Steven Barrett

Rishi Sunak’s new Brexit deal is an end to any dreams of a UK that runs itself. Much of the focus has been on Northern Ireland, with the government hailing the legislation as a means of halting post-Brexit checks on goods moving between Great Britain and Northern Ireland. But there are far bigger – and more troubling – implications for the UK as a whole. Sunak's deal makes it clear that our laws are still, in some cases, second to EU laws. So ignore the fanfare that the new deal, agreed with the DUP and called 'Safeguarding the Union', is something to celebrate. A large, dramatic, sleight of hand is taking place. Let me explain why.

Rishi Sunak is pinning his hopes on emergency legislation, the Safety of Rwanda (Asylum and Immigration) Bill, to 'Stop the Boats'. But within hours of the Bill's publication yesterday, immigration minister Robert Jenrick walked out. Last month, home secretary, Suella Braverman, was fired. To lose one minister may be regarded as misfortune, but to lose two means something is up. What is going on? At the heart of the attempt to 'Stop the Boats' lies a very simple problem. If this Bill is to succeed, it needs to correct every weakness that the Supreme Court identified when it rejected the government's last attempt to legislate on this issue.

The Metropolitan police force is falling apart before our eyes. With it is going our sense of safety and security in our capital city, as we watch hate filled marches and what would be, in any other circumstances, criminal activity on London’s streets. The Met commissioner, Sir Mark Rowley, recently went on national television and said that the Met was doing all it could to enforce up to the legal line, but it was up to politicians to draw those lines. Is Rowley right to suggest though the Met is doing all it can when it comes to the protests? No. And here’s why.  Since the Thatcher era, successive governments have passed laws to control protests. The result is that we have today unprecedented powers to control London. What are these powers?

The Cabinet Office is trying to weaponise the law against a former prime minister. They have threatened to withdraw funding for his legal fees during the Covid inquiry. Government lawyers wrote to Johnson: The funding offer will cease to be available to you if you knowingly seek to frustrate or undermine, either through your own actions or the actions of others, the government’s position in relation to the inquiry unless there is a clear and irreconcilable conflict of interest on a particular point at issue. To even threaten this is a tyrannical act, the capricious move of a mad monarch. Oddly, it’s the kind of arbitrary behaviour that Boris Johnson’s enemies were accusing him of. The idea the government can stop paying a former PM’s legal fees is wrong.

Thursday evening saw the extraordinary sight of a government suing a highly respected retired judge from our Court of Appeal, who also now sits in the House of Lords. Perhaps a sheepish admission that this is Trumpian behaviour lay in the government refusing to use her name; instead calling her ‘The Chair of the UK Covid-19 Inquiry’. But make no mistake, the UK government is suing a UK judge. Why? Well, there was an airborne infectious disease called Covid-19. Most of us lived through the chaos it caused. A previous UK government, wanting to see what mistakes were made and how to improve in future, commissioned an inquiry. They chose Baroness Heather Hallett to chair it. They have sued her.

Rishi Sunak’s ‘deal’ on the Northern Ireland Protocol is finally out. My first impression is that it is no ‘deal’ at all: the version of the text published by the government is a document with no legal effect that is possible to enforce. It’s a wish list of vague commitments. The document is patronising in places: it refers to 'saving money on a pint of beer, buying Cumberland sausages in a supermarket or visiting a garden centre for seeds and plants'. But there are also deeper concerns.

As is increasingly common, government policy was leaked to the Times this week by a ‘senior government source’. The source stated that the government’s plan to remove Retained EU Law (REUL) from the British statute book by the end of the year must now be put off for another four years (meaning ten years after the Brexit vote). REUL is not all the laws the EU ever made which apply in Britain. Lots of EU law was made by our own parliament becoming our own law. REUL just covers the laws made directly here by the EU, or by our ministers if the EU told them to. Theresa May decided it was too risky and the government too busy to remove all of these laws five years ago. So we kept it all ‘just in case’.

Labour MP Chris Bryant could not have been clearer: the ugly scenes that unfolded last month in parliament during the vote on fracking amounted to bullying:  ‘I saw members being physically manhandled into another Lobby and being bullied. If we want to stand up against bullying in this house, of our staff, we have to stop bullying in the chamber as well don’t we,’ he told MPs. It was a serious allegation and the House of Commons responded by launching an immediate inquiry. The verdict is not good for Bryant.  You can read the report, which was published this week, in full here. In short, it dismisses Bryant's claims. ‘There is no evidence that anyone was bullied into voting in a particular way,’ the report, says.

Boris Johnson has recently employed the services of the lawyer Lord Pannick, who has given his legal opinion on a House of Commons investigation into Boris Johnson’s partygate comments. The advice has been published here by the government. It seems to have cost £129,000, which is not expensive, believe it or not, by market rates for someone as eminent as Lord Pannick. To recap – parliament is proposing to put Boris on trial for the offence of misleading the House. The wrong complained of is when Boris told the House that ‘no Covid rules were broken’ and that the ‘guidance was followed and the rules were followed at all times.’ In other words, that no Downing street parties occurred.

The EU courts are not like our courts. They are given a specific purpose of advancing the union. That purpose can be hard to spot and does get denied. I would say that is a court being required to do politics. Our courts do not try to advance the interests of our country – they just do law. In 2014 on the EU Courts the more diplomatic Foreign Office said ‘Both principles [subsidiarity and proportionality] are “legal” principles in that the EU institutions are bound by them and cannot legally act in breach of them. However, given their nature, they require significant political judgment’. Those quote marks in paragraph 2.7 are doing a titanic amount of heavy lifting.

For years, the Human Rights Act has cast a shadow over British politics. Its supporters claim, in the absence of a single written document in Britain's constitution, that it upholds key freedoms; its detractors say it has been misused and hands too much power to the courts over elected politicians. Soon, this debate may be over: Dominic Raab's Bill of Rights kills off the Human Rights Act. 'The Human Rights Act 1998 is repealed,' paragraph 2 of Schedule 5, of the Act says. Under the old Human Rights system, the courts were allowed to ‘interpret’ any Act of Parliament ‘in line’ with Human Rights legislation. That was always a conceptual problem for our constitution. Why? Because making law is a political action that should be carried out in parliament.

The UK is about to publish a bill that will override parts of the Northern Ireland Protocol. We are doing this unilaterally – the EU doesn't want us to do it, but we're going to do it anyway. Surely that means we’re about to breach international law? It's worth quickly going over why this is happening. The EU wanted to protect its common market, and no one wanted a border down the island of Ireland, so a trade border was placed in the Irish Sea. That has created trade friction between two constituent parts of the United Kingdom. Unionists are unhappy with that arrangement. And unhappy Unionists have led to the suspension of power-sharing at Stormont and therefore a problem for the Good Friday Agreement. So, the UK feels it has to act. But – ah!

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 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.

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.

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.

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.