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

7th December 2020

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

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

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

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

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

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But.

Is it an entirely useless piece of legislation?

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

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

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

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

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

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

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So far, so welcome.

But.

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

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

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

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

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

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

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

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

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

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

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

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There is now a review of the 2011 Act.

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

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

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

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

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

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

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

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

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

But it did get one thing right.

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

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

6th December 2020

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

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

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

But.

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

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

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

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

Fisheries policy as a red herring.

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

The then-international trade secretary said in 2017:

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

His reasoning?

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

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

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

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

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

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

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

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

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

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

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

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

Brace, brace.

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

5th December 2020

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

But sometimes the word has its uses.

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

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

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

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

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

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

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

Law and policy as sledgehammer.

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

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

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

Of course not.

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

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

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

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

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

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

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

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

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

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

This is Lord Atkin in Liversidge v Anderson:

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

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

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

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

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

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

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

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

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

But these views are, in fact, fantasies.

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

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

4th December 2020

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

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

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

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

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

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

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

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

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

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

And then on freedom of assembly.

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

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

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

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

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

What could possibly be wrong with that?

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

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

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

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

The government, of course, chose the latter.

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

At paragraph 77 of the judgment:

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

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

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

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

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

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

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

3rd December 2020

For the launch of any vaccine, credibility is essential.

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

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

This is a health minister.

And this is a government-supporting backbencher.

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

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

This, however, is false.

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

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

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

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

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

Here is the proof in back and white.

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

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

Brexit therefore made no legal difference.

So what is the recent amendment mentioned by the politicians?

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

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

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

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

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

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

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

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Why today’s deportations to Jamaica are nothing for the Home Secretary to be boastful about

2nd December 2020

There are many illiberal and misconceived things going on that a blog like this, which offers commentary and context on just one law and policy thing a day, cannot keep up.

But one especially brutal and unfortunate thing is to take place later today.

There is set to be a deportation flight from England to Jamaica, which will take place notwithstanding the ongoing covid pandemic and in the run-up to Christmas.

Those being deported are people with criminal convictions who have served their sentences but, because they are (in some cases only technically) foreign nationals, they are now to suffer this further sanction of the state.

The deportees include those with families and children in the United Kingdom – and so the Home Office are depriving children of parents and partners and other dependents of potential breadwinners.

The deportees include those who came to the United Kingdom as children and have no real connection with Jamaica.

One aspect of this deportation that is especially worrying and distasteful is the sheer glee that the current Home Secretary and it seems Home Office officials are taking in this exercise of sheer state power.

‘We make no apology…’ are the first four boastful words of the Home Office statement.

The Home Secretary herself is using this to make party political points.

 

There is no sense of ‘more in sorrow than…’ and that it is unfortunate but somehow must be done.

Instead, Home Office politicians and officials seem to be revelling in it, with the attitude of ‘look what we can do’.

They also appear to want as many legal interventions as possible, so that they can have the added bonus of pointing to meddlesome ‘activist’ lawyers.

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The impression the affair gives is not one of reluctant necessity but that this is a propaganda stunt – and one which comprises detaining people, marching them in handcuffs, using coercive power to send them to countries that are not their homes, and inflicting damage to innocent children and families.

Again, during an emergency pandemic and in the run-up to Christmas.

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The justification that the Home Office politicians and officials will give to themselves and others for this is that the criminals brought it upon themselves, and so the politicians and officials are absolved from any blame.

Yet this deflection is not convincing.

First, it is not justice to inflict double or disproportionate penalties – all because a crime has been committed, that does not mean ‘anything goes’ for the state in retaliation.

Second, this is an exercise of discretion by the Home Office – a deliberate choice, not an automatic process.

And so the Home Office is choosing to prioritise deportations above the very real effect of depriving families and partners – and remember, the families, dependents and partners have not committed any crime but they will suffer and be damaged anyway.

Third, it is notable that there seems to be no trumpeting by the home office of deportations to other commonwealth countries such as Canada, New Zealand and Australia – and this is perhaps for the obvious reason.

Fourth, the Home Office policy of the hostile environment and its treatment of Windrush families demonstrates that it is not well placed to make sensible decisions in respect of families from the Caribbean – and it would be wise for the Home Office to step back from such coercive moves as this deportation until it gets a wider policy grip.

And fifth, to the extent that those convicts who have been released from sentences remain ‘dangerous’ then the question must be why they have been released from prison.

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This deportation is an ugly spectacle, and it is one which nobody involved can take pride.

And the fact that there will be those who nod and clap and cheer at this brutal exercise of sheer state power tells us more about our society than anything about the families that are about to be forcibly broken up, so that the Home Secretary can tweet her party political ‘owns’.

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How Brexit may lead to Scottish independence and Irish unification

1st December 2020

So familiar is the three-word phrase ‘the United Kingdom’ that it can be forgotten that it does not name any particular country.

It is instead a description of dry and abstract political arrangement – the kingdoms that are (somehow) united could be anywhere on the globe.

Of course, the term is short for ‘the United Kingdom of Great Britain and Northern Ireland’ – but the shorter form is more common.

It is worth pausing and thinking about the phrase, as it reminds us that the United Kingdom is itself a political union, as much as the European Union or the Union of Soviet Socialist Republics.

And political unions come and go: there is no inherent reason why any political union is permanent.

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This post is prompted by a tweet yesterday from the Conservative leader in Scotland.

The sentiment of the second sentence of the tweet can, however, be applied to another example of ‘independence’.

And this will be a recurring problem for British Conservative politicians in opposing Scottish independence: the arguments they deployed in respect of Brexit and against the European Union can be re-fashioned in turn by those in favour of dissolving the United Kingdom of Great Britain and Northern Ireland.

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For what it is worth (and it is not worth much as someone writing from England), I happen to support both Scottish independence and an Ireland united by consent.

This is not because I am anti-English and a rootless cosmopolitan, but a recognition that, in the end, all political unions will tend to come and go.

And although I dislike all forms of nationalism (which often tend to be illiberal), self-determination is very much a liberal value.

The people of Scotland and of Northern Ireland (and of Wales) should decide on their own political arrangements.

The United Kingdom is not necessarily a permanent arrangement.

Indeed, but for events before the Norman conquest, England itself could have carried on for many centuries being a geographic expression with a collection of smaller kingships (Wessex, Mercia, Northumbria), just as Spain did until the early modern period, and Italy and Germany did until the nineteenth century.

‘Great Britain’ itself – a combination of the union of the English and Scottish crowns and then of parliaments 1603 to 1707 – has no greater claim for political permanence than, say, the combined role of the British monarch being also the Elector of Hannover (which lasted from 1714 to 1837).

(On ‘Great Britain’ being a construct, it is worth reading – or at least knowing about – Linda Colley’s Britons: Forging the Nation 1707–1837.)

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But liberal arguments may work both ways.

The liberal principles of internationalism and self-determination can often be used both for and against any particular attempt at political union – for example, an independent Scotland (having exercised self-determination) will seek to be part of the European Union.

The European Union itself has no claim either to permanence, and it may one day join a list of historical attempts at unifying Europe.

Brexit and the recent political events in Poland and Hungary are an existentialist challenge to the European Union, which it may or may not survive.

The point is that no political structure is necessarily eternal.

Many once thought the sun would never ever set on the British Empire, before its fairly rapid dismantlement after the Second World War.

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There is also a plausible argument that it was only membership of the European Union of both the United Kingdom and Ireland that enabled the peace process in Northern Ireland to work and the Good Friday Agreement to be put in place.

Take away the European Union and that handy practical solution becomes unstuck.

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So one particular irony that may come from Brexit is that the so-called Conservative and Unionist Party – by its absolute insistence on forcing through departure from the European Union – may be instrumental in breaking up the union of England, Scotland, Wales and Northern Ireland.

An independence referendum in Scotland and a border poll in Norther Ireland are both now more likely than not in the next few years – and both may well go against being part of a United Kingdom.

And that would be an exercise in ‘taking back control’ – just not the ‘taking back control’ that Brexiters perhaps had in mind.

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In one month the stabilisers are set to be removed from the Brexit bicycle

30th November 2020

Today is the last day of November and in one month’s time, on the last day of December 2020, the Brexit transition period is set to end – by automatic operation of law.

The stabilisers will be coming off the Brexit bicycle.

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The United Kingdom formally departed the European Union on 31 January 2020.

It has not now been a Member State for ten months.

But the effect of ceasing to be a member was artificially delayed by a transition period that was to last until at least 31 December 2020.

This transition period meant that, with some minor exceptions, the substance of European Union law and policy would continue to apply in respect of the United Kingdom even though it was no longer actually a member.

There was the possibility of extending this transition period until the end of next year – which would have been sensible not least because of the ongoing impact of the coronavirus pandemic – but the United Kingdom chose not to seek such an extension, and the formal deadline for that extension is now passed.

There is still, perhaps, a possibility of a formal extension even now – it would not be legally or procedurally easy, and it would need the urgent goodwill of all the European Union Member States – but this is increasingly unlikely.

And so, unless something exceptional happens, the United Kingdom will leave the transition arrangements at the end of next month.

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The next issue is whether there will be an agreement (or agreements) in place between the United Kingdom and the European Union in respect of trade and other matters.

There is already an exit deal in place between the European Union and United Kingdom, which is (supposedly) binding on the parties – and it is this agreement which was freely and knowingly entered into a year ago that the United Kingdom government is now seeking to breach with its proposed internal market legislation.

But that exit deal was primarily for certain tidying-up matters in respect of the departure, rather than the general ongoing relationship (though some provisions regarding Ireland were intended to have lasting effect).

With one month to go – and with no time for proper scrutiny and possibly no time even for ratification – there is still no agreement in place on the ongoing relationship.

It appears one issue is fish and fisheries policy – but it would seem there is still not agreement on far more fundamental issues such as governance of the agreement (that is, what happens when things go wrong or a party breaks its word) and the ‘level playing field’ (that is, will both sides have enforceable and equal standards against the other for commercial activity).

Governance and the ‘level playing field’ are not minor issues, but go to the very heart of any future relationship.

The various antics of United Kingdom government – not just limited to the internal market legislation – have made the European Union nervous about governance – and as has been said, trust is good but law is far better.

The United Kingdom should have spent these last few months showing the European Union – and other potential partners for trade agreements around the world – that it could be trusted to abide with international agreements.

But instead the United Kingdom has, at this most critical of times, shown the opposite – and so has created a needless but major moral hazard.

What serious potential international trading partner would now trust the United Kingdom to keep its word?

And in respect of the ‘level playing field’, the European Union is also – and again understandably – nervous about United Kingdom ministers unilaterally reneging on agreed and enforceable commercial standards in the name of ‘sovereignty’.

Because of all this, there is a non-trivial risk of there not being any formal commercial relationship in place for 1 January 2021.

And there is certainly no reason to expect the European Union to sign up to a deal out of charity or pity or otherwise against their interests – especially as current and future trading partners of the European Union are all looking on too.

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There are still, nonetheless, many favourable conditions for a deal – the parties are still speaking, there is agreement on the majority of the legal text, the parties both have an interest in a deal, and both parties would benefit from a deal.

But all these conditions are not enough if there is not actual agreement on fundamental issues.

So we come to the final month of the transition period, where the end-of-year holidays mean even less working time available to finalise a deal, during a pandemic and amidst forecast of a severe economic downturn.

There is no deal in place.

And even if there will be a deal in place by the end of next month, the general situation and outlook is not good.

This is perhaps the worst time for the stabilisers to come off the bicycle.

Brace, brace.

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Why did the Trump campaign not allege fraud in their post-election court cases?

29th November 2020

Since the presidential election earlier this month the losing candidate, the outgoing President Donald Trump, has repeatedly and loudly alleged fraud.

He has asserted that the lawyers of his campaign can or will show this fraud.

In Trump’s own words: “fraud and illegality ARE a big part of the case”.

*

But inside the court rooms, the lawyers for his campaign have not been alleging fraud.

Indeed, his attorneys have expressly said before judges that they are not alleging fraud.

This was noted by the federal appeals court in its judgment last week:

‘The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.”’

(My post on that judgment is here.)

There is therefore a mismatch – the ‘client’ is saying that fraud is “a big part of the case” and the attorneys are explicitly saying in court that fraud is not part of the case at all.

What can explain this contradiction?

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There are two explanations, closely connected.

The first explanation, which is not sufficient by itself, should be the more important one.

This explanation is that there is no actual evidence of fraud – or no evidence that there is more than a trivial number of cases that would not be enough to ‘tip’ any of the results in any of the States.

You would think that the lack of actual evidence would be all that should be required to prevent a lawyer pleading fraud on their client’s behalf.

You would be wrong.

The lack of evidence would explain why any legal claim requiring that evidence would ultimately fail.

And the lack of evidence should mean that a lawyer would not make a claim based on no evidence.

But the lack of evidence does not, by itself, explain what it has not been alleged.

Given their client’s raging belief there was fraud, something else – other than the lack of actual evidence – is needed to explain why the Trump campaign’s lawyers did not allege fraud in the courtroom.

And so we come to the second explanation.

In the United States – as in England – it is a strict rule of court that a lawyer cannot allege fraud in a civil matter without particular evidence.

For confirmation of this I can thank two American lawyers on Twitter.

 

Even Rudolph Giuliani – the former New York mayor who reportedly told Trump that the legal cases would succeed – would not break this rule.

Breaking such a rule would have severe if not career-ending consequences for any attorney, and although attorneys may do anything for Trump, they would not do this.

The refusal to break this rule also seems to me to be the best explanation for why some of Trump’s attorneys quit on the eve of a hearing – my reasoning on this is set out at this thread.

(There is a detailed account of the extraordinary last few days of the Trump campaign’s legal and litigation mayhem at the Washington Post.) 

*

Lawyers – often fairly – are the subject of public criticism and media hostility.

Many people will freely deride and insult lawyers (though they also usually ask you for legal advice when they themselves have a problem).

Yet for this negative public image, even lawyers have their limits.

But for the rules of court, it may well be that Trump’s lawyers would have alleged fraud in court, even without adequate evidence, and have just left it to the court to sort out.

That would have been unfortunate, but that did not happen.

And this was because the rules of court turned out to be stronger even than the emphatic instructions of a sitting president.

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The failed appeal of Trump over Pennsylvania – and the relationship between politics and law

28th November 2020

The Trump campaign has lost its appeal from the Pennsylvania court to the federal appeals court.

(My post on Giuliani’s bad day in court at the court below is here, and my post on the judgment of the court below is here.)

The judgment, which was published overnight, is here.

You should take the time to read the decision: it is clear, accessible, and well structured.

It not only decides the case on the narrow ground of the appeal but also on other possible grounds.

On each point, the law and the (lack of) evidence are set out so as to make the judgment not only persuasive but compelling.

There are even quotable general statements which put the Trump campaign right back in its (ballot) box:

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law.”

“Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold.”

And so on.

It is a judgment to enjoy and indeed to savour.

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But for many the remarkable thing is that the judge who wrote the decision is a Trump appointee.

Surely, the thought goes, this is in need of explanation.

The reasoning judgment itself shows a federal appeals judge who takes States’ rights seriously and is anxious about federal overreach – and these qualities are not unusual for a conservative judge.

These is the very jurisprudential approach that the Republicans are seeking to promote with their appointments to the federal bench.

The key fact here is that taking such principles seriously meant that a judge (and a court) went against Trump

(In contrast, a conservative judge emphatically wanting to extend the reach of federal power would have been a more remarkable and unusual thing.)

*

The judgment is not extraordinary in another sense.

The political inclination of a judge can only take her or him so far in defiance of the law and the facts.

If there is no law and no facts, only the most partisan of judges can, to invoke a phrase, ‘transmute lead into gold’.

Yes, many do have a sinking feeling that there are justices currently on the Supreme Court of the United States who would strain any case so as to come to a decision that would favour Donald Trump.

And the existence of that sinking feeling indicates a wider concern about the hyper-partisanship in the law and politics of the United States.

But such hyper-partisanship is, even in 2020, exceptional.

And this judgment is a refreshing and welcome reminder of this.

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Yet.

A cautious, attention-shunnng court could have given a judgment with the same effect but on technical and (frankly) unreadable grounds.

(Or, it would seem, the court did not even need to issue a judgment at all in this particular case, see this thread here.)

The court chose to hand down this very readable judgment instead.

*

This judgment perhaps tells us two things about the relationship about law and politics in the United States.

First, that there is a limit to hyper-partisanship and the cult of Trump.

Second, there are federal appeal judges that take conservative jurisprudence seriously – even if they do not take (supposedly) conservative campaign law suits seriously.

And it is the latter that will be of lasting legal and political significance.

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