Month: April 2022

The trial of Jesus of Nazareth

Good Friday, 2022

As a non-militant atheist, Easter has no special religious significance to me, but it always makes me think about the trial and punishment of Jesus of Nazareth.

We have no contemporaneous court records for that trial and punishment, just as we do not really have such records for anyone else who was tried and executed at that time – that is not a surprise.

What we do have are very early traditions that there was such a trial and punishment.

Here is, for example, Tacitus writing in the early 100s about the Roman fire of about fifty years before:

“Christus, from whom the name had its origin, suffered the extreme penalty during the reign of Tiberius at the hands of one of our procurators, Pontius Pilatus…”.

We also have records of what Roman and Jewish procedural and substantive law was at the time, though nothing about how it was applied (or not applied) in this particular case.

And we have the gospel accounts and the letters in the New Testament.

The fascinating and striking thing about the gospel accounts of the trial of Jesus of Nazareth is how secular the story is: little or nothing rests on any miracles or divine interventions from arrest to punishment.

It is just one thing after another in almost entirely human terms.

It could be a normal procedural legal drama.

The gospel accounts seek to explain the relationship between the reasons for his arrest, the manner of his trial, and the imposition of a sanction.

One day, as with other historical trials, I would like to write about this case.

(I was once asked to write an article about the trial, and I never completed it as I could not make up my mind on various aspects of the applicable law and procedure.)

And what would be nice about writing something substantial is that as nothing really rests on any miracles or divine interventions in the story of the trial and execution of Jesus of Nazareth, nothing in such an examination will ‘prove’ or ‘disprove’ the truth of what Christians believe.

It should be possible to write a detailed examination of the trial which would satisfy Christians and non-Christians.

Had the gospel writers intended for their accounts of the the trial and execution of Jesus of Nazareth to require a belief in the possibility of miracles or divine interventions then they would have not have written such secular narratives.

Instead, by setting out this dramatic story in secular terms, the gospel writers ensured that those of us who are not Christians are able to fully engage with the story.

Some will doubt or deny that the figure of Jesus of Nazareth ever existed or whether he was even tried or executed.

But given in the gospel accounts no miracles or divine interventions are claimed about the trial and imposition of the punishment, we are not trying to explain (away) anything extraordinary.

Extraordinary claims, of course, need extraordinary evidence: but there is little extraordinary in the gospel accounts of the trial or the imposition of the punishment.

The sources may be inaccurate or incomplete (or conflicting) – but they are not fantastic.

And given there are early traditions of a trial and execution – even if not of other events in the life of Jesus – then it would seem perverse to insist that it cannot have happened and was a later invention.

There is also, of course, the complicated issue of how the writers of the books of the New Testament sought to allocate responsibility for the arrest, the trial(s) and the execution as between Romans and non-Romans.

So: what do you think?

What is your view, regardless of your ultimate religious position, of the trial of Jesus of Nazareth?

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The misconceived politics of “Law and Order!” and “Red Tape!”

14th April 2022

On theme of this blog is the relationship between political discourse and underlying law and policy.

For example, the difference between “Law and Order!” as a slogan, complete with capital letters and an exclamation mark, and – well – law and order.

A contrast, of course, which is very telling this week as the leader of the party of “Law and Order!” conceded he had broken the criminal law on government property, and only one minister resigned.

Law and order is for other people.

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Other phrases – again complete with capital letters and exclamation marks, are “Health and Safety!” and “Red Tape!”.

And here too the political vocabulary plays strange things with reality.

Over at the Guardian, there is a fascinating and informative article by the deputy news editor of Inside Housing on the Grenfell inquiry, Lucie Heath.

Heath says:

“the inquiry has consistently painted a damning picture of the deregulation drive that was a key focus during Cameron’s time as prime minister.

“The obsession with abolishing red tape saw ministers at that time ignoring warning signs about a growing building safety crisis, and civil servants too disaffected to speak up.”

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Rarely a month goes by without some minister getting easy applause for saying that we should get rid of “Red Tape!”

Dynamic words are often used, such as “unleash” or “unshackle”.

But such words are not an articulation of a policy, but a substitute for one.

And usually those who speak generally about cutting “Red Tape!” are unable to provide particularised examples.

Of course, some rules and regulations need to be revisited – especially those that have been put in place because of that other political phrase “Something Must Be Done!” – but this should be conducted on a case-by-case basis.

Regulations – in and of themselves – are neither inherently bad nor inherently good.

And getting rid of regulations – or not taking regulations seriously – for the sake of it is just as misconceived as putting in regulations for the sake of it.

Sometimes – as is being uncovered by this inquiry – what seems like mere “Red Tape!” can be very important indeed.

And so just as we would have better politics if politicians and the media did not confuse “Law and Order!” with law and order, we would also benefit if we did not clap and cheer on attacks on “Red Tape!” but looked at each case to see if regulations were needed or not.

If so, we would be “unleashing” or “unshackling” sensible political discourse.

And wouldn’t that be a thing?

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A close look at the resignation letter of David Wolfson QC as Justice Minister

13th April 2022

The justice minister David Wolfson QC has published a letter:

He is (at least) the third senior legal figure to resign from this government in respect of the Rule of Law.

The Treasury Solicitor and the Advocate General for Scotland resigned when the government sought to introduce legislation to enable it to break the law.

And now a justice minister has resigned because cabinet ministers themselves have broken the criminal law (which is the necessary implication of the Prime Minister and the Chancellor of the Exchequer to not to contest the fixed penalty notices) and seem not to care.

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Wolfson has a very good reputation within the legal profession – and is highly regarded even by those who disagree starkly with his political allegiance.

It is – on any basis – a significant resignation.

But the letter is worth looking at carefully – especially the second paragraph:

These five sentences are perfectly composed and structured.

The first sentence is the general finding of fact: there was not only repeated rule-breaking but also (as rules can sometimes just be for policy or guidance) breaches of the criminal law.

This general finding is incontrovertible – the paid penalties are conclusive proof.

The second sentence then sets out a further finding of fact: the breaches were not merely trivial but were of such a “scale, context and nature” that such conduct cannot pass “with constitutional impunity”.

So not just breaches, but significant breaches.

The second sentence then sets out the factors which go to this significance – that others complied at personal cost, and were prosecuted and even criminalised for lesser breaches.

And, as with the first sentence, what is stated is incontrovertible.

Having established these two conclusions, the third and fourth sentences then distinguish between what happened but also the official response: the implication here is that a more measured official response could have perhaps cured the problem.

But the official response was not measured.

Then having set out the facts, and stated that the official response was deficient, the fifth sentence (somewhat inevitably) then follows – including a deft last stab that the prime minister does not see the problem in the same way.

And the paragraph then ends with the firm stamp of the word “resignation”.

No tiresome “I am resigning because” waffle here – the paragraph ends where other paragraphs would have began.

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Compare this response with that of another government minister – the Lord Chancellor, who has a recognised constitutional role to defend the Rule of Law:

What in Wolfson’s first and second sentences can this custodian of the Rule of Law disagree with?

Indeed, Dominic Raab’s tweet is no doubt a very instance of the “official response” which Wolfson describes in his fourth and fifth sentences.

Wolfson’s letter and Raab’s tweet are a study in contrast: how to take something constitutionally seriously and how not to do so.

Any minister who professes to care about the Rule of Law – including those who are lawyers – must ask themselves: which part of Wolfson’s letter is wrong?

And if they cannot fault its reasoning or its conclusions they should also do what Wolfson did: resign.

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Boris Johnson’s Triple-Whammy of Unlawfulness

12th April 2022

Constitutional law is not supposed to be interesting.

Constitutional law is supposed to be boring.

And Boris Johnson could not make it any more exciting.

To take three examples.

First, the Supreme Court held that he gave unlawful advice to the Queen over prorogation of parliament.

(An incident that managed to engage all four of the monarch, parliament, the courts and the executive – the constitutional law equivalent of a full house.)

Second, his government actually introduced legislation to Parliament to enable it to break the law.

(Just typing that seems strange – but it happened, although the government averred that the law would be broken in a “limited and specific” way.)

And now, an even more extraordinary thing has happened.

The prime minister has been found by the metropolitan police to have broken this governments own laws on gatherings under lockdown.

And the necessary implication of this sanction is that the prime minister knowingly misled parliament when denying such a gathering took place.

He cannot even say he was misinformed, as he was at the gathering himself.

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Johnson has not been prime minister a long time, and there are many prime ministers who have been in office far longer with far less constitutional excitement.

Of course he should resign – but that is not the point of this blogpost.

The point instead is to convey the sheer magnitude of what Johnson has ‘accomplished’ in his trashing of constitutional norms – and in under three years..

Just one of the above examples – and there have been many more, it is just those three came readily to mind – would be career-ending for a politician in any normal political system.

And that even now nobody knows if he will resign is an indication of how abnormal politics are at the moment.

It takes a certain quality for a prime minister in three years to contrive this triple-whammy of unlawfulness.

Indeed, it is difficult to conceive what he could still yet do as a fourth instalment.

Brace, brace.

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A cabinet free to all – a side note on the “Non Dom” issue in UK politics

11th April 2022

How could it be allowed, I was asked, for someone with a Green Card and who was married to a Non Dom to be a member of the cabinet?

The answer I gave was that – in principle – anyone can sit in the cabinet and be a minister.

This is one of the examples of the flexibility of the constitution of the United Kingdom and its reliance on conventions.

There are some relevant limits – there is a limit on how many paid ministers there can be.

But this does not limit unpaid ministers – or which ministers are invited to attend cabinet.

And there are limits on how many ministers can be paid at each grade:

There is no requirement as to place of birth or nationality.

The former prime minister Andrew Bonar Law was from New Brunswick, which was in Canada by the time he was prime minister.

A more recent prime minister was born in the United States.

(Yes, him.)

And we have had at least two other prime ministers – including the Duke of Wellington – who were born outside the United Kingdom by reason of being born in Ireland before the Act of Union.

There is also no requirement as to usual residence.

In the second world war we had ministers such as Macmillan resident abroad.

And the South African politician Jan Smuts and other Empire ministers were members of a so-called imperial war cabinet in London in the first world war.

Nobody gave any of this a second thought.

Strictly speaking, you do not even have to be a member of parliament (or a lord) to be a minister.

Indeed, technically, ministers are not members of a parliament between the dissolution of an old one and the start of a new one.

(And so the ‘well actually’ answer to the quiz question as who was the last prime minister not to sit in the house of commons is neither Douglas Home nor Salisbury but Johnson in 2019.)

Under Thatcher, the then Solicitor-General for Scotland Peter Fraser once carried on in his office after losing his parliamentary seat in 1987 for two years before becoming a peer, as there were no other Scottish Tory MPs to take the job.

Of course, there is a practical problem of accountability – a minister cannot stand at the front bench unless he or she is a member of either house of parliament.

But in both the commons and the lords it is not unusual to have one minister answering on behalf of another – so not even this practical problem is insurmountable.

By convention cabinet ministers also are or are appointed as privy councillors – but this is not a limitation, as many non-ministers are appointed to be ‘Right Honourable‘.

The ‘Right Honourable” title is sometimes even given to politicians as a consolation prize for not joining the cabinet.

So, in answer to the query mentioned at the start of the post: there is nothing formal stopping anyone being appointed a minister, even to the cabinet.

Even someone who were a Non Dom themselves.

Perhaps there should be formal restrictions: but as it happens, there are not.

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Cressida Dick’s criticism of the ‘politicisation of policing’ is really criticism of accountability for policing

8th April 2022

Every so often, and without irony, you will hear the phrase “treated like a political football”.

You will also hear, about some area of human activity, that “the politics should be taken out of” it  – say, health or social care or education.

There is something in such a proposition – and there are certain fundamental principles, especially about human autonomy and dignity, where there should not be politics.

For example, whether someone should be tortured or not should really not be a matter for political debate.

But.

Because it is such a nod-along phrase – the sort which will get people saying “of course” or even clap and cheer – then it is a phrase that will tend to be misused.

And it is often misused by those who do not want there to be accountability for their uses of state power.

The goal of many with state power is to be free from any practical accountability, just as it is the goal of many businesses to be free from competition.

To have a check and a balance – to have things contested – is not what many with state power want.

Sometimes such opposition to accountability is effected with laws and processes – for example the undermining of freedom of information.

Sometimes it is done linguistically – with phrases such “politicisation”.

And here we come to the departure today of Cressida Dick from Scotland Yard.

Dick is the best leader the Police Federation never had.

A shop steward, not a police commissioner – Dick confused the interests of the police with the interests of the public.

And so when public confidence was lost in her (shop) stewardship, she had to resign.

In her farewell letter, Dick criticises the “politicisation of policing”.

What Dick is really criticising is accountability for policing.

And if you make that change, the rest of her resignation letter makes a lot more sense.

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Censorship vs the Babble – both work for authoritarians

7th April 2022

This post is just to set a quick thought (as I am recovering from illness).

It is to contrast and compare two things, which seem to be leading to a common end.

The first is Putin-style censorship – the sort which means Russians generally do not appear to have true information available about the invasion of Ukraine.

This suits the authoritarian nationalist populist Putin.

The second is the anything-goes babble of social media and 24-hour online news and comments, where few are actually censored.

The effect of this babble appears to be that liberal and progressive voices are drowned out, with hyper-partisan shouts of fake news and ‘balance’.

This suits the authoritarian nationalist populist politicians in many other countries.

So we have two modes of media which seem very different, but which have the same authoritarian effect of undermining and restricting critical voices.

Anyway, just a quick thought. What do you think?

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‘Cant and Cancellation’ – a newly discovered manuscript of Jane Austen

6th April 1792

“It says here you have been cancelled,” said the professor, putting down the London newspaper.

“Have I been cancelled?’

“Yes – it says so.”

“What does that mean?”

The professor explained exactly what it meant, with great confidence.

“Thank you for explaining to me that I am cancelled, as I would never have realised otherwise.”

He nodded, and his mind now turned to other, more important matters.

“Please forgive my curiosity professor, but can you tell me how that news report ends?  I would very much like to know the rest.”

The professor, irked by this interruption, picked the newspaper back up.

“The report ends by saying that you have not actually been cancelled, as such, just that a literature course has rotated to a new annual author.”

“I am not cancelled?”

“Not as such, not cancelled, no not formally, but we can agree the principle is exactly the same.”

“Can you tell me how the principle is exactly the same?”

The professor explained exactly how the principle was exactly the same, again with great confidence.

“Thank you for explaining to me how the principle was exactly the same, for I would never have understood.”

The professor nodded, with satisfaction.

“You see, there are those who want to prevent others from discovering the beauty of your work and appreciating your deft use of irony.”

The professor now returned to the silent contemplation of more important matters, and he was not to be disturbed again.

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Why the term “for the avoidance of doubt” is the hallmark of shoddy legal drafting

5th April 2022

It is nice to be cited and complimented in the Houses of Parliament.

This is the Green party peer Baroness Jones mentioning one of my (many) bugbears in the recent debate on the Nationality and Borders Bill:

(Hat-tip to CJ McKinney for spotting this.)

So I suppose this is the time to set out this bugbear more fully.

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Imagine – even if you are not a lawyer – that you are writing some legal or other formal text.

(The verb ‘to draft’ is used for this strange activity.)

Imagine now you have drafted something – but you realise that it is not spot-on.

The question is what you do next.

Do you go back to the text and amend and improve it until it does say what you want it to say?

Or do you just add a new sentence, that starts “For the avoidance of doubt…”?

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In my opinion, the term “for the avoidance of doubt” is the hallmark of shoddy legal drafting.

If you are ever presented by a lawyer with an original formal document that contains this phrase, you should cross it out with your brightest coloured pen or pencil.

And then sack the lawyer.

The only time the term is permissible in a formal document is if you are doing a rescue job, amending someone else’s shoddy original text.

In that circumstance, even the strictest lawyer may have no other option but to use the dreaded term, as reframing the relevant clause or other provision may not be a realistic option.

But apart from that one situation, it is a danger sign in any formal document.

It means the author of the substantive clause or other provision is conscious that the formal text is vague or ambiguous, but that he or she cannot be arsed to make the text clear and precise.

The use of the term in informal writing is less of a problem, though it still indicates sloppiness in expression.

(And the keen-eyed of you will note that the preceding sentence avoided using the term.)

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So thank you Baroness Jones for the parliamentary mention and commendation of this view.

And, for the avoidance of doubt, this stricture also applies to me and other legal bloggers.

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Orban and the future of illiberalism

4th April 2022

Once I was walking through the streets of an old university town with a religious-minded friend, and he turned to me and said: ‘you do realise that we are still in the early history of the church’.

The truth of that specific proposition was lost on me – I am a non-militant atheist – but the more general point has always stayed with me.

What any one generation may see as the end (or after the end) of a process may just be the start.

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Those of us born after the 1950s and 1960s are used to thinking of ourselves as ‘post-war’.

Hitler and Stalin were regarded as historical figures, not near-contemporaries.

When I started my history degree in 1990, the events of just over forty-five years before seemed like from another century.

But now, thirty-or-so years on, 1990 is like only yesterday.

The fall of the Berlin Wall and the end of the Soviet Union feel like recent events.

History had – has – not ended.

And those of us who saw ourselves as fundamentally separated from the horrors of the mid twentieth-century will possibly be seen by future historians as just occupants of a happy interlude before the horrors of this new century.

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This blog has previously covered Viktor Orban and his robust, unapologetic and evasion-free illiberalism.

(Read this post here.)

For Orban there are no polite but insincere platitudes about the value of diversity and individual autonomy.

His illiberalism could not care less about your feelings.

His significant 2014 speech – which should be read by anyone interested in how Europe is going – places the illiberalism in plain sight.

We cannot say we were not told.

Now Orban and his political supporters have won yet another super-majority in Hungary.

And this was achieved despite the opposition liberal and progressive parties working together – and despite Orban’s conspicuous lack of support for Ukraine.

There perhaps could not be more favourable conditions in practice for Orban’s political opponents.

And they still lost.

Of course, the Hungarian political and media system is rigged in favour of Orban.

But not everything can be blamed on conspiracy.

What if – in a democracy – illiberalism is actually more popular than liberalism?

What if illiberalism is – as Orban avers – an ideology of the future, and not something for the history books?

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We may – perhaps – not still be in the early history of the church.

But we may well still be in the early history of populist authoritarian illiberalism.

And Orban – who studied at the very same university college as me and my religious-minded friend, and only the year before – no doubt thinks so.

Orban may be right.

So let us do what we can to show that we are in the early history of liberalism.

For Orban may also be wrong.

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