Category: Courts and Politics

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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This law and policy blog provides a daily post commenting on and contextualising a topical law and policy matter – each post is published at about 9.30am UK time.

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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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The myths of ‘arrogant judicial power’ and ‘human rights gone mad’ and the Dolan judgment

5th December 2020

A ‘myth’ is often a word we use to describe a thing we disagree with.

But sometimes the word has its uses.

Some things are believed in as true without evidence or despite the evidence.

Take the example the prevalence in modern politics of two views about the relationship between the courts and politics.

The first view is that there is an over-reaching judiciary: that judges are often deciding matters of policy and other political questions against the government and parliament.

The second view is that the law of human rights has ‘gone too far’ and beyond the limits of common sense.

And now take the Dolan case on the legality of the coronavirus lockdown regulations, which this blog considered yesterday.

This was a case where the government had, in effect, legislated by decree – without any prior parliamentary scrutiny and approval – so as to remove fundamental rights of movement, of assembly, of public worship, of being able to trade lawfully and so on.

These widest possible blanket prohibitions one could imagine, all done with no real consideration of the proportionality of each measure and with no accountability.

Law and policy as sledgehammer.

If there was ever a case where there should be anxious scrutiny of the use of delegated legislation this was it.

The courts would surely surely step in, where the legislature had been sidelined.

After all, we have an over-reaching judiciary and human rights law is powerful.

Of course not.

Both the court of appeal and the court of first instance could not have sided more with the executive if they had wanted to do so.

Each fundamental right was a mere tick box for the court to approve the interference by the state.

The reasons for this outcome are familiar to anyone with a detailed interest in public law.

Our courts are invariably deferent to the executive on matters of policy.

The few cases where the government is defeated often turn on their own extraordinary facts.

And human rights law in the United Kingdom is weak and usually impossible to rely on in any practical case.

Almost all the rights under the European Convention on Human Rights, for example, are ‘qualified rights’, which mean that it is not difficult for an executive to interfere with those rights when it says it is in the public interest to do so.

And so the most illiberal legal measures in peacetime could be imposed by the government without prior parliamentary scrutiny and approval, and the courts could not nod any harder at the government doing this.

(My own view, as I set out yesterday, is that even if the individual measures were warranted at a time of a public health emergency, the measures should have been done via Civil Contingencies Act, which provides for detailed legislative and judicial oversight, and not through the Public Health Act which meant no real legislative and judicial oversight at all.)

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There is a famous statement by a judge in a case during the second world war – a statement which every law student knows.

This is Lord Atkin in Liversidge v Anderson:

‘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.’

But what most law students also forget is that this was said in a dissenting judgment: Lord Atkin was in a minority.

The depressing fact is that in England there is often almost little to nothing the courts can or will do against executive action, even when there is no prior parliamentary approval for the measures imposed.

Courts and judges are far better at finding reasons not to intervene than to do so.

If the Human Rights Act, for example, had a quarter of the power which its populist detractors accuse it of having, the Dolan case would not have been so one-sided.

Yes: it was a public health case, but that should make a court more anxious in its scrutiny of emergency legislation, not less.

To paraphrase Lord Atkin: amid a pandemic, the laws should not be silent.

Those who promote the views that there is an over-reaching judiciary and that the law of human rights has ‘gone too far’ do not care about this, of course.

For these cherished views are their myths, and so they will stick with them.

But these views are, in fact, fantasies.

We do not have an over-reaching judiciary and the law of human rights has not ‘gone too far’ – and the Dolan case shows this.

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Freedoms vs Permissions – a liberal look at the Court of Appeal judgment on the coronavirus regulations

4th December 2020

A few days ago the Court of Appeal handed down its judgment in the Dolan case.

This was an application for judicial review of the regulations restricting freedom of movement and other fundamental rights which were introduced in England earlier this year at the beginning of the pandemic.

The challenge was ultimately not successful, as the leading legal blogger Matthew Scott explains in this thread.

There are a couple of things in the judgment that are interesting from a liberal perspective.

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First, it was the approach of the court to the exercise of a freedom.

The classic model of freedom in a common law jurisdiction (such as England) is, of course, that one is free to do what one wishes – unless there is a specific prohibition.

This is the sort of liberty emphasised by those who trumpet freedom under the common law.

The court, however, seemed quite relaxed at this position being inverted under the regulations – that the starting point is that everyone is prohibited from doing what they want in respect of freedom of movement and assembly, unless there was a permission.

For the court there was nothing wrong with a general bans as long as there were exceptions where a person can satisfy the police and the courts that you had a ‘reasonable excuse’.

Here is the court’s reasoning on freedom of movement.

And then on freedom of assembly.

To make this observation is not necessarily to criticise the position of the court but instead to draw attention at how easily the court accepted the reversal of the classic model of freedom in the common law system.

The phrase ‘reasonable excuse’ has a nice nod-along quality that will make many people think ‘what could possibly be wrong with that?’.

Nonetheless it hands the decision on whether what you are doing is permissible to an official (or the court), and it will be they and not the individual who is the arbitrator of whether an excuse is reasonable or not.

And to take the position to an extreme: imagine a system where everything was prohibited unless an official (or the court) was satisfied you had a reasonable excuse.

That a person was never free to do anything, only to have the reasonable permissions of the authority.

What could possibly be wrong with that?

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In contrast with the ease with which the court accepted restrictions on the autonomy of the individual, the judges saw no need to exercise judicial control on the government’s own freedom of choice.

Back in March 2020 the government had a choice on how to regulate so as to restrict the fundamental freedoms of individuals.

On one hand, it could use the Civil Contingencies Act 2004 – a dedicated statute for dealing with emergencies with an exacting scheme providing for legislative and judicial supervision.

Or it could blow off the dust of the Public Health Act 1984, where it could impose wide prohibitions without real legislative control, where criminal sanctions and restrictions can be casually made and revoked without there being any prior votes in parliament and only the academic prospect of judicial review.

The government, of course, chose the latter.

And the court of appeal, that held that individuals should be banned for things unless they have reasonable excuses, afforded the government a complete free choice of which statute to use.

At paragraph 77 of the judgment:

“[The applicant] pointed to various differences in the procedure and timetable for the laying of regulations under the two different Acts: see, for example, section 27 of the 2004 Act, which deals with Parliamentary scrutiny of emergency regulations made under that Act. We do not consider that this detracts from the fundamental point that the Secretary of State may well have had a choice of options and could have acted under the 2004 Act. It does not follow that he was required to do so; nor that he is somehow prevented from using the powers which Parliament has conferred upon him in the 1984 Act, as amended.”

The government thereby gets the benefit of a ‘fundamental’ right to choose, even if citizens do not.

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None of the above means that the individuals should not comply with the coronavirus regulations – and it is emphatically correct that in a public health emergency of a pandemic, there should be be restrictions on the rights of individuals.

This post draws attention to how the court of appeal has gone about dealing with this challenge to the regulations.

Instead of anxious scrutiny of whether the broad prohibitions went further than necessary, the court of appeal seemed too ready to accept that the government can side-step at will a scheme designed to ensure proper legislative and judicial scrutiny of highly restrictive legislation.

A better decision of the court of appeal would have been to say that there was a presumption that in an emergency the government uses the legislation that provides more legislative and judicial scrutiny – unless it has (ahem) a reasonable excuse not to do so.

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Why today’s deportations to Jamaica are nothing for the Home Secretary to be boastful about

2nd December 2020

There are many illiberal and misconceived things going on that a blog like this, which offers commentary and context on just one law and policy thing a day, cannot keep up.

But one especially brutal and unfortunate thing is to take place later today.

There is set to be a deportation flight from England to Jamaica, which will take place notwithstanding the ongoing covid pandemic and in the run-up to Christmas.

Those being deported are people with criminal convictions who have served their sentences but, because they are (in some cases only technically) foreign nationals, they are now to suffer this further sanction of the state.

The deportees include those with families and children in the United Kingdom – and so the Home Office are depriving children of parents and partners and other dependents of potential breadwinners.

The deportees include those who came to the United Kingdom as children and have no real connection with Jamaica.

One aspect of this deportation that is especially worrying and distasteful is the sheer glee that the current Home Secretary and it seems Home Office officials are taking in this exercise of sheer state power.

‘We make no apology…’ are the first four boastful words of the Home Office statement.

The Home Secretary herself is using this to make party political points.

 

There is no sense of ‘more in sorrow than…’ and that it is unfortunate but somehow must be done.

Instead, Home Office politicians and officials seem to be revelling in it, with the attitude of ‘look what we can do’.

They also appear to want as many legal interventions as possible, so that they can have the added bonus of pointing to meddlesome ‘activist’ lawyers.

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The impression the affair gives is not one of reluctant necessity but that this is a propaganda stunt – and one which comprises detaining people, marching them in handcuffs, using coercive power to send them to countries that are not their homes, and inflicting damage to innocent children and families.

Again, during an emergency pandemic and in the run-up to Christmas.

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The justification that the Home Office politicians and officials will give to themselves and others for this is that the criminals brought it upon themselves, and so the politicians and officials are absolved from any blame.

Yet this deflection is not convincing.

First, it is not justice to inflict double or disproportionate penalties – all because a crime has been committed, that does not mean ‘anything goes’ for the state in retaliation.

Second, this is an exercise of discretion by the Home Office – a deliberate choice, not an automatic process.

And so the Home Office is choosing to prioritise deportations above the very real effect of depriving families and partners – and remember, the families, dependents and partners have not committed any crime but they will suffer and be damaged anyway.

Third, it is notable that there seems to be no trumpeting by the home office of deportations to other commonwealth countries such as Canada, New Zealand and Australia – and this is perhaps for the obvious reason.

Fourth, the Home Office policy of the hostile environment and its treatment of Windrush families demonstrates that it is not well placed to make sensible decisions in respect of families from the Caribbean – and it would be wise for the Home Office to step back from such coercive moves as this deportation until it gets a wider policy grip.

And fifth, to the extent that those convicts who have been released from sentences remain ‘dangerous’ then the question must be why they have been released from prison.

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This deportation is an ugly spectacle, and it is one which nobody involved can take pride.

And the fact that there will be those who nod and clap and cheer at this brutal exercise of sheer state power tells us more about our society than anything about the families that are about to be forcibly broken up, so that the Home Secretary can tweet her party political ‘owns’.

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Why did the Trump campaign not allege fraud in their post-election court cases?

29th November 2020

Since the presidential election earlier this month the losing candidate, the outgoing President Donald Trump, has repeatedly and loudly alleged fraud.

He has asserted that the lawyers of his campaign can or will show this fraud.

In Trump’s own words: “fraud and illegality ARE a big part of the case”.

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But inside the court rooms, the lawyers for his campaign have not been alleging fraud.

Indeed, his attorneys have expressly said before judges that they are not alleging fraud.

This was noted by the federal appeals court in its judgment last week:

‘The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign “doesn’t plead fraud. . . . [T]his is not a fraud case.”’

(My post on that judgment is here.)

There is therefore a mismatch – the ‘client’ is saying that fraud is “a big part of the case” and the attorneys are explicitly saying in court that fraud is not part of the case at all.

What can explain this contradiction?

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There are two explanations, closely connected.

The first explanation, which is not sufficient by itself, should be the more important one.

This explanation is that there is no actual evidence of fraud – or no evidence that there is more than a trivial number of cases that would not be enough to ‘tip’ any of the results in any of the States.

You would think that the lack of actual evidence would be all that should be required to prevent a lawyer pleading fraud on their client’s behalf.

You would be wrong.

The lack of evidence would explain why any legal claim requiring that evidence would ultimately fail.

And the lack of evidence should mean that a lawyer would not make a claim based on no evidence.

But the lack of evidence does not, by itself, explain what it has not been alleged.

Given their client’s raging belief there was fraud, something else – other than the lack of actual evidence – is needed to explain why the Trump campaign’s lawyers did not allege fraud in the courtroom.

And so we come to the second explanation.

In the United States – as in England – it is a strict rule of court that a lawyer cannot allege fraud in a civil matter without particular evidence.

For confirmation of this I can thank two American lawyers on Twitter.

 

Even Rudolph Giuliani – the former New York mayor who reportedly told Trump that the legal cases would succeed – would not break this rule.

Breaking such a rule would have severe if not career-ending consequences for any attorney, and although attorneys may do anything for Trump, they would not do this.

The refusal to break this rule also seems to me to be the best explanation for why some of Trump’s attorneys quit on the eve of a hearing – my reasoning on this is set out at this thread.

https://twitter.com/davidallengreen/status/1328614443941589000

(There is a detailed account of the extraordinary last few days of the Trump campaign’s legal and litigation mayhem at the Washington Post.) 

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Lawyers – often fairly – are the subject of public criticism and media hostility.

Many people will freely deride and insult lawyers (though they also usually ask you for legal advice when they themselves have a problem).

Yet for this negative public image, even lawyers have their limits.

But for the rules of court, it may well be that Trump’s lawyers would have alleged fraud in court, even without adequate evidence, and have just left it to the court to sort out.

That would have been unfortunate, but that did not happen.

And this was because the rules of court turned out to be stronger even than the emphatic instructions of a sitting president.

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The failed appeal of Trump over Pennsylvania – and the relationship between politics and law

28th November 2020

The Trump campaign has lost its appeal from the Pennsylvania court to the federal appeals court.

(My post on Giuliani’s bad day in court at the court below is here, and my post on the judgment of the court below is here.)

The judgment, which was published overnight, is here.

You should take the time to read the decision: it is clear, accessible, and well structured.

It not only decides the case on the narrow ground of the appeal but also on other possible grounds.

On each point, the law and the (lack of) evidence are set out so as to make the judgment not only persuasive but compelling.

There are even quotable general statements which put the Trump campaign right back in its (ballot) box:

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law.”

“Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold.”

And so on.

It is a judgment to enjoy and indeed to savour.

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But for many the remarkable thing is that the judge who wrote the decision is a Trump appointee.

Surely, the thought goes, this is in need of explanation.

The reasoning judgment itself shows a federal appeals judge who takes States’ rights seriously and is anxious about federal overreach – and these qualities are not unusual for a conservative judge.

These is the very jurisprudential approach that the Republicans are seeking to promote with their appointments to the federal bench.

The key fact here is that taking such principles seriously meant that a judge (and a court) went against Trump

(In contrast, a conservative judge emphatically wanting to extend the reach of federal power would have been a more remarkable and unusual thing.)

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The judgment is not extraordinary in another sense.

The political inclination of a judge can only take her or him so far in defiance of the law and the facts.

If there is no law and no facts, only the most partisan of judges can, to invoke a phrase, ‘transmute lead into gold’.

Yes, many do have a sinking feeling that there are justices currently on the Supreme Court of the United States who would strain any case so as to come to a decision that would favour Donald Trump.

And the existence of that sinking feeling indicates a wider concern about the hyper-partisanship in the law and politics of the United States.

But such hyper-partisanship is, even in 2020, exceptional.

And this judgment is a refreshing and welcome reminder of this.

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Yet.

A cautious, attention-shunnng court could have given a judgment with the same effect but on technical and (frankly) unreadable grounds.

(Or, it would seem, the court did not even need to issue a judgment at all in this particular case, see this thread here.)

The court chose to hand down this very readable judgment instead.

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This judgment perhaps tells us two things about the relationship about law and politics in the United States.

First, that there is a limit to hyper-partisanship and the cult of Trump.

Second, there are federal appeal judges that take conservative jurisprudence seriously – even if they do not take (supposedly) conservative campaign law suits seriously.

And it is the latter that will be of lasting legal and political significance.

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Jeremy Corbyn and the odd-looking application for pre-action disclosure

27th November 2020

In the Guardian there is a report about a rather odd application by former Labour party leader Jeremy Corbyn to the High Court.

The relevant parts of the report, by the respected political correspondent Jessica Elgot, are:

‘Jeremy Corbyn is to start a formal legal claim against the Labour party for suspending the whip, in a case which allies of the former Labour leader say is intended to prove there was a deal with Keir Starmer’s office to readmit him to the party.

[…]

Corbyn’s lawyers lodged a pre-action disclosure application to the high court on Thursday night. “All of this will be in the public domain soon,” one source involved in the discussions said.

[…]

It is understood Corbyn’s legal team are attempting to put in the public domain evidence of what the former Labour leader will claim was a deal…

[…].’

Taking these passages together, it would appear:

(a) there is not yet a legal claim by Corbyn but a legal claim is envisaged between Corbyn and the Labour Party;

(b) a purpose of the legal claim is ‘to prove there was a deal’;

(c) there has been a request by Corbyn to the Labour Party for disclosure of documents which has been refused (as you usually need to directly request disclosure first before you resort to making a court application);

(d) an application has been made to the High Court for ‘pre-action disclosure’; and

(e) the purpose of that disclosure is to place documents into the public domain.

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For the following reasons the reported application does not make sense.

And the third reason makes the reported application seem rather odd indeed.

(Here it should be noted that the disclosure of the letter or its content to a political correspondent may have been done either by the Corbyn team or by the Labour Party, who would have been party to the correspondence and, as I set out below, we may not have all the relevant facts.)

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First, it is not obvious from the news report what the potential legal claim is by Corbyn against the Labour Party. 

To bring a legal claim requires Corbyn to have a ’cause of action’ – for example, for breach of contract or something else.

With no cause of action, there can be no possible proceedings, and with no possible proceedings there cannot be an an application for pre-action disclosure.

No possible action, no pre-action.

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Second, it is also not obvious how suspension (and restoration) of a parliamentary whip can be an issue for judicial determination – and on the face of it, such a claim would mean a court being asked to impinge on a parliamentary matter.

It is especially difficult to imagine how there could be a judicial remedy, for example a court order, that would oblige the Leader of the Opposition to restore the whip to a Member of Parliament – and what the sanction would be if the Leader of the Opposition refused?

Further or alternatively, what would be the possible remedy in damages?

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In respect of both the two reasons above, the relevant part of the Civil Procedure Rules (the relevant rules of the court) for pre-action protocol provides that disclosure must (i) dispose fairly of anticipated legal proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

But if there is no viable or real cause of action or judicial remedy then there cannot be proceedings to be disposed of or be resolved, or any costs to be saved.

A request for pre-action disclosure is not a legal end in and of itself, and so if there is no underlying claim or feasible remedy, then it is difficult to see how a court can grant such an order.

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And now we come to the third reason why the news report is odd.

The pre-action disclosure of documents does not by itself place the documents in the public domain.

Here, the rule (CPR 31.22(1)) provides that:

‘A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where – (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.’

And so the stated purpose of the application, according to the news report, is not permitted under the relevant rules of court.

Perhaps those who briefed the political correspondent did not know this, but there cannot be an application for pre-action disclosure where the purpose is to place documents into the public domain.

That would be an abuse of process, even if the application was otherwise sound.

If this is indeed the reason for the application then this application has been made for a wrongful purpose.

*

We have few reported facts on this claim, and so the above commentary is only provisional: further information could make it easier to understand the nature and purpose of the application.

But we can only go on the facts which Corbyn or the Labour Party (or those briefing on their behalf) place into the public domain themselves.

If those facts are insufficient for a proper understanding of the court application then that is hardly the fault of any reporter or commentator.

But on the the basis of the facts which Corbyn (and his team) or the Labour Party have chosen to make public, this application is odd and it does not add up.

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Pardons should be how mercy complements justice – but what happens when pardons undermine justice?

26th November 2020

There is a distinction – no doubt one of the oldest distinctions in the history of human societies – between justice and mercy.

The model is as follows:

– justice is (in part) about the appropriate application of general rules to particular cases;

– the application of justice in a particular case may result in an onerous sanction against an individual;

– there may be special circumstances where this onerous sanction should not be imposed on that. individual, even though this is what justice provides;

– and so an exercise of mercy will release that person from that sanction.

As such, mercy is a complement to justice, not a replacement for it.

A person may have done wrong, but they need not suffer for it.

The sin is still hated, but there is love for the sinner.

This, at least, is the model.

*

The usual and best known means of exercising mercy is by way of a pardon.

The sovereign – or other head of the executive – makes a decree that in a particular case an individual should not suffer a punishment for their crime.

In the United Kingdom, the power to grant pardons is part of the royal prerogative (and is exercised rarely), and in the United States there is the constitutional power of the President to pardon in respect of federal crimes (and is exercised quite a lot).

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Pardons are curious things.

Let’s look at the word: to pardon someone is to forgive them and to receive a pardon means that you have been forgiven – and so to say ‘I beg your pardon’ is literally to ask for forgiveness.

(Only by usage and habit has it come to mean ‘say again’ – which is in effect an abbreviation of ‘I beg your pardon but can you please repeat that’.)

When applied to legal matters, a pardon is about forgiveness.

It is (or should be) about the sentence, not the offence.

As such it is (or should be) about mercy rather than justice.

And so here we come to a conceptual issue about pardons.

A pardon presupposes guilt.

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A pardon means (or should mean) that it is accepted or admitted that an offence has been committed – else there would not be a thing to forgive.

A pardon does not (or should not) expunge the offence.

This is why it possible for a convict to refuse a pardon (or to refuse to plead the pardon as a bar to any proceedings), if it is not accepted an offence has actually been committed.

To accept a pardon is to mean (or should mean) that the person accepts or admits that they committed an offence and that they accept official forgiveness. 

And so to offer a pardon is to, implicitly, accept that the conviction is sound but that the punishment should be forgiven. 

So should there be pardons for convictions when the law itself is wrong or unjust?

Would it not be conceptually neater for the convictions themselves to be expunged, rather than merely having the sentences forgiven?

(In 2013, I wrote about this at the New Statesman in respect of the posthumous pardon for Alan Turing.)

And there is also, of course, a more obvious problem with posthumous pardons: they are practically meaningless, as a dead person cannot be relieved of the sanction.

Posthumous pardons are mere gestures with no legal or practical effect, other than to make people still alive feel better.

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Pardons are topical because of the pardon granted by President Trump to Michael Flynn (the text of which can be read here).

But only those with short political memories will consider it exceptional that a President of the United States uses the power of pardon in a wrongful or controversial way.

Wrongful, controversial presidential pardons did not start with President Trump.

For example, on his last day of office in 2001, President Clinton granted 140 pardons, some of which seemed rather questionable.

And in 1974 President Ford pardoned President Nixon even before any criminal proceedings had been commenced, and without Nixon admitting any criminal offence.

The Nixon pardon was an odd thing from a legal perspective – you can read the text here.

The key text was that the pardon was ‘for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974’.

The ‘may have committed’ is remarkable: it in effect created retrospective immunity.

Nixon was, in effect, being given immunity from any prosecution for any federal offence for his presidency.

No specific offences were mentioned.

No guilt was admitted.

The Nixon pardon is an extraordinary legal document.

And it can barely be called a ‘pardon’ in any meaningful way.

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The classic model of pardons as only going to sentence, and not to criminal culpability is therefore an ideal which has sometimes not been matched in practice.

And so it is not unexpected that Trump seems to see pardons as not about forgiveness of offences but as, in effect, grants of criminal immunity.

Trump seems to want to use pardons as devices to place specific people above or beyond the law.

There is even the prospect that he will seek to (purport to) grant himself a pardon and in doing so, as with Nixon, he may not admit any criminal guilt.

(But there are limits to pardons: in the United States, a presidential pardon only protects against federal prosecutions, and so any State prosecutions would be unaffected.)

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The issue of the use and abuse of pardons is no doubt as old as the distinction between justice and mercy itself.

One problem will always be that there is a point where showing mercy to any significant degree defeats the purpose of law itself.

As such mercy ceases to complement justice but subverts justice instead.

Mercy will then not alleviate the excesses of the rule of law, but instead may undermine the rule of law.

And we may about to see this in action with Trump in the United States.

What Trump now does with his power to pardon before 20 January 2020 may exceed in scale what was done with the Clinton last-day pardons, and surpass in jurisdictional reach what was done with the pardon for Nixon.

Trump may be about to use the power of mercy to assault justice itself.

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Biden, Brexit, and the politics of process

24th November 2020

Process is the friend of President-elect Joseph Biden.

As long as the States duly certify their votes, and the Electoral College then duly votes in accordance with those certifications, and Congress then duly accepts the Electoral College result, there is little Biden really needs to do so as to become President of the United States on 20 January 2021.

Unless something extraordinary happens, Donald Trump will cease to become President on 20th January 2021 by automatic operation of the Constitution of the United States.

Process is his friend.

There is, of course, still litigation and political pressure from the Trump campaign.

(And it is testament to the lack of confidence many have in the integrity and independence of the currently composed Supreme Court of the United States that many can easily imagine at least two or three of the Justices voting in favour of the side of Trump in any election case before that court, regardless of the merits of that case.)

None of the current litigation, however, really adds up.

Indeed, the lawyering in some of the cases brought by the Trump campaign has been unimpressive.

And even if each of these cases are taken at their highest, it is not conceivable that it would ‘flip’ the result in a single State, let alone the entire presidential election.

Understandably, many are still anxious as to whether Trump will really go, and are concerned that some grand litigation trick may keep him in the White House after 20 January 2021.

After all, many strange things have happened in the United States (and the United Kingdom) since 2016.

But here it looks like process will prevail.

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Process is the enemy – the negation – of the disruptive approach to politics of Trump and Bannon in the United States and of Johnson and Cummings in the United Kingdom.

That approach to politics prioritises mobilising a political base so as to enable those in political power to govern without checks and balances.

And as such, both politics and policy becomes a sequence of gestures, expediences and contrivances.

Process is an alien concept to this approach of constant disruption.

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Take, for example, Brexit.

In approaching the negotiations of the exit agreement and then of the subsequent relationship on trade, the European Union has been dull, methodical, and relentless.

The United Kingdom, on the other hand, has constantly sought to rely on bluster and bullying, but at each stage has been at a disadvantage.

Johnson and others prioritised playing to their political and media constituencies over engaging properly in a structured negotiation process.

They have received claps and cheers, but those claps and cheers have quickly faded and are becoming less loud and enthusiastic each time.

Process has been the friend of the European Union over Brexit, just as process is now the friend of Biden in the United States.

This is not to say that process was always going to favour the European Union (even though the Article 50 procedure is rigged against the departing Member State).

The United Kingdom can also be rather good at the politics of process, when its political leaders take process seriously.

But throughout Brexit, a distrust of ‘Remoaner’ expertise and experience meant that United Kingdom did not have the benefit of those who were the match to the procedural politicians of the European Union.

Think of Ivan Rogers, among many others.

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The populist nationalist authoritarian politics of Trump and Johnson, and of Bannon and Cummings, has shaken many liberals and constitutionalists.

Disapproval and tuttery has no effect; conventions are disregarded; inconvenient laws are circumvented and even sometimes broken.

It is akin to a wild animal loose in a village.

The unpredictability and noise and damage is unwelcome.

But, just as there are advantages for those who promote this destabilising approach to politics, there are also weaknesses.

And one of those weaknesses is that it cannot easily deal with process, if that process survives the attempts to disrupt it.

But.

The scary thing is when populist nationalist authoritarians master the political arts of process, rather than the lesser political arts of disruption.

We are (relatively) fortunate: Trump will soon no longer be in office; Bannon and Cummings are both no longer in central political positions; and Johnson now seems politically weak.

The next wave of populist nationalist authoritarianism in the United States and the United Kingdom may be harder to dislodge.

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