Category: Courts and the administration of justice

Positive vs Normative Statements – You may not want to blame the lawyers but it remains a fact that lawyers facilitate(d) slavery, torture, imperialism, police brutality, and so on

8th August 2021

Today’s post is, in effect, a footnote to yesterday’s post on laws and systems – what connects slavery, torture, imperialism, police brutality and so on.

The reason for this post is that some commenters responded to yesterday’s post as if my primary purpose were to impose blame on lawyers for their role in the facilitation of slavery, torture, imperialism, police brutality and so on.

Lawyers were only doing their job, the responses went, and so it was rather unfair of me to blame them.

All they were doing was advising on the law, and that is what is lawyers do.

I was being unfair, the response averred.

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Such a protest is, in my view, to confuse positive and normative statements.

The existences of slavery, torture, imperialism, police brutality, and so on, in any organised society does – as a matter of positive fact – require the involvement of those who make and deal with laws.

This is simply because such things can only exist in an organised society if they are permitted – or at least recognised – by law.

And in modern societies, there is often a distinct profession for those who practise in laws: lawyers.

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Whether any lawyers – individually or collectively – should be regarded as culpable for recognising or permitting activities is a separate and distinct argument to the one advanced in yesterday’s post

There may, for example, be a ‘cab rank’ rule which obliged lawyers to make submissions to court that they personally did not agree with.

Or the world-view of the time and place may have meant that, say, slavery, torture, or imperialism were not morally contested – and so it may be that it would not be historically fair to regard the lawyers enabling such activities as being especially culpable.

But even taking such normative points at their highest, there remains the positive and undeniable fact.

That is the positive fact that slavery, torture, imperialism, police brutality, and so on, can only exist in any modern society because they are facilitated by those who deal with and practice in law.

And this remains true – even if we can excuse (or find excuses for) individual lawyers who participate(d) in recognising or permitting such activities.

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Laws and systems – what connects slavery, torture, imperialism, police brutality and so on

7th August 2021

This is a depressing post about law and policy, but it is one which is triggered by work I am doing on a particular project.

One of the things that I am researching and writing is about how lawyers made possible slavery and the slave trade – a topic that I wrote about at Prospect magazine, as well as in previous posts on this blog and on Twitter (see here and here).

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Of course: human beings are capable of being cruel to other human beings without laws or lawyers.

An individual person can coerce another person, can torture another person, can expropriate the possessions of another person – and so on – without any legal system or advisers in place.

That, unfortunately, appears to be the nature of our species – at least given the archaeological and historical record.

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For enslavement, torture, expropriation – and so on – to exist in any organised society (that is, say, a human grouping larger than Dunbar’s Number) requires the help of norms and rules.

Either such practices will not be prohibited or such practices will be positively facilitated.

In other words: slavery, torture and imperialism in any society depend on systems of rules being in place that enable them.

And in such modern societies, where the practice of law is usually a distinct profession, this in turn means that such practices are facilitated by lawyers.

Lawyers draft the relevant legal instruments, and lawyers then advise those who seek to rely on legal rights as set out in those instruments and otherwise.

And many of these lawyers did so (and some still do, for example, with the torture memoranda in the United States) with absolute moral neutrality – they are not here to gainsay the law, but to advise on what one can get away with under the law.

A similar legal infrastructure exists still in respect of defending the police and other state actors in respect of coercion and lethal force against civilians.

None of this – from slavery to systemic police brutality – none of this would be possible, but for laws and those who make those laws work.

Of course: the saving grace is that there are laws which (supposedly) prohibit each of these things, and there are lawyers who will challenge such laws and defend those affected.

And such liberal and progressive laws and lawyers should be celebrated.

But.

It has to be laws and lawyers which take on slavery, torture, imperialism, police brutality – and so on.

And this is because such things only exist in any organised society because of laws – and often lawyers – in the first place.

All that liberal and progressive  laws and lawyers are taking away are what other laws and lawyers provided in the first place.

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The 2011 Riots, ten years on

1st August 2011

Ten years ago I went along to the south London shopping centre expecting to report on a riot.

At the time I was legal correspondent for the New Statesman, and all that day I had seen on Twitter that, among other places, there would be disorder in Bromley – and I was interested in what the reaction of the police and the courts would be.

But there was not a riot.

And so in a splendid exercise of journalism, I filed a piece on a riot not taking place.

The original piece even had a photograph from me of a deserted Bromley town centre – perhaps the least dramatic photograph ever published by any news organ, and certainly the only one that has ever been published that has been taken by me.

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Elsewhere, however, there were riots.

Following the riots, there were speedy arrests and speedy prosecutions.

And, in turn, there were speedy convictions – and, I recall, very harsh sentences.

At the time the sentences seemed disproportionate and were meant to be disproportionate.

Today, ten years later, it is reported that a prosecutor from the time had/has doubts as to the severity of the sentences.

But at the time, few if any cared – the defendants ‘should have known better’ and they ‘got what they deserved’.

My view at the time was that it would have been better to prosecute and convict on a normal basis – to show that the legal system was not easily shaken into exceptional behaviour.

To, in a way, normalise things.

But those who supported the harsh sentences would point to the (relative) lack of riots since – as if there was a simple monocausal relationship between sentences and riots.

As it happens, many of the preconditions for the 2011 riots still seem present – and, indeed, they are always present.

And one wonders whether the harsh sentences (and decisions to prosecute) ten years ago have done more damage socially in how they have affected the lives of those, as the Guardian piece describes them, were ‘caught up’ in the riots.

Such injustices never are warranted – even as a deterring example to others.

An injustice is always still an injustice.

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

https://twitter.com/lukemcgee/status/1420302117705768961

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

https://twitter.com/lukemcgee/status/1420304587576205315

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

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Explaining the attack on judicial activism that never happened – three theories

22nd July 2021

The great theatre critic Kenneth Tynan said somewhere that any good theatre critic can describe what the the theatre of their day was doing – the challenge was to explain what the theatre of their day was not doing but could be doing, and why.

This is the same challenge for all commentators, including those of us who seek to explain what is happening – and not happening – with law and policy.

And, as this blog described yesterday, there one thing that is not happening is the government not making a full frontal attack on judicial review in the new courts  bill published yesterday.

(On this, see also Helen Mountfield QC at Prospect today.)

It is always weird when nothing happens when something is expected to happen.

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“Without venturing for Scrooge quite as hardily as this, I don’t mind calling on you to believe that he was ready for a good broad field of strange appearances, and that nothing between a baby and rhinoceros would have astonished him very much.

‘Now, being prepared for almost anything, he was not by any means prepared for nothing; and, consequently, when the Bell struck One, and no shape appeared, he was taken with a violent fit of trembling.’

– from A Christmas Carol by Charles Dickens

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Law and policy commentators were yesterday expectant of a rhinoceros, if not a baby.

So what was finally published – a mild piece of legislation – has given us a fit of trembling.

What have we missed?

And what can explain what happened?

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So far there are three broad theories.

The first is that this is a political false flag.

That the government has an illiberal plan – but for some reason is misdirecting us with this bill.

And indeed, as the eminent admiralty law jurist Gial Ackbar once averred, some things can be a trap.

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Could the ministry of justice really be planning to introduce a raft of amendments late in the passage of the bill, so as to force illiberal measures through?

One would hope not – and one expects ministry of justice officials and lawyers to have more dignity than their home office counterparts.

And – in general terms – bills often start off more contentious than they end, so it would be unusual for such a game of constitutional bait and switch.

That said, one should not let one’s laser field down: this government will seek to be illiberal if it can get away with it.

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If it is not a trap, there are two other possible broad explanations.

One is that put forward by this blog yesterday – which I will call the DAG theory, if only to distinguish me from Ackbar.

This theory is government-facing – and goes to the notion that there is (or was) actually a problem of judicial activism being a myth.

I first put this argument forward in my Prospect column last year, where I set out why there was a discrepancy between the (supposed) fears of the government (and its political and media supporters) and the reality of mundane administrative law decisions.

It would thereby not be a surprise that when the government came to actually legislate – rather than speechify – there was no real problem to solve with primary legislation.

The government had walked up a stair and passed a problem that was not there, and the problem was not there either yesterday, and indeed it had gone away.

If so, this is a similar to previous situations, where the government has sought to ‘reform’ the human rights act or to deal with ‘compensation culture’.

It is always difficult to make laws against turnip-ghosts.

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But there is a third theory, which you may find more plausible than either Ackbar’s or my own.

And that was put forward on Twitter by Alexander Horne.

Instead of my government-facing explanation, Horne argues that it is the policy of the courts that has changed.

And that because there is now no problem of judicial activism, it follows there is no need for a solution.

Horne makes good points.

There is certainly a shift in the supreme court under the new president Lord Reed – and Reed is, as this blog set out in a previous post, a judge who can write that judges should give the assessments of the home secretary more respect with a straight face.

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Where Horne and I agree is that there is currently no problem of judicial activism that needs solving – the difference between us is that I aver it was a turnip-ghost all along.

Whichever theory is correct – Ackbar, DAG or Horne – there will be some commentators and campaigners who will contend that even the two proposed reforms are too much, and that they must be opposed loudly and brashly, and deploying the language of constitutional conflict.

But a good advocate knows that one should choose one’s battles.

The government’s proposals should still have the benefit of anxious scrutiny – just in case Ackbar is correct.

But one should be wary that the language of fundamental opposition to the government be devalued, for if is wasted here then it will have less purchase when it is needed.

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A final word to the Judicial Power Project – a group with the strange view that the primary problem in the United Kingdom constitutional is judicial power and not the lack of checks and balances on either the executive or the legislature.

It would appear that the Judicial Power Project are underwhelmed with the reforms they have so long campaigned for.

You would need a heart of stone not to laugh.

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What has happened to the government’s fundamental attack on judicial review?

21st July 2021

I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.

But I cannot, because they have not.

At least not in the bill as originally published.

The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.

One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.

The latter has the strange quality in a government proposal of actually being a good idea.

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For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).

But they too saw the proposals as mild and uncontroversial.

Lord Anderson QC, an independent peer:

Lord Pannick QC, via my near namesake the president of the law society:

And via Joshua Rozenburg:

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We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.

And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.

There is also the detail about fettering judges’ discretion in respect of the new quashing orders.

But all this said: this is a significant (and welcome) law and policy anti-climax.

This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.

Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.

But as this blog previously described, the government did not get the consultation response it was looking for.

Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.

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The Home Office wants to reform Official Secrets law by pretending journalism does not exist

Over at the Guardian there is an important article – which is also worth reading just for its byline

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A rare sighting in the wild of Duncans Campbell

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The article in turn refers to this government consultation document.

The document is interesting (and worrying) in many ways – but one significant feature is how it shows the state has realised that the old state secrecy model in unsustainable in the new technological and media context.

The concern primarily used to be about what could be done by means of espionage.

And this generally made sense, as the means of publication and broadcast were in the hands of the few.

Now the bigger threat is mass-publication to the world.

This is a particularly striking passage (which I have broken into paragraphs):

“…we do not consider that there is necessarily a distinction in severity between espionage and the most serious unauthorised disclosures, in the same way that there was in 1989.

“Although there are differences in the mechanics of and motivations behind espionage and unauthorised disclosure offences, there are cases where an unauthorised disclosure may be as or more serious, in terms of intent and/or damage.

“For example, documents made available online can now be accessed and utilised by a wide range of hostile actors simultaneously, whereas espionage will often only be to the benefit of a single state or actor.”

Unauthorised disclosure is, of course, at the heart of investigative journalism – indeed some define news as being what other people do not want to hear.

And there is already an offence in respect of unauthorised disclosure by third parties.

But that offence was enacted in the happy halcyon days of 1989 – the year incidentally that the WWW was conceived.

A time where the technological extent of unauthorised disclosure was Spycatcher being published as hard copy books in Australia.

So to a certain extent, the consultation paper is not new: the state still wants to control and prohibit what unauthorised third parties can disclose to the world.

What has changed, however, is the scale of potential disclosures – and that also has changed the priority of dealing with such onward disclosure.

But, as the Duncans Campbell aver, this reorientation of the law of official secrets needs to accord with the public interest in accountability and transparency.

In the consultation paper, ‘journalism’ is not mentioned – and ‘journalist’ is mentioned in passing twice.

The role of the media – and the rights and protections of those who publish information to the world – should instead be integral in any sensible regime of official secrets.

Else we will have the spectacle of the 2020s equivalent of the misconceived and illiberal (and preposterous and futile) Spycatcher injunctions of the 1980s.

Not having proper regard to the public interest in transparency and accountability in the making of any public policy – and especially in respect of national security and official secrets – means you have to deal with these foreseeable concerns later.

Journalism does not go away, just because you do not mention it and pretend it is not there.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

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‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

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‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

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‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

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‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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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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