18th December 2020
Over at Prospect I have done a post on two fascinating paragraphs in the United Kingdom supreme court judgment this week on Heathrow expansion
(Prospect is now commissioning many accessible pieces about law – and so anyone interested in the law in practice should bookmark this ‘Law’ page on Prospect’s new website.)
The two paragraphs in that judgment provide a judicial definition of the phrase ‘government policy’.
In essence, ‘government policy’ when used in a statute means a formal written statement of an established policy.
A ‘government policy’ is not thereby something which you can glean from oral ministerial statements in the house of commons, nor from official acts such as signing international conventions.
(Even though courts in other circumstances are able to refer to oral ministerial statements when construing legislation and, even though international treaties do not have direct effect in domestic law, courts can and do take notice of international obligations on certain questions.)
Nor is a ‘government policy’ something in flux – it has to be a final position.
Given that policies in most areas are as changing as the flow of a river, few policies will ever achieve this final happy state of legal grace.
The supreme court, in other words, defined ‘government policy’ as something which is like law – which of course is something judges and lawyers feel comfortable with.
And so just as courts, and the legal profession generally, tend to prefer people who are just like them, they now prefer policies that look just like laws.
Given that the Heathrow case was only about whether the government had taken account of its policy on climate change – not that it was bound by it but only that it had considered it – and given the government had admitted that it had not taken account of its policy – the supreme court judgment is remarkably and unduly restrictive.
(For what it is worth, I have no objection to Heathrow expansion, but those who do object are right to be irked at this judgment.)
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But as the supreme court decides that ‘government policy’ is akin to law, the government of the United Kingdom is treating laws as akin to guidance.
This is the ever-changing regime of the coronavirus regulations.
This area of law is now so complex that the ‘Hercules’ judge posited by the legal philosopher Ronald Dworkin who could consider every possible legal authority on a give point would struggle to understand his position under the regulations.
Few if any police officers and, in turn, few citizens know what is law and what is guidance any more.
Some have suggested that this fuzziness does not ultimately matter.
And that is the difference, of course, between guidance and law
— davidallengreen (@davidallengreen) December 1, 2020
The Coronavirus regulations work, more-or-less, as general guidance
But to work adequately as law, more precision is needed?
Criminal liability should not turn on provisions with such fuzzy edges?
Laws do need to be precise – especially criminal laws.
Criminal sanctions are life-changing events, and all citizens are entitled to know what the criminal law is so that they can regulate their own conduct accordingly.
(If you want to send a message, then use a carrier pigeon.)
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A similar problem is with that dreadful, dishonest phrase ‘enshrined in law’ – a fairly sure sign that there is idiocy afoot, as no laws in the United Kingdom can be ‘enshrined’.
The Brexit departure date was supposedly ‘enshrined in law’ – but was changed anyway.
The. commitment on international aid budget was ‘enshrined in law’ – but this is to be side-stepped.
And, no doubt, there were those who thought that the explicit mention in the Planning Act of the need for consideration of government policy on climate change meant something or other was ‘enshrined in law’.
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And then there is Brexit.
Brexit has followed a non-binding referendum, the result of which had no direct legal consequence.
But the referendum result was treated as if it were binding, in part because of what the government had said in pamphlet sent to every home during the campaign.
The government then triggered Article 50 – a highly significant legal act – but treated it as if it were a mere political gesture which did not need planning or thought as to the consequences.
Throughout Brexit the government has repeatedly toyed with illegality – in 2019 about forcing through a ‘no deal’ exit despite the will of parliament, and in 2020 with its illiberal and misconceived clauses in the Internal Markets Bill.
And, of course, the government has been found twice by the supreme court to be proposing or adopting an unlawful course of action.
The government itself often seems to have no clear view as to what is lawful and what is not, and what the difference is between law and non-law.
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We now have policy as law, law as policy, regulations as guidance, and guidance as regulations.
All of which is framed in normative ‘should’ and ‘should not’ language.
And all of it blurring into a general fuzzy haze.
But the distinctions between law and non-law remain important, despite this fog.
Perhaps we can one day revert to laws being treated as laws, guidance as guidance, and policy as policy – each fulfilling their respective useful but distinct functions.
And perhaps this objective can itself be enshrined in a law, or perhaps not.
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