Category: Courts and Politics

Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

11th June 2021

In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.

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What does he mean?

And does he have a point?

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What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.

In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.

What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.

To a certain extent, he has a point.

In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.

And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.

But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.

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Judges and courts are not stupid and naive.

Judges and courts know full well reasons can be artificial and contrived.

The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions. 

The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.

For example – take the decision by the government to seek a prorogation of parliament in 2019.

No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.

And without such a sworn (or affirmed) reason, the government lost the case.

Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.

Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.

But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making. 

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And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.

Awarding a high-value contract to cronies where a nominal (though documented)  exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.

So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.

The pram may well have fallen down the stairs anyway.

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Why is it so difficult to prosecute for the sale and purchase of peerages?

7th June 2021

A person is in the news because they donated £500,000 to a political party days after taking a seat in the house of lords.

This post is not about that person.

I have no idea about the circumstances of that appointment. and so I do not make any allegations in respect of those circumstances – and this is not just safe libel-speak, I genuinely do not know, and nor (I suspect) do you.

(And anyone commenting below who makes an allegation of criminality in respect of that appointment – or anyone else – will not have their comments published – this is not Twitter, you know.)

This post is instead about the legislation that is usually mentioned when such appointments are made: the Honours (Prevention of Abuses) Act 1925.

It is a curious statute – not least because the offences it creates appear hardly to have ever been successfully prosecuted.

(The one early exception appears to be Maundy Gregory.)

 

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The legislation has one substantive clause that in turn creates two offences.

The first offence is (and in language itself as cumbersome as the name, title and style of any obscure peerage):

‘If any person accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, or for any purpose, any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

Let’s try to make sense of this word-soup.

This first offence relates to the person who is (in effect) on the supply-side of a relevant transaction – the person ‘accepting or obtaining’ the ‘inducement or reward’.

This supplier has to be shown to (a) accept, (b) obtain, (c) agree to accept, or (d) attempt to obtain [x] in return for [y].

The [x], in turn comprises two things: (a) any gift, money or valuable consideration which also has the quality (b) of being an inducement or reward for procuring or assisting or endeavouring to procure the grant of [y].

This means proof of a ‘gift, money or valuable consideration’ is not enough: there also needs to be proof of its purpose.

The [y] is the most straightforward: ‘the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant’.

What all this means is that showing there is cash and an appointment is not enough: there has to be proof of intention to the criminal standard of proof – that is (in general terms) beyond reasonable doubt.

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The second offence deals with (in effect) the demand-side:

‘If any person gives, or agrees or proposes to give, or offers to any person any gift, money or valuable consideration as an inducement or reward for procuring or assisting or endeavouring to procure the grant of a dignity or title of honour to any person, or otherwise in connection with such a grant, he shall be guilty of a misdemeanour.’

There is no need to unpack this like the first offence – but you will notice that again there is the need to prove that the ‘gift, money or valuable consideration’ is for the purpose of bing an inducement or a reward.

So, as before, showing there is cash and an appointment is not enough – there needs to be proof of intention.

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Those with good political memories will recall the ‘cash for honours’ investigation of 2006-2007.

This investigation included the extraordinary moment of a dawn-raid on the home of a government official and the questioning by the police of the then prime minister.

All very dramatic.

But nothing came of it.

No charges were brought.

The Crown Prosecution Service provided detailed, legalistic reasons for their decision not to prosecute.

The CPS averred that not only did it need to prove intention (on both sides) but also that it also had to prove that there was an agreement:

‘If one person makes an offer, etc, in the hope or expectation of being granted an honour, or in the belief that it might put him/her in a more favourable position when nominations are subsequently being considered, that does not of itself constitute an offence. Conversely, if one person grants, etc, an honour to another in recognition of (in effect, as a reward for) the fact that that other has made a gift, etc, that does not of itself constitute an offence. For a case to proceed, the prosecution must have a realistic prospect of being able to prove that the two people agreed that the gift, etc, was in exchange for an honour.’

These CPS reasons were compiled and endorsed by some very clever criminal lawyers – though the rest of us may struggle to see the absolute need for proving an agreement under the 1925 Act.

Nonetheless the CPS insisted:

‘In essence, the conduct which the 1925 Act makes criminal is the agreement, or the offer, to buy and sell dignities or titles of honour. Section 1(1) is drafted in wide terms and captures any agreement in which a seller agrees to procure a peerage in return for money or other valuable consideration. Section 1(2) is also drafted in wide terms and captures any agreement in which a buyer agrees to provide money or other valuable consideration, in order to induce a seller to procure a peerage.’

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If the CPS are correct in this interpretation and construction of the statutory offences, then this makes it hard, if not impossible, for the offence ever to be prosecuted successfully.

And, even without the CPS gloss, the requirement to show intention made the offence hard to prosecute in the first place.

There may be other laws which may apply – for example, fraud legislation – but not the one piece of legislation that actually has the sale of honours as its dedicated purpose.

For, as long as those involved make sure there is no paper-trail and that the choreography of nods-and-winks are done in the right order, there is no real danger of any prosecution under the 1925 Act.

What the 1925 Act prevents is the blatant Lloyd-George style of an open market for the sale and purchase of honours.

For a statute to only regulate (in effect) the seemliness of the trade in peerages and other titles is a very, well, British (or English) thing to do.

Otherwise, the 1925 Act is an ornament, not an instrument – and so it is as much a mere constitutional decoration as any ermine robe, and is just as much use.

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What is Force Majeure? And why is it now being mentioned in the context of Brexit?

18th May 2021

A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.

What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.

I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.

Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.

Written out, such contracts would not need to be longer than one sentence – a single clause.

What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].

This is because most written contracts are not there for when things go well: they are there for when things go badly.

The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.

For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.

There will also be detailed provisions setting out the processes for resolving and remedying problems.

In most circumstances, those provisions will not ever be used.

(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)

But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.

This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).

In legal language, such a disruptive event is said to ‘frustrate’ the agreement.

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In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.

Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.

A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.

If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.

Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.

This means (generally) the more detailed the agreement, the more limited the scope for force majeure.

The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):

You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.

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What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.

This is because the parties will have foreseen and addressed most practical problems.

And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.

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The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.

The news report says:

‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.

‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’

To which the response should be: good luck with that.

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In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.

Until this is known, one cannot be completely dismissive.

But.

It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.

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And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:

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That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.

It was, to use another technical legal term, bleedingly obvious.

It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.

On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.

There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.

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This illiberal Queen’s Speech is the next step for authoritarian populism after Brexit

11th May 2021

Well, that was quite the Queen’s Speech.

A legislative programme geared to make a certain sort of person grin and clap and cheer about ‘owning the libs’.

But it is not just about mere superficialities – it is in substance a multi-pronged attack our liberties.

The prime minister is not only taking back control of when there will be general elections, the government is making it harder for people to vote.

The government is also making it harder for government decisions to be challenged in court, and it is making it harder for anyone to protest about any of this.

https://twitter.com/davidallengreen/status/1392125915543523330

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Of course: this is not a surprise.

Five years ago, senior members of the governing party affected to want to give effect to the ‘will of the people’.

But, as is often the case with authoritarian populists, the supposed mandate of the people was only ever a convenient rhetorical device for ever-greater central control.

And the sorry state of our politics means that the government will probably get away with this.

There may be opposition in the house of lords – and some measures may be open to legal challenge.

Yet, even with the few remaining checks and balances in out constitutional arrangements – this is what the government does as the next step after ‘taking back control’.

The impression is that Brexit was not about liberation, but about creating a political culture where the opposite of liberation – imposed authority – became more entrenched.

Our post-Brexit polity is now looking very dismal and depressing indeed.

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Liz Cheney’s important statement about constitutionalism and politics

6th May 2021

From time to time an utterance by a politician becomes more important than the here-and-now of practical politics.

Such an utterance is an opinion piece in the Washington Post by the conservative congresswoman Liz Cheney.

This blog is written from a liberal perspective, and so there would normally be little if anything that this blog would politically commend about Cheney’s various policy positions.

But this is also a constitutionalist blog, and what Cheney says is spot-on – and it needs to be heard and understood by conservatives in the United States and elsewhere.

Cheney avers:

‘Trump is seeking to unravel critical elements of our constitutional structure that make democracy work — confidence in the result of elections and the rule of law. No other American president has ever done this. The Republican Party is at a turning point, and Republicans must decide whether we are going to choose truth and fidelity to the Constitution.’

She continues:

‘I am a conservative Republican, and the most conservative of conservative values is reverence for the rule of law. Each of us swears an oath before God to uphold our Constitution. The electoral college has spoken. More than 60 state and federal courts, including multiple Trump-appointed judges, have rejected the former president’s arguments, and refused to overturn election results. That is the rule of law; that is our constitutional system for resolving claims of election fraud.

‘The question before us now is whether we will join Trump’s crusade to delegitimize and undo the legal outcome of the 2020 election, with all the consequences that might have.’

And concludes:

‘…if Republicans choose to abandon the rule of law and join Trump’s crusade to undermine the foundation of our democracy and reverse the legal outcome of the last election.

 

‘History is watching. Our children are watching. We must be brave enough to defend the basic principles that underpin and protect our freedom and our democratic process. I am committed to doing that, no matter what the short-term political consequences might be.’

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As this blog has set out before, constitutionalism is about there being constitutional principles that are distinct from and more important than political expediency.

The moment of truth for a constitutionalist is when one sees a distinction between the integrity of the constitution and political advantage and then sides with the constitution.

Constitutionalism is thereby, in this way, about choice.

It is easy – as some fogeys do – to say the words of constitutionalism: blah blah common law rights blah blah Magna Carta blah blah freedom under the law.

It is quite another to elevate constitutional principles above party and partisan advantage in a given practical situation – to say that a course of action should not be taken because it would violate constitutional norms.

One of the more unfortunate features of the authoritarian populist nationalism (and there are other words for it) that has been dominant recently in the United Kingdom, the United States and elsewhere recently, is that there has been no constitutional self-restraint.

Cheney’s article is a reminder that conservatives – as well as liberals and progressives – can take constitutionalism seriously too.

Perhaps the Republican Party will ignore this principled stand – and carry on with its frenzy of Trumpism.

But if that frenzy ever does come to an end, it will be because of warnings such as this from Cheney.

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Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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The judges are only the ‘enemies of the people’ when it suits the government

14th April 2021

For the government. and its political and media supporters, the judiciary are the ‘enemies of the people’.

The view is that that it is no business of activist judges to interfere with what ‘the people’ want.

It is a view that led the London government to oppose the supreme court determining the two Miller cases.

It is also a view that informs the current attempts by the government to limit judicial review and the scope of the human rights act – to the claps and cheers of many who (frankly) should know better.

But it is a shallow view, adopted out of convenience and partisanship.

For, when the political boot is on a different constitutional foot, the government suddenly values an independent judiciary being able to assess the constitutional propriety of a measure:

See Joshua Rozenburg’s detailed piece here.

Also note the response of the London government’s former chief legal official:

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From a political perspective, this referral prompts mixed feelings.

My political view is that a Scottish parliament can and should be co-equal with the Westminster parliament – as the legislatures in Canada and Australia are, even if nominally under the same head of state.

As such, it is frustrating to see the emphatically supported view of the Scottish parliament potentially stymied in this way.

But a political view is not always the same as a constitutionalist perspective.

And under the current constitutional arrangements of the United Kingdom, this is a question that can be referred to the supreme court – and as such there is nothing unconstitutional about the London government doing so.

(Whether those should be the constitutional arrangements is a different question.)

It is sheer hypocrisy – and there is not other word – for the London government, and its political and media supporters, to pick-and-choose when the supreme court gets to determine constitutional questions.

Either the supreme court is a constitutional court or it is not a constitutional court.

And it should not be regarded as only a constitutional court when the London government wants to face down Edinburgh, Cardiff, or Belfast.

A constitutional court is not and should not be regarded as an imperial court.

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The Good Friday Agreement and Brexit

12th April 2021

Before the Brexit referendum, one British politician made an emphatic statement about the impact of Brexit on the position of Northern Ireland:

‘Relations between London and Dublin are by far the warmest they have ever been since Irish independence, and the people of Northern Ireland are among the beneficiaries of that.

‘For that, the credit goes to a whole succession of British and Irish leaders, and to the tireless diplomacy of the United States. Yet it has also partly been facilitated by both countries being part of a common framework.

‘If the UK were not in the EU, the impact on such close relations, though hard to quantify, would certainly not be positive.

‘The Good Friday Agreement was based on the assumption that the two countries would be in the EU together, and the various cross-border institutions it established are built on that.

‘Hundreds of millions of euros of European funds are currently diverted into the border region through a special peace programme.

‘Most important of all, the open border between Northern Ireland and the Republic would be called into question.’

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The key sentence of that passage bears repeating:

‘The Good Friday Agreement was based on the assumption that the two countries would be in the EU together, and the various cross-border institutions it established are built on that.’

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Who was this politician?

Was it some starry-eyed Europhile writing in some left-wing magazine?

No, it was former Conservative foreign secretary William Hague writing in the Daily Telegraph on 9th May 2016.

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Hague’s warning was not the only one – and he was also not the only one to make the connection between the European Union and the Good Friday Agreement.

The then Taoiseach Enda Kenny said, just days before the referendum:

‘When the Good Friday agreement was concluded 18 years ago, the detail of the negotiations and the agreement itself were brought about as a result of intensive engagement by the British and Irish governments in conjunction with the Northern Irish political parties.

‘But often underestimated was the international support for the process, not least that of the European Union.’

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And if one looks at the Good Friday Agreement itself, you will see the following recital:

‘The British and Irish governments […]

‘Wishing to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union’

The agreement also expressly provided that the north-south ministerial council ‘consider the European Union dimension of relevant matters, including the implementation of EU policies and programmes and proposals under consideration in the EU framework. Arrangements to be made to ensure that the views of the Council are taken into account and represented appropriately at relevant EU meetings’.

Indeed, there are eight mentions of the European Union in the agreement.

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Of course, an agreement made in 1998 did not and could not have anticipated the United Kingdom voting to leave the European Union in 2016 and then leaving in 2020.

But that shared membership of the European Union was a presupposition cannot be sensibly denied.

As Hague also points out about Gibraltar, shared membership of the European Union was a handy and effective solution to tricky cross-border issues.

The European Union was a useful geo-political work-around for many otherwise insoluble problems. 

And so be departing from the European Union, such advantages of membership were removed.

This should not have been a shock.

Hague set this out plainly in the Brexit-supporting Telegraph, and the Taoiseach also put his name to articles explicitly stating this.

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Brexit, of course, is not in and by itself a contradiction of the Good Friday Agreement – in that the Good Friday Agreement still is in force now that the United Kingdom has departed the European Union.

In the first Miller case, the supreme court was asked to rule against the Article 50 notification, and they stated in respect of the legislation implementing that agreement:

‘In our view, this important provision, which arose out of the Belfast [Good Friday] Agreement, gave the people of Northern Ireland the right to determine whether to remain part of the United Kingdom or to become part of a united Ireland.

‘It neither regulated any other change in the constitutional status of Northern Ireland nor required the consent of a majority of the people of Northern Ireland to the withdrawal of the United Kingdom from the European Union.’

As such continued shared membership of the European Union may well have been a presupposition of the Good Friday – but it was not (as a lawyer may say) a condition precedent.

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The Good Friday Agreement is, in terms of its practical importance, perhaps the most significant single constitutional instrument in the politics of the United Kingdom.

It is of far more practical importance than, say, Magna Carta.

It shapes what is – and is not – both politically permissible and politically possible.

It largely explains the curiously elaborate – and, for some, counter-intuitive – nature of Brexit in respect of Northern Ireland.

It meant that the clean absolute break with the European Union sought by many Brexit supporters did not happen.

The Irish border was to be kept open.

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But the Good Friday Agreement does not only protect the nationalist community, it also should protect the unionist community.

And the Brexit arrangements – with a trade barrier effectively down the Irish Sea – is seen as much as an affront to the unionists as a visible land border infrastructure would have been an affront to the nationalists.  

There is no easy answer to this problem – perhaps there is no answer, easy or hard.

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It took membership of the European Union to make the Belfast Agreement possible.

Perhaps there is no alternative geo-political workaround to take its place.

Had the United Kingdom stayed within the single market and the customs union, even if as a matter of legal form it would not technically be a member of the European Union, then perhaps this problem could have been averted.

But the fateful decision by then prime minister Theresa May in the months after the Brexit Referendum that Brexit would mean leaving the single market and the customs union meant that problems in respect of the position of Northern Ireland would become stark.

And as nods to the articles by Hague and Kenny show, it cannot be averred that the United Kingdom government was not warned.

***

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Whoopsie: the government did not get the commission report on judicial review that it was hoping for

 19th March 2021

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‘Toulouse’s suggestion was not what Audrey wanted to hear.’

– Moulin Rouge

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Sometimes – just sometimes – in the world of law and policy there are moments when welcome things do happen.

Back in August 2020 this blog covered the government’s announcement of an ‘independent panel to look at judicial review’.

It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.

But.

It is sometimes strange how things turn out.

The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.

In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.

(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)

The concluding observations of the report could have even be a post on this very blog:

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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.

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‘We want to keep this conversation going.’

We can bet they do.

Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.

*

At bottom, the problem here is a mismatch, a dislocation – such as those recently discussed on this blog.

The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.

The commission, to their credit, looked hard and reported on what they saw.

Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.

Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.

One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.

But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.

**

For a more detailed account of the just-published report, see Paul Daly’s blogpost here.

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If you value this free-to-read post, and the independent legal and policy commentary this blog and my Twitter feed provides for both you and 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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