Category: Courts and Politics

Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

 9th February 2023

Oh dear old Thoburn, what shall be done with you?

Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?

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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.

Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.

But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.

Incredible, if true.

And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.

But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.

What will law students and pundits do?

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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.

This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.

But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.

How should the courts deal with this situation?

The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.

But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.

And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.

(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)

And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.

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But in 2002 the court was faced with another seemingly awkward situation.

It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.

On the merits of the case, the court found that this was not the position.

But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.

Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?

On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.

But.

As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.

And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.

If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.

His dictum was as follows (which I have broke out into one-sentence paragraphs):

We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.

The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

The special status of constitutional statutes follows the special status of constitutional rights.

Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.

It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.

The ECA is, by force of the common law, a constitutional statute.

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This was exhilarating, provocative stuff.

And it was utter flapdoodle.

There was no basis for positing such “constitutional statutes” – either then or now.

They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.

The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.

It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.

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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.

The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.

But the Supreme Court was unimpressed by the Thoburn point.

The court described the submission (again broken up into one-sentence paragraphs):

On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.

In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.

At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:

“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.

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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.

The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

“Academic.”

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.

“Even if”

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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.

But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.

For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.

The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.

But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.

Or has it?

No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.

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Beware of judges employing rhetoric: a note on Lord Denning and his “appalling vista”

3rd February 2023

Yesterday on this blog there was a quick post on the Tate Modern privacy/nuisance case – and I am delighted that I have now been commissioned by Prospect magazine to do an online in-depth analysis of this fascinating case about the clash of public spaces and private rights.

The point of the quick post yesterday was not to offer any considered view on the Tate Modern case (on which I actually have not formed a view) but to point to a conspicuous absence in the judgment.

It was odd that the famous speech of the former Master of the Rolls Lord Denning in the 1977 nuisance case of Miller v Jackson was not mentioned, and nor indeed was Denning himself, given this is one of the most famous speeches in the history of English law.

That speech begins as follows (and I have broken out the sentences):

“In summertime village cricket is the delight of everyone. 

“Nearly every village has its own cricket field where the young men play and the old men watch. 

“In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. 

“They tend it well. 

“The wicket area is well rolled and mown. 

“The outfield is kept short. 

“It has a good club-house for the players and seats for the onlookers. 

“The village team play there on Saturdays and Sundays.

“They belong to a league, competing with the neighbouring villages. 

“On other evenings after work they practice while the light lasts. 

“Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore.

“He has issued an injunction to stop them. 

“He has done it at the instance of a newcomer who is no lover of cricket. 

“This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. 

“The animals did not mind the cricket.

“But now this adjoining field has been turned into a housing estate. 

“The newcomer bought one of the houses on the edge of the cricket ground. 

“No doubt the open space was a selling point. 

“Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. 

“His wife has got so upset about it that they always go out at weekends. 

“They do not go into the garden when cricket is being played. 

“They say that this is intolerable. 

“So they asked the Judge to stop the cricket being played. 

“And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. 

“The cricket ground will be turned to some other use.

“I expect for more houses or a factory. 

“The young men will turn to other things instead of cricket.

“The whole village will be much the poorer. 

“And all this because of a newcomer who has just bought a house there next to the cricket ground.”

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The leading legal commentator Joshua Rozenberg agreed about this conspicuous absence on Twitter:

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In the post yesterday I mentioned that I was not a fan of Lord Denning as an appeal judge, though I conceded that one cannot deny his quality as a wordsmith.

(Please note that this adverse view is not about Denning as a person, about whom I have no idea, but about the content and style of his judgments.)

One day I may write a fuller account of this adverse view, but in essence I hold this view for three reasons.

First, it seems to me that Denning’s judgments are often triumphs of form – indeed of rhetoric – over legal substance.

(Indeed, when I once read many of Denning’s judgments in succession, it felt as if he was even sometimes the prisoner, and not the master, of his style of giving judgments.)

Second, his freestyle use of law and equity created a great deal of needless uncertainty in areas of law where certainty is important, especially at appellate level.

(And the usual argument that this was for achieving justice in individual cases really goes to his deftness as a legal rhetorician: for it is difficult when reading his judgments not to sympathise with the party Denning wanted to win – “of course” they should win.)

And third, it is because his rhetorically impressive judgments often cloaked a very illiberal approach to the law and the rights of individuals.

For example there is his notorious 1980 speech in the civil claim brought by the then-imprisoned (and later rightly exonerated) Birmingham Six.

Here I will quote from that speech more fully than usual, so that you can see hos slow rhetorical build-up (and I have again broken out the sentences):

“In this case at the “trial within a trial” there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily.

“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.

“At the trial the same evidence about violence and threats was given all over again before the jury.

“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.

“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.

“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.

“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.

“It will take weeks and weeks.

“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.

“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.

“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .

“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.

“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.

“Whichever it is, the actions should be stopped.”

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Denning’s exercise in legal rhetoric is strikingly similar in style to his famous introduction to the 1977 case of Miller v Jackson.

But instead of the readers clapping and cheering, as most will do with the Miller v Jackson introduction, the only decent response to this Birmingham Six passage is disgust.

And this is why one should be wary of rhetoric in legal judgments – and indeed it is why we should be at our most vigilant when we find ourselves nodding-along with a rousing passage in any judgment – whether by Lord Denning or by any other judge.

Of course: judgments should be plain and succinct and comprehensible to non-lawyers.

But judges should leave the tools of persuasion to the advocates.

For if the judge has got the law right and the facts right, there is no need for the judge to also employ rhetorical devices so as to get you to nod-along with what they have decided.

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The passage of legal time

Winter Solstice, 2022

Today is traditionally the “shortest day” of the year.

Though, of course, one cannot say anything as bold as that on the internet without somebody somewhere taking it upon themselves to type out a reply saying you are wrong: “actually, a day is still 24 hours long, technically” or “actually, a day is not scientifically 24 hours long exactly, technically” or “actually, not in the southern hemisphere”.

But this is the season of goodwill, even to reply guys, so this is a short post on the passage of legal time.

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Law has – or has had – its own rhythm of time.

In England, time ran from 1189 AD.

Before then, it was actually time immemorial, technically.

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Until 1963, Acts of Parliament were not formally referred to by the year in which they received royal assent, but by the session of parliament under the relevant monarch:

As you can see above, the very Act which made the change to modern dating was known as “CHAPTER 34 10 and 11 Eliz 2” notwithstanding the short title provided for in section 2.

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Case reports of a certain age also do not refer to the year of the case but to the volume number of the edition of the law reports, such as this famous case from the ninth volume of the exchequer reports at page 341:

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In the courts themselves, the “terms” were more important than any other time period, which Dickens captures well in the first sentences of Bleak House, before riffing on how long the case of Jarndyce v Jarndyce has taken:

“London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. […]

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it.  […]

“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.”

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Outside of court, the commercial world was more far dominated by quarter days than calendar months.

(And, of course, until 1752 the start of the calendar year was reckoned as on the quarter day of 25th March rather than anything more rational.)

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So a step into legal history is akin to stepping into a TARDIS or Marvel’s Time Variance Authority or an airport departure lounge – that is say, it like stepping into a world where the passage of time runs differently, if it can be said to run at all.

The notion that the English legal system corresponded with the year of lay people is a fairly recent notion.

And so reply guys correcting lawyers on dates will always run the risk of a rejoinder or surrejoinder of “well, actually…”.

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Have a happy Solstice, and thank you all for following this blog.

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How the government won but also lost the court case on Rwanda removal policy

19th December 2022

Today the High Court handed down its judgment in respect of the many legal claims brought against the Rwanda removal policy.

On the face of it, the government of the United Kingdom appear to have won – and that is certainly how the judgment has been reported:

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But.

In two ways the government has not won, and indeed this may not be a welcome judgment for the government.

Let me explain.

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The wide legal challenge was to the policy.

In effect the policy is as follows: the Home Secretary can decide that asylum claims made in the United Kingdom should not be determined here, and that instead the persons who have made those claims should be removed to Rwanda to have their asylum claims determined there.

A legal challenge to any policy is always difficult – almost impossible.

This is partly because courts do not like intervening in matters of policy, as opposed to reviewing particular rules and individual decisions.

It is also partly because to say that a policy is unlawful means, in effect, that every possible rule made under that policy and every possible decision made under that policy will be unlawful.

And it is partly because policies can be adapted and modified so that the possibility of the policy itself always being unlawful can be avoided.

A policy is always the hardest target to hit in the administrative law courts.

It was therefore no great surprise that the High Court in this case – with a bench comprised of the two most experiences judges in administrative law matters – rejected the challenge to the policy as a whole.

And so, the government “won”.

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The government, however, also lost.

In the eight individual cases under review, the High Court decided that the removal decisions be quashed and the Home Secretary take the decisions again with proper regard to individual circumstances.

Look at the final paragraph carefully:

That paragraph indicates that the government lost on nineteen particular decisions in this case.

Nineteen.

Each of those nineteen decisions was legally flawed: every single one.

The policy may well be lawful – but in not one case was the policy lawfully applied.

And so the the government lost all the individual cases.

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Now we come to the real defeat for the government.

The import of the High Court decision is that in respect of each removal to Rwanda under the policy, the Home Office has to apply the policy in a robust and reasoned manner to the individual circumstances of each case in each of the decisions to be made.

Otherwise the removal will be successfully appealed or reviewed.

But for page after page of this judgment there is a catalogue of Home Office errors in respect of each of the cases.

The impression one forms reading the judgment as a whole is that, with the resources and administrative competence available, the Home Office simply is not capable of making all the individual decisions so that many removals to Rwanda are likely.

For the legal issue with decisions which need to be made on individual circumstances is that each decision can be appealed or otherwise legally challenged according to those circumstances.

Or to put it another way: the government has legally saved its Rwandan removal policy at the expense of making the lawful implementation of that policy extraordinarily resource-intensive and financially expensive.

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Of course, this judgment may be appealed by the claimants – though it seems at first read a strong judgment by two highly regarded judges in this field, and I do not think an appeal would be likely to succeed.

And so perhaps the policy under challenge may actually be implemented – though it seems there are no current plans to send any asylum seekers to Rwanda.

But.

Even if this policy is one day lawfully implemented – if – it will be always be an administrative and financial drain of the highest order on the Home Office and thereby the taxpayer.

Many will say that the policy is immoral and should be dropped on that basis alone.

Being immoral, however, does not make a policy unlawful.

But a policy being lawful also does not make it practicable.

The government and its supporters may raise a cheer that the policy is itself has been held to be not unlawful.

But today’s judgment means that – like the chartered flights to Rwanda last summer – the lawful implementation of the policy may never really get off the ground.

 

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How the constitution of the United Kingdom has been tested continuously for over seven years

19th October 2022

Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.

Imagine that demonic scheme was as follows:-

First: the test of a supposedly non-binding referendum in what was normally a parliamentary system

Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.

Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.

Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.

Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.

Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.

And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.

I may have missed out some of the tests along the way.

We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.

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The constitution has been through a lot in the last ten years – perhaps too much.

Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.

In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.

The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.

But the constitution needs a rest, on any view.

Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.

And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.

The constitution is not going to get a rest anytime soon.

Brace, brace.

Again.

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

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This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

*

As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

*

Caption: legal commentators reading the committee report

*

The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

*

This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

*

Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

***

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

*

Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

*

“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

*

And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

*

But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

***

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Lawyers as brands, and “legal opinions” as franchised products – on the nature of legal opinions

5th September 2022

Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.

But there were some things missing.

And one omission in particular was deliberate.

The post did not mention either of the authors of the opinion.

This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.

The authors could have been two unknown newly qualified barristers at some obscure chambers.

Or the authors could have been the ghosts of Thomas More and Edward Coke.

It did not matter.

And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.

In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.

(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)

*

The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.

(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)

It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.

As such, it was almost as if he was being used as a brand, rather than as an advisor.

A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.

As I then described: what appears to have happened was that the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel – the Treasury Devil; a clever compromise was reached where it would be referred to him on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.

*

In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.

Here, the barrister involved is not to blame.

Seriously.

The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.

Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.

And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.

Who knows what the authors of the opinion thought about their work being used in the way that it was?

*

If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.

For if the legal point is sound, the reputation of the lawyer is irrelevant.

And if the legal point is unsound, the reputation of the lawyer will not save it.

This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.

As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.

*

As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:

(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)

And it also the view of the professor of public law at the University of Cambridge:

*

Such concurrence is always a reassurance.

But.

Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.

Because it is the content of a legal opinion that matters the most.

Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.

Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.

But respect is not necessarily deference, and it is certainly not subjugation.

And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.

*

Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.

For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.

They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.

And, as an opinion, it is always open to those to whom it is disclosed to take their own view.

*

So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:

(Though the “highly arguably” is adverbly painful to read.)

But.

There is nothing wrong with being a blogger.

For even bloggers can look at kings.

***

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The not-at-all-devastating “devastating” Johnson opinion on contempt of parliament

2nd September 2022

The “opinion”, we were told, would be “devastating”.

To quote the Daily Mail:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.'”

Not just devastating – but devastating absolutely.

Gosh.

Huge, if true.

*

*

The opinion has now been published on the government’s website.

The government website calls it a “legal opinion”:And the document itself is formatted and signed as an opinion, and it even records the instructing solicitor, who happens to be a criminal defence specialist.

But the opinion does not set out any views on the criminal law, and nor is it in respect of criminal proceedings, and the authors of the opinion are not criminal lawyers.

Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.

One could even perhaps doubt – but for (ahem) what the government website says – whether this document constitutes a legal opinion at all.

That it has been placed happily into the public domain would make one wonder if any legal privilege would attach itself to this document.

But.

The question for this post is not whether it is a legal opinion or not, but is it devastating?

*

An opinion – which is the name for a document setting out the views of a lawyer on a particular legal matter – is a curious form of legal document.

It is not a pleading or statement of case, which would set out a client’s legal position before a court or tribunal.

Nor is it a statement containing evidence that would set out the facts which a party wishes to put before a court or tribunal.

And nor is it a skeleton argument, which provides a summary of the legal arguments on which a party wishes to rely.

All three of these documents – pleading or statement of case, statement of evidence, skeleton arguments – are court- or tribunal-facing.

They are to assist the court or tribunal in determining the questions before it.

And an opinion is not itself a letter before action, which a party will send to another party so as to set out its case before a claim is issued.

No.

An opinion (or an “advice” depending on the matter) is usually a thing between a client and their lawyer.

The lawyer tells the client their view of the law – and it is to the client that the lawyer has the duty.

Sometimes, such opinions are shared or published by the client – so as to inform or influence third parties.

For example, before he went on to other things, the tax barrister Jolyon Maugham wrote an informative post on how certain tax barristers were well-known for giving convenient advices to be shared:

(Maugham and I are not close, and I am not an uncritical fan of the Good Law Project, but that was – and is – a remarkable piece of legal blogging.)

The point is that such “opinions” are that – they are the views of a lawyer who has an obligation only to their client, even if the client choses to share that document with third parties.

*

As such, an opinion is rarely “devastating” – at least, not to any one else other than the client.

It is merely an expression of a view.

No court or tribunal will adopt such an opinion uncritically as its own view – and, indeed, lawyers are required to set their cases in different documents, mentioned above.

There is a fashion for campaigners and pressure groups to commission opinions from lawyers to use as aids for their goals.

And many lawyers are happy to provide such opinions, knowing they are going to be used for such non-judicial purposes.

But such opinions have, by themselves, almost no weight as a legal document.

They are PR, not probative.

*

And now we come to this, capital-O Opinion.

This Opinion is, in effect, a PR exercise.

If this Opinion was, in fact, devastating then – in my view – it could have been quietly disclosed to the House of Commons committee of privileges in respect of its inquiry.

The inquiry would then have been devastated.

The content of the Opinion would have been so formidable that the committee would have known the game was up, and they would have terminated the inquiry with immediate effect.

That is what the effect of a “devastating” opinion would have been: devastation.

But this Opinion was not quietly disclosed to the committee.

It was instead placed into the public domain.

On a Friday afternoon.

After it was leaked to a newspaper.

(And although those reading this blog may not be readers of the Daily Mail, the newspaper was right to give this Opinion prominence and to quote the insider – for the Opinion and what the insider said are newsworthy.)

*

The publication of this Opinion is an example of litigation by other means.

It is an appeal for media and public support.

It is an attempt to place pressure on the committee to drop the inquiry.

For if the Opinion were truly devastating there would be no need for publicising it on the government website or for leaking it to the press.

That is the difference between something being devastating and something being described as “devastating”.

*

The Opinion is not strong.

Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate.

The colour of a thing would be black, but for it being white.

The object would be cheese, but for it being chalk.

And here:

“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”

*

There are a few points to make about this Opinion.

To begin with, the inquiry into whether Boris Johnson misled the House of Commons is a matter for Parliament and not the courts.

And Parliament is in charge of its own procedures which, as a matter of basic constitutional principle (and the Bill of Rights), cannot be gainsaid by the courts.

So to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.

But.

It gets worse.

*

The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.

This has been spotted by the Labour MP Chris Bryant:

The motion referring Johnson to the privileges committees was as follows:

The question for the committee is whether the misleading of the House of Common amounted to a contempt.

If Johnson did in good faith give an incorrect statement then at some point he would have realised the error.

That would not be a contempt.

But.

Under the rules of Parliament (and the Ministerial Code) Johnson was also under a duty to correct the record as soon as he realised, at the “earliest opportunity” and he has chosen not to do so.

Here is Erskine May, the authority on parliamentary procedure (highlighting added):

On this, see this thread by Alexander Horne from back in April:

And my post on the same:

There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.

The Opinion mentions the relevant duty in paragraph 26 (and the corresponding Ministerial Code duty in paragraph 28) but uses it only to somehow say that it indicates only deliberate lying can be contempt.

But if this a point set out in Erskine May, and obvious to Horne (and me) in April 2022, then it is a point that should have been addressed in an Opinion dated 1 September 2022.

As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.

*

The Opinion is also odd in how it seeks to judicial-ise parliament.

This has already been spotted by the estimable Hannah White:

This contempt inquiry is a parliamentary (and political) exercise into assessing whether Johnson was dishonest.

This process is required because of the notion (or fiction) that MPs do not lie to the House.

This is because it is assumed MPs are honourable – and it is out of order for one MP to accuse another of lying in the Commons.

Ministers, for example, do not sign “statements of truth” when giving their answers at the dispatch box.

(And you will remember that Johnson lost the prorogation case at the Supreme Court because he refused to sign a statement of truth, under pain of perjury, as to his true reasons for the prorogation.)

As such the privileges committee inquiry is part of what some commentators call the “political constitution”.

It is how certain issues and disputes are dealt with within parliament, rather than outside of parliament by courts or other agencies.

The Opinion, by seeking to judicial-ise part of the process is taking a misconceived pick-and-mix approach.

The committee has set out its process and has called for evidence:

A motion was passed by the Commons; a process was adopted in accordance with the relevant rules agreed by Parliament; documents have been sought and evidence has been called for.

This is entirely appropriate for the parliamentary issue which needs to be addressed and resolved.

If the committee were to be amenable to judicial review, then the entire process would cease to be an entirely parliamentary matter.

The whole process would have to be recast, with judicial protections built in at each stage.

And, in any case, there is no good reason – and certainly no reason set out in the Opinion – why Johnson cannot simply explain why he gave a misleading statement and did not correct it at the earliest opportunity.

He can answer, parliamentarian to parliamentarians.

The motion of the House gives precise particulars of the statements, and he was the one that made the statements.

The sanction, if he is found in contempt, is not civil or criminal liability – no criminal record or county court judgment – but a sanction to him as a parliamentarian – he could be suspended, or perhaps face a recall petition.

This is a parliamentary process to deal with a parliamentary question with a possible parliamentary sanction.

To assert that “[b]ut for Parliamentary privilege, a court hearing a judicial review brought by Mr Johnson would in our view declare the approach taken by the Committee to be unlawful” is therefore not just deft, it is also daft.

*

As a further observation: why has this matter not seemingly gone through the government legal system and treasury counsel?

It appears a top white-collar criminal firm and the barristers have been instructed directly by the Prime Minister, presumably with public money.

For all Johnson’s derision about “lefty lawyers” and his supporters’ attacks on legal aid “fat cats”, Johnson is very ready to use taxpayer money to find technicalities so as to frustrate processes.

Those caught in the criminal justice system do not have access to this sort of legal advice.

*

To conclude: the Opinion is not only not strong, it is a disappointment.

One would hope and expect that its esteemed authors would have provided a more compelling critique of the process; that they would have engaged with the “earliest opportunity” charge; and that they would have explained, in parliamentary terms why it was unfair, rather than relying entirely on a “but for” rhetorical device and a false analogue.

This could have been a far more interesting opinion.

But instead, we got this weak, misconceived, incoherent document.

Frankly, it is devastating.

 

**

POSTSCRIPT

 

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

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***

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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