Frost has fallen, before Christmas

18th December 2021

So I spend a good part of today putting together some thoughts about the recent statement by the United Kingdom’s Brexit minister David Frost…

…and he then resigns (or so it is reported).

Frost has fallen, before Christmas.

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Frost is blaming other things for his resignation, other than himself and the agreements he negotiated with the European Union.

Well.

He would say that, wouldn’t he.

The reality is that the United Kingdom was in the preposterous position of seeking to renege on the very agreements it had only just negotiated and signed.

As Frost had negotiated those agreements it was impossible that he could be taken seriously.

No international agreement negotiator ever had less credibility.

And now he has gone – and the Northern Irish Protocol is still there.

Perhaps, like the North Shropshire by-election result this departure signifies a shift towards post-Brexit politics.

Perhaps it signifies an acceptance of the weakness of the position of the United Kingdom vis-a-vis the European Union on Irish questions when the European Union and Ireland is supported by the United States.

But on any view it means that there can be a fresh start for shaping the post-Brexit relationship between the United Kingdom and the European Union.

At last.

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The North Shropshire by-election – the End of the Spell of Brexit

17th December 2021

North Shropshire is about as Brexity and un-woke a place as you can imagine.

(Older readers will note that its member of parliament was once John Biffen.)

At the last general election – only two years ago – 35,444 voters in North Shropshire voted for the governing party candidate, Owen Paterson.

Yesterday, in the by-election caused by Paterson’s resignation, only 12,032 voters did so.

That is – on balance – 23,412 people who decided to not to vote again for the governing party in just two years.

(Of course, there are deaths and new voters – but there will not be that much churn in just two years.)

Two years ago, the pro-EU Liberal Democrat party could only get 5,643 people to vote for them in North Shropshire – and they did not even get into second place.

Yesterday in the by-election, an additional 12,314 voters did so.

I put these numbers in terms of actual voters as – for me – percentages and swings always seem a bit abstract (though, of course, they are important).

I am more interested in the numbers of actual people making actual voting decisions.

The effect of this shift is that a governing party majority of 22,949 (and of 29,801 over the then third-place Liberal Democrats) has flipped to a Liberal Democrat majority of 5,925).

That is one hell of a shift in actual people making actual voting decisions – especially in a place like North Shropshire.

And such a shift must be significant.

But significant of what?  What is being signified?

Here, any commentator has to be careful.

It is the easiest thing in the world for a commentator who did not predict a thing to then confidently explain the meaning of that thing once it has happened.

What I aver the result signifies primarily is that the ‘spell’ of Brexit may be ended – or close to an end.

By which I mean that, even in places like North Shropshire it is not enough for the governing party – and its political and media supporters – to incant ‘get Brexit done’ so as to protect and promote their electoral position.

It just isn’t working any more.

It did not mobilise the – on balance – 23,412 former governing party voters of 2019 who did not vote the same way again in 2021.

And it did not dissuade the – again on balance – additional 12,314 who voted for the Liberal Democrats who did not do so in 2019.

Of course, there were other issues – some local, some national.

Some may point to the Christmas party scandal, or to the coronavirus restrictions.

Some may even say that the by-election can be seen as a referendum on ‘lawyers from Birmingham’ – though that may be harsh.

https://twitter.com/davidallengreen/status/1469731175619076100

https://twitter.com/davidallengreen/status/1471721556816666625

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Almost everyone with political opinions will find that emerging events – including unexpected ones – will affirm the political opinions they already hold.

But whatever the other things that the by-election may signify to you and to others – the one thing that can be said is that in one of the most Brexity parts of the countries, twenty-three thousand people did not vote again for the party that ‘got Brexit done’.

And twelve thousand people voted for the least Brexity party who did not do so last time.

If the hyper-partisan spell of Brexit was still hard and fast then that would not and could not have happened.

And so, to that extent, the spell of Brexit is broken.

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Why judges may not be the best people to chair public inquiries

16th December 2021

Yesterday it was announced that the forthcoming Covid public inquiry will be chaired by Heather Hallett, the former appeals judge with an outstanding reputation as a lawyer.

Nothing in this post should be take to gainsay that appointment.

Instead, this post examines the general question of whether judges – or barristers – are really the best people to chair public inquiries.

In the United Kingdom judges are not usually investigators.

Instead the facts and documentary evidence on which they are to decide cases are put together by the parties to the case and their lawyers.

A judge will – despite spirited fictional depictions – not go and find out new facts and evidence for themselves.

In turn: most (though not all) judges are also barristers.

Many barristers also do not go and find out new facts and evidence in the case on which they are instructed: the facts and documentary evidence are provided to them usually by instructing solicitors or other professionals.

In essence: for all their many undisputed skills and talents, little in the background of judges and barristers fit them to be investigators.

Any investigations are normally conducted by others.

Once the evidence has been put together, judges and barristers will then often be very good at assessing and weighing that evidence, and in applying that evidence to the law (and applying the law to that evidence).

But the uncovering of the primary facts is normally done by others.

This is why – especially in civil cases – it is those who have the best controls over the flow of evidence that will tend to control the verdict.

And this is also why many public inquires are (or seem) to be ‘whitewashes’.

This is not (usually) because the head of the inquiry deliberately wants there to be a ‘whitewash’.

The ‘whitewash’ is often further upstream – in how the evidence is presented to the inquiry.

As techies say: garbage in, garbage out.

I know this, in part, because I used to work with public inquiry lawyers when I was a central government lawyer.

They worked backwards from the outcome they wanted to achieve so as to marshal the appropriate evidence.

That was their job.

So what is needed in the head of any inquiry is to have someone who is not reliant on the nicely packaged evidence and facts as put together by skilled and experienced public inquiry lawyers.

But to have someone with the skills and experience to get to the facts and evidence that powerful parties may not want to have put before an inquiry.

A person who will use the statutory powers available to public inquiries for compelling evidence, so as to balance the experienced public inquiry lawyers doing whatever they can to avoid putting certain evidence in.

Sometimes this person may be a judge, but sometimes it may not be.

But there is nothing particular in the background of most judges and barristers that equips them for investigating things.

Garbage in, garbage out.

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The boon of published sentencing remarks

15th December 2021

One good thing for the public understanding of the law that has come from the internet is the publication of ‘Sentencing Remarks’.

These are not judgments – at least in a legally technical sense – but explanations by a judge about how they gone around setting the sentence of someone guilty of an offence.

Today there are two sets of sentencing remarks about highly unpleasant and disturbing cases (both of must have a content warning).

Some may want to read them for their grisly detail.

However the rest of us – especially students of law and others with an interest in the legal system – will be able to gain fascinating and detailed insights into investigations, prosecutions and sentencing.

In the olden days, these remarks were never normally available – one would have to rely on any news reporters in court, and one would then have to depend upon on the edited (and editorialised) news reports.

Now, you can read the judge’s words for yourself – and form your own view.

You may still think after reading remarks that a sentence is too low or too high – but you will at least be able to inform your view with how the sentence has been arrived at.

The best way to keep up is to follow the England and Wales judiciary’s Twitter account or to visit their site from time to time.

The regular publication of these remarks will not, by themselves, cure the promotion of misinformation about law generally and high-profile cases in particular.

But the more they become part of the normal information openly available about cases and the criminal law in the news, the better the general knowledge of the criminal justice system.

They are a boon to the public understanding of law.

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Taking Human Rights Act reform seriously

14th December 2021

The best way to understand the politics and law of Human Rights Act reform is to realise there are two separate things going on.

The first is – with scare quotes – the debate over the “Human Rights Act” – where the Act’s opponents (and many supporters) overstate the importance of that symbolic legislation.

There are those with Very Strong Opinions about the Act who, when probed, cannot give any particulars for the opinions they hold and express.

And then there is – without scare quotes – the Human Rights Act 1998 – a mild and unambitious piece of legislation that generally has limited practical effect.

There is little connecting the heated debate over the “Human Rights Act” with the actual Human Rights Act.

And, as this blog has previously averred, if the Act had only been given a dull name like the Interpretation and Construction And Related Purposes (European Convention of Human Rights) Act, then a great deal of antipathy would not have existed.

The title of the legislation is just too provocative for some people, regardless of the substance.

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Today there were two significant developments about possible reform to the Act.

The first was the publication of a 580 page report of an independent review of the Human Rights Act commissioned by the government.

I have not yet read and digested this report, but the impression given is that the report does not urge fundamental changes to the Act.

The second development was the Ministry of Justice launching a consultation into the Act, with a return date of March 2022.

My initial impression is that the consultation is because the government may not have got the recommendations it wanted from the independent review and so is going to ‘consult’ that it gets the responses it wants.

*

Any legislation which flows from the consultation would presumably be for the 2022-23 session of parliament, which takes us to the run-up to the next general election.

This means that it is unlikely that Human Right Act reform will be done, as it should be, on a cross-party basis.

Instead any reforms to the Act will be done in an increasingly politicised context.

For the best understanding of the government’s approach, one should not go to anything the Lord Chancellor and Justice Secretary says, as he is unlikely to have mastered the detailed issues raised addresses in the independent report and the consultation paper.

The best insight into the government’s general approach is in this short article for the Law Society Gazette by the capable David Wolfson QC, the Ministry of Justice minister in the House of Lords.

Wolfson avers that there is a distinction to be made between the rights as set out in the convention (which are fine) and how they are interpreted by the European Court of Human Rights in Strasbourg.

He has nothing against the wording of the Convention.

Left to United Kingdom courts, he suggests, the Convention rights would and should be interpreted soundly.

It is not a bad argument, but there are problems.

For example, it will still be the Strasbourg court that will determine any petitions brought against the United Kingdom for any failure to protect Convention rights – and so all that may be created ultimately is delay and bureaucracy in the event of interpretative divergence

And the prospect of more cases directly before the Strasbourg court will not be welcomed by the security and intelligence services, who would rather have the current situation where most cases stay with nod-along British judges.

Another problem is the Good Friday Agreement, under which the European Convention on Human Rights (that is, the Strasbourg version) has to be directly enforceable in the local courts of Northern Ireland.

If Northern Irish complainants are not able to assert their Convention rights as they would be respected in Strasbourg, but only watered-down domestic versions, then there is the question whether the is a possible breach of the Good Friday Agreement.

These hard problems are not going to go away.

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One fundamental misconception in the debate about Human Rights Act – and the “Human Rights Act”  – is that the Very Strong Opinions of its opponents can be translated into actual legislative changes.

There have been several attempts since 2010 by Conservative politicians to reform the Act, with lots of stirring language about a British Bill of Rights.

They often also say they want to “modernise” the Act – though somehow this “modernisation” is about rejecting the Convention as a living instrument, which is rather contradictory if you think about it.

Reforming the actual Act – and not the Turnip Ghost that its opponents have conjured up to give themselves a scare – will be a long legislative slog, and for very little point.

So rare are cases that turn on Convention points alone that, even with the proposed tinkering, it is hard to imagine many of those exceptional cases actually being determined differently.

And you would think that Lord Chancellor and Justice Secretary – as head of a justice system in crisis and a prison system needing radical improvement – would not devote scarce ministerial time and departmental resources to such an exercise.

But that would be to take any of this seriously.

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Boosterism about boosters

13th December 2021

At least we have something new in law and policy to talk about.

No doubt as an attempt to protect his personal political position, our current Prime Minister made a rare broadcast last night to announce an ambitious new ‘target’ for take-up of the vaccine booster.

Of course, there had been no consultation with health service providers, still less any preparation.

And this is not a surprise, for our Prime Minister is interested in public policy only when it helps him with his political career.

It is hard, if not impossible, to think of any sincere view on public policy that the Prime Minister holds.

Public policy simply provides Boris Johnson with the means for obtaining and retaining political power – be it Brexit or Covid.

Whatever policy position he can adopt so as to get through the political predicament of the day (or hour).

And so – inevitably – we end up with boosterism about boosters.

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The Parable of the Prime Minister’s Curtains and the Mysterious Black Bin Bag

12th December 2021

From time to time, if you are lucky and alert, you can watch urban legends form in real time before your eyes.

In the last twenty-four hours we have seen the creation of a new conspiracy theory, to go with the likes of the moon landing hoax and Piltdown man.

It began with a tweet and a picture:

It is a good, good scoop.

The picture, of course, is not in and of itself incriminating.

Three people, including the Prime Minister, on a Zoom or similar call.

The Santa hat and the tinsel are indicative of it perhaps not being an especially earnest work call.

It is unlikely, for example, that the other call participant was, say, Vladimir Putin.

But it is the context which makes the picture significant.

If the three participants were not together for work purposes at the time of last Christmas then it would seem to have been an unlawful gathering.

And if, instead of Vladimir Putin’s stern unsmiling face, the Prime Minister was looking at a screen full of quiz participants – his own staff – crowded around their monitors, then his staff would seem to be in unlawful gatherings too.

When the Prime Minister said ‘all the rules have been followed’ he did not mention they were the quiz rules.

If these contextual points can be made out then this could be a difficult situation for the Prime Minister and his staff.

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You would think this was bad enough – and sufficient to satisfy those who are hostile to the Prime Minister and distrustful of him.

But no.

The picture also, it was contended, showed something even worse, if you looked carefully.

Looked hard, like one would look at a slice of toast to maybe see a somewhat bewildered face of Jesus.

In the top-left corner, we were told, there is black bin liner.

And if there is a black bin liner, it followed, it would have to be masking a security camera.

But.

There is no black bin liner.

And under the lack of a black bin liner there is no security camera.

What you can see is a pelmet – in effect upholstery for curtains.

You can see this in these pics:

This, of course, did not prevent a number of usually sensible people from tweeting about a black bin liner hiding a security camera – members of parliament, journalists, critical thinkers.

As well as all those who, well, would also tweet without any hesitation in other situations about ‘dead cats’ and ‘false flags’.

What all this tells us is a couple of things,

The first is the truth that many people will want to see a deeper conspiracy when no conspiracy needs to be posited.

The second is that we have a Prime Minister for whom many will believe it is plausible is capable of adopting the tactic of putting a black bin liner over a Downing Street security camera.

The number of people ready to believe this of our current Prime Minister is in and of itself significant.

(Indeed, some reading this blog post would be ready to believe if there were more compelling evidence.)

But as this blog averred recently, we have an arrogant government that has not even got the basic competence to be deceitful and cunning.

Even if there were a security camera in Downing Street instead of a pelmet, Johnson would probably not have cared anyway.

This is because he would (then) have undoubtedly not even thought that it could possibly matter – at least to him.

So what?

Well.

And now we come to the real political significance of the picture.

For what is important for what happens next to the Prime Minister is how freely this information is now being given to the press by his own staff.

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Boris Johnson is less interesting in and of himself, than for what his premiership tells us about United Kingdom constitution

11th December 2021

Many people – including you reading this post – will have strong opinions about the prime minister Boris Johnson.

And because he is such a distinctive politician, it is tempting to attribute all the current political woes to his actions and inactions.

To an extent that is a fair approach – for almost every political problem in the United Kingdom flows from a complete failure of political leadership.

Yet.

One should not confuse the opportunist for the opportunity.

Johnson does what he (thinks he) can get away with.

This is why Johnson is perhaps not so interesting for any individual qualities, but for what his premiership tells us about the United Kingdom constitution.

Here, what we are told are not just weaknesses of the constitution – but also its strengths.

For example, the status of the Good Friday Agreement as a core constitutional instrument should be without doubt.

It continues to shape and control what London governments can and cannot do in respect of Brexit and Northern Ireland.

The reported climb-down of Brexit minister David Frost over the supposed ‘red line’ of the European Court of Justice can be attributed to the value that Ireland and the United States place on what President Joseph Biden once pleasingly called ‘the Irish Accords’.

But.

Most of what Johnson’s premiership shows about the constitution of the United Kingdom is its weaknesses.

The ease, for example, with which a prime minister can evade and frustrate checks and balances on their office.

About how the only restraint on a governing party with a majority is that ancient one of Nemesis following on from Hubris.

And about how simple it is for determined government departments to remove rights from individuals.

As this blog has previously described: the government of the United Kingdom is currently pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

These are all things which were possible before Johnson.

In 1929, a sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

It was only what Peter Hennessy called the ‘good chaps’ theory of government that stopped a government exploiting its powers to the full.

In a way, all that has happened is that we have now finally had a prime minister and a government that – to use a current phrase – ‘does not recognise’ self-restraint.

In a way, one cannot blame Johnson – for this what he does, and probably can do no other.

More culpable are the governing party’s members and MPs who voted for Johnson in the 2019 leadership election knowing full well the nature of him as a politician.

What the rest of us now get to see is what such a politician can show us about the constitution of the United Kingdom.

And it is not an especially pretty scene.

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The weird state we are in

10th December 2021

This is a daily law and policy blog – indeed, there has now been a post daily for well over a year.

And being a daily blog, it sometimes difficult to step back and appreciate just how weird our government and politics are at the moment.

For example, we have the situation where if the Prime Minister has lied to his advisor on standards, then it will be the advisor who is expected to resign.

We also have the government’s ‘crime week’ that started with the Prime Minister dressing up as a police officer, and ended with the governing party being fined by the Electoral Commission.

There has been a row about a Christmas party that has now dominated politics for two weeks.

And in the meantime the government is pushing forward legislation that will enable its officials to kill people without legal consequences, that will prohibit meaningful protest, and that will summarily remove citizenship from you because of where your family is from.

Strange days, dark days.

And it is difficult to keep up, let alone try and make sense of any of as a law and policy commentator.

The main (but not only) cause of this is Brexit.

Brexit, in effect, has thrown a great deal of what was settled in British politics up into the air, and it still has not landed.

And government departments – free from any leadership and real accountability – are taking the opportunity to get away with as much illiberal legislation as they can.

The only ‘civil liberties’ complaints from many politicians will be about wearing masks and encouraging vaccines.

The antics of the current Prime Minister, unfit on any political view to hold that office, are possible only because of Brexit and its aftermath.

Will things ever get settled again?

Will there ever be a return to ‘normal’ politics?

The current weirdness may now be a routine commonplace.

But it should never be considered as normal.

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The Myth of the Dead Cats

9th December 2021

There is a certain Dickensian quality to the unfolding political events in the United Kingdom.

The events of a Christmas past – last Christmas – are illuminating the politics of Christmas present.

And, unlike other wrongs and transgressions by this wretched government, the facts and significance of last year’s Christmas party are readily grasped by the most unpolitical of people.

It has ‘cut through’.

Many people will not empathise with or understand those who may have their citizenship withdrawn, or want to make noisy protests, or want to make a hazardous channel crossing without drowning.

But, just like a day trip to see a castle, people easily understand about a works Christmas party.

This is not to say there are not more fundamentally bad things happening in law and policy at the moment.

This tweet summarises the current illiberal situation well:

The government of the United Kingdom is pushing forward legislation that will enable its officials to kill people without legal consequences, to prohibit meaningful protest, and to summarily remove citizenship from you because of where your family is from.

All this is as sickening and disconcerting as it can be.

But none of this has ‘cut through’.

*

Whenever the government does more than one bad thing at once, somebody somewhere will comment that one of the things is ‘a dead cat’.

This is the phrase to describe a tactic of political distraction.

One of the bad things happening – usually the more trivial – will be described as a cunning misdirection, to distract us from a far less trivial thing.

But.

The thing about ‘a dead cat’ tactic is that it requires basic competence.

It relies on the notion that those in power are capable of doing something that works.

This is a perhaps comforting idea.

The reality is, at least with the current government, that there is no basic competence.

The true situation is that the government is doing lots of bad things at once, all over the place.

This is a scarier predicament.

When one of the bad things gets more public and media attention, it is not because a deliberate political tactic has worked.

It is instead because the thing in question just happens to be more understandable.

That is the only difference.

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This is a chaotic government.

It is tempting to posit some order or pattern – or conspiracy – as the alternative of absolute disorder is too horrible an idea to contemplate.

Indeed, it is an even more horrible prospect than a dead cat suddenly slammed upon a table.

**

The Great Cat Massacre by Robert Darnton

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