Author: David Allen Green

Who is your favourite fictional lawyer – and why?

22nd December 2022

Over at Mastodon,  I asked the question of who is your favourite fictional lawyer – and why.

Click here to see the interesting replies.

Who is yours – and why?

The less obvious selections the better – so let us all take Rumpole, Mason, Finch, Saul and Hutz as given.

Personally, I have a soft spot for Jonathan Harker – a newly qualified real estate solicitor going that extra mile for a demanding non-dom client.

Though, given the reality of mundane legal practice, I also have a soft spot for that scrivener, Bartleby.

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The passage of legal time

Winter Solstice, 2022

Today is traditionally the “shortest day” of the year.

Though, of course, one cannot say anything as bold as that on the internet without somebody somewhere taking it upon themselves to type out a reply saying you are wrong: “actually, a day is still 24 hours long, technically” or “actually, a day is not scientifically 24 hours long exactly, technically” or “actually, not in the southern hemisphere”.

But this is the season of goodwill, even to reply guys, so this is a short post on the passage of legal time.

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Law has – or has had – its own rhythm of time.

In England, time ran from 1189 AD.

Before then, it was actually time immemorial, technically.

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Until 1963, Acts of Parliament were not formally referred to by the year in which they received royal assent, but by the session of parliament under the relevant monarch:

As you can see above, the very Act which made the change to modern dating was known as “CHAPTER 34 10 and 11 Eliz 2” notwithstanding the short title provided for in section 2.

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Case reports of a certain age also do not refer to the year of the case but to the volume number of the edition of the law reports, such as this famous case from the ninth volume of the exchequer reports at page 341:

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In the courts themselves, the “terms” were more important than any other time period, which Dickens captures well in the first sentences of Bleak House, before riffing on how long the case of Jarndyce v Jarndyce has taken:

“London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. […]

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.  […]

“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.”

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Outside of court, the commercial world was more far dominated by quarter days than calendar months.

(And, of course, until 1752 the start of the calendar year was reckoned as on the quarter day of 25th March rather than anything more rational.)

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So a step into legal history is akin to stepping into a TARDIS or Marvel’s Time Variance Authority or an airport departure lounge – that is say, it like stepping into a world where the passage of time runs differently, if it can be said to run at all.

The notion that the English legal system corresponded with the year of lay people is a fairly recent notion.

And so reply guys correcting lawyers on dates will always run the risk of a rejoinder or surrejoinder of “well, actually…”.

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Have a happy Solstice, and thank you all for following this blog.

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On “banning” things, again

20th December 2022

Let us talk briefly – again – about “banning” things.

It is a topic which I have addressed before on this blog and elsewhere.

In essence: law is not magic, and so just “banning” something does not make that something somehow disappear in a puff of theatrical smoke.

And usually the something being banned will just continue, but will be attended with different legal consequences than before.

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Take for example the “illegal” asylum seekers (and, yes, we know – or should know – that seeking asylum is not itself an offence).

The clumsy government just wants to ban such asylum seekers harder, with “tougher” measures and “crackdowns”.

A sensible response would be to provide a safe route for asylum seekers to make their applications, and to provide proper resources for the applications to be adjudicated, but: no, we have to ban, harder and harder.

And yet asylum seekers still come, but through criminal gangs.

Or take for an example, the idiotic “war on drugs”.

The supply and use of drugs still continues, but with accompanying criminality and extortion.

Banning the drugs has not made the problem disappear, but instead made it more dangerous for everyone involved.

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None of the above means – or should be taken to mean – that prohibitions do not have their place.

There are many things that should be prohibited.

But any prohibition, in and of itself, is not enough – it instead needs to be part of a wider legal and policy framework.

Law and policy need to be resourced and able to deal with what happens when that prohibition is breached, and what happens next.

And politicians need to realise that banning something is stage one or two of a process of dealing with a perceived social or moral wrong, and not the only stage.

But politicians will not realise this.

We will get “crackdowns” and “tougher” measures instead.

Perhaps we should be “tough” on “crackdowns” instead.

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How the government won but also lost the court case on Rwanda removal policy

19th December 2022

Today the High Court handed down its judgment in respect of the many legal claims brought against the Rwanda removal policy.

On the face of it, the government of the United Kingdom appear to have won – and that is certainly how the judgment has been reported:

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But.

In two ways the government has not won, and indeed this may not be a welcome judgment for the government.

Let me explain.

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The wide legal challenge was to the policy.

In effect the policy is as follows: the Home Secretary can decide that asylum claims made in the United Kingdom should not be determined here, and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there.

A legal challenge to any policy is always difficult – almost impossible.

This is partly because courts do not like intervening in matters of policy, as opposed to reviewing particular rules and individual decisions.

It is also partly because to say that a policy is unlawful means, in effect, that every possible rule made under that policy and every possible decision made under that policy will be unlawful.

And it is partly because policies can be adapted and modified so that the possibility of the policy itself always being unlawful can be avoided.

A policy is always the hardest target to hit in the administrative law courts.

It was therefore no great surprise that the High Court in this case – with a bench comprised of the two most experiences judges in administrative law matters – rejected the challenge to the policy as a whole.

And so, the government “won”.

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The government, however, also lost.

In the eight individual cases under review, the High Court decided that the removal decisions be quashed and the Home Secretary take the decisions again with proper regard to individual circumstances.

Look at the final paragraph carefully:

That paragraph indicates that the government lost on nineteen particular decisions in this case.

Nineteen.

Each of those nineteen decisions was legally flawed: every single one.

The policy may well be lawful – but in not one case was the policy lawfully applied.

And so the the government lost all the individual cases.

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Now we come to the real defeat for the government.

The import of the High Court decision is that in respect of each removal to Rwanda under the policy, the Home Office has to apply the policy in a robust and reasoned manner to the individual circumstances of each case in each of the decisions to be made.

Otherwise the removal will be successfully appealed or reviewed.

But for page after page of this judgment there is a catalogue of Home Office errors in respect of each of the cases.

The impression one forms reading the judgment as a whole is that, with the resources and administrative competence available, the Home Office simply is not capable of making all the individual decisions so that many removals to Rwanda are likely.

For the legal issue with decisions which need to be made on individual circumstances is that each decision can be appealed or otherwise legally challenged according to those circumstances.

Or to put it another way: the government has legally saved its Rwandan removal policy at the expense of making the lawful implementation of that policy extraordinarily resource-intensive and financially expensive.

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Of course, this judgment may be appealed by the claimants – though it seems at first read a strong judgment by two highly regarded judges in this field, and I do not think an appeal would be likely to succeed.

And so perhaps the policy under challenge may actually be implemented – though it seems there are no current plans to send any asylum seekers to Rwanda.

But.

Even if this policy is one day lawfully implemented – if – it will be always be an administrative and financial drain of the highest order on the Home Office and thereby the taxpayer.

Many will say that the policy is immoral and should be dropped on that basis alone.

Being immoral, however, does not make a policy unlawful.

But a policy being lawful also does not make it practicable.

The government and its supporters may raise a cheer that the policy is itself has been held to be not unlawful.

But today’s judgment means that – like the chartered flights to Rwanda last summer – the lawful implementation of the policy may never really get off the ground.

 

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How the campaign to stop the United Kingdom government from making it more difficult to prosecute war crimes was won

16th December 2022

Sometimes legal things do not always end badly.

Two years ago, in 2020, I did a video for the Financial Times on how the United Kingdom government was then making it more difficult for former United Kingdom service personnel to be prosecuted for war crimes.

The government was in 2020-21 using a Bill to make it more difficult for any historic civil or criminal legal action to be brought against former service personnel and – for some reason – torture and war crimes would be among those offences that would be made more difficult to prosecute.

Whatever that reason was, it was not a good reason.

There are certain offences so grave that there should not be formal or effective immunity for those who commit those crimes.

And this was not about battlefield or front line operations, but about the treatment of civilians or captives.

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Many – including serving and former military personnel – were deeply unhappy with this proposed immunity.

And the fine people at Freedom from Torture and at other campaign groups put together an impressive and persuasive campaign against the proposed legislation:

The pressure mounted, and the Bill’s progress through Parliament was getting trickier.

And then, in April 2021, the government capitulated:

And so the Bill passed into law with the following exemptions:

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Two years later, as this blog set out yesterday, a full statutory inquiry has now been announced into illegal actions by service personnel in Afghanistan,

For such an inquiry to be announced there must be some significant prima facie evidence which has come to light, even if that evidence is not conclusive about any wrongdoing.

Yet just two years ago, the United Kingdom government was anxiously seeking to legislate so as to make it far more practically difficult for any historic war crimes to be prosecuted.

Thanks to the campaigners at Freedom from Torture and elsewhere, that legislative proposal was checked.

As the post on this blog also averred yesterday, it is difficult – legally, politically, culturally – for our armed services (and security services and police services) to ever be held to account for possible wrongdoing.

And the fact that there is sufficient information now available to trigger a full statutory inquiry (and this can be said without prejudice to that inquiry’s conclusions) means that those who campaigned against the exemption for war crimes were entirely right to do so.

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Why the inquiry announced into potential war crimes is interesting – very interesting

15th December 2022

Now this is something interesting.

Very interesting.

As reported by Joshua Rozenberg, a senior judge has been appointed to head a full statutory inquiry to “investigate into and report on alleged unlawful activity by British armed forces in their conduct of deliberate detention operations (DDO) in Afghanistan during the period mid-2010 to mid-2013”.

The terms of reference, which should be read carefully, are here.

There are usually formidable barriers to any such investigation taking place – legal, political, and cultural.

Of these, the cultural barrier is always the hardest to clear.

Any allegation of wrongdoing by our armed forces – and also our security and police forces – is usually first met by denialism: we are the goodies, and these things would not be done by us.

Then there is derision: how dare you criticise those in the battlefield and on the front line from the comfort of your armchairs.

(This response is often deployed even when the alleged wrongdoing is far away from the battlefield or the front line, and is in respect of the treatment of captive non-combatants and civilians.)

Next will come the misdirections: counter allegations and smears about ambulance-chasing lawyers and compensation-seeking clients.

(And, indeed, there can be bad lawyers, just as there can be bad soldiers and bad police officers and security operatives, for there is good and bad in every profession – it is just that some professions are more accepting of this possibility.)

Once these barriers of denial, derision and misdirection are cleared, and the facts and evidence are incontestable, then there will come the shrugs of “so what?” and the assertions of moral equivalence.

Such things do not matter, we will be told, and everyone does it.

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What there will rarely be is anyone actually being held properly to account.

The cultural presumption against any wrongdoing by our armed forces – and by our security and police forces – is so powerful that they hardly need any formal legal immunity.

But.

Something is up here which means the government is not even attempting to deploy denial, derision or misdirection.

Maybe the government knows that such things will not wash here.

The government has instead gone to appointing a highly-regarded judge with an outstanding reputation and given him the strongest possible legal powers.

This would not be done lightly.

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This inquiry will be worth watching carefully.

Perhaps nothing is afoot.

Perhaps there is nothing to see here.

But for some reason the government does not think that denial, derision or misdirection will be enough for disposing of this matter.

So this inquiry is interesting.

Very interesting.

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POSTSCRIPT – 16th December 2022

 

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Today 71 Members of Parliament supported a Bill that would have allowed the government to break international law on asylum seekers

14th December 2022

Earlier today, 71 Members of Parliament supported a Bill that would allow the government to send asylum seekers back to the countries from where they had most immediately come from, regardless of international law.

The Asylum Seekers (Return to Safe Countries) Bill is here.

You will see in the Bill there is this clause one:

It is not a well-drafted Bill.

Look at that clause one again, and see if you can spot the term “asylum seeker”.

You will not find it in the substantive and operative text, but only in the title of the clause.

Nonetheless, clause four of the Bill defines “asylum seeker” as follows:

(This is therefore a shoddy bit of legislative drafting: defining a term and then not actually using it in the substantive and operative provision is a howler.)

But let us pretend that the drafter of the Bill had got it right and included the defined term in the substantive and operative provision, rather than just in a title of a clause.

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As it stands, my understanding is that whether an asylum seeker has come from a “safe country” may affect the credibility of an asylum application:

This means it is a factor that goes to the exercise of the discretion of the decision maker on the asylum application.

But.

The Bill presented today goes beyond such issues of credibility, and requires that provisions be made for the asylum seeker’s immediate removal if they have arrived from a “safe country” – even if that is not where from where they are ultimately fleeing.

If you look at the scheduled list of “safe countries” you will see that it is unlikely for any asylum seeker to have arrived here – at least by boat – without coming from one of those listed:

Ireland, Spain, Portugal, France, Belgium, the Netherlands, Germany, Norway, Iceland – and all other geographically close countries – are “safe countries”.

And so if today’s Bill was passed into law, then any asylum seeker – even if they were fleeing from Afghanistan, Iraq or elsewhere – would be returned to the “safe country” from which they had most immediately left to get to the United Kingdom, regardless of the United Kingdom’s obligations under the Convention Relating to the Status of Refugees.

The United Kingdom’s obligations under the Convention Relating to the Status of Refugees apply regardless to the route by which the asylum seeker has reached our shores.

Even the current law sets out that a route here via “safe countries” only goes to credibility.

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Some may want to dismiss today’s vote – perhaps even scoff at it.

But it is significant.

I remember back in October 2011 the scoffing at the 111 Members of Parliament who voted against the government for a referendum on the European Union.

We are not scoffing now.

Similarly, 71 is not a trivial number of Members of Parliament.

And despite the government not supporting today’s Bill, the 71 Members of Parliament voted so as to enable the government to break international law anyway.

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There is something worrying with the readiness of Members of Parliament to support legislation that expressly enables the government to break its international legal obligations, whether it is the Northern Irish Protocol Bill or today’s Asylum Seekers (Removal to Safe Countries) Bill.

Yes, the Bill’s supporters lost – today.

But as in 2011, such a rebellion is perhaps a sign of things to come.

Today’s vote is not a good sign.

Brace, brace.

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The issue of payment for prisoners

13th December 2022

Again, here is the introduction to a thing about prisons I wrote at the Financial Times back in 2013:

Nine years later this unthinking or cruel general attitude toward prisons and prisoners remains as widely held as ever.

I blogged about the prisons issue recently, but today I saw a fascinating and informative post which should have the widest possible circulation.

The post is on the issue of payment for prisoners, and it is by Virginia Mantouvalou at the UK labour law blog.

Please click here and read it.

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The punishment of imprisonment, of course, should be imprisonment: that is, the deprivation of liberty.

But for many, it would seem that the imprisonment – the deprivation of liberty – is only the start.

Once the prisoner is inside the prison, the common view appears to be that the prisoner should be treated as badly as possible and that they must endure as brutal conditions as the State can get away with.

Any deviation from this extreme position is caricatured as being akin to prison being a “holiday camp”.

But, if the punishment is the imprisonment itself, there is – for example – no good or logical reason why prisoners should not be paid adequately for the labour they provide – especially for commercial enterprises utilising the available prison labour.

(Performing labour for inadequate or no payment, of course, has its own word.)

At the end of the linked post, Mantouvalou sets out what should happen:

“The leader of the UK prison officers’ union, Mark Fairhurst, said that prisoners should be paid the minimum wage for their workshop jobs.

“The Howard League for Penal Reform has made concrete recommendations on how to have ‘real work’ in prisons: they said that it is desirable for prisoners to work, proposed that it is acceptable for private employers to be involved, and emphasised that prisoners should receive real wages for their work, make national insurance contributions, contributions to a victims’ fund, and pay tax.

“The Guide to the European Prison Rules says that work must be useful, provide fair pay and include vocational training, that people should have some choice over the type of work, and that their working conditions (such as maximum hours and health and safety) should not be below those outside of prison.  It also says that pre-trial, people can be permitted but not required to work, while after sentence, they may be required to work subject to fitness.

“These and other related recommendations need to be taken up and explored seriously.

“At a time of labour shortages and while there is a push to employ more working prisoners to cover these, keeping them trapped in structures of exploitation while in prison and setting them up to fail post-release is unjust.”

There can be no sensible objection to any of this.

But it will not happen – at least not yet.

And this is because too many people prefer to either be unthinking or cruel when it comes to anything to do with prisons and prisoners.

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The loss of the practical approach to UK-EU relations

12th December 2022

Thinking and writing about Brexit (and, yes, the book is still going) has made me realise that it is less about “Remain” losing and “Leave” winning, but more about the loss – or absence – of something else.

What that missing something is not the “middle” – for that suggests that it is merely a compromise between two extremes.

It was a particular approach to dealing with and understanding the European Union and its predecessor Community.

The approach can be seen in the works of the late economic historian Alan Milward.

See this from an obituary:

“Rejecting both past and present myths about the EU he argued that, far from being a federal project to transcend the nation state, it was (and is) a complex instrument aimed at maintaining the viability of nation states in Europe… 

…his approach calls into question the ‘founding myths’ of European unity associated with the names of Jean Monnet and Robert Schuman, while convincingly demolishing one of the long-standing clichés of anti-EU rhetoric in the UK, namely that the EU is a unifying federal project….

…here is what Alan considered a lazy cliché, though it is still widely held in some British political circles: that the EU was the result of an aggrandising federal strategy promoted by such figures as Schuman and Monnet, and reflecting a Franco-German accord aimed at domination by erasing national states. Alan pointed out that all these rather abstract approaches failed to account for the dynamics of the EU, and instead he conducted a detailed examination of the strategies and negotiations that had led to expansion…

….The ‘Eurosceptic’ nightmare of an encroaching federal project was in Alan’s view a serious misrepresentation of the record.

But if Alan Milward was uncomfortable reading for Eurosceptics he was no easier for Europhiles.”

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Milward, tongue-in-cheek, even entitled a chapter in a book as follows:

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Milward’s general approach was not an extreme view – indeed Milward was one of the official historians of the United Kingdom’s relationship with the European Communities.

It is also a view I associate with the primary architect of the form which the Single Market finally took, Arthur Cockfield.

Appointed to the European Commission by then prime minister Margaret Thatcher, Cockfield is in my mind the most significant Conservative politician of the 1980s, after the prime minister who appointed him.

As I once said on this blog, Lord Cockfield pushed forward the Single Market in a practical and sustainable way, rather than through grand design and heady rhetoric.

My January 2017 FT piece on Lord Cockfield is here.

In that I said about how he approached the Single Market:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter.”

Cockfield looked at what worked, and what would work, at a national level, and then moved on practically from there.

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The European Communities and then the European Union were not necessarily a grand federalist project, as wanted by some of its founders and as feared by its opponents.

It was (and still is) “supranational” – and so beneath the cloak of heady rhetoric, it was the means by which national interests could be and were promoted and reconciled.

For the United Kingdom, our membership record was in part rebates and opt-outs, so effective were we in promoting our (perceived) national interests.

And our policy on European integration was about putting aside the absolute positions of both sides and, well, just practically getting on with what worked for the United Kingdom.

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But.

By 2015-16, this sensible pragmatism was no longer in the political ascendency in the United Kingdom.

Which is odd, in a way, as the failure of the grandiosely titled “Constitutional Treaty” was ten years or so in the past (though many of its provisions were added by amendment to the existing Rome and Maastricht treaties), and there were no new major treaties in the offing.

It is this absence of a thing – rather than the presence of “Remain” and “Leave” – which is, in my view, a key to understanding Brexit.

And it is harder to explain something not being there than it is to explain what was there in 2015-16, and thereafter.

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“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

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What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

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But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

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