For the current constitutional drama to have got as far as it has means that various ‘gatekeepers’ have either failed to perform their proper function or have been impotent.
By way of recap, the government of the United Kingdom is proposing to enact legislation that is deliberately intended to make it possible for ministers to make regulations that would break international and domestic law.
That the legislation is before Parliament means that the process is fairly well advanced – for presenting a Bill to Parliament is about stage seven of a process, not stage one.
The first gatekeeper would have been the head of the government legal service – the Treasury Solicitor – and we know that this is the issue over which the Treasury Solicitor has resigned.
But that resignation has made no difference: the process has continued anyway.
A second gatekeeper would have been the Cabinet Secretary, who is the guardian of the Ministerial and Civil Service Codes.
Yet, somewhat irrationally and inexplicably, the Cabinet Secretary has determined that what the Treasury Solicitor has described as breaches of law are permissible under the Codes.
So much for the civil servant gatekeepers.
Now for the politicians.
The Attorney General, who is nominally the government’s chief legal adviser, is enthusiastic about this law-breaking.
The Lord Chancellor, whose oath of office contains a commitment to the Rule of Law, has said that there are breaches of law that are ‘unacceptable’ over which he would resign, but this is not (yet) one of them.
And on the floor of the House of Commons, the Northern Ireland Secretary spoke of ‘limited and specific’ breaches of law being permissible.
So the gatekeepers of the Attorney General, the Lord Chancellor and the Cabinet generally have also permitted the the process to continue.
These gatekeepers are all checks and balances within the executive, and they usually should stand in the way of any attempt by ministers to abuse or misuse the law.
And all have failed.
So we now move on to the formal legislative process of Parliament and, if the provisions are enacted, the Courts.
And it may well be that the legislature and the judiciary are able to restrain this rogue legislation making it possible for ministers to break the law by regulations (that is, by decree).
If so, that would be an example of a working constitution.
But for this proposal to have even got to this stage, parts of the constitution have not worked.
The constitution of the United Kingdom is not codified and is reliant on checks and balances in practice that have little force other than by convention.
Only at the margins should constitutional tensions be resolved by litigation.
But what happens when the conventions do not work or are flouted?
The current constitutional drama may ultimately show, through Parliament or the courts, how the constitution works – but so far it has also show how the constitution does not work.
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In that post, there were two extraordinary facts stated that went to the current constitutional drama being serious and also novel.
The first was that a cabinet minister said to the House of Commons that the deliberate intention of the government was to break the law.
The second was that the government’s senior legal official – the Treasury Solicitor – had resigned on this issue.
These two facts indicated – perhaps demonstrated – that the current situation was significantly different from previous threats from the government to disregard the law, which have often only been briefed to the weekend media.
There were third and fourth facts which also should have been listed.
The third fact is that the government has published a Bill with the explicit power of making regulations that would break international and domestic law.
And today there is a fifth fact: the Lord Chancellor suggesting on television that a distinction can be made between ‘acceptable’ and ‘unacceptable’ breaches of the law.
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None of this – yet – constitutes a constitutional crisis.
The crisis would occur if such intended law-breaking survived parliamentary scrutiny and judicial supervision.
If such intended law-breaking did not survive parliamentary scrutiny and judicial supervision that would be checks and balances working as they should in a constitution.
But that said, this is a very different type of constitutional drama to what has gone before in Brexit, and one perhaps has to go back to the unionist threats to disregard the law before 1914 to find a historical parallel.
Of course, all this may just be politics – and there is some planned (or hoped for) political manoeuvre that the government is to execute under cover of this drama.
Such a political game does not, however, justify direct threats by the government to break the law.
Perhaps this is just a passing row, and the government u-turns this week on this proposal.
But that the government risked a constitutional crisis (as well as self-trashing its reputation as a reliable party to international agreements) will linger.
There will be an impact.
And so even if this extraordinary situation is now brought quickly to a halt, what this has created cannot end well.
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This has been an eventful week for law and policy – and for breaches of law and for a lack of a policy.
The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.
This was not a slip of the tongue.
Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.
No: law-breaking was now a considered government policy.
It was a quite remarkable moment.
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That this was now a formal government position was then demonstrated by two other events.
First, the government’s senior legal official – the Treasury Solicitor – resigned on this issue (and my Financial Times post on this significant resignation is here).
Second, the government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.
These two events show that the government’s proposal for law-breaking is not a sudden or improvised development.
A lot of time, effort and resources has gone into this.
The resignation of the Treasury Solicitor appears to have been after a number of Whitehall exchanges involving ministers, officials and government lawyers, as well as external counsel.
Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.
This proposal has been a long time in the making.
We all only got to know about it this week.
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Any constitutional crisis – potential or otherwise – exists on two planes.
The first is the plane of high constitutional principle.
Here the most relevant constitutional principle is that of the Rule of Law.
Put simply the principle here can be articulated as: the government is not above or beyond the law.
The government’s proposal may also raise (or will soon raise) constitutional issues such as the relationship between the two Houses of Parliament (if it is voted down by the Lords), the Irish border and the position of Northern Ireland, and the situation of the devolved administrations.
These constitutional matters are broad and could be relevant regardless of the detail of the proposals – whether the policy in question was about terrorism or agriculture.
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The second plane is that of policy.
What is the policy objective that the government is seeking to achieve that, in turn, raises such constitutional concerns?
Here something does not make a great deal of obvious sense.
The purported concern is about the state aid regime on the island of Ireland after the end of the Brexit transition period on 31st December 2020.
I explain some of the detail of this purported concern on this video for the Financial Times.
There are two reasons why this being the cause of this potential constitutional crisis does not add up.
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First, there are other ways the government could address their apparent concerns about state aid and Ireland following Brexit.
For example, the government could have a post-Brexit state aid policy that it could discuss with the European Union in a sensible and mature manner, and both sides could then agree how to deal with any conflicts with the withdrawal agreement and the Irish Protocol it contains.
So whatever the ultimate cause of this potential constitutional crisis, it is not (and cannot be) any concrete policy differences on state aid and Ireland – because the United Kingdom government does not (yet) have a concrete policy on state aid and Ireland.
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Second, the provision in the withdrawal agreement which the government asserts is the problem – Article 10 of the Irish Protocol – is something this very government negotiated and agreed to itself.
The government would have known the effect of what it was agreeing to – before signature the government legal service would have explained to ministers all the provisions in the withdrawal agreement.
And not only did the current government agree the withdrawal agreement, it campaigned at the December 2019 general election on the basis of putting this ‘oven-ready’ agreement into effect.
And the withdrawal agreement was indeed swiftly passed into law by an Act in the days before the United Kingdom formally left the European Union on 31 January 2020.
In essence: the withdrawal agreement was something this government negotiated, signed, boasted of, campaigned on, received a mandate for, and passed into domestic law.
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And now the same government wants to break that same withdrawal agreement, less than a year after it was agreed and signed.
The problems with this are, for anyone other than the most partisan supporters of the government, stark and serious.
No other country will take the United Kingdom seriously in any international agreements again.
No other country will care if the United Kingdom ever avers that international laws are breached.
It is a stunning self-trashing of the United Kingdom’s place in the world.
And domestically the predicament is much the same.
Who will take seriously the government’s insistence on abiding by the law if the government itself openly has law-breaking as public policy?
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I love and enjoy watching and commenting on any constitutional drama
But usually the constitutional drama makes some sort of sense.
Here there seems a deep mismatch – a disconnect – between the potential constitutional crisis and the underlying policy problem.
The United Kingdom does not (yet) have a post-Brexit state aid policy, and with open eyes it agreed to the Irish Protocol less than a year ago.
The problems, if any, with state aid in Ireland after 1 January 2021 do not require the United Kingdom government to propose and legislate for, in September 2020, a deliberate policy of law-breaking.
There is no rational explanation for what the government is doing.
And if there is no rational explanation then that leaves fanaticism, cynicism, conspiracy and/or idiocy.
Each of these are possible – either alone or in combination – but the lack of any genuine policy basis for risking a constitutional crisis, let alone forcing one, makes this a very strange constitutional drama.
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This, however, is not yet a constitutional crisis.
There is every likelihood that the tensions here will be resolved by the government u-turning or being defeated during the Bill’s passage through Parliament.
If enacted, then the Courts may find a legal basis for limiting the use of the regulations made under the Act.
That would be the constitution working.
We are not at the ugly stage where a government minister is actually making a regulation that would break the law and there was no way of stopping this.
That would certainly be a crisis, by which I mean as serious and unpredictable situation where there is no obvious resolution – a constitutional contradiction rather than a tension.
A government deliberately breaking the law would create such a situation – and nobody can know what would happen next.
So this is still a potential constitutional crisis, not an actual one.
But it is an extraordinary and spectacular potential constitutional crisis.
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ps Title amended to add ‘Part I’ on 13 September 2020
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And now look at the date of this tweet: it is from the run-up to the 2016 presidential election.
In recent days, Trump has tweeted a number of times about ‘Law & Order!”.
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One obvious reaction would be to say that his recent demands for “Law & Order!” show that he failed to keep the commitment in his 2016 tweet.
Another obvious point is that Trump’s misuse of pardons and commutations, his non-compliance with legal requirements and so on are a negation of law, just as his stoking of violence for political ends is the negation of order.
But such ‘reply guy’ points do not really matter.
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The potency of “Law & Order!” does not depend on Trump’s record or his consistency.
What is significant about the 2016 tweet is this was how he approached the last election, with the same message as now, and it was effective.
And it may be effective again.
The fact that, in substance and in practice, Trump is not interested in either law or order is irrelevant.
“Law and Order!” has nothing to do with law and order.
It is about coercive power and about those who that power should be inflicted upon.
It is about control and it is about supremacy.
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Of course, it is easy to mock Trump, and it is easy to point out the inconsistencies and the lies.
But he has worked out a way to get power, and his opponents so far have not.
Do not underestimate him.
(Johnson and Cummings have also worked out how to get power, and their opponents also so far have not.)
Waiting for the mass of lies, absurdities and inconstancies to somehow self-implode, and thereby eject Trump (or Johnson), is not going to work.
The thing (for want of a better word) is self-sustaining: it feeds off the simple opposition that it creates.
And there is not point ‘matching’ it, as those promoting this thing are better at lies, inconsistencies and absurdities than their opponents.
The thing would have to be defeated some other way.
And that defeat must be political and electoral.
For example, looking to the courts or to special counsel investigations is wishful thinking.
Lawyers and judges are many things but they are not fairy godmothers.
(And “activist lawyers” also feed the thing.)
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Pointing out lies does not work when a sufficient number of voters do not mind being lied to.
And so the daunting task for the opponents of Trump (and Johnson) is to get enough voters to care that they are being lied to.
To care about law and order, and not “Law and Order!”.
And that ain’t going to be easy.
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President Trump says a lot of tosh but sometimes a word or phrase is telling.
“I’ll tell you who’s meddling in our elections,” Trump says when asked about US counterintelligence officials saying Russia, China and Iran are trying to interfere. “The Democrats.”
Here Trump goes on to make a partisan point about the Democrats “wanting and insisting on sending mail-in ballots, where there’s corruption all over the place”.
An opposition party in a democracy seeking to encourage the turnout for a vote is not, of course, sinister.
That is what political parties do in a democracy.
And if there is corruption or other irregularities then that is what electoral law is there to regulate.
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But this is to take his substantive point too seriously: the issue is the ease with which he adopted the word “meddling” from the question and employed it in his answer against the party challenging him in November’s election.
“Meddling”
The impression he gave is that he considered the legitimate political activity of a political party as a hindrance – a wrongful intervention in the natural order of things.
And this impression is similar to the impression given by the Johnson-Cummings government in the United Kingdom in respect of constitutional checks and balances on the power of the executive.
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Before the general election, when Johnson-Cummings did not have a majority in parliament there was the attempt to bypass the legislature with the (unlawful) use of the prorogation.
After the election, now they have a majority, the main attacks are on the independent judiciary and the impartial civil service.
The impulse is always the same: the desire to remove formal impediments.
There often seems to be no greater purpose – no particular policy to be driven through – than unrestricted executive power as an end in and of itself.
The objective is the elimination of anyone in a structural position to say ‘no’ or even ‘please think about this carefully’.
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By framing any such restraints as “meddling” the executive-minded, such as Trump or Johnson-Cummings, are doing three things.
First, they are seeking easy claps and cheers and nod-alongs from those in politics and the media who should know better, as well as from voters generally.
Second, they are signalling that they consider any form of opposition to them getting their way as inherently illegitimate – and so that there are no constitutional or democratic principles of more import than the government just getting its way.
And third, they are converting basic constitutional or democratic principles into partisan devices – and so those who support and defend certain political fundamental norms (regardless of party) become part of a perceived opposition.
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The worry is that they can and will get away with this for as long as possible.
There are, of course, often short-term political advantages to be had for the knave or the fool by undermining any political and constitutional system.
And one hopes that the system would be self-correcting, and that basic constitutional and democratic norms will somehow reassert themselves.
But what happens when, as now seems to be the case in the United Kingdom, such opportunism and cynicism become the ongoing policy of the government?
Will basic constitutional and democratic norms reassert themselves this time?
Or will this ‘executive power project’ carry on and on?
And, if so, wouldn’t that be genuinely ‘meddlesome’ behaviour?
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What should we make of the government’s announcement of “independent panel to look at judicial review”?
By way of background: judicial review is the general name for how the courts in England and Wales consider the lawfulness of government decision-making and rule-making.
If a government decision or rule has not been made within the legal powers available, or has otherwise been made improperly, the High Court in London can quash that decision or rule.
Governments do not like being told ‘no’ by courts.
This title and the Notes helpfully take up the majority of the one-and-a-half pages.
The substance of the Terms of Reference (such as it is) is in four numbered paragraphs, and these four paragraphs have been put in bold – perhaps to make them look more impressive.
Priorities
A first thought about this review is that you would think that the Ministry of Justice would have more important things to do.
The ongoing coronavirus emergency means the criminal justice system is beset by backlogs and delays, and the prison system is more dangerous than ever.
But at this time senior ministers and officials at the Ministry of Justice wish to devote their scarce managerial time and resources to this matter.
Lack of substance
A second thought is that the announcement and the Terms of Reference are, well, rather flimsy.
The four numbered paragraphs, even when supplemented by the Notes and said in that slow ‘voiceover man’ way as all passages in bold should be, are as general as the author(s) of the document could get away with, short of saying nothing of substance at all.
Even paragraph 4, which is perhaps the most important, is no more than a brief list of discussion points.
The document has an improvised and rushed air to it – the Notes in particular seem to be a late attempt to add some substance.
All this said, there is stuff here which is – or may become – concerning.
Paragraph one – codification
The first paragraph is, as a lawyer would say in court, an old chestnut: should judicial review be placed on a statutory footing?
This is an examination essay question of the ages.
And there is no quick or neat way this review, or anyone else, can place judicial review on an entirely statutory basis even if it wanted to do so.
This is not to say there are not already detailed statutory rules.
Judicial review is already heavily regulated by legislation: by the Senior Courts Act and by the (statutory) Civil Procedure Rules.
But the ultimate basis of judicial review is not contained within any Act of Parliament, as it derives from the very jurisdiction of the court itself – and some would say that the supervisory jurisdiction of the High Court is logically prior to, and distinct from, the legislative supremacy of parliament.
To somehow convert this source of law into a statute would no doubt require complex and sophisticated legislation, if it can be done at all – and, unless there is a particular reason to do so, there seems not a lot of point in doing so.
And, there is the ‘hole-in-my-bucket’ problem of how the courts would police compliance with any such new constitutional statute if its power is entirely to be derived from that statute.
Some things are perhaps better left as student essay questions.
Paragraphs 2 and 3 – justiciability
Paragraphs 2 and 3 are impressive in that somebody has somehow managed to make two paragraphs out of one point.
That point is justiciability.
This is about what sort of issues are questions for the court as opposed to, say, Parliament, the government, or the electorate.
The problem here, as with paragraph 1, is circularity.
A question for the court is always a legal one – whether an action (or inaction) is legal or not.
And what sort of issues are legal ones?
The ones that are decided by a court.
If there is to be some statutory definition of what questions are justiciable, then all that may happen is that the legal battleground shifts to litigation about whether that new definition applies.
Courts, contrary to media representations, are already reluctant to the point of unwilling to decide political questions: for example, all the Miller litigation did was ensure that parliament decided certain issues rather than the executive.
Those who sought to use the courts to stop Brexit not only failed but did not even come close to getting any judicial reversal of that political decision.
What we do often get is media and political misinformation about what the courts are doing and not doing.
And the cure for such misinformation about the law is not to change the law.
Paragraph 4 – collateral attacks
Paragraph 4 is where this Review may make some difference.
The ultimate basis of judicial review cannot be easily changed, and nor can the need for a court to decide whether a question is a legal one or not.
But – like a participant in ‘Wacky Races’ throwing devices out a car window to snare the car behind – the government can promote rules and procedures that can make access to the courts more difficult.
Here, however, the government probably does not need an independent review to do this: this has pretty much been government policy since the Blair years, with the worst most recent attack on the easy availability of judicial review coming under the Coalition government (and promoted by a Liberal Democrat minister).
You will see unlike paragraphs 2 and 3, where one point is stretched into two, that paragraph 4 has six points – each one of which is a potential pressure point for limiting the flow of justice, just like the body has pressure points to limit the supply of blood or oxygen.
What the government here is seeking to do is reform the practice of judicial review so that it almost impossible to obtain it as a practical remedy.
Towards a report and beyond
This review has the whiff of ‘something must be done’ – the government and its advisors do not like judges saying ‘no’ and so something must be done to stop the judges saying ‘no’.
One way judges would be prevented from quashing decisions and rules is for those decisions and rules to made better in the first place.
Any decision or rule in respect of public policy can probably be made by the government through parliament, as long as government and parliament make the decision or rule properly.
The courts can only intervene when there is illegality.
The problem in this age of Brexit and coronavirus is that the government does not want to go through the proper law-making process – it wants to use wide powers, either in emergency or Brexit legislation – and to not have any parliamentary or other check on that power.
This is the executive power project.
Perhaps this review is a clever wheeze by some wise official to delay or deflect the attack on judicial review – by the time the panel reports, things may have ‘moved on’.
But this is probably wishful thinking.
The impulse of some now in and around government for executive power for its own sake will still be there.
And they will not rest until they have done as much as they can to remove any constitutional check or balance to their wish to have, in effect, government by decree.
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The weaknesses that both events indicate are that this government is concerned with power but not policy.
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By ‘policy’ I mean a seriousness about getting things done.
Policy is hard: it is more than just legislative changes, or deciding administrative or budgetary priorities.
And policy is certainly more than a mere press release or a media strategy generally.
Policy is about combining many things so that certain outcomes can be be achieved which otherwise might not be achieved, but for that policy.
This is not a party political point: Aneurin Bevan establishing the National Health Service and Norman Tebbit putting in place trade union reform are both good case studies of carrying through policy.
But this government appears not to have a grasp of policy.
This seems to be the case in all areas, not just those which come to light from time to time in the course of political events.
It is just that those other areas are less obvious or, in the case of Brexit, shielded by ideological commitment.
This government’s approach to policy is flimsy everywhere.
This in turn explains why this government – even with its eighty majority in the House of Commons – is blown off course so easily.
Sometimes the changes happen at or after prime minister’s questions, but this week’s u-turn came before hand.
And the positive policy announcements that are made – such as with the International Development department – seem to be either for media and political consumption or to provide cover for tightening central political control, or both.
None of this is surprising: key members of the government approach problems as if what is needed is to compose a rousing 1200 word newspaper column or to make some gesture that ‘plays well’ with voters, or to shut down any autonomy or checks and balances within the state.
An approach that is good for obtaining (and maybe retaining) power but does not really provide anything about how to use that power once you have got it.
The government has no solid notion of what it wants to achieve overall, on Brexit or anything else.
It just has a notion of how to play to its audience and to increase power.
Perhaps the flimsiness is a good thing: perhaps the ideological commitments of those in and around government mean that we should be grateful that those commitments are not – yet – reflected in hard, sustainable policy.
But this policy flimsiness still makes a difference: on Brexit as well as on other matters, the United Kingdom is, like a latter-day Withnail and I, drifting further into the arena of the unwell.
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Last Sunday – again – there was the publication on the Legislation.gov.uk website of further amendments to the coronavirus regulations that restrict movement and other things.
These regulations were released without drafts being published, let alone being consulted on; they were made under emergency provisions, even though parliament is sitting; there was no proper announcement or accompanying guidance; and they interfere with fundamental rights.
These are the fourth iteration of the regulations which cover England, with (it seems) some twenty-two sets of such regulations so far made for the constituent parts of the United Kingdom overall.
It is hard to find words for how daft and dangerous this approach is to criminal legislation, especially given the freedoms being curtailed.
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In respect of the English regulations we have had botched drafting from the beginning, indicating this legislation has not been subject to basic internal civil service quality checks.
(I understand that for the English regulations they are being dealt with by Home Office officials and lawyers, though nominally they are going out under the name of the Secretary of State for Health.)
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There are three practical problems and one objection from first principle about this approach.
First, citizens are unable to regulate their own conduct so as to ensure they are not in breach of the criminal law.
Second, those charged with enforcing the regulations are not in any decent position to know what the law is that they are supposed to be enforcing.
Third, those responsible for advising citizens, organisations, businesses and the police and government themselves cannot keep up.
(I am a former government lawyer, trained how to draft statutory instruments who explains and advises on public law for a vocation, and I am at the point of not knowing what is and is not legal any more.)
It is a mess.
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But there is a deeper problem than impracticability and uncertainty.
Law is being used here as if it were some graphic equaliser or joystick.
Little changes here and there, extensions of prohibitions and then of exceptions there, regulations amended and then amended again.
It seems like the nudge theory, but applied to criminal legislation.
The belief appears to be that changing the law in this constant fiddly way will, in turn, have real life changes.
In reality, however, the law will just be discredited as a whole.
Citizens will just give up trying to follow the law, as will those charged with enforcing that law.
Not even the go-to argument for legislative stupidity – there is an emergency on, you know – justifies this approach.
Indeed, these constant changes undermine emergency legislation when such regulations are the very sort of legislation that needs to be credible and enforceable.
So what is happening is not only daft, but dangerous.
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One day perhaps we will find out more about why the government adopted such a misconceived approach.
But in the meantime, the coronavirus regulations are a case study in just how weak our political and legal system is on providing proper scrutiny, or offering checks and balances, when fundamental rights are at stake,
No doubt the ministers, officials and lawyers involved have got their evasions and excuses already in place, hoping that they will never actually be accountable for this misuse of law.
And as always, they will probably get away with it.
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I also did a thread in response to a former Member of Parliament who had invoked the jurist William Blackstone to suggest slavery had been abolished in 1753.
The point of these threads is to show that slavery was, at the time, commonplace and was facilitated by the law, as well as by insurers and so on.
Slavery was not just Edward Colston of Bristol going off on a frolic of his own.
There was an immense legal, commercial and administrative apparatus in place to enable slavery.
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Slavery is about property in human beings, and the slave trade is about transactions in respect of that property.
Slavery was managed from afar: few slave merchants and very few domestic owners of slaves ever saw the enslaved face-to-face. Slavery was thereby dealt with by correspondence: with crews, agents and estate managers.
And so, because it was about property and transactions and done from afar, there are lots of records.
Lots and lots of records.
And so like that modern horror, the Holocaust, you can see the dealings with slavery in record after record.
For those involved, it was mundane.
Slaves bought and sold, and managed, by ink and paper, by everyday people on an everyday basis.
In this documentary David Olusoga uses the detailed records of the immense compensation paid to slave owners in 1833 to demonstrate just how far and wide slave ownership was in British society.
Slave ownership was like owning a time-share in Spain or a special savings account.
The import of all this should be to correct the skewed cod-history of British nostalgic exceptionalism and to remind us of the extent to which Britain was involved in (and benefitted from) slavery and the slave trade.
And a rounded, more accurate understanding of our past is a good thing in itself.
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