Category: Constitutional and Legal History

European Union law and the United Kingdom – an obituary

14th December 2020

Over at Prospect magazine my column for the Christmas/New Year special edition was an obituary – for European Union law in the United Kingdom.

Please go over there to have a read – and I just want to develop and add some points here.

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European Union law is radically different from the common law of England and Wales (I am not qualified to speak of the laws of Scotland and Northern Ireland, though similar points may be valid).

By ‘radical’ I mean (literally) that it went to the root of things.

The effect of European Union law was not only to benefit particular policy areas (for example, employment and the environment and so on) – though there is no doubt that whole ranges of policy are better off for the influence of European Union law.

The impact of European Union was also to how one thought about law – and about policy and politics.

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First, the law of the European Union is often ‘purposive’ – in which to understand any legal instrument (a directive or a regulation or a legally binding decision) one often has to go through pages of recitals, other materials, and even back to the ultimate bases of the the provision in the European Union treaties.

This, of course, can be an interesting – sometimes exciting – intellectual exercise but it really does not serve the purpose of legal certainty.

And often it was difficult to say with confidence what the ultimate tribunals of European Union law (the court of first instance and the court of justice) would say the law would be in any given situation.

And unlike courts in common law jurisdictions, the judgments of European Union law judges are often not reasoned but are instead declarative, even assertive.

As a general rule of thumb: a European Union legal instrument is as helpful and detailed as European Union court judgment is not.

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Second, the public law of the European Union has a conceptual unity that the public law of England and Wales does not – or at least did not before the United Kingdom’s membership of the union and its predecessor European communities.

(Public law is the term for the law that regulates public bodies and those exercising public functions and provides for what rights can be enforced against them.)

In England and Wales we, in many respects, did not even have anything one could even call ‘public law’ until the 1960s.

There was instead a mix of actions and proceedings one could take against the crown, against statutory corporations, against courts, and against those holding various public offices.

European Union public law instead provided for a general approach to emanations of the state – and of the rights one could enforce against them.

The European Union legal concept of ‘proportionality’ (that is that a public body should only interfere with the rights of others to the extent necessary to serve a legitimate purpose) was also a welcome change to the brutal and permissive approach of our administrative law – which can be fairly described as allowing public bodies to get away with what they can, unless it is irrational.

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Third, the European Union and its predecessor organisations are creatures of law as much as of policy and politics.

And although one should never underestimate the push and shove of policy and politics, when dealing with the European Union one always should have regard to law.

This was a recurring mistake for United Kingdom politicians.

For example, before the 2016 referendum there was an attempt by then prime minister David Cameron to force through a ‘deal’.

But as this blog has previously explained, the Cameron team wrongly thought it would just be a matter of bombast and confrontation – that the United Kingdom just needed to want something and to demand it loudly.

There were, however, real limits to what the European Union could agree to, at least without treaty changes.

And the same problem happened again and again during the exit negotiations and now the negotiations for the future relationship.

The European Union takes process and legal texts seriously, and the United Kingdom under Theresa May and Boris Johnson did not.

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You will note that this post – and the Prospect column – are not unmixed celebrations of European Union law.

Instead, I have attempted a critical appraisal (though one set out simply and I hope accessibly).

And this is partly because my own ultimate view on Brexit is ambivalent.

In the early 1990s I believed that it would have been better for the United Kingdom to have left the European Union at the time of Maastricht treaty.

It seemed to me then that the trajectory of the European Union towards wider competencies (foreign policy and justice and home affairs) and currency union would not end well in respect of the United Kingdom.

(And it did not.)

But by around 2000 I thought any extraction of the United Kingdom from the European Union would not be worth the time and effort to deal with decades of entwined law and policy.

(And it has not been.)

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The break of the law of the jurisdictions of the United Kingdom from the law of the European Union is going to be messy.

It is not going to be a neat clean break.

And the laws of the United Kingdom are not – thankfully – going to revert back to 1973.

The direct effect and application of European Union law in the United Kingdom may be over – and that is why an obituary is appropriate.

 Its influence, however, will continue for decades.

The United Kingdom may have ‘taken back control’ of its laws – but Brexit will certainly not free domestic law from the impact of the law of the European Union.

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Hyper-partisanship and constitutionalism

13th December 2020

Consider three political situations.

The first is where constitutional issues play no real part in day-to-day politics.

Here issues about the economy, law and order, health, social welfare, the environment, defence and so on dominate both party politics and media coverage.

The second is where a discrete constitutional issue becomes part of the political debate.

For example in the United Kingdom, this could be devolution, or House of Lords reform, or proportional representation.

That issue will tend to be addressed though normal party politics, and such issues do come and go from time to time.

And there is a third category, where constitutional issues are themselves gamed for party issues.

This is what is happening in the United States currently, and to a lesser extent in the United Kingdom.

In the United States, for example, there is the extraordinary attempt by Republicans in Congress and many states to overturn the result of the 2020 presidential election.

In the United Kingdom, for example, the government is politically exploiting attacks on the courts, on lawyers and on the very ability of judiciary to hold the executive to account.

I have many times said that it is a bad thing for constitutional law to be exciting.

If contesting the rules of the game themselves becomes the focus then the game itself is subverted.

What can be fairly called ‘hyper-partisanship’ – which goes far beyond the normal knockabout of party politics – is a dangerous thing for constitutions and constitutionalism.

In any modern political system an immense amount depends on legitimacy and being governed by consent.

A jackboot-totalitarian state can only go so far by sheer force of coercion and intimidation – and, in any case, many totalitarian states use propaganda, symbolism and vilification of the ‘other’ to manufacture legitimacy and consent.

Remove that shared sense of legitimacy of institutions by having a permanent revolution and constitutional culture war and then the state will find it more difficult to govern.

Why should anyone accept the decisions of a court, or of a legislature, or even of an electorate, when the legitimacy of each is a partisan issue?

There is certainly a need for constitutional reforms from time to time, but this should be on the basis of making various institutions and practices more legitimate not less.

Constitutional law and constitutional issues are far too exciting, and this is a bad thing.

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Sovereignty and ‘Sovereignty!’

11th December 2020

One feature of contemporary politics in both the United Kingdom and United States is the way descriptive words and phrases have become slogans with a very different meaning.

This blog has already described the unhappy juxtaposition between ‘Law and Order!’ and law and order – and we now have a populist president in the United States using his power to pardon so as to place people above and beyond the law, while the populist government of the United Kingdom sought recently to expressly legislate that it could break the law.

And a similar distinction can be made about sovereignty and ‘Sovereignty!’.

In the United Kingdom it would seem that one explanation of the ongoing failure for a trade agreement to be finalised with the European Union is because of this ‘s’ word.

Here, as examples, are some recent tweets from the United Kingdom’s head negotiator.

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So what does this ‘s’ word mean?

From a legal perspective, sovereignty is really about two things.

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First, sovereignty is about the ultimate source of political power in any given polity.

In the United Kingdom, as its name suggests, the ultimate source of political power is the crown.

Some would say is not correct to even speak of the ‘sovereignty of parliament’ – the power of parliament to make or unmake any law always depends on a bill receiving royal assent.

Only with the crown’s approval does a law then have super-duper magical power.

Resolutions and motions of either or both houses of parliament may bind parliament but they do not have the same effect outside as legislation.

That is why I and others tend to write of ‘supremacy’ of parliament, not sovereignty.

The crown also is the source of political power elsewhere in the United Kingdom constitution.

It is the source of power – somewhat obviously – in respect of the so-called ‘royal prerogative’ – where the executive gets to do things which have legal effect without any legislative basis.

It is the source of power with ‘royal charters’, instruments which can have legal effects similar to legislation.

And the crown is the ultimate source of power for the judiciary, at least for the high court of England and Wales.

(This means that in constitutional terms, the two Miller cases on prime ministerial power can be characterised as being about the crown in the courts adjudicating on the powers of the crown as exercised by ministers so as to circumvent the crown in parliament.)

This form of sovereignty is quite unaffected by anything Boris Johnson and David Frost may or may not agree to with the European Union.

Just as parliament was always able to repeal the European Communities Act 1972, parliament will be able to make or unmake any law which flows from the post-Brexit relationship agreement, and that will be respected by the courts.

So this cannot be the meaning of sovereignty that Johnson and Frost have in mind.

Nothing in any post-Brexit trade agreement is relevant to this meaning of sovereignty at all.

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The second legal meaning of sovereignty is not so much about the source of power but about legal capacity.

A sovereign thing can do and not do as it wishes.

And one thing a sovereign thing can do is to enter agreements with other sovereign things.

This is where Johnson and Frost appear to misunderstand the ‘s’ word.

For them, ‘Sovereignty!’ means that the United Kingdom cannot and should not enter into and be bound by any international agreements.

But one test of sovereignty is that a thing is capable of entering into international agreements – the cart is not before the horse.

In general terms, being able to accept obligations is the very point of sovereignty: that a nation state can enter into a treaty means that it is a sovereign state.

(For more on the fascinating history of sovereignty and treaties, see here.)

This is why, for example, Canada, Australia and New Zealand insisted on being separate signatories to the surrender instrument of Japan, and to not allow the United Kingdom to sign on behalf of the then empire.

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Sovereignty thereby does not mean that the United Kingdom cannot and should not enter into international agreements.

Sovereignty means that the United Kingdom can do so.

And any international agreement means accepting obligations that restrict autonomy, for that is the nature of an obligation.

Under the North Atlantic treaty, for example, the United Kingdom has an obligation to go to war even if it not attacked itself. 

Article 5 of that treaty provides:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”

Some would say that Article 5 of the North Atlantic treaty is a greater interference with the ‘s’ word of the United Kingdom than anything which has come from the European Union.

And it is difficult to reconcile many statements of government-supporting politicians on sovereignty in respect of the European Union with their continued support for the United Kingdom being part of NATO.

Similar points can also be made for the United Kingdom’s obligations under the United Nations charter and indeed under any other international treaties.

Trade-offs on autonomy are a feature and not a bug of being a sovereign state.

An analogy is with being able to marry: when a person reaches their majority they can enter into a marriage contract should they so wish, but being in their majority does not compel them to either marry or not marry, and if they marry they can always divorce.

The Johnson-Frost approach to the ‘s’ word is confused.

They seem to think sovereignty means that the United Kingdom cannot and should not enter into international agreements, whereas sovereignty actually means that the United Kingdom can do so should it want to do so.

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An indication of the United Kingdom government’s incorrect understanding of sovereignty was set out in a white paper earlier in the Brexit process:

“The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.”

This is about “feelings” – not law or policy.

Brexit as therapy – so as to make the United Kingdom “feel” it is a sovereign state.

And this is the fundamental misconception of those who assert ‘Sovereignty!’ just to make themselves feel better.

Sovereignty exists anyway.

Sovereignty does not care about your feelings.

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The Fixed-term Parliaments Act 2011 has been a failure – but the decision for an early general election should not be in the hands of the prime minister

7th December 2020

The Fixed-term Parliaments Act 2011 is an odd and unloved piece of legislation.

And it has not been a successful piece of legislation – in that the parliament elected in 2015, which should have lasted until 2020, did not run its full course, and neither did the parliament after that.

Indeed, instead of no general elections between 2015 and 2020, we had two – in 2017 and 2019 – instead.

No general election held since the Act was passed has resulted (so far) in a parliament of a fixed term.

In this key sense, the Act has been a failure.

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But.

Is it an entirely useless piece of legislation?

No, as there is one important thing the statute gets right.

Before 2011 the decision for a parliament to dissolve and for there to a fresh general election was, in effect, in the hands of the prime minister – subject to a statutory long-stop of five years.

Nominally the source of this power was the the royal prerogative, for the crown had the ability to dissolve one parliament and to then issue a proclamation for a general election.

But in practice, it was ‘on the advice of’ the prime minister, and it was a powerful political weapon.

The 2011 Act took this power out of the hands of the prime minister.

Now, again subject to a five year long-stop, there cannot be an ‘early’ general election just at the whim of a prime minister.

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So far, so welcome.

But.

Where the statute goes wrong is in respect of how there can still be an ‘early’ general election.

On the face of the Act there are two ways, both of which are problematic.

The first is that there is a ‘super majority’ of MPs – and this is how the then prime minister Theresa May got her general election in 2017.

The second is if an elaborate scheme of two successive ‘confidence’ motions – one of ‘no confidence’ and, if there is not then a ‘confidence’ motion soon after passed by MPs, there is a general election.

This second route has not been used, not least as it is not clear what should happen in the period between the two confidence motions.

And in any case, it does not really matter what the Act provides on the face of it, for parliament can just pass a ‘notwithstanding’ statute for there to be an early general election anyway.

This does not need a ‘super majority’ or elaborate succession of confidence motions.

It just needs a bare majority in the house of commons and a lack of opposition in the house of lords (and the house of lords will tend not to deny the commons its way on questions of appeals to the electorate).

And this is how the current prime minister got his general election a year ago.

The Early Parliamentary General Election Act 2019 was passed in a matter of days.

It was as if the early election provisions in the Fixed-term Parliaments Act 2011 made almost no real difference at all.

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There is now a review of the 2011 Act.

The government has published a draft bill repealing the Act and seeking to revive the royal prerogative of dissolution.

Clever constitutional lawyers will argue about (a) whether the prerogative was abolished with the 2011 Act and (b) whether it can be revived.

(My own view only goes so far as (a) the 2011 Act did not expressly abolish the prerogative power and (b) a new statute can purport to say that the 2011 Act had no effect on that prerogative power – but I do not know which way a court would go if the point was ever litigated.)

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Repealing the Act outright would, in my opinion, be a mistake.

Instead, the two mechanisms for an early general election should be replaced by the need for a majority of MPs (including vacant seats) to pass a motion for an early general election.

Given that, as in 2019, the early election mechanisms in the 2011 Act can be side-stepped anyway, this would be an affirmation of what the real practical position.

A prime minister unable to command a majority in the Commons should not be able to use the threat of an early general election against opponents and their own party.

It should be a matter for the elected representatives themselves to make that significant decision.

The 2011 Act may be odd and unloved and, in practice, not that successful.

But it did get one thing right.

Early general elections should be possible, but the decision should not be in the hands of the prime minister of the day.

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How Brexit may lead to Scottish independence and Irish unification

1st December 2020

So familiar is the three-word phrase ‘the United Kingdom’ that it can be forgotten that it does not name any particular country.

It is instead a description of dry and abstract political arrangement – the kingdoms that are (somehow) united could be anywhere on the globe.

Of course, the term is short for ‘the United Kingdom of Great Britain and Northern Ireland’ – but the shorter form is more common.

It is worth pausing and thinking about the phrase, as it reminds us that the United Kingdom is itself a political union, as much as the European Union or the Union of Soviet Socialist Republics.

And political unions come and go: there is no inherent reason why any political union is permanent.

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This post is prompted by a tweet yesterday from the Conservative leader in Scotland.

The sentiment of the second sentence of the tweet can, however, be applied to another example of ‘independence’.

And this will be a recurring problem for British Conservative politicians in opposing Scottish independence: the arguments they deployed in respect of Brexit and against the European Union can be re-fashioned in turn by those in favour of dissolving the United Kingdom of Great Britain and Northern Ireland.

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For what it is worth (and it is not worth much as someone writing from England), I happen to support both Scottish independence and an Ireland united by consent.

This is not because I am anti-English and a rootless cosmopolitan, but a recognition that, in the end, all political unions will tend to come and go.

And although I dislike all forms of nationalism (which often tend to be illiberal), self-determination is very much a liberal value.

The people of Scotland and of Northern Ireland (and of Wales) should decide on their own political arrangements.

The United Kingdom is not necessarily a permanent arrangement.

Indeed, but for events before the Norman conquest, England itself could have carried on for many centuries being a geographic expression with a collection of smaller kingships (Wessex, Mercia, Northumbria), just as Spain did until the early modern period, and Italy and Germany did until the nineteenth century.

‘Great Britain’ itself – a combination of the union of the English and Scottish crowns and then of parliaments 1603 to 1707 – has no greater claim for political permanence than, say, the combined role of the British monarch being also the Elector of Hannover (which lasted from 1714 to 1837).

(On ‘Great Britain’ being a construct, it is worth reading – or at least knowing about – Linda Colley’s Britons: Forging the Nation 1707–1837.)

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But liberal arguments may work both ways.

The liberal principles of internationalism and self-determination can often be used both for and against any particular attempt at political union – for example, an independent Scotland (having exercised self-determination) will seek to be part of the European Union.

The European Union itself has no claim either to permanence, and it may one day join a list of historical attempts at unifying Europe.

Brexit and the recent political events in Poland and Hungary are an existentialist challenge to the European Union, which it may or may not survive.

The point is that no political structure is necessarily eternal.

Many once thought the sun would never ever set on the British Empire, before its fairly rapid dismantlement after the Second World War.

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There is also a plausible argument that it was only membership of the European Union of both the United Kingdom and Ireland that enabled the peace process in Northern Ireland to work and the Good Friday Agreement to be put in place.

Take away the European Union and that handy practical solution becomes unstuck.

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So one particular irony that may come from Brexit is that the so-called Conservative and Unionist Party – by its absolute insistence on forcing through departure from the European Union – may be instrumental in breaking up the union of England, Scotland, Wales and Northern Ireland.

An independence referendum in Scotland and a border poll in Norther Ireland are both now more likely than not in the next few years – and both may well go against being part of a United Kingdom.

And that would be an exercise in ‘taking back control’ – just not the ‘taking back control’ that Brexiters perhaps had in mind.

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The TRUTH about Article 61 of Magna Carta

Yesterday someone posted on Twitter the following (now deleted) tweet.

Another (also now deleted) tweet linked to a video of what seemed to have been an exchange between a person called Brad and the police, in which Brad sought to rely on his rights under Magna Carta.

The video is still available on Facebook and is worth watching in full.

 

A quick internet search also reveals sites like this one purporting to set out your rights under Article 61 of Magna Carta.

And on Twitter there are still tweets such as this.

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Is this true?

Is there a right of lawful rebellion under Article 61 of Magna Carta?

Does displaying Article 61 of Magna Carta in a shop window mean you cannot be fined or closed?

Let us find out.

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Magna Carta is Latin for ‘the Great Charter’, a legal document written in Latin that first came into existence in 1215.

(By convention, and because it was originally in Latin, the ‘the’ is often missed out in the title by historians and lawyers when discussing Magna Carta, which I find amusing but is really not at all significant.)

An English translation of this Magna Carta is at the British Library website.

You will see this original Magna Carta is divided into numbered sections (known to historians and lawyers as chapters, not ‘Articles’).

At Chapter 61 is the following:

SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

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You will see that the phrase ‘lawful rebellion’ does not appear in Chapter 61, and neither is there anything which provides that if Magna Carta is displayed it renders a person or business immune from closure or fines.

The provisions is instead what is called a ‘security’ provision, setting out how the rights under Magna Carta could be practically secured and enforced.

If you read the provision you will see that the rights and powers of security are given to twenty-five barons (elected by other barons).

There is nothing in the provision to support the claims made on its behalf by the social media posts set out above.

If you do not believe this, read the provision for yourself.

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But even if the original text of chapter 61 of Magna Carta had provided for lawful rebellion, or that the mere display of Magna Carta in a shop window would be enough to ward off law enforcement officials, the provision was removed within a year, when Magna Carta was reissued in 1216.

(It was reissued and amended many times.)

There is no sensible explanation for why a provision that was only in force 1215 to 1216 (and then only granted a power to 25 barons) would have the effect in 2020 of preventing a shop being closed under public health regulations if Magna Carta was placed in a shop window.

And that is the truth about Article 61 of Magna Carta.

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There is, however, a serious point to be made about the various claims made about ancient legal documents, such as Magna Carta or the Bill of Rights.

There is not a strong tradition of ‘constitutionalism’ in England, and in the United Kingdom we do not have a portable and accessible document we can point and say ‘this is our constitution’.

And in the absence of a widely shared knowledge of the constitution, claims about Magna Carta, the rights of freemen of the land, and so on, become popular but unchecked.

As a matter of law and history, Magna Carta is now little more than a legal ornament rather than a living instrument, and it is rarely if ever successfully relied on in practice.

It is a legal text which politicians and others can praise safely, as it provides no real protections.

(In contrast, legal texts that do actually provide practical rights such as the Human Rights Act 1998 are  often attacked by those same politicians.)

Some of Magna Carta is still in force, in its 1297 reissue, and you can see these provisions on the official legislation website.

You can also read my piece from the 2015 anniversary, and this is an informative and insightful speech on Magna Carta from the medieval historian Jonathan Sumption.

And you can watch this, from another Brummie commentator on Magna Carta, Anthony Aloysius Hancock.

 

 

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Two gruesome legal topics: the law of slavery and the law of torture

19 October 2020

As a solicitor in practice I tend to specialise in commercial, media and communications law, and as a commentator I tend to explain public and international law.

(And as a historian of sorts, I am interested in law and anthropology and how complex societies can develop oral and written systems of law.)

But in addition to these areas, there are two special legal topics which fascinate and appal me.

Fascination: because I find it hard (as a western liberal writing in 2020) to believe that my own species has used and still uses the concept of law for such purposes, and so I want to understand why.

Why would and do people do these things?

Appalling: because both deal with the worst of human nature.

The first is the law of slavery: the extraordinary notion that there can be property rights for one human being in another human being.

By reason of the Black Lives Matter movement, I have recently published a few things on this (see here, here, here and here).

The second is the law of torture: the regulation of the deliberate and involuntary infliction of cruelty by some human beings on other human beings.

This second horrible subject has come up because of the United Kingdom government now seeking to make it harder to prosecute former and serving service personnel for war crimes and torture.

On this, I have done this video for the Financial Times.

And I have now done this podcast.

Not a pleasant thing to talk about, or to listen to others talking about, but important still the same.

Please watch and listen if you can.

Thank you for taking an interest.

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Law, history, slavery

15th June 2020

Many people – even those who have studied law and history – know almost nothing about how the law was used to facilitate slavery in English history.

People may have heard of Wilberforce and that the slave trade was abolished in 1807 and slavery itself in 1833.

They will therefore know a bit about how slavery ended but not how it was kept in place.

Over on Twitter I have recently done a couple of threads on law, history and slavery.

The first is on the Yorke-Talbot Opinion of 1729.

The second is on the Zong case of 1783.

I also did a thread in response to a former Member of Parliament who had invoked the jurist William Blackstone to suggest slavery had been abolished in 1753.

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The point of these threads is to show that slavery was, at the time, commonplace and was facilitated by the law, as well as by insurers and so on.

Slavery was not just Edward Colston of Bristol going off on a frolic of his own.

There was an immense legal, commercial and administrative apparatus in place to enable slavery.

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Slavery is about property in human beings, and the slave trade is about transactions in respect of that property.

Slavery was managed from afar: few slave merchants and very few domestic owners of slaves ever saw the enslaved face-to-face. Slavery was thereby dealt with by correspondence: with crews, agents and estate managers.

And so, because it was about property and transactions and done from afar, there are lots of records.

Lots and lots of records.

And so like that modern horror, the Holocaust, you can see the dealings with slavery in record after record.

For those involved, it was mundane.

Slaves bought and sold, and managed, by ink and paper, by everyday people on an everyday basis.

Great Britain’s very own banality of evil.

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Nowhere has this been shown so well as in the BBC documentary on Britain’s Forgotten Slave Owners.

In this documentary David Olusoga uses the detailed records of the immense compensation paid to slave owners in 1833 to demonstrate just how far and wide slave ownership was in British society.

Slave ownership was like owning a time-share in Spain or a special savings account.

The import of all this should be to correct the skewed cod-history of British nostalgic exceptionalism and to remind us of the extent to which Britain was involved in (and benefitted from) slavery and the slave trade.

And a rounded, more accurate understanding of our past is a good thing in itself.

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