Category: Whitehall

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal

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This is a slightly edited version of the post which appeared on my Substack.

A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability?

8th March 2024

Yesterday over at Prospect I did a post on the curious situation of the Michelle Donelan libel settlement. Please click and read the post here.

Here I want to set out some further thoughts on what is, in one way, a remarkable law and policy news story – and what was, in another way, an accident waiting to happen given the practices now common in politics and media.

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This is her statement:

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Donelan is a Secretary of State and a Member of Parliament – and, as such, she can say and publish whatever she wants in a libel-safe way, as long as she goes about it sensibly and in the right way. The law of the United Kingdom is configured so as to allow ministers and parliamentarians an “absolute privilege” for what they say in parliament. The law is further configured so that in official correspondence, defamatory things can be freely stated (with “qualified privilege”) as long as the recipient has an interest in receiving the information, and it is said in good faith and without malice.

This configuration can be seen as unfair and one-sided – especially as, with qualified privilege, the onus is on the complainant to provide there was malice and bad faith. But this is how, in this context, the overall balance between free expression and reputation rights has been set in the public interest.

All this means that if Donelan, or any other minister, had genuine concerns about the appointments to a board of an agency which their department supervised, those concerns can be expressed and received, and it would be hard-to-impossible for any person mentioned to actually bring a claim in libel.

And so it is pretty remarkable for a minister to (purport to) do this and end up facing personal liability for libel – and to also expose their department to liability for libel.

Something wrong happened, and it needs explanaing.

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What converted this into a situation where the minister and her department became exposed to legal liability was the decision by the minister to tweet a copy of the letter stating these concerns about specific individuals.

At a stroke (of the keypad) the qualified privilege that would otherwise have protected that communication was lost. The thousands of people to whom the letter was now published had no proper interest in the contents.

And as the key accusations had not been investigated with any duly diligent checks, the publication of the letter on Twitter also could not be said to be in the public interest, which meant that an alternative defence to libel was also not available.

So not only was it a very strange thing for the minister to do, it was legally reckless.

Since the Prospect piece was written and published, it has been reported in the news that the minister had had advice before the letter was tweeted.

If this is correct, and the advice was legal advice (and not, say, a non-legal adviser nodding along), then either:

(a) the minister went against that legal advice; or

(b) the minister was given the wrong legal advice.

If the latter, then the decision to publish the letter on Twitter does not become any the less strange as an act, but the minister can at least say that she was not properly warned of the legal consequences. (And the latter is perhaps possible if the government lawyer concerned was not a media law specialist, though the law here is pretty straightforward and basic.)

But, in any case, no competent lawyer with a knowledge of media law could have advised that publishing the letter on Twitter would be covered by qualified (or absolute) privilege.

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From looking closely at information in the public domain, it would appear that the lawyers for the complainant (and she will not be named in this post, as she has suffered enough) sent a letter before claim to Donelan in her personal capacity.

(This can be inferred because the letter complained of was tweeted from her personal Twitter account, and the retraction was also tweeted from her personal account – hence the legal threat was made against her personally.)

But.

It would seem that the government immediately took the claim as meaning the department would be on the line, and so the government legal service acted for Donelan and not any private law firm.

(This can be inferred from the government statement “This [settlement] was subject to all the usual cross-government processes and aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”  The reasoning for this inference is in the Prospect piece.)

Normally the government would not need to do this.

Indeed, given the rules on public expenditure, the government should not have done this – unless the government believed itself to be exposed to potential liability.

But something about how the claim was framed put the frighteners on the government, and the government legal service jumped in.

Yesterday in Prospect I averred there were two possible reasons for the government dealing with the claim, but recent news reports now suggest a third.

The first is that the government saw the tweet as being connected to her role as Secretary of State – it was part of her departmental work and, although the tweet was from her personal Twitter account, it should be treated as an official communication.

The second is that although the tweet was in her personal capacity, the litigation would drag in the department in a costly and time-consuming way, and this litigation could also develop so as to expose the department to direct legal liability about the letter to the agency. In particular, the department may be anxious that “disclosure” of internal documents could undermine any qualified privilege it had in the letter to the agency.

The third – further – reason is that the department gave the minister duff legal advice saying that the letter was safe to publish on her personal Twitter account.

Whatever the reason – whether it be one of the above, or a mix of them, or a reason not currently obvious – a decision was made that this was the department’s problem, and not just the minister’s unfortunate personal political predicament. And this decision presumably was made by a senior official under government accounting rules.

That this is the position is the only natural meaning of the government’s statement: “This [settlement] […] aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”

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Once the government realised it was on the libel hook then it was sensible for the department to close down this litigation as soon as possible.

It appears that the litigation did even not get beyond pre-action correspondence. It seems no claim was issued at the High Court or served on Donelan.

The government legal service seems not to have indulged in any tiresome litigation posturing along the lines of “as taxpayers money is involved we really would need to see the case properly set out in served particulars of claim” or any other similar nonsense.

Government lawyers needed to settle this case, and fast.

There was a problem here.

Fortunately for the government, it was also in the interests of the complainant to settle this matter quickly.

A retraction was offered, with damages and costs, and this suited the complainant.

Had the complainant pressed on, there is little doubt she could have secured an apology – and the word “sorry” was not in the published retraction.

(Given the news coverage, the minister may have well apologised – as it has been widely but incorrectly reported as an apology.)

In the circumstances, both sides could be satisfied with this outcome – though one suspects there was a rather loud “Phew!” in Whitehall when the settlement was reached.

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For a government minister to visit potential legal liability on their department is remarkable, given how the law generally protects ministerial statements and communications. This required a special fact situation.

But.

This sort of thing was also an accident waiting to happen.

There is a information economy in and about Westminster – where ministers and special advisers and lobbyists and researchers and pressure groups and journalists are constantly swapping material between themselves (and sometimes those involved are wearing more than one hat).

It was perhaps only a matter of time before an example of this spilled into official correspondence, and then was tweeted from a minister’s social media account.

And when it happens there can be legal consequences.

Here it was the law of libel – but one can conceive of situations where other areas of law could be engaged, such as misfeasance in public office.

For not only is the law configured so as to protect ministers and politicians in some situations, it also configured so as to impose immense legal liabilities in others.

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Disclosure: I was a government lawyer about twenty years ago.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Many thanks to those of you who support my blogging: I have had to have a short period away from this blog (and pretty much social media generally), but I am now refreshed and regular blogging should now resume.

Telling the story of how the “serious disruption” public order statutory instrument was passed

14th June 2023

Here is a story about law-making told in different ways.

The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.

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By way of background

A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.

Statutory instruments are, in effect, executive-made legislation.  They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.

Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.

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The government’s version

The first way of telling the story is from the government’s perspective.

The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.

At the end of the debate there was a contested vote, which the government won:The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.

Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:

The vote (against the government) was as follows:

The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:

And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.

Told this way, the story is about how laws can and are made by such a democratic legislative process

Nothing to see here.

But.

But but but.

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The constitutionalist version

There is another way of telling this story.

This account starts with the Public Order Act 2023 when it was a bill before parliament.

At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.

The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.

As a House of Lords committee noted:

The Home Office could not answer these basic questions:For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.

What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.

Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.

Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.

Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.

Plenty to see here.

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The story may continue

Yet this is not how the story (told in either way) may end.

The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.

This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.

And that is what the group Liberty is doing, and its letter before claim is here.

In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.

Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.

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The moral of the story?

The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.

A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.

This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.

There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.

But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.

And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.

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How the Covid Inquiry may have set an elegant spring-trap for the Cabinet Office

31st May 2023

The notice issued by the `Covid Inquiry yesterday was a small yet delicious work of procedural art that should be appreciated by connoisseurs of the genre of formal documents.

But to understand why requires some context.

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From the content of documents now published at the Covid Inquiry website we can work out the following:-

On 3 February 2023 the Inquiry sent a Rule 9 request for information to the Cabinet Office.

On 30 March 2023 and 18 April 2023 the Cabinet Office set out in correspondence to the Inquiry that it had “jurisdictional objections” to the request.

On 28 April 2023 the Inquiry issued a Section 21 Notice demanding that certain information be disclosed to the Inquiry.

The Notice contained a demand for four lots of evidence, three of which were in respect of former Prime Minister Boris Johnson.

Those three lots of Johnsonian information were:

The response of the Cabinet Office to this formal notice was to instruct the government’s most senior external lawyer to make a 10-page legal(istic) application to object to the notice, dated 15 May 2023.

The essence of the application is that it was outside the legal powers of the Inquiry to request what the Cabinet Office dubbed “unambiguously irrelevant” material and that it was for the Cabinet Office to determine what was “unambiguously irrelevant”.

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The Application also contained this interesting passage (emphasis added):

“The inclusion of Mr Johnson’s diaries and notebooks in the Notice is not readily understood by the Cabinet Office, as that particular material had not been the subject of any discussion or purported concern on the part of the Inquiry in correspondence, which was focussed upon WhatsApp messages. No explanation for the specific choice of material in the Notice was set out in either the Notice or the Letter.”

It would thereby appear that the request for the diaries and notebooks was new, and that it was not thereby in the Rule 9 Request of 3 February 2023.

Nonetheless, the Application states firmly (emphasis added):

“It is equally unsurprising that WhatsApp threads may contain personal information of a kind which could have no conceivable bearing on the issues being considered by the Inquiry, including personal information of junior officials. All of these points apply with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”

The indication from the emphasised text is that the Cabinet Office could speak to the content of the notebooks, which in turn would suggest that the Cabinet Office had (or had access to) the notebooks.

Interestingly, that last point only refers to the notebooks, and not to the diaries.

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The Application is a full-out challenge to the jurisdiction of the Inquiry in issuing the notice, of which only the third part is to do with privacy.

Here the government mentions Article 8 of the ECHR:

This reliance on Article 8 will amuse those who aware of the loud complaints made by ministers about others relying on Article 8 grounds when faced with exercises of state power.

The Application as a whole reads as if it is a prelude to litigation: setting out the public law grounds for a judicial review of the Inquiry.

It is less of an Application, and more of a letter before action.

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The Application was met with a short ruling by the Inquiry chair on 22 May 2023, which set out that the Inquiry had wide terms of reference and that the question of relevance is the Inquiry to decide, and not the Cabinet Office.

The chair also explained why she asked for the notebooks:

“The documents that are required to be produced are specified in some detail in the Annexes to the Notice […} Mr Johnson’s diaries for the same period, together with notebooks that I have been told contain his contemporaneous notes. […]

“By the date of the Notice, the Inquiry had received  […] exhibited to the draft statements of other Cabinet Office witness statements, redacted extracts from the diary of Mr Johnson. Whilst it is correct that Mr Johnson’s notebooks had not been produced to the Inquiry in redacted form at the date of the Notice, disclosure of these documents was due on the dates provided for in the Notice and the Cabinet Office had already stated that they would be redacted for relevance.”

What it looks like is that the chair used the issuing of a notice that she was going to issue anyway to formally request the notebooks and the diaries, parts of which were arriving in other forms.

The chair is also saying that she knows the Cabinet Office must have access to the Johnson diaries, else parts of those diaries would not be exhibited to witness statements prepared by the Cabinet Office.

She added:

“The essential thrust of the application therefore appears to be that this assessment is irrational, and thus there was no power to issue the Notice, because the Cabinet Office has reviewed the documents for itself and has concluded that those parts which are sought to be withheld from the Inquiry are “unambiguously irrelevant”.  I do not accept that my assessment was irrational.”

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Now it was back to the Cabinet Office.

What were they to do?

The date now was now Monday 22 May 2023, and the Inquiry had set a deadline of Tuesday 30th May 2023 (a day following a bank holiday weekend).

Would the Cabinet Office comply?

Would they they bring a judicial review?

Would they not comply and wait to see if the Inquiry brought enforcement action?

Tick tock.

And late on Friday – unannounced – the Cabinet Office sent another letter to the Inquiry.

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In a notice in response the chair noted: “Shortly after close of business on Friday 26 May, the Inquiry received correspondence from the Government Legal Department on behalf of the Cabinet Office, raising two matters for the first time.”

Government lawyers are usually very good with deadlines – and so it would seem to me that for correspondence to be sent so late on a Friday (“after close of business”) then there was a lot of (ahem) internal discussion going on and escalations to senior people to sign things off.

This late-on-Friday letter raised two points.

First, and optimistically, for an extension until a week Monday.

And second, “the Inquiry was informed that the Cabinet Office does not have in its possession either Mr Johnson’s WhatsApp messages or Mr Johnson’s notebooks, as sought in the original section 21 Notice.”

What?

You will recall that these WhatsApp messages and notebooks were the ones that the Cabinet Office had confidently said, only day before, in the Application were covered by its reasoning:

“All of these points apply with similar force and obviousness to Mr Johnson’s notebooks containing contemporaneous notes on all manner of subjects which he was, as Prime Minister, required to consider.”

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Oh dear.

It is (ahem) difficult to understand how the Cabinet Office could be so strident in its Application in saying that the WhatsApp messages and notebooks contained “unambiguously irrelevant” material and then to admit that, well, the Cabinet Office did not actually possess those messages and notebooks.

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Well.

The chair of the Inquiry is no fool, and her notice first thing on Tuesday in response is a fascinating exercise in procedural power.

First, she grants an extension – not the extension which was being sought, but one just long enough to serve what follows.

The extension is of two days, until 1 June 2023.

Second, she says she will accept that the Cabinet Office does not have under its custody or control the requested materials only there is a full detailed explanation for why this is so – and that this explanation will need to be attested to by officials with a signed statement of truth.

That is, under pain of perjury.

This is hardball.

And two days is just long enough for such an explanation to be put together, but not to do much else.

It is worth reading the conditions in full:

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The impression one gets from this is that there is something which is not quite right with what the Inquiry has been told by the Cabinet Office in correspondence in response to the original Rule 9 Request.

The requirement for a signed statement of truth is significant – and you may recall that the Miller II case on the prorogation of parliament was lost by the government because nobody was willing to provide a statement of truth as to the actual reasons for the prorogation.

The two-day extension, plus the requirement for signed statements of truth, has the elegance of a spring-trap.

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There are two further pieces of information.

First, the Cabinet Office issued a statement yesterday, which was widely republished:

“A Cabinet Office spokesperson said:

“We are fully committed to our obligations to the Covid-19 Inquiry. As such, the Cabinet Office alone has already provided upwards of 55,000 documents, 24 personal witness statements, eight corporate statements and extensive time and effort has gone into assisting the Inquiry fulsomely over the last 11 months.

“However, we are firmly of the view that the Inquiry does not have the power to request unambiguously irrelevant information that is beyond the scope of this investigation. This includes the WhatsApp messages of Government employees’ which are not about work but instead are entirely personal and relate to their private lives.”

Curiously, there is no mention here of the Johnsonian diaries or notebooks, even though in the Application stated the same arguments “apply with similar force and obviousness”.

It is also understood that the Cabinet office’s position is that the Inquiry does not have the power to compel the Government to disclose unambiguously irrelevant material given the potential adverse impacts on the process around formulation of government policy in future and the privacy of the individuals involved, and that to release this information would set a harmful precedent. 

The Cabinet Office are also said to be concerned that the information the Inquiry is asking for includes purely personal information, as people working for Government have a right to a private life.

Additionally, it is understood that the Cabinet Office maintains that the judgement on what constitutes “relevant material” and what should be redacted is made by legal counsel, overseen by a KC, not the individual witnesses or Government officials.

But.

What is not understood is how any of this deals with the content of the spring-trap: did the Cabinet Office have the documents or not?

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The second piece of information is in a news report in Bloomberg, which is summarised in the tweets of the reporter:

It is not clear the extent to which this is formal legal advice, as it seems to be more about general (non-legal) constitutional points.

In particular, a “breach of Cabinet collective responsibility” is a comment about a political convention, and not a rule of law.

From what Bloomberg reports, it seems the lawyer is giving sensible practical steers on the constitutional framework for resisting the requests, which is more practical than strictly legal advice.

It is exactly the sort of advice which a government that took confidentiality seriously should be concerned at being disclosed.

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What will happen next?

Will the Cabinet officials sign the statements of truth, under pain of perjury, detailing exactly what has happened to the requested information?

Is the government seriously going to bring a Human Rights claim on the basis of Article 8?

Will the Cabinet office blink?  Or will the Covid Inquiry blink?

Whatever happens will be significant, for as this blog has averred before, the outcome of this contest will be fundamental to the ability of the Inquiry to properly look at the government’s role in the pandemic.

And, in this particular instance, it should be for the Inquiry to decided what is relevant.

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Disclosure: I am a former central government lawyer.

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Why the appointment of Sue Gray is both a mistake and not a mistake

6th March 2023

The senior civil servant Sue Gray has been appointed by the leader of the opposition as his chief of staff.

This, as you no doubt are aware, is the stuff of political controversy – not least because of Gray’s famous (infamous?) role in compiling the Partygate internal report.

From a policy perspective, however, is this controversial appointment a mistake?

Tactically and politically the appointment is an error.

It raises questions of propriety and timing for the leader of the opposition, and it opens up the  question of whether her role in the Partygate report was politically motivated.

It also distracts from any focus on the wrongdoing of Boris Johnson over Partygate.

But.

Strategically and governmentally the appointment is sensible.

If the leader of the opposition becomes prime minister then he needs aides who (genuinely) know the Whitehall machine, who are used the glare of the media, and who are unafraid of speaking truth to power, or at least to Prime Ministers.

As such Gray’s appointment can be compared to that of Margaret Thatcher’s aides, the recently deceased Bernard Ingham and Charles Powell, and Tony Blair’s appointment of Jonathan Powell.

Such appointments are a mark of taking government and policy seriously.

The timing of the appointment is dreadful, and it may be politically counterproductive in March 2023, but it may look less problematic if Labour win the next general election.

And in the run up to the next election, it means the party (currently) most likely to win that election will have guidance which enable it to better prepare for the realities of implementing manifesto promises and translating policy into practice.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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