Author: David Allen Green

Another inquiry report, another massive public policy failure revealed

21st May 2024

There are so many governmental scandals that it is difficult to keep up with them all, and one horrific scandal this blog has not before covered is about contaminated blood.

This week this inquiry report was published, and even a cursory view of its conclusions is evocative of the public policy failures that have been covered here.

 

There are two points in particular which will stand out for followers of this blog.

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The first point is that it appears that officials did not tell ministers everything. You may recall that this was also the problem with the Post Office horizon scandal. You may also recall that the Afghan war crimes inquiry has also revealed that officials were not forthcoming – and even obstructive – even when there was a determined minister seeking explanations.

It is this disconnect – if not breakdown – between ministers and departments that undermines and indeed discredits the old doctrine of individual ministerial responsibility (which I also wrote about at Prospect).

A minister cannot be meaningfully responsible to parliament (and thereby to the media and the public) if they themselves are given duff and misleading information. As the techies among you will know: GIGO – or garbage in, garbage out.

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And this leads to the second point: this inquiry is yet another example of an exercise in accountability that should and could have been undertaken by parliament and in real-time. (My Prospect piece on this is here.)

Instead, and long after many of the key events, it has been left to an inquiry to show what happened at the material times – and what went wrong at the material times.

As such, this is another example of failure by our parliamentary system to provide proper, real-time scrutiny.

Parliament is simply not well-equipped to force information and materials out of an unwilling government. Parliamentary questions are easily batted back; select committees have few real powers to prise out documents.

And our media is also not well-equipped. Press offices are unhelpful when the queries are unwanted; freedom of information in the United Kingdom has no real teeth. A great deal of press scrutiny – perhaps too much – is dependent on briefings: information is disclosed only when it suits someone in government.

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How many more inquiries – with damning detail and revelatory narratives – are we to have before we realise that it is parliament that needs significantly strengthening?

Parliamentarians should have access to coercive powers to compel evidence from ministers and officials which are no less powerful than those available to public inquiries.

And parliamentary questions as a norm should be addressed to and answered by the actual officials responsible, rather than the evasive and convenient fiction that ministers are responsible for entire departments.

But all this would require taking parliament seriously.

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On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed

Star Wars Day, 2024

I once came across a quote in a history book which I have never been able to re-find. It was from an acquaintance of I think Lord Randolph Churchill (Winston’s father), or perhaps of Benjamin Disraeli, and it was along the lines of:

“Dear Sir, you do not believe that there are actually solutions to political problems?”

This astonished admonishment from a Victorian politician has lingered.

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There is a conceit in the notion that just because a problem can be stated it thereby can be solved. Maybe this fallacy comes about by reason of human optimism, that articulating a problem means that somewhere somehow it can be remedied.

If course, stating a problem accurately and plainly is a necessary condition of it being solved.

But it often is not sufficient – at least not in terms of public policy.

And one problem is how, if at all, the media should be regulated.

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Not long ago the media were far easier to regulate.

This was because there were fewer media entities to regulate and the ability to publish and to broadcast was more restricted.

Indeed, until the 1990s it was was actually quite difficult for most people to publish or broadcast to the world – or even to circulate things beyond your immediate circle or place. You had to go through gatekeepers who had a near-monopoly of the means of publication and broadcast: newspaper titles, publishing housed, broadcast stations.

From time to time there would be the spirited eccentrics who would, say, set up up a pirate radio station in the North Sea or self-publish books and pamphlets. But such self-publication was derided as a “vanity”.

(Little did they realise the upcoming relentless mass self-publications of social media.)

That such self-publication was possible at least in theory was always an important principle- indeed, it was the original meaning of the phrase “freedom of the press” (a 2012 New Statesman post on this is one of my favourite pieces).

But few if any sensible people had a press at home, even though could have one.

Now most people have access to the means of publishing and broadcasting to the world.

The device you are reading this on is no doubt capable of such worldwide publication or broadcast, at least via a social media platform.

And just as it was once odd to possess a personal printing press or pirate radio ship, it is now similarly odd not to personally possess something capable of far greater publication or broadcast.

For want of a better word, this is an information and communications revolution. A fundamental shift, comparable to the first writing and alphabets, or the invention of movable type.

And the implications of this revolution are still being worked out – if they can be worked out at all.

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How – if all – can media be regulated now that everyone is a potential publisher?

My day job is as a media and communications (and commercial) lawyer – constitutional law is a mad hobby – and I see everyday the attempted use of law and policy to try to make people and companies do things (and not do things) which they otherwise would not do (or would do) but for that law and policy.

Such regulation is hard. Sometimes it is ineffective. Sometimes it is ignored. Sometimes it has unintended effects. Sometimes, even, it works.

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Turning to the wrongful conduct of parts of the news media in the first decade of this century (and before), there is no doubt bad things happened – and there is also no doubt that we do no know the extent of the bad things that happened.

And the one thing that can be correctly said of the Leveson Inquiry – and of the criminal and civil litigation that followed – is that a lot of these bad things were placed into the public domain which otherwise would not have been placed into the public domain.

This was a boon for the public understanding of the news media.

But.

The purpose of the Leveson Inquiry (of which only one of two parts took place) was to use that investigation for the purpose of proposing a new regulatory model.

And this is where there is maybe a category error.

For what happened in the UK news media before around 2012 is not a good data set for regulating the news media in 2024 and beyond.

Indeed, it is far harder to say what is now news media. You cannot walk down Fleet Street and its environs and point, saying “there” and “there” and “there”.

For example, if a freelance journalist has a social media following of hundreds of thousands they often can have a bigger “circulation” than any title they work for. In those circumstances, what practical purpose would there be in just regulating the latter? And if you try to regulate the former, at what point do you stop trying to regulate everyone?

Anyway, please now click here and read my article at Prospect on whether “Leveson 2” should take place.

And tell me and other readers of this blog what you think.

For, dear Sirs and Madams, you – unlike me – may believe that there are actually solutions to political problems.

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

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Trump’s case – a view from an English legal perspective

24th April 2024

I am not an American lawyer, but here are some thoughts from an English litigation perspective.

Trump is adept at what he calls (or his ghost writer called) ‘the art of the deal’ – that is a transactional approach based on exploiting leverage.

Such an approach is not unhelpful in pre-trial shenanigans, where it is one party dealing with another party.  Pre-trial litigation is often deal-making by another name.  But when a dispute gets to court (and most Trump-related litigation does not get to a courtroom) then such bilateral game-playing becomes far less important.  A third party – the judge (and sometimes jury) takes power.  Trump’s blustering and bargaining is not well suited for this.  Bullying will now not be enough.

And there will also be another thing he now cannot control: evidence. And this evidence will feed into the media mainstream, with the added credibility of being on oath.  For somebody who is a deft manipulator of the media and his public image this los of information control will also be painful for him.

I have no idea if Trump will be convicted.  I suspect it will be hard to get a conviction.

But he is now a fish out of water, at least for a while.

 

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

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Law and lore, and state failure – the quiet collapse of the county court system in England and Wales

22nd April 2024
One theme of my blogging is the relationship between law and lore. By ‘law and lore’ I mean what people believe to be the law to be, as opposed to what the ‘black letter’ law actually is.
Few people, if any, regulate their lives by what the law actually is – for no (normal) human being can know the detail of all the laws that apply at every moment of their lives, from statutes and by-laws to contractual terms and conditions. The best that one can do is know as much actual law as you can and hope that what you believe about law corresponds with what the law actually is.

(And, of course, it may not always be plain what the law actually is, in any case.)

Another theme of my blogging is state failure. By ‘state failure’ I mean the acts and omissions by and on behalf of public officials and public bodies that indicate fundamental and/or systemic failings.

Sometimes these state failings can be hidden deliberately from the public and indeed politicians and the media, and sometimes there is perhaps no need to deliberately hide them as too few people care. In either case the ultimate problem is either lack of resources or lack of accountability, or both.

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Over at Prospect I have done a piece that illustrates these two themes: the unsexy and perhaps uninteresting topic of local civil justice – and in particular, the county court system.

Please click and read here.

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I fell onto this topic by chance. I was looking at the transcript of the recent ‘liaison committee’ of the House of Commons for something I am writing about parliamentary accountability. This committee, comprised of select committee chairs, is one of the few recent improvements in holding the executive account, with its periodic examinations of the Prime Minister.

At the most recent session, I saw that the Justice committee chair devoted about half his allotted questions to the county court system. He could have chosen many other topics – from international law to prisons – but this was the subject he selected. That in turn led me to seeing that the justice committee has started an investigation into the county court system. Such an inquiry is welcome.

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The reason the county court system combines state failure (of which it is an example) with law and lore is that, for most people the county court system would be where they would enforce their everyday legal rights and obligations in respect of civil law – contract, torts, family law, property law, and so on.

Few people would be able to commence such litigation in the more expensive and exclusive High Court – just as few people would be able to lunch at the Ritz.

Of course, most people will not ever litigate. Indeed most people will happily go through their lives without attending a county court – or even knowing where their nearest one is situated.

But they will conduct themselves often on the assumption that certain rights and obligations can be enforced ultimately.

However, if the county court system continues to collapse, then that assumption will become increasingly academic. In essence, what people believe they can enforce at court will become more lore than law.

This is not to say that there will suddenly be anarchy and lawlessness: systems of customary oral law can be very enduring, and some systems of non-enforceable law can be rather resilient.

But eventually the mismatch between what is understood to be the law and what can actually be enforced will have some effect, and that effect will, in turn, modify behaviours – and in an adverse way.

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We are getting close to local civil justice not being meaningful to many in the community.

Let us hope that, unless local civil justice is somehow revitalised, that the lag between law and lore is a long one.

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How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive

17th April 2024

Hugh Grant has acted in many counter-intuitive scenarios.

But the situation he described today on Twitter is perhaps the most counter-intuitive predicament of them all:

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Grant has been correctly advised by his lawyers – both as to the legal position and that he should settle.

Had Grant’s lawyers not given that advice they would have been negligent: this was the legal advice that had to be given.

But it seems wrong – how can this be the position?

And what can be done to change it?

These are good questions – though the second question does not have an easy answer.

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First let us strip the case of the celebrity of the claimant. We shall the claimant [X].

And we will strip away also the notoriety of the defendant. We can call them [Y].

Now consider the following:

– X is suing Y for damages in respect of a tort committed to X by Y.

– Damages is a money remedy.

– Y offers X more money than X would be likely to win at court if the case does go to trial.

In this circumstance, what should be done?

As the claim is only for money, and more money is offered than the claimant would receive if the case goes to trial, then what is the point of going to trial?

From one perspective, there is no point in the case continuing. After all, X is seeking damages – a money remedy – and X is now receiving money – more money than they are likely to be awarded by a court.

This perspective is the traditional one in English civil litigation: a claim in tort for damages is just another money claim, and so it can be addressed by money.

It does not matter if the tort is negligence, or copyright infringement, or misuse of private information, or whatever. Damages are the thing.

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But.

For a claimant there may be a desire for a public determination by a court of their claim.

A claimant here can point to, say, the relevant part of Article 6(1) of the European Convention of Human Rights:

“In the determination of his [or her] civil rights and obligations […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…”

Surely, X – here, Grant – is entitled to “to a fair and public hearing” with the judgment “pronounced publicly”?

Surely?

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Well, you would think so.

And in a technical (but somewhat artificial) sense, Grant has not been refused his public hearing and public judgment. There is no express prohibition on him continuing.

What has changed is not his entitlement to a public hearing and to a public judgment – both are still available – but the consequences of him exercising his entitlement.

These consequences are because it is seen as a good thing – generally – for civil cases to settle before trial where possible.

And so the rules of the court are that if one side offers a high amount in settlement then the other side should be, in turn, encouraged to accept that offer.

Such settlements save time and money for the parties and they save scarce resources for the court system.

And as many claimants in money claims are concerned with, well, money then an early offer of money is often welcome.

In general terms: why should X and Y have to go to court if the matter can be resolved before trial?

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Some offers to settle are flexible, and can be set out in correspondence marked “without prejudice” or “without prejudice save as to costs” (though for many non-lawyers and even some lawyers, these terms can be employed incorrectly and counter-productively).

But the rules of the court have also fashioned a man-trap of a procedural device which we can presume was used in the Grant litigation.

This is the…

(drum roll)

…Part 36 Offer.

 

Part 36 is a powerful procedural weapon – for good and for bad – perhaps the most powerful single provision in the civil procedural rules.

Part 36 offers are to be taken seriously – very seriously – by both sides.

In essence, Part 36 provides teeth – like a man-trap – to an offer to settle.

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A Part 36 offer is usually an offer to settle the entire claim.

If it accepted them the the legal costs of the claimant up to the offer are paid.

Hurrah!

But.

If the Part 36 offer is not accepted then the pressure is on the offeree to “beat” the offered amount a trial.

And if the offeree does not “beat” the offered amount, then the effects are much as Grant says in his tweets.

The offeree has to pay the other side’s legal costs, despite winning the case.

And the stressful thing is that the judge who awards the damages will not be shown the Part 36 offer. The judge will not know what the parties know.

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It is a very brave – or foolish – party who rejects an even-plausible Part 36 offer.

In practice, there is an art and a science to the timing and setting of Part 36 offers. At the right moment and at the right amount, a skilled litigator can bring a civil claim to a speedy halt.

There is also – unsurprisingly – extensive case law about what constitutes a Part 36 offer and what constitutes acceptance, and so on. This case law is because so much depends on the offer being valid.

It is a man-trap in the middle of a mine-field.

If and when to make and accept (or reject) a Part 36 offer is often the single most important decision a party and their lawyers will have to make in any valuable civil case.

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In the Grant case, it is apparent that the alleged tortfeasor chose now was the best time to set the man-trap.

It would have to have been for a substantial amount – which was higher than the likely amount to be awarded to Grant.

It was an offer he could not refuse.

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But.

Understanding the purpose of Part 36 – to make parties consider their positions seriously – does not counter the sense that there is something wrong here.

Yes: the Grant claim is a claim for damages.

But it was also a claim for the court to determine whether there had been wrongdoing by the defendant, which is denied.

And now there will not be a judicial determination – and the defendant can continue to maintain its lack of liability.

A Part 36 offer, as a settlement offer, is not an open admission of liability – or of culpability.

You can see why Grant and others are upset.

The defendant has been able, in effect, to again purchase its way out of any admission or a determination of any wrongdoing.

The defendant has adopted a clever and deft litigation strategy – and it is working well, insofar as no admissions or determinations have been made.

Surely this cannot be acceptable?

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The issue is that Part 36 works well for many relatively mundane cases.

It means the claimant can get a generous offer of money at an early stage of a case, with their legal costs met. It means a defendant has to err on the side of generosity in the amount that is offered.

It means that hard-headed decisions about the litigation have to be made at an early stage, rather than put off for trial.

In essence, what seems wrong in the Grant case is also what goes well for damages cases generally.

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There is an exception to the automatic operation of Part 36 – a court has the discretion not give effect to the consequences of Part 36 if it is “unjust”:

But that is a very high hurdle to meet: and a judge in the Grant case may not be easy to convince that it would be unjust in what is a damages claim for Grant to suffer the consequences of rejecting what was a generous Part 36 offer.

That Grant wanted a public determination of culpability by the defendant would not, by itself, make a Part 36 offer unjust.

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The hard question is how the system could be changed so that Part 36 could not be used as it has been in the Grant case – but still could be used in other damages claims.

And there may not be an easy answer.

Perhaps there can be a public interest exception – where a certified claim will not meet the normal consequences of not beating a Part 36 offer.

Or perhaps the “unjust” exception could be widened to have regard to the wider public interest.

Whatever the solution – if there is a solution – it would need to not have adverse consequences for those claimants that achieve early resolution of their damages claims against powerful defendants.

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The ultimate problem, of course, is that this damages claim was doing the work which should have been by other parts of the legal system – and by the aborted part 2 of the Leveson inquiry – where clever and deft use of the civil procedure rules would not help the defendant.

(No doubt lawyers skilled in those alternative procedures would employ their own tactics.)

But this was a damages claim – an important damages claim with wide implications – but still a damages claim. And from a litigation perspective, that is how it has been dealt with, and the claim is now resolved.

Perhaps the upcoming claim of Prince Harry will lead to a determination of wrongdoing.

Perhaps he is the claimant brave – or foolish – enough to reject a generous Part 36 offer.

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Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

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This is a slightly edited version of the post which appeared on my Substack.

The curious incident of the Afghanistan war crimes statutory inquiry being set up

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

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A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability?

8th March 2024

Yesterday over at Prospect I did a post on the curious situation of the Michelle Donelan libel settlement. Please click and read the post here.

Here I want to set out some further thoughts on what is, in one way, a remarkable law and policy news story – and what was, in another way, an accident waiting to happen given the practices now common in politics and media.

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This is her statement:

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Donelan is a Secretary of State and a Member of Parliament – and, as such, she can say and publish whatever she wants in a libel-safe way, as long as she goes about it sensibly and in the right way. The law of the United Kingdom is configured so as to allow ministers and parliamentarians an “absolute privilege” for what they say in parliament. The law is further configured so that in official correspondence, defamatory things can be freely stated (with “qualified privilege”) as long as the recipient has an interest in receiving the information, and it is said in good faith and without malice.

This configuration can be seen as unfair and one-sided – especially as, with qualified privilege, the onus is on the complainant to provide there was malice and bad faith. But this is how, in this context, the overall balance between free expression and reputation rights has been set in the public interest.

All this means that if Donelan, or any other minister, had genuine concerns about the appointments to a board of an agency which their department supervised, those concerns can be expressed and received, and it would be hard-to-impossible for any person mentioned to actually bring a claim in libel.

And so it is pretty remarkable for a minister to (purport to) do this and end up facing personal liability for libel – and to also expose their department to liability for libel.

Something wrong happened, and it needs explanaing.

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What converted this into a situation where the minister and her department became exposed to legal liability was the decision by the minister to tweet a copy of the letter stating these concerns about specific individuals.

At a stroke (of the keypad) the qualified privilege that would otherwise have protected that communication was lost. The thousands of people to whom the letter was now published had no proper interest in the contents.

And as the key accusations had not been investigated with any duly diligent checks, the publication of the letter on Twitter also could not be said to be in the public interest, which meant that an alternative defence to libel was also not available.

So not only was it a very strange thing for the minister to do, it was legally reckless.

Since the Prospect piece was written and published, it has been reported in the news that the minister had had advice before the letter was tweeted.

If this is correct, and the advice was legal advice (and not, say, a non-legal adviser nodding along), then either:

(a) the minister went against that legal advice; or

(b) the minister was given the wrong legal advice.

If the latter, then the decision to publish the letter on Twitter does not become any the less strange as an act, but the minister can at least say that she was not properly warned of the legal consequences. (And the latter is perhaps possible if the government lawyer concerned was not a media law specialist, though the law here is pretty straightforward and basic.)

But, in any case, no competent lawyer with a knowledge of media law could have advised that publishing the letter on Twitter would be covered by qualified (or absolute) privilege.

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From looking closely at information in the public domain, it would appear that the lawyers for the complainant (and she will not be named in this post, as she has suffered enough) sent a letter before claim to Donelan in her personal capacity.

(This can be inferred because the letter complained of was tweeted from her personal Twitter account, and the retraction was also tweeted from her personal account – hence the legal threat was made against her personally.)

But.

It would seem that the government immediately took the claim as meaning the department would be on the line, and so the government legal service acted for Donelan and not any private law firm.

(This can be inferred from the government statement “This [settlement] was subject to all the usual cross-government processes and aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”  The reasoning for this inference is in the Prospect piece.)

Normally the government would not need to do this.

Indeed, given the rules on public expenditure, the government should not have done this – unless the government believed itself to be exposed to potential liability.

But something about how the claim was framed put the frighteners on the government, and the government legal service jumped in.

Yesterday in Prospect I averred there were two possible reasons for the government dealing with the claim, but recent news reports now suggest a third.

The first is that the government saw the tweet as being connected to her role as Secretary of State – it was part of her departmental work and, although the tweet was from her personal Twitter account, it should be treated as an official communication.

The second is that although the tweet was in her personal capacity, the litigation would drag in the department in a costly and time-consuming way, and this litigation could also develop so as to expose the department to direct legal liability about the letter to the agency. In particular, the department may be anxious that “disclosure” of internal documents could undermine any qualified privilege it had in the letter to the agency.

The third – further – reason is that the department gave the minister duff legal advice saying that the letter was safe to publish on her personal Twitter account.

Whatever the reason – whether it be one of the above, or a mix of them, or a reason not currently obvious – a decision was made that this was the department’s problem, and not just the minister’s unfortunate personal political predicament. And this decision presumably was made by a senior official under government accounting rules.

That this is the position is the only natural meaning of the government’s statement: “This [settlement] […] aims to reduce the overall costs to the taxpayer that could result from protracted legal action.”

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Once the government realised it was on the libel hook then it was sensible for the department to close down this litigation as soon as possible.

It appears that the litigation did even not get beyond pre-action correspondence. It seems no claim was issued at the High Court or served on Donelan.

The government legal service seems not to have indulged in any tiresome litigation posturing along the lines of “as taxpayers money is involved we really would need to see the case properly set out in served particulars of claim” or any other similar nonsense.

Government lawyers needed to settle this case, and fast.

There was a problem here.

Fortunately for the government, it was also in the interests of the complainant to settle this matter quickly.

A retraction was offered, with damages and costs, and this suited the complainant.

Had the complainant pressed on, there is little doubt she could have secured an apology – and the word “sorry” was not in the published retraction.

(Given the news coverage, the minister may have well apologised – as it has been widely but incorrectly reported as an apology.)

In the circumstances, both sides could be satisfied with this outcome – though one suspects there was a rather loud “Phew!” in Whitehall when the settlement was reached.

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For a government minister to visit potential legal liability on their department is remarkable, given how the law generally protects ministerial statements and communications. This required a special fact situation.

But.

This sort of thing was also an accident waiting to happen.

There is a information economy in and about Westminster – where ministers and special advisers and lobbyists and researchers and pressure groups and journalists are constantly swapping material between themselves (and sometimes those involved are wearing more than one hat).

It was perhaps only a matter of time before an example of this spilled into official correspondence, and then was tweeted from a minister’s social media account.

And when it happens there can be legal consequences.

Here it was the law of libel – but one can conceive of situations where other areas of law could be engaged, such as misfeasance in public office.

For not only is the law configured so as to protect ministers and politicians in some situations, it also configured so as to impose immense legal liabilities in others.

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Disclosure: I was a government lawyer about twenty years ago.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

More on the comments policy is here.

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Many thanks to those of you who support my blogging: I have had to have a short period away from this blog (and pretty much social media generally), but I am now refreshed and regular blogging should now resume.

A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision

10th February 2024
This week Prospect posted something by me on the issue of a potential border poll in Northern Ireland.

Please click (and read!) here.

This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.

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The starting point is that a potential referendum in Northern Ireland has been in the news.

On one hand:

On the other hand:

The Sinn Fein quote was:

“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”

Asked if she meant before 2030, Ms McDonald said “yes”.

The Prime Minister’s quote was:

Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.

The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister

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Now we will look at the relevant legislation – the Northern Ireland Act 1998.

There are two key provisions.

First, there is section 1, which should be read carefully:

(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)

That section 1 needs to be seen in the context of, well, other sections 1s.

Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):

You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).

By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:

And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.

The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.

At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.

However, sometimes, things change – and demographics change.

Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.

Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.

*

Having set out that context, let us go back to the text of section 1 of the 1998 Act:

Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.

The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.

But.

There is that second sub-section, beginning with a “But”.

And this is where it becomes interesting and departs substantially from previous legislation:

The word “shall” in that provision is highly significant.

For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.

If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.

But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.

*

So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.

(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)

Here are the first two paragraphs of the schedule:

The two paragraphs are doing different things.

The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.

The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.

On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.

But in invisible ink, so to speak, there are limits to be discretion that are implied by law.

The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.

But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.

(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)

*

Now let us look at the fascinating and significant second paragraph:

This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.

The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.

The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.

But.

Element (B) limits that subjective discretion.

Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.

There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

It would become literally incredible.

At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.

The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.

A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.

And that would then make it potentially a matter for the courts.

*

The courts will not want to deal with it.

The courts will view this as a political question.

And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.

But.

The judges may not get to duck out of it, as much as they would like to do so.

For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.

Here we need to look at the Good Friday Agreement.

The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:

Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.

And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.

The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.

The other parties were wise to do so.

For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.

*

Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.

But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.

*

Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.

Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.

Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.

There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.

*

Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.

But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.

It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.

*

Holding a border poll for Northern Ireland is essentially a political matter.

And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.

Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.

And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.

*

Going back to the quotes at the top of this post:

The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.

You can see why, for both, these are the lines-to-take.

An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.

But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.

As always: law shapes policy and politics; and politics and policy shape law.

And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.

*****

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

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How the government is seeking to change the law on Rwanda so as to disregard the facts

30th January 2024

The decisions of judges, other than about case and court management, can be divided into two sorts.

First, there are rulings. These rulings can be about the substantive law, or they can be rulings on the admissibility of evidence, or they can be rulings on procedural technical points. In each instance, the judge will identify the rule, apply it to the situation before the court, and decide the outcome.

Add second, there are findings. These are determinations of fact which are required for the case before the court to be decided at a trial. These facts are, in turn, based on the evidence admitted before the court.

If there is no dispute, then a judge can make a finding of fact based on the undisputed evidence before the court; but if there is a dispute of fact then the judge has to weigh the conflicting evidence and make a finding.

The judge will then apply the rules to the facts found.

(In a criminal trial – and some civil trials – where there is a jury, it will usually be the jurors that will determine any disputes of fact and thereby any consequential legal liability.)

A reasoned judgment by a court deciding a case can include both types of decision; though in a straightforward case there is normally only a dispute of fact.

The key point for the purpose of this post is that rulings and findings are different.

*

Now let us go to the Supreme Court judgment on the Rwanda policy.

The court set out the statutory criteria for determining whether Rwanda is a safe third country (emphasis added):

“A country is a safe third country for a particular applicant, if:

“(i) the applicant’s life and liberty will not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion in that country;

“(ii) the principle of non-refoulement will be respected in that country in accordance with the Refugee Convention;

“(iii) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected in that country; and

“(iv) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention in that country.”

*

After a detailed examination of the evidence, ultimately the Supreme Court decided (again emphasis added):

“As matters stand, the evidence establishes substantial grounds for believing that there is a real risk that asylum claims will not be determined properly, and that asylum seekers will in consequence be at risk of being returned directly or indirectly to their country of origin. In that event, genuine refugees will face a real risk of ill-treatment in circumstances where they should not have been returned at all. The right of appeal to the High Court is completely untested, and there are grounds for concern as to its likely effectiveness. The detection of failures in the asylum system by means of monitoring, however effective it may be, will not prevent those failures from occurring in the first place. We accept the Secretary of State’s submission that the capacity of the Rwandan system (in the sense of its ability to produce accurate and fair decisions) can and will be built up. Nevertheless, asking ourselves whether there were substantial grounds for believing that a real risk of refoulement existed at the relevant time, we have concluded that there were. The structural changes and capacity-building needed to eliminate that risk may be delivered in the future, but they were not shown to be in place at the time when the lawfulness of the policy had to be considered in these proceedings.”

In other words the Supreme Court made a finding of fact based on the evidence placed before it. The evidence “established” a thing, and that thing in turn determined the case.

*

Let us now look at the government’s Rwanda Bill currently before the House of Lords on its passage through parliament.

Here is clause 2 (note a Bill has “clauses” as it passes through parliament, which then become “sections” when it becomes an Act):

You can see what the government is seeking to do.

Instead of it being a matter for a court to decide whether Rwanda is a safe third country, the Bill removes that discretion absolutely – regardless of any evidence. Indeed such evidence may not even be relevant with this deeming provision.

A court will not be able to make its own findings, it “must conclusively” decide Rwanda is safe – whatever the actual facts.

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And now let us go to a speech in the House of Lords from the former Conservative Lord Chancellor Kenneth Clarke:

According to Hansard, Clarke said:

“[Ministers] have decided to bring an Act of Parliament to overturn a finding of fact made by the Supreme Court of this country.

“If we pass this Bill, we are asserting as a matter of law that Rwanda is a safe country for this purpose, that it will always be a safe country for this purpose until the law is changed, and that the courts may not even consider any evidence brought before them to try to demonstrate that it is not a safe country.

“That is a very dangerous constitutional provision. I hope it will be challenged properly in the courts, because we have an unwritten constitution, but it gets more and more important that we make sure that the powers in this country are controlled by some constitutional limits and are subject to the rule of law.

“Somebody has already said in this debate that Parliament, claiming the sovereignty of Parliament, could claim that the colour black is the same as the colour white, that all dogs are cats or, more seriously, that someone who has been acquitted of a criminal charge is guilty of that criminal charge and should be returned to the courts for sentence. Where are the limits?

“As time goes by in my career, I always fear echoes of the warnings that Quintin Hailsham used to give us all about the risks of moving towards an elected dictatorship in this country.

“The sovereignty of Parliament has its limits, which are the limits of the rule of law, the separation of powers and what ought to be the constitutional limits on any branch of government in a liberal democratic society such as ours.”

*

Yes, Clarke had at best a mixed record as Lord Chancellor – especially in respect of the severe funding cuts to legal aid.

But he is absolutely right to set out, with first principles, the fundamental danger this bill presents.

The government should leave findings of fact to the courts – and if the court’s findings are unwelcome, then ministers should work to change the facts.

Using the law to deem a country safe which the Supreme Court found to be unsafe after a detailed examination of the evidence, is an unwelcome move by this government.

And even a former Conservative Lord Chancellor can spot this.

 

 

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

More on the comments policy is here.