Category: Criminal Law

The legal power of the Home Secretary to deprive a person of United Kingdom citizenship – looking closely at the Begum case part 1

28th February 2021

There is something wrong – very wrong – about the legal situation of Shamima Begum.

That is, at least on the basis of information in the public domain – which is, of course, the only information on which the public can have confidence in the relevant law and policy.

The legal case is, however, complex – at least on the face of it, with sets of legal proceedings and appeals that have resulted so far in a number of lengthy judgments by variously constituted courts.

So to get to the wrongness of this situation, this blog will be doing a sequence of posts, each on a different element of the case.

Is the fault with the substantive law and general government policy?  Or with the particular decisions made by home secretaries?  Or with the lower courts and tribunals?  Or with the higher appeal courts?

Of course, one easy answer is say ‘all of them’ – but even then: what is the allocation and distribution of wrongness in the system?

Previous posts on this blog on the case have put forward some initial impressions on the supreme court judgment of last week and, yesterday, compared the case in general terms with the 1941 decision of Liversidge v Anderson.

Today’s post is on the general subject of the power of the home secretary to deprive a person of British citizenship, subject to the (supposed) prohibition on rendering a person ‘stateless’.

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The power of a home secretary to deprive a person of British citizenship is set out in section 40 of the British Nationality Act 1981.

Note, however, that this is not about powers that actually date back to 1981 – as this provision and the act generally have been heavily amended by successive governments.

This legal power, like many other powers that can be used illiberally, is a legal work-in-progress – constantly being tuned (if not finely) by home office lawyers by legislative amendment so as to make it ever-more difficult for a home secretary’s decisions to be checked and balanced.

*

The key power in the Begum case is at section 40(2):

‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.’

This is it – this is the deprivation power.

On the face of section 40(2) alone, any person can be deprived of citizenship not by a decision of an independent court or tribunal but at the simple discretion of a cabinet minister.

*

But.

There is then section 40(4), which provides:

‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.’

(The ‘he’ here also means ‘she’ under section 6 of the Interpretation Act 1978.)

On the face of it, section 40(4) would thereby prevent the deprivation power being used so as to render a person stateless.

Yet note, the deft use of the words ‘he is satisfied’.

Read the provision again without those three words to see the difference those words make: ‘The Secretary of State may not make an order under subsection (2) if  […] that the order would make a person stateless.’

The direct legal test is thereby not whether a person is made stateless, but (again) the ‘satisfaction’ of the home secretary.

As we come to look more closely at the Begum case in particular, you will see what rides on words and phrases like this.

*

Turning now to the Begum case, we can now see the legal basis of the decision by the then home secretary Sajid Javid of 19th February 2019 (emphases added):

‘As the Secretary of State, I hereby give notice in accordance with section 40(5) of the British Nationality Act 1981 that I intend to have an order made to deprive you, Shamima Begum of your British citizenship under section 40(2) of the Act. This is because it would be conducive to the public good to do so.

‘The reason for the decision is that you are a British/Bangladeshi dual national who it is assessed has previously travelled to Syria and aligned with ISIL. It is assessed that your return to the UK would present a risk to the national security of the United Kingdom. In accord with section 40(4) of the British Nationality Act 1981, I am satisfied that such an order will not make you stateless.’

As you can see, the notice of 19th February 2019 ticks the boxes for both (1) the basic deprivation power and (2) avoiding the statelessness exception.

This determination being made by the home secretary – and given the evidence on which the home secretary purports to rely – the only immediate avenue of appeal of Begum was to the special immigration appeals commission.

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The next post in this series of posts on the Begum case will set out the relevant law on ‘statelessness’.

Further posts will then show how the home office and the courts dealt (and did not deal) with important issues in this case.

The purpose of this Begum series of posts is to promote the public understanding of law.

The posts in this Begum series on this blog will be every few days, alongside commentary on other law and policy matters.

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“In this country, amid the clash of arms, the laws are not silent…judges are no respecters” – the story of when a law lord in 1941 stood up for the rights of an individual against a home secretary, and what then happened to that law lord

27th February 2021

The illiberal and unanimous decision yesterday of the supreme court of the United Kingdom in the Shamima Begum case is reminiscent of another illiberal decision of the highest court, previously known as the appellate committee of the house of lords.

That case – which most lawyers will know and most non-lawyers will not – is Liversidge v Anderson.

This case dealt with the rights of the individual in respect of regulation 18B of the Defence (General) Regulations 1939.

That regulation provided:

‘If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or in the preparation or instigation of such acts and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.’

In other words: detention without trial at the discretion of the home secretary.

Of course, many would think such a dreadful thing would never happen in England, with our robust common law rights and so on.

For as even Winston Churchill said:

‘to cast a man into prison without formulating any charge known to the law is in the highest degree odious and forms the basis of all totalitarian regimes’.

(It is worth noting that ‘odious’ was quite the word for Churchill – see also his ‘fight them on the beaches’ speech: ‘Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail’.)

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But although detention without trial was (supposedly) ‘in the highest degree odious’, the United Kingdom did it anyway.

And one of those detained was Robert Liversidge.

The detention order from the home secretary was as follows:

‘DETENTION ORDER.

 ‘Whereas I have reasonable cause to believe Jack Perlzweig alias Robert Liversidge to be a person of hostile associations and that by reason thereof it is necessary to exercise control over him: Now, therefore, I, in pursuance of the power conferred on me by reg. 18B of the Defence (General) Regulations, 1939, hereby make the following order: I direct that the above-mentioned Jack Perlzweig alias Robert Liversidge be detained.
 
 ‘(Signed) John Anderson,
 
‘One of His Majesty’s Principal Secretaries of State’

 

No charge; no prosecution; no trial; no conviction; no sentence.

Just the opinion of the home secretary.

And so Liversidge brought a legal case against the then home secretary Sir John Anderson, and this was the case that reached the house of lords in 1941.

Liversidge, who averred he was falsely imprisoned, wanted to know the case against him.

But Viscount Maugham and the majority of the law lords were having none of Liversidge’s nonsense.

In a sequence of speeches that are rather quite remarkable the law lords – to use Lord Reed’s unfortunate phrase – accorded respect to the determination of the home secretary:

‘there is no appeal from the decision of the Secretary of State in these matters provided only that he acts in good faith’.

The appeal was dismissed, and Liversidge – sitting in Brixton prison – was ordered at the end of Maugham’s speech to pay the home secretary’s legal costs (though it is not clear whether this order was actually made).

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But not all the law lords nodded-along.

Lord Atkin sat through the very same submissions in September 1941, and he came to a very different conclusion.

He gave a dissenting speech which contained this passage (which I here break into smaller paragraphs for flow):

‘I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive.
 
‘Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850) 5 Ex 378 , cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] AC 378, 393 : “In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
 
In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.
 
‘It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
 
‘In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
 
‘I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.
 
‘To recapitulate: The words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them.
 
‘They are used in the Defence Regulations in the natural meaning, and, when it is intended to express the meaning now imputed to them, different and apt words are used in the regulations generally and in this regulation in particular.
 
Even if it were relevant, which it is not, there is no absurdity or no such degree of public mischief as would lead to a non-natural construction.
 
‘I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’” (“Through the Looking Glass,” c. vi.)
 
‘After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has.” I am of opinion that they cannot, and that the case should be decided accordingly.
 
‘If it be true, as, for the foregoing reasons, I am profoundly convinced it is, that the Home Secretary has not been given an unconditional authority to detain, the true decision in the [case] before us ought not to be difficult to make.’
 
 
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Lord Atkin, 1941: ‘judges are no respecters of persons’
 
Lord Reed, 2021: ‘[the court of appeal] did not give the Home Secretary’s assessment the respect which it should have received’
 
*
 
 
Lord Atkin’s speech in 1941 did not go down well with his fellow judges.
 
Lord Atkin was cancelled.
 
As David Pannick details in his book Judges, the other law lords shunned Atkin.
 
Viscount Maugham, in an extraordinary step, even wrote a letter to the Times about the language used by his fellow law lord (the short house of lords debate on that letter is here.)
 
But Atkin was right.
 
As a later law lord, Lord Diplock said in a 1979 house of lords case:
 
‘For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right.’
 
But that was no consolation to Liversidge detained in Brixton prison back in 1941.
 
Nor was it consolation to Atkin – for according to Pannick it was widely believed that Atkin never recovered from the hostility of his fellow judges before his death in 1944.
 
*
 
Perhaps in a few years a supreme court justice may suggest – perhaps cautiously in an extra-judicial lecture, or perhaps more confidently in an actual decision – that the court of appeal got the Begum case right, and the supreme court did not.
 
That will be no consolation to anyone either.
 
But as the 1941 case of Liversidge v Anderson shows, it is not the first time that the judges of the highest court – in the words of one of its greatest former members – ‘show themselves more executive minded than the executive’.
 
And it certainly will not be the last time they do this in respect of the rights of the individual in the face of the powers of a home secretary.
 
***
 
Sources – Judges by David Pannick and In the highest degree odious: detention without trial in wartime Britain by A W Brian Simpson – and both books are highly recommended
 

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‘Not giving the Home Secretary’s assessment the respect that it deserves’ – some initial thoughts on the Shamima Begum decision of the Supreme Court of the United Kingdom

26th February 2021

This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.

The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.

With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.

The decision will take time to digest and to comprehend.

But.

That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.

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The first impression comes from the decision being unanimous.

This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.

A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.

This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.

Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.

This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.

It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.

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The second impression is that, as well as being unanimous, the judgment is executive minded.

For example, here is how the court of appeal described the background of Begum:

But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:

What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.

We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.

For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.

The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:

Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.

That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:

The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.

It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.

The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.

Perhaps the use of words here is a slip – but one fears instead it is again a tell.

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The third immediate impression is that it is a defeatist judgment.

The court of appeal found a compromise which balanced the rights of Begum with those of the executive.

It was an impressive and elegant judgment, and I did a video for the Financial Times:

The supreme court was to have none of this.

For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.

Instead, in such a dilemma, there is no judicial compromise:

Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.

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The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.

(As opposed to the notion that the rights of either side will always trump the other.)

If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.

For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.

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A government department or minister has been found to have acted unlawfully or illegally – but what does this mean? And what does it not mean?

21st February 2021

The news item is dramatic.

The high court in London has decided that a government department – or a specific secretary of state – has acted illegally or unlawfully.

The department or minister has, as the saying goes, broken the law!

There will then be a flurry of tweets, retweets and likes – and then demands for resignations, or prosecutions, or whatnot – followed by complaints that the news media (usually the BBC) have not adopted a similarly breathless approach.

And then there will be a sense of anti-climax or disappointment as the news fades and nothing significant seems to happen.

Nobody resigns, nobody is sacked, nobody is prosecuted, nobody has any personal legal liability.

Why is this?

Surely breaking the law has consequences?

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Well.

Part of the problem is that the words ‘illegal’ and ‘unlawful’ are wide in their meaning.

(For convenience, the terms ‘illegal’ and ‘unlawful’ will be used as synonyms n this post – though some lawyers will have very strong opinions as their distinction in certain contexts.)

Their core meaning of being ‘illegal’ and ‘unlawful’, of course, is that there has not been compliance with a law – or that a thing has been done without a lawful basis.

That core meaning, by itself, does not tell you what laws have been broken, how they were broken, and what the consequences (if any) are for that breach.

And in the case of there not being a lawful basis for a thing, it may even mean no specific law has been broken as such.

There are many ways in which a thing may be ‘illegal’ or ‘unlawful’.

*

Yet for many the phrase ‘broken the law’ will mean a person has done something criminally wrong.

That such a person has breached a prohibition for which the criminal law provides a sanction for that breach.

But that is only one way the law can be breached.

This is because criminal law is only a sub-set of the law.

And so the illegality that gives rise to criminal liability is just a sub-set of illegality.

There are other ways a thing can be ‘illegal’ or ‘unlawful’ without any criminal offence being committed.

*

Another way a thing can be ‘illegal’ or ‘unlawful’ is when a person does not comply with the conditions of a contract, or with the terms of a licence, or commits a wrong such as trespass or negligence.

Such an action or inaction will be to ‘break the law‘ – but these will not usually result in any criminal sanction.

Such wrongs are usually enforced, if at all, by a wronged party suing in a court.

This is what the law regards as ‘civil’ law as opposed to ‘criminal’ law.

Some people can commit dozens – if not hundreds – of such breaches – and nothing happens, because nobody is able or willing to sue for the wrong.

People act unlawfully and illegally every day.

People just like you.

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Another way a thing can be ‘illegal’ or ‘unlawful’ is when a public body does not comply with the provisions of the law or its relevant legal duties.

Here the relevant law is called ‘public law’ – a general term for the special laws that regulate what public bodies can and cannot do.

As a general rule, a public body can only do what the law provides for that body to do, and when doing so that body also has to comply with certain duties.

And if that public body does not do so, then it will be acting ‘illegally’ or ‘unlawfully’.

This means the public body, as a matter of law, has not done what it should have done.

The common way for such bodies to be held legally to account for the lawfulness of what they do is called ‘judicial review’ – though the question of legality can also sometimes be raised other legal proceedings.

Judicial review is, in England and Wales, usually before the high court.

When the question of legality is raised, the high court will ascertain the relevant laws and legal duties of the public body, and the court will then determine whether the public body has acted in accordance with those laws and duties or not.

If not, the court can decide whether the public body (or minister in charge of a government department in their official capacity) has acted illegally/unlawfully.

And that…

…is it.

At least that is it, in respect of the substance of the case.

If necessary, the court can then make a ‘quashing order’ that will render the act – a decision, or measure, or policy – as unlawful.

The quashing order will then, by legal magic, remove any legal meaning from what was done (or not done).

In practice, this usually means the public body (or minister) can make the quashed decision (or measure or policy) again, but this time lawfully.

A court may sometimes think a quashing order is not necessary, and may make what is called a ‘declaration’ instead – where the high court declares what the relevant legal position is (or is not).

And sometimes a court can even view that neither a quashing order nor a declaration as having any practical use, and regard the breach as moot or academic.

So a finding by the high court of illegality by a public body may mean there is a remedy, on not, depending on the circumstances.

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The role of the court in judicial review is to, literally, review a thing judicially – to see if a thing done or not done by a public body was lawful or not. 

And if so, to see if anything practically needs to be done as a consequence.

Nothing more.

No automatic orders to pay damages, still less impositions of criminal convictions.

And sometimes not even a quashing order or other order, or a declaration, as not even that remedy is required to put right the wrong.

This is because the job of public law is not to deal with civil or criminal wrongs directly but to ensure lawful actions by those with public power – and to issue what corrective orders are necessary to ensure that public bodies keep within their powers and fulfil their duties.

Telling the swimmers to stay in their lanes, and blowing a whistle if required.

*

There is a public interest in this discrete question of legality of public bodies being examined by courts.

Of course, there will always be a clamour for greater sanctions for those individually responsible for such unlawful conduct.

And both the civil law and criminal law do provide the means for civil claims and criminal prosecutions to also be brought in certain circumstances.

Judicial review is not the only legal redress.

Such claims and prosecutions can, however, be complex and time-consuming, involving extensive witness and other evidence, and the need for witness evidence to be examined and cross-examined.

It is harder to impose individual culpability than to review generally whether a public body has acted lawfully or not – especially if intention has to be proved or causation of damage to be shown.

This is not to say there should be no role for civil and criminal liability when things go wrong in the public sphere – but to aver instead that the allocations and inflictions of such liabilities on individuals raise wider legal issues than the narrow question of whether a public body acted within or without its legal powers and duties.

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So when the news is that the high court has found that a public body (including a secretary of state) has acted unlawfully or illegally then this means the court has reviewed what has happened and found it legally wanting.

A ‘cross’ rather than a ‘tick’ against the public body’s action or inaction.

The swimmer is in the wrong lane.

And, if required, an order or declaration so as to correct what has gone wrong.

That this does not carry any personal legal consequences for the ministers or officials involved will disappoint some of those following the news.

But to insist that there also has to be personal legal consequences for the ministers or officials whenever there are unlawful or illegal actions by a public body would be to make judicial review ineffective as a useful tool.

And there would be no public interest in that.

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Why a production company was not allowed to pre-record and broadcast the coronavirus procurement case – a guided tour of the court’s reasoning

20th February 2021

Physician, heal thyself – proverb.

Yesterday the high court handed down its decision in the challenge to the government’s lack of transparency in respect of coronavirus-related procurement.

The court held that the government should have been more transparent.

This blog will examine that judgment once it can be properly digested – but in the meantime, there are some paragraphs of the judgment are interesting in and of themselves.

These paragraphs set out why the court – in a case about transparency and the public interest during the pandemic – refused an application for a production company to pre-record the hearing for broadcast under the very legislation that allows the courts to be more transparent during the pandemic.

Which is a little bit ironic.

Don’t you think?

The court’s reasoning on why the hearing could not be pre-recorded for broadcast is set out at the end of the judgment in a section with the title “Postscript: recording and broadcasting”.

The reasoning is worth going through step-by-step so one can understand the limits of public transparency of the courts when dealing with cases about the public transparency of the government.

(Please note that some of the mild teasing of the court below should not be taken too earnestly.)

*

We start at paragraph 161 of the judgment:

‘161. Prior to the hearing, the Administrative Court Office indicated to the parties that, because of the COVID-19 pandemic, the hearing of this claim would take place remotely using a video-conferencing platform. The Claimants invited me to give permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. They made written submissions in support of that application. The Secretary of State resisted it, on jurisdictional grounds. I refused the application, indicating that I would give my reasons in writing at the same time as the judgment, unless the application was renewed orally at the hearing. The application was not renewed orally. These are my reasons for refusing it on paper.’

This is a useful reminder that judicial reasoning does not exist in a vacuum: judicial reasoning is about whether a court should do or not do a particular thing – usually whether to make an order.

Here, the reasoning is set out not because Mr Justice Chamberlain is going on some frolic of his own, volunteering his opinions on behalf of the judiciary of England and Wales on whether high court proceedings ought to be recorded and broadcast, but in response to a particular application by the claimants.

The government resisted that application – but not on its merits (though no doubt the government would not relish such proceedings being freely available). 

The application was instead resisted on ‘jurisdictional grounds’ – that is that such an order would not be open to any high court judge regardless of the merits.

You will also note that the judge mentions the application was ‘in the interests of open justice’ – and you will see that in nothing that follows does the judge deny that proposition.

The judge refused the application, and so what follows in this post tells why the judge made that decision – and why he did not (or could not) make any other decision on that application.

And the post ends by averring that this was an opportunity missed by the high court and such an application could have been granted on terms.

*

Next is paragraph 162:

‘Section 41 of the Criminal Justice Act 1925 imposes a general prohibition on the taking of photographs in court and on the publication of such photographs. This prohibition extends to video recordings: R v Loveridge [2001] EWCA Crim 973, [2001] 2 Cr App R 29. Exceptions have been provided by and under statute. None applies to proceedings in the Administrative Court. Section 41 therefore constrains the inherent jurisdiction of the court: R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), [2019] EMLR 16.’

The judge starts at, well, the starting point.

Taking photographs in court and publishing the photographs is generally prohibited – which means it is generally a criminal offence to breach the prohibition.

The prohibition is set out in a statute that is nearly one hundred years old, the Criminal Justice Act 1925, section 41(1) of which provides:

‘No person shall—

‘(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or

‘(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof [… ]’

*

But wait: the proposal is not to photograph inside the court – indeed the hearing is not even taking place inside a physical court room – so how is this prohibition relevant?

The judge explains that section 41(1) has been extended to also mean video recordings, even though such things did not exist as such in 1925 and the section does not expressly mention video recordings.

Unfortunately, the 2001 decision which the judge cites as being authority for section 41(1) extending to video recording – and thereby extending the scope of a criminal offence – is not itself easily found in the public domain.

The nearest one will find in a reasonable internet search is this brief case note – which tells us, unrevealingly, that the court of appeal decided an ‘appellant’s convictions were safe despite the police having unlawfully videotaped them at court and adduced the evidence of a facial mapping expert to compare that video with CCTV footage’.

How a member of the public could join that dot to what the court here is saying about section 41(1) applying to video recording is not plain – and so we have to take the judge’s word for section 41(1) prohibiting video broadcasts and recordings even though section 41(1) does not explicitly say so.

(Yes, I know one can access the 2001 judgment through subscription services – but this blog and and what it describes is an exercise in the public understanding of law using public domain materials.)

The judge then notes there are general exceptions to this general prohibition – see here – but tells us none of those exceptions apply.

As such he concludes section 41(1) binds the court’s ‘inherent jurisdiction’ – that regardless that the power of the high court is very mighty indeed, statute is even mightier.

And of course, the judgment he cites for this very important principle is also not (easily) found in the public domain either.

So again we have to take the judge’s word for it.

Welcome to open justice.

*

We now come to paragraph 163, which deals with how the courts have been specially allowed to conduct video proceedings during the current pandemic:

163. The Coronavirus Act 2020 inserted provisions into the Courts Act 2003 about “proceedings conducted wholly as video proceedings”. The first provision inserted was s. 85A(1), headed “Enabling the public to see and hear proceedings”. It empowers the court to direct that such proceedings may be broadcast (i.e. live-streamed). It also empowers the court to direct that the proceedings be recorded, but only “for the purpose of enabling the court to keep an audio-visual record of the proceedings”. Parliament could have authorised recording for broadcast, but did not.

Here the judge is describing what the law says – but also, by implication, what the law is not saying.

The law is set out in a section inserted into the 2003 Act by coronavirus legislation, which provides:

‘Section 85

‘If the court directs that proceedings are to be conducted wholly as video proceedings, the court—

‘(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;

”(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings […]’

*

Section 85 looks promising for the applicants – and the exception under sub-section (a) looks as if it could cover the envisaged broadcast.

On the face of it sub-section 85(a) could be read so to permit the pre-recording and broadcast as envisaged in the application – subject to any specifications of the court

(In my view, had parliament intended that such broadcasts could only ever be done simultaneously with the hearing then parliament would have said so, but it did not.)

But the judge dismisses this possible reading with a deft gloss in parentheses that the broadcast exception only means ‘live-streaming’ – but note, the relevant law does not explicitly mention live-streaming – just broadcasting.

And, of course, many things that are broadcast go through a pre-recorded stage.

There is not a rigid broadcast/record distinction in media production.

The judge decides the envisaged project would fall instead within sub-section 85(b), and he avers that any such recording can only be for the purpose of judicial record keeping.

(It would seem to me to be at least arguable that a direction would have been possible under sub-section 85(a) containing specifications as to the manner of how the proceedings should be broadcast – otherwise, it would ignore the fact that most broadcasts necessarily go through a pre-recording stage.)

As the court decides neither of the coronavirus-related exceptions apply under section 85, then the general prohibition stands.

*

The judge then, in paragraph 164, sets out the criminal offence that parliament created in the coronavirus legislation in respect of certain unauthorised broadcasts and recordings:

‘164. The second provision inserted was s. 85B, headed “Offences of recording or transmission in relation to broadcasting”. This makes it an offence for a person to make an unauthorised recording or unauthorised transmission of an image or sound which is being broadcast in accordance with a direction under s. 85A. Section 86B(6) provides that a recording or transmission is “unauthorised” unless it is (a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor.”

This means that if a hearing is live-streamed in accordance with an order, it will be an offence for anyone to record and re-broadcast such footage.

*

The judge then deals with what appears to be an ingenious attempt by the Claimants to get around the statutory regime using the wording of the criminal offence:

‘165. The Claimants relied on s. 86B(6)(b). They argued that it would make no sense unless the court had power to authorise recording or transmission other than under s. 85A. This is topsy turvy statutory construction. Both the heading and operative language of s. 86B make plain that it is concerned with the creation of an offence and with the delineation of its scope. The function of s. 86B(6)(b) is to make clear that no offence would be committed by a person who records or transmits footage pursuant to an authorisation by the court. That is not surprising. One would not expect something authorised by a court to give rise to criminal liability.’

Topsy turvy.

*

Of course, the language of ‘make plain’ and ‘made clear’ in law (as in politics) usually means that the thing being described is not actually plain nor clear.

And it would seem that the applicants do have a point here (if a weak one) as the relevant section does appear to acknowledge orders being made other than under the coronavirus legislation.

But such an acknowledgment does not, by itself, create jurisdiction to make an order – the applicants still need to show the legal basis for their application, and they did not convince the court that they had one.

Ingenious legal submissions almost always fail.

*

Having asserted that the relevant law is ‘plain’ and ‘clear’ the judge, of course, has to explain the law yet further, and he does so in paragraph 166:

‘166. Nothing in s. 86B purports to define or expand the scope of the court’s powers to authorise broadcast and recording. Those powers are set out in s. 86A. That provision would not have been drafted as it is if the intention were to empower the court to permit recording other than for the purposes of record-keeping.’

Of course, if the law was actually ‘plain’ and ‘clear” then the judge would not need to keep on explaining it, as the law would, well, be plain and clear.

And again the court overlooks the fact that most broadcasting requires a pre-recording stage, and parliament did not expressly limit broadcasting to simultaneous live-streaming.

*

Paragraph 167 then sets out that there is a general prohibition on pre-recording for the purposes of broadcast and that this prohibition stands in this particular case:

‘167. There is accordingly no power to permit proceedings in the Administrative Court to be recorded for the purposes of broadcast, even when the proceedings are conducted wholly as video proceedings.’

In other words: the court would not be able to make such an order even if it wanted to do so.

It is a question of jurisdiction, not the merits of the application.

The judge has therefore not decided against making the order as such, but has decided that he does not have the power to do so.

*

But what about open justice?

For just as the roles of judges, lawyers and parties are now performed online during the pandemic, what about those who would sit in the public gallery?

In the last paragraph of the judgment, the judge explains how this important issue is addressed:

‘168. This does not generally, and did not in this case, prevent the public from having access to proceedings conducted wholly by video in the Administrative Court. In line with the Court’s usual practice, the cause list published on the day before the hearing included an email address through which any member of the public could apply for access to the online platform. All 19 who applied were able to access and watch and listen to the proceedings in this way. The proceedings were therefore at least as accessible as they would have been if held in court.’

This is a good point, well made by the judge.

Anyone who wanted to see the proceedings was able to do so, in the same way a person can go along and sit in a court if they want to do so.

*

But.

‘Open justice’ does not mean openness only to the very limited extent of the time, effort and commitment of a determined stranger to sit in a far-away public gallery.

The high court should seize the opportunity provided by the coronavirus legislation to make its work more visible to the public generally – especially in public interest cases arising out of the government’s response to the pandemic.

The public gallery is just one manifestation of the principle of open justice, but it is not its only standard nor its only template.

That is, to invoke a phrase, topsy turvy.

*

The mild teasing of the court above does have a serious point.

In public interest cases where the hearing comprises lawyer-on-lawyer action (and not any witness evidence) there is no good reason for the proceedings not to be more widely available.

This is not to suggest a free-for-all – such broadcasts can be done subject to the specifications of the court.

But a properly produced and professionally edited version of a public interest court case would be a boon for the public understanding of the law.

It is possible to read section 85A as permitting such a broadcast and, if so, the high court did have the jurisdiction.

Another judge may have taken a more robust approach to the opportunity provided by the coronavirus legislation for such a broadcast to be permitted.

It was a pity that such a production was not possible here.

*****

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‘What’s all this? This is a court, this ain’t fancy dress’ – If you think a cat filter is ridiculous, you should see what judges and barristers sometimes have to wear in court – and why they should not

10th February 2021

One of the joys of the internet are cat videos, and for those interested in the law there was this cat video yesterday.

This may indeed be one of the funniest things you will ever watch.

But there is a more serious point worth making, as we rightly collapse and giggle at this footage.

In the United Kingdom, at least, judges and barristers are often required to wear things which are no less ridiculous than a cat filter.

*

Here two quotes come to mind.

First, a sanitised one from the immortal Withnail and I:

‘What’s all this? This is a court. This ain’t fancy dress.’

‘You think you look normal, your honour?’

*

Second, and somewhat more earnest, is George Orwell in his essay the Lion and the Unicorn:

‘The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber. It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face. Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim. Why is the goose-step not used in England? There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing. It is not used because the people in the street would laugh. Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.’

And similarly, in the United Kingdom, we often dare not laugh at judges and barristers, regardless of how silly their paraphernalia looks.

Because of traditions, and deference.

Because we are conditioned in England to think it perfectly normal that our system of justice is administered in eighteenth-century costumes in ill-suited and creaking Victorian buildings.

That all these anachronisms are as much a part of the natural stuff of law as the doctrine of consideration or the rule against perpetuities.

*

Of course, there are practical considerations.

Those at the criminal bar will say, with force, that the robes and wigs give them helpful anonymity.

But this argument from utility does not justify the wider use of fancy dress – and many other legal systems manage with no more than simple and almost inconspicuous robes, if that.

*

Now look again at the cat filter video.

But this time watch the judge instead.

This is what the judge himself tweeted:

The judge was calm and professional.

The judge did not need fancy dress.

Indeed, no judge or barrister or any lawyer needs to wear fancy dress as an end in and of itself.

(Yes, there may be an exception for criminal practitioners.)

Those who witter on about the ‘majesty of the law’ may as well talk of the absurdity of the law.

*

As this blog averred the other day, there is no inherent reason why many court hearings – as with council meetings – cannot now be done virtually as the norm.

And if this is the case, all the visual gimmicks insisted on in actual physical court hearings no longer have any purpose, if they had a purpose at all.

Wearing wigs and robes may perhaps give a sense of occasion in a large gloomy draughty court room, but they have no place in a virtual hearing.

A good judge does not need to rely on such devices, and a poor judge should not be able to hide behind them.

*****

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Legal words v everyday words – how can the killing of six prisoners between the presidential election and inauguration not be a ‘cruel and unusual’ punishment?

27th January 2021

Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.

In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?

*

The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides: 

‘nor cruel and unusual punishments inflicted.’  

So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.

Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.

But here another part of the constitution is engaged.

The fifth amendment provides, among other things:

‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.

This means that the constitution envisages that a person can be deprived of their life by process of law.

And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.

Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.

So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).

*

In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.

This argument has three bases.

First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.

And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.

They would still be alive today.

Second, federal executions are not usual

Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.

Click and have a look at this table.

Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.

But at a federal level executions were not, between 1966 and 2020, usual.

And by definition, what is not usual is unusual. 

Third, these final six executions were (especially) cruel.

The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.

This deliberate putting to death of a human being had to be done within days, if it was to be done at all.

The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.

*

But.

Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.

And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.

Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.

The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).

(The latest significant case in this grisly caselaw is here.)

What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.

A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.

And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.

On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.

There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.

*

None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.

Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.

The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.

This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.

And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.

*****

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The reluctance of the Home Office to deny publicly that it is reconsidering the restoration of the death penalty – an example of government-media relations

15th January 2021

On 25th December 2020, of all days, the following was tweeted:

There are three immediate things to observe about this tweet.

First, the content.

This is a sensational claim but it is one which, for some people, would seem plausible.

The home secretary is a past supporter of the death penalty and the home secretary is also known as being willing to use home office policy on ‘law and order’ in a politicised way.

And elsewhere the United States has resumed federal executions in the run-up to a presidential election, and the similarly populist government of Turkey has signalled that it would want to reintroduce capital punishment.

Second, the provenance.

The account is anonymous but it does have a reasonably sized following, including followers from many areas of law and the media.

The account does not link to a site for the organisation named, and nor does a Google search indicate that the organisation has any existence beyond that twitter account.

We therefore do not know who the “us” is in the tweet and how much credibility their claim should have.

As such the claim cannot and should not be accepted without corroboration.

(This is not to diss the named organisation and what they campaign for, but is just a normal exercise in fact-checking.)

Third, the circulation of thee tweet.

As of today, the tweet has had an extraordinarily wide circulation.

It has had around 1,800 retweets and 1,900 quote-tweets – often from accounts that have accepted the claim in the tweet to be true or at least plausible.

This means a considerable number of people will now believe that the claim is correct or at least has some substance to it: that the home secretary has asked civil servants at the home office to scope a policy paper on the restoration of the death penalty.

(I do not have access to the tweet’s analytics, but in my experience, such a widely circulated tweet would have been seen by over one hundred thousand and possibly up to a million other twitter users – for that is the multiplying effect of thousands of retweets and quote-tweets.)

At this stage, now click on and read this magnificent post by Matthew Scott on the legal and practical difficulties of such a restoration of the death penalty, including the range of international legal instruments that prohibit such a restoration by the United Kingdom.

In essence: the United Kingdom could, in principle, restore the death penalty – it is a sovereign nation – but it would be in breach of many international agreements if it did so.

*

So either the claim is true – which would be important for us to know – or it is untrue – and, in view of the extraordinarily wide circulation of the tweet, it would be also important for the false claim to be publicly corrected.

(In saying that the claim may be untrue, this again is not to diss the account that tweeted – they may be only as good as their source, and it is possible they heard this from a‘little bird’ in good faith.)

I happen to be in the process of preparing and writing a few things at different titles (and here on this blog) that touch on populism and the use (and misuse and abuse) of law.

I had seen the tweet several times in quote tweets, and so my first step was to find out whether there was any other relevant information in the public domain.

https://twitter.com/davidallengreen/status/1349722281501724673

 

There was none.

And so it seemed that the claim should be put to the home office to ascertain whether it was true.

https://twitter.com/davidallengreen/status/1349725293611606018

My email query was:

“There is a widely circulated assertion that the Home Secretary has asked Civil Service to scope a policy paper on the restoration of the death penalty – source: https://twitter.com/BameFor/status/1342495556732649478 

Can I please have a Home Office statement on this? Normally, and view of UK’s international obligations, one would expect a straight denial, without equivocation.”

*

At this stage, I expected to just get an email containing either a bland denial that the claim was untrue or perhaps an equally bland if evasive statement about not commenting on tweets.

What happened instead was a telephone call where I was told that the claim was ‘rubbish’.

Now ‘rubbish’ is one of those press officer words – like ‘nonsense’ and ‘ridiculous’ – that is used instead of a straight denial such as ‘incorrect’.

And any telephone call from a press office is rarely about providing information (that is what emails are for), it is about the press office trying to obtain information about what is to be published and then attempting to shape what is published – and not published.

It was quickly plain that the home office did not want anything published on this at all, notwithstanding the wide circulation of the original tweet.

So I asked for a statement in writing (I never take quotes over the telephone, especially not from government press offices).

The press office’s response to this request was to question its journalistic value (although one would think that a journalist is in a better place than a press office than to make that assessment).

Given the significance and the circulation of the original claim, it seemed to me that there should be a home office statement on the record.

Indeed, you would expect that the home office would be proud and open in stating that the United Kingdom was complying with its international obligations.

*

Later yesterday afternoon a statement was emailed:

“This is a completely untrue and unsubstantiated claim from an unverified Twitter account. We are surprised that despite telling [you] this, [you] are still insisting on reporting it.”

The references ‘[you]’ in the statement is to the title they assumed would publish the statement.

The statement is worth unpacking.

The explicit reference to ‘despite telling [you] this’ placed beyond doubt that the telephone conversation was not ‘background’ – the public statement only makes sense if the previous conversation was also on the record.

The ‘completely’ and ‘unsubstantiated’ are both examples of over-emphasis – if the claim is untrue, then that is all that needs to be said.

(Like a politician who says ‘absolutely clear’ instead of ‘clear’, such additional words indicate potential evasion and misdirection.)

The denial is limited to the content and detail of the tweet – there is no general statement such as ‘the home office will not be restoring capital punishment’ and still less ‘the home office is proud to respect and comply with the international obligations of the United Kingdom’. 

Instead of such statements, there is an explicit attack on the credibility of the source and an implicit attack on the journalistic point of even putting this claim to the home office.

The ‘insisting’ is a perfect touch – and yes, one should insist that the home office should publicly state its position on restoring capital punishment when there is widely circulated claim that such restoration is being considered.

The home office wanted the statement to either be unusable or, if published, to discredit the news title publishing the story.

(I am happy to publish the public statement here, with the appropriate context set out.)

All this, instead of a simple statement that the claim was untrue and a statement that the home office is not seeking to reintroduce capital punishment and the United kingdom will comply with its international obligations.

*

There is nothing special about what happened here – this is what happens every day between government press offices and anyone in the media seeking to obtain information which the government does not want to publish.

The only difference is that I am in a position to set out the exchange on this blog.

It is a good thing that, despite their initial reluctance, the home office was able to publicly confirm that a widely circulated claim that restoration of the death penalty was “completely untrue and unsubstantiated”.

It is disappointing that the home office sought to do this with a quote intended to deter the use of the quote and thereby prevent any coverage of that denial.

And it is disappointing, but not surprising, that despite the public interest in such a widely circulated claim being openly denied, the home office insisted on going about it in this way instead.

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The significance of the second impeachment of President Donald Trump is not that so many were in favour but how many were against

14th January 2021

Yesterday the president of the United States was impeached.

That is a sentence that should be neither typed nor read very often, as an impeachment is – and should be – an extraordinary thing.

The power of impeachment exists in a constitution when ordinary political processes are unable to address a particular problem.

This is only the fourth impeachment in the history of the United States, though the second time it has happened to President Donald Trump.

Any impeachment is extraordinary and rare – but what, if any, significance did yesterday’s vote of the house of representatives have?

Did the vote signify either the start or the finish of some thing?

Or was it more an illustration of something already in existence and not likely to go away soon?

Or does it not have any real significance or even illustrative value – and so was just another extraordinary political event to join the clutter of other extraordinary political events of the last four or five years?

*

An impeachment vote, of course, is only one step in the constitutional process of removing a president.

There still needs to be a trial before the senate, and the senate will then either convict or acquit.

A conviction would, of course, be significant.

It would be the first conviction of a president, the previous three impeachments each having ended with an acquittal.

And if the conviction happened before the end of this presidential term then it would also be the first removal of a siting president.

Such an outcome would have a profound significance, being the first and only example in the history of the United States of the constitution being exerted so as to expel the holder of the presidential office.

A conviction by the senate would be the first time the deeper magic of the constitution has been used to crack the stone table of the presidency.

But.

For such an outcome there are two further conditions: (1) the senate has to vote to convict and (2) that vote has to happen in the next six days.

Both of these conditions are capable of being fulfilled, but both currently seem unlikely.

Of course, a senate that recently was able to confirm the appointment of a supreme court judge at speed should be able to deal just as urgently with an impeachment trial.

The indications, however, are that the senate will not commence any trial until 19th January 2021, and that would mean any trial would go beyond the inauguration of the new president, Joseph Biden.

And, unless the senate is back in session sooner than the 19th January 2021, the significance of yesterday’s vote will not be that it lead to the removal of a sitting president.

The stone table of the presidency will remain uncracked. 

*

But what of a conviction after Trump leaves office?

That could still happen even though his term of office would be unaffected.

Such a conviction would (or could) result in Trump’s disqualification from holding and enjoying ‘any Office of honor, Trust or Profit under the United States’.

And this would have the practical consequence of preventing Trump from being elected ever again as president.

(Though similar outcome could be achieved perhaps by a formal holding of some kind – legislative or judicial – that Trump had engaged in insurrection and was thereby barred under section 3 of the fourteenth amendment.)

Such a conviction would be significant – as it would show that constitutionalism still prevailed over the abuse of presidential power.

It would signify that what Trump did (and did not) do on 6th January 2021 was constitutionally unacceptable, and that there should be serious consequences of that constitutionally unacceptable conduct.

But even this profound outcome still depends on a conviction after a senate trial.

*

For both the possibilities set out above, the significance of the impeachment vote is that it has started a process that may, or may not, have a profound outcome.

But what was the significance, if any, of the impeachment vote in and of itself?

What was certainly notable about the vote was that it demonstrated both Democratic unity and Republican division.

Most of the speeches of those on favour of impeachment, and the statements of the ten Republican representatives who voted in favour, matched the gravity of what happened on 6th January 2021.

And that the vote was bipartisan – so bipartisan that Republican support reached double-figures – showed that the president’s misconduct was so serious that it transcended normal partisanship.

This signifies that Trump’s unconstitutional behaviour no longer has the solid support of the Republican party bloc.

But.

At least as significant, if not far more so, was that so many Republican congressmen and congresswomen were steadfast in opposing impeachment, despite the events of last week.

The impression one formed watching the speeches of Republican representatives was that there was nothing – nothing at all – that Trump could do that would be so wrong that it would lead to his impeachment.

That whatever Trump did or not do would always be beyond the reach of constitutional mechanisms.

That when Trump and constitutionalism conflicted, then Trump would prevail.

A number of Republicans expressly dismissed the impeachment as merely an exercise of Democrat partisanship.   

And by doing so, they flipped from partisanship within a constitutional framework to the hyper-partisanship which disregards and denies the primacy of constitutional norms.

This means that rather than the vote signifying either the beginning of a process or the end of a presidency (or of a political career) it was more of a stark illustration of an ongoing problem.

The problem of hyper-partisanship, which is as much a threat to constitutionalism as the storming of the Capitol. 

This hyper-partisanship is, in turn, in the service of populist authoritarian nationalism – the very politics that is perhaps most in need of being constrained by constitutional norms.

And so the ultimate significance of yesterday’s vote to impeach the president may therefore be not so much that there was bipartisan support, but that there were so many in opposition and on what basis.

*****

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Why constitutionalism should be stronger than Trumpism, other populism, and even majoritarianism

13th January 2021

President Donald Trump has never won a national vote.

In 2016 he had about three million fewer votes than Hillary Clinton, and in 2020 he had about seven million fewer votes than Joseph Biden.

What he was able to do in 2016, however, was to win a vote sufficient so as to obtain the majority of the electoral college – and, but for the geographic distribution of the votes in 2020, it is feasible he could have won the electoral college in 2020.

Trump, therefore, is not in this way a majoritarian – his democratic legitimacy does not rest on having obtained a majority of the democratic vote.

His democratic legitimacy rests instead on a device – the electoral college – that is provided for under the constitution of the United States.

And what the constitution of the United States giveth, the constitution can taketh away.

*

The removal of an elected head of government should never be done lightly or easily.

But in any constitutional system there will always be the means by which they can be removed, other than at an election.

Ideally, of course, if the complaint about a government is essentially about its politics or policies, then it should always be a matter for an election.

That is what elections are for.

But there are circumstances other than a dispute about politics or policy merits where the removal of a government, or of a head of government, is appropriate between elections.

And in the United States, the constitution expressly provides two mechanisms for the displacement of a sitting president.

One is the the twenty-fifth amendment where, for whatever reason, the sitting president is incapable of exercising their role.

The other is the impeachment and then conviction of a president for high crimes and misdemeanours.

And theses two mechanisms are, in the case of President Trump and any other president, just as ‘constitutional’ than the electoral college that enabled Trump to become president in the first place.

*

The house of representatives seems certain, at the time of writing, to vote to impeach President Trump in respect of the violent attack on Congress on 6th January 2021.

President Trump is now thereby destined be the quiz answer to the question: which president was impeached twice?

He will also be the president who was the subject of attempts to use both methods of removal – the twenty-fifth amendment and impeachment, – which also must be some sort of record.

As at the typing of this blogpost, it cannot be predicted whether the senate will vote to convict President Trump.

(Of course, whatever happens, the outcome of that vote will then seem as having been inevitable all along.)

But in one limited way, it does not matter whether there is a conviction – the very fact there will be an impeachment is a reminder that, regardless of Trump’s ability to mobilise millions to vote or to incite hundreds (if not thousands) into political violence, there is something stronger than his populism.

*

The priority for constitutionalism should be true even if there was not such a thing as an electoral college and if President Trump had actually won a majority of the popular vote.

For just as constitutionalism should be stronger than populism, it also should be stronger than majoritarianism.

Being able to obtain a vote of [x] + 1 does not, and should not, confer immunity from removal from office whatever the winning candidate or party seeks to do between elections.

Such a majority vote would confer political legitimacy – but that is what it is: political.

Such political legitimacy does not translate to absolute protection against the consequences of wrongs that go further than political or policy disputes.

*

Given the events of 6th January 2021, and the role of President Trump in those events, it is difficult to see why he should not be impeached and convicted.

This is the sort of situation that the power of impeachment is there for.

And there are signals (if nothing more) that a sufficient number of Republican senators may be in favour of conviction.

But even if such a vote for conviction does not come to pass, constitutionalism has not gone away.

The senate may or may not vote to convict.

The fact there is such a vote means that constitutionalism – still – is stronger than Trump and his nationalist authoritarian populism.

The challenge is now to keep it this way – for although constitutionalism has not gone away, neither will Trumpism.

*****

If you value this daily free-to-read and independent legal and policy commentary please do support through the Paypal box above or at Patreon.

Suggested donations are of any amount as a one-off, or of £4.50 upwards a month on a monthly profile.

A donation will enable this daily to carry on for you and for others to read and share.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

Each post takes time, effort, and opportunity cost.

You can also subscribe to this blog at the subscription box above (on an internet browser) or on a pulldown list (on mobile).

*****

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

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