Steven Barrett | The Spectator columnists & writers

No, Boris Johnson didn’t mislead parliament

The PM did not lie to the House of Commons. Now, ordinarily what goes on inside the House of Commons is not for lawyers like me to adjudicate. The 1688 Bill of Rights says ‘Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court’. So normally I would stay silent. But we are facing a very interesting constitutional crisis. Because whether someone lies is really a legal question. It has a test as law. A lie is defined in the dictionary as a factual statement that is untrue and made with intent to deceive. In the leading case of R v Lucas [1981] Q.B. 720 the courts found a lie must be ‘deliberate’. The PM could not possibly have lied by telling the house that he believed the Covid laws were followed – not unless he deliberately knew the law was against him.

Has the Good Law Project been dealt an existential blow?

There seems to be a degree of confusion that surrounds some court cases these days. Sadly this has proven true of the latest case by the Good Law Project, which has challenged the hiring of Dido Harding as chair of Test and Trace in the courts. This afternoon the High Court released its judgment on the case. First some were confused that the decision represented a ‘blow’ against the Prime Minister. It did not. The court stated clearly that the PM was wrongly sued. In paragraph 135 it said: ‘We agree and indeed it appears to be common ground that only the Secretary of State is the relevant Defendant for the purpose of any remedy to be granted’ – which means the PM should not have been sued. Next there was some confusion that the Good Law Project had ‘won’.

The Colston verdict is the triumph of values, not law

The verdict is in on the case of the Colston statue in Bristol. Not guilty. Every one of the accused is innocent. And I mean that: everyone is innocent until proven guilty. If found not guilty, they must — at all times — have retained their innocence. But something feels wrong. Eminent lawyers have described the verdict as both absurd and perverse. In the UK we ‘relate’ to law. We aren’t taught it in schools. Our parents, teachers, instead introduce it to us by osmosis. We have a feel for it, a grasp of it. We might have felt we knew what criminal damage was, and we might have felt that pulling down a statue was wrong. That turns out to be an error. It seems that there is a defence to any charge of criminal damage if you ‘genuinely believe the owner consents to you doing the damage’.

No, the Downing Street party probably didn’t break the law

Was the law broken at the Downing Street Christmas party last year? A video has now been leaked showing a No. 10 advisor joking about the festivities. Yet this incident, which is currently dominating the news, almost certainly did not break the law – which is why the story is so perplexing. During the course of the pandemic, the Covid laws have changed regularly. Yet one thing has stayed largely consistent: the rules have always treated people and places differently. Despite what some might claim, there's nothing sinister in this. And it's for this reason that the 'cheese and wine' gathering – which the PM has said did not take place – probably isn't a matter for the police. The starting point in the Covid rules should be section 73 of the Public Health (Control of Disease) Act 1984.

Is the European Court of Justice about to unravel?

For the European Union to work, its law must be supreme. All member states have courts, but those courts submit to the EU’s own court, the European Court of Justice (the ECJ). The UK knew and accepted this. By the time the Lisbon Treaty was signed, everybody knew this. That is why Poland and Germany are both legally wrong to have denied that EU law is supreme and declared that their national courts have the final say. Legally speaking, both have done a unilateral declaration of independence: taken back control. An important article examining the crisis has laid this bare. While it’s quite technical (the EU’s power lies in these boring-but-powerful rules) it’s worth understanding the depth of what is now an EU rule of law crisis.

The ECJ’s credibility is in tatters

Is the European Court of Justice (ECJ) a properly independent court? The damning verdict of two respected EU law academics on an episode involving the ECJ suggests it is not. This debacle also undermines the EU's legal criticisms of Hungary and Poland – and raises worrying questions about how the Northern Ireland Protocol will be enforced. The sorry saga dates back to the aftermath of the Brexit vote, when one of the ECJ's 11 advocates general, Eleanor Sharpston, was sacked. Sharpston had every legal right to carry on. After all, ‘she’ didn’t Brexit, the UK did; she also has EU citizenship and is an outstanding EU lawyer. Unsurprisingly she took legal action to prevent her summary dismissal and to stop the appointment of a new advocate general.

The EU’s rule of law crisis lets Britain change the Brexit deal

Following Germany’s example, courts in Poland have rejected the supremacy of EU law. That is the principle that, if you join the EU, you give away part of your sovereignty to it and you have to do what the European Court says. I have written before about the precedent set in Germany. Both states now say that their constitution trumps EU law and the rulings of the EU courts. Legally speaking, this declaration is simply untrue – as should be known to anybody who read and signed the Lisbon Treaty, joining the EU. The United Kingdom always upheld this legal truth. If we wanted our sovereignty back, we had to leave the EU. That was a political choice and isn’t therefore something I write about. It is fair to also highlight that the EU is far from blameless.

Lord Sumption was right to quit the Supreme Court

There used to be a saying: ‘never discuss religion or politics’. That was just a societal rule, a prudent tip for an enjoyable evening. But that principle is also in our constitution. This is a fact recognised by the Supreme Court — and particularly by Lord Sumption — earlier this year. Sharing your political opinions is, for some people, a breach of constitutional obligations. The UK is odd, some think, in having the constitution that we do. Far younger states with bright and shiny constitutions, written in single documents, seem to look down on our frumpy older version. But if we are playing constitutional top trumps, the UK scores near the top — longevity, democracy, universality, rule of law and (perhaps most crucially) fewest own citizens murdered by the state.

The rule of law is breaking down in the EU

There are 27 member states in the EU. Two have now declared they are not bound by EU law. Based on the law as set out in the treaty each member state signs when it joins the EU, that means both countries are in breach of international law. The first country in breach of international law was Germany. I wrote about this last year. The German court said it wasn’t bound by EU law because the EU had no power to act on the legality of the ECB’s bond-buying programme during the pandemic. The Germans said ‘you can’t answer this question, so we will’. Crucially, the EU disagreed and the European court gave a judgment on the legality of the bonds. At this point the German court overruled the EU. The Germans said the ECJ was ‘ultra vires’ – outside its powers.

The new mask regime: a legal guide

Mask wearing has been compelled by law. Very soon the government has said that compulsion will end (in England at least). There is little in life more terrifying than being British and put in a new social situation without clear rules. So while we contemplate the dread of inevitably offending someone no matter what we do, it might be helpful to clarify what this means from the point of view of the law. The first and most important point is that just because the government stops making mask wearing a legal requirement, that doesn’t mean that mask wearing stops being a legal requirement. Why? Because our legal system gives lots of powers to people other than government. Most of the rules or obligations you follow in any given day won’t flow directly from government.

How Germany’s law-breaking undermined the EU

Well over a year ago I wrote about how Germany had broken both the EU treaty and so international law, when its constitutional court ruled against the ECB’s bond-buying programme during the pandemic. Germany remains in breach of that law and has not been punished by the EU. The breach is, I think, simple to understand: 27 members sign up to a club and agree to be bound by its rules. If one member says ‘no actually I control the rules’, that’s Germany and it has broken them. The EU tried to paper over the cracks caused by Germany’s EU law breaking, but nothing has yet sealed the hole Germany made. You can think of laws much like walls. We lawyers police these boundaries on how you can or cannot behave. Because we have police to help us and because most normal people only really think about law as ‘criminal law’ we tend to forget this.

The EU’s lowering of food safety standards must end talk of alignment

During the referendum, it was fashionable to pretend that being an EU member did not impact sovereignty. That is wrong as a matter of law. EU member states do surrender, or pool, sovereignty. The political argument is whether or not you think it is worth giving up some sovereignty for EU membership – that is your choice. But these arguments have been dealt a huge blow by the EU. The EU has decided to lower food safety standards and allow farm animals (who normally eat grass) to eat bits of each other. In April the EU decided that once again chickens may be fed pig, pigs may be fed chickens and sheep and cows may be fed to other farm animals. Some MEPs objected, but they have now lost. The EU is going to be rolling back the animal welfare standards put in place to stop BSE.

Is the EU breaching its UK treaty by failing to protect LGBT rights?

Has the EU Commission lost any sense of moral value? This week, Hungary, an EU member state, voted to impose bigoted and oppressive laws on its LGBT citizens. This amounted to a clear breach of many of our domestic laws – and it is a breach of the shared Human Rights laws. Yet the EU's response has been dismal. Is it time for Britain to show solidarity with LGBT Hungarians – and walk away from its treaty with the EU? The EU Commission said it is aware of what is unfolding in Hungary and that: 'When protecting children from harmful content it is important for member states to find the right balance of relevant fundamental rights, such as the freedom of expression and non-discrimination' But this falls far short of what it needed to say.

What the Covid contract ruling against the government really means

The High Court's ruling that Boris Johnson's government broke the law by awarding a Covid contract worth £560,000 has been loudly celebrated by campaigners. 'The Government’s handling of pandemic procurement was a kind of institutionalised cronyism,' said Jolyon Maugham, from the 'Good Law Project', which brought the case. But this isn't quite the victory it is being made out to be. It's true that judges did decide that the contract handed to Public First, a communications firm, was unlawful because of a risk of apparent bias. But the Court rejected two of the three things the Project complained about. It also refused to quash, or end, the contract. So was the government right to hand a contract to a firm which had connections with cabinet minister Michael Gove and Boris's former adviser Dominic Cummings? For judges deliberating on this question, they encounter an issue: the problem with ‘apparent bias’ is that it is fundamentally not real.

The Colin Pitchfork saga exposes the problem with the Parole Board

Colin Pitchfork, 61, was jailed for life for raping and murdering 15-year-olds Lynda Mann and Dawn Ashworth in Leicestershire in the 1980s. Now the Parole Board has said Pitchfork should be released. The backlash from politicians has been swift. Local MP Alberto Costa said he was 'appalled' by the decision. 'It would be immoral, wrong and frankly dangerous to release this disgraceful murderer of two children,' he added. Justice Secretary Robert Buckland, who is said to be exploring the use of the 'reconsideration mechanism' to reverse the decision, appears to agree with his Tory colleague. But the reality is that Buckland – and Costa – have little power to stop Pitchfork's release. This is because of a view which took hold in the 1990s which suggested that political power cannot be trusted in the hands of your elected representatives.

Burnham’s misjudged attack on the judiciary

The Mayor of Greater Manchester, Andrew Burnham, has publicly criticised a judge, calling his decision to end a criminal trial on legal grounds a ‘disgrace’. The judge is Mr Justice William Davis, a highly respected ‘red judge’ — that is the top level of judge we have who do trials. They are the best we have. There are 105 in our country. This is a disgrace and so disrespectful to the families.Why was it not left to the jury to decide?From what I have witnessed first-hand over the last four years, I can only conclude that the scales of justice in this country are weighed heavily against ordinary people. https://t.co/Ht6MHneEUv— Andy Burnham (@AndyBurnhamGM) May 26, 2021 This is an attack on the judiciary and the independence of judges.

Barristers should stay out of the Israeli-Palestine conflict

The world of barristers had something of a minor civil war at the weekend. The cause? The lesser known ‘Bar Human Rights Committee of England & Wales’ (BHRC), decided to weigh in on the Israeli-Palestine conflict. In a letter to the Foreign Secretary, Dominic Raab, the BHRC called on 'the UK Government to urge Israel, its friend and ally, to cease all violations of its obligations and responsibilities as an occupying power immediately, including its assault on Gaza'. It said: 'We urge the Government to issue a statement of unambiguous support for an independent investigation into alleged war crimes in the occupied Palestinian territory by the ICC' In response, it's worth asking two questions: why are some of my barrister colleagues so desperate to be politicians? And why the need to appear to speak for every barrister, rather than just give their private view? When the statement was issued, many lawyers were concerned this was a statement from the Bar Council and thus spoke for all barristers.

Glasgow’s immigration raid stand-off is nothing to celebrate

The rule of law is very simple: it means ‘everyone must obey the law’. Last year, much hay was made by a variety of politicians claiming the government might breach the rule of law over Brexit. It had not. But even the idea that the rule of law might have been broken was given rightful attention. We should take from that a comforting truth that breaches of the rule of law matter to society. This week, a large group of people physically obstructed immigration officers in the proper conduct of their office in Glasgow, preventing them from detaining two men. This was a breach of the rule of law. The whole point of the rule of law is that a billionaire in a diamond hat still has to have points on his licence if he speeds.

The dividing wall between law and politics is under attack

All my legal life I have watched with sadness those who are ever groping, Gollum-like, unable to resist the idea that our courts can somehow give them the political victory which the elections deny them. During the fallout from the Brexit vote, I hoped this insanity had reached its peak. I was wrong. We are only four months into the year and already members of the House of Lords have advocated that our courts have a say in determining our foreign policy, while the House of Commons Privileges Committee has suggested our courts should enforce the appearance of witnesses before parliament — and that they should effectively be a court (which they aren’t capable of being). I’ve already had to intervene in whatever the ‘Good’ Law Project thinks it is doing in the courts over PPE here.

The EU needs to stop playing politics with law

The Lugano convention – part of a tapestry of complicated international law agreements ensuring the courts of one country recognise the courts of another – has a dull name but it matters a great deal. Since the EU referendum, the convention has played a small role in the great internecine conflict between Britain and Brussels. Much energy has been wasted in this series of pointless bust-ups. And now, the EU is determined to use the Lugano convention – a playing field it claims to control – to ensure Britain pays a price for Brexit, by effectively blocking us from rejoining the convention. Why does this matter? Because without the convention, business suffers. If a court in Germany finds you owe Barry £200,000, then the UK will let Barry enforce that debt over your London house.

The EU’s vaccine grab breaches the rule of law

The EU is discussing confiscating and requisitioning private property. It is surprisingly brazen about this. The bloc is proposing both a ‘bespoke’ vaccine export ban and has identified 29 million doses in Anagni in Italy which it wants. The EU wishes to rectify its own error in vaccine procurement. That is a breach of the rule of law. The rule of law is very simple. It means that no one is above the law and there is one law for all. The EU asserts, regularly, that it has a legal case against AstraZeneca. I, and many other legal commentators, rubbished that assertion in January. But as I stated publicly eight weeks ago, if the EU believes it has a case it must bring one – in the perfectly capable and serviceable court in Belgium.

The truth about statues and the law

There is a proposal to change how we criminalise people who damage statues. This proposed change is set out in the Police, Crime, Sentencing and Court Bill and has received much criticism — it is the supposed cause of last night’s protests in Bristol, the first place in the UK to see a prominent statue being toppled last summer. But it is not for lawyers to tell the public what they can or should think — the law is the law, but any changes to it are political decisions. Lawyers can elucidate how our regulations currently work but it is for the public and their politicians to decide what those regulations are. So it is worth looking at how the law treats those who deface public monuments and that, perhaps, can inform whether we think the regulations need changing.

The EU’s jab snatching ruse is legally absurd

For some months now, increasingly disturbing statements on the law or legal threats have emanated from the EU. Some of these focus on AstraZeneca and if you were a drug company who had committed so early on and so successfully to helping develop and distribute a vaccine for the current pandemic (at cost price), you might reasonably feel hard done by. But that is not for me. What is for me is the latest, oddest statement, that the EU may seize AstraZeneca's manufacturing plants and their produce and possibly their intellectual property rights (the recipe). Can they? The EU has form for making statements on the law which are wrong. A summary of the issue is this: the UK and other countries moved very quickly to order batches of vaccines from lots of manufacturers.

Mark Drakeford’s men-only curfew would break international law

Politicians, including Baroness Jones of the Green Party and Mark Drakeford, who is the Labour leader in Wales, have spoken of the possibility of a 6pm curfew for men. That looks to be a breach of international law and so is something often referred to as illegal. A curfew is a punishment. A curfew directed at any of us on the basis of gender/sex (or any characteristic protected from discrimination) is a collective punishment of those who have that characteristic. Or as Oxford Public International Law terms it: ‘A collective punishment is a form of sanction imposed on persons or a group of persons in response to a crime committed by one of them or a member of the group.’ Collective punishments are therefore a legal wrong.

No, Hancock’s PPE contracts haven’t been ruled ‘unlawful’

The High Court has said the government acted unlawfully. It is important that is understood, because ‘unlawful’ is a word that can easily mislead. Above all, no one should accidentally think the Court has said that any of the PPE contracts are unlawful. They are not. What the Court has said is that because, on average, the contracts were published on a website after 47 days, the Department of Health and Social Care was unlawful because it promises to publish within 30 days. The government promised 30 days and 47 days is more than 30: that is unlawful. PPE was needed because of the pandemic and, due to the global shortages, the Department of Health and Social Care made contracts to get PPE. The Department was then under a legal obligation to publish those contracts within 30 days because the government made that obligation.

Can the EU win a case against AstraZeneca? I’m not convinced

The contract between AstraZeneca and the EU has now been published. It confirms my view, expressed on Coffee House, that the EU does not – despite its claims – have any form of ‘strong case’ or way to jump a queue to speed up its vaccine rollout. Both contracts (the one, published previously, which I used as an example in my last post, and today's) are what the EU calls advance purchase agreements, or APAs. The latest contract has slightly different wording in some places. But the differences are not substantial. This, then, appears to be bad news for the EU if it is serious about taking action against AstraZeneca. The words ‘Reasonable best efforts’ remains in the contract and is the cornerstone of the obligation AstraZeneca is under.

The vaccine row shows the EU doesn’t understand contract law

The EU rejects 'the logic of first-come first-serve,' said the EU's health commissioner Stella Kyriakides. 'That may work at the neighbourhood butcher's but not in contracts, and not in our advanced purchase agreements'. Contract law is an area of law I know well. And it is not a political comment to say the commissioner is wrong. We don't know precisely what the contract between AstraZeneca and EU member states says. But the EU did publish another vaccine supply contract here. In any would-be-case involving this contract, the EU has two massive hurdles to jump. Firstly, contractors undertake to use their 'reasonable best efforts' to manufacture enough supply. On Page 10, we see that is further limited, because it is defined as: 'a reasonable degree of best effort to accomplish a given task, acknowledging … the timely availability of raw materials, inventories and liquid funds; yield of process; the … contractor's commitments to other purchasers of the Product … and any other currently unknown factors which may delay or render impossible, contractor's successful completion of the particular task' To win a case, the EU has to show that the other side didn’t act with a reasonable degree of best effort.

Why the ECJ still has a role to play in Britain’s lawmaking

Now that Britain has left the EU, we are no longer bound by the European Court of Justice. Some may view that as something to celebrate. Yet there may also be downsides. The ECJ is the final court of the EU. It hears lots of cases about EU member states who break EU law. It then reaches conclusions which form case law. All 27 members of the EU are bound by this, but Britain, outside the EU, is not. But here’s the catch: some of those decisions might actually be good ones. The solution is that we should borrow these good ones for ourselves. English law is a magpie. We pick up shiny bits of ‘good law’ that other places have and we make them ours. It is what lots of sensible sovereign states do, and there is nothing wrong with this.

The small print of Boris’s Brexit deal makes for reassuring reading

The new UK/EU Treaty is needlessly long and turgid in its prose: this document was not drafted by people who think the law should be understood by all. Close inspection of the small print reveals that none of the details undermine sovereignty. It has been restored and the UK has the power to control its own laws. To understand what’s happened, consider the last two big treaties. Under the Maastricht Treaty the EU’s ability to control UK law was extended on what came before but was confined to specific areas only. That was called 'spheres of competence'. The 2007 Lisbon Treaty vastly expanded the EU’s power and the idea of restricting EU writ to areas of its competence fell away. Marina Wheeler has written in The Spectator about the Lisbon power grab and its huge implications: it’s worth re-reading for a sense of what Lord Frost was up against.

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