Category: Courts and Politics

The Pennsylvanian court dismisses the Trump law suit ‘with prejudice’

22nd November 2020

The federal court in Pennsylvania has dismissed the claim by the lawyers for President Donald Trump ‘with prejudice’ (a delightful legal phrase). 

The judgment is well worth reading and there are certain passages that will stand out. In particular these two paragraphs are striking:

“Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution. “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.” “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”

“Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief.”

And this footnote is a thing of utter beauty:

“Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.”

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Of course, the Trump campaign has little serious legal strategy in all this.

The intention of the Trump campaign appears to be two-fold.

First, to get a case somehow someway before the Supreme Court where, presumably with the magic of partisanship, the conservative justices will fashion a win for Trump.

And second, to make as much political and media noise as possible so as to maintain the fiction that Trump was robbed of an election result.

I am not an American lawyer, but it is hard to see how the Trump team can get much further with their legal claims.

Unlike Bush v Gore there is no serious legal issue outstanding in respect of an ongoing count/recount.

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Yet as a consequence of the current tactics of the Trump campaign, there will be a lingering and destabilising sense among Trump supporters of illegitimacy over the presidential election.

No court judgment can address, still less cure, such a political reaction.

Trump’s hyper-partisan supporters will no doubt dismiss the judgment, with their own prejudice (in the non-legal sense).

That is unfortunate, and it will be a political problem that will not go away easily.

But any court can only do so much.

And here it is heartening that the court has done what it can.

The legal function has been performed, and what is left is now politics.

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One final observation can be fairly made on all this.

For many years conservatives have complained of ‘activist’ and ‘interventionist’ judges and they have (rhetorically, at least) sided with ‘the people’ against the courts.

And now those same conservatives are demanding for active judicial intervention against the people, to the extent that thousands if not millions would be suddenly disenfranchised by court orders.

This is a paradox, if not a contradiction.

Do conservatives want an ‘activist’ and ‘interventionist’ judiciary or not?

They should make their minds up.

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A bad day in court for Rudolph Giuliani – the possible significance of his inability to answer one important question from the judge

18th November 2020

Yesterday Rudolph Giuliani appeared in a Pennsylvania court, on behalf of the Trump campaign, seeking to somehow challenge the presidential election result for that state.

According to the superb live-tweeting of that hearing by various American lawyers and journalists, it would appear that day in court did not go well for Giuliani.

The law suit itself has not yet been dismissed – no doubt because any sensible judge will want in such a case to have robust reasoning in their judgment, showing they have both addressed every arguable legal point and weighed each piece of supposed evidence.

(This is in turn because an inevitable (attempt to) appeal is part of the process.)

But what I want to focus on with this post is one painful – indeed excruciating – reported exchange between the judge and Giuliani.

(Click into those tweets to see them as part of exemplary threads of legal reportage.)

Here Giuliani was plainly bluffing.

He had no idea what level of scrutiny should be applied, and so he tried to wing it.

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It is a predicament that any lawyer with courtroom experience will recognise.

In England, for example, many lawyers will have their own story about when they are instructed to go to court to apply for the ‘usual order’ only to be asked by the judge as to what order that might be and the hapless lawyer did not know.

It is an experience that should only happen once to a lawyer, if it happens at at all.

This is because the basic requirements of any court room advocacy are to know (a) exactly what order or other remedy you are asking for and (b) the applicable test to be applied by the court in granting that order or other remedy.

If you know nothing else, that is what you should always know before you open your mouth as an advocate.

In this case, Giuliani – an experienced former prosecutor, and (it would seem) the personal lawyer of the President of the United States – did not actually know the applicable test to be applied by the court in considering what he and his client were asking for.

In this particular case – what was the level of scrutiny to be applied by the court?

His inability to answer this is the sort of awkward pratfall that will cause any litigator or advocate to wince.

But what explains this inability?

Especially that, for all his many apparent political faults, Giuliani is an experienced lawyer and not a stupid person.

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In the circumstances, there seems two plausible explanations.

The first is that there seems to be no sincere interest by Giuliani and other Trump lawyers in the litigation process as an end in itself.

The only sense the litigation makes is that it is for a non-litigation goal, to cause delay and disruption and to discredit the electoral process.

If so then filing a suit – any suit – will do and it would not matter much what the applicable law would be.

The second, which is related to the first, is that Giuliani came into the case very late, after a number of previous lawyers quit.

He simply did not have enough time to prepare or to be adequately briefed.

And why did the previous lawyers quit?

That is an interesting question, the answer to which we may never get a because of client confidentiality and attorney-client privilege.

But the most plausible answer – as I set out in this Twitter thread – is that the previous lawyers realised that they could not put forward their client’s case in a way that was consistent with their duties to the court.

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

As I also set out in that thread, all the other possible explanations do not seem to add up to what actually happened.

If this is the case, then only a lawyer unwilling or unable to see the problems with making a case for the requested remedy would be able to proceed.

And Giuliani, unburdened by knowing anything about the substance of the case that needed to be argued, would have been such a lawyer.

So, if this is correct, this is why yesterday Giuliani had such a bad day in court.

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Making sense of the reported proposals of the government for “overhauling” the Supreme Court of the United Kingdom

16th November 2020

You would think that the most incompetent government in living memory would realise it needs the benefits of checks and balances, and of accountability and scrutiny.

You would, it would seem, be wrong.

The Sunday Telegraph yesterday had this piece, entitled “Supreme Court to be overhauled to curtail its constitutional powers”.

A tweet promoting the article said: “Telegraph reports that the government plans to bring the UK Supreme Court to heel: change the name, reduce number of permanent judges, bring in specialists – rolling back Blair era reforms.”

The news report itself is quite light.

There is no source on the record.

There is no concrete internal government document, just “plans” and “proposals”.

The only quote off the record is attributed to a “Tory source”:

“There’s a feeling that Blair and Falconer made a complete dog’s dinner of constitutional reform and that we’re feeling the negative effects of it today. 

“Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don’t want to be.”

The second sentence of the quote is interesting, as it frames the proposals in terms of the interests of the judges.

Given this framing, it should be noted that the article mentions later that the Lord Chancellor and Justice Secretary Robert Buckland “is said to see the reforms as part of his legal role to defend the independence of the judiciary, amid concerns about the perception of the Supreme Court”.

The impression is thereby given that the “Tory source” and the person describing the views of Buckland are the same person, possibly (given the conventions of political journalism) Buckland himself or his special advisers.

The rest of the piece is mainly padding and contains no interesting detail.

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So what should one make of it?

One feature is that the headline and the promotion of the article do not entirely accord with the substance of the piece, such as it is.

The import of the quoted “Tory source” and the description of Buckland’s view may perhaps be better characterised as “independence of the judiciary to be defended”.

If so, then the political significance of the report is not so much that an(other) attack is about to be mounted on the independence of the judiciary, but that this may be a preemptive effort at a defence.

Of course, the “proposals” and “plans” as reported are daft.

The Supreme Court, with its outstanding website and televised hearings, is an absolute boon for the public understanding of law.

For each appeal there are case summaries and other materials freely made available.

Instead of being hidden down some parliamentary corridor (as was the the case with the Judicial Committee of the House of Lords), the work of the Supreme Court is an exercise in transparency and accountability.

And in respect of the defeats of which the government is complaining, much of the the blame is at the feet of ministers themselves.

In particular, the prorogation case was lost by the government because not a single minister or official would put their name to a witness statement, on pain of perjury, setting out the true reasons for why parliament was closed down.

That is hardly the fault of any Supreme Court judge, or indeed of any activist lawyer.

And what would the new name of the court be?

(Also, for what it is worth, there has long been a ‘supreme court’ in England and Wales before the name was appropriated by the new highest court – it was the name by which all the senior courts went before the reform – and this caused no problems at all.)

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 Maybe one should not take a minor example of performative politics in a SUnday newspaper too seriously.

The last thing this utter shambles of a government – facing a pandemic and a Brexit when it would not be able to deal properly with either, let alone both –  is up to doing is significant constitutional reform.

But the noise is still important.

And the sound one can hear is that the government as a whole still has an illiberal temper and this indicates that, despite the reported departure of Dominic Cummings, the government still sees it as a priority that it should dismantle any parts of the state that can actually hold it to account.

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The government is looking at judicial review

10th August 2020

What should we make of the government’s announcement of “independent panel to look at judicial review”?

By way of background: judicial review is the general name for how the courts in England and Wales consider the lawfulness of government decision-making and rule-making.

If a government decision or rule has not been made within the legal powers available, or has otherwise been made improperly, the High Court in London can quash that decision or rule.

Governments do not like being told ‘no’ by courts.

 

The announcement and the Terms of Reference

The announcement is a small item on the government website, which in turn links to a one-and-a-half page pdf with the grand title of Terms of Reference for the Independent Review Of Administrative Law.

This title and the Notes helpfully take up the majority of the one-and-a-half pages.

The substance of the Terms of Reference (such as it is) is in four numbered paragraphs, and these four paragraphs have been put in bold – perhaps to make them look more impressive.

 

Priorities

A first thought about this review is that you would think that the Ministry of Justice would have more important things to do.

The ongoing coronavirus emergency means the criminal justice system is beset by backlogs and delays, and the prison system is more dangerous than ever.

But at this time senior ministers and officials at the Ministry of Justice wish to devote their scarce managerial time and resources to this matter.

 

Lack of substance

A second thought is that the announcement and the Terms of Reference are, well, rather flimsy.

The four numbered paragraphs, even when supplemented by the Notes and said in that slow ‘voiceover man’ way as all passages in bold should be, are as general as the author(s) of the document could get away with, short of saying nothing of substance at all.

Even paragraph 4, which is perhaps the most important, is no more than a brief list of discussion points.

The document has an improvised and rushed air to it – the Notes in particular seem to be a late attempt to add some substance.

All this said, there is stuff here which is – or may become – concerning.

 

Paragraph one – codification

The first paragraph is, as a lawyer would say in court, an old chestnut: should judicial review be placed on a statutory footing?

This is an examination essay question of the ages.

And there is no quick or neat way this review, or anyone else, can place judicial review on an entirely statutory basis even if it wanted to do so.

This is not to say there are not already detailed statutory rules.

Judicial review is already heavily regulated by legislation: by the Senior Courts Act and by the (statutory) Civil Procedure Rules.

But the ultimate basis of judicial review is not contained within any Act of Parliament, as it derives from the very jurisdiction of the court itself – and some would say that the supervisory jurisdiction of the High Court is logically prior to, and distinct from, the legislative supremacy of parliament.

To somehow convert this source of law into a statute would no doubt require complex and sophisticated legislation, if it can be done at all – and, unless there is a particular reason to do so, there seems not a lot of point in doing so.

And, there is the ‘hole-in-my-bucket’ problem of how the courts would police compliance with any such new constitutional statute if its power is entirely to be derived from that statute.

Some things are perhaps better left as student essay questions.

 

Paragraphs 2 and 3 – justiciability 

Paragraphs 2 and 3 are impressive in that somebody has somehow managed to make two paragraphs out of one point.

That point is justiciability.

This is about what sort of issues are questions for the court as opposed to, say, Parliament, the government, or the electorate.

The problem here, as with paragraph 1, is circularity.

A question for the court is always a legal one – whether an action (or inaction) is legal or not.

And what sort of issues are legal ones?

The ones that are decided by a court.

If there is to be some statutory definition of what questions are justiciable, then all that may happen is that the legal battleground shifts to litigation about whether that new definition applies.

Courts, contrary to media representations, are already reluctant to the point of unwilling to decide political questions: for example, all the Miller litigation did was ensure that parliament decided certain issues rather than the executive.

Those who sought to use the courts to stop Brexit not only failed but did not even come close to getting any judicial reversal of that political decision.

What we do often get is media and political misinformation about what the courts are doing and not doing.

And the cure for such misinformation about the law is not to change the law.

 

Paragraph 4 – collateral attacks

Paragraph 4 is where this Review may make some difference.

The ultimate basis of judicial review cannot be easily changed, and nor can the need for a court to decide whether a question is a legal one or not.

But – like a participant in ‘Wacky Races’ throwing devices out a car window to snare the car behind – the government can promote rules and procedures that can make access to the courts more difficult.

Here, however, the government probably does not need an independent review to do this: this has pretty much been government policy since the Blair years, with the worst most recent attack on the easy availability of judicial review coming under the Coalition government (and promoted by a Liberal Democrat minister).

You will see unlike paragraphs 2 and 3, where one point is stretched into two, that paragraph 4 has six points – each one of which is a potential pressure point for limiting the flow of justice, just like the body has pressure points to limit the supply of blood or oxygen.

What the government here is seeking to do is reform the practice of judicial review so that it almost impossible to obtain it as a practical remedy.

 

Towards a report and beyond

This review has the whiff of ‘something must be done’ – the government and its advisors do not like judges saying ‘no’ and so something must be done to stop the judges saying ‘no’.

One way judges would be prevented from quashing decisions and rules is for those decisions and rules to made better in the first place.

Any decision or rule in respect of public policy can probably be made by the government through parliament, as long as government and parliament make the decision or rule properly.

The courts can only intervene when there is illegality.

The problem in this age of Brexit and coronavirus is that the government does not want to go through the proper law-making process – it wants to use wide powers, either in emergency or Brexit legislation – and to not have any parliamentary or other check on that power.

This is the executive power project.

Perhaps this review is a clever wheeze by some wise official to delay or deflect the attack on judicial review – by the time the panel reports, things may have ‘moved on’.

But this is probably wishful thinking.

The impulse of some now in and around government for executive power for its own sake will still be there.

And they will not rest until they have done as much as they can to remove any constitutional check or balance to their wish to have, in effect, government by decree.

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Law, history, slavery

15th June 2020

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

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

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

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

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

https://twitter.com/davidallengreen/status/1271696745836228608

The second is on the Zong case of 1783.

https://twitter.com/davidallengreen/status/1272069550746546176

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

https://twitter.com/davidallengreen/status/1272120573846589440

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

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

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

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

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

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

Lots and lots of records.

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

For those involved, it was mundane.

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

Great Britain’s very own banality of evil.

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

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

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

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

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

**

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Why we should be worried about the use and abuse of statutory instruments

12th June 2020

In a Financial Times video yesterday I set out some particular concerns about the Coronavirus quarantine regulations, and in earlier posts on this blog I have set out the problems with earlier versions of the Coronavirus restrictions on movement.

This post takes a step back from particular regulations to set out briefly why we should be worried about the government’s use and abuse of statutory instruments.

The phrase “statutory instrument” is odd for someone who is neither an official nor a lawyer: instruments in everyday language are tangible things – musical or surgical instruments.

Statutory instruments are not really tangible things (though they can be printed): they are dull-looking and often dense formal documents.

And putting the word “statutory” in front means you also have the sort of legalistic term that for normal people is a prompt for glazing over and switching off.

Yet statutory instruments are – or can be – troubling things.

Why?

Three reasons: legal effect, lack of effective scrutiny, and governmental convenience. 

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First: legal effect.

As the word statutory tells you they are the law of the land, as much as any Act of Parliament.

In constitutional theory, a statutory instrument should be within the parameters of a parent Act of Parliament.

And again in constitutional theory, a statutory instrument can be challenged in court as outside the scope of that parent Act.

But in practice, the provisions of parent Acts can themselves be very wide and the prospect of any court challenge usually unrealistic.

In effect, if not in technical legal form, they are as much primary legislation as any Act.

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Second: lack of effective scrutiny.

Statutory instruments become the law of the land without any scrutiny (or any real scrutiny).

They are difficult to challenge in parliament and impossible to amend.

They either go through on the nod (the affirmative procedure) or without any nods at all (the negative procedure).

And the sheer number of them means that there is no alternative to this lack of real scrutiny.

The purpose of statutory instruments was historically for there to be a flexible way of legislating on technical issues (as envisaged in parent Acts of Parliament) or to place on a domestic legal basis laws agreed elsewhere (for example under the European Communities Act).

Now statutory instruments, other than a nominal and ceremonial moment in parliament, are effectively legislation by government departments.

Constitutional theory holds that that it is the legislature that legislates and the executive that executes, but the reality is that the executive legislates.

Statutory instruments are in effect executive orders by another name.

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Third: governmental convenience.

Once you have a thing that (a) has the same effect as an Act of Parliament and (b) has none of the inconveniences of actually passing an Act of Parliament, you will tend to get abuse.

The government will have every reason to try to use statutory instruments as much as possible and for as many different things.

And so the recent coronavirus regulations have created the widest criminal offences in modern legal history, potentially criminalising everyone the moment they walk out of their home.

They even purported to criminalise what goes on between consenting adults in their own homes.

These regulations were, at least on their face, significant interferences with fundamental rights.

But they were slipped out without formal announcement and had immediate legal effect.

And because they were under the Public Health Act, there was not even any parliamentary stage before they took effect, ceremonial or otherwise.

The fact that the regulations were as ludicrous as they were illiberal is a happy accident.

Their lack of practical enforceability should only be a relief to the constitutionally gullible. 

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We are so familiar with the comforting notions of the British constitution that we are often blind to what happens in practice.

What we now have is legislation, on an industrial scale, from the executive, sometimes casually interfering with fundamental rights.

The government – ministers and officials – are now in the habit of doing this.

And that is why we should be worried about the use and abuse of statutory instruments.

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Why the Attorney General should resign

5th June 2020

On 23 May 2020, the Attorney General for England and Wales tweeted the following tweet.

Note the Twitter account states in the bio that the tweeter is the Attorney General for England and Wales.

That tweet in turn quoted another tweet where a journalist set out a public statement from Number 10, the office of the Prime Minister of the United Kingdom.

The public statement set out a version of the events of the now infamous excursion of the Prime Minister’s adviser Dominic Cummings.

The statement ended, as you will see from the tweet: “Mr Cummings believes he behaved reasonably and legally”.

Note the very last word of the statement is “legally”.

And if there was any doubt, the journalist’s own tweet repeats it: “legally”.

The Attorney General had therefore tweeted that there had been a clarification that, among other things in the statement, Mr Cummings had behaved legally in respect of that excursion.

Of this there can be no serious doubt: it is the natural meaning of what she tweeted.

She may not have intended to do so, and she may not have even read the statement she was endorsing, but that is what she did.

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By way of context, the Attorney General was not the only government minister who tweeted that morning.

Other ministers tweeted about the same time with similar statements quoting the same journalist’s tweet containing the statement.

The impression that gave, of course, was this was a coordinated attempt by ministers to support Mr Cummings in what was then an emerging political scandal.

The problem is that the office of Attorney General is not just another government ministry.

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The office of Attorney General is special.

The Attorney General is the government’s senior legal adviser.

The Attorney General superintends the Crown Prosecution Service.

The Attorney General has a constitutional function as safeguarding the public interest in certain legal cases.

The Attorney General can intervene in private prosecutions and bring them to an end.

The Attorney General also happens to the “leader of the Bar”.

Although the office is held by a politician, the role is to be independent.

(For more on the historic office of Attorney General, click into and read this superb though detailed post by the late Sir Henry Brooke, the former appeals judge.)

One role for the Attorney General therefore is not to make public statements on particular cases, for either political or other reasons.

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Once the tweet was tweeted there was plainly a problem.

It was not the sort of endorsement an Attorney General should be publishing to the world.

Had there been a mistake?

The current Attorney General is new to the office, and although a barrister she is not a senior one.

So perhaps she did not realise what she was doing.

But as she sets out on her own website:

“In 2010, the Attorney General appointed me to the specialist Panel of Treasury Counsel, which meant that I represented Government Departments in Court.”

So even if she did not realise the import of what she was doing, she should have done so.

Nonetheless, the tweet was evidently an error and she could have swiftly apologised, acknowledging that it was a tweet that should not have been sent.

Had she apologised and retracted the statement, few would have pressed the issue further.

But she chose not to apologise.

She chose to do something else instead.

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The shadow Attorney General, rightly, set out his concerns about the matter in a letter.

The Attorney General sent a letter in reply, and is set out in this tweet.

The wording of her letter is strained – and one gets the sense of someone at the Attorney General’s office working hard to word the indefensible.

But it was false of her to state that there was “no question of [her] having offered any public legal view”.

There was more than a “question” of her having done so: she had.

She had publicly endorsed a statement that had expressly described Mr Cummings’ conduct as legal.

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And if the false statement in the letter was not enough, she yesterday repeated the false statement on the floor of the House of Commons.

Please watch this video clip.

https://twitter.com/elliereeves/status/1268574169119285251

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So both in a formal letter to her shadow and in the House of Commons, the Attorney General has falsely maintained that she had not expressed a public legal view on the Cummings case.

This is even though this is directly contradicted by her own tweet.

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This is not just a technical or trivial problem, where the Attorney General erred with a daft tweet.

This goes to the confidence the public can have in the holder of that office having sufficient independence within government.

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There is even the suggestion that her involvement in this particular case went further than a misconceived tweet.

If this is true, then not only did the Attorney General publicly state her legal view on the merits of Mr Cummings’ conduct but also according to a source gave advice to cabinet on the case.

But even if that is not true, her refusal to apologise and retract her public statement endorsing Mr Cummings’ conduct as legal is a serious ground for concern.

And making false statements about whether she had made such a public statement is incompatible with her office.

For these reasons, the appropriate step would be for the current Attorney General to now resign.

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Ultra Virus – the constitutionality and legality of the Coronavirus Regulations

8th April 2020

The Coronavirus Regulations are the law of the land, and as they are the law of the land they must be obeyed, and the reason we have emergency laws is because of emergencies, and this is an emergency.

That sentence is there because there is a sense among some legal commentators that they cannot either comment critically on these regulations or even comment at all, lest some idiot takes the criticism to mean that the laws should not be obeyed.

In my view, however, such quietism and self-censorship may be more irresponsible than any constructive criticism.

At a time of emergency, the scrutiny of emergency laws is vital.

The law still needs to be obeyed when it is in force, even if there are processes for challenging it.

And so it is on this basis that this post sets out the constitutional and legal issues of the Regulations, further to previous posts on this blog (for example here and here).

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One way of critically approaching the Regulations is to look carefully at whether they accord with the parent legislation.

This is because the Regulations are secondary legislation – in this case, a statutory instrument – that only have legal effect (“vires”) to the extent that they are within the scope of the primary legislation, in this case, the Public Health Act 1984.

(Note that although the Act itself was passed in 1984, it has been heavily amended since, and so the relevant provisions for this discussion do not necessarily date back to 1984.)

At the august and influential UK Constitutional Law Blog, the outstanding legal scholar Jeff King has in two posts (here and here) setting out why he sees the Regulations as within the scope of the law.

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Others looking at the detail of the parent legislation take a different view, and they aver that the Regulations may be outside the scope of the parent Act (see here and here).

And Lord Anderson QC, the former independent reviewer of terrorism legislation and an authority on emergency legislation, has also set out his doubts, and concludes (with elegant and careful wording):

“In summary, the impact on personal liberty in Regulation 6 goes right up to the limit of what is permitted under its parent statute, and arguably beyond. An ultra vires challenge would attract strong arguments in both directions. Ultimately, however, a court which is minded to uphold it as valid has, as it seems to me, a plausible legal argument for doing so.”

In other words: there are plausible grounds that a court may quash parts of the Regulations.

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As the head of this post sets out, the Regulations are the law of the land and must be obeyed.

The Regulations (or any part of them) would, however, cease to be the law of the land if a court of competent jurisdiction quashed the Regulations (or any part of them).

The possibility of this does not mean that, in the meantime, the laws cease to have effect – it means that there is a possibility that a court may one day take a different view.

And this is the case with any secondary legislation (and with any government action or inaction).

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So if there is scope for questioning the legality of the Regulations, what can be usefully said about the constitutionality of the Regulations?

In a sense this is a difficult area, as there is no codified constitution in the United Kingdom and to say something is “unconstitutional” is often not to say anything meaningful at all.

But there is a worrying constitutional feature about the Regulations which the approaches set out above, which focus on statutory construction and interpretation, to an extent overlook.

The Regulations have not had any parliamentary scrutiny or sanction.

They were given effect after Parliament was in recess.

The Regulations restrict or remove fundamental rights, including freedom of movement and freedom of association.

The Regulations create wide-ranging criminal offences.

In the two Miller cases, the Supreme Court ruled against two attempts by the United Kingdom government to do drastic things by ministerial fiat – to take the United Kingdom out of the European Union and to close down parliament for five weeks without any reasonable basis.

In both cases the Supreme Court, rightly, decided that something that fundamental should be decided and endorsed by parliament.

In the case of the Regulations, the government could have included the provisions in the Coronavirus Act, but chose not to do so.

And the government could (and, in my view, should) have used the Civil Contingencies Act, which has several built in safeguards and a supervision regime, but again chose not to do so.

Instead, the government chose to use the Public Health Act which even commentators who say that the Regulations are lawful accept is a bit of a shoehorn.

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My view is that they very decision to use the Public Health Act, rather than primary legislation (which parliament would vote on) or the Civil Contingencies Act (which gives parliament a defined supervisory role) is a decision which can be questioned both in terms of its constitutional propriety and indeed its accordance with public law principles.

The Regulations are to be reviewed shortly, and this blog yesterday put forward some modest proposals for taking the illiberal edge off from the provisions.

But there is a more fundamental question of ensuring that legislation that removes or restricts fundamental freedoms has parliamentary (and thereby democratic) approval.

Law not only should have authority – but ultimately also legitimacy.

The Regulations convert almost all normal social behaviour into anti-social behaviour, punishable as criminal offences.

Such upheavals should have democratic sanction, just as any other upheaval like leaving the European Union or closing down parliament.

And it is not “irresponsible” to point this out – indeed, it seems to me irresponsible to pretend this is not of any urgent concern.

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What is the Bindmans challenge to the Coronavirus government guidance about?

3rd April 2020

The law firm Bindmans are bringing a challenge to the government guidance that a person can only leave where they live once a day for exercise and that exercise should be local.

If just reading of such a challenge means you have already formed A Strong Opinion that you now want to type, then this really is not the blogpost for you: other websites are available, and your comment below the line here will not be published.

This post instead sets out the problem and the applicable law, so that you can form a view based on the available information and the applicable law.

As a preliminary point, please note that this is a legal challenge to government guidance – and not to the Coronavirus Regulations themselves.

Formal government guidance – in effect, policy – can be challenged (in general terms) at the High Court if it is contrary to the law, or is unfair, or is disproportionate in its impact.

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According to Bindmans, the relevant facts are as follows:

“[There are] two families with children with autistic spectrum disorder whose conditions necessitate them leaving the house more than once day for their own well-being.

“One child in particular is deliberately taken to a quiet location that is not local to them, because of their particular needs and where there is a far more limited risk of infection than if he were to remain in an urban environment.”

Bindmans then explain the problem:

“The requirement that everyone is now only able to leave once a day (and can only travel locally) makes it very difficult for these families to be able to manage their children’s high needs and promote their well-being, during a time when lots of disabled people are simultaneously struggling with reduced support from external agencies.  

“Keeping them in urban environments also increases the risk of infection of them and others given they are unable to understand social distancing rules.”

Any sensible person reading this would accept that this is a practical problem and, in such circumstances, the parents should be able to take their child to a quiet location.

There would be no direct public health problems in doing so, and the families would comply with the guidance on social distancing – indeed the child is less likely to infect or be infected.

But a sensible view is one thing, what is the legal case?

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Again, the legal challenge is to the guidance not the Regulations.

The guidance is being challenged because, if interpreted and applied by the police to the Regulations, it could lead to the parents facing criminal liability under the Coronavirus Regulations.

What the parents seek to do is, on the face of it, permitted under the letter of the Coronavirus Regulations – but if the police construe the Regulations in accordance with the government guidance then fixed penalty notices, prosecutions, fines, criminal convictions and criminal records could follow.

The solicitors aver that the guidance disproportionately affect fundamental rights :

“The social distancing measures being put in place by Government are clearly important, but they cannot be used to disproportionately interfere in the rights of those with protected characteristics, particularly those with mental illness, autism or similar conditions that necessitate leaving the house more than once per day. 

“Such rights can clearly co-exist with the health measures being put in place and Parliament clearly did not think it necessary to impose the once per day restriction arbitrarily introduced by the Government. 

“It is essential the Government needs to rethink this restrictive policy and allow appropriate flexibility where it is necessary and justified.”

The main legal basis of the challenge seems to be that the guidance contradicts the protections of the Equality Act 2010 (as well as under the Human Rights Act 1998).

Relevant here is that the mental health is a protected characteristic under the Equality Act.

A person protected characteristic has legal protection against direct and indirect discrimination (and the discrimination here would be indirect).

Any such discrimination then is subject to the four stage test under section 19(2) of the Equality Act.  

In particular, are those who are disabled (the term in the statute) placed at a  disadvantage?

There can be no doubt of this.

And so does the guidance go further than is necessary to protect the relevant public policy goal, that here would be the protection of public health in the current coronavirus emergency?

In my view, the guidance is disproportionate in two ways.

First, as long as the affected families comply with social distancing measures, then the public policy goal is unaffected.

And second, there does not need a complete change to the guidance to address this problem, just a further exception for those with relevant physical and mental health issues so they are able to take more exercise and to be travel further than their locality, when necessary.

Such a modified approach would still comply with the Coronavirus Regulations, and it would not affect the position of the greater number of people.

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The government is expected to respond today or tomorrow, and it may be that the government modifies its guidance to address these concerns.

But if the government does not shift its position then the next step would be a formal legal challenge.

The current emergency does not mean that the law of the land has been jettisoned – the EqualityAct and other laws are still in force – and there is certainly nothing wrong with the government being held to account by the courts at this time.

And if those protected by the Equality Act are facing practical discrimination that goes further than the goal of dealing with the current public health emergency, then it is right that their legal rights be protected and enforced.

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If you value this free-to-read and independent legal and policy commentary, including on the emergency coronavirus laws and on Brexit, you can support this blog and my Twitter account by becoming a Patreon subscriber.

You can subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

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