Category: Constitutional and Legal History

Impeachment exists for a reason – the arguments for and against the second impeachment of Donald Trump

9th January 2021

‘Impeachment’ and ‘indictment’ are sister words, sharing the suffix ‘-ment’, and they describe two ways by which a person can be tried and then either convicted or acquitted.

One practical difference (at least in modern times) between the two is that impeachment is usually a political process, while a trial on indictment is a matter of criminal law.

And one effect of this distinction is that if a sitting president of the United States is immune from prosecution in the criminal courts, there is always the alternative route of impeachment.

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There are only eleven days before this presidential term ends, by automatic operation of law, on 20th January 2021.

The electoral college vote has been certified by congress and so there is no constitutional impediment (as far as this English lawyer is aware) to Joseph Biden becoming president on that day.

The question is whether Donald Trump should continue to be president in the meantime, given what he did and what happened on 6th January 2021.

As eleven days is such a short period, there is merit in the view that we should just wait it out – especially as he no longer has access to his Twitter platform (and the implications of such a ban was discussed on this blog yesterday) and the speaker of the house of representatives has has assurances on the president’s access to the nuclear codes.

And there is something also to be said that it would still be wrong, even now, to in effect override the result of the 2016 election – there was a democratic process and Trump as president was the result at the end of it.

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But.

Impeachment exists in the United States constitution for a reason.

And if a president inciting a mob to invade Congress so as to disrupt the certification of the electoral college vote (in what this blog avers was an attempted coup) does not fulfil the requirement of a high crime and misdemeanour, then it is difficult to imagine what else would do so.

Even with only eleven days to go, such an extraordinary event should not go unmarked and shrugged-off.

Impeachment and conviction can also disqualify Trump from holding office again.

(And so, in respect of the presidency, such disqualification would place Trump in the same position as if he had not been born in the United States.)

On this basis there is a strong – if not compelling – case that Trump should be impeached and convicted – both in terms of what has happened and of the future.

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Yet.

You do not sustainably solve a problem caused by hyper-partisanship with more partisanship.

And so any impeachment and conviction should ideally be on a genuinely non-partisan basis – and not just the Democratic bloc with a few Republicans.

Here the United States constitution is helpful – as a conviction by the senate has to be with the ‘concurrence of two thirds of the members present’.

Therefore there would have to be a substantial number of Republican senators in favour – but even if there were sixteen or so such Republican senators, it would still savour of partisanship, unless the Republican congressional leadership were also in favour of conviction.

This is not to say that there should not be an impeachment and conviction if enough Republican senators are in favour – sometimes you just have to do the right thing anyway – but a warning that such an exercise will not be the once-and-for-all end of the problem of Trump and Trumpism.

But, then again, there may not be any solution to that problem.

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There is another way that could be employed to displace Trump.

The twenty-fifth amendment provides an elaborate mechanism by which the vice president and members of the cabinet can declare that the president is unable to discharge the powers and duties of the office.

In these circumstances the vice president will become the acting president.

This approach has the attraction of being inherently non-partisan – as those making the decision are Republican politicians – and also the attraction of pragmatism – as it deftly yanks Trump away from exercising the powers of the president.

The problem, however, is that it is not – at least not directly – a mark against the encouragement of the attempted coup, and nor does it disqualify him from future office.

(Or Trump could – like Nixon – just resign in an attempt to pre-empt any of the above – but it is hard to imagine Trump bringing himself to sign that piece of paper.)

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Of course, whatever does happen will then look as if it were inevitable all along.

But whether or not Trump is impeached and convicted, there will still be two truths.

First, impeachment is there for a reason.

And second, what the president did on 6th January is such a reason.

*****

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The contest between violent populism and constitutionalism – and why it was not inevitable that yesterday’s attempted coup in the United States would fail

7th January 2021

Yesterday we watched, in real-time, an attempted coup in the United States.

Was it an attempted coup?

Some are already fussing about the ‘coup’ word – that it was merely a security violation, a mere matter of public order.

That view is not correct, for three reasons.

It was an attempted coup.

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First, an essential constitutional stage for a peaceful transfer of power was disrupted.

The constitutional stage – usually a formality – was the certification of the electoral college vote by congress.

It is this certification that would make the inauguration of a new president happen on 20 January 2021 by automatic operation of law.

No certification, no certainty of inauguration of a new president.

The disruption was the object and the effect of the disorder.

And until and unless the electoral college vote is certified then the 20 January inauguration is uncertain.

(The resumed Congress is still considering the electoral college votes as I type.)

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Second, the disruption was at the behest of the losing candidate – or, if you nod-along with plausible deniability, it was at least done so as to ensure he stayed in office.

It was disruption with the purpose of keeping a losing candidate in office.

And that candidate then praised these ‘special’ people for what they did.

Indeed, for the candidate’s daughter, these disruptors were ‘patriots’.

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And third, the disruption was forceful.

The mob forced their way in, and there are reports of fatalities and injuries.

This was not a peaceful protest or an exercise in civil disobedience.

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So a group (a) used force to (b) disrupt an essential constitutional process (c) at the behest of (or in the interests of) a politician – and if that disruption had succeeded, the inauguration of a new president would have been rendered uncertain.

That was an attempt at a coup.

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One significant detail in what happened yesterday was that the order to deploy the national guard came from the vice president, not the president.

As Sherlock Holmes would have said, this was a ‘curious incident‘.

This means that, left to the president, there would have been insufficient coercive power to disperse the mob.

As any A-level history student knows – or should know – for a rebellion to succeed requires not only rebels, but also a weakness in the regime that is being rebelled against.

Usually the weaknesses of the regime are not deliberate.

But here the president seems to have wanted to maximise the disruptive power of the mob.

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Another significant detail is how light-touch the policing was generally.

As a liberal, I am all in favour in light-touch policing.

The priority in such a situation should be public safety rather than the use of brutal – or lethal – force.

Yet the contrast with the policing of, say, the Black Lives Matter protest is stark – and telling.

If those who rioted yesterday had different colour skins then they would have been no doubt arrested or shot by police officers dressed up like Robocops.

Instead, there were hardly any arrests, and the rioters were just allowed to go home.

The photographs of some of the rioters – posing here and there in the Capitol – would be unthinkable if they were not white.

What happened yesterday was an expression of white privilege.

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This attempted coup is what you get when politicians play with the monster of populist nationalist authoritarianism.

So often in history, politicians believe they can tame this beast, and that the beast will serve them.

And those politicians usually end up being devoured by the creature.

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Today, it look like the attempt at a coup failed, and that the new president will be inaugurated on 20th January 2021.

Yesterday was a contest between constitutionalism and violent populism.

It was not inevitable that constitutionalism would always win this contest.

*****

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How the Trump experience both weakens and strengthens the case for a ‘written constitution’

6th January 2021

Imagine – just for the sake of this post – that the United States did not have a written constitution.

And now imagine that there had been a president like Donald Trump in office over the last four years who had pretty much done what Trump had done – every outrage, every attack on a minority, every sacking and every appointment, every manipulative or threatening telephone call, every high crime and misdemeanour, and so on.

There would be pundits who, when presented with such a catalogue of wrongful conduct, would assert confidently: ‘you see, this shows the need for a written constitution!’

But the thing is: there was a written constitution, and all these bad things happened anyway.

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Back in November 2020 – and more in hope than expectation – my column at Prospect magazine was entitled ‘Why we need to stop talking about a written constitution’.

My three main contentions were as follows.

First, a written constitution (that is, for the purpose of discussion, a codified constitution) is inherently neither a good nor a bad thing – and, indeed, such a constitution can either entrench or mask illiberalism or tyranny.

Accordingly, the knee-jerk demand for a written constitution at every constitutional trespass is misconceived, as such a constitution is not a panacea.

Second, in England (and, as presently constituted, the United Kingdom) there is no plausible path to entrenching any constitutional code, regardless of any theoretical attractions.

And third, the demands for a written constitution whenever there is a constitutional trespass are too often a substitute for attempting any actual constitutional improvement.

All a pundit will announce is ‘you see, this shows the need for a written constitution!’ and nothing else will be said.

And this insistence on an absolute ideal in any conversation about the constitution, instead of any practical suggestions, was and is (in my view) part of the problem.

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But.

Regardless of the (provocative) title of that column, there are times to revisit the debate about the merits and otherwise of a codified constitution.

This morning, the news reports from the United States are that the Democrats may have won both Georgia senate seats – and, if so, that would mean the Republicans will lose control of the senate.

Today the United States congress will meet and it is expected that the electoral college vote will be certified, meaning Donald Trump has lost and Joseph Biden has won.

The Trump presidency will thereby end, and the Biden presidency will begin, on 20 January 2021 by automatic operation of law.

These are welcome political developments for anyone opposed to the nasty authoritarian nationalist populism of Trump and his Republican supporters.

They have lost.

So surely: this shows the merits of a written constitution?

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Tony Benn famously posited the five questions of any democracy:

‘What power have you got?’

‘Where did you get it from?’

‘In whose interests do you use it?’

‘To whom are you accountable?’

‘How do we get rid of you?’

Of these five questions, the one which (in my view) has the most power is the last one: ‘How do we get rid of you?’

And applying this question to the Trump experience, the answer is stark and indeed unavoidable.

Donald Trump has been got rid of because of the provisions of the constitution of the United States.

As the events since his election defeat have shown, there is nothing he would not resort to doing so as to keep office.

In an extraordinary and significant intervention, all living former United States defense secretaries wrote in the Washington Post warned against the armed services being used to affect the result of elections.

The same newspaper also released a similarly extraordinary and significant telephone conversation where Donald Trump was placing illegitimate pressure on the Georgia secretary of state to overturn an election result.

The grim reality is that if Donald Trump could find a way to stay in office he would use it.

And if this grim reality is accepted, then it must also be conceded that the only reason he has not stayed in office is because there was something more powerful in his way.

And that thing which is more powerful is the (codified) constitution of the United States.

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Being, on one hand, critical of constitutional trespasses and abuses and, on the other hand, sceptical of the claims made for codified constitutions, has the merits of being an independent and (I hope) intellectually consistent point of view – even if it appears not to have the benefit of also being a popular one.

The Trump experience does not show (at least to me) the merits of a written constitution – every single bad thing that has happened over the last four years has happened despite there being a written constitution in place.

Every single one.

And this evidences, if not proves, that a written constitution is not a panacea – and those in favour of codification should stop pretending otherwise.

But.

Taking the last of Tony Benn’s questions seriously, it also has to be admitted that codification, in certain extreme situations, can help in getting rid of those in power who seek to abuse power.

(Of course, the tyrant can seek to amend such a constitutional provision – but at least it provides an additional high hurdle.)

The outstanding constitutional question, however is not about how Donald Trump was finally removed from office, but how he was allowed to get away with so many wrongs in the meantime?

And that is a far more difficult question for supporters of codification to answer.

*****

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The real origin of the European Union ‘supranationalist’ state – and why it still matters

4th January 2021

There is a view held by many in the United Kingdom that the European Union – and its predecessors – was not always a ‘supranational’ organisation.

That it was not always an entity which routinely transcended national boundaries.

The view is that it was once a mere innocent trading association and an international organisation – and that it was only after the United Kingdom joined in 1973 that it corrupted into a supranational organisation, which took rule-making and decision-making out of the hands of member states.

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Some will know this is not true and will point, say, to the Treaty of Rome of 1957, which established the European Economic Community, with its express determination that the treaty would lay the “foundations of an ever closer union among the peoples of Europe”.

Others will point to the 1960s caselaw of the European Court of Justice, such as the Costa v ENEL judgment of 1964 that made it as plain as a pikestaff (the lawyers’ equivalent of ‘absolutely clear’) that the domestic law of a member state was subordinate to the provisions of both the Treaty of Rome and the legal instruments made thereunder.

The United Kingdom thereby knew exactly what it was joining in 1973, and only a fool or knave could (and did) pretend otherwise.

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Yet the supranational essence of what the United Kingdom joined in 1973 was older than the Costa case of 1964, and was even older than the Treaty of Rome of 1957.

Here it is important that the United Kingdom did not just join the European Economic Community in 1973 but also another community, the deceptively unglamorous-sounding, and older, European Coal and Steel Community (ECSC) of 1952.

For some, the historical fact that the United Kingdom joined more than one community in 1973 is nothing more than an answer to a quiz question, or the reason why the European Communities Act 1973 employs the plural form of community.

But it was a lot more significant than that.

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To understand why, we have to go back to the years after the second world war and the problem of what should be done about Germany – in particular, the industrial areas of Rhineland and Saarland.

In 1944 the plan was to eliminate much of this industrial capacity; and in 1946 another plan was to give France control.

But by the late 1940s neither of these strident approaches seemed sustainable, especially in view of the need to not de-stabilise (what was then) West Germany, and so another approach was needed.

In 1950, a suggestion was made that there be a ‘high authority’ be put in place, overseeing French and German coal and steel production.

And by 1951 – with the Treaty of Paris – this idea had developed into an array of supervisory institutions – not only a high authority, but also an assembly, a council of ministers and – significantly – a dedicated court, with these further institutions balancing the executive power of the high authority.

The high authority furthermore had the power to issue decisions and recommendations binding the signatories – France, West Germany, Italy and the three Benelux countries (who were already heading towards economic unity).

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So we have in 1952 the establishment of the ECSC – with a supranational group of institutions in place and with the power to make law and adjudicate disputes, ensuring adherence to shared treaty obligations.

And the key element of this arrangement was not that it was aspirational – notwithstanding the heady language of integration that accompanied it – but that it was a solidly, deeply practical solution to a problem – of what should be done in respect of the post-war industrial relationship of France and Germany.

Just as, say the Good Friday Agreement used an imaginative cross-border approach to a thorny cross-border problem, so did the Treaty of Paris.

What the Spaak Report of 1956 and the Treaty of Rome of 1957 then did was to employ this supranational approach (with shared institutions and shared law-making) on wider economic questions, as it was seen as an approach that would work.

So when the United Kingdom joined the communities in 1973, the fact that it was joining a practical supranational enterprise had been – well – as plain as a pikestaff for over twenty years.

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What makes this ‘pre-history’ significant is that it is often the view of critics of the European Union that its supranational nature is somehow airy-fairy – that it is impractical and unrealistic.

And this is seen as a contrast to rugged Anglo-Saxon empiricism and practical common sense.

The reality is that the European Union, as with its predecessor organisations the European Economic Community and ECSC, regards its supranational nature as eminently practical, as was as embodying certain ideals of European unity.

That it works.

Supranationalism is thereby an approach which has worked since 1952 – and not just somehow inflicted by surprise on the united Kingdom after 1973.

It is not as if the debate is between an unrealistic pro-European Union camp and a realistic band of critics.

The problem that the United Kingdom had for a long time when a member of the European Union is that it rarely wanted to work within a supranational organisation.

Supranationalism was, it seemed, for other people.

The United Kingdom regarded supranationalism as a bug of the European Union, and not as a feature.

So the United Kingdom sought – and obtained – opt-out after opt-out, until 2015-16 when it sought a ‘re-negotiation’ only to find the European Union could and would shift no further.

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The supranationalism of the European Union is seventy years old.

The United Kingdom in its modern form as a collection of four nation states has only existed since 1922 – and so is a mere thirty years older than the first of the European communities. 

As this blog has previously averred, political unions come and go – and no political union can be seen as eternal.

And given that the supranationalism of the European Union is regarded as practical as well as an ideal, there is no inherent reason why the European Union will not last longer than the United Kingdom as a union of nation states.

*****

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The four ways the government of the United Kingdom is abusing and misusing the law – and the reason the government is getting away with it

2nd January 2021

Those with political power tend to want more power, and those who want more power will tend to then abuse it.

This is not a new observation, and it is perhaps one which can be made of most if not all human societies.

The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.

That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.

That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.

Those with political power will tend to try and get away with misusing or abusing it.

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The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.

And what is also striking is what has changed politically so as to enable them to be so open.

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First, the current government sought to give itself the power to break the law.

This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.

This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.

And then it was even supported by a majority of the house of commons.

The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.

But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

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Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.

This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.

 

From one perspective, these two proposals simply give formal effect to the practical position.

It has always been difficult to prosecute members of the armed services for war crimes.

And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).

And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.

The primary significance of these two current proposals is that the de facto positions are being made de jure.

The government believes (rightly) that it can legislate to this effect and get away with it.

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The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.

Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.

But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.

And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.

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The fourth way is the flip-side of the government seeking more legal power.

The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.

This can be done formally: by reducing the scope of judicial review or the reach of the laws of human rights and civil liberties, or by ‘ouster’ clauses, limiting the jurisdiction of the courts.

It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.

It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.

If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.

Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.

But again, what is different from before is the openness of these attempts.

There is no self-restraint.

The government is going to get away with as many of these barriers as it can.

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The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.

That is a problem no doubt as old as law and government itself.

What is remarkable is how the United Kingdom government is now so brazen about it.

The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.

The ‘libs’ are ‘owned’ and those with grins will clap and cheer.

In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.

What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.

People cared about such things – or at least those in government believed people cared.

But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

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And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.

It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.

And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).

This requires a shift – not in media and communications – but of politics and of political leadership.

Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.

And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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*****

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Comments are welcome, but they are pre-moderated.

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The Koch Snowflake of Brexit

New Year’s Day, 2021

Alan Moore, in the appendices to his graphic novel From Hell, uses Koch’s Snowflake to illustrate the historiography of his subject.

Moore’s point is that every book on his subject – either with new minor details or imaginative theories – cannot go beyond certain central facts. 

New details and new interpretations can be added infinitely – but the significant events were finite.

(On the Whitechapel murders, do click and buy here for Hallie Rubenhold’s outstanding book.)

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What Moore says can, of course, be said also of any group of connected historical events.

Take, for example, Brexit.

The central events of Brexit are: (1) the decision to hold a referendum on 23 June 2016; (2) the referendum result; (3) the Article 50 notification on 29 March 2017; (4) the extensions of the Article 50 period; (5) the United Kingdom departing the European Union on 31st January 2020; and (6) the end of the transition period yesterday, 31st December 2020.

These are the six tips of the Koch’s Snowflake of Brexit.

Now and in the future there will be far more detail: about the politics and the negotiations, about the content and effects of legal instruments; and about the impact of decisions made.

And there will be endless interpretations of what actually happened in these five or so eventful and exhausting years, and endless explanations of why it happened.

The amount of new detail on Brexit, and of new ‘takes’ about Brexit, is no doubt infinite.

But all the new details and all the new interpretations will not change the six central (procedural) facts of Brexit.

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None of those six events were inevitable, of course.

Each event could have happened differently, or even not happened at all.

But those were the events that did happen, and so they are the things which ultimately do need to be explained.

And, as this blog has previously averred, even if certain crucial events of Brexit had turned out differently, we could have ended up with just a different form and manner of Brexit.

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Now that this stage of Brexit is over – though the overall story of Brexit is far from being at an end, and may never end – it is time for me to finally complete the book I was asked to write on Brexit.

You can pre-order the book here – though the actual publication date will be later than April.

I had been waiting for the outcome of the transition period, and to discover whether there would be a relationship agreement, or not

I needed to know what would be the sixth tip of the Koch’s snowflake of Brexit.

The circumstances of the departure from the transition arrangements may explain more about else has happened since the 2016 referendum.

Of course, I could have told the story of Brexit with indifference to what happened at the end of the transition period – and there are many excellent books on Brexit already published.

But that was not the story I wanted to tell – or was able to tell in book form.

The story I want to tell as a book is how the United Kingdom went from a general election in 2015, where each major party was in support of European Union membership, to the United Kingdom leaving not only the European Union, but also (with the end of the transition period, and with special arrangements for Northern Ireland) the Single Market and Customs Union, in just five years.

People in the future will be struck by how much happened, so quickly.

(As some people are already.)

Brexit is the most extraordinary political-policy-legal-constitutional-economic group of connected events in the modern history of the United Kingdom.

It should be an interesting story to try to tell, and I hope for you to read.

A Happy New Year to all my readers and followers.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

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Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

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And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

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There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

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There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

The coded criticisms of the Attorney-General from both the Lord Chief Justice and the Court of Appeal

17th December 2020

The office of Attorney-General is at the very crossroads of law and politics.

As a lawyer, the Attorney-General is the government’s chief legal adviser and, by convention, is the head of the Bar of England and Wales.

They superintend the Crown Prosecution Service, and they can (and do) initiate contempt of court proceedings against the media.

A further role is that they can act in proceedings where they represent the public interest and/or the government.

They also can decide to refer cases to the court of appeal where it appears a criminal court has been ‘unduly lenient’ in sentencing.

These are all important – crucial -tasks and so it follows that these roles must be taken seriously.

The Attorney-General is, however, also a politician – usually a member of parliament but sometimes a peer – and one who attends the cabinet.

It is a job therefore where the holder has to wear two hats – or horsehair wigs.

And it is not an easy task even for senior politicians and experienced lawyers.

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The current Attorney-General is neither a senior politician nor an experienced lawyer.

This, of course, is not their fault – although some in this position if they were offered the office would not take it.

The current holder of the office, however, is going out of their way to politicise and thereby to discredit the legal side of the office.

This blog has previously set out how the current Attorney-General should have resigned when they unapologetically tweeted in respect of a case of a political ally who was then subject to a live police investigation.

That really was not what the superintendent of the Crown Prosecution Service should be doing.

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There is now a further example of how the current Attorney-General is undermining their office.

Here there are three texts that are of interest.

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First, here is a Daily Express article from 7th November 2020: Attorney General to appear at Andrew Harper’s killers appeal hearing next week.

In the body of that article, under the byline of a political editor, was the following:

‘A friend of Ms Braverman’s told the Sunday Express:

‘“She was met with strong opposition from civil servants to pursue this case but she held firm and has done the right thing.

‘“She made it clear she wants to be there to underline how important this issue is to the ‘government and how seriously it takes this case.

“If the judges uphold the original sentences then she will have still done the right thing and it will be another example of wet, liberal judges being soft on criminals.”’

As is widely known, ‘friend’ is a code in political journalism for either the politician themselves or someone speaking on their behalf, such as a special adviser.

As far as I am aware, this quote has not been disavowed by the Attorney-General.

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Second, here is a speech on sentencing by the Lord Chief Justice made on 9th December 2020.

Here are two paragraphs from this informative and accessible speech (asterisk and emphasis added):

‘Were the mythical alien to arrive on earth and, I grant you yet more improbably, take an interest in sentencing in England and Wales by reading the newspapers and dipping into the more noisy parts of on-line media, it would soon gain the impression that sentencing had got softer in recent years. It would read about “wet, liberal judges being soft on criminals” (*) and wonder why criminals convicted of serious offences were getting more lenient sentences than they used to. Then our alien visitor might seek some other sources of information, and if possessed of a brow it might become furrowed.

‘There is a difficulty with this narrative. It is a myth.’

The Lord Chief Justice then proceeds in his speech to demonstrate how sentencing has certainly not got softer.

But who was the judge quoting about “wet, liberal judges being soft on criminals” ?

The quotation is footnoted (where I have inserted the asterisk), and the footnote reads:

‘Sunday Express 8 November 2020, quoting a source.’

The Lord Chief Justice is here publicly dismissing – perhaps even deriding – the ‘friend’ of the Attorney-General who in turn is describing the Attorney-General’s motivation for intervening in a criminal sentencing case.

For the head of the judiciary to be doing this openly to the government’s chief legal adviser and holder of the ancient office of Attorney-General is an extraordinary public intervention.

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And now we turn to the Court of Appeal judgment in respect of the sentencing of those who killed the police constable Andrew Harper.

The facts of the case are horrific.

Three were convicted of manslaughter, though a jury acquitted them of murder.

And so the three were sentences in accordance with the guidelines for manslaughter.

The Attorney-General, as the Daily Express article describes, exercised one of their powers and referred the sentences to the court of appeal on the basis of the sentences being ‘unduly lenient’.

The Attorney-General then – oddly for a barrister with no substantial criminal law background – appeared personally at the hearing.

There are three paragraphs of the judgment of interest in respect of the contribution and role of the Attorney-General.

Paragraph 57:

‘In her initial remarks, the Attorney General rehearsed some of the facts and said that the sentences have caused widespread public concern. She outlined four points, about which Mr Little QC then made submissions.’

Here the court are not even deigning to describe the Attorney-General’s contribution as submissions – a ‘submission’ is something one submits to the court for consideration – but merely as remarks.

(The Supreme Court adopted a similar remarks/submission distinction when a former Attorney-General appeared (out of his depth) at the first Miller case: ‘Following opening remarks made by HM Attorney General, Mr Eadie QC in his submissions on behalf of the Secretary of State, did not challenge much if any of the factual basis of these assertions…’ – paragraph 57 here.)

We now turn to the submission that were made, if not personally by the Attorney-General, but by another barrister on their behalf.

Paragraph 83 (emphasis added):

As to the length of the custodial terms, we note a striking feature of the submissions. When applications are made by the Attorney General for leave to refer to this court sentences which are said to be unduly lenient, it is frequently on the basis that the judge fell into error by failing to follow a relevant guideline. In this case, however, the argument advanced by the Attorney is that the sentence of Long, and therefore the sentences on Bowers and Cole, were unduly lenient because the judge erred in failing to depart from the relevant guideline.

Just as political journalists have their codes, so too do judges.

And to describe as position as ‘striking’ is to say that it is barking – and the rest of the paragraph explains why.

In essence: unduly lenient sentences are those which depart from the guidelines and not those made in accordance with them.

This is then followed by paragraph 84 (again emphasis added):

‘That is, to say the least, an unusual submission. It involves the proposition that in the circumstances of this case, a sentence within the guideline offence range was not within the range properly open to the judge, who was instead required to pass a sentence outside that range. We think it regrettable that, in advancing that submission, the structure and ambit of the guideline were not addressed. Nor was any sufficient explanation given why it is contended that the judge was not merely entitled to depart from the guideline but positively required to do so.’

Here ‘unusual’ means, in effect, beyond barking – and again the rest of the paragraph sets out why.

These are obvious points and would have been plain to government lawyers.

But as ‘friend’ of the Attorney General said, ‘[s]he was met with strong opposition from civil servants to pursue this case’.

And paragraphs 83 and 84 set out why.

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Taking these three texts together we can see that the judiciary are alert to the motivations of the Attorney-General and are resistant to the attempts to politicise the office, and that the judiciary will be unafraid to reject ‘striking’ and ‘unusual’ submissions made on behalf of the Attorney-General.

The judges are not stupid or unworldly – they know exactly the import of coded criticisms in public speeches and judgments.

The Attorney-General may be sending signals, but so are the judges.

*

But this Attorney-General will not care.

The political job is done – and one can imagine the claps and cheers of the ‘friend’ quoted in the Daily Express article. 

She took on the ‘wet, liberal judges being soft on criminals’.

But this political job has been done at a cost.

Although a politician, the Attorney-General is entrusted with highly important decisions in respect of not only referring ‘unduly lenient’ sentences, but also in respect of many other legal matters, from contempt of court to the operation of the crown prosecution service.

But the conduct of the current Attorney-General is such that their credibility as a decision-maker capable of making such decisions on the appropriate basis is open to doubt.

This quick win for a political ambitious Attorney General is at the cost of the standing of their office.

The Attorney-General is weaponising her legal responsibilities for political purposes.

This is a remarkable, striking and unusual predicament.

And given that the Attorney-General is not only doing this recklessly but with apparent enthusiasm means that there is no reason for anyone watching it happen in real time to be unduly lenient.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

Or become a Patreon subscriber.

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*****

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.

 

 

 

European Union law and the United Kingdom – an obituary

14th December 2020

Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.

Please go over there to have a read – and I just want to develop and add some points here.

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European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).

By ‘radical’ I mean (literally) that it went to the root of things.

The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.

The impact of European Union was also to how one thought about law – and about policy and politics.

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First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.

This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.

And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.

And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.

As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.

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Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.

(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)

In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.

There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.

European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.

The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.

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Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.

And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.

This was a recurring mistake for United Kingdom politicians.

For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.

But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.

There were, however, real limits to what the European Union could agree to, at least without treaty changes.

And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.

The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.

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You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.

Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).

And this is partly because my own ultimate view on Brexit is ambivalent.

In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.

It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.

(And it did not.)

But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.

(And it has not been.)

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The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.

It is not going to be a neat clean break.

And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.

The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.

 Its influence, however, will continue for decades.

The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.

*****

This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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Hyper-partisanship and constitutionalism

13th December 2020

Consider three political situations.

The first is where constitutional issues play no real part in day-to-day politics.

Here issues about the economy, law and order, health, social welfare, the environment, defence and so on dominate both party politics and media coverage.

The second is where a discrete constitutional issue becomes part of the political debate.

For example in the United Kingdom, this could be devolution, or House of Lords reform, or proportional representation.

That issue will tend to be addressed though normal party politics, and such issues do come and go from time to time.

And there is a third category, where constitutional issues are themselves gamed for party issues.

This is what is happening in the United States currently, and to a lesser extent in the United Kingdom.

In the United States, for example, there is the extraordinary attempt by Republicans in Congress and many states to overturn the result of the 2020 presidential election.

In the United Kingdom, for example, the government is politically exploiting attacks on the courts, on lawyers and on the very ability of judiciary to hold the executive to account.

I have many times said that it is a bad thing for constitutional law to be exciting.

If contesting the rules of the game themselves becomes the focus then the game itself is subverted.

What can be fairly called ‘hyper-partisanship’ – which goes far beyond the normal knockabout of party politics – is a dangerous thing for constitutions and constitutionalism.

In any modern political system an immense amount depends on legitimacy and being governed by consent.

A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation – and, in any case, many totalitarian states use propaganda, symbolism and vilification of the ‘other’ to manufacture legitimacy and consent.

Remove that shared sense of legitimacy of institutions by having a permanent revolution and constitutional culture war and then the state will find it more difficult to govern.

Why should anyone accept the decisions of a court, or of a legislature, or even of an electorate, when the legitimacy of each is a partisan issue?

There is certainly a need for constitutional reforms from time to time, but this should be on the basis of making various institutions and practices more legitimate not less.

Constitutional law and constitutional issues are far too exciting, and this is a bad thing.

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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

***

If you value the free-to-read and independent legal and policy commentary both at this blog and at my Twitter account please do support through the Paypal box above.

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****

Comments are welcome, but they are pre-moderated.

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