Category: Courts and the administration of justice

Public interest litigation against public bodies

16th February 2022

There are two ways by which those with public power will act lawfully.

The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.

The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.

So: if not the first, then the second.

But hopefully the first, which is better for everyone, apart from public law litigators.

The problem is what happens when ministers and officials do not care for self-restraint?

Then we have to go to the second stage, all too quickly.

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

And what if there is nobody in a position to litigate a case?

What is there – ultimately – to stop lawless behaviour by those with public power?

These questions are important – and they are not easy to answer.

One solution is to have non-governmental organisations litigate these cases, in the public interest.

But this brings new problems.

Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.

(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)

Too many pressure groups litigating elides the distinctions between politics and law.

And some may be tempted to blame the pressure groups.

But.

That is to partly see the problem the wrong way round.

The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.

The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.

In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.

But that would mean ministers and officials facing up to their own failings.

And it so much more easy to blame the pressure groups instead.

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A “nice” parliament?

1st February 2022

Today the speaker of the House of Commons said he would like parliament to be “nice”.

For this, and for insights generally, listen to this clip to the end:

Like courts, parliament is a place for conflict and for those conflicts to be resolved.

And, again like courts, parliament has developed conventions and an etiquette for smoothing the jagged edges of that conflict.

“The honourable member” is the parliamentary equivalent of “my learned friend”.

Courts – at least civil courts – have also rules on when a person can be accused of dishonesty.

It is not an allegation that can be made by a lawyer lightly.

But it is an allegation that can, if there is evidence, be made in certain circumstances.

In parliament an allegation of dishonesty cannot be made – at least in debate.

An allegation of dishonesty has instead to be made in a substantive motion – see the commentary here.

As the historian Robert Saunders avers, this rule against accusing in debate other members of parliament of dishonesty was part of a wider understanding:

So we now have the ridiculous situation where nothing practical can be done to stop the Prime Minister – or any other member of parliament – from being dishonest…

…and if another member of parliament – grandstanding or otherwise) points this out in debate, it is that other member of parliament that is thrown out of the house of commons.

One can understand how the rules of the house of commons came to end up like this.

But that does not make the rules seem any less daft.

The solution, however, is not “niceness”.

Politeness, yes, and decorum and respect – just as courts (usually) have politeness and decorum.

But courts – while usually calm and polite and respectful – are not “nice”.

Courts can be places of horrible and raw human drama and conflict, where often difficult decisions have to be made that will, in turn, often ruin the lives of the parties involved.

To regard them as “nice” is to confuse form with substance.

A parliament also has to deal with often difficult decisions that will ruin – or even end – the lives of people at home and abroad, sometimes millions of people.

A parliament is a place of conflict and high tension – with immense consequences for real people.

As such, like a court, it is sensible to take off the rough edges of conduct and vocabulary, so as to take the heat and aggression out of exchanges.

But the underlying tensions will still be there – and these tensions need to be recognised if they are to be resolved.

Those tensions cannot be cured by “niceness” – and, indeed, a refusal to recognise those tensions risks turning those tensions into contradictions.

And that will not help anybody.

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A day in court

21st January 2022

Today – with my lawyer’s head on – I spent the day in an actual court at an actual hearing, my first since at least 2019.

And the dynamic was absolutely different to online hearings, so much that it felt like going back in time with Bill and Ted or the Doctor.

Not just different in quality, but different in the very nature of the advocacy and the the interaction with the judge.

I happen to be a great fan of things being done virtually whenever possible, from parish council meetings to parliamentary committees.

I am disdainful of ceremony and ritual, and of the theatre of politics and the law.

I do not like politics and law to be cosplay exercises that are better suited to historical enactment societies and fan conventions.

I would place wigs and gowns into the museums in which they belong.

If judges really want to be called ‘lord’ and ‘lady’ and be ‘knights’ and ‘dames’ there should join a mock medieval weekend club.

But.

Strip away all of the daft paraphernalia, there are still the intellectual and forensic exercises that do not need stage props to make then interesting, even compelling.

And such exercises in the same room are radically different to lots of muted faces on a zoom call.

I was not expecting this.

I thought virtual hearings had superseded the need for actual hearings.

But I was wrong.

Some things cannot be replaced by a virtual substitute.

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The Meghan Markle litigation

8th January 2022

I do not tend to blog and tweet much about the areas of law in which I do most of my professional work as a solicitor: commercial law and media law.

This is for a variety of reasons, including the ability to commentate freely on things where there is no possibility of a conflict of interest.

So that is why I tend to blog and tweet about public law and constitutional matters, where I am less likely to have a conflict of interest.

But from time to time a media law matter comes up which I can commentate on without any concerns for conflicts of interest.

And so this week I was quoted in the Washington Post on the Meghan Markle matter.

The piece is here, and my quote as published was:

 

 

 

My quote as given was:

“The Meghan Markle court victory was not that legally significant. 
“The Mail on Sunday litigated a weak case and they lost it, without even managing to get to trial.  
“The senior editors would have been advised against publication – the Mail on Sunday have very good lawyers – but they chose to publish anyway, knowing the legal risks.
“But the case has immense cultural and media significance. 
“The newspaper chose to fight a weak case, despite the legal problems.  This could only be because they had a non-legal objective. 
“But also important was that Markle decided to press her case, instead of letting it go like other royals would have done. 
“In this way, the case could be a turning point.”

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The Markle judgments can be found here.

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I thought it may be of interest to add a little to my quote on this blog.

High-profile litigation often exists on two levels – how it is played out in the media, and what is actually happening as a matter of hard litigation.

And here, there were may reports in the media that framed Markle in a certain way.

But the Mail on Sunday case was always weak at law – and in the end it was so weak that it did not even get to trial.

Weak cases are rarely fought in civil litigation – the weaker side will usually tend to settle as soon as possible.

And so the interesting question is why it was fought – and in the answer to that question will be the genuine significance of this case.

The case is less significant in its detail than in its very existence.

The case itself has almost no legal significance: the applicable law was so obvious that Markle got summary judgment, despite the array of legal skill and talent employed by the newspaper.

But the cultural and media significance is – perhaps – profound.

Something seems to have changed.

But what?

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The Rule of Law and the Colston Four – and why a jury acquittal shows a legal system working and not being undermined

 

The Colston Four defendants have been acquitted by a jury.

Some are contending, like this former cabinet minister, that this acquittal ‘undermines the rule of law’.

That contention is incorrect.

An acquittal is as much an aspect of the rule of law as a conviction.

Criminal courts can acquit as well as convict – both can be the outcomes of the application of due process in a particular case.

The Colston Four were acquitted by a jury – and the defendants did not deny the essential facts.

It can be open to a jury to do this – and this informative Guardian article sets out many other examples.

A jury returning a verdict that they are entitled to return is an example of the law in action, and not of a legal process undermined.

This is not to say that juries are perfect – indeed, many of the greatest miscarriages of justice have come from jury verdicts.

Juries do not always get things right.

But the constitutional importance of juries is not so much for the decisions they make, but for the decisions they take away from others.

The State may arrest, charge and prosecute a person – but they cannot convict and punish a defendant pleading ‘not guilty’ to a serious offence without a jury trial.

The implication of the former cabinet minister’s view quoted above is that it should not be open to a jury to acquit a person prosecuted for a serious offence – but only to convict and punish.

But that is not the ‘rule of law’ – it is something darker and nastier instead.

Others are fretting that the verdict creates a ‘precedent’.

It, of course, does not create any legal precedent – no jury can bind another jury, and each jury should look at the case before them on its own evidence.

Nor does it create any practical precedent – or, at least, not one which has any more force than the many previous examples set out in the Guardian article.

The real upset is that a court heard the evidence and acquitted the defendants.

This is what juries sometimes do – and they can do this because they are outwith the control of the prosecuting State.

One half-expects that this weekend’s press will see ‘government sources’ urging ‘a crackdown’ on ‘perverse’ acquittals – with a proposal for ministers to have a ‘fast track’ on imposing convictions.

And this is not to put an idea into the heads of government ministers – the idea is no doubt already there.

One irony – if that is the correct word – is that this very government sought to use primary legislation to enable ministers to break the law.

That proposal – over which the Advocate General and the Treasury Solicitor resigned (and the recently knighted former Lord Chancellor did not) – did more to undermine the rule of law than any verdict of a Bristol jury.

And the current hyper-partisanship of modern politics means that if, say, a group of fox hunters were acquitted by some shire county jury, the same people who are jeering the Bristol jury would be cheering the shire county jury instead.

But juries are juries – they make mistakes, but they are independent of State prosecutors.

And the noise of government supporters unhappy with a jury decision is the sweet sound of a working constitution.

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A legal look at the Giuffre settlement agreement on which Prince Andrew is seeking to rely

5th January 2022

A happy new year to all the readers of this law and policy blog, and welcome back.

Today’s post is about civil law – that is the law which (broadly) deals with the legal obligations we owe to each other, as opposed to criminal law which (broadly) deals with the obligations we have to the state.

In essence: in civil law you can sue or be sued, and in criminal law you can be prosecuted or not prosecuted.

Civil law – especially contract law – is fascinating, and this post takes a topical legal agreement as the basis for explaining about civil law generally and contract law in particular.

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The topical legal agreement is the recently disclosed settlement agreement between Virginia Giuffre and the now dead Jeffrey Epstein, on which (Prince) Andrew is currently seeking to rely in American litigation.

I have chosen this as a topic because it is rare for the substance of any legal agreement to be newsworthy – and legal commentators have to take our examples as we find them.

I have no view on the underlying litigation as I do not know the facts – and I have no particular view on Andrew other than a general preference for republican government and a disdain for inherited titles.

My sole purpose in this post is to use a topical legal agreement for promoting the public understanding of law.

(By way of background, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation, and this post draws on principles I believe are common to English and American contract law.)

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Let’s start by looking at the agreement – click and open tab here.

It is, in essence, a seven-page agreement – and so pages 2 to 8 of the pdf are the ones to focus on.

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A preliminary question is how seriously we should take the agreement as something agreed to by both Epstein and Giuffre – was it a one-sided imposition, or something freely negotiated with both sides getting legal advice?

Clause 9(c) tells us ‘This Settlement Agreement was negotiated and entered into by the Parties with the advice and assistance of respective counsel.’

This means that it is not, say, a standard form contract – but one which has been negotiated by lawyers with each party having legal advice (and the lawyers are even listed at the end of the document).

This in turn means a court will take seriously what was agreed, and it will seek to give effect to what was agreed between the legally advised parties.

This is reinforced by clause 9(a), which provides that the parties ‘confirm and acknowledge that this Settlement Agreement is being entered into without any duress or undue influence, and that they have had a full and complete opportunity to discuss the terms of the Settlement Agreement with their own attorneys.’

Of course, such a provision can – in principle – be disapplied if it is factually untrue and there was actual duress.

On the face of it, this was not an agreement imposed by one party on the other, but one which was negotiated by both parties with the benefit of legal advice.

So, again on the face of it, this is an agreement by which both Epstein and Giuffre intended to be bound.

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With that preliminary question addressed, we come to the first big question.

What was the purpose of the agreement?

This is what can be called a question of construction – putting together the agreement as a whole so that we can then, as the next stage, interpret any constituent part.

With any legal instrument, and especially contracts, construction precedes interpretation.

Here there is a clue to the purpose in the title: Settlement Agreement and General Release.

This title indicates the agreement is doing two things – and you will see that these two things are, in turn, set out respectively in clauses 1 and 2.

But before we get to clauses 1 and 2 we can also see, almost as a recital, that the parties Giuffre and Epstein both entered the agreement so as to ‘resolve the pending litigation’ between them.

This litigation is then set out in clause 1: the parties agree to dismiss a civil claim brought by Giuffre against Epstein in the Florida courts.

But clause 1 only covers part of what was agreed.

For clause 2 then sets out the General Release.

This further provision sets out a more general release than ending one particular case.

Here Giuffre accepts a substantial sum (US$500,000) – as opposed to say a nominal sum – in return for the release.

In respect of Epstein the release provides that Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein][…] from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein […] for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’

This is a comprehensive list of things for which Giuffre agrees she cannot now sue Epstein.

Epstein was not only released from the current case but other cases, State and Federal.

If Giuffre was ever to litigate against Epstein again, then Epstein’s lawyers would have sought to rely on this release and have the case thrown out.

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But.

The release is not just in respect of Epstein, but also for other persons.

I will now quote the provision again but with what I had omitted now in bold:

Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein] and any other person or entity who could have been included as a potential defendant (“Other Potential Defendants”) from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein, or Other Potential Defendants for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’

These provisions in bold purport to extend the General Release granted to Epstein to other persons or entities – to give them exactly the same protection from further state and federal lawsuits as Epstein.

The term in bold, however, is not clearly drafted.

One reading is that the Other Potential Defendants are those who, on the facts alleged in the Florida litigation, could have been added as defendants to that litigation.

This would perhaps make sense as a matter of construction, as this agreement settles the case in respect of civil wrongs – torts – alleged to have happened in respect of which the Florida court had or has jurisdiction.

This reading is reinforced by the provision in clause 1 that the Court will be asked to retain jurisdiction to enforce the terms of this settlement agreement.

Clause 7 expressly provides that the parties envisaged this matter also capable of being litigated in federal courts (bold added):

‘In the event of litigation arising out of a dispute over the interpretation of this Settlement Agreement, the prevailing party shall be entitled to recover its cost of litigation, including attorneys’ fees and other reasonable costs of litigation. Should the federal court not retain jurisdiction, the Parties (and any third party) agree that the courts of the 15™ Judicial Circuit of Palm Beach County shall have exclusive jurisdiction over the subject matter and shall have personal jurisdiction over the Parties (and third parties).’

What the agreement does not seem to envisage, however, is the matter being litigated in another state, other than Florida.

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In my view, the General Release probably should be constructed as providing protection to Other Potential Defendants in respect of the issues raised in the Florida proceedings.

(This narrow construction would be notwithstanding the General Release is in more general terms than the dismissal in clause 1.)

So, if Andrew – by reasons of residence/jurisdiction, or the facts alleged by Giuffre in the Florida case – was not capable of being a defendant to the Florida proceedings then – as a matter of construction – then it is difficult for me to see how he can take the benefit of the General Release.

The agreement would not have been for him.

In essence: if Andrew could not have been jointly or separately liable for the tort claim within the Florida jurisdiction then the General Release may not apply.

That said: a judge could take a wider view of what the General Release covers, and that it covers not just the Florida allegations.

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There is, however, a possible problem here for Giuffre’s lawyers – for the term Other Potential Defendants must mean something.

The term Other Potential Defendants cannot mean nothing – for this is a negotiated and formal agreement, and the presumption is against surplusage.

If Giuffre’s lawyers contend that the General Release does not extend to Andrew, they must be able to explain who actually was to be covered by by the term Other Potential Defendants.

What Giuffre’s lawyers need to be able to do is to show who would be in the class of Other Potential Defendants – if not Andrew.

And if they can give a plausible meaning to that phrase without it including Andrew then they will address this problem.

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Now we turn to interpretation, as opposed to construction.

Some commentators, with little or no background in contract law, have gone straight to the term Other Potential Defendants and speculated what that phrase could mean.

But a clause is not a legal instrument, and still less a selected quote from a clause.

Yes, Andrew – like you reading this – is a potential defendant: indeed everyone other than Giuffre is.

But a settlement and a General Release in respect of a Florida case is unlikely to create a legal basis of releasing all potential defendants everywhere in the world in respect of any claim brought by Giuffre about anything – not least because the Florida court would not have jurisdiction to enforce such a general release.

In whatever way Other Potential Defendants is to be interpreted as including and not including, it is not an exercise in anything goes.

Other Potential Defendants cannot be interpreted as including Andrew if, as a matter of construction, the agreement would not apply to him.

On the other hand, if Andrew could plausibly have been added as a defendant to the original Florida case, then the phrase can be interpreted so as to include him.

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But.

Even if the agreement can be constructed so as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, there are two further problems for his lawyers.

The first is that, whatever is said on the face of the agreement, there can be rules of law and public policy that may preclude reliance on such an agreement by a defendant in another case in another state.

The essence of Andrew’s objection is that Giuffre should not be allowed to sue him for alleged civil wrongs – that she should not even have access to a court for a determination of her case.

No court will simply nod-along with such a contention – it is a serious matter to remove a person’s right of access to a court.

And so even if Andrew can be brought within the terms of the General Release, a judge may find as a matter of policy that the claim brought by Giuffre should be heard anyway.

A court, of course, would not be likely to do this if the claim was brought against Epstein (or his estate), as he was full square within the terms of the General Release.

But Andrew is at least one step away.

The second further problem is that, even if the agreement can be constructed as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, it may not be legally open to Andrew directly to enforce the provision.

Andrew was not privy – that is, a party – to the original agreement (and, indeed, he is not even named).

This legal principle of privity of contract prevents a stranger to a contract either taking the benefit or bearing the burden of an agreement to which they are not a party.

In essence: it would have been for Epstein (or his estate?) to enforce the term protecting Other Potential Defendants, and not Andrew or another potential defendant directly.

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For completeness, you will see the agreement also provides the following:

‘It is further agreed that this Settlement Agreement represents a final resolution of a disputed claim and is intended to avoid litigation. This Settlement Agreement shall not be construed to be an admission of liability or fault by any party. Additionally, as a material consideration in settling, First Parties and Second Parties agree that the terms of this Settlement Agreement are not intended to be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal.’

Some commentators have leapt on this provision, but I do not think it takes us in any direction very far (though the judge may disagree).

It is not Giuffre who is seeking to rely on the settlement agreement – but a third party.

And the terms are not being relied on by Andrew as admissible evidence of liability or otherwise, but on a question of law in respect of jurisdiction.

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As I aver above, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation.

But even if this agreement were under English law, I could not confidently predict what a judge would do.

This is because the agreement – while clear in its primary aim of protecting Epstein from further suit – is not clear about third parties, and this is no doubt because that the position of third parties was not the main purpose of the agreement.

The agreement has been taken from its primary context of protecting Epstein and into a context which the parties perhaps did not envisage.

And so it is not a surprise that the agreement is less clear in this context.

Had the lawyers for the parties in this agreement expected this contract to be used by third parties, then the provisions in respect of third parties would be set out more clearly – but they did not, and so they are not.

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We are currently awaiting the judge’s decision on whether Andrew can rely on this agreement.

In my view, Andrew’s lawyers have the far harder task.

They have to show that, as a matter of construction and interpretation, the General Release covers him when he is not named and is not a party to the agreement; that no rule of law and policy means he loses that protection; and that he can enforce the protection regardless of the lack of privity.

All this, so as to extinguish Giuffre’s right of access to the court, which no court will do lightly in any case.

Giuffre, in turn, only has to succeed on one of these points – though her lawyers will need to explain what Other Potential Defendants means if not the likes of Andrew.

And even if Andrew succeeds on this technical defense, Giuffre may still win on appeal.

In summary and in conclusion: Andrew’s lawyers should be prepared to defend the substantial claim, rather than to rely on this technical defense.

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Why judges may not be the best people to chair public inquiries

16th December 2021

Yesterday it was announced that the forthcoming Covid public inquiry will be chaired by Heather Hallett, the former appeals judge with an outstanding reputation as a lawyer.

Nothing in this post should be take to gainsay that appointment.

Instead, this post examines the general question of whether judges – or barristers – are really the best people to chair public inquiries.

In the United Kingdom judges are not usually investigators.

Instead the facts and documentary evidence on which they are to decide cases are put together by the parties to the case and their lawyers.

A judge will – despite spirited fictional depictions – not go and find out new facts and evidence for themselves.

In turn: most (though not all) judges are also barristers.

Many barristers also do not go and find out new facts and evidence in the case on which they are instructed: the facts and documentary evidence are provided to them usually by instructing solicitors or other professionals.

In essence: for all their many undisputed skills and talents, little in the background of judges and barristers fit them to be investigators.

Any investigations are normally conducted by others.

Once the evidence has been put together, judges and barristers will then often be very good at assessing and weighing that evidence, and in applying that evidence to the law (and applying the law to that evidence).

But the uncovering of the primary facts is normally done by others.

This is why – especially in civil cases – it is those who have the best controls over the flow of evidence that will tend to control the verdict.

And this is also why many public inquires are (or seem) to be ‘whitewashes’.

This is not (usually) because the head of the inquiry deliberately wants there to be a ‘whitewash’.

The ‘whitewash’ is often further upstream – in how the evidence is presented to the inquiry.

As techies say: garbage in, garbage out.

I know this, in part, because I used to work with public inquiry lawyers when I was a central government lawyer.

They worked backwards from the outcome they wanted to achieve so as to marshal the appropriate evidence.

That was their job.

So what is needed in the head of any inquiry is to have someone who is not reliant on the nicely packaged evidence and facts as put together by skilled and experienced public inquiry lawyers.

But to have someone with the skills and experience to get to the facts and evidence that powerful parties may not want to have put before an inquiry.

A person who will use the statutory powers available to public inquiries for compelling evidence, so as to balance the experienced public inquiry lawyers doing whatever they can to avoid putting certain evidence in.

Sometimes this person may be a judge, but sometimes it may not be.

But there is nothing particular in the background of most judges and barristers that equips them for investigating things.

Garbage in, garbage out.

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The boon of published sentencing remarks

15th December 2021

One good thing for the public understanding of the law that has come from the internet is the publication of ‘Sentencing Remarks’.

These are not judgments – at least in a legally technical sense – but explanations by a judge about how they gone around setting the sentence of someone guilty of an offence.

Today there are two sets of sentencing remarks about highly unpleasant and disturbing cases (both of must have a content warning).

Some may want to read them for their grisly detail.

However the rest of us – especially students of law and others with an interest in the legal system – will be able to gain fascinating and detailed insights into investigations, prosecutions and sentencing.

In the olden days, these remarks were never normally available – one would have to rely on any news reporters in court, and one would then have to depend upon on the edited (and editorialised) news reports.

Now, you can read the judge’s words for yourself – and form your own view.

You may still think after reading remarks that a sentence is too low or too high – but you will at least be able to inform your view with how the sentence has been arrived at.

The best way to keep up is to follow the England and Wales judiciary’s Twitter account or to visit their site from time to time.

The regular publication of these remarks will not, by themselves, cure the promotion of misinformation about law generally and high-profile cases in particular.

But the more they become part of the normal information openly available about cases and the criminal law in the news, the better the general knowledge of the criminal justice system.

They are a boon to the public understanding of law.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

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First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

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First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

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Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code. 

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

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The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

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The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

 – That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

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Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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

25th October 2021

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

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

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

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

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

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

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

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

Scorecards.

This new proposal is as follows:

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

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

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

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

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

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

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

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

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

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

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

But.

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

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

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

The NAO published a major report just before the weekend.

The NAO did not propose scorecards.

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

Leadership.

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

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

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

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

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

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

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

It is still enough to make any sensible person weep.

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