Author: David Allen Green

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

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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.

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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.

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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.)

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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.

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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.

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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.

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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.

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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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Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again

30th September 2024

In the beginning was the Word.

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Well, in the beginning there were words.

Lots of words, all over the place, at the beginning of the internet and then of the World Wide Web.

And this was because words were easy: text was one of the easiest of things to transmit.

Early social media was thereby text-dominated.

Yes, there were rudimentary ways of hosting and sending pictures and video and sound files.

But with text you could create more text – while pictures and videos and sound files were difficult to create and edit.

Early-ish blogging, I can recall with a shudder, required you to code with HTML. You had to physically type in hyperlinks with <a> tags and so on.

Even on Facebook you only had a limited text field into which you could type: “So-and-so is [ ]”.

Pretty soon, however, there were WYSIWYG social media and blogging.

Anybody, if the wanted, could compose, create and even edit words on the screen.

And so text-based social media took off, especially on Twitter.

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As Marie Le Conte set out in a thought-provoking and insightful post on her Substack, this had the effect of lots of text-based social media users – writers and journalists – believing that social media was about them:

As she elaborates:

“…journalists are people who write for a living. Twitter is and was a place where thoughts are expressed in writing.”

And what she says about journalists can also be said about lawyers: the stuff of lawyering, like the stuff of journalism, is words.

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As the eminent jurist Eliza Doolittle once averred:

“Words! Words! Words!
I’m so sick of words!
I get words all day through;
First from him, now from you!
Is that all you blighters can do?”

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It was all that us blighters – journalists, lawyers, and so on – could do, and it suited us.

Social media seemed a perfect medium.

But.

Text-based social media was only the start – an early stage just because text was easy, and other forms were less easy.

And now the other forms are catching up, and indeed they have caught up.

Just as HTML-based blogging eased into WYSIWYG social media typing, it is becoming just as easy for a social user to make and edit video and audio.

This, coupled with the wayward way Twitter has gone (and so has been quit by many), means that the great days of text-based social users thinking they were special are perhaps over.

There will still be a place for text-based social media, just like there are those who persist with CB Radio.

But it was just a phase we were going through.

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Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy

24 September 2024

Over at Bluesky, the German writer and historian Helene von Bismarck, an acute observer of British politics, posted this interesting question:

“One question I have been asking myself for many years about UK politics: Why does it – regardless of who is in government – appear to be this hard to solve problems & get things done? Schools, the NHS, defence procurement, etc. Lack of money, you (probably) say. But surely this isn’t all of it?”

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One answer, of course, is that there is a lack of accountability.

On the face of it, however, there is a great deal. of accountability in the politics of the United Kingdom.

There are general elections, where the government of the day can fail to obtain a majority – as in 1997, 2010, 2017 and 2024 – as well as by-elections and regional and local elections which often (are said to) give governments a ‘bloody nose’ (or something).

And between general elections, Prime Ministers can come and go – as in 1990, 2007, 2016, 2019, and 2022 (twice).

And then, at the levels below Prime Minister, ministers come and go, often with undue frequency.

We also have the theatres of Prime Ministers Questions and the various political shows on television and the radio (and increasingly with podcasts), and we have a well-connected and ambitious lobby of Westminster journalists.

And so, superficially at least, we have a near-constant buzz of accountability – almost all day, every day.

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But.

If the word “accountability” is taken to mean (as it should be) that the accountable person can be required to give an account of what they are doing, then things look rather different.

For in the United Kingdom we have a great deal of political accountability, we have far less policy accountability.

And by policy, it is meant the formulation, implementation and administration of things by government.

The theatres of political debate and discussion do not often go to the substance of policy – and often policy only seems relevant to the extent that it offers a ready “gotcha” against a hapless or hopeless minister.

The lobby system of journalism – and there are some outstanding lobby journalists – necessarily requires a focus on the politics of Westminster, rather than on what is happening in Whitehall – and still less on what is happening outside SW1.

The doctrine of individual ministerial accountability provides a mutually beneficial pact where a minister can (plausibly) say that they were not aware of something while officials escape routine accountability for what they do.

Parliamentary questions are easily evaded either in written or oral form, with no sanction for tardiness or non-compliance.

And as for Freedom of Information, the departmental section 17 letters refusing disclosure are perhaps the most dismal and insincere – if not outright dishonest – official documents in the history of our domestic bureaucracy.

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One illustration of how weak policy accountability is in the United Kingdom are the now (all too frequent) public inquiries.

These inquiries – sometimes long after the events being investigated – often do little more than what could have been done at the time, if the organs of the state had had the necessary powers and the requisite will.

To take one glaring example: the Covid inquiry is forcing politicians and officials to give an account – ie provide accountability – about everyday decision- and policy-making during the pandemic.

This should have been done in and by parliament at the time.

Many revelations that come out of that and other inquiries is an indication of the weakness of our traditional forms of accountability.

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Why is all this so?

Part of the reason is legal(istic) – inquiries have formal legal powers which are not generally available to (say) parliamentary committees and still less available to journalists.

But the main reason is there is no real incentive for government and parliament and officials and the media to have it any other way: no careers will be benefited, there is no electoral advantage, there are no extra viewers or listeners, and there no more newspapers sold (or fewer copies left unsold).

And the primary reason for this lack of incentive is, well, us.

If voters (and viewers and readers) wanted more real-time policy accountability then there would be career, commercial and/or electoral advantages in there being more policy accountability.

But that would mean us taking policy seriously, which is dull and complicated.

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There are, however, grounds for some optimism.

Parliamentary select committees – especially in their online manifestations – are becoming increasingly impressive in what evidence is made publicly available in their ongoing inquiries.

The House of Commons library also make their outstanding briefings available to the public as well as to parliamentarians.

The decline in specialist journalists is – though only to a limited extent – being offset by specialist commentators – on Substack or elsewhere.

But, even taking all these positive points at their highest, there is generally little or no incentive for there to be real accountability, as opposed to superficial (and theatrical) accountability.

And so the massive policy problems identified by von Bismarck in her post do not have ready solutions – though, no doubt, there will one day be a scathing public inquiry about each of them.

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On writing – and not writing – about miscarriages of justice

23rd September 2024

(“…Punish the Wrongdoer” – at the Old Bailey, London – which presumably means implicitly not punishing the innocent: source.)

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I was going to do an article over at Prospect about the Lucy Letby case, with an accompanying more detailed post here. But I have now put it on hold.

There are four reasons for this.

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First, the online context for the article and post was (and is still) too heated and partisan.

The article and post are about what it would mean for such a case to be a miscarriage of justice or not: in effect, a guide to how to think about that and other cases where it is contended there is an unsafe conviction.

As such the article and post would not take a “side” – but it seems there is currently little appetite for anything other than which maintains Letby is either innocent or guilty.

And like Pavlov’s puppies, there are individuals who just need the slightest pretext to describe something as a “conspiracy theory” – even when no conspiracy is posited, and still less is there any theory.

(For an Anglo-Saxon empiricist and pragmatist to be called a “theorist” is perhaps as objectionable as being called a “conspiracist”.)

(And for more on whether miscarriages of justice require a “conspiracy theory” see here.)

On the other “side” there will be those just as irked at a legal blog setting out that the various scientific and statistical points being made by critics of the convictions, even taken at their highest, can only go so far in this particular case

So I am waiting for the online context to calm down.

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Second, there is the beginning of the Thirwall inquiry.

Any half-decent article and post on the Letby case would now need to take account of the additional information that will be available from the inquiry, in addition to the information from the court litigation.

And so I am now also waiting for that inquiry to get to an appropriate stage.

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Third, there is the risk of what can be called the “one sample” fallacy.

And so I wanted to look at other actual and contended miscarriages of justice, so to see the problems that have come up before and how, if at all, those problems were addressed.

I also wanted to see if the folk memory of past notorious miscarriages of justice accorded with the actuality of what was decided by the court.

When I re-looked at the Roy Meadow case reports, for example, they did not quite say what I recollected those cases saying.

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And fourth, I wanted to set out some preliminary points – like the role of juries and how it is for them to weigh evidence (once that evidence is admissible) – in a separate post or posts.

(In first go at the Letby article, I was 2,000 words in and I still was explaining in general terms the role of juries in weighing evidence.)

Sometimes an article and a post can (try to) do too much, and I got a sense that this was the situation here.

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As I have said before, I have no ultimate view on the guilt or innocence of Letby – and that is for a jury or a court of competent jurisdiction to decide, and not a blogger or someone who reads a blog.

But it is a case which may provide a useful basis for helping lay people understand how the justice system works (or may not work) and what a court can and cannot do.

And for the Letby case in particular, what else the legal system could have possibly done when Letby and her lawyers elected (for good reason or bad) not to put expert evidence before the jury themselves.

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Miscarriages of justice do happen – especially when there is reliance on expert and circumstantial evidence; but that does not mean that every case where there is reliance on expert and circumstantial evidence is (or is likely to be) a miscarriage of justice.

That misconception can perhaps be called the prosecution critic’s fallacy.

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And so in the meantime before I publish something more substantial on Letby, let us look at other cases where the has been an actual or alleged miscarriage of justice.

Let us look at the case of Oliver Campbell, which I wrote about here and here.

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Miscarriages of Justice: the Oliver Campbell case

21st September 2024

How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy

11th September 2024

Taylor Swift has endorsed the Democratic nominees Kamala Harris and Tim Walz.

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Politically and culturally the endorsement is significant, but this is not really a political or cultural blog.

This is, however, a blog that sometimes provides close readings of key documents, and there are things about the endorsement that are perhaps worth noticing and remarking upon.

In essence: this endorsement is a masterpiece of practical written advocacy, and many law schools would do well to put it before their students.

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Look carefully at the first three paragraphs – especially the use of the first person “I” and “me/my” and the second person “you” (emphasis added):

“Like many of you, I watched the debate tonight. If you haven’t already, now is a great time to do your research on the issues at hand and the stances these candidates take on the topics that matter to you the most. As a voter, I make sure to watch and read everything I can about their proposed policies and plans for this country.

“Recently I was made aware that AI of ‘me’ falsely endorsing Donald Trump’s presidential run was posted to his site. It really conjured up my fears around AI, and the dangers of spreading misinformation. It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.

“I will be casting my vote for Kamala Harris and Tim Walz in the 2024 Presidential Election. I’m voting for @kamalaharris because she fights for the rights and causes I believe need a warrior to champion them. I think she is a steady-handed, gifted leader and I believe we can accomplish so much more in this country if we are led by calm and not chaos. I was so heartened and impressed by her selection of running mate @timwalz, who has been standing up for LGBTQ+ rights, IVF, and a woman’s right to her own body for decades.”

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In the first paragraph, she ensures that she identifies with you the reader – “Like many of you [comma]” and “As a voter [comma]”.

There are four “yous” in that first paragraph: you, you, you, you.

You are already half-nodding along. You and Swift have common ground.

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In the second paragraph, she then describes things of personal concern – but here she avoids putting “I” at the start of any sentence. This makes it look that she is describing the situation objectively.

She deftly – and convincingly – justifies making a political endorsement. The sentences “It brought me to the conclusion that I need to be very transparent about my actual plans for this election as a voter. The simplest way to combat misinformation is with the truth.” are perfectly reasonable.

Two premises leading to a “conclusion”, and in just one paragraph.

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You will see that so far she has avoided starting any sentence with “I”.

And then, with the third paragraph, wham.

The first sentence beginning with “I” is the actual endorsement.

And then every sentence in the third paragraph begins with “I”: bam bam bam.

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Also, like any good advocate, Swift is careful to make the listener or reader feel that it is their own decision to make, and again this is skilfully done:

“I’ve done my research, and I’ve made my choice. Your research is all yours to do, and the choice is yours to make.”

Note the rhythm: I, I, you, you, you.

The most effective persuasion is often to lead the listener or reader to making their own decision – and to make them feel they are making their own decision.

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Finally, the pay-off: the thing that will linger.

The reader is already half-aware of what is coming, because of the photograph.

A good pay-off is often a call-back – and here, cleverly, the call-back is to the visual clue the reader would have registered before even reading.

“With love and hope,

Taylor Swift
Childless Cat Lady”

This is, of course, a swipe and a blow against J. D. Vance, the Republican vice presidential nominee.

And so Swift mocks the Lilliputian.

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Supporting Donald Trump is too much for Richard Cheney

7th September 2024

A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong

30th August 2024
One accusation that is often made of anyone with an interest in possible miscarriages of justice is that they are “conspiracy theorists”.

In reality, however, you do not have to posit a conspiracy to explain when things go wrong with the legal system.

In particular, what happens in the justice system is that the safeguards and checks which exist to prevent or minimise miscarriages of justice sometimes do not work properly.

Just as a conspiracy can perhaps explain a car accident, the explanation is more likely to be brakes failure, or driver error, or so on. One or two things go wrong, and then the whole thing crashes.

As some Medieval chap put it, explanatory factors should not be multiplied beyond necessary.

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Indeed, a number of not directly connected people acting in concert to achieve a common goal is what is required for the justice system to work consistently properly.

And we all know unlikely that is.

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Update – what is coming up.