Four hundred years after the civil wars, Parliament is being asked to give power back to the Crown

3rd August 2021

You would think that the grand question of the relationship between the powers of the crown and of parliament had been more-or-less settled over the last 400 years of our history.

The trend has been for the ‘prerogative’ powers of the crown – those powers that have legal effect because the crown is said to have such powers – to be subject to regulation or control by parliament and the courts.

And this is not an unusual thing for a polity that has become more democratic.

Some of these powers have moved to being under parliamentary and judicial supervision or direction at different times – but the tide has generally been in one direction.

But.

As the historian Robert Saunders explains lucidly in this thread, we have a remarkable turn in the tide.

In particular:

The issue, is of course, the repeal of the unliked and unloved Fixed-term Parliaments Act.

This is the 2011 legislation which has never resulted in there being a parliament lasting an entire fixed-term.

Given how easily governments, through parliament, have circumvented the core provision of the legislation, it must be regarded – at least on the face of it – as one of the most singularly useless acts of parliament ever enacted.

(This blog has previously discussed this statute here.)

But.

The principle behind the legislation was – and is – valid and important.

It should be for parliament – and not the executive – to decide when there should be an early general election (that is, an election before the end of a fixed term).

That there have perhaps been frustrations and misadventures with the legislation so far does not mean that the law should be abandoned absolutely – no more than any other prerogative being handed back to the monarch (and by implication the prime minister).

The historical trend away from passing power away from the executive to supervision or control by parliament and the executive has been bucked.

And, fittingly, it is this cavalier (in both senses) government seeking this reversal.

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‘Can we have two golds?’ – how the right Olympic high jump outcome was also in accordance with the rules of the sport

2nd August 2021

At a spare moment yesterday, I happened to turn on the television and I was quickly engrossed by the high jump final.

It was transfixing.

Anybody who watched the events unfold – as opposed to forming an opinion on the news afterwards – will understand how, in that dramatic moment, the resolution of the final made perfect sense.

The resolution, of course, was the shared gold medal.

Watch this video from beginning to end:

https://www.youtube.com/watch?v=fb2gMh8_gF0

The result was absolutely appropriate for that exceptional sporting moment.

But.

Was it the right thing done against the rules?

No: it was done in accordance with the express rules of the sport.

Indeed, it would seem that the rules of the very event envisaged what could happen in the circumstances, see rule 26.8 generally and rule 26.8.4 in particular of the technical rules of world athletics.

 

If both jumpers were equal in that neither could clear 2.39 metres (and they could not be differentiated by rules 28.1, 28.2 or 28.3) then there could be a ‘jump-off’ or ‘if the relevant athletes at any stage decide not to jump further, the tie for first place shall remain’.

And this makes sense: if the jumpers have jumped the same height but cannot jump any higher then it is reasonable for the jumpers to jointly win.

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So this was not an exercise in sportsmanship in breach of the rules – and still less a cynical exercise in gamesmanship.

This was an outcome that was envisaged by the rule-setters for that particular sport, and so it was a result in full compliance with the rules.

Some have complained on social media that sharing the gold medal ‘literally defeats the object of having a sporting event’.

But this is incorrect:  the technical rules of that sport ‘literally’ provide that the gold medal can be shared in these circumstances – and so the critics should have respect for the rules of the sport.

And finally: this is a blog that often criticises those who make rules (in many contexts) for not properly anticipating what can go wrong – and so it is nice and heartening to see a practical example of rule-making done well.

**

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The 2011 Riots, ten years on

1st August 2011

Ten years ago I went along to the south London shopping centre expecting to report on a riot.

At the time I was legal correspondent for the New Statesman, and all that day I had seen on Twitter that, among other places, there would be disorder in Bromley – and I was interested in what the reaction of the police and the courts would be.

But there was not a riot.

And so in a splendid exercise of journalism, I filed a piece on a riot not taking place.

The original piece even had a photograph from me of a deserted Bromley town centre – perhaps the least dramatic photograph ever published by any news organ, and certainly the only one that has ever been published that has been taken by me.

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Elsewhere, however, there were riots.

Following the riots, there were speedy arrests and speedy prosecutions.

And, in turn, there were speedy convictions – and, I recall, very harsh sentences.

At the time the sentences seemed disproportionate and were meant to be disproportionate.

Today, ten years later, it is reported that a prosecutor from the time had/has doubts as to the severity of the sentences.

But at the time, few if any cared – the defendants ‘should have known better’ and they ‘got what they deserved’.

My view at the time was that it would have been better to prosecute and convict on a normal basis – to show that the legal system was not easily shaken into exceptional behaviour.

To, in a way, normalise things.

But those who supported the harsh sentences would point to the (relative) lack of riots since – as if there was a simple monocausal relationship between sentences and riots.

As it happens, many of the preconditions for the 2011 riots still seem present – and, indeed, they are always present.

And one wonders whether the harsh sentences (and decisions to prosecute) ten years ago have done more damage socially in how they have affected the lives of those, as the Guardian piece describes them, were ‘caught up’ in the riots.

Such injustices never are warranted – even as a deterring example to others.

An injustice is always still an injustice.

**

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Westminster and Whitehall have a laissez-faire approach, not to the economy but to the polity.

31st July 2021

Another Saturday.

Today’s Financial Times revealed how some are paying for access to ministers and policy-makers.

Tomorrow’s Sunday newspapers will reveal more problems in respect of the government – and more about those paying for access to ministers and policy-makers.

(This, of course, follows the extraordinary and extravagant decisions by ministers and officials in respect of procurements, including in respect of the pandemic.)

And as this thread on Twitter shows, the supreme court – which will be followed by other courts – appears to be making it more difficult for policy to be subject to judicial review.

https://twitter.com/davidallengreen/status/1421366537567576067

All this in the context of what this blog avers is an ‘accountability gap’ in Westminster and Whitehall in respect of the formulation and administration of policy.

It is almost like watching a landscape painting being done in reverse, with an ever greater empty space in the middle of a canvass.

The space where accountability should be.

We have an increasingly unregulated State – a laissez–faire approach, not to the economy but to the polity.

Anything goes – whatever minister and officials in each department can get away with.

Anything goes – with only the lightest supervision by the judiciary and the legislature, and with many supervisory bodies rendered impotent.

And when anything goes, all sorts of things will go on.

**

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Why both the Science Museum and Shell were unwise to agree to a ‘gagging’ clause

30th July 2021

Last night Channel 4 news revealed that the science museum in London had agreed to a ‘gagging’ – or non-disparagement – clause in a sponsorship agreement with Shell.

This revelation has been a reputational disaster for both parties.

Here is Greta Thunburg:

In my view, both parties deserve this flak – as it was an unwise provision to have in such an agreement.

They only have themselves to blame.

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One difference between a good contract lawyer and a wise contract lawyer is to know the difference between a provision being available for an agreement and a provision being appropriate for such an agreement.

The agreement here was a sponsorship agreement – and in the normal course of things, and as between private commercial parties, such a non-disparagement clause would be unexceptional.

Such a clause does two things.

First, it expressly regulates what a party can and cannot do.

Second, it provides an express basis for terminating a contract (or for some other legal remedy) if the provision is breached.

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In this particular case, Shell could well have ‘taken a view’  – to use a common commercial lawyers’ phrase – on the risk of whether the science museum would disparage Shell.

And if so, whether Shell would really want to rely on such an express provision in ending the sponsorship agreement.

Yes: there was a risk of disparagement – but did it really need to be dealt with on the face of the agreement?

Really?

Or was it a risk that could be better managed by other, less legalistic means?

A far greater risk – and one which was entirely foreseeable, and indeed has to come to pass – is that the clause itself would be disclosed.

Shell was contracting with a public body in a highly sensitive political and media context.

There was a strong chance – indeed a virtual certainty – that at some point the terms of the sponsorship agreement would enter the public domain.

And when this happened, that the reputational fall-out would be far worse than any disparagement that the clause itself would ever manage.

The insertion of such a clause in such an agreement was a media catastrophe in the making.

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Some lawyers may bleat that such a clause was ‘reasonable’ – and they are right insofar that such a clause would be sensible in a normal sponsorship agreement between private parties.

But the very same provision can be absolutely lacking in reasonableness in this media and policy sensitive context.

To the extent there was any serious risk of disparagement by the science museum of Shell, then Shell should have taken the view that there were far better and less legalistic means of addressing the risk.

And the science museum should in turn have insisted that there should be no clause that would limit their ability to discuss any of the issues relevant to the sponsorship.

In essence: this was not a contractual clause that Shell should have insisted on.

And it certainly one to which the science museum should not have agreed.

**

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The urban legend of the boiled frog, Loki’s branching timelines, and public policy after Brexit

29th July 2021

I am still putting together my detailed piece on the Lugano Convention issue.

This is about how the European Commission has effectively vetoed the United Kingdom’s late (and panicked) application for participation in an arrangement for enforcing judgments in European Union and EFTA member states.

The piece looks at the causes of the current predicament – but also at the consequences.

The ‘so what?’ of any law and policy situation.

And sometimes the ‘so what?’ is not urgent and immediate – it is not eye-catching and headline-prompting and retweet-generating.

But it is serious all along.

And one only notices when it is too late.

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Here the usual analogy is with the poor boiling frogs of urban folklore.

In reality, of course, the frogs, like other animals, would escape if they can when in ever-hotter water.

But a good analogy will never die, even if immersed in boiling water.

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Another analogy – which is currently uppermost in the minds of fantasy and comics geeks (like me) – is that of branching timelines.

In Loki – a wonderful piece of television – the conceit is that there is an omnipotent and omniscient bureaucratic authority that monitors and regulates the timelines of the universe(s).

From time to time (pun intended), a thing happens on a timeline of a universe that means that there are stark deviations to that timeline.

And when those deviations in turn mean that there are significant new branches of reality, the bureaucrats-in-uniform intervene to correct the timeline.

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Brexit is a new branching timeline in the history of the public policy of the United Kingdom.

Our public policy is now diverging from European Union public policy – slightly at first, and only becoming obvious over time.

But over that time, there will be many multiplying differences and discrepancies.

Those gaps will become wider and deeper.

But we are not in Loki.

There may not be some big-bang ‘nexus’ event to alert everyone to the huge gaps that will soon exist.

And we also do not have a time variance authority to step in to return us to the ‘sacred’ timeline from which we have departed.

We do not have the fantasy of some omnipotent and omniscient authority (and still less an omnibenevolent one).

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This lack of a big-bang ‘nexus’ event is something, perhaps, that those campaigning for the United Kingdom to (re)join the European Union will not have as an advantage.

There may be no one spectacular sudden public policy failure to to which they can point.

Just a thousand inconveniences and misadventures, which will be endured and resented, but that will not mobilise and motivate a political movement.

We will be stuck with it.

We will be like a frog, but not one able to jump from boiling water

Instead, we will be a frog trapped in a bottle of our own making

**

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

https://twitter.com/lukemcgee/status/1420302117705768961

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

https://twitter.com/lukemcgee/status/1420304587576205315

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

**

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We need a stop-and-think approach to policy, not a stop-and-search policy

27th July 2021

Today there was a crime policy announcement.

Yet again, something or other will be ‘tougher’.

Like historians who say the middle class is always rising and the gentry always declining, crime policy is always getting ‘tougher’.

How can anybody involved in formulating and promoting this ‘policy’ keep a straight face?

Even the details of the policy are risible.

Pure ‘law and order’ theatre.

Convicts in high-vis jackets – for show.

A police officer with contact details – for show.

Stop-and-search policies without the need for suspicion – for ‘confidence’.

No thought, no substance – no thinking about rehabilitation, no thinking about a sensible and proportionate drugs policy.

And none of this new.

It is a staple for home secretaries of both main parties to want to introduce -in effect – the public humiliation of chain gangs.

As if that would have any beneficial effect for anyone.

There is already a police officer designated in charge of a case.

And indiscriminate stop-and-search creates tensions and conflicts in communities – and leads to the lack of confidence in the police.

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All shallow-showy or counter-productive stuff.

Nothing serious, even from a ‘small-c’ conservative perspective, let alone from a sensible liberal perspective.

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What we need is not a stop-and-search policy but a stop-and-think policy.

But – as this blog has previously averred – we have politicians more interested in ‘Law and Order!’ – complete with capitals and an exclamation mark – than actual law and order.

This is newspaper column material – but without even a reasonable suspicion of serious policy.

Appropriately, the best response was from cobblers:

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Politics v law and policy – a response to Dominic Cummings

26th July 2021

Late last night, Dominic Cummings posted this tweet, with a screengrab of a tweet from me from March 2019:

As a change from my usual daily blogpost, here is my thread in response:

https://twitter.com/davidallengreen/status/1419558769026031617

https://twitter.com/davidallengreen/status/1419560074402480128

https://twitter.com/davidallengreen/status/1419561908819087364

https://twitter.com/davidallengreen/status/1419562749739290625

https://twitter.com/davidallengreen/status/1419563640672460801

https://twitter.com/davidallengreen/status/1419564917884063744

https://twitter.com/davidallengreen/status/1419565781462011906

https://twitter.com/davidallengreen/status/1419566463900336131

Happy to deal with any comments below.

**

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Threats to doctors and nurses and lifeboat crews – and why laws and law enforcement are not enough

25th July 2021

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‘…we are indeed drifting into the arena of the unwell. Making an enemy of our own future.’

– Marwood, Withnail and I

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Every so often it seems that the culture wars are coming to an end, and then you get extraordinary things like this:

https://twitter.com/sbattrawden/status/1418984363304394762

A speaker tells a crowd in Trafalgar Square that doctors and nurses should be ‘hung’.

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People are abusing lifeboat crews.

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Doctors and nurses and lifeboat crews are perhaps the last individuals that would be insulted and threatened in a decent modern society.

Without any of the mirth of the Withnail and I film, we can echo the sentiment that our country is drifting (ever further) into area of the unwell.

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Those who defend such abuse may seek to say that it is only ‘freedom of speech’.

But no society has absolute free speech.

An immediate verbal threat of harm is not a protected speech act – just as forging a cheque or planning a robbery are not protected speech acts.

And dealing with threats to inflict hurt on other humans is what the law has, in part, always been about.

But to say a thing is against the law is not the same as saying the law would be effective in prohibiting such abuse.

Indeed, the laws as they stand would cover such utterances – and the law has not deterred the threats from being made.

And even if individuals were arrested and convicted, there is no reason to believe the nastiness of the culture wars would abate.

The ultimate issue here is not a public order problem with a neat legal solution.

The issue is cultural and political and social – and so only looking to the law would be an error.

There is a need for cultural and political and social leadership: for arguments to be won, and for behaviours to be discredited.

Laws and law enforcement will be part of that, of course, but they are not a complete answer, or close to it.

Once we are deep inside the arena of the unwell, there is no set of law suits or prosecutions with which we can bound free.

Those who threaten doctors and nurses and lifeboat crews should be prosecuted fully and fearlessly.

But such prosecutions would not make the problem go away.

Something deeper and more disturbing is afoot.

Brace, brace.

**

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