Category: Courts and the administration of justice

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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The Ministry of Justice needs leadership – but we are served scorecards

25th October 2021

Another weekend gone, and another proposed ministry of justice policy reported in the Sunday press.

The last one, if you recall, came from an interview given by the new justice secretary and Lord Chancellor (and deputy prime minister) Dominic Raab to the political editor of the Sunday Telegraph.

There he spoke of a ‘mechanism’ for ministers to ‘correct’ judgments which they happened to disagree with.

And not just any judgments, of course, but those where the courts had found that the state had interfered with fundamental rights and freedoms.

One would have thought that, if the effect of such judgments needed to be overturned, this would be a matter for parliament.

But no: ministers should be able to do this, it would seem, at a whim.

As this blog averred, the fact that such a thing was his ministerial priority when the criminal justice system is in crisis was enough to make any sensible person weep.

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We now have another proposal, given to another political editor at another Sunday paper (though this was not an on-the-record interview but from a ‘source’, so it may have come from special advisors as opposed to from the justice secretary directly).

Scorecards.

This new proposal is as follows:

– Raab ‘wants people to be able to look up their local court online and check how quickly cases are dealt with’;

– the new national register ‘will give scores on the speed cases go through the system, and on the ‘quality’ of justice served, measured by the percentage of guilty pleas before cases come to court, as well as the number of cases rearranged because of problems with the prosecution’;

– the register will also score ‘victim engagement’, described as ‘how many crime victims give up and drop out of the process’

– the justice secretary has said ‘he wants ‘granular data’ on how courts are performing across the justice system’;

– the scorecards will be ‘introduced by the end of this year and data will be updated twice a year to monitor progress’; and

– it ‘is understood the Justice Secretary is keen on introducing scorecards on a regional level, so that in future members of the public would be able to look at the performance of local courts’.

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One response to this proposal is to point out (which the ministry of justice ‘source’ either did not know or kept hidden) that much of this data is already published.

That statement of the should-be obvious fell to the main opposition spokesperson on justice:

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And Lammy is right in another respect: the intention between this policy seems not for data to be published, but for court users to be misdirected.

The notion appears to be that court users will use the scorecards to put pressure on courts to perform better, and for courts to feel under pressure to show court users that they are performing better.

Court users will thereby be (mis-)directed into thinking that poor court performance is a matter for the individual courts.

But.

The problem about the court system is not micro, but macro.

The system is structurally under-resourced, and it needs leadership.

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Here, let us turn our attention from the Sunday press to the National Audit Office:

The NAO published a major report just before the weekend.

The NAO did not propose scorecards.

Instead the NAO said: “if sustainable recovery in criminal courts is to be effective, the Ministry will need to improve its leadership of the system”.

Leadership.

Yes, the NAO used the ‘L’ word: Leadership.

But instead of leadership and solid policy, we get another weekend-special gimmick.

And not only just a gimmick – but one which appears to have the intention of misdirecting court users.

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As this blog has previously averred: it does not have to be like this.

The justice secretary is a senior cabinet minister with the title ‘deputy prime minister’, as well as an experienced lawyer.

As such he is better placed than most recent justice secretaries to obtain better funding from the treasury, and to win the prize of serious reform.

But yet another weekend goes by where we are served trivial trinkets, instead of such a prize.

It is still enough to make any sensible person weep.

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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.

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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.

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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.

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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.

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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.

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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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Lord Chancellor, there is already a mechanism for the law to be changed: it is called Parliament

18th October 2021

Usually when something daft about policy is reported in the Sunday papers, you can sort-of work out the chain of miscommunication.

For example: minister to ‘special adviser’ to time-poor reporter on a background (and thereby to be re-worded) basis.

There is little wonder that the final report is often, well, inexact.

But.

In yesterday’s Telegraph, there was a report based on an on-the-record interview with Dominic Raab, the new lord chancellor and justice secretary.

And as an on-the-record interview, the usual disclaimers do not apply.

This would be what the minister actually said (or a close approximation).

News reporters can be guilty of many sins, but they rarely make up direct statements, and still less quotations.

And the lord chancellor and justice secretary is reported to have said something very striking indeed:

‘Asked about his plans to reform the Human Rights Act, Mr Raab revealed that he is devising a “mechanism” to allow the Government to introduce ad hoc legislation to “correct” court judgments that ministers believe are “incorrect”.’

The scare-quotes are lovely – but they do indicate these are the words that Raab actually used, as opposed to the rest which may be paraphrased.

Just read that statement again.

And think about it.

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First: it is not for ministers to change the law on the basis of what they think are ‘correct’ or ‘incorrect’ court judgments.

This is about as basic a breach of the separation of powers as one can imagine.

Just as judges should not make policy decisions instead of ministers, ministers should not make judicial decisions instead of judges.

If a minister disagrees with a judgment then that is one thing – but it is not for the minister to gainsay the judge on the correctness of the law.

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But that is not even the strangest thing about the statement.

Raab wants to devise ‘mechanism’ for ministers to make these ‘corrections’ – and not parliament.

But it should be parliament, operating under the doctrine of parliamentary supremacy, that should make or unmake any law in these circumstances – and by the means of primary legislation.

What Raab is proposing is a separate ‘mechanism’ where (a) laws can be made or unmade by ministerial decision and (b) that decision will be based on a minister subjectively thinking that a judicial determination is ‘incorrect’.

And note: this is not just for any old laws.

Oh no.

This is for those laws where a court – usually a senior and experienced judge or panel of judges – has found that there has been a breach of fundamental rights.

If any legal ‘corrections’ should not be done in a fast-track way, without parliamentary involvement and on the basis of mere ministerial opinion, then it should not be where a court has found there to be breaches of fundamental rights.

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In essence, what the lord chancellor and justice secretary is actually proposing is that a minister can by executive fiat reverse a judgment on the basis of a subjective opinion about ‘correctness’ when a court has found there to be a breach of a fundamental right.

Think about that.

And who is proposing this?

The very cabinet minister who has a constitutional role, recognised in statute, of protecting the rule of law.

Maybe the minister was misquoted or misunderstood, but there has not been any correction or clarification of the Sunday press report.

So presumably Raab is therefore happy with how he has been reported.

But.

There is already a mechanism where the other elements of the state can respond to such (perceived) judicial over-reaches.

It is called parliament.

And it is for parliament to decide how to respond – and to do by primary legislation.

And not ministers.

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Or in the words of the the government’s former chief lawyer:

 

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Last year judges were too activist, and now they are being reined in – but neither claim is correct

16th October 2021

Those who write about the politics of the judiciary in the United Kingdom have their very own two-for-one offer.

First, you write about whether the judges are too activist and need to be reined in.

Then, after a while, you write about how the judges are no longer too activist and have been reined in.

And loop.

Over at Prospect – the only United Kingdom current affairs magazine to take law seriously (and where I, ahem, currently have a column), there was this cover story back in March 2020.

The sub-headline asked us solemnly: have the judges overplayed their hand?

It was a great, well-researched and detailed article, and it rewards careful reading.

But.

I thought it was misconceived, and I said so in the April 2020 issue.

My contention was that there were (and are) two different things.

The first is the political-media narrative of ‘judicial activism’ – and this has a life of its own.

And then there is the mundane plodding everyday reality of the work of the administrative court and of public lawyers, where ‘ambitious’ points invariably fail and conservative judges certainly do not want to make policy decisions or trespass outside the judicial arena.

The two things have little in common.

Thrilling narrative v boring reality.

(Administrative law and public law are names for the special area of law which provides the legal obligations and powers of public bodies and the rights of those whose seek to challenge those public bodies, usually by ‘judicial review’.)

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Anyway,  Prospect now has a piece – lo-and-behold – explaining how the judges have been reined in:

“The government wanted to rein in the Supreme Court. Now it may not need to.”

Well, what a surprise.

This is not to say the piece is not great, well-researched and detailed – it is – and again it rewards careful reading.

But also – as before – it is in my view misconceived.

The mundane plodding everyday reality of the work of the administrative court is just as before.

As usual ‘ambitious’ points invariably fail and conservative judges still do not want to make policy decisions or trespass outside the judicial arena.

What has actually happened is that the political-media narrative has swung around.

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‘Judicial activism’ has long been a political-media rather than a legal event.

The two Miller cases are exceptional – dealing with distinctive (and literally unprecedented) constitutional predicaments and were (and are) not representative of the general casework of the courts.

The last real bout of judicial activism in administrative law ended in the early 1990s, with cases like M v Home Office (a decision far more significant in general public law terms than either Miller case).

And even that 1980s/1990s bout was nothing compared to the big shifts in 1960s, where cases such as Ridge v Baldwin, Padfield, and Anisminic created public law as we now know it.

Other than the extraordinary but unique Miller cases, public law has generally been dull for the last few years.

(I know this because I became a lawyer at the turn of the century so as to do public law, and it really has not been an activist area of law.)

The fact that the recent government-supported review into reforming judicial review was such a damp squib was because it was based on what the courts were actually doing – and not on what the political-media narrative said the courts were doing.

Almost all the leading cases are still from the last century.

The main principles are still those asserted in the 1960s and then articulated in the 1984 GCHQ case: irrationality, unreasonableness, and procedural irregularity.

However: wait another year or so and there will again be earnest concern about ‘judicial activism’.

Then some time after that the judges will be ‘reined in’.

And so on – until it is perhaps finally realised that the media-political narrative of ‘activist judges’ has a life of its own, and is not closely connected with the general public law work of the courts.

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Understanding the hostility to the Human Rights Act – and why this matters

7th October 2021

This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.

That was telling.

Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.

Some resort to blaming cats (and I am not making this up).

And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?

What are the actual reasons why the Human Rights Act 1998 is so hated?

I think there are four reasons.

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The first reason is its very title and its express mention of ‘human rights’.

For many this title seems alien – and provocative.

It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.

The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.

This is, of course, misconceived – both in theory and practice.

In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.

And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.

But we pretend that the United Kingdom is not like that – that we are always the good guys.

Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.

*

The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.

This is a similar sentiment to the hostility to the European Union that contributed to Brexit.

And it is the ‘E’ word that seems to make all the difference.

The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.

We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.

And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.

The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.

Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.

That the the rights are seen as ‘European’ is, of course, a misconception.

The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.

Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.

But instead the ECHR provisions – and thereby the Human Rights Act – are European.

‘Ugh.’

*

The third reason is that the Human Rights provides rights for humans, including the humans many do not like.

The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.

For example: foreign criminals, domestic criminals, asylum seekers, and so on.

Why should these people have rights?

The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.

But that is the nature of human rights: you have them because you are a human.

But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.

You may ‘use’ your rights, but they – they ‘abuse’ their rights.

The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.

But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.

If you think about it.

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The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.

Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.

But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.

And part of this is – in my view – the fault of the courts themselves.

After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.

A right that was enforced in cases against the media.

But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.

No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.

Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.

The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.

If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.

*

As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.

The Act does not actually do a great deal, but it does enough to make a difference in certain situations.

But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.

And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.

It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.

But.

There is a problem here.

A real problem, which sensible liberals should not ignore.

Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.

Laws such as the Race Relations Act were – believe it or not – controversial at the time.

The Human Rights Act – twenty-one years after it took effect  – remains controversial and – in good part – unloved.

It has not simply become embedded as part of the political consensus.

And that is a failure.

A failure that cannot be wished away.

So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?

For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.

The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.

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Why the whole-life sentence for the murderer of Sarah Everard is correct

30th September 2021

Earlier today the murderer of Sarah Everard received a whole-life sentence.

Such a sentence is exceptional – the relevant statutory provision sets out five express instances where this sentence can be imposed:

‘(a) the murder of two or more persons, where each murder involves any of the following— (i)a substantial degree of premeditation or planning, (ii)the abduction of the victim, or (iii)sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(c) the murder of a police officer or prison officer in the course of his or her duty, where the offence was committed on or after 13 April 2015,

(d) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or

(e) a murder by an offender previously convicted of murder.’

But if you read the provision carefully, you will see that these five categories are not a closed list, but are instead examples of offences where the ‘the seriousness of the offence…is exceptionally high’.

The use of the word ‘include’ in paragraph 2(2) of that provision tells us the list is (as lawyers say) non-exhaustive.

In other words: other offences can warrant a whole-life sentence if ‘the seriousness of the offence…is exceptionally high’ – and what constitutes exceptionally high seriousness can be reckoned by comparison with the five express categories.

*

The murderer of Sarah Everard – and, no, I am not typing out his name – does not on the face of it fall within the five express categories.

There was not more than one victim (so not (a)), who was not a child (so not (b)) nor a police officer (so not (c)), the murder was not done for any of the specified causes (so not (d)), and the murderer has no previous conviction for murder (so not (e)).

But these are only five illustrations of where ‘the seriousness of the offence…is exceptionally high’.

That said: it would not be enough for a judge to merely assert that an offence had sufficiently high seriousness so a whole-life sentence can be imposed.

Such a sentence would be open to being successfully appealed.

And so the task of a judge imposing a whole-life sentence when the circumstances are not one of the five categories is a difficult one.

*

In the case of the murderer of Sarah Everard it seemed to me before sentencing that there was a real possibility that the judge would find a away to impose a whole-life sentence in this case.

This was because at the sentencing hearing the prosecution set out that it seemed that the offence was committed by a police officer using police powers.

And just as the law on whole life sentences recognises the special nature of police powers at (c) – ‘the murder of a police officer or prison officer in the course of his or her duty’ – it seemed to me that a murder committed by a police officer by means of the use of their police powers was comparable.

https://twitter.com/davidallengreen/status/1443502936336785408

But – as Joshua Rozenberg this morning averred at his blog – it was not inevitable that the judge would find a basis to find an exception in this case – even though on the basis of the (uncontested) evidence set out in court a whole-life sentence seemed appropriate.

*

The judge – Lord Justice Fulford – did set out a basis for a whole-life sentence in this basis, and this is contained in paragraph 19 of the sentencing remarks (which should be read in full).

Here I set out paragraph 19 and I insert my comments in brackets:

‘The most important question in this sentencing exercise, therefore, revolves around a question of principle: if a police officer uses his office to kidnap, rape and murder a victim, is the seriousness of the offence exceptionally high, such that it ought to be treated in the same way as the other examples set out in paragraph 2(2).

[Here the judge emphasises the fact that the murderer had used his police powers.]

‘In my judgment the police are in a unique position, which is essentially different from any other public servants. They have powers of coercion and control that are in an exceptional category. In this country it is expected that the police will act in the public interest; indeed, the authority of the police is to a truly significant extent dependent on the public’s consent, and the power of officers to detain, arrest and otherwise control important aspects of our lives is only effective because of the critical trust that we repose in the constabulary, that they will act lawfully and in the best interests of society. If that is undermined, one of the enduring safeguards of law and order in this country is inevitably jeopardised.

[The special position of police in our society is emphasised.]

‘In my judgment, the misuse of a police officer’s role such as occurred in this case in order to kidnap, rape and murder a lone victim is of equal seriousness as a murder carried out for the purpose of advancing a political, religious, racial or ideological cause.

[Here the judge takes (d) as the comparator of the specified categories, and not as I suggested (c) – and you will see why next.  And note: it is not enough for the judge to assert that it was equally serious, and so he has to reason it out.]

‘All of these situations attack different aspects of the fundamental underpinnings of our democratic way of life. It is this vital factor which in my view makes the seriousness of this case exceptionally high.

[The judge argues that the values behind (d) are applicable in this case, as the manner of the murder undermines the rule of law – and now, having made that argument, he ties it to the facts of the case.]

‘Self-evidently, it would need for the police officer to have used his role as a constable in a critical way to facilitate the commission of the offence; if his professional occupation was of little or no relevance to the offending, then these considerations clearly would not apply.’

[Here he is careful to distinguish this case from situations when a murderer happened to be a police officer – for what makes this case exceptional is that the police powers were used in such a way that undermined the rule of law.]

*

This sentence may be appealed – and as it rests on an exception rather than an express category, it is possible that the court of appeal may substitute a lesser life sentence.

But.

Lord Justice Fulford is a senior and experienced criminal judge – and indeed it is rare for a Lord Justice to preside at any trial – and the reasoning in paragraph 19 is (in my view) compelling.

It is difficult to imagine better reasoning for a case to warrant a whole-life sentencing outside of the five express categories.

(And, in any case, an appeal may well be moot in this case, as the new sentence is likely to still mean the murderer is never released.)

*

Of course: there is a certain arbitrariness in whether a murder gets a whole-life sentence or not.

Had the facts been that Everard had got into that car for any other reason than by use of police powers, the ordeal would have been just as terrifying, but it would not have ended with a whole-life sentence for the murderer.

Or had the murderer only been pretending to be police officer, and so was not actually using police powers, it may also not have ended with a whole-life sentence for the murderer.

Victims of other murderers will suffer as much if not worse than murderers caught by the whole-life categories, but their murders will get shorter sentences.

And, of course, the victims of other murderers are not any less dead.

There is something to be said for the whole-life tariff being the starting point for murder, only to be reduced with mitigation.

(Though many other liberals will disagree, but there is nothing in my view inherently wrong with life-meaning-life for murder, notwithstanding the view of the European Court of Human Rights.)

But.

If there are to be whole-life sentences only for a minority of murder cases, then it must be right that murderers who use the coercive powers conferred by the state to commit those murders are treated as if they are attacking society itself.

And this is why the sentencing remarks of Lord Justice Fulford setting out how this offence warrants a whole-life sentence are (in my view) spot-on and we should hope this sentence survives any appeal.

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Why we should cherish the Supreme Court of the United Kingdom for complying with the Freedom of Information Act, when other public bodies would not have done

 

5th September 2021

Bless the justices of the supreme court of the United Kingdom.

As you may be aware, there has been a substantial – and amusing, even embarrassing – disclosure under the freedom of information act of documents relating to the departure of former supreme court justice Jonathan Sumption.

A pdf of the disclosure is here – and it rewards being read in full.

I was alerted to this disclosure by this thread from Adam Wagner.

And Joshua Rozenberg has set out a characteristically detailed post about the situation on his blog.

My post is just a footnote to the disclosure and Rozenberg’s post – from the perspective of a former central government freedom of information lawyer.

And, in summary, the footnote is: bless.

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By which I mean no disrespect to the justices of our supreme court.

Quite the opposite: they should be cherished.

For they must be the only senior public sector officials who comply with the freedom of information act in the spirit in which the legislation is intended.

Senior figures at any other public body would have worked with their freedom of information officer to invoke cynically any exemptions to delay and/or block publication.

Indeed, most senior figures in public bodies would not have been so naive as to create things which are capable of being FOId in the first place.

If the freedom of information act worked as it was supposed to work than the sort of disclosures we now have from the supreme court would be commonplace throughout the public sector.

But it isn’t, because it doesn’t.

The freedom of information act is, in effect, an ornament not an instrument.

There is not real sanction for non-compliance or evasion – and any appeal will take years to get anywhere.

It is almost impossible to have disclosure from a public body against its will.

And it is actually impossible to do it short of years’ long process of appeals.

Everyone concerned knows this.

And non-disclosure letters from public bodies are the most dismal, unconvincing and insincere documents produced by public bodies.

Nobody produced in the production, dispatch and receipt of a freedom of information non-disclosure letter has any sincere belief in the contents.

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A bit like pizzas, in a way:

Source: The Onion

*

The supreme court, bless them, has taken the scheme of the freedom of information act seriously – and thereby taken the rule of law seriously.

Good on them.

For even though there is no real risk of sanction – nor even compulsion – the supreme court has followed the act, and it made potentially embarrassing disclosures properly.

More than (yet another) ponderous extra-judicial speech about the ‘rule of law’ this disclosure by itself shows how the supreme court takes the rule of law seriously.

As a supreme justice once averred in another context: that is a relief.

**

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Slaves as merchandise: what the first reported English case law on slavery tells us – the Butts v Penny case of 1677

13th August 2021

This blog recently looked at the end of the Atlantic slave trade, with the last (known) surviving transatlantic slaves and what their lives told us about law.

The last (known) victim died as recently as 1940, that is within the lifetime of four sitting United States senators.

This blog now moves to the beginnings of how English law dealt with slavey, with the Butts v Penny case of 1677.

(This is the first of an intended series of posts, dealing with cases on slavery and the slave trade.)

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Before we look at the case, there are three points of context.

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First, and by way of background: there was (supposedly) by the 1600s no (formal) slavery in England.

There had been been something known as ‘villeinage’ – where villeins, like human garden gnomes, were in effect held to be property fixed to the land.

Villeins however had (limited) legal protections, and could not be bought and sold like mere chattels.

By the 1600s, however, villeinage had in substance ended.

But it was the nearest English law had, at that point, to the notion of slavery.

*

Second: by the 1670s English merchants had been happily and deeply involved in the slave trade for over a hundred years.

The slave trader John Hawkins was trading in slaves as early as the 1560s.

So impressed were those at the time with this trade in slaves that when Hawkins was granted a coat of arms, on its crest there was ‘a demi Moor in his proper colour, bound and captive’.

The role of English merchants in the trade in slaves was thereby not something that those at the time were somehow ashamed of – it was something openly celebrated.

At the time, a coat of arms was among the most public statement about a thing a person could make.

‘a demi Moor in his proper colour, bound and captive’

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Third: by the 1670s the trade in slaves even had the official recognition of the English state.

As early as 1618, James I had supported the establishment of a ‘Company of Royal Adventurers Trading into Africa’ and in 1663 a royal charter was granted to the Royal African Company.

So although the English courts had not yet grappled with the slave trade in its case law, and although it was a concept not (directly) known in English law, slavery and the slave trade was certainly something that was legally recognised and sanctioned.

For a court in 1677 to decide that there could not be a trade in slaves would go against both over a hundred years of actual mercantile practice and over fifty years of official support.

The odd thing, perhaps, was that it took so long for a dispute to reach the English courts to be reported.

*

For completeness, mention should now be made of a 1569 case: Cartwright.

This is the case where (supposedly) it was held that ‘England was too pure an air for a slave to breathe in’.

The problem is that this celebrated – and later much-quoted – case was that it was not reported (that is, recorded) at the time, and we only know about if from later mentions in the 1700s.

Like a lost Shakespeare poem that we know about only from quotation, we do not have the original.

And it not being reported at the time, it had no contemporary impact or wider significance – if a judge said those rousing words at all.

*

So we come to the 1677 case of Butts v Penny.

Here we have two law reports.

The first is from a collection of cases reported by the judge Sir Creswell Levinz.

Unfortunately, the Dictionary of National Biography tells us, that is ‘some division of opinion among English judges as to Levinz’s merits as a reporter’.

His report is here – and it is one brief report among many others he reported:

The other report is not from a judge nor even from a practising lawyer, but from an endearingly obsessive non-practising barrister called Joseph Keble, who just turned up to court every day to report cases that ended up filling twenty volumes.

His report differs from that of Levinz – and is even shorter:

Again, for Keble this was just one report among many, many others.

Neither Levinz nor Keble emphasise their reports of this case, and if you scroll (or leaf) through their reports, the report is just reported like any other.

The fact that the case was about slaves did not strike either reporter as being especially noteworthy, and presumably it did not strike their contemporaries as being that noteworthy either.

The reports are not consistent – for example, one says 100 slaves and one says 10 (and a half?).

As Levinz may have been a/the judge in the case, and is anyway the more senior lawyer of the two, his report would normally be preferred – regardless of his mixed reputation.

What does this case tell us?

First: Butts (the plaintiff) had bought slaves, and that Penny (the defendant) had taken them.

Second: Butts was suing Penny on the basis of ‘trover‘ – which means that Butts was not demanding the physical return of the slaves but was suing for their cash equivalent.

This was thereby a commercial case – and trover cases were a commonplace of the time – but unlike most commercial cases (then as now) this had not settled and so had to be determined by a court.

Third: the value or other importance of the case was such that Penny instructed a lawyer, Thompson, to put the defence – on the law, rather than on the facts.

Fourth: the lawyer Thompson put the defence that there could not be property in people – Keble says the lawyer compared the situation with the then extinguished state of villeinage.

Had the court sided with Thompson’s submission on this then perhaps the history of the law of slavery would have taken a different direction.

But after a century of English slave trading and given the royal sanction for the slave trade, it would have been a robust court that would have made such a decision.

Fifth: the court deferred to mercantile practice – the custom of merchants.

In essence: because as a commercial fact slaves were bought and sold, then the court must accept that slaves could be bought and sold.

Slaves had fewer protections than villeins – indeed no legal protections at all.

Slaves – human beings – were ‘merchandise’.

And as merchandise, they could thereby be the subject of an action for trover.

Like any other property.

And sixth: the court made reference to the slaves being ‘infidels’ as if that somehow reinforced the decision made.

And so the plaintiff won.

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The striking thing about this case is, well, just how un-striking it was at the time.

A commercial case among hundreds of others, with the briefest (and inconsistent) law reports.

The court just nodded along with the custom of merchants.

And that was that.

No outcry, no obvious public attention.

The same matter-of-fact, bureaucratic mentality that was to be a feature of how the English courts generally dealt with the issue of slavery for the next hundred or so years.

The court did not even seem to regard itself as making new law or establishing any precedent – it was instead just applying existing commercial law to yet another form of property.

As if it was completely normal.

One can presume that before 1677, similar cases would have settled on the assumption that slaves were ‘of course’ merchandise and so could be subject to an action in trover.

Only this otherwise unknown Mr Penny went to the length of litigating the case to court, employing the lawyer Thompson to raise a legal (rather than evidential) defence, and then Mr Penny lost.

Butts v Penny is an unexceptional exceptional case.

Exceptional to us, as we see human beings casually reduced to ‘merchandise’.

Unexceptional to those at the time, other than Mr Penny getting his lawyer to make a spirited but futile defence.

And this was the first mark on the legal record of how English courts would practically deal with the slave trade.

As Hannah Arendt said in a different context, this is how banal an evil can be.

**

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