Author: David Allen Green

Some words of comfort to regular readers

29th April 2021

Regular readers of this blog will be aware that things are not well with the constitution of the United Kingdom, or with law and policy generally.

Regular readers will be braced for bad news – even without this blog’s frequent injunction of ‘brace brace’.

But.

There are, believe it or not, some grounds for optimism.

The grand Cummings-Johnson project of pushing prime ministerial power as far as to could go is close to collapsing.

Cummings has gone, and Johnson has few remaining internal allies in government.

Indeed, Johnson seems quite isolated even within the government.

Other parts of the constitution are still twitching with indications of life.

For example: the house of lords, as with the Overseas Operations Bill, has ensured that certain proposed unpleasant provisions will not be enacted – resulting in a minister departing office.

And although few will have high hopes of various inquiries and investigations into what has and has not happened in Downing Street, at least those inquiries are happening and that they are, to a certain extent, beyond ministerial control.

The illiberal 2016 project does not – necessarily – have easy purchase in 2021.

Constitutionalism may still yet reassert itself.

To mimic Johnson – constitutionalists need not be doomsters and gloomsters.

One day – perhaps soon – the constitution of the United Kingdom will still be there, and Boris Johnson will not be.

Even if it is a close run thing.

 

 

 

Genuine accountability, mock accountability, and the lies of Boris Johnson

28th April 2021

Today’s prime minister’s questions was extraordinary.

On the two issues of the moment the prime minister Boris Johnson was relentlessly unconvincing and evasive.

In respect of the alleged ‘dead pile high’ quote, it is plausible and – according to the media – well-sourced.

In respect of who paid for the Downing Street decorations, the verbal dodges to the simple query of who initially paid for an invoice were painful to watch.

But.

Not many will care.

A significant number of the population will, no doubt, sympathise with the sentiment which the prime minister expressed about lockdown, and more than a few will agree with the actual wording.

Similarly, the question of the refurbishment invoice will not matter to those who do not mind who paid as long as it was not the taxpayer.

Perhaps there will be hard evidence – either compelling on-the-record testimony or even an audio recording – to prove Johnson as a liar.

Yet even then the only surprise would be that he has been so starkly caught out.

The sad, inescapable truth is that Johnson conducts himself as if he is free from accountability.

And the reason he is able to do this is simple: it is because he can.

*

Let us look at the available mechanisms of accountability.

Johnson and his government will avoid, as long as possible, any formal inquiry as to their conduct in respect of the coronavirus pandemic.

The prospect of an electoral commission investigation is difficult to get excited about, given their impotence in respect of the lack of compliance during the referendum.

And Johnson just freely lies to parliament.

The examples – all of which are documented and verifiable – just accumulate.

Almost nobody cares.

We have more internal ‘inquiries’ – which may or may not report, or even be heard from again.

Few people keep track.

And as Fintan O’Toole observes, Johnson is not now even bothering to lie in prose:

‘It’s not when Boris Johnson is lying that you have to have to worry. If he’s lying, that just means he’s still breathing. No, the real danger sign is the gibbering. It’s what he does when he can’t be bothered to think up a lie.’

*

Against this pervasive mendacity, those organs of the state that are able to check and balance the executive are being undermined or removed: the independent civil service, the diplomatic corps, the independent judiciary, and so on.

All because – at last – the United Kingdom now has a prime minister willing – and shameless enough – to exploit to the full the (ahem) opportunities that the prime minister has with a parliamentary majority.

Eventually, of course, Johnson’s hubris will meet nemesis – just as he himself eventually came to meet the costs of the Downing Street refurbishment.

And here we are lucky – for if we had a political leader who was as serious in retaining power as, say, Vladimir Putin, we would have few constraints to look to for checking and balancing power.

Johnson is what we get, however, when politicians stop believing (or affecting to believe in) the ‘good chaps’ theory of the constitution.

Tuttery is insufficient – and the tutting could be three times as loud, and it would still make no difference.

*

There are indications that political and media supporters of Johnson are moving against him.

If so, there could be a mild political crisis and that this may be enough to dislodge Johnson from office.

But this would not be through any application of any constitutional check or the operation of any constitutional balance.

For all of Johnson’s sheer and endless casual dishonesty, there has been nothing the constitution could do to stop him.

Even if he was proven to have lied to parliament, that would mean nothing politically if he still had support of the majority of members of parliament.

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And on a final note.

Usually at this point of this sort of exposition, someone will aver that all this shows the need for a written (that is, codified) constitution.

The universal panacea for every political ill.

But.

A written constitution is as likely to entrench executive power than to limit it.

The problem is not the type of constitution.

The problem is instead a related one: the failure of constituionalism.

And while Johnson’s brazen disregard for constitutional norms is tolerated, there is no point changing the rules of the game, for he would disregard those rules too.

The problem is a political one: and the solution is thereby to show that this conduct means he loses power.

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Why do prime ministers so often forget Hubris meets Nemesis? And why we should be glad that they do forget.

27th April 2021

The current prime minister Boris Johnson assures us that the public will not be interested in some current scandal.

He may well be right.

Johnson, like almost all those who become prime minister, is an exceptional politician – and one does not climb to the top of the greasy pole if one slips easily.

But – again like many former prime ministers – this political durability and steadfastness is converting into a sense of invincibility and infallibility.

Because a senior politician can survive some setbacks, they come to believe that they will survive all setbacks – that they are immune.

Margaret Thatcher in about 1988 was like this – introducing the poll tax to chants of ‘ten more years’ from delegates at party conference. 

Tony Blair also was like this about the time of the Iraq invasion.

But it never lasts.

Even prime ministers such as Thatcher and Blair, both of whom won three general elections, were unwillingly replaced.

Why is there always this hubris before nemesis?

Why is there this apparent sense that it will turn out different this time?

Part of the answer, of course, lies in politics and personalities – and thereby it is a quality of those who gain and retain political power.

But part of it must also be – at least in the United Kingdom – how insulated a prime minister is from actual accountability.

For a prime minister with a sizeable majority has few restraints on their political freedom of movement.

They can personally change policy and impose it on cabinet; they can force through almost any legislation; they can conduct foreign policy; and they can appoint and sack at will.

Perhaps we should not be surprised that some prime ministers go mad with power, but that they do not go madder.

But such hubris will always meet its nemesis – and what practically brings a prime minister down will often be their arrogance of being untouchable.

And so perhaps the politicians to fear most are not the hubristic ones – for they are merely creating the means of their own political destruction – but the ones that are acutely aware of the fragile nature of power and never forget it.

For they are the scary ones.

Why the Post Office case will not go away – and the wider implications of the case

26th April 2021

Few appeal cases keep on being news a few days after the judgment has been handed down.

The parties, of course, will keep an interest as they decide what, if anything, to do next; lawyers will consider any legal or procedural point of wide import; specialists and experts will take due notice of any significant development.

But general news value of an appeal decision diminishes rapidly, and soon it will be as old news as a football result.

But the Post Office appeal case has been different.

If anything, many people – this blogger included – are taking more of an interest in what happened.

In part this is because of the detailed judgments – and so some relentless investigative journalism.

The more one looks at the case the more worrying the case becomes.

All sorts of professionals – not just the senior managers – appear to have been caught up in the attempt to oppose the exposure of what happened.

And as the eminent blogger on law and legal ethics Richard Moorhead asks over at his blog: where were the lawyers?

Reading carefully this detailed Private Eye piece on the scandal, there are many moments where anyone with an interest in litigation will gasp. 

The easy way of addressing the question of what were the lawyers doing is to aver that lawyers are not decision-makers, they only advise and so on.

But that old stand-by of an excuse does not quite work with issues, such as disclosure of documents and duties to the court, where the decision-making is done by lawyers rather than clients.

Something very wrong happened, and for a long period, and because of the decisions made of many people.

And the wider question becomes: where else are such commercial-legal scandals and cover-ups where there has not been a success in bringing it to light?

Perhaps not ones where there have been a mass of prosecutions, but where there has been co-ordinated attempts to prevent transparency, scrutiny and accountability.

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How proper funding and resourcing means fewer miscarriages of justice

25th April 2021

After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.

And often the miscarriage comes down to the evidence before the court.

In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.

The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.

(See my Horizon posts here and here.)

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In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.

And so the scales tip to one side.

To dislodge such (on the face of it) compelling evidence is a difficult task.

To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.

To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.

To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.

And the main safeguard, of course, is (or should be) the forensic process itself.

Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.

There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.

*

But.

Disclosure exercises are sometimes not easy – or cheap.

A properly resourced prosecution authority is not cheap.

Proper case preparation is not cheap.

And skilled in-court lawyering and cross-examination is not easy – or cheap.

For justice to be served, however, requires all of this is done well – which requires funding and other resources.

Else the court will be prone to placing the wrong weight on evidence before it.

Or as techies put it: Garbage In, Garbage Out.

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Further thoughts on the Post Office Horizon case

24th April 2021

Following yesterday’s important and immense criminal appeal judgment on the Post Office Horizon case (post here), I have had a look at the preceding civil judgments.

(The civil cases were when those affected sued the Post Office – the criminal appeals were challenges to the criminal conviction in prosecutions brought by the Post Office – the distinction explains why there have been two channels of litigation in this scandal.)

The first – favourable – impression is that the judge who dealt with the civil cases did a magnificent job of judging, both in terms of case management and of the substance of the case.

The key 2019 judgment is here – and it some 155 pages and 1024 paragraphs.

It is an outstanding and forensic piece of work, by a (rare) judge at ease with both technology and the law.

Paragraph 929 is a judicial classic.

The judge is a credit to the judiciary.

*

But.

That civil judgment is from late 2019.

The criminal convictions were quashed yesterday.

And the wrongful convictions date back to 2003.

This means there has been a wait of, in some case, nearly twenty years for justice.

However commendable the 2019 civil judgment and the 2021 criminal appeal judgment, there is little or no room for legal self-congratulation at these delays.

Part of the delay can be explained, of course, by the Post Office seeking to contest the cases as long as possible, defending their ‘robust’ system.

Another part of the delay can be explained by the internal Post Office decisions to, in effect, cover up or ignore what happened.

But whatever fingers can be pointed elsewhere, this is a stark example of the failure of the criminal justice system – and it is a systemic failure given how many were falsely convicted.

And so a close look is needed at what, if anything, could be done to stop such injustices again – especially (as is one of my bugbears) the right and power of certain self-interested entities to bring private prosecutions.

*

One or two people have complained about the the legal fees in this case.

It would appear that the lawyers for those unfairly accused and convicted had an immense legal job in taking taking on and defeating a well-resourced Post Office insisting that their system was ‘robust’.

To dismantle such a case so that one could even have the material and evidence before the court that would enable Mr Justice Fraser to be able to make his judgment was an extraordinary task.

That the lawyers who did this successfully were remunerated should not be controversial.

And had the Post Office not contested the cases – and, as the court averred, insisted that the world was flat – then the costs would have been substantially less.

Sometimes lawyers can be fairly blamed for costs – but not, it would seem, in this case.

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There should also be a shout out to the investigative journalist Nick Wallis, who has both covered and uncovered a good deal of the scandal – and you can support his work and buy his book here.

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The Post Office case is damning, but do not blame ‘computer error’ – it is very much the fault of human error of Post Office managers

23rd April 2021

There are few, if any, criminal appeal judgments as damning as today’s appeal judgment on the post office cases.

This is an appeal judgment that will (or should) sound through the generations, as a detailed description of how the criminal justice system can go wrong.

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But.

It would be an error to dismiss it as just a grand example of ‘the computer says no’.

Computers, like any automatic processes, will be prone to faults.

The problem was not so much the Horizon software but a sequence of horrible, deliberate decisions made by human beings – about whether to bring prosecutions, to contest civil cases, and to avoid the disclosure of relevant documents.

Every single manager involved in these prosecutions and in opposing appeals are far more culpable than any of the poor defendants.

Yet, unlike the defendants, the Post Office managers are not (generally) named in this judgment: they have their gongs and their pensions and their self-serving supposed exculpations of ‘lessons learned’.

So damning is this judgment that, no doubt, every person reading it will have a view on which of their legal and political opinions will be affirmed by the judgment.

For this blog, the damning Post Office judgment affirms that private prosecutions are generally a bad thing – whether they are brought by the Post Office or anyone else.

Some organisations – and individuals – enjoy the swagger and the bluster of being able to bring (and threaten) cases aimed at criminalising and penalising others.

But as the noted jurist Benjamin Parker averred: with great power comes great responsibility.

And the power to criminalise and penalise others is one of greatest powers and responsibilities of all.

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Lawyers often boast of being ‘fearless’.

Prosecutions should be – genuinely – fearless: but being fearless including being free of the fear of not proceeding with the prosecution because of the reason of embarrassment.

For, as the damning Post Office judgment shows, it was the fear of embarrassment that meant that things were not said and disclosed that should have been said and disclosed.

The damning Post Office judgment also shows what will happen when the power and the urge to prosecute is free from any checks and balances.

It shows what will happen when defendants do not get the materials and the advice that they need so as to be properly defended.

Yes: the appeal points to the dangers of automation and computerisation – but the appeal points harder at the dangers where managers and other decision-makers hide behind automation and computerisation.

And the delay in this appeal judgment – ten or so years after the miscarriages of justice – also shows the inefficiency of a criminal justice system that can often be so quick to impose criminal liability in putting right things when they go wrong.

Nobody – other than the defendants – come out of this judgment well.

Not least the criminal justice system itself.

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‘An uncomfortable chair’ – why the international trade secretary wrongly believes trade deals are quick and easy, and why this false belief matters

22nd April 2021

One of the consequences of politicians not having careers before entering parliament is that ministers can be over-influenced by unusual experiences.

For example, as home secretary Theresa May and her advisors had the benefit of the ‘pick-and-choose’ approach to European Union justice and home affairs matters, where the United Kingdom had a number of opt-outs.

And so when May and those advisors were translated to 10 Downing Street it appeared that they believed that the same à la carte approach could be taken to the single market in the Brexit negotiations, unaware that the European Union would instead have a more of an ‘all-or-nothing’ approach.

Similarly the current international trade secretary Elizabeth Truss has been misled by her experiences to date into thinking international free trade deals are easy.

This is because in the immediate post-Brexit period it was possible to ‘rollover’ a number of existing trade deals between the European Union and (so-called) third countries, almost on a ‘copy-and-paste’ basis.

 

Such a formative experience would also be informed by the basic error of post-2016 governments of the United Kingdom that Brexit itself was a quick and easy task.

But.

There is a significant difference between continuing with an existing trade arrangement and putting in place an entirely new free trade agreement from scratch, especially with another major economy.

The slowness, however, is a surprise and a disappointment to the current international trade secretary, who is a politician in a hurry.

And so we get this preposterous news story.

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‘…an uncomfortable chair’

The only normal reaction to the detail of this excruciating news story is to cringe with sheer embarrassment. 

(By the way, the use of ‘allies’ as a plural means that the pronouns for the ‘source’ are the less-revealing they/them – which are presumably the international trade secretary’s preferred pronouns.)

Of course, this daft intervention has not gone unnoticed by Australia.

Perhaps the ‘allies’ of the international trade secretary did not believe that these comments would ever reach the Australians.

Silly them.

*

The serious point here is, well, about the lack of seriousness.

The United Kingdom needs to be taken seriously as a party to international agreements in this new, lonely post-Brexit period.

Yet the United Kingdom seems no closer to getting why this important.

We have a prime minister who is loudly and publicly denouncing as ‘ludicrous’ the very arrangements in respect of Northern Ireland that resulted from his own change of policy, which he negotiated and signed, and for which he campaigned for and won an electoral mandate before rushing into law.

https://twitter.com/davidallengreen/status/1384419890161979394

There seems to be an unawareness that the world is watching these antics.

And although they may ‘play well’ to domestic political and media constituencies, that is at a cost to the United Kingdom’s interests as an actor on the international stage.

The prime minister and he international trade secretary need a period of reflection about these counterproductive utterances and gestures.

Perhaps they should sit down, and think hard about what they are doing for a few hours.

Perhaps, even, in an uncomfortable chair.

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The George Floyd murder verdict – and the problem of systemic racism in the legal system

21st April 2021

Yesterday a former police officer was convicted of the murder of George Floyd.

The evidence was overwhelming and, to most people who followed the televised trial, compelling.

Indeed, some would aver (in my view, correctly) that the evidence was compelling even before the trial.

But due process is due process, and even those charged with the most vile of crimes are entitled to due process.

And the former police officer received due process, and the former police officer was duly convicted – unanimously.

Yet.

Until the very last moment the verdict was uncertain.

Anyone watching the verdict being handed down was braced for an acquittal.

Regardless of the starkness of the evidence – and of the weakness of the defence case, even taking it at its highest – it seemed extraordinary that a white former police officer would actually get convicted of the murder of a black person.

And even if the evidence was as twice as compelling, and the defence case twice as weak, one would still realistically expect an acquittal.

For that seems to be the nature of the criminal justice system.

There is here a gap between knowledge and expectation – and this gap is systemic racism.

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By ‘systemic’ is meant that the racism is a feature of the system.

It would not matter which white police officer was accused, and which black person was the victim of a wrong, the operation of the system will tend towards certain outcomes.

Black people will tend to be the victims of police violence and there will never be any sanction against those who inflict the violence.

Any fatality will tend to be the subject of misdirection and misinformation by the police to the media.

Any victim will tend to be disparaged, if not demonised.

Any police violence will tend not to be filmed or similarly documented.

Any accused police officer will tend to be given the benefit of the doubt – and if there is no room for doubt, they will be given the benefit of some excuse.

Any other officers will tend to stay quiet.

Any prosecution will tend not to be brought.

And any prosecution brought will tend to lead to an acquittal.

The reason for each of these swerves away from justice will be different from case to case.

But the overall bias of the system will mean that the gravity pull will be against any conviction.

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The solution to this problem is not to dilute due process – but to be open and frank about the factors which will distort the process as a whole.

Indeed, everyone should have the benefit of the strict approach to due process that is accorded to police officers and other privileged defendants.

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It is all very good to say there are systemic problems, some will protest, but what about solutions?

Well.

There is plenty of sensible and constructive thinking out there about other faults in the system – for example, see these two threads which should be read carefully.

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A systemic problem needs a systemic approach to the solution.

Picking on any individual element of the system will not be sufficient, as long as other elements still tend towards injustice.

Accepting the importance of a systemic approach – and of the existence of system (or institutional) racism – will be for many an intellectual and emotional pain barrier.

Racism in legal systems is not just about the wrongness of individual acts – but a realisation of the impacts of swarms of wrongful acts which means that – unless there are exceptional circumstances – white police officers will get away with whatever violence they can against black people. 

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The European Super League and law and policy

20th April 2021

The proposal of a supposed European Super League is daft and dreadful.

Only the most partisan supporters of the clubs involved and those who will be making money out of the proposal are able to make a positive case for the idea.

Many supporters of the clubs involved, as well as the other football supporters, just see it as a cynical attempt to to exploit and develop cash revenues at the expense of the wider interests of the sport.

But.

An idea being daft and dreadful does not make it also illegal.

The law is not magic and there is no wand for any politician to say ‘I prohibit you thus’.

In particular, what is called ‘competition law’ – which prevents abuse by monopolies and the forming of cartels – is not likely to be of any use in preventing the initiative.

Indeed, competition law may help more than hinder the establishment of a rival international international football league.

Only a handful of clubs are involved, and there is no inherent reason why UEFA should have a monopoly on European club competition.

The fact that it is an artificial pop-up international league, where many of the participating clubs have not even won a European club competition before, is neither here nor there.

Nor is the fact that many clubs (such as my own, Aston Villa) that have won such competitions are excluded relevant (and I hope my view would be the same even if Aston Villa had been part of this misconceived project).

It is a new league that will be in competition to the existing arrangements, and the starting point of the relevant law is that competition is a good thing – rather than monopolies.

The European Super League may well rob the clubs, the players and the supporters involved of something valuable – genuine European football – and replace it with an artificial contest with regular matches against Tottenham Hotspur.

But that does not create a legal remedy.

If anything, competition law may undermine the attempts of the status quo to quash the innovation and provide a defence to threatened retaliatory or punitive measures.

If the proposal is to be defeated – it should be by means of politics and commercial realities, not litigation.

Perhaps this exercise in misplaced exceptionalism and a false sense of the international importance of those supporting the measure will collapse under the strain of its contradictions and impartibility before it gets going.

But then again, that is also what said would happen with Brexit, and it did not.

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