Category: Courts and Politics

Boris Johnson’s Triple-Whammy of Unlawfulness

12th April 2022

Constitutional law is not supposed to be interesting.

Constitutional law is supposed to be boring.

And Boris Johnson could not make it any more exciting.

To take three examples.

First, the Supreme Court held that he gave unlawful advice to the Queen over prorogation of parliament.

(An incident that managed to engage all four of the monarch, parliament, the courts and the executive – the constitutional law equivalent of a full house.)

Second, his government actually introduced legislation to Parliament to enable it to break the law.

(Just typing that seems strange – but it happened, although the government averred that the law would be broken in a “limited and specific” way.)

And now, an even more extraordinary thing has happened.

The prime minister has been found by the metropolitan police to have broken this governments own laws on gatherings under lockdown.

And the necessary implication of this sanction is that the prime minister knowingly misled parliament when denying such a gathering took place.

He cannot even say he was misinformed, as he was at the gathering himself.

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Johnson has not been prime minister a long time, and there are many prime ministers who have been in office far longer with far less constitutional excitement.

Of course he should resign – but that is not the point of this blogpost.

The point instead is to convey the sheer magnitude of what Johnson has ‘accomplished’ in his trashing of constitutional norms – and in under three years..

Just one of the above examples – and there have been many more, it is just those three came readily to mind – would be career-ending for a politician in any normal political system.

And that even now nobody knows if he will resign is an indication of how abnormal politics are at the moment.

It takes a certain quality for a prime minister in three years to contrive this triple-whammy of unlawfulness.

Indeed, it is difficult to conceive what he could still yet do as a fourth instalment.

Brace, brace.

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Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.

The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.

First, the court placed the police decision-making under anxious scrutiny.

This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.

This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.

Second, and just as refreshing, the court took the legal right to freedom of expression  – under Article 10 of the ECHR – seriously.

This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.

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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.

Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.

Well done to all who were involved.

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How you can be sued for libel for reporting things said in Parliament

10th March 2022

On 9 March 2022 the following was stated by Bob Seely MP in the House of Commons:

What Seely said is set out on the ‘They Work For You’ website:

And it has been published in Hansard:

What has struck many about what Seely said is that reporting parliamentary debates could be actionable under the law of defamation.

Surely, some thought, reporting what is said in parliament has absolute privilege – that is legal protection – from any law suit.

Well.

The legal position is not straightforward – though you may think it should be.

And the unsettling answer is that you can be sued for reporting things said in parliament.

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First there needs to be a distinction.

What MPs and peers themselves say in parliament does have absolute privilege.

This protection is provided by the Bill of Rights:

“`That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

From time to time, (ahem) spirited lawyers do threaten parliamentarians in respect of things said in parliament (here is a 2010 example) – but the lawyers should not do so, `and any legal claim would fail.

(The position is less clear-cut for witnesses at select committee hearings – but that is a topic for another time.)

This means there is nothing that a law firm can do with a legal threat to Seely or any other parliamentarian about what they say in parliamentary proceedings.

The MP or peer has absolute privilege – though there are rules in both houses of parliament about what can and cannot be said about certain matters – and those rules are not justiciable in court.

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But.

Those reporting – or indeed repeating – what is said in parliament do not have this same absolute protection.

The protection is instead ‘qualified’ – and so is subject to a condition.

This condition is (in general terms) that the report – or other repetition – is not malicious.

(This condition is the general effect of the august Parliamentary Papers Act 1840 and the Defamation Act 1996.)

This therefore means a person can be sued for defamation (and perhaps for other things) for reporting or repeating what is said in parliament when in doing so they acting maliciously.

The onus is on the claimant to show this malice.

So this means that a potential claimant can sue – and thereby threaten to sue – a person who is reporting or repeating what is said in parliament.

The potential claimant and their lawyers would have to meet a high threshold if there were to issue such a claim and demonstrate malice – and it may be that they will fail to do so.

But nothing at law stops them issuing the threats.

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How this all should work in an internet age where footage from parliament TV can be captured and circulated instantly is not clear.

For example I would not publish the footage of Seely above until and unless I saw it reported in Hansard, as I would want the protection of the 1840 Act.

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There is the eternal question of what constitutes ‘malice’.

 

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And there is also a question about whether lawyers for potential claimants can make over-stated libel threats when they have no evidence of malice.

As Professor Richard Moorhead explains there are general professional conduct rules about what can and cannot be in a threatening letter from a law firm:

The Solicitors Regulatory Authority states the following about solicitors’ professional duties in respect of disputes:

In essence – libel claimant lawyers cannot (and should not) threaten legal proceedings lightly – and if they do, there can be professional repercussions for those lawyers.

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Perhaps there should be further protections.

For example: in respect of infringements to registered intellectual property rights (eg trade marks and patents), the Intellectual Property (Unjustified Threats) Act 2017 prevents lawyers from making baseless threats.

Perhaps this should be extended to defamation threats.

And barristers and solicitors are under general professional obligations not to allege fraud without satisfactory evidence.

Presumably it would not be impossible for a similar rule to prevent baseless defamation threats, especially where there is no evidence of malice.

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None of the above suggests – or is intended to suggest – that any particular claimant firm is making such baseless threats.

Instead the above points to the protections that those receiving the threats have (or should have) so as to be confident that such threats are not baseless.

And it also points to the high hurdle that any claimant firm needs to meet so as to allege malice when making such a threat.

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We do have the gap in the law between absolute privilege for parliamentarians and only qualified privilege for those outside who report and repeat what those parliamentarians say.

It is a gap which in my view should be filled, and one which is not sensible (or sustainable) in the internet age.

But it is gap that has not yet been filled.

And so yes – as Seely said, it is possible for a law firm to threaten newspapers and others for what is said in parliament.

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For completeness, this is not a new problem either for parliamentarians or for those reporting on what they say.

Those with good memories will recall the Trafigura matter – which was not about defamation but confidentiality – where a member of parliament said something which seemed to be subject to (and thereby in breach of) a court injunction.

(And to demonstrate my own personal lack of malice – this is a link to how Trafigura’s lawyer saw what happened.)

So none of this is a new issue – and it is one that goes to the very essence of a separation of powers.

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Disclosure: I happen to be a qualified solicitor, and I still help clients facing libel and other claims, and so this post is informed by that experience.

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A government should not be able to deprive people of possessions and property by mere ministerial diktat

3rd March 2022

Yesterday’s short post turned out to be rather popular, with a number of informed and insightful comments.

(Perhaps that is a hint that I should keep these blogposts succinct!)

The question puzzling me today is whether those clamouring for United Kingdom sanctions against oligarchs realise that it is not a good thing for the government to have summary powers to deprive individuals of possessions and other property.

When the government uses summary powers, say, to deport members of the Windrush generation, or to remove a person’s British citizenship, then liberal rightly are concerned.

Individuals have rights, and there are things no person or group may do to them, without violating their rights.

And if all individuals have rights, and oligarchs are individuals, then it follows that oligarchs have rights.

These rights may not be absolute – and property rights especially can be subject to interferences by the state.

But such interferences need to have a lawful and reasonable basis and follow due process.

And this is the same for oligarchs, as it is for anyone else.

That the government cannot just deprive people of possessions and property by mere ministerial diktat is not a bad thing in a liberal society.

And those who clap and cheer at the prospect of possessions and property being taken by the state without any lawful and reasonable basis, and without due process, should be careful what they wish for.

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Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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‘Parliamentary Sovereignty’ and ‘Parliamentary Supremacy’

24th October 2021

In the Attorney General’s interesting recent speech on judicial review, there is the following passage:

“But this flexibility, this resilience, should not obscure the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689.

“That principle is Parliamentary Sovereignty – it both underpins and anchors our constitutional settlement.

“I agree with the position as advanced by Lord Bingham in Jackson v Attorney General:

“‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.'”

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The sharp-eyed among you may have noticed that the speech here switches between ‘parliamentary sovereignty’ and ‘the supremacy of the Crown in Parliament’.

Two s-words.

And you can see that the second s-word used is qualified by the term ‘Crown in Parliament’.

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Some use the two terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ interchangeably, as constitutional synonyms.

I try to avoid doing this, as I think there is a distinction between the two.

This is because parliament, in and of itself, is not sovereign.

What may be sovereign is, as Lord Bingham was careful to say but the Attorney General was not, is ‘the Crown in Parliament’.

An Act of Parliament – following royal assent – is the supreme law of the land.

But nothing else done by parliament is ‘sovereign’.

For example: a parliamentary resolution or standing order binds only parliament (if at all)

And statutory instruments can be struck down by the courts as ultra vires the parent Act of Parliament.

Parliament is only sovereign when its primary legislation is endorsed by the crown – and not in respect of any other activity.

Even the limits of so-called parliamentary privilege are subject to judicial construction and interpretation.

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The former appeals judge Stephen Sedley avers – correctly in my view:

“It needs to be understood, because events in the earlier part of [the twentieth] century have obscured it, that there are within the separate powers of the modern British state two sovereignties, those of Parliament and the courts.”

Sedley in turn quotes Lord Bridge from a 1991 House of Lords Case, X Ltd v Morgan Grampian (Publishers) Ltd:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.

“In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”

In other words: in interpreting and applying the law – but not in making or unmaking the law – the courts are sovereign too.

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This is not – or should not be – a surprise.

The sovereign entity in the United Kingdom is – as the label suggests – the monarch.

In law-making, the Crown and parliament are sovereign.

But in interpretation and application of the law, the Crown and the courts are sovereign.

Indeed, if you ever wander into a formal courtroom, you will often see the crown above the head of the judge.

(And just as those in the armed services salute the badge and not the person of a senior officer, when lawyers and others in court ‘all rise’ they are effectively paying respect to the source of the court’s power, and not to the person of the judge – or at least that is what you can tell yourself.)

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None of the above takes away from the legislative omnipotence of parliament in enacting primary legislation.

And it is certainly not an error to say ‘parliamentary sovereignty’ when one speaks of primary legislation.

But to do so may imply that parliament is the only form of state sovereignty in the United Kingdom (at least in England and Wales).

And it may imply that parliament is sovereign in some other respect than in enacting primary legislation.

Her Majesty’s Courts are, well, the Crown’s too.

And in interpretation and application of the law, the Crown and the courts are as sovereign as the Crown and parliament is in making and un-making the law.

So that is why – though it is only a personal preference – I tend to say ‘parliamentary supremacy’ – and not ‘parliamentary sovereignty’.

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The Supreme Court judgment in Majera – court orders have to be obeyed, even by the Home Secretary

21st October 2021

Yesterday, while lawyers and commentators were discussing the recent speech by the Attorney General, the Supreme Court of the United Kingdom handed down a judgment that may be more significant than anything the Attorney General said and what others will say about that speech.

The case is that of Majera – and it is about immigration and deportation, but it is about a lot more than that.

Majera was born in Rwanda and came to the United Kingdom as a child, but in 2006 he was convicted of serious offences, and when in prison he was issued with a deportation order.

He was then released on licence in 2015, but was again detained, and so he applied to the relevant tribunal for bail, which was granted in a court order.

So far, so complicated – though not an unusual set of facts in the ever-expanding caselaw about deporting foreign-born convicts.

But Majera then did something that prompted even more litigation and led ultimately to yesterday’s significant Supreme Court judgment.

Majera volunteered to work in a charity shop.

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You would think that it would be a good thing for a convict facing deportation to contribute to society by doing unpaid work for the public good.

But: no.

This was intolerable for the Home Office.

The problem, however, was that the tribunal order granting bail did not preclude Majera from working on a voluntary basis, but from paid employment or from any business or profession.

(The other bail conditions were strict: Majera could only do voluntary work as approved by his supervising officer – so not any voluntary work but only that which a state agent endorsed, and he was subject to a curfew.)

The Home Office, disregarding the judge’s order, formally notified Majera that he could not do voluntary work – and when objections were made, the Home Office came up with various excuses which they abandoned on legal challenge.

And so Majera challenged the Home Office decisions, as he was entitled to do so.

The Home Office, in response, came up with the argument that the judge’s order on bail was invalid, and thereby void, as it contradicted another statutory provision.

Accordingly, the Home Office contended, it was perfectly open to the Home Office to disregard the judge’s order and impose conditions of their own.

*

Majera won his challenge.

But.

The Home Office appealed.

It would seem the prospect of Majera working in a charity shop was so unacceptable that public funds were justified in taking this to the Court of Appeal, and so the Home Office did, instructing a QC to do so.

*

The Court of Appeal decided in favour of the Home Office.

Their reasoning was that if a decision is void then, well, it is void.

If the judge did not actually have the power to make the order that was made, then the order disappeared in a puff of legal magic, and it should be treated as if it never happened.

The order would have no effect, by the automatic operation of a lack of law.

Here the appeal judges relied on cases where subordinate legislation and administrative decisions were held to have no legal effect because they were ‘ultra vires’.

Majera appealed, and the Supreme Court agreed to hear his appeal.

*

The Supreme Court, in a unanimous decision led by Lord Reed the president of the court, granted Majera’s appeal.

The decision is a wide-ranging survey of the law of ‘ultra vires’ and a detailed critique of vague notions such as ‘void’ and ‘null’ when applied to things that otherwise would have legal effect.

It is a judgment that will repay careful reading.

In essence: the supreme court held that orders of the court were special, and so should not have been lumped together with ‘ultra vires’ subordinate legislation and administrative decisions by the Court of Appeal.

A court order must be obeyed until and unless it is set aside by the court (or possibly overtaken by legislation).

It was not open to the home secretary – or anyone else – to pick and choose which orders were valid or invalid.

*

This is a judgment that is significant on its own terms – but (on first glance) it also may be one with wider implications.

For example: one of the government’s current legislative proposals for judicial review is about giving courts the power to make ‘suspended’ quashing orders that would limit the legal effects of a finding of ‘ultra vires’.

Another government proposal is about limiting the scope of judicial review in the tribunal system – and this case shows that it is not only the individuals but the state itself that can take bad public law points in claims and defences.

This may not be a judgment that was intended to contribute to the discussion about judicial activism and the reform of judicial review, but it may be an important contribution nonetheless.

*

But it is certainly an important case about the separation of powers.

For just as in a recent judgment in favour of the home secretary, Lord Reed said that is certain cases, the courts should accord ‘respect’ to the home secretary, this case in turn is about the respect the executive – and everyone else – should accord to the orders of the court.

Even the home secretary.

For just as the Lord Chancellor and the Attorney General are warning judges to keep off the executive’s lawn, this is the Supreme Court, in effect, telling the government to keep off the lawn of the courts.

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The Executive Power Project continues – the interesting speech of the Attorney General

20th October 2021

There is a thing called the Judicial Power Project, which – as its name does not suggest – is not really about judicial power.

The project is about promoting executive power and is generally against any judicial check or balance of that executive power.

Sometimes it may affect to be defending ‘parliament’ or ‘the people’ against the judges – but it will complain of cases (such as the Miller cases) where the courts have been resolute in upholding the democratically elected parliament against the executive.

This executive power project had been fairly quiet in recent times – but it is back.

The Attorney General has made a speech – and it is not a flimsy speech – setting out a general critique of judicial power which could have been written by the executive power project themselves.

In one way, we should be grateful – for it is useful to have the arguments and contentions (and the case references on which those arguments and contentions rest) all in one accessible place.

And it is also good that it was done in a speech before a serious legal audience – and thereby ‘on the record’ – as opposed to briefed to the media or in an interview with a political reporter.

One does not have to be a great fan of the current Attorney General to admit that this was the right way to set out this general critique.

But.

The speech is not compelling – and this blog will in a few days set out a reasoned response to the speech.

It is, however, my tribute to the speech that it cannot be dismissed within a few minutes of reading it by a scathing blogpost.

The scathing post on this blog will have to take a bit longer.

In the meantime: here is a YouTube video Professor Mark Elliot, one of the leading experts in this area:

And this is his thread:

At least this speech means there is now the possibility of a proper political and policy discussion – or even a debate – about this general issue.

I will put up my post on the speech in a day or so.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

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

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Comments are welcome, but they are pre-moderated.

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