Law and a Constitution – The disgrace of the Johnson Regime.

Blue Tara by Joss Wynne Evans

There are several things that until very recently marked Britain as a leader of civil societies. These have been the two ancient and hitherto jealously guarded institutions, the rule of law and our Parliament elected to represent us in the Commons, working with the Lords under the Crown. Both are now, it seems, being trampled on by the present Johnson regime, with the apparent connivance of HM Opposition and the other parties in the Commons.

In the early part of last year I and hundreds of others sought, at significant personal expense, to have the regime’s arrogation of power using public health regulations put under the scrutiny of Judicial Review. The government has used every trick, high and low, ever since, to avoid the matter and other similar actions coming before the court, despite acknowledgments from the bench of the high public interest element.

In the field of public procurement of billions of pounds worth of contracts in connection with the regimes lockdown and the flu epidemic it has become clear that the regime has systematically failed to meet public standards in procurement and has quietly let an astonishing litany of contracts to single applicants of its choosing. If you are not familiar with the sterling investigation and litigation work being conducted by the Good Law Project under Jolyon Maugham QC, ( ) you have an eye-opener awaiting. The failure of the media has meant that these shocking matters are not immediately familiar to as many as they should well be.

This, from an email from Jolyon Maugham, is what they are up against:

“Correspondence with Government has revealed they expect to spend a staggering £1 million defending our judicial review of their decisions to award contracts criticised by the NAO. This is a sum unprecedented in our lawyers’ experience of judicial review proceedings. We can’t but wonder whether they are trying to scare us off – using the bottomless public purse to avoid accountability to the public.

Government also says, remarkably, that finding out whether they acted lawfully in channelling hundreds of millions or billions to their VIP associates, is not in the public interest.

We had until recently been working on the understanding that we had raised enough money for our challenges to Government’s awards of hundreds of millions of pounds of PPE contracts to Pestfix, Ayanda, and Clandeboye.

We were shocked to learn that – having failed to provide the evidence we’ve been asking for since July – Government is threatening a vast disclosure exercise going well beyond what would normally be undertaken in a judicial review. And not just that they have hired an expensive international commercial law firm. They expect to have a team of 30-40 working for up to 3 months on an exercise that has not been requested by us, or by the Court.

In the experience of our legal team, costs incurred by Government in judicial review proceedings rarely exceed £100,000. Here Government says it has already spent over £325,000, and estimates their total costs will amount to £1 million – a staggering sum for a judicial review.

Government knows full well that we cannot take existential risk on bringing a single case. So we wrote to Government asking it to agree and order ‘capping’ both our costs and the taxpayers’ costs in these public interest proceedings.

We were shocked this week to receive their response contending that the litigation is not in the public interest, and refusing our proposed reciprocal cap: “In particular our client does not agree that the proceedings are ‘public interest proceedings’”. These are cases involving on Government’s own admission hundreds of millions of pounds being spent on unusable facemasks on companies that went through the VIP lane.

Not in the public interest? What are they on!

The point is all the more remarkable given that a barrister employed by the Government Legal Department in her witness statement of 30 November stated that: “We acknowledge that there is considerable public interest in Covid related procurement, particularly of PPE.”

We have now applied to the court for a Cost Cap. In line with our transparency principles I am publishing my Witness Statement. But if we don’t get one, unless a white knight or white knights emerge, the simple fact is we will have to abandon the litigation. We are not in a position to bear a £ 1 million risk.

As if all this was not enough there is, to add to this litany of obfuscation and corruption the small matter of the legislation passed with less than a day for scrutiny, and with No Deal as the only alternative, -the European Union (Future Relationship) Act 2020. The process was described by the venerable Hansard Society as “an abdication of Parliament’s constitutional responsibilities to deliver proper scrutiny of the executive and the law” and a “farce”. Jolyon Maugham comments:

Worse even than the absence of scrutiny – of legislation published less than a day before Parliament voted on it – is what that legislation does. It gives incredibly broad powers to Ministers to make laws and override Acts of Parliament. It has been described by the doyen of academic public lawyers, Professor Mark Elliott, as “the hoarding of power by the Government at the expense of respect for any part of the constitution that threatens its hegemony.”

Section 31 of the Act gives a Minister power to “make such provision as [he] considers appropriate to implement… or otherwise for the purposes of dealing with matters arising out of, or related to, the Trade and Cooperation Agreement.” These are incredibly broad powers – given to a Minister not Parliament – to reshape every aspect of national life the EU previously touched on. 

And it is all but certain that Government will misuse these powers.

In December, Government relied on other Henry VIII powers to abolish the operation of the state aid regime that existed before Brexit. That regime limited its ability to give financial assistance to companies. It prevented distortion of competition and at a more basic level ensured Government could not favour particular industries or individual companies over their rivals. You may well think we needed those rules. But what we are left with is no substantive state aid regime in the UK, with only loose guidance in place to govern how public authorities should act from 1 January onwards.

The Government took this step purportedly in pursuance of a power in the EU Withdrawal Act 2018 to “prevent, remedy or mitigate” a “deficiency” arising from our departure from the EU. However, Government would have known it was on dodgy footing – the House of Lords committee tasked with scrutinising the use of these powers termed it “neither a welcome nor acceptable use of secondary legislation”. And we don’t think its actions were lawful.

Shortly before Christmas we instructed Hausfeld LLP and leading Counsel Tim Buley QC and Yaaser Vanderman to take the first formal step in litigation, challenging the abuse of Henry VIII powers.

Under cover of Christmas, with less than a day for scrutiny, and with No Deal as the only alternative, Parliament surrendered vast amounts of sovereignty to a dishonest Government. We intend to guard what is left.

Given what we now know:

  • That in 2020 589,000 people died of all causes in England and Wales as against 541,000 in 2019.
  • That the regime has admitted that over 100,000 people died of non-virus causes as a result of the closure of the NHS to elective procedures and consultations. This despite a clear warning from the DoH dated 8th April last that up to 170,000 might die in six months as a result of the withdrawal of services.

We must conclude, firstly, that the whole lockdown regime and all the associated measures are unlawful as having been disproportionate to the threat to public health. This probably from the start, but certainly by the end of April 2020. And secondly, that there is a strong case to answer for the manslaughter/cuplable homicide by those proposing and ordering this withdrawal which should be tested in court.

If my readers do nothing else to protest against what is happening I do recommend them to donate to the Good Law Project which will help to rack up the pressure to bring the criminals to account.

Blue Tara by Joss Wynne Evans