Author: David Allen Green

The police officers who want to be armed are perhaps the ones who should not be police officers

20th January 2023

There is an old adage: those who want to have power are the ones who should be disqualified from having power.

Similarly, those police officers who want to be armed should be the ones who perhaps should not even be police officers.

This thought is prompted by the examples first of Wayne Couzens and now David Carrick, both of whom were keen to have the status of being able to have a gun.

Neither Couzens nor Carrick, as far as we know, misused a firearm.

But both seemed desperate to have the status of being able to have a gun and perhaps to boast about it, to themselves and others.

And that was a danger sign.

Of course, there is a necessity to have armed police: that is an unfortunate feature of the modern age.

A civilian and entirely unarmed police force belong to a golden age –  an age which probably never existed.

But.

The question is not whether some police are armed, but about how armed police are selected.

And it would seem those who put themselves forward, so that they would not only have the legal right to inflict coercive force on others, but also be able to inflict lethal force, are the constables who should perhaps be thrown out of the police altogether.

Only perhaps the police officers who are chosen by others – their superiors and peers – to have guns should be the constables who are reluctant to be armed.

And if this approach is adopted then the ‘vetting’ process would be a lot easier:

“Do you want to have a gun? You do? You’re dismissed.”

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The striking paradox of the police

19th January 2023

Here is a striking (ahem) paradox.

One one hand: police officers cannot strike.

And on the other hand: it is almost impossible to sack a police officer.

One would think that an occupation which had such near-absolute job security would also be one where the workers had ready access to taking industrial action.

But no.

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Police officers have not been able to strike since the Police Act of 1919, which in turn followed the (fascinating) police strike of 1918-19.

Since then police officers have been represented nationally by the Police Federation, rather than the more conventional trade unions that represent other emergency and front line workers.

The Police Federation is very good at protecting its members.

Successive governments have been supportive of the police generally and avoid upsetting the Police Federation in particular .

Indeed, when the then home secretary Theresa May in 2014 dared to criticise the Police Federation there was that rare thing: a genuine sense of political shock.

(I think this may be the only speech by a serving cabinet minister that has ever made my jaw drop.)

But her sentiment did not last long, and during her subsequent premiership she showed little interest in police reform.

The police also maintain (mutually) good relations with the media, and – as the Leveson Inquiry indicated – the police are an important source of content for the press.

And so perhaps the prohibition on striking has never been really tested because there has never been a need to do so.

What more power would the Police Federation want?

What would be gained by threatening to go on strike?

Indeed when in 2013 the possibility of being able to go on strike was put to a vote of federation members, less than half of police officers voted one way or the other.

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Yet every so often there is an example of how difficult it is to dismiss police officers.

For conduct which in other occupations and professions would lead to instant dismissal or disqualification, there is often the appearance that nothing is taken that seriously.

This week there has come to light the horrific case of David Carrick, but there are numerous other instances.

There seems to be, looking from the outside, structural problems within the police generally, and within the Metropolitan police in particular, that mean that violent and dishonest police officers have too much job security.

Of course, the nature of policing means that officers should have due protection from vexatious and malicious complaints.

But the level of current protection seems far too high to be explained just by the perils of policing a resentful public.

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Today the leader of the opposition suggested a substantial overhaul, such as when the Royal Ulster Constabulary was converted into the Police Service of Northern Ireland.

This would have to be more than a mere change of name.

But it is unlikely to ever be done, for in power governments since 1919 have almost always had an interest in not upsetting the police.

Perhaps the test will be if the Police Federation holds another poll, and a majority of its members take an interest and vote on whether to have the right to strike.

For that would point to real power slipping of the police in respect of policy.

But in the meantime, we have that striking paradox: the workers with some of the strongest employment protections have the fewest rights to take industrial action.

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“Bonfire of Red Tape”

18th January 2023

Nobody – really – is in favour of “red tape”.

It is instead the sort of thing which people are against.

In this way it is a bit like “complacency” as a thing which people are also against: nobody ever says “I think we should be more complacent”.

The very mention of “red tape” often prompts – and is intended to prompt – an adverse reaction, even jeers.

And, in turn, announcing a “crackdown” or “bonfire” or some other drastic-sounding word often prompts – and is intended to prompt – a positive reaction, and perhaps claps and cheers.

What sort pf person could possibly be against getting rid of “red tape”?

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But the problem is that much “red tape” has a purpose, and indeed is sometimes the consequence of that equal and opposite follies of our political discourse: “something must be done!” and “there should be a law against it!”

And so, like a perpetual motion machine, we have the following cycle:

1. An unwelcome phenomenon happens.

2. “Something must be done!” and “there should be a law against it!”

3. A thing is done and/or there is a law against it.

4. That thing or law becomes “red tape”.

5. “There needs to be a bonfire of red tape!”

6. And loop to 1.

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This is not to say that some regulations and rules are awful or redundant.

Indeed, there are many rules and regulations that any regulated person can think of without too much effort.

The problem is twofold.

First: there is no point in getting rid of a regulation without understanding its intended purpose, and also what would happen in respect of that intended purpose if that regulation was removed.

This means that repealing regulations – as with creating or modifying regulations – should be on a considered case-by-case basis,

Second: in a word, externalities.

Many areas of human activity are complex, and so removing (or adding or changing) one thing can have unexpected and unwelcome knock-on effects on other things.

This is obvious with a moment’s thought, for the very purpose of many regulations is to steer human activity in one direction rather than another.

In other words: the very intention of many regulations is to have knock-on effects.

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And now to the matter in hand: the reckless attempt by the current governing party to remove regulations inherited from our membership of the European Union.

You can tell almost no thought has gone into this exercise because of the superficial – indeed banal – contentions made in its favour.

It needs to be done, because of Brexit.

It matters not that many of these regulations may have been made for a good reason.

It matters not that some of these regulations were promoted by United Kingdom ministers and officials in our national interest.

It does not even matter that nobody is absolutely certain about how many regulations will be affected.

But it needs to be done, because of Brexit.

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What we have in this repeal bill is the combination of the older absurdity of “bonfire of red tapes” with the newer one of needing to have something – anything – to show for Brexit being worthwhile.

For in January 2023, most people – including those who have a close or passionate interest in Brexit – can point to little or nothing concrete as a benefit of Brexit.

It is all a bit silly and needless.

Perhaps there should be a law against it.

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Artificial Intelligence and how it will affect commercial lawyering (and legal blogging)

17th January 2023

Here is a thought:

Or, to perhaps put it another way: could Artificial Intelligence replicate, or even replace, the work of your normal contracts lawyer?

As someone who has spent over twenty years as a commercial lawyer (constitutional law is my interest, and contracts law my drudgery) I would say the answer is yes, and no, and but.

And as a coda, I will aver that those of us who write and comment on legal blogs may face a problem too.

Yes

The yes is a recognition that a certain amount of contracts law in practice is ploddery.

You have a standard form contract, and you read every clause, and you put all the clauses together.

Many standard clauses are what is called boilerplate – their effect, and often their very wording, are identical from one contract to another.

And even clauses which can vary from one standard from to another – payment arrangements, service levels, and key allocations of risk – do not vary very much.

In larger law firms, the task of reviewing, and even drafting, such contracts is given to junior lawyers, even trainees.

Many non-legally qualified contracts managers and procurement officers are better than many commercial lawyers in dealing with straightforward commercial contracts.

And so just as a text comparison program can identify differences between contracts better than almost any human, then a computer which has a bank of hundreds, if not thousands, of standard contracts would be able to identify standard and deviant clauses.

Such a computer may even be able to propose amendments to the deviant clauses so as to place the contract onto a more standard basis.

So, yes, some straightforward contracts reviews could be done by Artificial Intelligence.

No

Standard form contracts are subject to special legal rules in case law and statute, especially when they are for business-to-consumer transactions, and so a store of contracts would not enough: external legal expertise can be necessary.

And being able to advise a client on whether a standard form contract will be in their commercial interests or not is not something Artificial Intelligence is likely to be able to do soon.

That is because assessing commercial risk in a particular situation is not a form of abstract calculus, for it requires an understanding of industry, business, economic, social and human factors.

And, of course, not all commercial contracts are on standard forms.

Certain transactions require bespoke contracts, dealing with the allocations of risk of a range of things that could go wrong.

In IT and media contracts, for example, there often needs to be an understanding of technological risks so that the legal risk allocations match and mirror what problems can happen in practice.

A well-drafted and hard-negotiated bespoke commercial contract is as much a work of cooperation, conflict and collective endeavour as you will find anywhere else in human activity.

But

There is a problem.

The good lawyers who can advise on standard and bespoke contracts can do so because of their apprenticeship in dealing with straightforward clauses in everyday contracts.

You do not have child prodigies in practical law: a practice takes, well, a lot of practice.

One reason for this is that contracts are not linear documents but complex instruments: each clause can and should relate to other clauses.

And the only way to master complex instruments is to understand how the elements of that instruments all fit (or do not fit) together in given practical situations.

(I have said before that legal drafting is akin to coding in making sure lines all work together.)

This means that if Artificial Intelligence replicates and then replaces the work of junior contract lawyers it is difficult to see how senior contract lawyers will gain their necessary experience.

Coda

Perhaps a better route for Artificial Intelligence would be to replicate and then replace the work of legal bloggers and their commenters.

Perhaps the blogpost above was written by Artificial Intelligence, and perhaps also some of the comments below will be too.

If so, then Artificial Intelligence can merrily create blogposts and comments, rendering us all redundant.

Brace brace.

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The law and lore of the offside offence

16th January 2023

There was a controversial offside decision this weekend in a high-profile football match.

Usually, for anyone with an interest in the game, it is plain if a player is offside or not and, if so, whether there has been an offside offence.

But this understanding is rarely based on someone studying the laws of association football.

Instead it is often based on watching hundreds – thousands – of instances, playing in matches, discussing incidents with others, reading reporters and hearing commentators.

Over time, someone can build up a good working knowledge of the rules and how they should and should not apply.

In a word, for many football fans, the knowledge of the sport is lore, rather than law.

And this is no different for many games and sports, and indeed it is true for most people in every day life about the laws of the land.

But every so often something so distinct happens that the common folk knowledge of a rule, and how it is should and should not be applied, can seem deficient.

And so we had the sight on Match of the Day of the pundits putting Law 11 of the laws of association football on the screen for viewers to read the offside offence themselves.

The one thing which struck me was one single, awful word which has no place whatsoever in any formal rules or laws, either of association football or of anything else.

“…clearly…”

Those who are geeks about the rules of football may be able to explain the purpose of that dreadful “c” word in this code.

But the job of any formal law, rather than lore, is to provide a precise rule capable of being applied to relevant facts so as to create a binary situation: the rule either applies or does not apply,  and if it applies it has either been infringed or it has not been.

It is not clear (ahem) what the “c” word adds to the rule, and it seems to make the rule less precise.

As it happens, most people who watched the incident, using only the lore of offside, believed an offence had been committed.

But the referee who had to apply the formal rule said otherwise.

And, as is so often the case, lore gets things right, and the law does not.

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ESSAY “A decision so unreasonable that no reasonable authority could have come to it”

15th January 2023

This is my essay this week at Substack.

The Wednesbury case of 1948 provides one of the most famous and influential judgments in English legal history.

Because of the case, the phrase “Wednesbury unreasonableness” has become well-known legal shorthand for decisions and rules made by public bodies that are so unreasonable that no reasonable public body could have made them.

Nearly two-and-a-half thousand cases on the BAILII public database use the phrase “Wednesbury unreasonable”.

Indeed, the one thing that many people outside the West Midlands know about Wednesbury is that it associated with this extreme legal standard.

But in the judgment, the town’s corporation was found not to be acting unreasonably – at least in the legal sense.

And the case was not even decided on the basis of reasonableness, but on the basis of normal statutory construction.

So how did the little town of Wednesbury get such legal infamy?

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To read the rest, you can go over to my Substack and subscribe.

Every week I will write an essay on an aspect of legal history, or on the relationship between law and lore/popular culture, for those kind enough to subscribe to my Substack.  The essay will be posted on Friday/Saturday/Sunday.  I will even sometime use multi-sentence paragraphs, like this one.

Last week’s essay was on the Malone case of 1979, which I reckon to be the most significant constitutional case of the last fifty years.

The weekly essay is also cross-posted on my Patreon page for Patreon supporters.

For those of you who have kindly donated through Paypal in 2022, please leave a comment marked “Private” below, and I can give you a complementary one year subscription to Substack.

It is important that nobody pays “twice” for my content.

Courts and politics and the job of judicial review

13th January 2023

What is the role of the courts when they are asked to look at decisions taken by our elected representatives?

From a legal perspective, the usual distinction is between “appeal” and “review”.

This means that a court should not examine the merits of the decision, but a court can (and should) ascertain whether it was a decision lawfully open to that decision-maker to make.

And so, the legal theory goes, as long as it is a decision within the scope of decisions open to that decision-make, it cannot (and should not) be quashed by the court.

The decision will stand, even if the court – and indeed the voters – disagree with that decision.

The decision may be unpopular but it will not be unlawful.

And therefore the role of the court should only be to judicially review a decision, rather than conduct an appeal on the merits of that decision,

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In practice the distinction is not as easily applied as it is stated above.

Of course, certain decisions can be quashed because the wrong or an unfair procedure has been adopted.

And as such “procedural impropriety” is a long-standing heading of judicial review.

A decision can also be challenged because of a want of legal power: if a decision-maker does not have the legal power to make a certain decision then a court can hold that there has been illegality.

And “Illegality” too is a long-standing heading of judicial review.

Neither of these headings are controversial.

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But there is a third heading (and possibly a fourth) which is often controversial.

That is when a decision is “unreasonable”.

From a lay (that is, non-lawyer) perspective, this can seem the same as a court looking at the merits of the decision.

For many lay people calling a decision is “unreasonable” is the same as saying that it is a decision you do not like.

For lawyers (supposedly) it has a different meaning: a reasonable decision is one which is reasoned in that the decision-maker can explain how the decision was arrived at.

It also means that the decision-maker only had regard to relevant considerations and disregarded irrelevant considerations.

Here, however, we are coming close to a judge second-guessing the decision-making processes of elected politicians.

And this is even more the case where fundamental rights of individuals are being interfered with, where a judge may have to assess whether the interference has been “disproportionate”.

By “disproportionate” it is often meant that the decision was not rationally connected to the supposed purpose of the legal power and/or the decision went further than necessary to achieve the public policy goal of the decision-maker.

As you can see, this is taking the judge close to the realm of politics.

And so this is where many of the flash-points in political-judicial relations occur.

Where do you think the balance should be?

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My essay tomorrow for paying Substack subscribers will be on the fascinating story of the Wednesbury case of 1947, the “grandfather” of English cases on reasonableness.

This was the case where a judge opined that a decision can be quashed for unreasonableness only when the decision was so unreasonable that no reasonable decision-maker could have made it.

This standard has since been called “Wednesbury Unreasonableness” – which is a little unfair on Wednesbury Corporation, as the court found in 1947 that the council had acted reasonably.

To read this essay tomorrow you can subscribe here.

(The essay will also be posted on Patreon – and anyone who has made a Paypal contribution to this blog in 2022 should leave a comment marked “Private” below for a year’s complimentary subscription to my Substack.)

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We have a coalition government, and we have had for some time

12th January 2023

Another day, another news report about the government not being able to get support from its own backbenchers for its legislative programme:

This is becoming a regular event.

The stuff of the politics of the governing party at the moment is pretty much U-turns and rebellions.

This is a governing party that was elected with a majority of 80.

Indeed, the governing party forced through Brexit in 2019-20 so as to to gain this party majority.

And this governing party has done almost nothing substantial with this nominal majority.

For despite the majority on paper, this is a government in constant negotiation with its own backbenchers.

If we drop the formalities, this is a coalition government, between the warring factions of the governing party.

And this has been the case since it was elected.

If we then look back before 2019 we also can see coalition governments: the 2010-15 formal coalition and the 2017-19 informal deal between the governing party and the Democratic Unionist Party.

Indeed, other than between 2015-17, an argument can be made that we have had, either formally or in effect, coalition government almost continuously since 2010.

Of course, this may seem counter-intuitive.

Coalitions are often seen as nice cuddly things, allowing centrists and environmental and regional parties to have disproportionate influence.

And one of the stock arguments for proportional representation is that we would have the benefit of more coalitions.

But we have had coalitions anyway.

We have just had, from a small-l liberal perspective, the wrong sort of coalitions.

But when a government cannot carry its own business without continual compromises and retreats caused by competing factions then there is perhaps no other good word for what we have.

For what we do not have is a party-based government able to implement a manifesto programme.

Indeed, other than in 2015-17, it is difficult to remember when we last had one.

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Good bans v. bad bans, and how can you work out the difference?

11th January 2023

Hurrah, single-use plastics are being banned.

They are being banned in the European Union:

And now they are to be banned here:

Hurrah, hurrah.

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But.

Some followers of this blog will say that the “Hurrahs” seem odd, given my general wariness of “banning” things.

(This 2011 New Statesman post is still one of my favourites.)

Surely: if we outlaw plastic forks, only the outlaws will have plastic forks?

There is something to that: banning a thing is not a magical spell.

All a legal prohibition means is that the thing prohibited is attended by different legal consequences than before.

And certainly banning a thing in-and-of-itself is rarely an instant solution to any problem.

Here, however, may be an example of where a ban is proportionate and likely to achieve its public interest goal, without adverse externalities.

If you really want a plastic fork, then presumably you can still make them.

If you collect plastic forks, you can still add to your collection from a suitable dealer and proudly show that collection off on your Instagram account.

The ban is instead about the use of such products in the marketplace.

According to the consultation document, the government has been mindful that there are substitutes in place, and the impact of the ban has been assessed:

The government also said that banning such things is not its preference: 

This is a sensible approach, and it is heartening to see that there is considered and apparently evidence-based approach to putting in place a prohibition.

If only all proposed prohibitions – and the continuation of existing prohibitions – were subject to such a considered approach.

Prohibitions have their place in public policy – this is a liberal blog and not a libertarian one – but too often in politics and media the “ban” is a form of magical thinking.

Let us hope this is not a single-use policy approach, and that it is recycled for other policy areas.

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Banning the right to strike by key public sector workers

10th January 2023

The politics of striking provides one of the most enduring dividing lines in British politics.

On one side, there is support for, and solidarity with, unionised workers exercising their right to withdraw labour.

On the other side there is disdain for those same workers, especially if the workers are in the public sector or are otherwise providing public services, especially when it appears that the inconvenience of the wider public is being used as leverage in the dispute.

Some think the striking workers are entirely in the right, and some think they are entirely in the wrong.

And often there seems to be few in the middle (like me) who think both employers and unions are capable of getting things wrong and even of abusing their respective powers.

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But regardless of your view on the ultimate rights and wrongs of strikes by public sector and other public service workers, there is something fundamentally objectionable in the current government’s proposals to compel certain “key” workers to attend work when they otherwise would be entitled to strike.

And this is especially objectionable when this is being done as a “sticking plaster” so as to distract from the government’s failure to properly engage in respect of the current disputes.

There is, of course, a case for certain public sector workers – the armed forces and the civil police force – not to be able to strike.

But such workers foregoing their right to strike should have alternative entitlements and arrangements to balance this loss of a right.

Simply prohibiting other key workers from being able to strike, without sufficient alternative entitlements and arrangements to balance this loss of a right, is misconceived and illiberal.

It is an authoritarian gesture, rather than a solution to a problem.

To object to such a prohibition is not necessarily to side with the striking trade unions, but it is to say that removing the right to strike is generally wrong in principle and should never be done lightly.

The current government should be looking elsewhere for solutions to the current problems with industrial unions.

The proposals should be dropped and ministers should be thinking of other ways to address our present winter of discontent.

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