The Law and Policy Blog

The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion

18th November 2024

The new Republican presidency-congress in the United States as well as developments in other countries mean that in addition to the illiberalism we have had so far, there is more – perhaps worse – to come.

So how should liberals respond?

Here are three suggestions, humbly put forward.

1. Do not respond, if you can, to catastrophism. You are going to think how bad things can be, and will project this on to the other side. You will then react to what your mind has conjured up. Even if those projections are plausible, this will exhaust you quickly. You will have little energy or focus left for what they do come up with.

2. Do not respond, if you can, to what the illiberals say they will do. They will goad you and frighten you, as they enjoy “owning the libs”. They like the sound it makes, the reactions they can get. Again, even if these threats are plausible, reacting to each bare threat will exhaust you quickly. You will again have little energy or focus left for what they do come up with.

3. Respond, if you can, to what they actually do – not what you fear they will do, or even what they say they will do. What they actually will do will be bad enough, and will need your energy and focus. The illiberals will hope – and expect – that all the noise and fears under (1) and (2) will mean that by the time they do put measures forward, they will have little opposition.

As Margo Channing in All About Eve said, we are are in for a bumpy ride.

We don’t need to make it even bumpier for ourselves.

***

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New stories for old – making sense of a political-constitutional rupture

14th November 2024

LAUNCELOT: I will send help as soon as I have accomplished a daring and heroic rescue in my own particular…

CONCORDE: Idiom, sir?

LAUNCELOT: …idiom!

– Monty Python and the Quest for the Holy Grail

Last week, before the US presidential election, there was uncertainty.

(This blog recorded that moment here.)

Few if any people had any idea about what would happen next.

Now many people are getting used to the news of the election, even if they are not happy (to say the least) with what happened.

For many, the re-election of Donald Trump as president was not how the story of 2016 was supposed to end.

His presidency was supposed to have been a one-off, an aberration. It was to be regarded as a moment of electoral madness, albeit one which has had unfortunate lingering structural effects for the composition of the supreme court and other judicial benches for at least a generation.

In this way the story was seen as similar to that of Brexit in the United Kingdom, where another 2016 moment of electoral madness also had unfortunate lingering structural effects – in that case of the United Kingdom being outside the European Union for at least a generation.

And now, that perhaps comforting sense of distance has been snatched away.

It is instead happening again.

“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was, Oh no, not again.”

– The Hitchhiker’s Guide to the Galaxy, by Douglas Adams

This time round, of course, the rookies of the first presidency are now seasoned veterans – with four years’ experience and a further four years’ reflection of the failures of the first presidency.

In 1852, Karl Marx wrote of the return of a Napoleon Bonaparte to power in France (emphasis added):

“Hegel remarks somewherethat all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. Caussidière for Danton, Louis Blanc for Robespierre, the Montagne of 1848 to 1851for the Montagne of 1793 to 1795, the nephew for the uncle. And the same caricature occurs in the circumstances of the second edition of the Eighteenth Brumaire.”

Given the mishaps of the first Trump presidency, it looks like Marx’s famous maxim should now be adapted to read “the first time as farce, the second time as tragedy”.

“Here’s where the story ends
Oh, here’s where the story ends

It’s that little souvenir, of a terrible year, which makes my eyes feel sore”

– The Sundays

But.

Nothing is certain in human affairs, and the new presidency may not actually go the way its supporters hope (and the rest of us fear).

Over on Bluesky, the always thoughtful and perceptive “The Stylite” commenter averred the following:

In 2019 in the United Kingdom, of course, the gods punished Boris Johnson by granting him what he wanted – a huge majority and a general election mandate. The “big dog” caught the car.

And soon Johnson was gone, not only from Downing Street but also from Parliament.

What happened in 2016 had created an opportunity for the populists – and 2019 was when that opportunity was flunked.

Could 2024 be the 2019 of the United States?

In the United States, Trump and the Trumpites are generally oppositional – grievance-mongers and complainers about the Washington elite and so on.

It is not a mindset that adapts well to actual government.

And although there is “Project 2025” – there is otherwise little sense of what the new administration will actually do. The early appointments do not indicate any great seriousness.

Will the gods punish Trump and the Trumpites with also giving them what they want?

Who knows.

But whatever happens, the old story of Trump’s election in 2016 being a one-off has to be replaced with a new story – one which has not taken shape.

And until and unless those opposed to Trump can make sense of what has happened, then there is little chance that they will revive to take advantage of any failures and disappointments in what is to come – to escape this dreadful moment.

CONCORDE: Quickly, sir! This way!

LAUNCELOT: No, it’s not in my idiom! I must escape more….

CONCORDE: Dramatically, sir?

LAUNCELOT: …dramatically!

– Monty Python and the Quest for the Holy Grail

***

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The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next

8th November 2024

The working assumption of many in reaction to the re-election of Trump as President is that he will serve a full term.

And that is the most likely outcome, as that is what presidents tend to do once elected: they serve out their term.

But there are other possible outcomes.

Some outcomes are morbid, and they are possibilities for any president, especially for one advanced in years.

And there is the possibility he may step down mid-term – or be replaced mid-term.

If Trump stands down mid-term, the new President Vance could pardon him for all and any federal crimes (though not state crimes). This would meet one of Trump’s presumed objectives for having re-run for President.

And if the timing of the replacement is done just right then a President Vance has the prospect of up to (but not quite) ten years in office: here the Twenty-second amendment to the US constitution provides:

“Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. […]”

If the replacement is done on the day after the second anniversary of the start of the term, then there would seem nothing to prevent a President Vance from then running for election and then re-election as President.

[Edit – in other terms: (2 years minus one day) plus 4 years plus 4 years.]

It can also be noted that in a way Trump has done his job for his backers in getting re-elected and, accordingly, there is nothing more he can personally do for them which another friendly occupant of the Oval Office cannot also do. If their objective is dominance over the medium- to long-term then they will be already thinking about the approach to the 2028 election.

And if there are doubts (real or otherwise) about the cognitive alertness of President Trump there is also the Twenty-fifth Amendment, where a President can be effectively removed against their will, on declaration of the (well) Vice-President and others.

On the other hand, a President Trump serving a full term may suit his backers just fine.

Trump is not a President to personally drive legislation through Congress – he is not a Lyndon Johnson or a Franklin Roosevelt.

But with a Republican Senate he does not need to do so: they can drive through the legislation themselves, subject to the final composition of the House of Representatives.

What a lazy president enables is for those around him to dominate the judicial nominations and discretionary powers.

So we can expect a raft of conservative nominations for the judicial benches – and for Justices Clarence Thomas and Samuel Alito to stand down and be replaced by 40 or 50 year-old strong conservatives, nominated by Trump and approved by the Senate. That will secure the Supreme Court for the conservatives for at least another twenty years, if not more.

And we can expect a huge amount of Executive Orders and such like, which in turn will be upheld by conservative judges – for who needs congressional legislation when you can have the combination of executive rule-making and nod-along judges?

Those around Trump will not be the inexperienced incoming staffers of the 2017 presidency, but people who know what to do and how to do it, many with hard experience of the first Trump presidency.

They will know what to do so as to fit things around a golf-playing president.

Trump himself may not be busy, but those around him will be.

Brace, brace.

***

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A postcard from the day after an election: capturing a further political-constitutional moment

6th November 2024

Yesterday things were unclear, and today things are all too clear.

Yesterday it looked as if Harris could win. On the evidence available to someone watching from England, there seemed no great enthusiasm for Trump either at his flagging under-attended rallies or elsewhere. There seemed no reason to believe he would do better than four years ago (or two years ago with his endorsed candidates).

But against that view was a sense of apprehension, if not doom. For, as this blog also averred, one could also too easily imagine Trump winning. Not because one could point to ‘factors’ (as a certain type of historian would put it), but just because he could – especially in this age of extreme political volatility.

And he has.

One trick of the human mind is to place shape and form onto events which at the time were uncertain, and so those who were themselves unclear as to what was about to happen tend to deftly switch to being very clear about what went wrong – and who was to blame.

From the perspective of this liberal constitutionalist blog the only points that seem worth making at this stage is about how the electoral system (at least in the United States but also elsewhere) is inefficient in certain respects.

Viz:

A candidate was a liar, known to be a liar and could easily be shown to be liar – but people voted for that candidate anyway.

A candidate was a convicted fraudster – but people voted for that candidate anyway.

A candidate was by any meaningful definition an insurrectionist – but people voted for that candidate anyway.

And a candidate was in the views of some serious people a fascist – but people voted for that candidate anyway.

This means that there is no point, in and of itself, showing a candidate to be a liar, fraudster, insurrectionist and/or a fascist if people do not actually care if that candidate is a liar, fraudster, insurrectionist and/or a fascist.

And so if the outputs of a media-political system of accountability – such as that offered by the lengthy US presidential campaign – do not gain purchase or traction, then the question is what is the purpose of a system of accountability.

The view that once a candidate is shown to be [X] then that would be enough for voters to not support that candidate falls apart when voters, knowing the candidate is [X], do not care.

What is the solution to this problem?

Perhaps there is no solution. As a Victorian politician once said to an earnest colleague: do you really believe there are solutions to political problems?

(One day I will track down that quotation.)

But a step towards a solution is to understand the nature of the problem.

The old media-political model of accountability – the Woodward and Bernstein model, if you will – is not working when you have a shameless candidate clapped and cheered by nod-along supporters.

And it is not a problem that is going to go away.

Yes, Trump is exceptionally charismatic – it is difficult to image a DeSantis or a Vance carrying a campaign like Trump. As such it is tempting to see him as a one-off and to just wait for him to go and for normality to return.

But there will be other Trumps, especially as the old gatekeepers in political parties and mainstream media fall away, and as illiberals become more adept at exploiting mass social media.

The one book which seems pertinent to all this originated in (of all years) 1984.

This was Neil Postman’s Amusing Ourselves to Death – a book which should be better known.

His son wrote this brilliant short essay about that book and Trump in 2017, a lot which still stands today.

His son said:

“I wish I could tell you that, for all his prescience, my father also supplied a solution. He did not. He saw his job as identifying a serious, under-addressed problem, then asking a set of important questions about the problem. He knew it would be hard to find an easy answer to the damages wrought by “technopoly”. It was a systemic problem, one baked as much into our individual psyches as into our culture.”

His son then put forward some possible solutions. You may think of others. I cannot think of any.

How do you have accountability when people care not for the accounts that they are given?

When people know they are being lied to, but do not care?

I have no idea.

The only conclusion I have is that it is time for a good cup of tea.

***

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A postcard from the day of an election – capturing a political-constitutional moment

5th November 2024

Today is the day of the American presidential election.

Sooner or later there should be a result – even if, like four years ago, there is drama (or worse) all the way into the new year. And when there is some sort of result then there will be those who will explain why that was always the most likely result. Such is the nature of punditry.

But today, all is uncertain.

On the face of it, it would seem that Harris should win. Trump does not seem stronger than he did four years ago – or two years ago when his endorsed candidates did badly. He is also a more divisive figure than he was when he won eight years ago, and he is against a less divisive candidate.

But, we are not in times where such a rational view has much purchase. We are in a period of populism and hyper-partisanship and disinformation, of joyful cruelty and illiberal frenzy. One can too easily imagine Trump winning. Less likely things have happened in the United States and around the world in recent years.

And if so, we will have an extraordinary situation of a president with criminal sanctions and facing criminal trials using the might of his office to reduce his exposure to any proceedings.

And we will have a president who boasts of wanting to also use the might of his office against political enemies, both personal and general.

The only liberal hope would be that, again, he is too lazy to follow-through on his threats, and that the swings he takes will be on the golf course, and not from the Oval Office.

In the days, weeks and months to come, things may be clearer – though even that cannot be said with absolute certainty – but as of today, things are unclear and they are worrying.

So it seemed to be a moment worth recording, using this blogpost as a postcard.

And to adapt the wording of a postcard: I wish we weren’t here.

***

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“…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore

Hallowe’en 2024

As words ‘law’ and ‘lore’ can sound pretty much alike. And as things they are also very similar: that is a theme of this blog.

But from time to time the courts are asked to deal with (what we can call) capital-l Lore – that is (what we can call) Folklore.

One of the greatest examples is the (ahem) hallowed 1991 New York case of Stambovsky v Ackley – the case that provides us with that priceless quote above.

Here is the quote in context (broken into one-sentence paragraphs):

“Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years.

“Plaintiff promptly commenced this action seeking rescission of the contract of sale.

“Supreme Court reluctantly dismissed the complaint, holding that plaintiff has no remedy at law in this jurisdiction.

“The unusual facts of this case, as disclosed by the record, clearly warrant a grant of equitable relief to the buyer who, as a resident of New York City, cannot be expected to have any familiarity with the folklore of the Village of Nyack.

“Not being a “local”, plaintiff could not readily learn that the home he had contracted to purchase is haunted.

“Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers’ Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted.”

I am not an American lawyer, but on the basis of the fuller quote above, one gets the sense that the judge is being playful. The rest of the judgment affirms this view.

There are many ways the judge could have worded the point without saying that “as a matter of law, the house is haunted”.

(And as an English lawyer, the true Hallowe’en horror of the passage is that estoppel is a matter of equity and not a matter of law, but we shall let that pass.)

The judge could have simply said that the defendant was “estopped from going back on previous statements” or something similarly bland.

But the judge saw their chance to end their point with that wonderful wording, and the judge took it, much to the amusement or puzzlement of many American law students since.

For more on ghosts and the law, please see this absolutely superb paper by Canadian lawyer Michael Shortt – and a hat-tip to William Holmes at Legal Cheek for pointing to it.

(The Shortt paper is something I would love to have written, but I would not have done such a good job. It is brilliant.)

Happy Hallowe’en to all my readers.

Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion

28th October 2024

In every voice: in every ban,

The mind-forg’d manacles I hear

– from London by William Blake

Over at Prospect I have done an article on the recent announcement about a review into prison sentencing.

Please click and read it here.

This post will develop the point which was implicit in the Prospect article: the role of public opinion and of public (lack of) thinking in prisons (lack of) policy.

There are, of course, mental prisons as well as physical prisons – the ‘mind-forg’d manacles’ described by William Blake.

These prisons-of-the-mind are at least as difficult to break out of than any high-security prison.

The mental prisons exist on a macro scale – in terms of political and media discourse – as well as in personal habits of thought.

And the one particular notion that has the most purchase in prisons (lack of) policy is that a prison sentence for a term of years is a starting point for a non-trivial offence, and that any deviation from this norm must be wrong.

Stating this notion critically does not mean that the opposite is true: that imprisonment is inherently wrong.

Indeed, there are certain exceptional crimes for which long sentences – even life tariffs – are justifiable.

But in the main, it is difficult to see what good a long prison sentence does.

Even the standard justification that it takes a person off the streets is not convincing in the grand scheme, as of the 80,000 inmates currently in prison only about 80 have whole life tariffs. At some point – every day, every week – many are being released back on to the streets to replace the ones taken off.

As has often been said, prison is an expensive way of making people who do bad things more likely to do bad things.

Here – if you can forgive me – I would like to quote an introduction I did for a post some time ago at the Financial Times:

”Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise?

“The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer.

“A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions.”

In essence, if prisons did not exist as a form of punishment, few would invent it.

And in the past, prisons – or gaols – were places where people were kept pending some ultimate outcome, such as awaiting trial or sentence in a criminal matter or the discharge of a debt in a civil matter.

Prisons were usually not, in and of themselves, the punishment, but a means to an end.

Of course, in criminal matters, those ends were once rather violent, either in a corporal or a capital sense, or otherwise life-changing, such as transportation.

And imprisonment is certainly preferable to those sorts of barbarity or extreme sanctions.

But is it the best starting point now?

For many, the deterrence is detection and conviction, not imprisonment.

For others – up to about 80,000 – the sentence did not create a deterrent effect.

One day perhaps – although such predictions can be quite wrong – people will consider routine lengthy imprisonment with the same bewilderment that we today treat chattel slavery or witch trials. As something which only makes (a kind of) sense in a different mental universe, a different mentalité.

One day perhaps people will also think the same about our current drugs policy – the failed ‘war on drugs’ – which is closely connected with many aspects of our criminal justice system.

Perhaps.

But in the meantime, the appointment of a well-regarded former justice secretary to this timely review into sentencing is a Good Thing.

It may even signal to a broader possible escape from this prison-of-the-mind.

***

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A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties

22nd October 2024

Not all cases of constitutional import involve the high drama of cheering campaigners and disappointed ministers – or of cheering ministers and disappointed campaigners.

But the cases set out what is constitutionally proper and improper all the same.

Last Wednesday to relative media silence (other than in local media) the Supreme Court handed down its decision in a Northern Ireland case about appropriate legal action for a complainant to take so as to prevent harmful chemical gases and noxious smells escaping from a waste disposal site.

This is perhaps not the most glamorous set of facts for any legal case – and this is perhaps a pity, as the Supreme Court decision asserts a point of fundamental constitutional importance: about the ability of a person to access the courts for judicially reviewing public bodies not doing their regulatory job.

By way of background, there is an excuse which is deployed again and again by public bodies seeking to escape being taken to court for judicial review.

(In general terms, judicial review is the process by which a court will decide whether a public authority is correctly exercising its legal powers.)

The excuse is that the complainant has to “exhaust other remedies” as judicial review “is the remedy of last resort”.

In this case, the complainant Mrs McAleenon was told that she could not go to court to get public bodies to properly regulate what was going on at a waste disposal site.

On the face of it, the local council and the Northern Irish Environment Agency and the Northern Ireland department of Agriculture, Environment and Rural Affairs all had powers to do something about it:

But the complainant (and other local people) believed that these public bodies were not doing what they should be doing about the problem.

And it was a problem – this was certainly not a trivial issue:

One would think that this was a straightforward position: some local people had a problem, and there were public bodies who could and should do something about problem.

This would seem to be as basic a situation for modern public law and administration as one can conceive.

The public authority regulator should do its regulatory job.

But for Mrs McAleenon and her neighbours it was not a straightforward position.

When she threatened to take the public bodies to court so as to make them perform their public duties, she was told that she could not do this.

Instead, she was told that she had to do other, far more risky and expensive legal things first.

She was told by the public bodies, seriously, that judicial review should be not be available because she had “adequate alternative remedies”, in that she could herself launch a private prosecution against the owner of the waste disposal site, or could bring nuisance claim against the owner of the site.

Mrs McAleenon applied for judicial review anyway, and at first instance the court sided with her.

But then the public bodies appealed and the Northern Irish court of appeal went against her in a detailed judgment.

The appeal judges ruled that “there were two alternative remedies open to the appellant to provide her with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site. Each of these remedies, we find, offered her the opportunity of obtaining relief against the alleged wrongdoer”.

She should not be able to go to court against the regulator, the judges said, because her real complaint was against the site.

Mrs McAleenon applied to appeal to the Supreme Court, and she was given permission.

One issue in the case was that there were disputes over facts and contested evidence – and judicial reviews usually do not deal with factual disputes and contested evidence. Judicial reviews are normally about pure issues of law in respect of agreed facts. As such, cross-examination of witnesses and competing expert reports and so on are rare in judicial reviews.

This looks as if it may have influenced the appeal judges – as other legal procedures were more used to assessing evidence at trial.

But it is entirely open to a judicial review court to deal with factual and evidential conflicts.

The Supreme Court took the view that judicial review should not be refused just because there were factual and evidential conflicts.

But the Supreme Court went far further than this, and said – in effect – that for Mrs McAleenon the availability of criminal and private law procedures were not even alternative remedies in the first place.

In essence, when the complaint is against a public body as a regulator, it is irrelevant that the complainant may also have a remedy against a party that is not being properly regulated.

In two key paragraphs, the Supreme Court set out the public importance – and public benefits – of the complainants having access to judicial review against regulators:

The Supreme Court also made the point that access to an Ombudsman may not also be an adequate alternative legal remedy:

This dicta should please those who (correctly) are concerned about the general ineffectiveness of the Ombudsman system.

The Supreme Court remitted the case back to the Northern Irish court of appeal for it to be properly decided.

This is the press release from the successful appeal solicitors Phoenix Law, who should be congratulated for a great piece of appellate work on a crucial if unglamorous issue:

This case may have significant implications across regulatory law, both in respect of environmental issues and otherwise.

The decision strengthens the “public” element of public regulation.

Regulated entities already often have rights of appeal as well as access to judicial review. (And many regulated entities often seem to have “captured” their regulator and have established cosy relationships.)

But members of the public who are unhappy with how the regulator is performing its public duties are now in a stronger position.

No longer can such complainants be palmed-off and-waved away by the regulator with the message that they should just directly sue – or prosecute – the regulated entity bothering them.

No longer can they just be told that they should – at great expense and risk – first exhaust “alternative remedies” and not bother the regulator.

Complainants now have Supreme Court authority for being able to go to court to get regulating public authorities to do their jobs properly.

There is a great deal of discussion about whether the Supreme Court of the United Kingdom is small-c conservative or not.

But this case, perhaps together with the 2021 Majera case, show that when it comes to the province of judicial power, the Supreme Court will firmly assert and defend the proper role of the courts in our political system.

For not all cases of constitutional importance, limiting what the executive in its various forms can get away with doing and not doing, are glamorous actions about high politics.

Sometimes they are about other, more mundane noxious things.

***

Direct links (as Bailii links can be problematic on some apps):

Supreme Court decision: https://www.bailii.org/uk/cases/UKSC/2024/31.html

Northern Irish Court of Appeal decision:

https://www.bailii.org/nie/cases/NICA/2023/15.html

2021 Majera decision:

https://www.bailii.org/uk/cases/UKSC/2021/46.html

***

Comments Policy

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court

1st October 2024

In the main courtroom of the Supreme Court there are the benches – really desks – where the Supreme Court judges sit, and at each place there is a microphone for each justice, with a button they can press when they want to speak.

But at the head of the bench, at the centrally placed desk, there are two buttons: one for the presiding justice to press when they want to speak, and one (I am told) which they can press to turn off all the other microphones in the courtroom – justices and advocates alike.

If you ever want to think about true judicial power, think of that second button.

I know this because I have had the privilege of judging moots in that seat and in that courtroom. It is a splendid space, adapted from the old (indeed, olde) magistrates’ court, and still with some of the old (olde) furnishings, with an imposing portrait of that famous eighteenth-century magistrate John Fielding. But it is also up-to-date, with discreet working electronic paraphernalia and – again showing true judicial power – working radiators.

You couldn’t want a more “common law since time immemorial” feel to a modern courtroom if you tried. The only fault is the garish carpet, which must be the worst-looking carpet in England, and perhaps even the worst in the world.

There are courtrooms over at the Royal Courts of Justice that are superficially more imposing – but they are really museum pieces, without working radiators and often without any working electronic paraphernalia.

Anybody with experience of the variety of English courtrooms, up and down the country, cannot but think that it would be a good thing if more courtrooms were up to the standard of those in the Supreme Court. It is a great space, but it is not a representative one.

When the Supreme Court was established fifteen years ago, it was a sensible decision to house it in a new building, and the choice of the old (olde) Middlesex Guildhall on the side of Parliament Square was inspired – historically, architecturally, and geographically.

From an Anglocentric perspective, it is as if the four elements of the ancient English state are on the four sides of the same public square: the Palace of Westminster (parliament), Whitehall (executive), Westminster Abbey (the established church), and now the Supreme Court.

Before then, the highest court was housed in a corridor somewhere in the Palace of Westminster, and was in form as well as in location the judicial committee of the House of Lords.

The notion was that the appeals that went to the House of Lords were heard by the judicial committee of that house. The committee could – and indeed was until the days of the Blair premiership – attended by the Lord Chancellor, a cabinet minister who was also entitled to sit in a judicial capacity.

As a system it sort-of-worked, even though it was conceptually untidy.

And so when the Blair government proposed a new supreme court to replace the judicial committee the opportunity was taken to assert the independence of the court with a new building. It also had its own budget and even it own website url (and not any gov.uk url). It even had its own remarkably impressive law library. And it is a lot easier to visit than the old judicial committee.

In terms of symbolism there could not have been a more emphatic (and welcome) break with the muddle-through of the old House of Lords regime.

But.

Changes of form are not always changes of substance.

In many ways the new Supreme Court does much the same work as the old House of Lords committee – with a high proportion of impossibly dull complex tax cases.

And it is often the same sort of judges – and at one point recently the twelve-judge court had four Davids. (And Davids really do not need such disproportionate representation.)

Yet there are a couple of interesting changes.

First, the court is taking its role seriously as a constitutional court. This is in part because part of the constitutional reforms fifteen years ago was that it would hear certain devolution-related applications in addition to its main workload. It is also because circumstances meant that it had to deal with controversial constitutional cases, such as the two Miller cases.

But it has not got carried away – as a sequence of cases shows the court has firmly refused to extend its role in respect of policy decisions. The court will not duck the big constitutional cases – but it certainly will not decide them in a way that would always please activist liberals.

And second, the court has done as much as it can to make its hearings and judgments accessible ot the public. Its website has a great deal of detail on each upcoming case – sometimes even including documents such as skeleton arguments, video footage is made available of hearings, and the judgments are handed down with useful summaries.

Over time, as generations of law students (and interested lay people) come and go, this accessibility will be a gradual boon to the public understanding of law. The effect will not be dramatic and immediate. But having ready access to such materials can only have a positive effect.

The court is not perfect – and there still needs to be fundamental reform of the parallel judicial committee of the Privy Council which also sits in the same building with the same judges.

But fifteen years on, it deserves a couple of cheers from those who take the separation of powers and judicial independence seriously.

And perhaps the court could mark the anniversary by, say, treating itself to a brand new carpet.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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