.

Anyway, this post was triggered by reading this piece in the Guardian.

Let me know below what you think – about the points I set out above and the Guardian article, and what you think about prisons and imprisonment as punishment generally.

***

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The secularisation of the United Kingdom state

1st December 2022

If you pick up a constitutional law text of a certain age you may find passages, perhaps even a chapter, setting out the relationship between the government of the United Kingdom and the Church of England.

You may even get passages on the Church of Scotland and the now disestablished Churches of Wales and of Ireland.

Next year at the coronation, there will be a great deal of religious content to the ceremony – and even when Charles III acceded earlier this year, one of the first required acts was to swear an oath in respect of the Church of Scotland.

Meanwhile bishops of the Church of England sit in the House of Lords and in our courts the first thing a judge and a jury will find out about you as a witness is whether you believe in a god or not.

Just over one hundred years ago, the state was even more fused with the church and, before 1828-32, some historians even speak of a “confessional state” which, at least in England, structurally privileged the Church of England.

The established churches were (and to a limited still extent still are) part of the constitution of the United Kingdom – if that constitution is understood descriptively as the answer to the question: how is the United Kingdom constituted.

As a non-militant atheist, I would welcome a state which was suddenly and entirely secularised, that is if it could be done painlessly in an instant of a blink.

But as someone interested in practical constitutional reform, I am less enthusiastic about disestablishment, given the time and trouble it would take.

Yes, get rid of the bishops from their automatic seats in the legislature, and also get rid of the presumption in favour of religious oaths in courts.

But that is about it: the rest can join the long list of constitutional reforms it would be nice to have, but not perhaps yet.

This is, ironically, an Anglican form of atheism: a via media between being religious and militant atheism.

And given the relationship between the Crown and the Church of England in particular under the new King – the defender of faith, without any definite article – there is no likelihood of any disestablishment in the near future.

So the current compromise will continue for a while.

That is: four nations; two established churches; and one of those established churches with seats in parliament.

And it is: a semi-confessional state at a time where there are many religious faiths in society, as well as an increasing amount of us free from any religious faith.

If we were starting from scratch, we would probably not give the Church of England such an elevated position within our polity – just as we would not now build that nice parish church around the corner.

But given that it is there, we cannot be bothered to get rid of it entirely.

And many of the parish churches are quaint to look at, and nice to visit about this time of year.

Let us put disestablishment off to another year.

***

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What the Ministry of Justice should do with Reading Gaol

30th November 2022

Bill Hicks did this great routine about Jesus of Nazareth coming back to see crosses everywhere:

“Lots of Christians wear crosses around their necks. You think when Jesus comes back he’s gonna want to see a fucking cross, man?

“”Ow.” Might be why he hasn’t shown up yet.

“”Man, they’re still wearing crosses. Fuck it, I’m not goin’ back, Dad. No, they totally missed the point. When they start wearing fishes, I might show up again, but… let me bury fossils with you, Dad. Fuck ’em, let’s fuck with ’em! Hand me that brontosaurus head, Dad.””

Hicks had a point.

The crucifix was a torture device, which was used to ensure the victim had an agonising death.

It has taken about two thousand years of cultural familiarisation for it to be a comforting symbol, which some even place outside schools and hospitals.

“You know, kinda like going up to Jackie Onassis with a rifle pendant on, you know. “Thinkin’ of John, Jackie. We love him. Just tryin’ to keep that memory alive, baby.””

*

Perhaps the ghost of Oscar Wilde would have the similar reaction to the calls for the closed Reading Gaol to be now turned into an arts centre:

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It was, after all, where Wilde spent his time incarcerated, serving a sentence of two years’ hard labour, for gross indecency – the crime being consensual homosexual intercourse.

The campaign has the support of the local member of parliament:

The Ministry of Justice, on the other hand, seems to have done nothing since 2014 with this prime real estate in that tent of urbanisation which geographers call the largest town in England.

BBC News tells us that the Ministry of Justice “has previously rejected the plan and said it wanted to “seek [the] best value for taxpayers”.”

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One suspects Wilde would have been generous in his support with this campaign to turn his gaol into an arts venue.

Indeed, that we even associate the prison with Wilde is down to his own writing.

He, of course, immortalised the prison in the title of one of his greatest poems, about the execution and burial of an inmate when he was there:

“In Reading gaol by Reading town
There is a pit of shame,
And in it lies a wretched man
Eaten by teeth of flame,
In a burning winding-sheet he lies,
And his grave has got no name.”
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And in his autobiographical De Profundis, Wilde wrote:

“People point to Reading Gaol and say, ‘That is where the artistic life leads a man.’  Well, it might lead to worse places.”

He then mentions some of those worse places:

“A man whose desire is to be something separate from himself, to be a member of Parliament, or a successful grocer, or a prominent solicitor, or a judge, or something equally tedious, invariably succeeds in being what he wants to be.  That is his punishment.”

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One gets the impression that Wilde would actually quite approve of Reading Gaol being turned into an arts centre, especially with the grudging consent of the government.

(It would be a fitting counterpart to the bank note memorial for that other great figure prosecuted under and broken by the very same vile “gross indecency” offence, Alan Turing.)

Wilde would probably not even rub it in for those working at the Ministry of Justice, for he would regard their mundane civil service jobs as punishment enough.

*

Reading Gaol should become a standing reminder of the wickedness of which our criminal law can be capable – against Wilde, Turing, and so many others.

And this would be as an arts venue, and not as a block of flats.

This would also certainly be “better value for taxpayers” than the prison standing idle for another eight years, located next to the touristy plush grounds of the ruined abbey in Reading.

The Ministry of Justice may well know the price that land could command for development, but they do not know that property’s value.

*

“Nowadays people know the price of everything and the value of nothing.”

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Comments Policy

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

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