Category: Courts and the administration of justice

The curious incident of the “absolutely devastating” Johnson legal opinion is now even curiouser

27th September 2022

You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.

This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.

On 1st September 2022, it was reported on a newspaper website:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”

And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:

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This would have been huge, if true.

The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.

The Opinion is also dated the same day as the newspaper website article: 1 September 2022.

This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.

We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:

(Hat-tip Aubrey Allegretti, here and here.)

This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.

That firm, in turn, instructed two public law barristers (not criminal law specialists).

What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.

(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)

There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.

Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.

Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?

Who authorised this procurement and use of public money?

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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.

The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.

In my view there is even force in the argument that the Opinion does not contain any legal opinion.

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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:

One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:

This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.

You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.

This is odd.

For as the expert in parliamentary procedure Alexander Horne points out:

There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.

Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .

But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.

The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.

This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.

The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.

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As this blog set out, the Opinion is not strong.

This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.

Indeed, there cannot be many weaker legal opinions that have ever been published.

That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.

The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.

The committee’s report is, well, absolutely devastating.

The language is extraordinarily strong for such a report – for example, at paragraph 12:

“We consider this concern to be wholly misplaced and itself misleading.”

At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.

And so on.

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Caption: legal commentators reading the committee report

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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.

And this is a committee which has Conservative members as well as opposition members.

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This whole exercise is rather strange.

This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.

And, as such, it would be unfair to name them in this context.

This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.

A lawyer is only as good as their instructions.

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.

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Perhaps the committee will find there was no contempt.

Perhaps the matter will just go away.

Perhaps there will be a political feeling that the former Prime Minister has been punished enough.

Who knows.

But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).

Something rather irregular happened here, and it is not the sort of thing which should happen again.

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The magical thinking of Donald Trump

22nd September 2022

A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.

For example:

But the comparison is only made as a-kind-of-analogy.

I never thought that when writing about law in modern times I would come across actual magical thinking.

I was wrong.

Consider this:

Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.

The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.

This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.

And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.

Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.

It would be an extraordinary thing – even supernatural and paranormal.

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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.

There is no actual evidence of de-classification, then his explanation needs to deal with that absence.

There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.

It is all very odd.

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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.

If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.

The only difference here is whether the law applies to Trump as it applies to others.

Or is there a legal privilege for Trump?

This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?

Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?

Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.

For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.

 

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

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Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

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“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

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And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

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But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

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Lawyers as brands, and “legal opinions” as franchised products – on the nature of legal opinions

5th September 2022

Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.

But there were some things missing.

And one omission in particular was deliberate.

The post did not mention either of the authors of the opinion.

This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.

The authors could have been two unknown newly qualified barristers at some obscure chambers.

Or the authors could have been the ghosts of Thomas More and Edward Coke.

It did not matter.

And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.

In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.

(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)

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The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.

(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)

It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.

As such, it was almost as if he was being used as a brand, rather than as an advisor.

A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.

As I then described: what appears to have happened was that the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel – the Treasury Devil; a clever compromise was reached where it would be referred to him on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.

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In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.

Here, the barrister involved is not to blame.

Seriously.

The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.

Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.

And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.

Who knows what the authors of the opinion thought about their work being used in the way that it was?

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If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.

For if the legal point is sound, the reputation of the lawyer is irrelevant.

And if the legal point is unsound, the reputation of the lawyer will not save it.

This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.

As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.

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As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:

(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)

And it also the view of the professor of public law at the University of Cambridge:

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Such concurrence is always a reassurance.

But.

Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.

Because it is the content of a legal opinion that matters the most.

Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.

Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.

But respect is not necessarily deference, and it is certainly not subjugation.

And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.

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Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.

For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.

They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.

And, as an opinion, it is always open to those to whom it is disclosed to take their own view.

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So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:

(Though the “highly arguably” is adverbly painful to read.)

But.

There is nothing wrong with being a blogger.

For even bloggers can look at kings.

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The not-at-all-devastating “devastating” Johnson opinion on contempt of parliament

2nd September 2022

The “opinion”, we were told, would be “devastating”.

To quote the Daily Mail:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.'”

Not just devastating – but devastating absolutely.

Gosh.

Huge, if true.

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The opinion has now been published on the government’s website.

The government website calls it a “legal opinion”:And the document itself is formatted and signed as an opinion, and it even records the instructing solicitor, who happens to be a criminal defence specialist.

But the opinion does not set out any views on the criminal law, and nor is it in respect of criminal proceedings, and the authors of the opinion are not criminal lawyers.

Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.

One could even perhaps doubt – but for (ahem) what the government website says – whether this document constitutes a legal opinion at all.

That it has been placed happily into the public domain would make one wonder if any legal privilege would attach itself to this document.

But.

The question for this post is not whether it is a legal opinion or not, but is it devastating?

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An opinion – which is the name for a document setting out the views of a lawyer on a particular legal matter – is a curious form of legal document.

It is not a pleading or statement of case, which would set out a client’s legal position before a court or tribunal.

Nor is it a statement containing evidence that would set out the facts which a party wishes to put before a court or tribunal.

And nor is it a skeleton argument, which provides a summary of the legal arguments on which a party wishes to rely.

All three of these documents – pleading or statement of case, statement of evidence, skeleton arguments – are court- or tribunal-facing.

They are to assist the court or tribunal in determining the questions before it.

And an opinion is not itself a letter before action, which a party will send to another party so as to set out its case before a claim is issued.

No.

An opinion (or an “advice” depending on the matter) is usually a thing between a client and their lawyer.

The lawyer tells the client their view of the law – and it is to the client that the lawyer has the duty.

Sometimes, such opinions are shared or published by the client – so as to inform or influence third parties.

For example, before he went on to other things, the tax barrister Jolyon Maugham wrote an informative post on how certain tax barristers were well-known for giving convenient advices to be shared:

(Maugham and I are not close, and I am not an uncritical fan of the Good Law Project, but that was – and is – a remarkable piece of legal blogging.)

The point is that such “opinions” are that – they are the views of a lawyer who has an obligation only to their client, even if the client choses to share that document with third parties.

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As such, an opinion is rarely “devastating” – at least, not to any one else other than the client.

It is merely an expression of a view.

No court or tribunal will adopt such an opinion uncritically as its own view – and, indeed, lawyers are required to set their cases in different documents, mentioned above.

There is a fashion for campaigners and pressure groups to commission opinions from lawyers to use as aids for their goals.

And many lawyers are happy to provide such opinions, knowing they are going to be used for such non-judicial purposes.

But such opinions have, by themselves, almost no weight as a legal document.

They are PR, not probative.

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And now we come to this, capital-O Opinion.

This Opinion is, in effect, a PR exercise.

If this Opinion was, in fact, devastating then – in my view – it could have been quietly disclosed to the House of Commons committee of privileges in respect of its inquiry.

The inquiry would then have been devastated.

The content of the Opinion would have been so formidable that the committee would have known the game was up, and they would have terminated the inquiry with immediate effect.

That is what the effect of a “devastating” opinion would have been: devastation.

But this Opinion was not quietly disclosed to the committee.

It was instead placed into the public domain.

On a Friday afternoon.

After it was leaked to a newspaper.

(And although those reading this blog may not be readers of the Daily Mail, the newspaper was right to give this Opinion prominence and to quote the insider – for the Opinion and what the insider said are newsworthy.)

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The publication of this Opinion is an example of litigation by other means.

It is an appeal for media and public support.

It is an attempt to place pressure on the committee to drop the inquiry.

For if the Opinion were truly devastating there would be no need for publicising it on the government website or for leaking it to the press.

That is the difference between something being devastating and something being described as “devastating”.

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The Opinion is not strong.

Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate.

The colour of a thing would be black, but for it being white.

The object would be cheese, but for it being chalk.

And here:

“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”

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There are a few points to make about this Opinion.

To begin with, the inquiry into whether Boris Johnson misled the House of Commons is a matter for Parliament and not the courts.

And Parliament is in charge of its own procedures which, as a matter of basic constitutional principle (and the Bill of Rights), cannot be gainsaid by the courts.

So to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.

But.

It gets worse.

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The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.

This has been spotted by the Labour MP Chris Bryant:

The motion referring Johnson to the privileges committees was as follows:

The question for the committee is whether the misleading of the House of Common amounted to a contempt.

If Johnson did in good faith give an incorrect statement then at some point he would have realised the error.

That would not be a contempt.

But.

Under the rules of Parliament (and the Ministerial Code) Johnson was also under a duty to correct the record as soon as he realised, at the “earliest opportunity” and he has chosen not to do so.

Here is Erskine May, the authority on parliamentary procedure (highlighting added):

On this, see this thread by Alexander Horne from back in April:

And my post on the same:

There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.

The Opinion mentions the relevant duty in paragraph 26 (and the corresponding Ministerial Code duty in paragraph 28) but uses it only to somehow say that it indicates only deliberate lying can be contempt.

But if this a point set out in Erskine May, and obvious to Horne (and me) in April 2022, then it is a point that should have been addressed in an Opinion dated 1 September 2022.

As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.

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The Opinion is also odd in how it seeks to judicial-ise parliament.

This has already been spotted by the estimable Hannah White:

This contempt inquiry is a parliamentary (and political) exercise into assessing whether Johnson was dishonest.

This process is required because of the notion (or fiction) that MPs do not lie to the House.

This is because it is assumed MPs are honourable – and it is out of order for one MP to accuse another of lying in the Commons.

Ministers, for example, do not sign “statements of truth” when giving their answers at the dispatch box.

(And you will remember that Johnson lost the prorogation case at the Supreme Court because he refused to sign a statement of truth, under pain of perjury, as to his true reasons for the prorogation.)

As such the privileges committee inquiry is part of what some commentators call the “political constitution”.

It is how certain issues and disputes are dealt with within parliament, rather than outside of parliament by courts or other agencies.

The Opinion, by seeking to judicial-ise part of the process is taking a misconceived pick-and-mix approach.

The committee has set out its process and has called for evidence:

A motion was passed by the Commons; a process was adopted in accordance with the relevant rules agreed by Parliament; documents have been sought and evidence has been called for.

This is entirely appropriate for the parliamentary issue which needs to be addressed and resolved.

If the committee were to be amenable to judicial review, then the entire process would cease to be an entirely parliamentary matter.

The whole process would have to be recast, with judicial protections built in at each stage.

And, in any case, there is no good reason – and certainly no reason set out in the Opinion – why Johnson cannot simply explain why he gave a misleading statement and did not correct it at the earliest opportunity.

He can answer, parliamentarian to parliamentarians.

The motion of the House gives precise particulars of the statements, and he was the one that made the statements.

The sanction, if he is found in contempt, is not civil or criminal liability – no criminal record or county court judgment – but a sanction to him as a parliamentarian – he could be suspended, or perhaps face a recall petition.

This is a parliamentary process to deal with a parliamentary question with a possible parliamentary sanction.

To assert that “[b]ut for Parliamentary privilege, a court hearing a judicial review brought by Mr Johnson would in our view declare the approach taken by the Committee to be unlawful” is therefore not just deft, it is also daft.

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As a further observation: why has this matter not seemingly gone through the government legal system and treasury counsel?

It appears a top white-collar criminal firm and the barristers have been instructed directly by the Prime Minister, presumably with public money.

For all Johnson’s derision about “lefty lawyers” and his supporters’ attacks on legal aid “fat cats”, Johnson is very ready to use taxpayer money to find technicalities so as to frustrate processes.

Those caught in the criminal justice system do not have access to this sort of legal advice.

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To conclude: the Opinion is not only not strong, it is a disappointment.

One would hope and expect that its esteemed authors would have provided a more compelling critique of the process; that they would have engaged with the “earliest opportunity” charge; and that they would have explained, in parliamentary terms why it was unfair, rather than relying entirely on a “but for” rhetorical device and a false analogue.

This could have been a far more interesting opinion.

But instead, we got this weak, misconceived, incoherent document.

Frankly, it is devastating.

 

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POSTSCRIPT

 

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The significance of the Bar strike

22nd August 2022

The criminal Bar has voted to go on strike – that is to not accept any new instructions after 5 September 2022.

Elsewhere on the internet you will find detailed and persuasive accounts of why the criminal Bar has resorted to this – for example here.

The action will cause pain – trials and other hearings that those involved have spent months and years waiting for will now not go ahead.

The added stress for victims and the accused is probably unimaginable for the rest of us.

People’s lives will be ruined further.

Yet.

The barristers’ strike is not really the cause of the problems with the criminal justice system, but more the effect of deeper problems.

This is a criminal justice system that may well have collapsed before now, and it is only by luck it has survived this long.

Like the “good chaps” theory of the constitution, the criminal justice system is in part held together by the goodwill of many of those involved,

For example, self-employed Barristers will take on cases at extreme short notice, and will do work (and travel considerable distances) on life-changing cases and not get paid.

And this goodwill has been exploited.

Legal aid fees are now at a level where it is impossible for junior barristers to survive.

The situation is not sustainable.

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Politicians and time-poor, copy-hungry news reporters like the easy assertions of “tougher sentences” and “crackdowns” – but that is a mere fictional diversion when there is a functioning criminal justice system.

And if the criminal Bar now just drops hands, then it is difficult to see how the system can continue – indeed, to see whether it still constitutes a “system” at all.

This is what the strike signifies.

The strike signifies that a crucial part of our polity is not functioning – the part that is there to provide justice for both victims and the accused, the part that deals with coercive sanctions and punishments, and so perhaps the most important part of any organised society.

And the government and the media do not care, for as long as they can type and shout “Law and Order!” in return for clicks and cheers it is irrelevant that there is no law being applied, and and no order being imposed.

The political-media construct of “Law and Order!” does not correspond to the mundane, inefficient reality of the criminal justice system.

They are two distinct things, with no direct connection between them.

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One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

*

More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

*

But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

*

Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people. 

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court. 

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair) President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar Chair of the Judicial Appointments Commission
Sir Geoffrey Vos Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament.  As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer. 

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.  

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

*

So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

*

But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

***

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The question of whether Boris Johnson, in effect, lied to the Queen

[ADD – I have now done a short summary of the argument advanced in this post here.]

 

15 August 2022

On Twitter a number of accounts have recently commented in respect of front page of the Daily Mirror from 12 September 2019:

The online version of the article is here.

The comments are critical of the headline and of the apparent source of the headline, which is me.

I am quoted in the article, on the front page, as follows:

“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””

This seemingly renders me the source of the “Boris lied to the Queen myth”.

Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.

I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.

(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)

*

Do these critics have a point?

One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.

The “in effect” was not mere surplusage – I used the phrase for a reason.

Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.

But I did not say that, because I did not mean that.

I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.

And so I cannot defend the Mirror headline, and I do not do so.

It is not the headline I would have chosen for the piece that quoted me.

*

And there is another preliminary point.

The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.

No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.

The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.

Any judgment is a text and my role as a commentator is to place that text in a context.

This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.

*

But.

That is not good enough.

Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?

Let us see.

*

We now need to go back in time and remind ourselves of the relevant dates.

It was 2019, and the United Kingdom was still a member of the European Union.

The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.

Johnson became Prime Minister in July 2019.

On 28 August 2019, the Queen made the following order:

“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.

But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.

As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).

But the legal question at the time was whether the prorogation was lawful.

And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.

*

The prorogation faced legal challenges, including one in Scotland.

The appeal judgment of the Scottish case dated 11 September 2019 set out the following events:-

15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

16 August 2019 – the Prime Minister wrote the following response:

“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this proposition

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.

23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:

“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”

The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).

*

So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.

*

The Scottish court decided as follows:

“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”

The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.

They were false reasons.

The court stated that there had been an improper purpose.

*

Now we come to something which was missing from the case – and from the concurrent case in England.

The dog that did not bark in the night.

As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.

This lack of a witness statement was referred to in the judgment:

“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.” 

This absence, in my opinion, was and is highly significant.

Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?

If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.

The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.

If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.

*

This is when I wrote the article which was quoted by the Daily Mirror.

My reasoning was as follows:

1. There had been contact with the Queen by telephone, as well as a formal advice.

2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.

3. Those reasons were not the true reasons for the prorogation.

4. Those giving the reasons knew that that they were not the true reasons for prorogation.

Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.

Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.

*

The Scottish case, like the concurrent English case, then went to the Supreme Court.

This was after my statement which was quoted by the Daily Mirror.

The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.

It approached the case as follows (my emphasis added):

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The crucial element here is the requirement for a “reasonable justification”.

And again, that lack of a witness statement made all the difference (emphasis again added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

That dog was still not barking.

*

Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.

(I have since spoken with a number of people involved in the case, and they agree.)

The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.

But still no signed witness statement was forthcoming.

*

So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.

But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.

And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.

If someone can come up with a better  explanation than the above for (a) and (b) then I will change my view and recant.

But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.

 

**

POSTSCRIPT

I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:

***

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Is this an abuse of the law of contempt of court?

5th August 2022

I came across a case on BAILLI which I read with increasing concern, indeed dismay.

I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.

And I could not believe what I was reading.

I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.

The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.

The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.

Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.

But this case seems to show how contempt of court this can be abused by the injuncting party

The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.

The application seemed either spiteful or irrational – for a bad reason or for no reason.

And certainly not for any good reason.

The judge was not having any of it, and these two paragraphs give a flavour of the judgment:

Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.

Is this a case worth a close reading?

Is this an (attempted) abuse of power which should be be brought to a wider audience?

Or is this a storm in a lawyer’s tea cup?

Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?

I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.

I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.

There is a Law Gazette news report here.

And Adam Wagner has done a Twitter thread here:

Let me know what you think.

***

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The significance of a 2014 case about stuffed toys – and why illiberal lawyer-politicians should not be underestimated

4 August 2022

Here is an amusing tax case from 2014, from eight years ago today.

You will see why I am mentioning it.

The case was about whether a toy was a stuffed toy or not.

In particular, as the tribunal put it, it was about “how two soft children’s toy animals that contained a soundbox that produced soothing sounds, intended to assist babies and children to sleep, should be classified for Customs purposes”.

If the toy was regarded as a stuffed toy its classification would have one tax consequence, and if it was not a stuffed toy it would have another consequence.

And so, eight years ago today, in Bedford Square in London, a two-person tribunal earnestly debated with two barristers about the nature of stuffed toys.

The judgment is a joy:

“The Appellant’s principal contention had been that when there was no definition of the word “stuffed”, one should look to the intended use of the product to decide whether it was stuffed. In that quest, the word “stuffed” should be taken to suggest a toy designed to be cuddled and played with by babies and children.”

Against this, the HMRC’s barrister contended:

“The products could hardly thus be said not to be stuffed, when as a pure physical matter of content they were stuffed and they plainly looked to be stuffed, and when, even on the Appellant’s test that “stuffed” meant that the toy was suitable to be cuddled, it was indeed asserted that it was a “cuddly companion and toy”.”

The tribunal considered the point carefully:

“While there is no definition of the word “stuffed” in the present context, its meaning is relatively obvious, and indeed in turning to consider the function of the product and then asserting that stuffed products can be identified because they will be soft to cuddle, the Appellant itself assumes the same obvious meaning of “stuffed” in reaching the conclusion that it must mean something along the lines that will make a toy cuddly. And what makes a toy cuddly is of course the insertion of stuffing…”

And so the tribunal concluded, with a straight face:

“this product is a cuddly toy, and that it is stuffed.”

All good fun – and it is one of those cases, like the Jaffa Cake case, which lighten up the reports of tax cases, and so add to the gaiety of the nation.

*

But why is this case of interest on 4 August 2022, eight years later?

Because the victorious HMRC barrister in that case is now the Attorney General, Suella Braverman.

And the case is significant because it shows that Braverman’s bread-and-butter at the Bar was everyday public law cases.

It is often contended that Braverman is not qualified or sufficiently experienced to be an Attorney General.

But in fact she was a perfectly competent barrister specialising in public law cases and indeed was appointed to the Attorney General’s panel to conduct cases on behalf of the government.

According to Bailii, she also acted in planning cases, both successfully and unsuccessfully.

As far as can be ascertained, the Attorney General had a good, wide-ranging public law practice, including advising on human rights law.

This blog is not a fan of the Attorney General, but it is important to be fair and accurate in what can be criticised.

It is sometimes assumed – perhaps condescendingly – that the reason why some politician-lawyers are illiberal about the law is because they do not really understand the law.

But the thing about Braverman and also the Lord Chancellor Dominic Raab is that they do have experience in and knowledge of public law.

Some may say that makes their illiberalism worse – for they “should know better”.

I think that is the wrong approach.

I think one should credit the illiberals with knowing and understanding the relevant law – it is just that they do not care for it.

And this means that those of us who are liberal in their approach to the law need to make a more compelling case for it than assuming the conservatives do not “get it”.

***

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