The Law and Policy Blog

The Law and Policy blog mentioned in this year’s MacTaggert lecture

24th August 2022

This blog has been mentioned today by Emily Maitlis in her MacTaggert lecture.

At 23:34.

The post she refers to is here – about how various constitutional ‘gatekeepers’ failed to prevent this government openly proposing to deliberately break international law.

The lecture is about the challenges for journalism in this age of populism.

If you would like to comment on her lecture generally – or her reference to this blog in particular – please do so below.

And thank you for following and in many cases supporting this blog – for without your following and support this blog would never have been in a position to be cited in such a prestigious lecture!

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“[X] is [not X]!” – commentary in the age of populism, polarisation, and post-truth

23rd August 2022

One problem with books like Nineteen Eighty-four is that their sheer familiarity means they lose their impact.

Indeed, phrases like Big Brother and Room 101 have become so detached from their literary mooring that they now have their own existence in popular culture.

George Orwell, if he were still alive and writing, would probably say that we should not use such now-hackneyed images and create fresh ones – and he may well have a point.

He would no doubt urge that we throw away Nineteen Eighty-four and come up with new and vivid turns of phrase.

But it is a pity for there is one passage in particular in his great novel which seems very relevant in these days of populism, polarisation, and post-truth, the 3Ps.

You will know the passage:

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

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH”

In formal terms:

“[X] is [the opposite of X]

[Y] is [the opposite of Y]

[Z] is [the opposite of Z]”

These slogans are extreme.

But they are perfect, in their ways, for they cover and anticipate what may otherwise disprove them.

These are the slogans of politicians who are utterly unafraid of it being pointed out that the opposite is the case to what they are claiming.

The slogans of today are similar in effect, if not form, in that they are not capable of being defeated by the opposite being the case in reality.

Yesterday on this blog it was contended (again) that there is not only a discrepancy but a contradiction between the slogan “Law and Order!” and actual law and order.

But there are many more.

For example, think about “Free Trade!” vs free trade.

In the name of “Free Trade!”, we have in Great Britain – with this government’s Brexit policy – cut ourselves off from an immense single market just a few miles away.

Similarly, in the name of “Free Speech!” all supposedly “woke” positions are to be cancelled, especially if taxpayers’ money is involved.

And so on.

There are many more.

But none of these contradictions matter, for the slogans can brook no opposition:

“Law and Order!”

“Free Trade!”

“Free Speech!”

Against any practical objection – or empirical disproof – the shouted slogans just get louder, and the nods and cheers – and clicks – continue.

Against this, commentary is often pointless.

It does not matter that anyone is pointing out the differences between what is said and what is done, because these politico-linguistic constructs have lives of their own.

You may as well try to catch ghosts and wisps with a butterfly net.

As this blog has averred before, there is still some purpose in commentating, as at least there can be a register at the time that some people saw the mismatches.

And there may be – perhaps – one or two readers who come to a blog like this other than to have their prejudices confirmed.

But generally blogs like this are merely part of the noise that 3P politicians actually want to provoke – the sound of “libs” being “owned”.

Perhaps after the general election there may be politicians in power (even from the current governing party) who want again to connect what they say with what they do.

Perhaps there may even be enough voters who begin to care that they are being lied to.

Perhaps.

But as it stands, a great deal of commentary – including on this blog – is not making things any better, because many politicians know it does not matter if what they say is not true.

If politicians and voters do not mind such contradictions, then pointing out these contradictions has no real purchase.

And until there comes about politicians that want power who can provide leadership – and make voters care about they are being lied to – then there is little point to law and policy commentary.

But we should do it anyway.

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The significance of the Bar strike

22nd August 2022

The criminal Bar has voted to go on strike – that is to not accept any new instructions after 5 September 2022.

Elsewhere on the internet you will find detailed and persuasive accounts of why the criminal Bar has resorted to this – for example here.

The action will cause pain – trials and other hearings that those involved have spent months and years waiting for will now not go ahead.

The added stress for victims and the accused is probably unimaginable for the rest of us.

People’s lives will be ruined further.

Yet.

The barristers’ strike is not really the cause of the problems with the criminal justice system, but more the effect of deeper problems.

This is a criminal justice system that may well have collapsed before now, and it is only by luck it has survived this long.

Like the “good chaps” theory of the constitution, the criminal justice system is in part held together by the goodwill of many of those involved,

For example, self-employed Barristers will take on cases at extreme short notice, and will do work (and travel considerable distances) on life-changing cases and not get paid.

And this goodwill has been exploited.

Legal aid fees are now at a level where it is impossible for junior barristers to survive.

The situation is not sustainable.

Politicians and time-poor, copy-hungry news reporters like the easy assertions of “tougher sentences” and “crackdowns” – but that is a mere fictional diversion when there is a functioning criminal justice system.

And if the criminal Bar now just drops hands, then it is difficult to see how the system can continue – indeed, to see whether it still constitutes a “system” at all.

This is what the strike signifies.

The strike signifies that a crucial part of our polity is not functioning – the part that is there to provide justice for both victims and the accused, the part that deals with coercive sanctions and punishments, and so perhaps the most important part of any organised society.

And the government and the media do not care, for as long as they can type and shout “Law and Order!” in return for clicks and cheers it is irrelevant that there is no law being applied, and and no order being imposed.

The political-media construct of “Law and Order!” does not correspond to the mundane, inefficient reality of the criminal justice system.

They are two distinct things, with no direct connection between them.

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One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

I consider that the secrecy, involvement of SC justices in process, and "consultation" of senior judiciary are the routes by which subconscious biases most easily enter. They favour self-replication. If asked what merit looks like, it's too tempting for judges to say: "like us".

— Dinah Rose (@DinahRoseQC) August 19, 2022

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

Here's an extract from Lord Hope's diaries, about the selection process for President of the SC in 2012. pic.twitter.com/Bo3dvLNOMw

— Dinah Rose (@DinahRoseQC) August 19, 2022

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people.

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court.

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11^th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair)	President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE	Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas	Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar	Chair of the Judicial Appointments Commission
Sir Geoffrey Vos	Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament. As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer.

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

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Conspiracy theories and cock-up theories

18th August 2022

I am working on a couple of long posts, and one of these – about Freeports and so-called “Charter Cities” – involves consideration of “conspiracy theories”.

So I thought it may be useful, as a separate post, to consider this term.

I do not think it is a useful term in many discussions, because it is pejorative.

You may have considered, rational opinions – but they believe in conspiracy theories.

Few people will admit readily that they believe – or could believe – in a conspiracy theory.

And so merely calling something a conspiracy theory is unlikely to change minds.

This is not to say conspiracies do not exist.

Conspiracies do exist.

That people can act in concert for wrongful purposes is a common feature of everyday life.

Of course, there is also the cock-up theory.

And cock-ups – that is, things that happen by chance – also exist.

In my view, conspiracies often come into existence to cover-up the cock-ups – for it is only when there has been a mistake that there will be sufficient focus and motivation for people to act in concert.

At this point in this discussion, someone will usually refer to “Hanlon’s Razor” – the rule that one should never attribute to malice that which is adequately explained by stupidity.

(They will often also link to an explanation of it, on the assumption you have not heard the term before.)

And Hanlon’s Razor may be a good general rule, but concerts and conspiracies do exist – and can be hidden under a guise of stupidity.

So Hanlon’s Razor is perhaps a sound presumption, but it should never be an absolute law.

A better approach when looking at something untoward is just to see where the evidence takes you, and what best explains that evidence.

Sometimes the evidence will point to a cock-up, sometimes to a conspiracy, and sometimes to a mix of both.

People like to see patterns, people will tend to want their prejudices confirmed, and some people even find comfort in the idea that bad things happen for a reason.

Writing about issues of law and policy – especially controversial and topical issues – means that I realise some readers will just want their views endorsed and suspicions confirmed.

A few – a minority – will say instead they want their views challenged, and a smaller minority will actually want to be challenged.

But the readers I am writing for primarily are those who are aware of an issue and want understand it better so as to form their own views, and want also to have the tools to do so.

They are the people I blog for – and, indeed, blog with.

And so, oddly, even the act of regularly writing a blog in partnership with attentive readers is a form of concert.

Though, of course, if this blog is ever successful in explaining an issue well, then that will be sometimes by chance.

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Cheney and Constitutionalism – why there needs to be conservative constitutionalists as well as liberal constitutionalists

17th August 2022

Now, there’s a title.

As Vice President, Richard Cheney was a supporter of the notion of “executive privilege” – the notion that the executive can do things which it otherwise would not be allowed to do because they have the constitutional privilege to do so.

This is not a view a liberal constitutionalist blog such as this one supports.

But this blogpost is not about Vice President Cheney, but about Representative Elizabeth Cheney.

She is the Republican congresswoman who, notwithstanding party pressures, has taken a lead in condemning the unconstitutional behaviour of President Donald Trump.

And she has now paid for that politically, losing the primary for her party’s nomination in her state.

Liz Cheney defeated in Wyoming primary https://t.co/Hnrf1htv1y pic.twitter.com/WpEM2LsBAt

— The Hill (@thehill) August 17, 2022

But, we may not have heard the last of her politically, because today brought this news:

#BREAKING: Cheney says she’s "thinking about" running for president https://t.co/GHPqYWPa3l pic.twitter.com/aNv1yBkasf

— The Hill (@thehill) August 17, 2022

Constitutionalism is the idea that there are certain fundamental political rules and principles that should be complied with, regardless of any personal or partisan benefit.

This is my own defintion, formed over thirty years of being fascinated with constitutional issues.

(There are other definitions – and, if you have one which is better than mine, then tell me and I shall adopt it instead.)

Cheney and a handful of other Republicans have placed constitutional rules and principles ahead of their own personal and partisan advantages.

Those conservative constitutionalists must be commended for doing so.

Perhaps if Cheney is elected President, she may be as great an advocate of executive privilege as her father, the former Vice President.

(It is easy to be liberal when you do not have executive power.)

But even her father was a constitutionalist, though a conservative one.

And constitutionalism and liberalism are not the same thing.

Conservative constitutionalism exists, and it is crucial.

That Cheney keeps on going in the face of hostility if not hatred from Trump supporters in her own party shows there is hope for constitutionalism in the United States.

Because for constitutionalism to be viable, there has to be both conservative constitutionalists and liberal constitutionalists.

For if constitutionalism is seen as the preserve of only liberals – an entirely liberal project – then it cannot claim to be a thing that is regardless of partisan advantage.

So while there are still conservative constitutionalists there is the possibility of constitutionalism being reasserted in American politics.

But.

If all the political careers of the surviving non-Trumpite Republicans end in failure, then constitutionalism itself becomes partisan.

And as constitutionalism cannot be partisan, it will – like Douglas Adams’ God – promptly vanish in a puff of logic.So let us hope the political careers of American conservative constitutionalists have not come to an end.

Else: brace, brace.

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Did Johnson lie to the Queen on the prorogation issue? – a summary

16th August 2022

Yesterday’s post caused a little bit of excitement elsewhere on the internet, and so I think it may be useful to set out the core of that longer post in one shorter post today.

The reasoning for my argument is as follows.

1. There was communication between the Prime Minister and the Queen.

This is not in dispute, and the evidence before the court was that a formal telephone call was to take place on 27 August 2019 between the Prime Minister and the Queen the day before she would be attended by Privy Councillors to make the relevant order.

The reason this was a telephone call was because the Queen was in Balmoral.

2. In this telephone call the Prime Minister would have given reasons for the prorogation order.

This should not be a controversial point, as that would have been the purpose of the call, and the Queen and her private office would have wanted to be confident that all was proper and constitutional.

That the Prime Minister would have given reasons is supported by the witness evidence for the prorogation case of the former Prime Minister John Major:

3. The reasons the Prime Minister would have given would have been those recorded in the contemporaneous documentation.

As the litigation revealed, there had been internal documentation created in August 2019 which purported to set out the reasons for the prorogation.

In essence, the purported reasons were as follows:

“The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

The Prime Minister is unlikely to have admitted that the reasons for the prorogation was to stymie parliamentary accountability in the run-up to the then exit day of 31 October 2019.

4. The reasons he would have given were not the real reasons.

The Scottish appeals court – the Inner House of the Court of Session – found that the request for a prorogation had an “improper motive”.

The Supreme Court adopted a different approach, and held that the reasons given for the five-week prorogation did not add up (emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The reasons given were either improper or insufficient – but in either case the reasons were not accurate.

They were not the real reasons.

5. Those who put forward those reasons knew them not to be the real reasons.

This point is in part based on the Scottish appeal court’s finding of improper purpose, but it is mainly based on the absence of a signed witness statement from a minister or official setting out the reasons for the request.

This absence was conspicuous – and it was referred to in the litigation.

The government lawyers just put in as relevant evidence the contemporaneous documentation quoted above.

The Supreme Court expressly set out the consequence of the lack of witness evidence in the passage already quoted above (different emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The need for such a witness statement would have been obvious to the government lawyers and would have been reported to senior officials and ministers.

But still nobody seemed willing, under the peril of perjury, to put their name to the purported reasons.

Had the reasons given in the contemporaneous documentation been the correct reasons then there would have been no problem whatsoever in setting them out in a witness statement.

And so there can only be one plausible explanation for the lack of a witness statement.

Those in a position to know the real reasons knew the reasons stated in the documentation (and thereby the reasons which would have been given to the Queen) were not the true reasons.

Conclusion

Given the above points, the conclusion seems to me to be inescapable.

When the Prime Minister spoke to the Queen to give reasons for the prorogation, he knew those were not the correct reasons.

If anybody can show a fault with any of the five points above, or with my chain of reasoning, or with my conclusion, then I will be happy to adjust my view or recant it outright.

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The question of whether Boris Johnson, in effect, lied to the Queen

[ADD – I have now done a short summary of the argument advanced in this post here.]

15 August 2022

On Twitter a number of accounts have recently commented in respect of front page of the Daily Mirror from 12 September 2019:

The online version of the article is here.

The comments are critical of the headline and of the apparent source of the headline, which is me.

I am quoted in the article, on the front page, as follows:

“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””

This seemingly renders me the source of the “Boris lied to the Queen myth”.

Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.

I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.

(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)

Do these critics have a point?

One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.

The “in effect” was not mere surplusage – I used the phrase for a reason.

Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.

But I did not say that, because I did not mean that.

I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.

And so I cannot defend the Mirror headline, and I do not do so.

It is not the headline I would have chosen for the piece that quoted me.

And there is another preliminary point.

The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.

No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.

The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.

Any judgment is a text and my role as a commentator is to place that text in a context.

This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.

But.

That is not good enough.

Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?

Let us see.

We now need to go back in time and remind ourselves of the relevant dates.

It was 2019, and the United Kingdom was still a member of the European Union.

The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.

Johnson became Prime Minister in July 2019.

On 28 August 2019, the Queen made the following order:

“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.

But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.

As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).

But the legal question at the time was whether the prorogation was lawful.

And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.

The prorogation faced legal challenges, including one in Scotland.

The appeal judgment of the Scottish case dated 11 September 2019 set out the following events:-

15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

16 August 2019 – the Prime Minister wrote the following response:

“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this proposition

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.

23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:

“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”

The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).

So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.

The Scottish court decided as follows:

“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”

The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.

They were false reasons.

The court stated that there had been an improper purpose.

Now we come to something which was missing from the case – and from the concurrent case in England.

The dog that did not bark in the night.

As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.

This lack of a witness statement was referred to in the judgment:

“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.”

This absence, in my opinion, was and is highly significant.

Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?

If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.

The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.

If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.

This is when I wrote the article which was quoted by the Daily Mirror.

My reasoning was as follows:

1. There had been contact with the Queen by telephone, as well as a formal advice.

2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.

3. Those reasons were not the true reasons for the prorogation.

4. Those giving the reasons knew that that they were not the true reasons for prorogation.

Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.

Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.

The Scottish case, like the concurrent English case, then went to the Supreme Court.

This was after my statement which was quoted by the Daily Mirror.

The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.

It approached the case as follows (my emphasis added):

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The crucial element here is the requirement for a “reasonable justification”.

And again, that lack of a witness statement made all the difference (emphasis again added):

That dog was still not barking.

Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.

(I have since spoken with a number of people involved in the case, and they agree.)

The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.

But still no signed witness statement was forthcoming.

So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.

But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.

And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.

If someone can come up with a better explanation than the above for (a) and (b) then I will change my view and recant.

But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.

POSTSCRIPT

I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:

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How the Good Friday Agreement means the United Kingdom government cannot leave the ECHR (without breaching the Good Friday Agreement)

12 August 2022

From time to time the demand will come from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious difficulty for the government in doing this.

The difficulty – if that is the correct word – is the Good Friday Agreement.

This thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.”

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission […]”

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

The ECHR is integral to the Good Friday Agreement – and that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.

This means that if the United Kingdom (including Northern Ireland) leaves the ECHR there will be breaches of the Good Friday Agreement.

When this is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It would thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This is in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

And so, one can either have the United Kingdom outside of the ECHR or one can have the Good Friday Agreement, but it is difficult to see how you could have both.

There are other ways to deal with the problems (as perceived) with decisions of the European Court of Human Rights.

In 2012 – during the Conservative-led coalition – there was the “Brighton Declaration”.

And the Supreme Court is already unafraid of showing its independence, as it did in 2013 – and which was welcomed by Conservative ministers:

As this blog previously averred, there is also a distinction to be made between human rights law as a legal reality and “Human Rights Law!” as an event of political rhetoric.

Last October, the Lord Chancellor made a speech to the Conservative party conference where (tellingly) the only example he gave of a wayward human rights court decision was where the law had already been changed.

As such “Human Rights Law!” is often a turnip-ghost, which has been created by politicians and the media just to scare themselves and others.

For every actual problem with the ECHR there is a practical way of addressing that problem that does not require the United Kingdom’s departure from the ECHR.

And often, stripped of political and media gloss, the apparent problems are not there.

As with the Brighton Declaration, and as with the Supreme Court, problematic features of the ECHR and its application by the Strasbourg court can be dealt with in other ways.

Ways that do not also involve breaching the Good Friday Agreement.

That is what politicians should do.

And that – one hopes though no longer expects – will be what politicians will end up doing.

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Telling the story of Brexit

11th August 2022

As I am working on a couple of longer posts posts for this blog – and they often take longer than I originally anticipate – this is a just a short post on my long-awaited Brexit book.

The book is still coming on, slowly – and I am grateful for the patience of those who are patient.

In its current form the book is both an account of how Brexit came about and an assessment of its significance.

The book starts with the referendum, and explains how we came to have a referendum and what it meant for this issue to be determined by such a device.

I have two models for the approach I am adopting.

(I am afraid these models come from someone who was taught and studied history in the late 1980s and 1990s – and I am conscious that these models will be sneered at by some, but they are – because of my academic experience – part of my mental architecture, and I have to work with what I have got.)

The first is, of all people and things, G. R. Elton’s book Reformation Europe, which starts with the theses being nailed on that door.

Elton then explains each thing as he then gets to it in his story, thereby balancing exposition and analysis with narrative.

As Elton explained in The Practice of History:

“[Reformation Europe] avoids the customary scene-setting at the start. Instead it goes straight in the story of Luther’s rebellion, which naturally calls for some description of the man; this introduces, as a matter of course, the points of theology over which he rebelled. Once the narrative is well under way, it demands some understanding of Luther’s success in the circumstances of time and place….”

And so on.

(I am aware of Elton’s many limitations, but his approach to narrative is thought-provoking.)

The other model is that of Conrad Russell, whose Ford Lectures on the causes of the English Civil War were an attempt to explain a sequence of seven “effects” – events and non-events – which led to the conflict:

“These, then, are our effects: the Bishops’ Wars, England’s defeat in the Bishops’ Wars, the failure to reach a settlement, the failure to dissolve or prorogue the Parliament, the choice of sides, the failure to negotiate, and the problem of the King’s diminished majesty. It is surely clear that nothing except Charles I can be likely to have been a cause of all seven of these […] The removal of any one of these seven things could have prevented the Civil War as we know it.”

What would be the comparable sequence of effects that would explain Brexit as we know it?

Would they be questions like: Why did the United Kingdom have a referendum on this question in 2016? What explains the result? What explains how May’s government interpreted the supposed mandate? What explains how the European Union prepared for the departure process?