Author: David Allen Green

“I am sorry but I make no apology” – words and meanings and politics

12 August 2021

The eminent jurist Elizabeth Doolittle once averred:

‘Words Words Words
I’m so sick of words
I get words all day through’.

Of course, the problem of too many words and not enough meaning is an old problem.

Once can point at a current example and deplore it, and soon someone in reply will point out it is nothing new.

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Perhaps it is not new, and perhaps the only difference now is that, because of the internet, there are just far more words to be seen.

An ever-growing tower of babble.

But.

The use (misuse, abuse) of words by the authoritarian populist nationalists in today’s politics – in both the United Kingdom and the United States – does seem to have something novel to it.

Maybe it is the shamelessness of the knowing disconnect between words and their meanings – as if our ‘post-truth’ and ‘fake news’ predicament meant that politicians do not even need to try to have words that correspond with reality.

If so, and if this is indeed a novel situation, then there is no inherent reason to believe that politics will be happily cyclical, and that we will return to the good days of there being a match between what politicians say and what they do.

That said, it may not actually be that happy and good, if those politicians – like Orban in Hungary (see here) – next say illiberal things and very much do mean them, because they no longer care about liberal pieties.

For the illiberal politicians of our age, it seems the first step is to rob words of meanings, and then to be unafraid of saying what they really do mean.

This in turn makes the political challenge difficult for those (of us) who are liberal and progressive.

Not only do we have to combat the assault upon truth, but we then have to combat the follow-on candid and unapologetic assault upon human dignity and autonomy.

It is a grim prospect – and it is one for which illiberals ‘make absolutely no apologies’.

Brace, brace.

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The last surviving transatlantic slaves and what their lives tell us about the law

11th August 2021

As part of my research into slavery and the law, I want to ascertain the chronological parameters of the transatlantic slave trade.

At one end, in the sixteenth and seventeenth centuries, there is the emergence of the trade in the days when the legal system(s) were very different to now – with rights of action and forms of property with which many modern lawyers would not now be familiar.

But what of at the end?

Of course, we all know that the trade had (supposedly) ended by the early to mid nineteenth century.

But in fact the last victims of the trade were alive until modern times.

The last (known) living victim did not die until 1940 – within the lifetime of four currently serving United Senators

And if one looks at the lives of the last three of those who are known to have survived, you get some interesting insights into the role of (relatively) recent law in respect of transatlantic slavery.

The survivors names were Oluale Kossola (also known as Cudjo Lewis), Redohsi, and Matilda McCrear – see here, here and here.

The ‘legal’ insights one gets are:

– how transactions were still being made in Africa, and how the supply of slaves was still organised so as to meet demand;

– how the traders deftly evaded justice – by procedural delays, as well as destroying evidence and hiding the human evidence – and also by jury verdicts;

– how survivors did not have the automatic benefit of American citizenship after emancipation because they were born abroad; and

– how one of the survivors even sought compensation (presumably in the 1920s or 1930s) but the claim was dismissed.

These examples touch on modern legal issues – the existence of illegal markets, criminal prohibition and its avoidance (both in substance and by gaming procedure and evidence), rights of citizenship, and rights to compensation.

The story of the transatlantic slave trade lasted some five hundred years.

The story goes from the legal days of actions in trover and assumpsit to the laws that exist today.

It was far more extensive both in scope and duration than many would realise.

In a way, the story of the slave trade is the story of modern commercial law.

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A short video that provides the fuller picture of the Atlantic slave trade

10th August 2021

One of the projects on which I am working is a history of the law of slavery in practice.

You may think that you know the broad outlines of the story of slavery – at least in respect of the Atlantic slave trade.

But this short video – for which both script and animation are first-rate – is instructive and revealing, and it should be watched by anyone trying to understand the lasting effects of that trade on the world today.

The video looks at slavery from an African perspective – and emphasises two things that are sometimes missed.

First, how the European slave traders themselves created the demand for the selling of slaves – so that, for example, the capturing of prisoners within Africa for selling on to traders went from being a by-product of wars in Africa to the purpose of the wars.

Demand created its own supply.

Second, how the end of the slave trade meant that African kingdoms that had been dependent on that trade were then so weak for the period following the abolition of the trade and then slavery itself:

‘When the slave trade was finally outlawed in the Americas and Europe, the African kingdoms whose economies it had come to dominate collapsed, leaving them open to conquest and colonisation.’

And so this how the scramble for Africa in the late-1800s resulted from the slave trade that ended in the early- to mid-1800s.

This is an obvious consequence, if you think about it, and joins together slavery and (formal) colonisation as two linked stages of the same exercise of exploitation.

Africa was first made poor, and then it was taken – with the exploitation becoming also of minerals and resources, as well as of labour.

Had it not been for the earlier slave trade, the story of subsequent European imperialism in Africa may have been significantly different.

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One of the curses of an Anglocentric or Eurocentric perspective is that so much of the fuller picture is hidden – or just not looked for.

And this video – and the fuller picture which it shows of markets being created and then cleared – is useful context for the question which I am seeking to address in my research project: how did the legal system and lawyers facilitate slavery?

Slavery was never a mere frolic of a few individual slavers like Edward Colston, but a phenomenon that in turn depended on an immense infrastructure provided by commerce and law.

This video, among other sources, shows how that phenomenon looked in the round.

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The Animal Welfare (Sentience) Bill does not do a lot – but the little it does do should be welcomed

9th August 2021

Over at the Times there is a news report about the Animal Welfare (Sentience) Bill currently before parliament.

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One response to this news is to doubt that cabinet ministers are sentient beings.

https://twitter.com/davidallengreen/status/1424658384020819971

But that would be silly.

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The bill is worth looking at, both for what it does and what it does not do.

The six-clause bill – with three operative clauses – does very little.

Clause one provides for an ‘Animal Sentience Committee’ to be established and maintained.

There is, of course, no need for primary or indeed any legislation for a committee to be formed.

Committees can be formed and dissolved informally in central government.

Clause two provides that the committee ‘may’ (not ‘shall’ or ‘must’) produce and publish reports on which government policies might (not necessarily will) have ‘an adverse effect on the welfare of animals as sentient beings’.

The committee also ‘may’ (again not ‘shall’ or ‘must’) make recommendations for how the government may have ‘all due regard to the ways in which the policy might have an adverse effect on the welfare of animals as sentient beings’.

Again, this is weak stuff – the committee would have no legal obligation to produce any reports or recommendations at all.

The bill certainly does not place a direct statutory duty on departments to have ‘all due regard to the ways in which [a] policy might have an adverse effect on the welfare of animals as sentient beings’.

(Though such a duty should, in my view, exist.)

Clause three – the last of the operative clauses – is the one where there is (slight) legal kick.

When a report is published, the government ‘must’ (and not only ‘may’) lay a response before parliament within three months.

The government’s response may be in the barest terms, just saying the report and any recommendations are noted, and it will have discharged its duty.

And that is it.

That is all the bill does.

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On the face of it, there is nothing in the bill that warrants the response of some ministers as described in the Times article.

In particular, there is little formal scope for anything to be ‘hijacked’ by ‘activists’.

And even if the committee were to publish a critical report packed with ambitious recommendations, there is nothing which would legally oblige the government to do anything different from what it would want to do anyway.

The bill (like the international aid legislation and other examples) is not especially substantial legislation.

One is not surprised that the government’s website says that the bill is ‘enshrining sentience in domestic law’.

That word: ‘enshrining’.

Hmm.

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But.

Perhaps because of my own bias (as a supporter of animal rights), I think there is something to be said for this legislation, weak as it is.

Even if there is no legal obligation on the government to follow any recommendations, it does oblige the government to publicly address any report and thereby any recommendations.

That obligation may turn out in practice to be as ultimately ineffective as the similar obligation on the government to report on why it is not complying with the international aid target.

It is, however, better than nothing.

It forces some accountability.

This duty being placed on a statutory basis makes it a little more difficult for the government to ignore any concerns altogether, which would be the case if the proposal had not statutory basis at all.

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The definition employed by the bill for animals – a lovely piece of drafting – is that ‘“animal” means any vertebrate other than homo sapiens’.

This is perhaps a little problematic – as there are invertibrates that are sentient and indeed highly intelligent (as this blog has recently discussed).

As Peter Godfrey-Smith sets out in his outstanding book Other Minds: The Octopus, The Sea, and the Deep Origins of Consciousness:

‘If we can make contact with cephalopods as sentient beings, it is not because of a shared history, not because of kinship, but because evolution built minds twice over.

‘This is probably the closest we will come to meeting an intelligent alien.’

The bill however provides that ‘invertebrates of any description’ can be added to the category of sentient animals by a secretary of state, spineless or otherwise.

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Usually I would be disdainful of such gesture-based ‘enshrining’ legislation – and I am sceptical about much of this bill.

The only direct merit of this legislation is in terms of forcing departments to take account in policy-making the sort of concerns that departments should be taking of anyway.

The recent turn away by the supreme court from allowing policy challenges in judicial review probably means that any non-compliance by a department with the committee’s recommendations will not get any judicial remedy.

But there could be indirect effects – though not the feared ‘hijacks’ of Rees-Mogg and others.

Courts when dealing generally with questions of animal rights will now be aware that the legislature had provided for a formal mechanism for policy recommendations about animal welfare to be taken seriously.

That may not make any direct difference in any litigation, but the existence of a statutory scheme would inform and promote judicial and legal awareness that the welfare of animals is not a trivial or extremist position.

This legislation is a small step towards enforceable animal rights (or at least to an enforceable duty that animal welfare be considered in policy-making) and it should be welcomed for what little it does – though that is a lot less than what its supporters and opponents aver that it does.

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Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

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The story of Jack and Harry – what the respective Grealish and Kane contract situations tell us about all legal agreements, including the Brexit deal

6th August 2021

On the face of it, this blogpost may be about football – but the point it is seeking to advance is about all legal agreements, including the Brexit deal.

So if you are not a football fan, bear with the context, for the post is really about a more important general principle.

By way of background, there have been two football transfer stories in England in the last week.

One is the completed record £100 million transfer of Jack Grealish from Aston Villa (the club I happen to support) to a Manchester club.

The other is the potential and, as yet, frustrated transfer of England captain Harry Kane from a London club to that same Manchester club.

(I hope the supporters of those other clubs do not mind my gentle teasing – Aston Villa fans have not had a great few years, and we have to take pleasures as we can.)

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The story of Jack

The reason why the transfer of Jack took place is that he (with his agent and his lawyers) negotiated a particular provision in his contract with Aston Villa.

This provision appears to have been a clause with the following form:

In the event that

(a) there is a transfer bid of £100 million is received from

(b) a club taking part in the European champions league and

(c) Aston Villa is not taking part in the European champions league,

then a release option can be triggered by the player.

This provision appears to have been inserted in the new contract that the player negotiated and signed with the club last year.

It seems that Aston Villa did not want to sell Jack at less than £100 million nor in circumstances that would adversely affect the club’s chances in the European champions league in the happy (and then unlikely) event the club qualified for the competition.

The £100 million amount selected was a record fee for a transfer between domestic clubs and would have (then) been regarded as prohibitively high, but it also was a sincere and fair estimate of the value to the club of the club’s captain, who they perceived to a be a world-class footballer.

On the other hand, Jack did not want any old transfer from Aston Villa, but he wanted to have the real option of joining a club where he could play alongside and against players of a similar standard to himself in European champions league football.

Both parties agreed that this would not and should not happen if Aston Villa itself was playing in the European champions league.

So both parties agreed that in the foreseeable circumstances of interest from a club taking part in the European champions league, what the allocation of risk would then be, and they agreed a practical provision accordingly.

And when interest came from such a club, the parties then know what their interests and positions would be.

Wise Jack.

Wise Aston Villa.

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The story of Harry

Harry also wants to join the same Manchester club.

But it appears Harry and his advisers did not negotiate such a provision in his contract with his London club, who are not taking part in the European champions league.

This was even though it was foreseeable that clubs taking part in the European champions league would want to purchase the England captain and leading goal scorer.

And because there is no such provision to trigger, Harry is reduced to refusing to turn up for training.

It appears he is seeking to use extra-contractual means to end his contract with present club, so as to force through a desired transfer.

This tactic may or may not work, but it is certainly unseemly.

A better approach would have been for him (and his advisers) and the London club to have sat down and discussed the possibility of such a transfer.

The London club, like Aston Villa, could have stipulated onerous conditions to protect their legitimate interests which would have to be met, and Harry could have accepted these conditions in return for the right to trigger the option of a release if those conditions were met.

Of course, it take takes two parties to agree a contract – and it may be that one (or both) of the parties could have refused such a provision outright.

But such a lack of realism has only resulted in the current messy situation, and stubbornness would have achieved little.

It would have been better for both parties if such a realistic option had been provided for.

Instead Harry is at home upset and frustrated.

He appears to have believed there was a ‘gentleman’s agreement’ that would bind the London club, rather than the club being bound by the actual wording of the contract.

Unfortunate Harry.

Unfortunate London club.

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The story of Brexit

With Brexit, the United Kingdom appears to have adopted the Harry Kane approach to contracts – of signing some agreement and then hoping the agreement does not mean what it says.

And so the United Kingdom government is, in effect, also sulking in its plush London home, hoping to force the European Union to move from what was actually agreed.

A more sensible United Kingdom government would – at the time the agreement was negotiated – have dealt with foreseeable risks by allocating the risks as between the parties.

The United Kingdom should have been more like Jack.

But instead it has been like Harry.

Unfortunate United Kingdom government.

Unfortunate us.

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Lord Reed’s signal: the politics of the Supreme Court (continued)

5th August 2021

Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.

The piece is by the law professor and former adviser to house of lords committee Alexander Horne.

It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.

If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.

If so, this may be significant – at least in its effects.

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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.

This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.

This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.

Almost all the cases heard by the supreme court do not concern judicial review.

That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.

This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.

It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.

In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.

There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.

But those judges and lawyers will soon be in the minority.

And this effect will have a practical impact far greater than could be achieved by bill before parliament.

The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.

The supreme court seems to be signalling the retreat.

**

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“For sale: dead baby octopus, thirty-six pence”

4th August 2021

There is a famous, six-word short story, attributed to Ernest Hemingway:

‘For sale: baby shoes, never worn’

The story even has its own Wikipedia page.

A powerful, poignant six-word story.

And here is another powerful, poignant short story, contained in a single tweet:

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’36 pence for a dead baby octopus’

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Now take a few minutes to watch either or both of the following videos.

The octopus is perhaps, after the great apes, the most intelligent creature on our planet.

We have so much to learn from the octopus about the nature of intelligence and practical problem-solving.

We have so much to respect about how a creature, so utterly different from the great apes, can – by adapting to its own environment – develop over millions of years an intelligence comparable to ours.

The octopus should be as cherished a species as the gorillas, the chimpanzees and bonobos, and the orang-utans.

But such is human folly we package them up, and we say instead:

“For sale: baby octopus, thirty-six pence”.

**

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Four hundred years after the civil wars, Parliament is being asked to give power back to the Crown

3rd August 2021

You would think that the grand question of the relationship between the powers of the crown and of parliament had been more-or-less settled over the last 400 years of our history.

The trend has been for the ‘prerogative’ powers of the crown – those powers that have legal effect because the crown is said to have such powers – to be subject to regulation or control by parliament and the courts.

And this is not an unusual thing for a polity that has become more democratic.

Some of these powers have moved to being under parliamentary and judicial supervision or direction at different times – but the tide has generally been in one direction.

But.

As the historian Robert Saunders explains lucidly in this thread, we have a remarkable turn in the tide.

In particular:

The issue, is of course, the repeal of the unliked and unloved Fixed-term Parliaments Act.

This is the 2011 legislation which has never resulted in there being a parliament lasting an entire fixed-term.

Given how easily governments, through parliament, have circumvented the core provision of the legislation, it must be regarded – at least on the face of it – as one of the most singularly useless acts of parliament ever enacted.

(This blog has previously discussed this statute here.)

But.

The principle behind the legislation was – and is – valid and important.

It should be for parliament – and not the executive – to decide when there should be an early general election (that is, an election before the end of a fixed term).

That there have perhaps been frustrations and misadventures with the legislation so far does not mean that the law should be abandoned absolutely – no more than any other prerogative being handed back to the monarch (and by implication the prime minister).

The historical trend away from passing power away from the executive to supervision or control by parliament and the executive has been bucked.

And, fittingly, it is this cavalier (in both senses) government seeking this reversal.

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