The UK Productivity Puzzle, the English Regions and the Law

(Part 2 of 2)  The regulation of broadcast media considered in the last post to this blog draws attention to the real structural problems in the government and economy of the UK, and in particular of England. But it is merely a symptom of a deeper malaise, a malaise which both was a cause of Brexit and requires urgent remedial treatment if the UK is to survive as a major world economy after its break with the EU. If Parliament used the legislative tools at its disposal, there is no reason why the problem cannot be addressed.

The last posting to this blog considered how the UK broadcast media landscape, and the way in which it is regulated, reveals the serious structural defects in how the UK, and in particular England, are governed (London Calling – The BBC, Channel 4, and the Problem of the English Regions).

This, however, is not unique to broadcasting. It is merely symptomatic of a much deeper problem which now has significant implications for the economic as well as political and constitutional health of the nation.

It also entirely capable of being addressed, if Parliament used the legislative powers that are available to it, and that already have their template – however inadequately it has been designed and is currently enforced – under the Communications Act 2003.

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London Calling – the BBC, Channel 4 and the Problem of the English Regions

(Part 1 of 2) The regulatory framework for public service television broadcasters, such as the BBC and Channel 4, contains a unique provision which requires them to produce part of their programming outside of London. How this works, how it is policed by Ofcom, and how the broadcasters respond to it, provide an insight into the serious structural problems with the government and economy of the UK, in particular the English regions.  

Every year, the UK media regulator, Ofcom, publishes a set of data which receives far less attention than it deserves. This is the annual ‘Made outside of London‘ register, a list of television programmes produced outside the capital by, or on behalf of, the UK’s four public service broadcasters (the PSBs – BBC, ITV3, Channel 4 and Channel 5).

Two things are surprising about this document. The first is that it exists at all. Regulatory bodies typically have no interest in whether, or to what extent, their regulated sectors contribute to economic activity in the UK’s constituent nations and regions. The second (which explains the first) is that Ofcom compiles the data to monitor compliance with duties imposed by Parliament. Each PSB is under a legal obligation to ensure that part of its programming is produced somewhere other than London.

This represents an exceptional, in fact unique, example of the law being used to require a measure of decentralisation in a major sector of the UK economy.

The data would merit scrutiny if only because they were so unusual. On examination, it turns out that they also offer a stark illustration of the underlying structural defects in the government and economy of England.

Continue reading London Calling – the BBC, Channel 4 and the Problem of the English Regions

Anarchy in the UK

In the case of Buick, the Northern Ireland High Court explored whether government departments can continue to operate as normal in the absence of ministers due to the collapse of the devolved administration in Belfast. It reached a striking conclusion which, if upheld on appeal, would have significant constitutional and practical implications. It was mistaken.

The United Kingdom is currently engaged in an experiment in political anarchism. For over a year, it has been exploring what happens when one part of the country, in this case Northern Ireland, is required to carry on without an elected government.

The experiment arose inadvertently, and on the surface very little has changed. Belfast 2018 is not the anarcho-syndicalist utopia of Barcelona 1936, nor has it suddenly lapsed into a Hobbesian state of nature. But the very reason why hardly anything appears to be different – the continuity that is provided by the de facto technocratic government of the Northern Ireland Civil Service – gives rise to constitutional questions of real importance. The most fundamental question is this: can day-to-day government be carried on by civil servants without the need for direction or control by politicians; if so, subject to what conditions and within what parameters?

It was only a matter of time before this question fell to be considered in a court of law. And it has been, in the recent case of Buick [2018] NIQB 43, in which the High Court was asked to determine whether Northern Ireland’s ten government departments are able to carry on without ministers in charge. It came to a surprising and unintentionally radical conclusion.

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Why the Crown (sometimes) still matters

In R (Black) v Secretary of State for Justice, the Supreme Court was required to consider when Acts of Parliament are binding on the Crown. It found that the existing law was inconsistent and unsatisfactory. It then made things worse.

The UK Supreme Court’s year in 2017 was framed by two constitutional cases rooted in the medieval history of the British monarchy.

At the beginning of the year, in R (Miller) v Secretary of State for Exiting the EU, the court was concerned with what remains, in the early Twenty-First Century, of the scope of the royal prerogative. And at the year’s end, in R (Black) v Secretary of State for Justice, it had to consider the circumstances in which a contemporary Act of Parliament is binding on the Crown.

The first of these cases, which was related to the legal mechanism for delivering Brexit, achieved wide publicity. The second did not. But the judgment in Black is revealing as to the state of the UK constitution as it enters 2018, and of practical application in a wide range of cases. It tells us something about why the Crown still matters in UK law.

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The Media Coverage of the Article 50 Litigation

As the Article 50 litigation reached the Supreme Court in early December, sections of the media were already sharpening their knives in preparation for the likely failure of the government’s appeal.

The target of this sharpening was the judiciary. The Daily Mail, for example, portrayed the Supreme Court Justices as ‘eleven unaccountable individualsThe paper published a short biography of each judge, ranking them on a scale of one to five for ‘Europhilia’, by which it meant their degree of perceived bias in favour of the respondents’ case.

The explanations for these rankings were frequently risible. Lord Carnwath is apparently a five-star Europhile; the clinching factor, if one were needed, his reputation as an ‘acclaimed viola player and lover of European culture‘. Lord Sumption, on the other hand, is a ‘Eurosceptic‘ because he was once mildly critical of the European Court of Human Rights, an institution which has nothing to do with the European Union. (That he is also a French speaking historian of the Hundred Years War, and owner of a – very lovely – château in Berbiguières in the Dordogne, passed curiously unremarked.)

However, to observe the absurdities of this kind of journalism is not only far too easy but also entirely beside the point. What matters is its mere existence, demonstrating as it does that elements of the media are seeking to recruit the judiciary as combatants in the socio-cultural war which is rapidly becoming the dominant theme of British politics.

For anyone interested in judicial independence and the rule of law, this is an unwelcome turn of events.

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National Aids Trust v NHS England – Public Health and the Interpretation of Statute

The Court of Appeal judgment in R (National Aids Trust) v NHS England is concerned with the allocation of responsibility for funding certain types of HIV treatment on the NHS.

At its narrowest, the case addresses the specific (though important) question of whether the power to fund prophylactic medicine for HIV lies with local authorities or with the NHS Commissioning Board (NHS England).

More generally, it serves as an unflattering critique of the legislation which underpins the allocation of roles and responsibilities within the health service.

And, at its widest, it adds usefully to the case law on how to understand the vires of a public authority when it lies within a badly-drafted, and hard to interpret, statutory regime.

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A Bad Day for a Hard Brexit – the Meaning and Effect of the Article 50 Judgment 

The Divisional Court has today (3 November 2016) determined that the decision to issue the Article 50 notice that will trigger Brexit must be made by Parliament and not the government – R (Miller) v Secretary of State for Exiting the EU.

Before saying anything else, there are three initial observations that should be made about this.

The first is that it is just the outcome of a preliminary skirmish. The decisive legal battle will be fought in the Supreme Court next month. The government has already announced its intention to appeal the case, and there is no question that it will get permission to do so. In spite of the significant media interest in today’s judgment, nothing has been finally determined.

The second thing is that the judgment is, nonetheless, hugely important. The Divisional Court was as strongly constituted as it could have been – the Lord Chief Justice, Master of the Rolls, and Lord Justice Sales. In a lucid and robust decision, the judges were unanimous and expressed no reservations about their conclusion or the reasoning that led them to it. Their judgment effectively changes the terms of the debate about when and how Brexit will happen. It determines the context in which the Supreme Court case will be heard.

The third point is that the judgment should come as no surprise. A number of lawyers who were willing to express a clear opinion (myself included) thought that the claimants in Miller had much the better of the legal argument, for the reasons I set out in an earlier post ‘Why the UK Parliament Still Needs to Vote for (or against) Brexit‘. Naturally this was not a unanimous view, and the Supreme Court could yet go the other way. But the arguments against the government are very powerful, as the judgment in Miller fully demonstrates.

Subject to these observations, what did the Court decide, and what does it mean?

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