Category: Courts and the administration of justice

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

7th June 2021

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

This post is not about that person.

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All very dramatic.

But nothing came of it.

No charges were brought.

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

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

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

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

Nonetheless the CPS insisted:

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

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

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

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

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

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

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

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

*****

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Computer says ‘guilty’ – the scandals contained within the Post Office miscarriage of justice scandal

 4th June 2021

One of the successful appeal barristers in the Post Office miscarriage of justice scandal has given a powerful and important speech, which you should click on and read here.

Almost every paragraph contains devastating stuff – mistake and abuse, after mistake and abuse.

So immense a miscarriage of justice was the whole affair that it is difficult to get one’s mind around the scale of what went wrong.

I think there were three particular scandals that comprise the wider scandal – though this is not an exhaustive list.

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One scandal is the extent of what went wrong and how long it took for anything to be put right – the number of people involved and affected, and the length of time it has taken for there to be any justice.

Here it should also be noted that had it not been for exemplary judging in the civil case by Mr Justice Fraser, there may still not be anything approximating any justice in this case.

A huge, horrible system failure of the English legal system.

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A second scandal is just how many managers and lawyers in the Post Office knew that there were injustices – or did not care that there were injustices – but pressed on with the prosecutions and resisting the civil claims anyway.

Here the failure is not so much of a system but of individual professional decisions made by many who could and did know better.

The aggregate effect of all these bad decisions was immense – but each decision could and should have been different.

It is not good enough for those who made those bad decisions to hide behind any system failures – each should be held accountable for their individual decisions.

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A third scandal is the most basic of all – and is more fundamental than the failure of the legal system and the failures of managers and lawyers.

This scandal is about human credulity.

This scandal is about how mere shortfalls on a computer system were capable of being sufficient evidence in-and-of-itself for postmasters and postmistresses to be criminalised.

Computer says: guilty.

Here the scandal is not about systems or decisions – but about the nature of evidence and proof itself.

A problem of general gullibility.

As the appeal barrister Paul Marshall says in his speech:

‘One of the features of these miscarriages of justice is that, in almost all cases, the only evidence against the defendant in question was a shortfall shown in the Horizon computer system.   If you remember only one thing from this talk, bear in mind that writing on a bit of paper in evidence is only marks on a piece of paper until first, someone explains what it means and, second, if it is a statement of fact, someone proves the truth of that fact.  

‘The simplest explanation for the Post Office scandal is that documents generated by the Horizon computer system were routinely treated by lawyers and judges as though statements of fact that were true, without bothering to consider how their truth should be established.  It was taken as given that what a computer record showed was correct. The shallowness of this approach is reprehensible.’

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Even if the legal system had worked better, and even if Post Office managers and lawyers had made better decisions, there was always going to be a problem if such uncritical deference was given to computer records.

A computer should never be the one to, in effect, pronounce guilt.

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The cynical reason why the Home Office may be invoking ‘National Security’ and the “Human Rights Act’ so as to delay publishing the Independent Panel Report on Daniel Morgan

27th May 2021

There is a stand-off between the home office and the Daniel Morgan independent panel over publication of the panel’s report.

From the perspective of the Morgan family this is unfortunate – and even heart-breaking.

It is a horrible situation.

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The report will be important – whatever its content – for three reasons.

First: it will be nearest we get to a definitive account of the circumstances of the 1987 death of Daniel Morgan, the private investigator murdered in south London.

Second: it will also set out, as far as possible, how and why investigations and prosecutions kept failing, again and again – and the relevance (if any) of the relationships (corrupt or otherwise) between the metropolitan police, the press and the private investigation industry in explaining those failed investigations and prosecutions.

And third: it will be the nearest we get in practice to ‘Leveson 2’ – the general inquiry into the relationships between the metropolitan police, the press and the private investigation industry, an inquiry which has now been cancelled by the current government.

So far, the coverage of hacking and the other (so-called) ‘dark arts’ have given a lop-sided view of what happened, focusing on the press and newsroom culture – but the press was the customer in the wrongful trade in personal information at the relevant times – the ‘demand-side’.

What is still obscure is the ‘supply-side’ of what happened – especially the role of the police and the private investigators.

Even without the particular circumstances of the death of Daniel Morgan and its aftermath, it all would be an extremely complicated world to understand.

So it is no surprise that panel has spent since 2013 putting this report together.

And now the report is ready to be published.

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But.

The report has not been published.

The home office is insisting that they review the report before publication and they will not commit to a date for publication.

Under the terms of reference for the panel it is envisaged that the home secretary arrange for the report to be placed before parliament – and that would be the means by which the report would then be published and thereby enter the public domain.

The understanding is (though I am aware of different opinions) is that by placing the report before parliament that it would thereby acquire absolute privilege – which means that nobody can be sued for defamation in respect of the content of the report.

Whether or not this legal analysis is correct, it was certainly envisaged that his would be the procedure and – regardless of the legalities – it is certainly the fitting way for such an important report to be dealt with.

Not many reports are solemnly placed before the parliament by the home secretary.

And although some say the report should just be leaked, this is one report that – perhaps more than any other – should be published ‘by the book’ – as it is ultimately about the rule of law itself.

*

What is the reason for the current stand-off?

We appear not to have the true reason – but we do know this because the reasons so far given do not make sense.

According to one blogpost – which I cannot vouch for as I did not write it and I have not seen the underlying evidence for its assertions – there has been a succession of home office excuses for the delay.

Whether or not there have been earlier home office excuses for the delay, the current reasons are that the home secretary needs time to review the report because of the home secretary’s responsibilities in respect of national security and under the human rights act.

Balderdash.

Codswallop.

Flapdoodle.

Utter twaddle.

These cannot be serious grounds for the following reasons.

First, the home office do not yet have a copy of the report and so cannot know in advance whether a report into the circumstances and aftermath of a murder in a south London carpark in 1987 raises any current national security and under the human rights act issues in 2021.

Second, the report has already been vetted by the metropolitan police legal department who would have been able to identify any such issues – and indeed the home secretary would presumably have to rely on the metropolitan police for this supposed review, given the report deals with police operational issues.

And third, the panel has itself ensured that it has had experienced and extensive legal advice – and have followed the usual ‘Maxwellisation’ process of ensuring what is to be published would be legally sound.

Indeed, the terms of reference envisaged that the emerging findings of the inquiry and the final report could be released directly and freely to the Morgan family, and this provision would not make sense if there was a prior formal home office review stage.

The excuses of of national security and under the human rights act are improvised and artificial excuses to justify delay – and one suspects that there is not a single person inside or outside the home office who has a sincere belief in these excuses.

*

But why these two particular excuses?

At first, it seemed a puzzle.

My best charitable guess was perhaps the home office simply did not want to set a precedent for immediately publishing reports that were outside the scope of the inquiries act.

Yet that did not explain why these two particular excuses were selected.

And then it became obvious.

This is all about litigation – and about providing cover for litigation risk.

National security is one issue that the courts will invariably defer (with nods) to the home office – and if the home secretary makes an assessment then even the current president of the supreme court will say this has to be accorded ‘respect’.

And the human rights act point, a clever one, is that under article 2 of the European convention there is a ‘right to life’ which again, once invoked, means that the courts are unlikely to conduct any balancing exercise.

The combination of these two grounds mean that the home office would be able to resist any judicial review of their delay – for government lawyers would just need to say national security and the human rights act, and a court would be unlikely to intervene.

And – and this is crucial – it also works the other way round: for if the panel threatened to publish the report itself then the home office could use the same two grounds for obtaining an injunction against publication.

Indeed, one suspects that the home office lawyers are currently insisting on formal undertakings from the panel that the panel will not publish the report directly.

*

If my reasoning here is correct – and I cannot think of any other plausible explanation for why the home office has invoked national security and the human rights act – then the home office and its lawyers are engaged in a cynical exercise of making the delay to be litigation-proof.

Such gaming of the judicial process is not necessarily an abuse of process – indeed civil lawyers often use such tactics and even have a big white book packed with ways by which parties can win cases other than on the actual merits of the case.

But if such tactics are legally permissible that does not make them normatively acceptable.

And in these circumstances, such tactics are nothing other than disgusting. 

There is no good reason for this delay – and the brother of Daniel Morgan should not have had to tweet this.

The independent panel report should be published without any further delay.

*****

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The Daniel Morgan independent panel in effect tell the Home Secretary: ‘you have no authority here Priti Patel, no authority at all’

20th May 2021

Yesterday’s post was about the home secretary making an extraordinary intervention that would delay the long-awaited publication of report of the independent panel on the death of Daniel Morgan.

And then came further news that the panel were refusing to give the report to the home secretary:

This is a splendid and spirited response from the panel to what is an unconvincing attempt by the home secretary to intervene.

And alluding to that infamous parish council meeting, one wag caught it perfectly:

(Though, of course, in that other instance, the recipient of that comment was the one in the right, as this blog then explained.)

*

The move by the home secretary may not only fail – it may be counter-productive.

Last week those who followed the Daniel Morgan case were wondering whether the impending publication of the independent panel report would get any press or public attention.

And then our clumsy bullying Home Secretary sought to clumsily bully the independent panel.

Well.

 

Such PR is priceless.Without her intervention, the report may have generated little interest beyond those who had an interest anyway.

Now there is far more interest.

And as someone was quoted in the news report:

“There are no national security issues involved. There are national embarrassment issues.”

If this is correct (and I have no idea) then, thanks to the home secretary, more people will now be aware of this.

Before attempting to intervene, the home secretary should have read the terms of reference of the independent panel – read them, and understood them.

**

(With apologies to the great Jackie Weaver)

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Comments are welcome, but they are pre-moderated.

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