Category: Courts and Politics

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.

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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.

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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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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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