The following summarises yesterday’s longer blog post, discussing the changes in England to Reg 7 (and to Reg 6) in The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 and can be read in conjunction with this submission to the JCHR.

  1. The main shift will be to relegate Reg 6 – formerly the centrepiece of the lockdown powers – to be replaced by the prohibition in Reg 7 on gatherings. Reg 7 has as result been expanded and modified. Reg 6 formerly prohibited leaving one’s place of residence without reasonable excuse – with a non-exhaustive list of over a dozen examples. Non-exhaustive because it would be possible to argue X reason was a reasonable excuse despite not appearing in that list. Reg 6 is now a prohibition on staying overnight away from your place of residence without reasonable excuse. We, in England at least, are now able to leave our homes. That list remains broadly the same, but with, for example, the addition of exemptions for ‘elite athletes’ (Reg 6(1)(b)). Instead, the focus – in terms of preventing the spread, and keeping the R number (well) below 1 – is on how gatherings are regulated.


  1. As from yesterday (1 June) Reg 7 now restricts us (in England) from participating, in either public or private places, in outdoor gatherings of more than six, and indoor gatherings of more than one (i.e. two or more). Instead of being constructed around the notion of reasonable excuse, this is missing. Instead, twelve exemptions are created. The list is therefore exhaustive (though this will be refined later in this paper).


  1. There are constitutional concerns surrounding the urgent procedure by which the change in the law – not in primary legislation but in secondary legislation, a statutory instrument (SI), what barrister Tom Hickman QC typified on Twitter as “abracadabra governance.


  1. The full package of measures includes criminalisation in Reg 9 – the creation of a definition of criminal offences, allowing for formal arrest, charge and prosecution – and informal enforcement powers in Reg 8, whereby police officers can direct someone to return home or leave a gathering.


  1. The main change in Reg7 is that it now covers gatherings in private as well as public places but expands, outdoors, the maximum number from two to six while at the same time reducing, indoors, the maximum from two to one. Reg 7 formerly did not distinguish between indoors and outdoors (largely because of the restrictions on leaving one’s house in Reg6 rendered that largely unnecessary).


  1. There is now a little more clarity on what constitutes a gathering – a term not generally used previously in domestic legislation, which has favoured the more widely used ‘assembly’. Under Reg 7 as amended, a gathering is where two or more ‘are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any activity with each other’.


  1. On first reading (and several subsequent ones), the first more specific – “engaging in any form of social interaction” – is subsumed and thus covered by the latter more general “undertaking any activity”, with engaging in and undertaking being near-synonyms.


  1. While meeting/conversing/interacting on-line would seem to be covered by virtue of the fact that the internet is a ‘place’, a privately owned one – and so seemingly brought within the Regulation for the first time by this change – it occurs neither indoors nor outdoors, so on-line activity and (political) organising remain outside the scope of the restriction.


  1. The new definition offers no real help on how we identify a gathering – how close must two people be before they “gather”? I hold to my earlier view that, since these Regulations were introduced for health-protection reasons, that is the guiding interpretative principle. From that it follows, that two people more than 2m apart cannot constitute a gathering. Even then, is that, and should that be the test or the only test? Reg 7 refers not simply to gathering, but to participating in one. In turn, this connotes – something Dr Geoff Pearson pointed out to me earlier – if not some mental element than something more than happenstance congregation, some deliberate act of coming together. I think this is what would allow us to distinguish various early morning commuters all waiting at the bus stop. I have revised my view from yesterday – I think this provides a more plausible route out than attributing to the words “with each other ” as I put it yesterday ‘ form of active conjoining rather than simply locational co-incidence’.


  1. The inclusion of private indoor places and limiting it to one means that I am unable to have even a single guest in my house. The reduction in maximum numbers from two to one here is minimal. The effect of what was formerly Reg 6 meant that very few of us would have had good reason to be in someone else’s house such that while a gathering of two of more in a private indoors place was lawful under Reg 7, it was not under Reg 6. It does now expose us both (since we are both ‘gathering’) whereas previously the householder (such as Prof Neil Ferguson) was not in breach of the Reg 6 prohibition on leaving their house. As many have pointed out, the one person limit has an arguably disproportionate effect on the family life (i.e. under Art 8) of those who do not live with each other in the same household.


  1. It also opens up – or perhaps does not close down – the opportunities for policing of private places, matters always for policing discretion. They can choose to police private indoor places, or choose not to – and there may well be groups who will be or might feel likely subject to greater, invasive policing.


  1. One such group might be political activists, a few seeking to plan and organise. While the police have long some power to enter private premises such as a meeting hall (Thomas v Sawkins, 1935) that was limited to cases where they suspected an imminent breach of the peace. Reg 7 has the potential to allow much greater levels of policing of political activists should the police choose. That is a worry.


  1. The new rules also produce this counter-intuitive result, one that flies in the face of the health-related purpose that must underpin the Regulations, or their interpretation: up to six people can gather with impunity outside. Strangely, this means that a household of five together can only gather with one other person – hosting a BBQ in the garden for example – but a person living alone person can invite five others; the health risks are very different. The explanation must be the ease and effectiveness of policing and enforcement.


  1. There are interesting issues around the choice of slightly different structure to Reg 6 and Reg 7. As we saw above, not having a reasonable excuse is part of the definition of the restriction on (now) staying overnight. For Reg 7, covering gatherings, it is not part of the restriction/prohibition but of the offence: under Reg 9 it is only an offence to gather if I do so without reasonable excuse. Why does this matter? Mainly because much of the policing of the Regulation will not be by formal charge/prosecution but informal enforcement, utilising powers to direct in Reg 9. This allows officers to take action where they consider someone is contravening either Reg 6 or Reg 7; it is only for Reg 6 directions then that the officer must also consider the reasonableness of any excuse since that comprises part of the restriction.


  1. Why then might that be important? One reasonable excuse that (especially) a protester or someone not able to see their partner could use would be that not allowing them deprives them of their ECHR right, under Arts 10/11 or Art 8: my reasonable excuse for gathering is that I am exercising my Convention right to assemble and protest peacefully. That avenue is foreclosed for informal enforcement, though remains open if charged and prosecuted under Reg 9. Another route to try to secure protection would be that the scope of the term “gathering” should be read (utilising s.3 of the HRA) so as to exclude gatherings that would be protected by Arts 10/11 as expressive assemblies.


  1. All of which leads on finally to the matter of protesting and where this change leaves the right to protest in England in light, for example, of arrests made of XR protesters in London over the weekend of 30 May, with Black Lives Matter protests ongoing and scheduled for this coming weekend across the UK.


  1. There is nothing in the Regulations, or anywhere else (there has been no derogation) that restricts the rights we all have, in the ECHR and under the HRA, peacefully to assemble and protest, under Arts 10-11. The Regulations, and Reg 7 especially, must be interpreted (if matters go to court) and put into operation by police officers bearing in mind their statutory duty to act in an ECHR-compliant manner. This is contained in s.6 HRA, a piece of primary legislation, and therefore of greater constitutional standing or value than the Regulations in a statutory instrument. One route would be to suggest, if challenged or questioned, that groups of protesters more than 2m apart do not constitute a gathering in the sense the term is used in Reg 7. Twenty, fifty, one hundred of us all 2m+ apart are not gathering. Such a reading preserves the constitutional value of politically participative protest, over and above (say) the value of social or recreational value of six friends having a BBQ.


  1. The point to be made is this – though I’d concede that persuading an officer ‘on the ground’ to accept will be difficult, given that the amended National Police Chief’s Council Guidance Note is silent on the matter. How and why – bearing in mind we are thinking solely in health related terms, not public order – can a group of ‘socially distanced’ six friends meet for an afternoon BBQ at the river and stay outside long into the evening (there is no time limit in the Regulations or in Government Guidance) but a group of seven or eight political activists cannot hold a twenty minute vigil 2m apart on the steps of a Town Hall this weekend to mark the death of George Floyd in Mineapolis. That seems an indefensible distinction, one that does not properly recognise the value of free speech and peaceful assembly, nor protect it.



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Filed under Free speech, Human Rights Act, Policing, Protest


I have written about the restriction on ‘gatherings’ in Reg 7 of The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 previously, and submitted evidence to the JCHR on it as well. The focus of most previous commentary has been on Reg 6, imposing what is usually referred to as a ‘lockdown’, prohibiting us (in England at least) from leaving our homes except with good reason, ’reasonable excuse’. There was little need to dissect Reg 7, or for it to be applied, since we were all, in general terms at least, forbidden from being outside. That, of course, is rather a simplification: Reg 6 identified many instances of what would be considered a ‘reasonable excuse’, as well as the general catch-all. The harshness of the general prohibition was ameliorated too by relaxation on 13 May, by allowing us to take exercise and visit public open air spaces with someone else.


Today, changes were made (subject to Parliamentary approval within 28 days) the result of which is to place Reg 7 firmly in the spotlight, and very much to relegate Reg 6 to a bit part. We, in England at least, are now able to leave our homes; the restriction now is that we must not stay overnight somewhere else, unless we have a reasonable excuse. That list remains broadly the same, but with, for example, the addition of exemptions for ‘elite athletes’ (Reg 6(1)(b)). Instead, the focus – in terms of preventing the spread, and keeping the R number (well) below 1 – is on how gatherings are regulated.


Others have commented on the constitutional dynamics that arise from the way these changes came about: published late on a Sunday afternoon, to come into effect at 11:30 the following day, excluding Parliament from any ex ante scrutiny, using the urgency of the need for the measures, what barrister Tom Hickman QC typified as “abracadabra governance”. I do not propose to add to that, other than to express agreement.




Instead, I want to offer a few thoughts on the new, fleshed-out Reg 7, outlining where it differs from the previous iteration and suggesting what seem to me to be ongoing areas of concern.

Formerly, gatherings of more than two in a public place were prohibited (with attendant criminalisation in Reg 9 and enforcement powers in Reg 8) unless one of four exemptions applied: same household, essential for work purposes, to attend a funeral, or was reasonable necessary to facilitate a house move; to provide care or assistance to a vulnerable person; to provide emergency assistance; or to participate in legal proceedings/fulfil a legal obligation. The new prohibition retains some elements of that. The list of permitted reasons to exceed the restriction on gatherings is exhaustive; there is no general caveat of “reasonable excuse” with examples of what might constitute it. Since Reg 7 will be doing much more of the legwork, replacing in effect the general prohibition on what was old Reg 6 – which was drafted in that manner – this is surprising. However, while the prohibition is absolute subject to those listed exceptions, Reg 9 which creates the offence of contravening the prohibition on gathering does include a ‘reasonable excuse’ defence. This offers the possibility of seeking to argue that the protected Convention right of freedom of assembly/freedom of speech (in ECHR Arts 11 and 10 respectively) – effectively a right to protest – constitutes the reasonable excuse for gathering. I made this point in my evidence to the JCHR (para 10). Another route by which to render the Regulations ECHR-compliant would be to argue that the scope of the term “gathering” should be read (utilising s.3 of the HRA) so as to exclude gatherings that would be protected by Arts 10/11 as expressive assemblies. Those two routes should avoid the alternative (should a case be brought) of declaring Reg 7 incompatible with those two protected Convention rights. That would mean, since they are contained in secondary legislation, there would be no question of a court “only” declaring them incompatible under s.4 of the HRA; issues of parliamentary sovereignty, at the heart of the s.3/s.4 scheme, do not obtain. Regulation 7 would be susceptible to being struck down, of no effect.



Some of the points I raised in that submission and my earlier blog post have been dealt with, although not necessarily satisfactorily. There is now greater clarity on what constitutes a gathering – a term not generally used previously in domestic legislation, which has favoured the more widely used ‘assembly’. Under the Regulations as amended, a gathering is where two or more ‘are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any activity with each other’. This begs more questions than it forecloses.


  1. The first “engaging in any form of social interaction with each other” is presumably rendered otiose by the latter – “any activity” must encompass “social interaction”. Why then might the drafter have chosen a specific and a general? I did have a rather detailed, and likely very dull, attempt at an explanation – seeking to draw out subtle differences but in truth I suspect that using two near-synonyms is simply surplusage, belt and braces. The alternatives must be read as interchangeable, with the latter, general ‘undertake’ – to enter/embark upon, to begin – taking precedence over ‘engage’ (to embark on any business’; to enter upon or employ oneself in an action).


(For those interested, I was exploring whether the purposive ‘in order to’ might be disjunctive:  gathering is either two or more who are ‘present together in the same place in order to engage in any form of social interaction with each ‘ OR that it is two or more who are ‘present together in the same place to undertake any activity with each other’. The former would imply two (or more) with synchronicity of location and intention i.e. two people together at place X plan/intend/have as their purpose to have some form of social interaction, but are currently doing nothing together. The latter ‘only’ covers those who are together in one place and are actually undertaking an activity with some other person It is hard, in truth, to see what is added by taking such a precursor, inchoate approach to the wording OR, if such an approach is mandated by that strangely but deliberately constructed phrase, then it is overly broad, capturing too many activities and/or allowing too much policing discretion and creating too much uncertainty. The alternative angle I explored was that ‘undertake’ can also mean commit to future action such that a gathering is either two or more who are ‘present together in the same place in order to [so that they may] engage in any form of social interaction with each other OR that it is two or more who are ‘present together in the same place in order [so that they may] undertake [commit to doing] any activity with each other’. Again, it is hard to see what is added by each.)


  1. Being present together in the same place – might this now include meeting/conversing on-line? If not, why not – is it that the internet is or, or cannot be “a place” (and is either no place, or all places?) There is much written on that to gainsay that approach. In the US, Justice Kennedy described the internet as “the modern public square” (Packingham v North Carolina 137 SCt 1730, 1737 (2017)). Is it that no one is present together – there is always a microsecond (at least) between A posting on say Facebook or Twitter, and B seeing it, or replying, or liking? The matter did not arise under Reg 7 in is first guise, as that only prohibited gatherings in a public place, and so did not bite upon virtual gatherings.


  1. The definition does not really help us identify what activities might sensibly be prohibited – what is the real target of the new rule? – so that we might avoid doing them. Perhaps, put another way, the word ‘with’ is being asked to do a lot of heavy lifting – if I am at a bus stop, waiting for No.37, and there are six others there too, am I not engaged in the activity of “waiting” with them? Am I not ‘with’ other supporters in the away end at Carrow Road? It would not be a stretch of normal use of English to describe it thus, but to obviate such over-reach (or what we might presume is unintended overreach) does ‘with’ need to encompass some form of agreed activity rather than simply meaning “alongside” or even “near”, some form of active conjoining rather than simply locational co-incidence?



The major change in the Regs is the inclusion now of all places, both public and private. My earlier criticism (JCHR evidence, para 21) – that there was no definition of “public place” – obviously falls by the wayside. The extension probably provides an answer to the question at 2. above since it further goes on to identify the rule as covering (i) public or private indoor places and (ii) public or private outdoor places. In other words, though the internet and a webpage are a place, and a private one at that, they are neither indoors nor outdoors (at least not as defined elsewhere in the Regs). Nonetheless, there are a few concerns.


First, we should note that the prohibition formerly applied only where more than two people gathered in a public place. Now, in indoor public and private places, it covers any gathering of two or more i.e. once I am no longer alone in my house or any other ‘substantially enclosed’ (Reg 7(3)(b)) indoor place. To some extent, this change is simply replicating the previous Reg 6 scheme; while I am no longer barred from leaving my home, I am barred from going into anyone else’s unless say it is for work. The end result is the same – households remain in indoor silos. While previously (subject to the general ban in Reg 6) I could have invited someone into my kitchen or my garden, I can now only invite them into my garden. The rationale is clearly the notion that the risk of spread and infection is far greater inside than outside. It does produce interesting results. As many have noted on Twitter, it still prohibits couples who for a variety of reasons might live in separate households from meeting in the house of one of them and, indeed, prevents two people who are not in the same household (i.e. partners living together) from having sex with each other indoors at least. Though, as one commentator noticed, it does not prevent A inviting B into their home for sex and B paying for it, as that falls within the work exception for A! (NB – I have tried to find out who this was, I read it in passing, but cannot now do so; very happy to attribute). The new rules also produce this counter-intuitive result, one that flies in the face of the health-related purpose that must underpin the Regulations, or their interpretation: up to six people can gather with impunity outside. Strangely, this means that a household of five together can only gather with one other person – hosting a BBQ in the garden for example – but a person living alone person can invite five others; the health risks are very different. The explanation must be the ease and effectiveness of policing and enforcement – in outdoor places, it is simpler to count and see of the gathering numbers more than six, rather than complicated questions about relationships to each other. If the gathering numbers more than six (outdoors), then the (policing) question arises: are you all in the same household? The Regulations say nothing here about onus of proof. It is here that we reach a structural problem with the design of the Regulations.


Regs 6 and 7 do not create offences, or allow for enforcement. They impose requirements of restraint – formerly a prohibition on leaving one’s place of residence, now staying overnight at someone else’s, and on certain gatherings. Reg 9 creates the offence – comprising a reasonable excuse defence for Reg 7, it being absent in the requirement (as I discuss above) and a strict liability offence for Reg 6 but which itself does include it (in both an overarching claw-back, and with over a dozen illustrative examples) so the end result is the same: both offences can only be committed where someone ostensibly in breach does not also have a reasonable excuse. Whether we view “reasonable excuse” as part of the requirement (Reg 6) and thus part of the actus reus or, as with Reg 7, a defence to be raised by the accused matters only in that if it is a defence, some prima facie evidence has to be adduced in order for the matter to be live. The legal burden – proving beyond all reasonable doubt that there someone had no reasonable excuse – remains with the Crown. However, that might not in practice matter very much, because of the way the enforcement power in Reg 8 operates. Much of the policing of the Regulations relies not on formal court processes – charging for one of the various crimes – but through police officers being able to direct someone to return to the place where they live, or remove them there (where the officer considers they are contravening Reg 6) or directing gatherings to disperse, as well as directing people to return to the place where they live or removing them there (where the officer considers they are contravening Reg 7). It is here that the structure matters. Where a reasonable excuse is contained within, or as part of, the definition of the restriction, as it is in Reg 6, then an officer in order to act lawfully must not only consider whether someone is away from the place where they live (old Regs) or staying away overnight but also whether they might have a reasonable excuse. Where the existence of a reasonable excuse is not an integral aspect of the requirement, but only of its criminalisation (in a separate Regulation), they need not consider whether there is a reasonable excuse for the gathering.


To develop this further, even if, as I argued above, exercising my right to protest and assemble peacefully (under Art 11) might constitute a reasonable excuse, there is no need for an officer to consider as part of the process of lawfully directing a gathering to end. (As an aside, and rather technically, there are here issues to be explored around the duty in s.6 of the HRA, on officers not to act or reach decisions which disproportionately restrict those rights, but read in light of the “outcomes are all” approach at the heart of Begum [2006] UKHL 15 alongside, most recently RR v SoS for Work and Pensions [2019] UKSC 52).  For those who feel that policing decisions – to remove, and to direct a gathering to end – have wrongly deprived them of their statutorily-guaranteed rights, the solution can only be ex post and to the courts. One final point on this aspect: if today’s changes do herald a shift onto Reg 7 as the linchpin of enforcement, at the expense of Reg 6, we should bear in mind Reg 8(1). This remains unchanged and allows relevant persons, such as police officers, to “take such action as is necessary to enforce any requirement imposed” by Reg 7. There is no such power, with such width, to secure compliance with Reg 6. I would assume that necessary would be read as “proportionate” adopting on very different facts admittedly the approach that the House of Lords took to “necessary” in s.10 of the Contempt of Court Act 1981, where there was a risk to journalistic freedom: Ashworth Security Hospital v MGN Ltd [2002] UKHL 29 [61]-[62].



I’d like to conclude with some thoughts on where this change leaves the right to protest in England in light, for example, of arrests made of XR protesters in London over the weekend of 30 May.

While the amendment offers a little more insight into what constitutes a gathering, it fails to resolve the one, critical matter: how close must I be to someone else to be “gathering” with them? This is a point I made in my earlier blog, and submission to the JCHR. In short, the argument I made was that, given these regulations have been made under health prevention legislation, they must be read subject to that, not as public order provisions. From that should follow this conclusion: if I assemble or meet (certainly outdoors) more than 2m from someone else – and certainly if this is not for any great length of time – I am not acting unlawfully, as I am not ‘gathering” within the meaning of that word in the Regulations. Twenty, fifty, one hundred of us all 2m+ apart are not gathering. Such a reading preserves the constitutional value of politically participative protest, over and above (say) the value of social or recreational value of six friends having a BBQ – where, we should note, there is no time limit in the Regulations. Government Guidance, amended to take account of today’s changes, tells us little more, and neither does today’s amended National Police Chief’s Council Guidance Note. Noticeably, they make no reference to protest gatherings, not to any Convention-protection or indeed Convention-impact such as for example (and again noted by many on-line commentators and contributors) the impact on family life of partners in different households not being able to meet. The omission of both is not surprising. However, while we can explain the difference on grounds that bright lines facilitate ease of policing, in order to withstand HRA scrutiny, Government (if challenged) would need to be able to explain how and why – and solely in health related terms, not public order – why a group of six friends can meet for an afternoon BBQ and stay outside long into the evening provided they remain ‘socially distanced’ (i.e. 2m apart, though this is not in the law, the Regulations, but only in the soft law Guidance) but a group of seven or eight political activists cannot hold a twenty minute vigil 2m apart on the steps of a Town Hall this weekend to mark the death of George Floyd in Mineapolis. That, to my mind, seems an indefensible distinction.

1 Comment

1 June 2020 · 17:48

The Government’s response to COVID-19: the human rights implications of the ban on gatherings in Regulation 7

  1. The coronavirus undoubtedly poses such a threat that it engages the UK’s positive duty under Art 2 to take action to save life, and not to impose “harm” as an aspect of Arts 3 and 8. This paper does not address that but instead its focus is on one question, the human rights implications of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 specifically on Regulation 7, the restrictions on gatherings (and enforcement in Regulations 8-9).
  1. Regulation 7 states that no one may participate in a gathering of more than two people in a public place except

(a) where all the persons in the gathering are members of the same household,

(b) where the gathering is essential for work purposes,

(c) to attend a funeral,

(d) where reasonably necessary—

(i) to facilitate a house move,

(ii) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,

(iii) to provide emergency assistance, or

(iv) to participate in legal proceedings or fulfil a legal obligation. 


  1. Regulation 7 engages the right to assemble peacefully and to associate in Art 11 of the ECHR. Since it constitutes a restriction – indeed, a near-total ban on assemblies, limiting the number of participants to two save in very limited circumstances – on the right, it requires justification under Art 11(2). Critical here will be whether the Regulations are lawful – both as a matter of domestic law and in terms of certainty and foreseeability – and do they constitute a proportionate restriction given the clear and imminent threat to health and life? There are concerns with both.
  2. If those concerns can be met by an interpretative approach – utilising s.3 of the HRA to confer (here) an Art 11 compatible reading, that would solve the problem. If not, and since these powers are contained in Regulations not in primary legislation then – absent a derogation order – the Regulations (or the offending parts) are susceptible to being declared unlawful and of no effect by virtue of s.6 of the HRA, s.4(4) offering no protection here.


  1. Article 11 covers both “gatherings” (to use the term in the Regulations) that are for a political/expressive purpose and those that have a more social flavour, such as 25 journalists meeting in a café to celebrate Che Guevara’s birthday (Emin Huseynov v. Azerbaijan) or the meeting of a hunt (Countryside Alliance v UK), those latter marking a significant change in the court’s approach since Anderson v UK (1997). Undoubtedly, protest assemblies or assemblies that are more obviously politically expressive will have heightened protection, under the usual ECHR ‘scheme’, meaning that restrictions on such assemblies will require greater justification, perhaps by being accorded a lesser margin of appreciation.
  1. Regulation 7 prohibits most public gatherings; gatherings in private remain unaffected and thus subject ‘only’ to the ordinary powers of the police in e.g. s.14A Public Order Act (POA) 1986 (relating to trespassory assemblies), or the power to take action on private land in order to prevent a breach of the peace Thomas v Sawkins (1935).
  1. Article 11 is a qualified right – the scope of protection is set out in Art 11(1) but allows for proportionate restrictions provided they are (i) prescribed by law and (ii) imposed in order to (taking our situation) protect health, public safety, or protect the rights of others such as the right to life in Art 2.
  1. There are Art 11 concerns around Regulation 7, namely

i)     Legal certainty/foreseeability of application (the standard Sunday Times test under the ECHR)

    • How close/how far apart can three people be before they become a gathering?
    • What constitutes a “public place”?
    • Does it require a shared/collective intention?

ii)    Proportionality of the measure: is there a rational connection between the means chosen (the wording of the Regulations) and desired outcome, specifically

    • Why does it prohibit only gatherings in public?
    • Why is a political meeting treated less favourably than gatherings for other purposes?
  1. Critical to the legal analysis is the fact that these Regulations were made under powers contained in the Public Health (Control of Disease) Act 1984 – they are not public order powers. As a matter of ordinary, domestic public law – standard judicial review principles (see e.g. R (oao Public Law Project) v Lord Chancellor [2016] UKSC 39) – they can only be used lawfully to achieve the statutory purposes in s.45C, s.45F and s.45P of the 1984 Act namely to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination. Using the power to make regulations with a different purpose, whether or not health related or entirely new – maintaining social order or minimising disruption to the economy – would be unlawful as ultra vires, as would utilising the powers in the Regulations but not for a health-related purpose.
  1. The interpretation of the duty that Regulation 7 imposes on us all, and the exercise of the police powers in Regulation 8/9, must accord with that s.45 statutory purpose. What might that mean here?

Gathering in a public place

  1. The Regulations uses different terminology ‘gathering’ from the more usual ‘assembly’ in public order legislation (e.g. s.14 POA 1986). It is not clear why the drafter has latched onto a different term, but we must assume it is designed to connote something else, though we know not what since there is no definition: perhaps less fixed, more transient, less purposive, less linked to political participation (though see above at 6.), something conveying a synthesis of assembly an association?
  1. That said, the same questions over clarity/scope exist for ‘assembly’; s.16 of the POA 1986 takes us no further since its focus is on the location and number rather than how we can identify an assembly. The point has never been taken in reported cases – the closest was last year’s XR judicial review (R (oao Jones) v Commissioner of Police for the Metropolis [2019] EWHC 2957 Admin) but here the question was whether the was one or several public assemblies across London, for the purposes of s.14(1) of the POA 1986.
  1. In summary: it would be safe to assume that ‘gathering’ will be given its ordinary English meaning, a coming together of people, but in some unknown way slightly different from ‘assembly’.
  1. Nonetheless, and bearing in mind the scientific evidence on risk of spread, it follows that the only proper interpretation of “gathering” is a group of people at less than c.2m distance. The risk of infection otherwise is not non-existent but too low, as most likely to be outweighed by the consequent loss of Art 11 rights to assemble. In other words, it would be disproportionate to adopt any other meaning. Such a reading is in line with the unlimited restriction on household gatherings, and both are consistent with a health-related interpretation being adopted.
  1. That too would remove any doubt over the application of Regulation 7 to on-line gatherings – organising etc on Facebook or meeting via Skype. By way of background, there is much discussion in NGO circles seeking to expand the meaning of assembly, and given protection, to include virtual assemblies. The slight risk that some activist groups have that the power in the Regulations might be used to control on-line political gatherings can also be met by considering the statutory purpose: it would be a misuse of power to seek to regulate on-line gatherings, under the guise of an undefined term.
  1. However, the absence of any clear explanation/definition in the Regulations – and given the mixed messages in both the Government’s Guidance and media campaigns about ‘social distancing’ which stress the need to keep 2m apart only when exercising or shopping – risks creating a chill on the right to assemble in Art 11, or of it being over-policed using Regulation 8(9). People, through fear of violating the law and/or ignorant of its scope, will simply choose not to gather.
  1. That is exacerbated by the lack of clarity in the Regulations about what constitutes a “public place”. There is no definition. Section 16 of the POA 1986 contains one, though that of course is not the parent Act, and does not govern health regulation or the prevention of spreading of infection, as we saw above: “any highway…and any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.”
  1. The Firearms Act 1968, as one example, contains a slightly narrower definition: “any highway…and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise” and it is yet narrower in the Criminal Justice and Police Ac 2001: “any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission.
  1. Which meaning should be adopted in the 2020 Regulations and, more importantly, if people do not know, they risk either (again) chilling their (protesting) behaviour, or breaching the Regulations and facing arrest under Reg 9?
  1. A recent judicial review – R (oao Pereira) v Environment and Traffic Adjudicators [2020] EWHC 811 Admin – illustrates the difficulty of knowing the locational reach of traffic enforcement (P was issued a parking ticket when parked on her own privately-owned pavement) when a statute provides a definition. When it does not, the problems are magnified quite significantly.
  1. Lastly, what, if any, amount of collective intention or purpose, is needed to constitute a gathering? Do, for example, a group of individuals queuing outside a supermarket “gather” (in the sense used in Regulation 7) there – and if so, why? If not, why not? The most recent iteration of the UN’s draft General Comment No.37 (on the ICCPR equivalent to Art 11) talks of an assembly being a gathering of persons having a “common expressive purpose”.
  1. That though leads to this seeming contradiction or tension: if we require gatherings to display a common purpose, a formal exercise group of ten in a public park would be a gathering (and thus prohibited) whereas ten strangers who simply happen to stop and do sets of press ups etc would not. The health risk must be the same yet only one group is captured/banned. If, however, a gathering is constituted simply by three or more strangers being in the same place without any shared purpose – three dogwalkers all waiting to cross the road – then the risk of over-capture is (too) great.
  1. Neither is necessarily preferable but clarity on scope, reach and ‘bite’ is needed.

Rational connection

  1. At first sight, we might think Regulation 7 is redundant because of Regulation 6: groups of three or more are not able lawfully to congregate outside anyway because of the bite and reach of Regulation 6. That is not necessarily so. Regulation 6 does not prohibit being away from one’s home. It prohibits leaving one’s home without reasonable excuse, for example taking exercise or shopping for basic necessities. It does not mean that once outside only those activities can be performed – though of course, that is what many might feel and proving otherwise if arrested under Regulation 9(1) or directed under Regulation 8 will be very difficult. Nonetheless, it is currently lawful to be away from one’s home but not be shopping or exercising alone or only with members of the household, provided I left with the purpose in mind. That explains the need for Regulation 7, the near total ban on gatherings.
  1. This though creates a problem. Since the statutory purpose can only be for health-related reasons, and not to maintain public order/prevent social disruption why is it limited to gatherings in public places? The focus only on public places indicates the purpose might not be health-related but might instead be control the public sphere. While it is, I would concede, unlikely factually, neither Regulation 6 (see above) not Regulation 7 would render the following scenario unlawful: a group of friends – who all left with avowed intention to go shopping for basic necessities – chance upon each other in the supermarket and decide to have an ad hoc barbecue back at the house of one of them.
  1. This absence, the inclusion of public and exclusion of private places, of course can be explained on grounds of proportionality – the chances of it happening are low. Nonetheless, a concern that equating private with public would mean households ‘gather’ whenever three of them are inside is met by the specific exemption in Regulation 7(a); similarly, workers ‘gathering’ at their private workplace could continue since Regulation 7(b) specifically envisages that and allows it. The harms of infection and spread through ‘gatherings’ in private cinemas, clubs, bars etc has been met and obviated by Regulation 4 and Sched 2, Part 2 – they had to close.
  1. In short, it is hard to see what sorts of other private events (technically ‘gatherings in private places’) that might be captured by an expanded definition (‘whether in a public or a private place’) should properly have been thought by the drafters and policy-makers to warrant exclusion, given the overriding health objectives: the risk of transmission. The concern of capturing those people mingling, ‘gathering’, in those private places that remain open – supermarkets etc – could and would be met by defining ‘gathering’ as requiring some shared, collective purpose.
  1. The fact that it might thus be, in HRA terms, a proportionate measure – the harm caused by expanding the definition to include private places is outweighed by any benefits of allowing private gatherings – and so meet any Art 11 objections might not be enough. There would also be a possible claim on vires grounds: as drafted the limitation only on public places is not sufficient to effect the underlying statutory purpose of the 1984 Act, preventing the spread of infection between people not in the same household.
  1. A linked concern – based not on the Regulations but on the Government’s Guidance – is this. There is a greater restriction imposed on politically expressive collaborative activity – a (protest) assembly – than is imposed on taking exercise, important as that latter is no doubt to wellbeing and health and thus to e.g. Art 2 and Art 8. The guidance tells us that “even when [shopping or exercising], you should be minimising time spent outside of the home and ensuring you are 2 metres apart from anyone outside of your household.” I can therefore do sit ups in the park 2m away from two of my friends but I cannot stand, discuss and weight up together the Government’s response to the current pandemic or make clear (if such exists) our collective frustration at it.
  1. Such an example can only buttress the point made at 12. above: that three people more than 2m apart cannot constitute a gathering in law.
  1. At times of collective crisis and threat, there is public value and benefit to social cohesion on such matters but, and it is a big but, there is also wider social value – i.e. to others, not just to me or whomever else gathers to protest – of that public demonstration of political engagement and commitment. There is of course more at stake here – the clear and obvious risk to health and life through not taking suppressing measures. Urgency also demands clarity and simplicity, both evident in Regulation 7 and, of course, the speed with which all of this was devised by officials and parliamentary counsel is incredibly impressive.
  1. That said, there would be merit in seeking speedily to amend or clarify the Regulations along lines suggested above.


Filed under Protest, Uncategorized

Human Rights in the Media: Fear and Fetish

“They Offer You a Feature on Stockings and Suspenders Next to a Call for Stiffer Penalties for Sex Offenders”: Do We Learn More About the Media Than about Human Rights from Tabloid Coverage of Human Rights Stories?

Last week, in responding to a letter from the House of Lords EU Justice Sub-Committee about references to the ECHR in the Political Declaration, the Government failed to give assurances that it will not repeal or replace the Human Rights Act. The Parliamentary Under-Secretary of State for Justice simply re-asserted the 2017 manifesto pledge, not to do so while Brexit is underway: it was right that we “wait until the process of leaving the EU concludes before considering the matter further in the full knowledge of the new constitutional landscape.” The letter, from 4th January, is here. As the Sub-Committee pointed out, this is in stark contrast to its proclaimed commitment to ‘shared values of respect for human rights and fundamental freedoms’.

Fully leaving the EU – in March 2021, if there is a two-year transition – then brings the double whammy, removal of EU Charter rights, and the possibility of revamping and dilution of the HRA. The Government did confirm its commitment to the ECHR, setting out that there no plans to withdraw from the ECHR. Whatever debates are to be had over the HRA – its operative scheme or its scope and extent – sensibly these should be informed. A timely new book – published this week, on 24th January, by Routledge – poses questions about the accuracy of media coverage. Human Rights in the Media: Fear and Fetish, edited by Michelle Farrell, Eleanor Drywood, and Edel Hughes stems from a conference organised by the School of Law and Social Justice at the University of Liverpool a few years ago on media coverage of human rights cases and issues. The content, including a chapter by me, are below:-

My chapter builds on some previous work, contained in this book, published by Hart in 2015, but includes two novel aspects. First, it offers a semiotic, Barthesian decoding of the following, by now infamous, red top front page, noting the way the paper portrays human rights as something not currently of value for individuals like you and me – all those on the right of the picture, the silent majority, are identified by first names (and ages) to facilitate that assimilation – but as something that protects people who are distinguished only by some collective shared criminal identity, necessarily demarcating them as outsiders, as having rejected society and its norms.Secondly, it discusses the results of an empirical content study that I conducted into coverage by the Daily Mail of one, hotly contested human rights issue: the (non-)deportation of foreign criminals, following conviction, on human rights grounds. Of 35 stories in the paper over a two-year period about named, identifiable individuals, just over 88% of them showed them being able to avoid deportation – a success rate for the Home Secretary of just over 11%. Official Home Office data for an overlapping three-year period (admittedly now several years ago) showed almost the opposite: on average, the Home Secretary succeeded in 81% of such cases: in only  19% of cases was the FNO (foreign national offender) able to remain in the UK. At the time the chapter was written, The Sun and the Daily Mail had a combined readership of 3.3m, and the Mail Online 14.3m hits. It is a massive problem, one on which I gave evidence to the JCHR over the summer as part of its “Enforcing Human Rights” inquiry since it is not a problem that can easily be solved by a regulator. It is not that the reporting is inaccurate or false – does it conform to independent records? – but is rather, as the communications theorist Dennis McQuail put it, one of completeness: are the facts sufficient to constitute an adequate account? The chapter includes further empirical research on the (non-) reporting of ECHR judgments, as well as discussion of various techniques of distortion that I identified in that earlier book. These are pre-emption (reporting cases too early in their life cycle but portraying them as establishing a binding ruling); prominence; partiality (in sources); and phrasing of stories, alongside three new ones:  lies, damned lies and statistics; repetition for reinforcement; and what I term an Unverfremdungseffekt, a reversal of Bertolt Brecht dramaturgical ideas about alienation. The chapter concludes  that “the least the HRA deserves is a clean fair fight – not one encumbered by misreporting, misconception, and the misconstruction of reality.”

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Filed under communications theory, Human Rights Act, media


The late, great John Peel was renowned for playing records at the wrong speed, so much so that a compilation of music that he championed through the 70s and 80s was called “Right time,, wrong speed”. The same might be said for the Supreme Court following judgment yesterday (Lord Kerr giving the single speech) in DB v Chief Constable of PSNI, the case arising out of the policing of flag protests that occurred in Belfast for a few months in late 2012 and early 2013. This blog is not going to be a detailed summary of the decision, something Leanne Woods has provided today on the UK Human Rights blog. Instead, it offers an alternative perspective on the critical part of the judgment that goes to the scope of Art 11, which protect peaceful assemblies, and the nature of the police’s duties and power in relation to such protests. The analogy with John Peel is apt: the Court was correct in the view it reached on the (non) policing of the loyalist flag protests but its reasoning is flawed. Indeed, that reasoning – unless nipped in the bud – opens up the prospect for restrictive policing, in Northern Ireland and on the mainland, in the future.

The gist of the case – a judicial review – was that in deciding they did not have the power to take preventive action in respect of protests that had not been notified under s.6 of the Public Processions (Northern Ireland) Act 1998, the police, specifically ACC Kerr (Gold Command) had misconstrued their legal powers. In doing so, they misunderstood the nature of Art 11 and undermined the 1998 Act. The Chief Constable lost in the High Court – Treacy J deciding that in considering whether to stop the marches, ACC Kerr felt he was inhibited from doing so by the 1998 Act and thus “labouring under a material misapprehension as to the proper scope of police powers and the legal context in which they were operating” – but succeeded before the Northern Ireland Court of Appeal (Sir Declan Morgan LCJ, Girvan LJ and Weir J [2014] NICA 56). There, the central issue was whether the police response to the parades was based on the need to take account of “the possibility of violence and disorder giving rise to article 2 risks both in the immediate vicinity and in the wider Northern Ireland community”.

The Supreme Court reversed the NICA, and found for DB. There are interesting discussions in the judgment on operational policing discretion in the context of protests (at [71]-[76]) but this is not our concern. In Lord Kerr’s view, in their handling of the flags protests, the PSNI misconstrued their legal powers to stop parades passing through or adjacent to the nationalist Short Strand area of Belfast. The extent of their powers and indeed duty (under s.32 of the Police (Northern Ireland) Act 2000, a general duty to prevent the commission of offences) was not “legally complicated” ([65]), though as Lord Kerr conceded, this was perhaps clearer only in hindsight. I too think the legal position is relatively straightforward… only not in the way the Supreme Court did.

The nub of the finding – and we see this in several places – is that a protest that is not notified is illegal and, as a matter of law, that this then required the police to take preventive action. The police – and this is the Court’s view, albeit very much a paraphrasing – were doubly wrong: not only did they not have any power to prevent marches that had not been notified, but they had a duty to prevent them.

Contrary to ACC Kerr’s stated position, they could indeed be stopped solely because they were unnotified. There certainly was such a thing as an illegal parade under the Public Processions Act ([65]).

It is here where I think the Supreme Court errs. It is the case that where the proposed organiser of a public procession fails to give notice to the police, both the organiser and (in Northern Ireland) anyone who takes part in it leave themselves exposed to arrest under s.6(7) of the 1998 Act. Does this mean the protest march is illegal or unlawful? The law needs to distinguish actors from event. While from a legal perspective it must be hard to disaggregate “the march” from those taking part in it, conceptually they remain distinct. In fact, even in the strict legal sense, the two are not (necessarily) coterminous. It is only an offence knowingly to take part in an unnotified march; s.6(8) offers a defence for anyone arrested under s.6(7) to show that they did not know of, and neither suspected nor had reason to suspect, the failure to notify the police. It is very unlikely surely that, had there been no notification of the Women’s March in Belfast a week or so back, all of the several hundred women who were there would have known that. Yet, Lord Kerr’s approach – the eliding of protest with protesters, each and both acting unlawfully – risks empowering (and indeed actually requiring) the police to break up each and every march where the organiser has not given the correct notice.

This category error leads to an analytical failing. In seeming to define out from the scope of the protection of Art 11 all protests that are “illegal”, Lord Kerr has misconstrued Strasbourg jurisprudence. His construction of an illegal protest as a legal entity, rather than unpeaceful protesters, is not one that has ever been accepted by the European Court of Human Rights. The notion of an illegal or unlawful protest – whether parade, march, assembly or some other repertoire of contention, in Charles Tilly’s terms – has no pedigree. There is clear and constant case law, starting perhaps with Ezelin in 1991 – where it was asserted that the right in Art 11 was so important that it could not be restricted “so long as the person concerned does not himself commit any reprehensible act” ([53]) – that asserts that

a situation of unlawfulness, such as …the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly. In other words, the absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities consider to be an assembly, do not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remains restricted by the proportionality and necessity requirements of Article 11 of the Convention (Novikova v Russia [2016] ECHR 388, [163])

While this does not mean that the parade or protest per se is immune from policing intervention, whether that be prevention (in advance) or dispersal while it is taking place, it does mean that any such interventions must be measured, proportionate and balanced. If challenged, as here, that is something that must be assessed ex post. It is engaging in that analysis that the Supreme Court singly fails to do. Instead the Court elevates a principle found in Molnar (at [37]) – that “the absence of prior notification can never be a legitimate basis for crowd dispersal” – to its reverse. Lord Kerr concludes from that the “ECtHR has made it clear that, in general, a requirement to notify an intention to hold a parade and a decision to disperse a parade or protest which has not been notified will not infringe article 11” (at [61]). That is not what Molnar holds at all, and neither do subsequent cases. In Berladir, the Court made clear that where there was no prior notification the decision “to disperse the ensuing demonstration solely because of the absence of the requisite prior notice, without any illegal conduct by the participants, may amount to a disproportionate restriction on freedom of peaceful assembly” (at [43]). In Primov, the Strasbourg Court said this:

While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public events since they allow the authorities to minimise the disruption to traffic and take other safety measures, the Court emphasises that their enforcement cannot become an end in itself. In particular, where irregular demonstrators do not engage in acts of violence the Court has required that the public authorities show a certain degree of tolerance towards peaceful gatherings. Consequently, the absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what was the public interest at stake, and what were the risks represented by the demonstration (at [118]-[119]).

The correct approach for the Court here would have been, having found that notice had not been given, not immediately to deem the march wholesale as illegal, thus requiring police intervention, but to move to the second stage of any analysis where it is alleged there has been an interference with a qualified right: to assess whether dispersing or preventing it would have met a pressing social need. That is why this is the right record at the wrong speed. On any reasonable assessment, the PSNI had the power in law to step in and to regulate the flags marches, even quite possibly to have imposed quite restrictive constraints, and were mistaken in both asserting they did not, and then policing the marches on that mistaken basis. Where the Court took a wrong turn was in concluding that this power – duty in fact – arose simply because an organiser, or small cadre of organisers had deliberately flouted the need to give notice. That approach removes automatically an individual’s right to peaceful assembly.

By construing s.6 of the 1998 Act as it did, the Supreme Court risks instituting a policing scheme that breaches the ECHR. In fact, the very structure of s.6 leaves open a human rights challenge, absent this Supreme Court decision. Since it is an offence for anyone taking part in an unnotified march to be arrested under s.6(7) then, assuming either sufficient police manpower or a small enough march, everyone could be arrested. The march would naturally come to an end – for want of any participants – and would do so irrespective of it being deemed an illegal march, under the ratio of DB. The fact that at the police station a handful of minutes later or later at trial, every participant succeeded in the s.6(8) defence – proving they did not know of the failure to notify – would arrive too late for the right to peaceful protest effectively to be exercised. The essence of the right had been extinguished at source on the day by mass arrests, notwithstanding later individual criminal vindication.

That risk is exacerbated were that ratio to be transferred across unthinkingly to the mainland. Here, in England, the scheme in the Public Order Act 1986 has one critical difference. It is only an organiser under s.11 who commits an offence if they fail to give six days notice (s.11(7)); participants do nothing wrong simply taking part in an unnotified march. This makes the notion of an illegal march or unlawful protest yet more problematic. Most people taking part in a march that had not been notified would have committed no crime at all.

Whether in Northern Ireland or elsewhere, constructing the law such that everyone on a protest vicariously suffers the flaws and omissions of others, of the organisers, seems to fly in the face of the individualised nature of human rights. This is not the first example of the courts sanctioning a collective policing response to an individualised concern or risk. I wrote this about the House of Lords decision in Austin, the kettling case. This decision

edges us closer to a position of “illegal gathering”, a concept hitherto unknown in English law but all too familiar elsewhere…The historic position taken in English law is to allow the targeting of individuals either by turning them away or permitting them to be arrested but to confer immunity on the group itself as a separate entity. What we see in Austin is effectively collective guilt by association–and the larger the potentially guilty group (that is the larger the numbers of those threatening or becoming violent), the more defensible it is for the police to exercise indiscriminate control ([2009] EHRLR 376, 393).

When the European Court sanctioned that approach when Austin reached it. It is to be hoped that if DB is taken there, Strasbourg adopts a very different approach to the idea of “illegal protests”.


Filed under Human Rights Act, Protest

Losing the vote: the referendum, Miller & dos Santos and Brexit

I need to make one point very clear at the outset. I was, and remain, fundamentally opposed to leaving the EU and think it will be a long- and short- term disaster for the UK – for our economy, our well-being, our environment, our workers, our citizens and EU nationals here to name but five areas of life EU law touches upon. I think the Leave campaign – rather, its main proponents, some of whom now hold Cabinet posts or are being touted as future ambassadors (!) – was shocking in its dereliction of truth and even more so in its ex post denials that it had done so. I’m well aware too, if the point this blog is about to make is thought a good one, that it may well be arrayed before the Supreme Court in a few weeks time, ammunition seeking to have the High Court judgment overturned, so securing the government’s position as one that need pay no formal heed to Parliament. At a normative level, I think that would be a very unwelcome and retrograde step. All that said, I did have and continue to have several legal concerns about the Miller litigation. Many have been expressed better and more contemporaneously than is this one. One niggling matter remains though. That is the focus of this blog. It is an issue with a solution though, one that is identified here too. Much has been written on the subject and most of it can be found on the UK Constitutional Law Association Blog or on Professor Mark Elliott’s Public Law for Everyone blog. I’d suggest anyone coming to this for the first time to dip in to any one of many excellent contributions already there. Mark kindly read over a first draft of this piece and made a host of helpful suggestions. All errors and views remain mine alone.

The key battleground, or one certainly, before the Supreme Court is going to revolve around the continued exercise of the right to vote in elections to the EU Parliament contained in s.8 of the European Elections Act 2002 on which see Mark Elliott’s recent post here and elements of Jeff King’s and Nick Barber’s most recent contribution. It is said that that right will disappear as soon as we leave the EU – assuming Article 50 to be irreversible – and since Parliament’s will expressed in the 2002 Act would thereby be frustrated, starting the withdrawal process cannot be done simply by the prerogative. The accepted constitutional position is that Parliament alone has the power to remove from citizens their entitlement to statutory rights, previously conferred by Parliament. It is, I think, accepted too by all – on both sides of the academic debate – that, were the UK to leave the EU, the effective exercise of the right to vote would be lost and that such a position is covered by the scope of the rule on prerogative vs. statute (i.e. the rule covers not simply the loss of rights but diminution of their effective enjoyment). It would be a contrivance beyond measure to seek to argue that elections could continue – the Parliament after all will continue to exist – given that the result of any such elections held would not mean parliamentary representation as there would be no UK MEPs.

This very short blog simply offers one small point to consider in that sub-debate. It is surely not beyond argument that one reading of s.8 of the 2002 Act would be that “A person is entitled to vote as an elector at an election to the European Parliament in an electoral region…for so long as the UK remains a member of the EU” (italics added) or some such similar qualifier. Indeed, that is the likelier more natural meaning. The High Court judgment after all involved and indeed was predicated on what could well be seen as a much greater “reading”, according to constitutional principles, and taking account of the constitutional background. I’m fairly sure Professor Finnis does not need me to defend him but that must be what he meant when he referred in his blog to “under EU Law” (a point which Robert Craig takes against him). It cannot have been the intention of Parliament firstly in 1978, when it established the first system of direct election, to have created something that would outlast any continued UK membership or indeed would even outlast the EU itself or its Parliament? The 2002 Act must surely be read as contingent on the continued existence of a European Parliament in some form? If so, is it such an egregious stretch to read the 2002 Act as subject to the UK’s continued membership? To do so, is is not, per King and Barber in their blog yesterday, “embrac[ing] the very approach to interpretation that [those who consider the High Court to have erred] reject in respect of the ECA 1972 and the broader case-law on the prerogative powers.”

Where then does that leave us? How, if at all, does that assist one way or another the argument on the prerogative? At first sight it takes us nowhere. It does not seem to offer a firm conclusion on whether the process can be kickstarted simply by government decision or whether Parliament must be involved. It simply asserts that the scheme of the 2002 Act foresees its own demise but does not predict, or require, how – rather, by whom – the fatal wound should be administered. Those advocating the High Court decision was wrong would assert that the implied words presume the UK being a member qua member state on the international plane, such status being subject to the prerogative power to conduct international relations as the executive sees fit. Those contending that the High Court judgment should be upheld would assert that even those implied words should be read subject to the wider constitutional principles – such as the pre-eminence of Parliament – and that Parliament, first in 1978 and then in 2002, must have legislated in full awareness that when it conferred rights, it reserved to itself alone the sole right to remove them. If Parliament had desired it otherwise, it was incumbent on it to design a different scheme and wording.

Both are attractive but stepping back is instructive. Those who support the High Court’s approach – if we take Barber and King as exemplars – consider that European elections point to be critical, to be the smoking gun:

It is, perhaps, worth emphasising that even if all of the critics’ arguments over the implications of the 1972 Act are accepted, the 2002 Act is quite sufficient, in itself, to prevent the executive triggering Article 50.

The generally agreed view – on both sides of the debate – is that what will be required, if the Supreme Court upholds the High Court is legislation; a resolution by both Houses will not be sufficient. If Barber and King – and other supporters of the High Court’s approach – are right though, it must follow that Parliament must be given much greater involvement in the withdrawal process than is perhaps currently acknowledged. The precise scope of that is still to be determined – and it would have remained so even if there had been no appeal – the scope of declaratory relief being left open by the High Court earlier this month.

There is an internal illogic in the claimants’ case. First, they argue the prerogative cannot be called up on to alter domestic law or deprive citizens’ of statutory rights. Triggering Article 50 does both, and at least does the latter. Secondly and however, all that is then required is the “intervention of Parliament”, something accepted by the High Court as a requirement in Miller (at [34]). This is the rub. The parliamentary intervention proposed must surely be more than currently seems to be envisaged? Indeed, this might be what Lady Hale was hinting at in her recent Sultan Azlan Shah Lecture in Kuala Lumpur (9th November), a speech that has generated a whole separate sub-story if its own. At a legal level, so far as I can see only Jeff King so far seems to have engaged with this aspect. If these are “statutory rights” (and of course there are issues here about that very issue), and if the legal position is that these cannot be removed or their exercise frustrated by the executive alone, then surely it must also follow that their removal must specifically be addressed by Parliament, and approved? Otherwise whatever lesser involvement Parliament does have is likely to be confounded by the common law principle of legality set out by Lord Hoffman in Simms ([2000] 2 AC 115, 131)

But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Now – and I’m grateful to Mark Elliott for helping my thinking on this aspect – the counter to that is that the right conferred here on UK citizens, in the 2002 Act, is not the sort of right envisaged as being captured by the principle of legality. The Simms principle, it would be argued, extends only to common law rights, not those with origins in, or created by, statute. Without conceding that point, if that be correct, then surely we meet head-on the Thoburn principle – that the 2002 Act is a constitutional statute, and so would need specific repeal in any legislation purporting to authorise the triggering of Article 50? A general Act under which Parliament explicitly authorises the “removal, repeal or diminution of such rights under EU law that subsist in domestic law whether their source be an EU Treaty, Directive, Regulation, the 1972 Act or some other enactment” would – either on the principle of legality or under the Thorburn principle – not be viewed ex post as sufficient. What would be needed in whatever legislation eventuates after the Supreme Court decision would be a clear and express Parliamentary recognition that in authorising the triggering of Article 50, Parliament acknowledges, and accepts, the necessary consequence: the removal of the right to an effective vote in EU Parliamentary elections.

Raising that very legal problem thus portends the political solution though it would only be partial. It is not only the right to vote that would be lost. At the very least it would be all “category III” rights, referred to in Miller (at [61]) as the rights that flow from membership of the EU club: the right to vote, to stand in elections, to seek a reference to the CJEU and to request the Commission take regulatory action. These would all need separate iteration in any authorising statute and express acknowledgement of their removal, showing Parliament has squarely confronted what it is doing. That would that be enough provided that category III list is conclusive. That is unlikely. As just two examples, it must also include the right to petition the European Parliament and the right to have access to official EU documents (both under Arts 20 and 24 TFEU). These too would need to be addressed specifically in the Triggering Article 50: Parliamentary Consent Act 2017.

As to category II rights – rights of EU citizenship enjoyed in other member states by UK citizens – one side of the argument is that these are not functions of, let alone conferred by, domestic law at all. If the Supreme Court were to adopt that analysis, described by the High Court when rejecting it as “highly formalistic”, withdrawal under Art 50 would not engage the frustration principle at all. Any reduction or loss of such rights consequential on withdrawal would not be the reduction or loss of domestic rights. Such a line of reasoning might well not be followed. The High Court on this might well be upheld. The Supreme Court might well conceive them as EU Law rights conferred on UK citizens by the European Communities Act 1972 (albeit only capable of being exercised abroad). They include the rights of residence and of movement (and associated rights) and the right to seek diplomatic protection in a member state. These category II rights would then also be domestic law rights removed by withdrawal. If so, the solution must again be for the legislation authorising withdrawal specifically to address each of these rights and provide express parliamentary sanction for their removal.

Category I rights – those capable of replication in domestic law should the UK leave – would survive withdrawal. That is either because they were transposed through separate legislation (such as the right to equal terms for work of equal value, now in Chapter 3 of the Equality Act 2010) or because they take effect in domestic law by virtue of s.2 of the 1972 Act. That latter would include both SIs (such as the Working Time Regulations of 1998) or because they are themselves directly effective and directly applicable EU Law (as either Regulations or Treaty provisions). In all such cases, either the transposing legislation or the 1972 Act will remain in force unless and until separately repealed notwithstanding any withdrawal from the Union itself… and it would be that separate repeal (or repeal and confirm, as is being proposed in the Great Reform Bill) that constitutes Parliament’s express decision to remove rights it had earlier conferred. No separate traversing of these rights is therefore necessary in the Triggering Article 50: Parliamentary Consent Act 2017.

Jeff King’s fine discussion does not touch not any of this. As his minimalist option, he suggests a one-section Act conferring authority on the Prime Minister. That would, I take him to mean, comply with the ruling if upheld by the Supreme Court. He goes further though and offers his conditions option: the bill “would be the occasion for Parliament to secure a right to exercise genuine input into the manner in which negotiations for withdrawal shall take place.” He offers four principles to underpin that more expansive Bill, but – and this is critical – none addresses the continued domestic law status (or otherwise) of extant EU rights, the very matter upon which those supporting the High Court judgment found their view that it was correctly decided. Those four are:

First, Parliament must be given clear rights to notice, to comment on key negotiating positions and draft agreement text, and to a response from the Government to its comments. Second, the devolved governments and legislatures should enjoy formal participation in the consultation process in rough parity with the Westminster Parliament. Third, the Government’s stated notice deadline of 31 March 2017 should be respected (assuming it is not itself to blame for further delay through bullish behaviour). Fourth, there should be no attempt to load the bill with a variety of veto points that would have the effect of destroying the possibility of Brexit during negotiations on the exit agreement. If Parliament really wants a U-turn, it must do so openly rather than insidiously.

I am doubtful that if such a procedural Bill were introduced and passed, even one on the expansive terms Jeff King suggests, that it would be sufficient to allay the concerns above about the removal of substantive rights, and Parliament’s necessary role in that. I’m offering this point in a genuine spirit of inquiry. I’d be delighted if it could be shown how my thinking has gone awry – my concern about the case would become a non-issue for the Supreme Court. Yet, I really do not see how it can be maintained on one hand that statutory rights will be taken away by executive fiat while seemingly to suggest on the other that the remedy, the legislation said to cure that ill, needs to address “only” the process for approving withdrawal not the substance: what will be the effect of withdrawal? Of course such substance-oriented legislation would be possible – and I’ve tried to outline some of that above but it would involve a lengthier parliamentary process as it would require (in my view) the separate identification of all rights removed. It thus rather foresees the end of the game before a decision has been made to start it… but that would appear to be the logical implication of the route the High Court took.


David Mead is Professor of UK Human Rights Law at the University of East Anglia. Many thanks to Mark Elliott for reading over and for suggestions on an earlier draft.



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The Dog That Barked Rather Quietly: The Role of Law in Social Movement Studies

On Wednesday this week (27th) I gave a talk at a symposium organised by UEA’s School of Politics, Philosophy and Language. The theme of the day was media, activism and politics. I rather went against the grain and spoke about the role & relevance of law for social movement scholars, and activists. I plan in this short blog to outline a couple of the keys points I made

I am a Johnny-Come-Lately to social movement scholarship, having been almost all my academic life rather a dull(ish) doctrinal lawyer, albeit one who has dabbled in the socio-legal aspects of protesting. Probably less of the come-lately, and more of the “train delayed not yet arrived” if I am being honest.

That said, what I have gleaned so far from reading the literature – immersing would be too strong a term – on law and social movements is a double-whammy omission:

  • the dominant focus of law and social movements scholars (whether lawyers or sociologists) is on using law as part of the group’s strategic armoury, what Charles Tilly referred to as repertoire of contention. This, I argued, marginalises its relevance to a whole host of other issues that social movement scholars look at as, say, a structuring force. As Michael McCann put it in his review piece in the Annual Review of Law and Social Science: “many of the more recent studies build on relatively narrow but unarticulated conceptions of law, mostly focusing on litigation outcomes and the roles of lawyers.” (McCann, 2006).
  • and even within the literature in using law, the focus is almost exclusively on legal mobilisation, that is law before and in the courts, either proactively or reactively. This too offers only at best a partial explanation of the role of law within the armoury of an SMO.

Even then, the appearance of law in the literature is still rather nascent, perhaps only in the last decade or so and is very much a US-driven phenomenon. For example, The Blackwell Companion has nothing in its index for law, two pages listed for law enforcement, and two for “justice systems”, and eight pages listed where “legislation” is mentioned. By contrast mass media, mobilisation and movement participation each have entries into tens, along with sub-entries. There are honourable exceptions this side of the pond, such as Graeme Hayes at Aston or Brian Doherty at Keele, and Chris Hilson in the Law School at Reading.

The talk was in three parts. The first sought to provide various alternative perspectives or conceptualisations of law, in addition to it being broadly a study of rules (Where do they come from? What do they assert? How are clashes of rules resolved?). Again as McCann put it “…much scholarship is committed to making claims about law without clearly thinking through the complex, multiple dimensions of what often are recognized as law and legality” (McCann, 2006). I offered law as binary – are you an employee, yes/no? – and law as constitutive, creating relationships, of rights, of duties, establishing definitions and categories. Law is also a schematic – establishing interdependent framework of rules – and structuring responses. We might also conceive of law as a formalised system of dispute resolution, offering order, not the chance of chaos. Lastly, we might conceive of law as concerned with values and norms, with a legitimating function.

The next offered some suggestions as to how law – even in its most rule-maker guise – could shed light on the various interests or research questions SMO scholars have, broadly (and very basically):

  • Initiation: what might trigger someone into acting, and what process is behind turning that atomised individual anger into collective action – how and why and when does a group emerge, and mobilise?
  • Organisation: what form does and should a group take to maximise strength? How does it grow – how does it represent itself / is it represented in order to garner support? How are internal tensions managed?
  • Goals: what are the group’s aims? What counts as success? What factors – opportunity structures – determine success?
  • Operation: what does and should the group do to achieve its aims? What strategies or tactics – repertoires of contention – do/should they adopt? How, why and when might strategies change.

Just taking a few of those. So clearly the law can provide an initiating trigger – such as the legal ban on certain groups voting or on same-sex marriage. Law might provide the background structuring canvas – in common law systems, landowners cannot be forced to use their property or to rent it out; it can, broadly speaking, sit vacant – so a whole squatting movement might grow. It might not be the law on the books that is the problem but the law in action – the discriminatory use of vagrancy laws in the 1970s gave rise to Scrap SUS. Law might also help frame the claim – using the language of rights (disability rights: Vanhala, 2002) or TaxJustice. Law might impose an organisational straitjacket, requiring certain forms (and this is especially so in the labour movement) such as an “organiser” under certain public order laws. It might provide a structural suggestive skew towards more formal organising – such as we can see in the UK in the Transparency of Lobbying, Third Party Campaigning and Trade Union Administration Act 2013 which cut by 2/3 the amount third parties can spend in a general election campaign, while holding the line for registered parties.

It is at the operational level that there has been most focus. SMO choices tend to fall into institutional (e.g. political campaigning, lobbying, litigation) or confrontational, carrying out a range of repertoires of contention or protests, over a spectrum from peaceful to civil disobedience to non-violent direct action to outright violent insurrection. Most of the focus, both here and more so in the US, has been on legal mobilisation, or litigation strategy – whether pro-active, such as bringing JR – as in the recent PLP case – or reactively. Within that latter, Vanhala (2011) helpfully distinguishes strategies of active reaction or passive reaction. The former is where one seeks out by formal acts of NVDA or civil disobedience – awaiting a prosecution (or perhaps civil SLAPP: Hilson, 2016) then to co-opt the court process for a “political” defence, airing grievances more widely – for both internal and external mobilising purposes (on which see Doherty and Hayes generally). There are clear problems associated with such approaches. We might think of Galanter’s (1974) idea of repeat players v one-off hitters and the fact that activists ‘must articulate their claims so that they fall within the categories previously established by an amalgam of constitutional, statutory, administrative, common, and case law’ which in turn ‘shape the progress and outcome of movement claims in important ways’ (Andersen 2006). Another would be the linked problem of judicialisation. As Hilson (2016) puts it, “the whole point of a SLAPP suit is to convert a matter of public interest into a technical private law dispute, robbing it of political framing and providing a legal one instead”. In short, the legal process might not be sufficiently attuned to the bigger picture, to the “real” claim or concern, or the group’s goals – what we might term doctrinal disjuncture. In the Cornerhouse challenge to the SFO decision to discontinue the investigation into alleged corruption by BAe Systems in relation to the Al Yamamah defence contract with Saudi Arabia, the applicants lost (simply) because judicial review is not responsive to a merits-based challenge.

The paper neared its close by offering a more enriched and nuanced legal terrain for SMOs to traverse, located within the earlier framework – differing conceptions of law. This paper will highlight just two, of those four. The preference for law over disorder is most easily seen in the formalised system of dispute resolution, without resort to force, the idea really of legal mobilisation. In contrast we can see law as favouring if not disorder per se then disruption. We need think no more than to the disruptive – preventive – capacities of modern policing, and mass arrests (without subsequent charge) or bail conditions – all in fact sanctioned by law. Alternatively, law itself can be used as a disruptive repertoire – and I am thinking here of the mass compliance with the Westminster notification system called for by Mark Thomas. Law acts with constitutive power when it, for example, dictates the availability of places to mobilise or hold actions by conferring the status of “public” or “private” upon it, with all that entails for access. It also defines what can be done at place X, rendering the ordinary and commonplace an act of resistance: it is not unlawful to read out the names of the dead, but it is if you do so at the Cenotaph within the 1km boundary of Westminster without notification. Legal rules thus construct political deviance: while no one has been arrested for playing hopscotch, protesters have been arrested for chalking on the pavement, and charged with criminal damage (Hardman [1986] Crim LR 330).

The paper ended by re-asserting that law was a vast resource for both SMOs and those studying it but that at the moment, we were scratching the surface in only one or two areas. The problem, I argued, might be that law is not fully or usually thought of – either by its scholars (though far less so now) and others – as a social construct, and a reflexive one at that. The focus perhaps had been on what law was – and less on what it did or was capable of doing. Previously law had been seen as something in parallel – whereas I am offering law in an undergirding role.

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Law and Social Movements

Yesterday (27 April) I gave one of two keynote speeches at a UEA Politics symposium on Media, Activism and Politics. The full list of speakers is here Media Politics and Activism FINAL poster   I hope to blog a few lines on this in the next few days but for now, for anyone interested, the slides are here –

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Two single thoughts on sovereignty

In a recent blog, generated by the EU referendum, allied to the Conservative plans to enshrine sovereignty in statute, Mark Elliott, Professor of Public Law at Cambridge, discussed the (by now) well known views of Lord Bridge in Factortame: that whatever limitations were imposed by EU Law, they were accepted voluntarily by Parliament in 1972 when it passed the European Communities Act.

This assertion relies on the fact that it had been in 1972 a (reasonably) long established principle of EU Law – dating to Costa in 1964 – that EU Law must be given primacy over conflicting national laws. That must be blindingly obvious: for a “common market” to work, there must be some common law. Unless and until all laws were common, that inevitably meant supranational supremacy. Lord Bridge was not dealing with that as a normative proposition but simply asserting first that doctrinally speaking, the point had been settled and secondly, that it could reasonably have been expected for MPs to have been aware of that. Hence, his voluntary acceptance assertion. Professor Danny Nicol puts the contrary view very well in his 2001 book EC Membership and the Judicialization of British Politics where, having researched the debates and the papers, he comes to the conclusion that Parliament was not fully informed by the Government – ministers, law officers and civil servants – on the legal consequences of joining the Community, as it then was.

That is not the point of this short blog. My concern is what Professor Elliott then goes on to suggest:

[Lord Bridge] argued that any limitations upon its sovereignty implied by EU membership had been accepted ‘voluntarily’ by Parliament when it enacted the 1972. The implication was that Parliament is at liberty to permit EU law to prevail over its own enactments. The flip side of that coin must be that if Parliament chooses not to permit EU law to have that effect—either by repealing the 1972 Act or asserting the priority of only certain pieces of domestic legislation over conflicting EU law—then it is free to do so.

I have never really understood what the voluntary nature of the argument adds other than to illustrate its consensual nature. I’m certainly not at all sure the flip side follows. If I voluntarily give my best friend my car, I cannot by the same exercise of choice, seek to make her give it back to me – it’s gone, surely? Some exercises of choice are a one-way street – the subject matter of the choice having disappeared, as a result of the choice being exercised (if I choose to eat a mars bar now, I cannot later choose to give it to my son) or become a differently constituted entity.

The difference here is greater – and is the point made by Lord Wade, (discussed a few paragraphs earlier in the blog) in his commentary on the Factortame case. If sovereign power X, in full awareness of consequences freely chooses to confer sovereignty on Y, then X is no longer sovereign – Y is. No unilateral act by X can ever restore X’s sovereignty as it is no longer sovereign. It simply cannot expect whatever reclamation order it makes under its purported sovereignty to have any legal effect. While it undoubtedly has the power – i.e. there is no restriction on it seeking to reclaim – it cannot legitimately expect to become the sovereign once again.

While, to be fair to Professor Elliott, the argument that his blog makes does not rest on the validity of those two seeming opposites both being true – but on the difference between UK domestic law and EU law on the international plane, that I am fully in agreement with, I thought it sensible to point out what I see is a flaw in logic.

This necessarily involves me disputing another “truth” about sovereignty – which Professor Elliott also makes, or repeats. It is this: sovereignty contains one built-in limitation. No sovereign can ever divest themselves of their sovereign power. I have never really grasped this. In lay terms, it confounds reason

“You’re the sovereign now”

“What does that mean?”

“You have absolute power.”

“Oh, does that mean I can abolish myself or give it all away to my mate?”

“Oh, no, that’s the one thing you can’t do.”

“But you said I had absolute power?”

“Ah, yes in all but that one area”

“Oh, so I don’t have absolute power?”

A body that has limitations imposed upon it is not sovereign but subordinate, surely… if for no other reason than that some other entity has prescribed what its powers are?

It seems too to fly in the face of historical precedent. Is it really being asserted that countless divine monarchs who, over the years, have ceded powers (and whether willingly or by force does not seem to matter here for this argument) to elected legislatures either

(a) were never sovereign since if they were able to cede power, they were never really sovereign? or

(b) such ceding could not only be unilaterally revoked by the monarch (perhaps by now a long extinguished line) but the law and political framework would respond to that unilateral revocation with welcoming arms?

That latter seems as far fetched as a re-united Conservative Government on 24 June!


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I was asked on Twitter by Carl Gardner for “a concrete example of a bill that this plan [for EVEL] would take away Scottish rights on, and an explanation of how.”

Screen Shot 2015-10-22 at 17.48.43

This short post seeks to do that, with some considerable trepidation as there are countless tens of better placed devolution experts than me, but here goes. It does not offer a normative view on the soundness or otherwise of excluding MPs representing Scottish constituencies from voting on matters that concern solely the massed millions of English constituents.

It seems to me very simple that the EVEL proposals both dilute the value of Scottish MPs votes, numerically by conferring two votes on English MPs (so in numerical terms a vote by a Scottish MP is relatively worth half of an English MP’s vote, and in reality much more since that crucial second English MP vote has no Scottish equivalent, setting up as it does a one-way veto exercisable without response (since if the veto in Grand Chamber is voted on and rejected by the House in full, the ping-pong that results leads to only one winner, the English veto)

Let us assume a Parliament slightly differently constructed:

Labour 305 comprising 265 English MPs, 25 in Scotland and 15 in Wales

Conservative 275 comprising 255 English MPs, 5 in Scotland and 15 in Wales

SNP 25 MPs

LibDem 27, comprising 13 English MPs, 4 in Scotland and 10 in Wales

(along with 18 N/Irish MPs from UUP, DUP, Sinn Fein and SDLP)

and assume further a Labour/SNP coalition with a majority of 4 (330 seats).


An English-only Health Bill passes 2nd Reading with those SNP votes, and the Scottish Labour votes carrying the day. We can exclude from this example a Bill that fails to pass 2nd Reading since this new system leads to no change – it goes nowhere, and not even the possibility of English MP consent can save it, since it never reaches that stage. Similarly, a Bill that passes 2nd Reading but with Scottish MPs voting against will go into the new system but if the veto is exercised, that is in accordance with their wishes and if consented to there, there had been no change in result in the new EVEL system

Thus, it passes through Public Bill Committee in the usual way but then the new EVEL system triggers a legislative Grand Committee of (here) English only MPs. The 25 Scottish Labour MPs are excluded, as are the 25 SNP MPs, the few Scottish LibDems and Conservatives, as well as Welsh and Northern Irish MPs. The anti-Bill minority in the House (275 Conservatives and 27 LibDems) is now turned into a majority: against the 265 English Labour MPs there would be ranged 268 English Conservative and LibDem MPs combined. They will, we can assume, veto the Bill – they didn’t after all want it when it went to a full vote on 2nd Reading. While it will go back the House as a whole to seek compromise, eventually if that cannot be reached, the Grand Committee is reconvened and “asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the bill fall.”

It seems to me that it cannot be anything but a diminution, removal even, of the equal rights of Scottish MPs over the legislative output of the House. Their one chance, as part of a rump of 650, to say yea to legislation is outflanked by the later right afforded to a smaller group to say nay.


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