Category: Constitutional Law

The day after the Meghan and Harry interview – how the crown is more precarious than many realise

8th March 2021

A recent post at this blog averred that while the Netflix show The Crown gets a lot of the historical detail wrong it probably gets one wider point right – that there is a constant sense of precariousness felt by the Queen in respect of the monarchy of the United Kingdom.

By ‘precarious’ I do not mean a fear that the whole shabang will suddenly crash down – but instead that there is an ongoing sense of insecurity and instability which may or may not lead to wider insecurities and instabilities, and that this needs management and vigilance.

One suspects that the Queen is highly conscious of the institution’s fundamental changeability – she was ten when her uncle was forced to abdicate by a bunch of politicians; when she was twelve Ireland elected their own president and when she was twenty-two Ireland was explicitly a republic; and as she grew up generally the British empire was converting into a commonwealth, as elsewhere other monarchies declined and fell.

Only with hindsight do we see the period after 1952 as one of continuity and durability in our constitutional history – it probably did not seem that it would necessarily go that way seventy years ago.

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Of course: the monarchy of the United Kingdom is to a certain extent a special case.

Indeed – the very term ‘United Kingdom’ indicates that it is the monarchy that defines the current combined political identity of Great Britain and Northern Ireland.

Few other countries make the very political form of their constitutional arrangements the term by which they are generally known – the obvious other example is the United States.

And as that previous post on this blog also averred, the crown is so deeply embedded in our constitutional arrangements – it is, for example, the conceptual basis of power for each of the executive, the legislature and the judiciary – that to change everything over to a republic scarcely seems worth the time and effort.

(Though, of course, once upon a time, the United Kingdom leaving the European Union also scarcely seemed worth the time and effort – but it happened anyway.)

The crown also has its loud and intimidating defenders in the media – though that very loud intimidation may in turn be seen as an indication of insecurity.

Because of all these things, the institution of the monarchy is not likely to disappear in a political instance.

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But.

The institution of the monarchy is also not bound to stay in its present form either.

In the lifetime of the Queen herself, the monarchy has gone through profound changes – while projecting the comforting image of things staying much the same.

From king of Great Britain and Ireland and emperor of India, and elsewhere, to what we have now – via a forced abdication comparable in constitutional significance to the ejection of James II in 1688-9.

The monarchy has, since the year of the Queen’s birth in 1926, perhaps gone thorough more changes than in any ninety-five year period since 1701.

So to project the last ninety-five years of royal history forward is not to see more stability, but to expect more fundamental change – including maybe the departure of Northern Ireland and Scotland from the United Kingdom.

(Though no doubt the ‘United Kingdom’ will keep calling itself that, just as some gongs are still named the order of the British empire.)

In essence: the present – and, for us, familiar – arrangements of the monarchy of the United Kingdom are not fixed and eternal.

They have profoundly changed in the lifetime of the current monarch – and they can profoundly change further.

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Law and policy after Trump and Brexit: what happens if hyper-partisanship and populist nationalist authoritarianism does not fade away?

6th March 2021

As the year 2016 recedes there will be a temptation to think that the politics of 2016 will eventually recede too.

Things come and go, and human affairs often move in circles – a period of illiberalism will surely be followed, soon enough, by a liberal spring.

The days will start getting lighter, and so on.

But what if that does not happen – and the days stay just as dark, and perhaps get even darker.

What if Trump and Brexit were not low-points but preludes?

Such have been the various social, economic, technological and media dislocations of the last couple of decades, there is no particular reason to believe that we will have a happy return to the certainties of a previous political order.

In the United Kingdom, for example, we still have the government gaming legality and threatening – again – to break the law to the claps and cheers of the easily impressed.

In the United States, Trump may have (temporarily) gone – but Trumpism certainly has not.

Certain politicians know that appealing to and motivating a particular illiberal constituency will be sufficient to keep them in or close to power. 

And this sort of politics will mean that constitutional norms will continue to be contested and politicised.

If this dismal prospect is in the offing, then what is there to do from a liberal constitutionalist perspective?

From the point of view that there is a balance between the rights of an individual and the powers of the state, and that each element of the state – and especially the executive – should be subject to checks and balances.

What should one do if things do not, eventually, settle down?

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This is a serious problem – as liberal constitutionalism is not well suited to hyper-partisanship.

Liberal constitutionalists who react with outrage or despair are the ‘owned libs’ whose adverse reactions are validation of the provocations.

And those who seek to avoid confrontation run the unpleasant risks of quietism.

Perhaps, as one Victorian politician put it: not all problems have solutions.

Perhaps it is now the lot of liberal constitutionalists just to try to protect what they can in the face of illiberal onslaught.

As this blog contended back on new year’s eve, there is a public good in pointing out that things are wrong, and in explaining how and why those things are wrong.

That is: in describing the world that is passing away.

It is a depressing predicament.

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All this said, there is some scope for optimism.

Even taking Brexit and Trump at their highest, both were checked by constitutionalism.

There was no hard Brexit – and the two Miller cases and the Benn Act ensured that there was both a withdrawal agreement and a trade and cooperation agreement.

There was not a successful coup in the United States of America – the electoral college was not subverted.

Liberal constitutionalism has taken a substantial bashing in both the United Kingdom and the United States – as well as elsewhere – but it has not (yet) collapsed, and indeed it has shown marked resilience.

Liberal constitutionalism is perhaps turning out to have been stronger than those of us at the time realised.

And so there is still a role for liberal constitutionalism in the post-Brexit and post-Trump age.

The huffs and puffs have not (yet) blown the liberal constitutionalist house down.

We may be in in a post-Brexit and post-Trump age – but we not (yet) in a post-liberal and pst-constitutionalist age.

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A close reading of public domain information regarding the settlement between Philip Rutnam and the Home Office

5 March 2021

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 ‘Time to form a square around the Prittster’

– prime minister Boris Johnson, as reported on 20th November 2020

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‘Expected value is the product of variable such as a risk multiplied by its probability of occurrence’

– Central Government Guidance on Appraisal and Evaluation (‘the Green Book’), 2020 edition, p. 140

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We now know what appears to be the financial value of a square formed about the Prittster.

According to my Financial Times colleague, the well-connected Sebastian Payne, the cost of yesterday’s settlement of the claim brought by Philip Rutnam against the home offic is at least £340,000 plus £30,000 of legal costs.

https://twitter.com/SebastianEPayne/status/1367517429115609091

There would also be other costs incurred by the home office, including for its own external counsel.

This is a substantial – indeed extraordinary – amount of money for a settlement of a claim – especially when on other matters the home office are often somewhat parsimonious over similar amounts of money

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So what can be worked out about this settlement?

Let us start on a light note with how the news of the settlement was released.

Here we should imagine a zoom call discussion between a home office lawyer and media advisor:

Media adviser – How do we spin – I mean present – the settlement with Rutnam?

Lawyer – We can say we have settled without admitting liability

Media adviser – Doesn’t that just mean the same thing as the case has settled?

Lawyer – Yes, but political reporters will not know that

Media adviser – Ok – but can we pad it out even more?

Lawyer – We can also say that we were right to defend the case

Media adviser – But isn’t that just another way of saying no liability is admitted?

Lawyer – Yes 

Media adviser – So we should say in effect that we have settled because we settled because we settled?

Lawyer – Exactly

Media adviser – And that will fill up their ‘breaking news’ tweets leaving little room for anything else – oh, that is genius

Lawyer – Thank you, that is kind

Ahem.

All that government statement says in that statement is that the home office has settled the case, three times.

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More important – and interesting – is how that settlement amount was authorised.

The home office released this statement yesterday:

‘The government and Sir Philip’s representatives have jointly concluded that it is in both parties’ best interests to reach a settlement at this stage rather than continuing to prepare for an employment tribunal.’

This statement shows that a decision was made by the government to settle rather than to proceed to trial.

The statement also expressly states that this decision was made in the government’s best interests.

This indicates – if not demonstrates – that the decision to settle was made in accordance with the principles set out in the ‘Green Book’ – the common name for Central Government Guidance on Appraisal and Evaluation.

The Green Book sets out how a government department should approach dealing with liabilities and risks.

In essence, the Green Book provides the basis for how cost-benefit analyses are conducted in Whitehall.

In civil service speak: ‘[e]xpected value is the product of variable such as a risk multiplied by its probability of occurrence’.

The ‘concluded…best interests’ language of the home office statement means that a decision was made that settlement was more beneficial to the home office than the risks of proceeding with the case.

Or more bluntly: the home office realised it was likely to lose at trial and to lose badly.

Only if this decision was made on that basis, would – absent a ministerial direction overruling officials – such a payment be permissible in accordance with Green Book principles.

And the ‘concluded…best interests’ language tells against any ministerial direction (which, in any case, would one day be disclosed).

So, if this assumption is correct, then the case was closed down not (just) to save a minister from embarrassment but because of the real risk of a heavy defeat at the tribunal – a defeat which ran the serious risk of costing the home office more than £370,000.

The prime minister may have wanted a square to be formed around the Prittster – but that would not itself explain a payment made in accordance with Green Book principles.

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And so we come to the claim.

The amounts recoverable from most employment tribunal claims are capped, and so an employment tribunal claim even by a highly paid senior civil servant would not normally result in compensation in the area of the amount paid in this settlement.

And employment tribunals do not normally award costs – in lawyer speak, costs do not ‘follow the event’.

So what was different here?

If we go back to the statement made by Rutnam’s trade union when the claim was launched, there is a clue:

‘This morning, Sir Philip, with the support of his legal team and the FDA, submitted a claim to the employment tribunal for unfair (constructive) dismissal and whistleblowing against the Home Secretary.’

This was, in part, a whistleblowing claim.

And as such – under sections 103A and 124(1A) of the Employment Rights Act 1996 (as amended) there is no cap on compensation if the reason – or principal reason – for the dismissal is in respect of a protected disclosure.

On this basis, and given the settlement amount, the claims made were regarded (at least potentially) as principally a whistleblowing case.

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But – is not this case more about bullying than whistleblowing?

Here a passage in this Guardian report may be relevant:

‘Rutnam’s case was expected to focus on his claims that in late 2019 and early 2020 he challenged Patel’s alleged mistreatment of senior civil servants in the Home Office, and that he was then hounded out of his job through anonymous briefings.

‘Reports claimed that a senior Home Office official collapsed after a fractious meeting with Patel. She was also accused of successfully asking for another senior official in the department to be moved from their job.

‘Rutnam, a public servant for 30 years, subsequently wrote to all senior civil servants in the department highlighting the dangers of workplace stress. He also made clear that they could not be expected to do unrealistic work outside office hours.’

Under section 1 of the Public Interest Disclosure Act 1998 there are many ways a disclosure can qualify for legal protection – but the key thing is that such disclosure can be internal to a workplace, even to a boss, and not external disclosure to, say, the press.

On the face of the available information, and on the assumptions made above, it would appear that:

(a) in 2019-20 Rutnam made one or more disclosures internally within government in respect of workplace bullying;

(b) his claim for unfair dismissal in April 2020 had as a principal ground that such disclosure was the main reason for his constructive dismissal; and

(c) by March 2021 it was plain to the home office that this principal ground would be likely to succeed at trial.

Unless these (or similar) facts are true, then it is hard to explain why the home office, following Green Book principles, would settle this claim, for this amount, and at this time.

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And so now: timing.

The obligations under the Green Book are constant and so would have been just as applicable when the claim was made as they are now.

But the home office waited nearly a year before settling the claim.

And a trial was fixed for September this year.

So something must have happened for the claim to have settled now rather than before now or later.

Something must have tipped the Green Book decision-making in favour of settlement.

There is more than one possibility for this.

It may well be that this was just when the settlement negotiations happened to come to an end, and the Green Book decision happened some time ago.

Or, if you are a conspiracy theorist, you can posit political pressure and even intervention – even though there is no evidence of a ministerial direction.

Or it could have something to do with the judicial review just launched by the FDA trade union in respect of bullying and the ministerial code.

But the most likely explanation is that something has happened in the litigation process that has changed things.

In civil litigation such a shift can sometimes be explained by some sort of costs tactic – where one side springs an offer with such costs implications which, in the words of the noted jurist Don Vito Corleone, is an offer that the other side can’t refuse.

But such costs traps are (I understand) uncommon in employment tribunal cases where there is a special costs regime.

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So if not costs, then evidence.

At this stage of this sort of claim, there would be what is called a ‘disclosure’ exercise where the parties ascertain and share the relevant documentary and witness evidence.

It is the one moment when the parties get to see the actual strengths and weaknesses of their cases.

Other than in respect of costs traps, it is the one stage where claims are most likely to suddenly settle.

On this basis, the most plausible explanation for a claim that launched in April 2020 and was scheduled to be heard in September 2021 to settle in March 2021 is that some documentary or witness evidence has emerged – or has failed to come up to proof.

And given the nature of the claim and the amount at which the parties have settled, this development in respect of documentary or witness evidence would have to be in respect of a protected disclosure under the Public Interest Disclosure Act.

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So if this is a whistleblowing case, does that mean the settlement silences the whistle?

Here one answer is given by section 43J(1) of the Employment Rights Act 1996:

‘Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.’

A similar answer is given by the Cabinet Office Guidance on Settlement Agreements, Special Severance Payments on Termination of Employment and Confidentiality Clauses:

‘Staff who disclose information about matters such as wrongdoing or poor practice in their current or former workplace are protected under PIDA, subject to set conditions, which are given in the Employment Rights Act 1996. This means that confidentiality 4 Settlement Agreements – guidance for the Civil Service – 18-July- 2019 clauses cannot and should not prevent the proper disclosure of matters in the public interest.’

On this basis, it is unlikely that the settlement agreement will contain such a confidentiality clause or, if it purports to do so, whether it would be enforceable.

The whistle is not silenced – at least at law.

It may well be that Rutnam believes his internal disclosures were sufficient.

Or it may well be that there may be another appropriate opportunity for disclosure, perhaps related to the FDA judicial review case.

We do not know.

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But what we do know that the government has gone from this (as reported in the Guardian):

‘After a report in the Times highlighted tensions between Rutnam and Patel, sources close to Patel were quoted in several newspapers as saying that Rutnam should resign.

‘In an article in the Times, allies of the home secretary said he should be stripped of his pension, another source in the Telegraph said he was nicknamed Dr No for negative ideas, while one in the Sun likened him to Eeyore, the pessimistic donkey from Winnie the Pooh.

‘At that time the prime minister’s official spokesman said Johnson had full confidence in the home secretary and in the civil service, though the same guarantee was not given to Rutnam specifically.’

To this, in yesterday’s statement:

‘Joining the civil service in 1987, Sir Philip is a distinguished public servant. During this period he held some of the most senior positions in the civil service including as Permanent Secretary of the Department for Transport and the Home Office. The then Cabinet Secretary wrote to Sir Philip when he resigned. This letter recognises his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service.’

And:

‘The government regrets the circumstances surrounding Sir Philip’s resignation.’

We can bet they do.

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So, on the basis of the above we can perhaps understand how and why the government has settled at such a high payment.

The amount is not only ‘substantial’ – it is extraordinary.

And it can be explained best by an understanding of the Green Book as applied to the effects of relevant employment and whistle-blowing law in this particular case.

But what is perhaps most notable in yesterday’s statement from the government is what it does not say.

In his resignation statement, Rutnam said:

‘In the last 10 days, I have been the target of a vicious and orchestrated briefing campaign.

‘It has been alleged that I have briefed the media against the home secretary.

‘This – along with many other claims – is completely false.

‘The home secretary categorically denied any involvement in this campaign to the Cabinet Office.

‘I regret I do not believe her.’

As well as several other serious accusations against the home secretary.

Not one of these accusations is withdrawn – not even ‘clarified’.

The home office instead now commends ‘his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service’.

If any square has formed, it is now around Rutnam and not the Prittster.

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How the power of the home secretary to deprive a person of their United Kingdom citizenship is creating a second class of United Kingdom citizens from immigrant families

3rd March 2021

Despite modern political discourse being dominated by demands of what the ‘state’ should and should not do, there is often little in practice that ministers can do towards their political objectives.

Laws may be passed that may or may not have wanted effects; revenues can be raised and resources allocated that may or may not have any desired impact; international agreements may be made – or broken – that may or may not have certain effects; speeches can be made, and lines spun.

But a good deal of this activity and inactivity is at least one step removed from ensuring any real social and economic change (or lack of change), for government and administration is not an exact science.

And for anything that actually affect the rights of individuals, there would then be the pesky courts with their activist judges and scoundrel lawyers.

Over the last decade, however, one government department realised there were things it could do.

The home office has hit upon the one area of policy where it can make decisions that have direct social and economic consequences, but in a largely law-free way.

The home office could take people’s citizenship and residency rights away.

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Certain manifestations of this general policy approach can be seen with the Windrush scandal and in the deportation of those with certain criminal convictions.

And so on.

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Just as important as these executive actions, of course, was the threat of such executive actions.

This was not an accident – it was the design of the policy.

That policy was the ‘hostile environment’.

As the former home secretary Theresa May said candidly in a 2012 interview:

“The aim is to create here in Britain a really hostile environment for illegal migration.”

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Billboards and signs on vans are one thing, but ready and easy use of executive powers are another.

And the home office – like any addict – began to use this legal power of international displacement more and more.

The home office could do things – and (more-or-less) get away with them.

The next step from stripping people of any residency rights they may have was to deprive them, when possible, of their citizenship rights.

From removing illegal immigrants, to removing those who were from immigrant families but were in the United Kingdom lawfully and indeed were citizens of the United Kingdom.

And so this is what they did.

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The outstanding Free Movement blog has compiled this table:

According to Colin Yeo, in this detailed and informative survey of the use of the power to deprive a United Kingdom citizen of their citizenship:

‘until quite recently, the power to deprive a person of their British citizenship on the grounds of behaviour was almost moribund, having been used against perhaps a handful of Russian spies…in practice, ‘deprivation powers were not used at all between 1973 and 2002’.

The cases mentioned by Yeo will show why many might not mind many of the deprivations – unpleasant individuals who have done highly unpleasant things.

Many would even clap and cheer and shout good riddance.

But each case is also an instance of simple executive power – a ministerial decision, rather than a prior judgment by a court or tribunal – that strips a person of their citizenship of the United Kingdom – even if that person was born a United Kingdom citizen.

Under section 40 of the British Nationality Act 1981 (as amended heavily over the years), the right of citizenship of a person is entirely at the satisfaction of the home secretary.

(See this blog’s post here.)

And once the home secretary is satisfied that you should lose your citizenship then the citizenship is lost, by instant operation of law.

The person affected may seek to appeal such a decision – but they do so from the position of no longer being a United Kingdom citizen.

The decision takes effect before – sometimes long before – it can be considered by any court or tribunal.

This is what raw executive power looks like.

And the home office likes it this way.

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Because of the international law in respect of ‘statelessness’ (which this blog set out here), this executive power is usually used (or should be used) only where the person affected already has the status at law of citizenship of another country.

This means it can be used against people with dual citizenship.

And this means it can be used most readily against those who are from first or second generation immigrant families.

So there are now two classes of United Kingdom citizen.

A first class of those who have no other nationality, and so against whom the home secretary cannot (or should not) use their power to deprive them of their citizenship of the United Kingdom.

And a second class of those who will also have another nationality and so can have their citizenship of the United Kingdom instantly removed at the satisfaction of the home secretary.

These second class citizens will primarily be comprised of those from first or second generation immigrant families.

This means, in turn, that many of those affected will tend to be those from black and minority ethnic backgrounds.

On this basis, the operation of this law and policy would be discriminatory against those from black and minority ethnic backgrounds.

The very structure of this law and policy would mean it cannot work any other way.

And so a citizen of the United Kingdom – born in the United Kingdom and with no personal relationship with any other country – can have their citizenship instantly removed by a government minister without any prior judicial step just because they are from an immigrant family.

And the home office likes it this way.

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This post is part of a series of posts on the Shamima Begum case.

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Previous posts have included:

  • initial thoughts on the illiberal supreme court decision (here)
  • the parallel of the supreme court decision with the 1941 case of Liversidge v Anderson (here)
  • the legal power of the home secretary to deprive a person of United Kingdom citizenship (here)
  • statelessness and the law and the case of Shamima Begum (here)

Further posts will show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

*****

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The legal power of the Home Secretary to deprive a person of United Kingdom citizenship – looking closely at the Begum case part 1

28th February 2021

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Is the fault with the substantive law and general government policy?  Or with the particular decisions made by home secretaries?  Or with the lower courts and tribunals?  Or with the higher appeal courts?

Of course, one easy answer is say ‘all of them’ – but even then: what is the allocation and distribution of wrongness in the system?

Previous posts on this blog on the case have put forward some initial impressions on the supreme court judgment of last week and, yesterday, compared the case in general terms with the 1941 decision of Liversidge v Anderson.

Today’s post is on the general subject of the power of the home secretary to deprive a person of British citizenship, subject to the (supposed) prohibition on rendering a person ‘stateless’.

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The power of a home secretary to deprive a person of British citizenship is set out in section 40 of the British Nationality Act 1981.

Note, however, that this is not about powers that actually date back to 1981 – as this provision and the act generally have been heavily amended by successive governments.

This legal power, like many other powers that can be used illiberally, is a legal work-in-progress – constantly being tuned (if not finely) by home office lawyers by legislative amendment so as to make it ever-more difficult for a home secretary’s decisions to be checked and balanced.

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The key power in the Begum case is at section 40(2):

‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.’

This is it – this is the deprivation power.

On the face of section 40(2) alone, any person can be deprived of citizenship not by a decision of an independent court or tribunal but at the simple discretion of a cabinet minister.

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But.

There is then section 40(4), which provides:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

(The ‘he’ here also means ‘she’ under section 6 of the Interpretation Act 1978.)

On the face of it, section 40(4) would thereby prevent the deprivation power being used so as to render a person stateless.

Yet note, the deft use of the words ‘he is satisfied’.

Read the provision again without those three words to see the difference those words make: ‘The Secretary of State may not make an order under subsection (2) if  […] that the order would make a person stateless.’

The direct legal test is thereby not whether a person is made stateless, but (again) the ‘satisfaction’ of the home secretary.

As we come to look more closely at the Begum case in particular, you will see what rides on words and phrases like this.

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Turning now to the Begum case, we can now see the legal basis of the decision by the then home secretary Sajid Javid of 19th February 2019 (emphases added):

‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.

‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.’

As you can see, the notice of 19th February 2019 ticks the boxes for both (1) the basic deprivation power and (2) avoiding the statelessness exception.

This determination being made by the home secretary – and given the evidence on which the home secretary purports to rely – the only immediate avenue of appeal of Begum was to the special immigration appeals commission.

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The next post in this series of posts on the Begum case will set out the relevant law on ‘statelessness’.

Further posts will then show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

*****

Each post on this blog takes time, effort, and opportunity cost.

If you value this free-to-read post, and the independent legal and policy commentary this blog provides for both you and others – please do support through the Paypal box above, or become a Patreon subscriber.

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“In this country, amid the clash of arms, the laws are not silent…judges are no respecters” – the story of when a law lord in 1941 stood up for the rights of an individual against a home secretary, and what then happened to that law lord

27th February 2021

The illiberal and unanimous decision yesterday of the supreme court of the United Kingdom in the Shamima Begum case is reminiscent of another illiberal decision of the highest court, previously known as the appellate committee of the house of lords.

That case – which most lawyers will know and most non-lawyers will not – is Liversidge v Anderson.

This case dealt with the rights of the individual in respect of regulation 18B of the Defence (General) Regulations 1939.

That regulation provided:

‘If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.’

In other words: detention without trial at the discretion of the home secretary.

Of course, many would think such a dreadful thing would never happen in England, with our robust common law rights and so on.

For as even Winston Churchill said:

‘to cast a man into prison without formulating any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes’.

(It is worth noting that ‘odious’ was quite the word for Churchill – see also his ‘fight them on the beaches’ speech: ‘Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail’.)

*

But although detention without trial was (supposedly) ‘in the highest degree odious’, the United Kingdom did it anyway.

And one of those detained was Robert Liversidge.

The detention order from the home secretary was as follows:

‘DETENTION ORDER.

 ‘Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him: Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following order: I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained.
 
 ‘(Signed) John Anderson,
 
‘One of His Majesty’s Principal Secretaries of State’

 

No charge; no prosecution; no trial; no conviction; no sentence.

Just the opinion of the home secretary.

And so Liversidge brought a legal case against the then home secretary Sir John Anderson, and this was the case that reached the house of lords in 1941.

Liversidge, who averred he was falsely imprisoned, wanted to know the case against him.

But Viscount Maugham and the majority of the law lords were having none of Liversidge’s nonsense.

In a sequence of speeches that are rather quite remarkable the law lords – to use Lord Reed’s unfortunate phrase – accorded respect to the determination of the home secretary:

‘there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith’.

The appeal was dismissed, and Liversidge – sitting in Brixton prison – was ordered at the end of Maugham’s speech to pay the home secretary’s legal costs (though it is not clear whether this order was actually made).

*

But not all the law lords nodded-along.

Lord Atkin sat through the very same submissions in September 1941, and he came to a very different conclusion.

He gave a dissenting speech which contained this passage (which I here break into smaller paragraphs for flow):

‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
 
‘Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
 
In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
 
‘It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
 
‘In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
 
‘I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.
 
‘To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.
 
‘They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular.
 
Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
 
‘I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (“Through the Looking Glass,” c. vi.)
 
‘After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.
 
‘If it be true, as, for the foregoing reasons, I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the [case] before us ought not to be difficult to make.’
 
 
*
Lord Atkin, 1941: ‘judges are no respecters of persons’
 
Lord Reed, 2021: ‘[the court of appeal] did not give the Home Secretary’s assessment the respect which it should have received’
 
*
 
 
Lord Atkin’s speech in 1941 did not go down well with his fellow judges.
 
Lord Atkin was cancelled.
 
As David Pannick details in his book Judges, the other law lords shunned Atkin.
 
Viscount Maugham, in an extraordinary step, even wrote a letter to the Times about the language used by his fellow law lord (the short house of lords debate on that letter is here.)
 
But Atkin was right.
 
As a later law lord, Lord Diplock said in a 1979 house of lords case:
 
‘For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.’
 
But that was no consolation to Liversidge detained in Brixton prison back in 1941.
 
Nor was it consolation to Atkin – for according to Pannick it was widely believed that Atkin never recovered from the hostility of his fellow judges before his death in 1944.
 
*
 
Perhaps in a few years a supreme court justice may suggest – perhaps cautiously in an extra-judicial lecture, or perhaps more confidently in an actual decision – that the court of appeal got the Begum case right, and the supreme court did not.
 
That will be no consolation to anyone either.
 
But as the 1941 case of Liversidge v Anderson shows, it is not the first time that the judges of the highest court – in the words of one of its greatest former members – ‘show themselves more executive minded than the executive’.
 
And it certainly will not be the last time they do this in respect of the rights of the individual in the face of the powers of a home secretary.
 
***
 
Sources – Judges by David Pannick and In the highest degree odious: detention without trial in wartime Britain by A W Brian Simpson – and both books are highly recommended
 

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‘Not giving the Home Secretary’s assessment the respect that it deserves’ – some initial thoughts on the Shamima Begum decision of the Supreme Court of the United Kingdom

26th February 2021

This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.

The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.

With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.

The decision will take time to digest and to comprehend.

But.

That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.

*

The first impression comes from the decision being unanimous.

This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.

A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.

This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.

Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.

This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.

It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.

*

The second impression is that, as well as being unanimous, the judgment is executive minded.

For example, here is how the court of appeal described the background of Begum:

But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:

What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.

We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.

For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.

The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:

Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.

That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:

The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.

It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.

The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.

Perhaps the use of words here is a slip – but one fears instead it is again a tell.

*

The third immediate impression is that it is a defeatist judgment.

The court of appeal found a compromise which balanced the rights of Begum with those of the executive.

It was an impressive and elegant judgment, and I did a video for the Financial Times:

The supreme court was to have none of this.

For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.

Instead, in such a dilemma, there is no judicial compromise:

Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.

*

The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.

(As opposed to the notion that the rights of either side will always trump the other.)

If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.

For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.

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Why the high court was right to deny standing to members of parliament to bring public law claims – and why such ‘ornamental claimants’ are a bad thing

23rd February 2021

*

‘Now a cowboy needs a hat, needs a hat, needs a hat

‘And a pair of fancy boots, fancy boots, fancy boots’

– TikTok meme, circa 2020-21

*

Any legal case at its most basic needs two things.

First: it needs a question that a court can determine – a question of law or evidence that is capable of being determined one way or another by legal proceedings.

Say whether there had been a breach of a contract, or whether a theft had taken place, or whether a government department had acted within its legal duties.

And second: a legal case needs somebody to bring it to the court for that determination.

Sometimes – in criminal cases – that somebody can elsewhere in Europe be a magistrate themselves, or a prosecutor appointed by the state.

But in civil cases – where a party sues another party – that somebody has to be somebody willing and able to bring the case.

And – in England and Wales at least – whether a person can bring a case is described as whether that person has ‘standing’ to bring a claim.

*

Usually in civil cases it is obvious who can and should bring a claim.

The person who can bring a claim is the person who has been wronged.

A party to a contract can sue the other party to the contract if the latter is in breach, or a person who is victim of a tort can sue the tortfeasor (which must be one of the more glorious words in legal vocabulary), and so on.

In what is called ‘private law’ there is usually no problem identifying who can – and who cannot – bring a claim before a court.

*

But there is a gap – and that is in ‘public law’ cases.

(Public law is the area of law which deals with the special legal rules which apply to public bodies and others exercising similar powers.)

Who should be able to bring a claim that a public body is acting unlawfully?

The starting point is that a person directly and adversely affected should be able to bring the case before a court so that the lawfulness of what a public body has done or not done can be determined.

And so, for example, a person facing deportation or a person whose property is about to be blighted, and so on, can often bring a judicial review in respect of a relevant decision by a public body.

(A judicial review is when, literally, a thing is reviewed judicially to ascertain whether it within the powers of the relevant body.)

*

But.

And it is a huge but.

Not all unlawfulness by public bodies will be neatly accompanied by a person being directly and adversely affected.

Take, for example, the topical example of a contract awarded by the government to a supplier where there has been neither an advertisement nor a competitive procurement exercise.

In these circumstances there is not even a disappointed bidder who would have standing to bring a claim.

What should the law – more specifically, what should should a court  – do?

*

One answer, which appeals to those who delight in unchecked executive power, is that nobody should have standing.

That a public body should be allowed to act unlawfully generally unless a person can be found who has been directly and adversely affected.

But this cannot be in the public interest.

And so the courts – sensibly – have expanded the scope of who can bring public law claims in the public interest.

Accordingly, organisations with a sincere interest in an area of public policy, but with no direct financial interest in the outcome of a challenge, are often granted standing to bring a claim.

But how wide should this scope be?

And this is the question asked – and answered – in the procurement transparency case decided last week.

*

There were four claimants in that case:

(It is a pity they could not have added more parties with ever-shorter names so we could have had a pleasing upturned triangle of names.)

You will see that the second, third and fourth claimants are members of parliament.

Surely if anyone can claim to be able to be guardians of the public interest it would be elected representatives of the democratic chamber?

But the court held otherwise: that the three members of parliament did not have standing to bring this claim.

The court was right to do so.

*

The reason the court was right to do so goes to a fundamental principle in the constitution of the United Kingdom: the separation of powers.

This familiar phrase means, in practice, that different elements of the state have different remits, and that they should act as a check and balance on each other.

A person may well be elected to parliament –  but before the courts they are no different to any other person.

An elected representative has various privileges and rights – some of which can carry considerable weight and power.

For example, members of parliament have absolute privileges in what they say and do in parliament and can hold ministers to account.

But they do not also get any elevated right to bring legal proceedings against those same ministers.

(A member of parliament may have standing on other grounds, but not just because of the simple fact of their office.)

If members of parliament were accorded a special status to bring a public law claim, this would mean that there would be a significant overlap between parliament and the courts.

There would also be a tendency for the work of the courts to be further politicised and for proceedings to become openly partisan devices.

Of course: to a small extent there is already an overlap, and the courts will never be free of the general charge of politicisation.

(And the courts already recognise the attorney-general – an office held by a politician – as having a special status as custodian of the public interest in certain proceedings, though attorneys-general will not bring proceedings against their own government.)

As the judge correctly observed in the judgment last week:

“No doubt, the addition of politicians as parties may raise the profile of the litigation.

‘It may make it easier to raise funds.

‘But these are not proper reasons for adding parties.

‘In a case where there is already a claimant with standing, the addition of politicians as claimants may leave the public with the impression that the proceedings are an attempt to advance a political cause, when in fact their sole legitimate function is to determine an arguable allegation of unlawful conduct.’

One hopes that the fashion of adding (no doubt well-meaning) politicians as, in effect, ornamental claimants in public law claims will now come to an end.

If a non-partisan organisation has standing to bring a claim in the public interest then no politician is needed, and if there is no such organisation than a partisan politician is not a good substitute.

*

In the case last week, a large portion of the judgment was devoted to the issue of standing.

One can understand why the government wanted to object to the notion that anyone has standing to go to court to in respect of unlawful conduct by the government.

And more widely, the government and its political and media supporters are constantly seeking to narrow the practical availability of judicial review.

That organisations (such as the first claimant in last week’s case) are accorded standing in public interest cases is a boon for accountability and transparency.

But ‘add me as well’ lists of ornamental claimants savour of gesturing and gimmickry. 

A pleading is not – and should not be – a round-robin.

If members of parliament want to add their names to something then parliamentary motions and other Westminster devices are available.

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A government department or minister has been found to have acted unlawfully or illegally – but what does this mean? And what does it not mean?

21st February 2021

The news item is dramatic.

The high court in London has decided that a government department – or a specific secretary of state – has acted illegally or unlawfully.

The department or minister has, as the saying goes, broken the law!

There will then be a flurry of tweets, retweets and likes – and then demands for resignations, or prosecutions, or whatnot – followed by complaints that the news media (usually the BBC) have not adopted a similarly breathless approach.

And then there will be a sense of anti-climax or disappointment as the news fades and nothing significant seems to happen.

Nobody resigns, nobody is sacked, nobody is prosecuted, nobody has any personal legal liability.

Why is this?

Surely breaking the law has consequences?

*

Well.

Part of the problem is that the words ‘illegal’ and ‘unlawful’ are wide in their meaning.

(For convenience, the terms ‘illegal’ and ‘unlawful’ will be used as synonyms n this post – though some lawyers will have very strong opinions as their distinction in certain contexts.)

Their core meaning of being ‘illegal’ and ‘unlawful’, of course, is that there has not been compliance with a law – or that a thing has been done without a lawful basis.

That core meaning, by itself, does not tell you what laws have been broken, how they were broken, and what the consequences (if any) are for that breach.

And in the case of there not being a lawful basis for a thing, it may even mean no specific law has been broken as such.

There are many ways in which a thing may be ‘illegal’ or ‘unlawful’.

*

Yet for many the phrase ‘broken the law’ will mean a person has done something criminally wrong.

That such a person has breached a prohibition for which the criminal law provides a sanction for that breach.

But that is only one way the law can be breached.

This is because criminal law is only a sub-set of the law.

And so the illegality that gives rise to criminal liability is just a sub-set of illegality.

There are other ways a thing can be ‘illegal’ or ‘unlawful’ without any criminal offence being committed.

*

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a person does not comply with the conditions of a contract, or with the terms of a licence, or commits a wrong such as trespass or negligence.

Such an action or inaction will be to ‘break the law‘ – but these will not usually result in any criminal sanction.

Such wrongs are usually enforced, if at all, by a wronged party suing in a court.

This is what the law regards as ‘civil’ law as opposed to ‘criminal’ law.

Some people can commit dozens – if not hundreds – of such breaches – and nothing happens, because nobody is able or willing to sue for the wrong.

People act unlawfully and illegally every day.

People just like you.

*

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a public body does not comply with the provisions of the law or its relevant legal duties.

Here the relevant law is called ‘public law’ – a general term for the special laws that regulate what public bodies can and cannot do.

As a general rule, a public body can only do what the law provides for that body to do, and when doing so that body also has to comply with certain duties.

And if that public body does not do so, then it will be acting ‘illegally’ or ‘unlawfully’.

This means the public body, as a matter of law, has not done what it should have done.

The common way for such bodies to be held legally to account for the lawfulness of what they do is called ‘judicial review’ – though the question of legality can also sometimes be raised other legal proceedings.

Judicial review is, in England and Wales, usually before the high court.

When the question of legality is raised, the high court will ascertain the relevant laws and legal duties of the public body, and the court will then determine whether the public body has acted in accordance with those laws and duties or not.

If not, the court can decide whether the public body (or minister in charge of a government department in their official capacity) has acted illegally/unlawfully.

And that…

…is it.

At least that is it, in respect of the substance of the case.

If necessary, the court can then make a ‘quashing order’ that will render the act – a decision, or measure, or policy – as unlawful.

The quashing order will then, by legal magic, remove any legal meaning from what was done (or not done).

In practice, this usually means the public body (or minister) can make the quashed decision (or measure or policy) again, but this time lawfully.

A court may sometimes think a quashing order is not necessary, and may make what is called a ‘declaration’ instead – where the high court declares what the relevant legal position is (or is not).

And sometimes a court can even view that neither a quashing order nor a declaration as having any practical use, and regard the breach as moot or academic.

So a finding by the high court of illegality by a public body may mean there is a remedy, on not, depending on the circumstances.

*

The role of the court in judicial review is to, literally, review a thing judicially – to see if a thing done or not done by a public body was lawful or not. 

And if so, to see if anything practically needs to be done as a consequence.

Nothing more.

No automatic orders to pay damages, still less impositions of criminal convictions.

And sometimes not even a quashing order or other order, or a declaration, as not even that remedy is required to put right the wrong.

This is because the job of public law is not to deal with civil or criminal wrongs directly but to ensure lawful actions by those with public power – and to issue what corrective orders are necessary to ensure that public bodies keep within their powers and fulfil their duties.

Telling the swimmers to stay in their lanes, and blowing a whistle if required.

*

There is a public interest in this discrete question of legality of public bodies being examined by courts.

Of course, there will always be a clamour for greater sanctions for those individually responsible for such unlawful conduct.

And both the civil law and criminal law do provide the means for civil claims and criminal prosecutions to also be brought in certain circumstances.

Judicial review is not the only legal redress.

Such claims and prosecutions can, however, be complex and time-consuming, involving extensive witness and other evidence, and the need for witness evidence to be examined and cross-examined.

It is harder to impose individual culpability than to review generally whether a public body has acted lawfully or not – especially if intention has to be proved or causation of damage to be shown.

This is not to say there should be no role for civil and criminal liability when things go wrong in the public sphere – but to aver instead that the allocations and inflictions of such liabilities on individuals raise wider legal issues than the narrow question of whether a public body acted within or without its legal powers and duties.

*

So when the news is that the high court has found that a public body (including a secretary of state) has acted unlawfully or illegally then this means the court has reviewed what has happened and found it legally wanting.

A ‘cross’ rather than a ‘tick’ against the public body’s action or inaction.

The swimmer is in the wrong lane.

And, if required, an order or declaration so as to correct what has gone wrong.

That this does not carry any personal legal consequences for the ministers or officials involved will disappoint some of those following the news.

But to insist that there also has to be personal legal consequences for the ministers or officials whenever there are unlawful or illegal actions by a public body would be to make judicial review ineffective as a useful tool.

And there would be no public interest in that.

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Why a production company was not allowed to pre-record and broadcast the coronavirus procurement case – a guided tour of the court’s reasoning

20th February 2021

Physician, heal thyself – proverb.

Yesterday the high court handed down its decision in the challenge to the government’s lack of transparency in respect of coronavirus-related procurement.

The court held that the government should have been more transparent.

This blog will examine that judgment once it can be properly digested – but in the meantime, there are some paragraphs of the judgment are interesting in and of themselves.

These paragraphs set out why the court – in a case about transparency and the public interest during the pandemic – refused an application for a production company to pre-record the hearing for broadcast under the very legislation that allows the courts to be more transparent during the pandemic.

Which is a little bit ironic.

Don’t you think?

The court’s reasoning on why the hearing could not be pre-recorded for broadcast is set out at the end of the judgment in a section with the title “Postscript: recording and broadcasting”.

The reasoning is worth going through step-by-step so one can understand the limits of public transparency of the courts when dealing with cases about the public transparency of the government.

(Please note that some of the mild teasing of the court below should not be taken too earnestly.)

*

We start at paragraph 161 of the judgment:

‘161. Prior to the hearing, the Administrative Court Office indicated to the parties that, because of the COVID-19 pandemic, the hearing of this claim would take place remotely using a video-conferencing platform. The Claimants invited me to give permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. They made written submissions in support of that application. The Secretary of State resisted it, on jurisdictional grounds. I refused the application, indicating that I would give my reasons in writing at the same time as the judgment, unless the application was renewed orally at the hearing. The application was not renewed orally. These are my reasons for refusing it on paper.’

This is a useful reminder that judicial reasoning does not exist in a vacuum: judicial reasoning is about whether a court should do or not do a particular thing – usually whether to make an order.

Here, the reasoning is set out not because Mr Justice Chamberlain is going on some frolic of his own, volunteering his opinions on behalf of the judiciary of England and Wales on whether high court proceedings ought to be recorded and broadcast, but in response to a particular application by the claimants.

The government resisted that application – but not on its merits (though no doubt the government would not relish such proceedings being freely available). 

The application was instead resisted on ‘jurisdictional grounds’ – that is that such an order would not be open to any high court judge regardless of the merits.

You will also note that the judge mentions the application was ‘in the interests of open justice’ – and you will see that in nothing that follows does the judge deny that proposition.

The judge refused the application, and so what follows in this post tells why the judge made that decision – and why he did not (or could not) make any other decision on that application.

And the post ends by averring that this was an opportunity missed by the high court and such an application could have been granted on terms.

*

Next is paragraph 162:

‘Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on the taking of photographs in court and on the publication of such photographs. This prohibition extends to video recordings: R v Loveridge [2001] EWCA Crim 973, [2001] 2 Cr App R 29. Exceptions have been provided by and under statute. None applies to proceedings in the Administrative Court. Section 41 therefore constrains the inherent jurisdiction of the court: R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), [2019] EMLR 16.’

The judge starts at, well, the starting point.

Taking photographs in court and publishing the photographs is generally prohibited – which means it is generally a criminal offence to breach the prohibition.

The prohibition is set out in a statute that is nearly one hundred years old, the Criminal Justice Act 1925, section 41(1) of which provides:

‘No person shall—

‘(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

‘(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof [… ]’

*

But wait: the proposal is not to photograph inside the court – indeed the hearing is not even taking place inside a physical court room – so how is this prohibition relevant?

The judge explains that section 41(1) has been extended to also mean video recordings, even though such things did not exist as such in 1925 and the section does not expressly mention video recordings.

Unfortunately, the 2001 decision which the judge cites as being authority for section 41(1) extending to video recording – and thereby extending the scope of a criminal offence – is not itself easily found in the public domain.

The nearest one will find in a reasonable internet search is this brief case note – which tells us, unrevealingly, that the court of appeal decided an ‘appellant’s convictions were safe despite the police having unlawfully videotaped them at court and adduced the evidence of a facial mapping expert to compare that video with CCTV footage’.

How a member of the public could join that dot to what the court here is saying about section 41(1) applying to video recording is not plain – and so we have to take the judge’s word for section 41(1) prohibiting video broadcasts and recordings even though section 41(1) does not explicitly say so.

(Yes, I know one can access the 2001 judgment through subscription services – but this blog and and what it describes is an exercise in the public understanding of law using public domain materials.)

The judge then notes there are general exceptions to this general prohibition – see here – but tells us none of those exceptions apply.

As such he concludes section 41(1) binds the court’s ‘inherent jurisdiction’ – that regardless that the power of the high court is very mighty indeed, statute is even mightier.

And of course, the judgment he cites for this very important principle is also not (easily) found in the public domain either.

So again we have to take the judge’s word for it.

Welcome to open justice.

*

We now come to paragraph 163, which deals with how the courts have been specially allowed to conduct video proceedings during the current pandemic:

163. The Coronavirus Act 2020 inserted provisions into the Courts Act 2003 about “proceedings conducted wholly as video proceedings”. The first provision inserted was s. 85A(1), headed “Enabling the public to see and hear proceedings”. It empowers the court to direct that such proceedings may be broadcast (i.e. live-streamed). It also empowers the court to direct that the proceedings be recorded, but only “for the purpose of enabling the court to keep an audio-visual record of the proceedings”. Parliament could have authorised recording for broadcast, but did not.

Here the judge is describing what the law says – but also, by implication, what the law is not saying.

The law is set out in a section inserted into the 2003 Act by coronavirus legislation, which provides:

‘Section 85

‘If the court directs that proceedings are to be conducted wholly as video proceedings, the court—

‘(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;

”(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings […]’

*

Section 85 looks promising for the applicants – and the exception under sub-section (a) looks as if it could cover the envisaged broadcast.

On the face of it sub-section 85(a) could be read so to permit the pre-recording and broadcast as envisaged in the application – subject to any specifications of the court

(In my view, had parliament intended that such broadcasts could only ever be done simultaneously with the hearing then parliament would have said so, but it did not.)

But the judge dismisses this possible reading with a deft gloss in parentheses that the broadcast exception only means ‘live-streaming’ – but note, the relevant law does not explicitly mention live-streaming – just broadcasting.

And, of course, many things that are broadcast go through a pre-recorded stage.

There is not a rigid broadcast/record distinction in media production.

The judge decides the envisaged project would fall instead within sub-section 85(b), and he avers that any such recording can only be for the purpose of judicial record keeping.

(It would seem to me to be at least arguable that a direction would have been possible under sub-section 85(a) containing specifications as to the manner of how the proceedings should be broadcast – otherwise, it would ignore the fact that most broadcasts necessarily go through a pre-recording stage.)

As the court decides neither of the coronavirus-related exceptions apply under section 85, then the general prohibition stands.

*

The judge then, in paragraph 164, sets out the criminal offence that parliament created in the coronavirus legislation in respect of certain unauthorised broadcasts and recordings:

‘164. The second provision inserted was s. 85B, headed “Offences of recording or transmission in relation to broadcasting”. This makes it an offence for a person to make an unauthorised recording or unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under s. 85A. Section 86B(6) provides that a recording or transmission is “unauthorised” unless it is (a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor.”

This means that if a hearing is live-streamed in accordance with an order, it will be an offence for anyone to record and re-broadcast such footage.

*

The judge then deals with what appears to be an ingenious attempt by the Claimants to get around the statutory regime using the wording of the criminal offence:

‘165. The Claimants relied on s. 86B(6)(b). They argued that it would make no sense unless the court had power to authorise recording or transmission other than under s. 85A. This is topsy turvy statutory construction. Both the heading and operative language of s. 86B make plain that it is concerned with the creation of an offence and with the delineation of its scope. The function of s. 86B(6)(b) is to make clear that no offence would be committed by a person who records or transmits footage pursuant to an authorisation by the court. That is not surprising. One would not expect something authorised by a court to give rise to criminal liability.’

Topsy turvy.

*

Of course, the language of ‘make plain’ and ‘made clear’ in law (as in politics) usually means that the thing being described is not actually plain nor clear.

And it would seem that the applicants do have a point here (if a weak one) as the relevant section does appear to acknowledge orders being made other than under the coronavirus legislation.

But such an acknowledgment does not, by itself, create jurisdiction to make an order – the applicants still need to show the legal basis for their application, and they did not convince the court that they had one.

Ingenious legal submissions almost always fail.

*

Having asserted that the relevant law is ‘plain’ and ‘clear’ the judge, of course, has to explain the law yet further, and he does so in paragraph 166:

‘166. Nothing in s. 86B purports to define or expand the scope of the court’s powers to authorise broadcast and recording. Those powers are set out in s. 86A. That provision would not have been drafted as it is if the intention were to empower the court to permit recording other than for the purposes of record-keeping.’

Of course, if the law was actually ‘plain’ and ‘clear” then the judge would not need to keep on explaining it, as the law would, well, be plain and clear.

And again the court overlooks the fact that most broadcasting requires a pre-recording stage, and parliament did not expressly limit broadcasting to simultaneous live-streaming.

*

Paragraph 167 then sets out that there is a general prohibition on pre-recording for the purposes of broadcast and that this prohibition stands in this particular case:

‘167. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.’

In other words: the court would not be able to make such an order even if it wanted to do so.

It is a question of jurisdiction, not the merits of the application.

The judge has therefore not decided against making the order as such, but has decided that he does not have the power to do so.

*

But what about open justice?

For just as the roles of judges, lawyers and parties are now performed online during the pandemic, what about those who would sit in the public gallery?

In the last paragraph of the judgment, the judge explains how this important issue is addressed:

‘168. This does not generally, and did not in this case, prevent the public from having access to proceedings conducted wholly by video in the Administrative Court. In line with the Court’s usual practice, the cause list published on the day before the hearing included an email address through which any member of the public could apply for access to the online platform. All 19 who applied were able to access and watch and listen to the proceedings in this way. The proceedings were therefore at least as accessible as they would have been if held in court.’

This is a good point, well made by the judge.

Anyone who wanted to see the proceedings was able to do so, in the same way a person can go along and sit in a court if they want to do so.

*

But.

‘Open justice’ does not mean openness only to the very limited extent of the time, effort and commitment of a determined stranger to sit in a far-away public gallery.

The high court should seize the opportunity provided by the coronavirus legislation to make its work more visible to the public generally – especially in public interest cases arising out of the government’s response to the pandemic.

The public gallery is just one manifestation of the principle of open justice, but it is not its only standard nor its only template.

That is, to invoke a phrase, topsy turvy.

*

The mild teasing of the court above does have a serious point.

In public interest cases where the hearing comprises lawyer-on-lawyer action (and not any witness evidence) there is no good reason for the proceedings not to be more widely available.

This is not to suggest a free-for-all – such broadcasts can be done subject to the specifications of the court.

But a properly produced and professionally edited version of a public interest court case would be a boon for the public understanding of the law.

It is possible to read section 85A as permitting such a broadcast and, if so, the high court did have the jurisdiction.

Another judge may have taken a more robust approach to the opportunity provided by the coronavirus legislation for such a broadcast to be permitted.

It was a pity that such a production was not possible here.

*****

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