Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:
As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.
What is being described as a “Frankenchicken”?
According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste. We should not be treating animals like this.”
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The applicant – The Humane League – was kind enough to share their legal arguments with me.
At the heart of this legal case is a paragraph.
It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.
“29. Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”
(My emphasis added, for a reason which will become obvious.)
The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:
It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.
The applicant in this case is contending the government misunderstands paragraph 29.
The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.
The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.
(I do not have access to the government’s legal argument.)
The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.
First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.
And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.
The applicant’s press release sent to me states:
“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.
“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.
“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.
“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”
This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.
This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.
And this is a perfectly proper thing for a court to be asked to do.
The court is not being asked to directly quash any policy, but to say what a legal provision means.
And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.
It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.
This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.
The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.
That is an ambitious case to make, but again it is a legitimate and arguable one.
If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.
According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.
A spokesperson is quoted as saying:
“We are proud to have some of the highest animal welfare standards in the world. All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.
The hearing is today and tomorrow.
I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.
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You can read more on the Humane League’s campaign here.
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Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?
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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.
Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.
But in Thoburnthe judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.
Incredible, if true.
And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.
But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.
What will law students and pundits do?
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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.
This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.
But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.
How should the courts deal with this situation?
The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.
But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.
And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.
(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)
And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.
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But in 2002 the court was faced with another seemingly awkward situation.
It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.
On the merits of the case, the court found that this was not the position.
But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.
Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?
On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.
But.
As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.
And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.
If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.
His dictum was as follows (which I have broke out into one-sentence paragraphs):
We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.
The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.
(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).
The special status of constitutional statutes follows the special status of constitutional rights.
Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.
The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.
It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.
The ECA is, by force of the common law, a constitutional statute.
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This was exhilarating, provocative stuff.
And it was utter flapdoodle.
There was no basis for positing such “constitutional statutes” – either then or now.
They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.
The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.
It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.
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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.
The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.
But the Supreme Court was unimpressed by the Thoburn point.
The court described the submission (again broken up into one-sentence paragraphs):
On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.
In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.
At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:
“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”
The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.
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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.
The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):
The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.
“Academic.”
Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.
“Even if”
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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.
But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.
For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.
The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.
But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.
Or has it?
No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.
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Or, to perhaps put it another way: could Artificial Intelligence replicate, or even replace, the work of your normal contracts lawyer?
As someone who has spent over twenty years as a commercial lawyer (constitutional law is my interest, and contracts law my drudgery) I would say the answer is yes, and no, and but.
And as a coda, I will aver that those of us who write and comment on legal blogs may face a problem too.
Yes
The yes is a recognition that a certain amount of contracts law in practice is ploddery.
You have a standard form contract, and you read every clause, and you put all the clauses together.
Many standard clauses are what is called boilerplate – their effect, and often their very wording, are identical from one contract to another.
And even clauses which can vary from one standard from to another – payment arrangements, service levels, and key allocations of risk – do not vary very much.
In larger law firms, the task of reviewing, and even drafting, such contracts is given to junior lawyers, even trainees.
Many non-legally qualified contracts managers and procurement officers are better than many commercial lawyers in dealing with straightforward commercial contracts.
And so just as a text comparison program can identify differences between contracts better than almost any human, then a computer which has a bank of hundreds, if not thousands, of standard contracts would be able to identify standard and deviant clauses.
Such a computer may even be able to propose amendments to the deviant clauses so as to place the contract onto a more standard basis.
So, yes, some straightforward contracts reviews could be done by Artificial Intelligence.
No
Standard form contracts are subject to special legal rules in case law and statute, especially when they are for business-to-consumer transactions, and so a store of contracts would not enough: external legal expertise can be necessary.
And being able to advise a client on whether a standard form contract will be in their commercial interests or not is not something Artificial Intelligence is likely to be able to do soon.
That is because assessing commercial risk in a particular situation is not a form of abstract calculus, for it requires an understanding of industry, business, economic, social and human factors.
And, of course, not all commercial contracts are on standard forms.
Certain transactions require bespoke contracts, dealing with the allocations of risk of a range of things that could go wrong.
In IT and media contracts, for example, there often needs to be an understanding of technological risks so that the legal risk allocations match and mirror what problems can happen in practice.
A well-drafted and hard-negotiated bespoke commercial contract is as much a work of cooperation, conflict and collective endeavour as you will find anywhere else in human activity.
But
There is a problem.
The good lawyers who can advise on standard and bespoke contracts can do so because of their apprenticeship in dealing with straightforward clauses in everyday contracts.
You do not have child prodigies in practical law: a practice takes, well, a lot of practice.
One reason for this is that contracts are not linear documents but complex instruments: each clause can and should relate to other clauses.
And the only way to master complex instruments is to understand how the elements of that instruments all fit (or do not fit) together in given practical situations.
(I have said before that legal drafting is akin to coding in making sure lines all work together.)
This means that if Artificial Intelligence replicates and then replaces the work of junior contract lawyers it is difficult to see how senior contract lawyers will gain their necessary experience.
Coda
Perhaps a better route for Artificial Intelligence would be to replicate and then replace the work of legal bloggers and their commenters.
Perhaps the blogpost above was written by Artificial Intelligence, and perhaps also some of the comments below will be too.
If so, then Artificial Intelligence can merrily create blogposts and comments, rendering us all redundant.
Brace brace.
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There were some splendid replies – some old favourites, some new (at least to me) and fascinating-sounding.
As I am on holiday, I will not write a long post in response to those questions, but I would like to perhaps surprise you with who are my two favourite fictional writers about law.
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The first is the Master herself, Jane Austen.
(Yes, I am an absolute Janeite and I see her as the greatest writer in the language, but that is for another day.)
What Austen does about law is so deft and clever you hardly notice she is doing it.
With a sentence, or even a word, she can describe and convey the sophisticated and elaborate legal relationships of the landed gentry and lower aristocracy of her time.
“Mr. Bennett’s property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation; and their mother’s fortune, though ample for her situation in life, could but ill supply the deficiency of his. Her father had been an attorney in Meryton, and had left her four thousand pounds. […]
“When first Mr. Bennet had married, economy was held to be perfectly useless; for, of course, they were to have a son. This son was to join in cutting off the entail, as soon as he should be of age, and the widow and younger children would by that means be provided for.”
There are property lawyers of great seniority and experience who would not come anywhere near being able to explain an entail (or anything else) as straightforwardly.
And Austen does it with what looks like a flick of her pen.
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The other writer was a lawyer himself, though this is not widely known.
Indeed, many literary reference books where they mention his day-job at all describe him merely as an insurance clerk.
In fact he was, in effect, a personal injury lawyer, investigating and assessing industrial accidents for the state insurance scheme.
Perhaps because of this he was able to describe the world of law and bureaucracy so brilliantly and scathingly (and chillingly) in his novels and short stories.
That writer is, of course, Franz Kafka.
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What fictional writers about the law do you most admire? And why?
Please add your reply below.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Today is traditionally the “shortest day” of the year.
Though, of course, one cannot say anything as bold as that on the internet without somebody somewhere taking it upon themselves to type out a reply saying you are wrong: “actually, a day is still 24 hours long, technically” or “actually, a day is not scientifically 24 hours long exactly, technically” or “actually, not in the southern hemisphere”.
But this is the season of goodwill, even to reply guys, so this is a short post on the passage of legal time.
Before then, it was actually time immemorial, technically.
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Until 1963, Acts of Parliament were not formally referred to by the year in which they received royal assent, but by the session of parliament under the relevant monarch:
As you can see above, the very Act which made the change to modern dating was known as “CHAPTER 34 10 and 11 Eliz 2” notwithstanding the short title provided for in section 2.
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Case reports of a certain age also do not refer to the year of the case but to the volume number of the edition of the law reports, such as this famous case from the ninth volume of the exchequer reports at page 341:
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In the courts themselves, the “terms” were more important than any other time period, which Dickens captures well in the first sentences of Bleak House, before riffing on how long the case of Jarndyce v Jarndyce has taken:
“London. Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. […]
“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. […]
“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.”
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Outside of court, the commercial world was more far dominated by quarter days than calendar months.
(And, of course, until 1752 the start of the calendar year was reckoned as on the quarter day of 25th March rather than anything more rational.)
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So a step into legal history is akin to stepping into a TARDIS or Marvel’s Time Variance Authority or an airport departure lounge – that is say, it like stepping into a world where the passage of time runs differently, if it can be said to run at all.
The notion that the English legal system corresponded with the year of lay people is a fairly recent notion.
And so reply guys correcting lawyers on dates will always run the risk of a rejoinder or surrejoinder of “well, actually…”.
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Have a happy Solstice, and thank you all for following this blog.
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I could not call it “law and policy” as that is the name of this blog.
Dear old folkloric wizard “Jack of Kent”is safely dead and buried.
And so I settled on “law and lore” as that put together two things which not only interest me but also are more closely connected than many people realise.
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Let me explain.
Many of those reading this blog will not be lawyers and so have had little need to look up the raw black-letter texts of the law – in statutes, case reports and elsewhere.
Even those of you with the unfortunate affliction of being a lawyer, will not always have read the black-letter texts of every law about which you will have a view or an understanding.
And in society generally, a great deal of the law in practice is what people believe it to be – or should be.
“You cannot do that.”
“I cannot do that.”
“That is not allowed.”
“I have my rights.”
“Technically you are not allowed to do this.”
“Technically if you do this you don’t break a law.”
And so on.
Entire areas of law are, in practice, mini belief systems where people are confident about what the law is, free from ever looking it up: data protection, health and safety, consumer rights, Magna Carta.
And on the political plane, belief is (or was) a great deal of our uncodified convention: a general sense of balance and self-restraint.
This all fascinates me.
I have often wondered what an alien looking down would work out about our laws and legal system just by watching what people do and do not do.
Would such a Martian’s account correspond to what our legal texts say about the law?
And so my view is that to understand law in practice, one has to have an understanding of lore, which I see is helpfully defined online as “a body of traditions and knowledge on a subject or held by a particular group, typically passed from person to person by word of mouth”.
This is not to say that it is consciously invented: those with strong opinions about the law usually believe that they are actually correct.
Sometimes there is a close relationship between law and lore – in, for example, mercantile law, the practices of business folk often give rise to enforceable legal obligations.
And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law.
I would like to explore this distinction between law and lore more in future posts in particular areas.
Let me know if you have any ideas for subjects of such posts.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Here is something a little different – this is a lecture I recently gave to students at my alma mater the University of Birmingham. It has been amended and updated since delivery.
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Law, blogging and social media
A lecture by David Allen Green
Honorary lecturer in the public understanding of law at the University of Birmingham
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This is a lecture about legal blogging and legal commentary on social media: in general terms, that is non-commercial and usually free-to-read online commentary on cases and laws, often addressed to the interested general reader, as well as to specialists and students.
Blogging and social media generally is a phenomenon that has really come about in the last twenty years, though there are some precursors. And legal blogging and legal commentary have become more prominent in the last fifteen years. To an extent it complements the mainstream media, but it also compensates for the decline in specialised legal reporting and comment by the press and broadcasters. And it can also do things which are innovative.
There has also been an increase in legal podcasting and law-related videos on YouTube and other media, and some of what I say will apply to that too, though I know less about that.
In one way, this rise of blogging and social media is a curious phenomenon, as of all subjects, you may think that the study and practice of law would not require any more words. For words are the stuffing of law, at least in the common law jurisdiction of England and Wales.
Words everywhere. Words as the sources of law. Words set out in legal instruments. Words in the various written documents which can be put before that court or tribunal: pleadings and statements of case, and what Charles Dickens once listed sarcastically as“bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense”.
And in addition to all these formal words, we have all the further words of explanation, analysis and commentary. Libraries are packed with these words, in textbooks and journals.
Words! Words! Words!
I’m so sick of words!
I get words all day through;
First from him, now from you!
Is that all you blighters can do?
Lawyers are like the tormentors of Eliza Doolittle, for it seems that words are all that us blighters can do.
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So, whatever is lacking in the study and practice of law, it does not lack for words. Indeed, you may think there are too many words already, and that there should be fewer and that no lawyer or legal commentator should produce any more words than is necessary. You may well have a point.
But in the last twenty years there has been this new medium for the discussion of law: the internet. The internet, in its World Wide Web incarnation, has given rise to instant international electronic publication. And this, in turn, led to “web logs” – blogs – and social media platforms. Millions of extra words about law have now been published, in addition to the many words that stuffed the law already.
Perhaps all the words published online about law in the last fifteen or so years are more than all the words in a comprehensive law library. If so, nobody would be surprised.
In this lecture I shall set out features of blogging and social media generally, as well as some observations about legal blogging and the use of social media in particular.
I speak from the perspective of someone who came into law as use of the internet in legal practice became popular and then indispensable.
I remember the bemusement in 1997 when Massachusetts judge Hiller B. Zobel first published his judgment in the Louise Woodward case on the internet rather by any other means.
I also remember in 1998, as the first Research Associate at what was then (and should still be) the Law Faculty of this university, printing off the judgment in Pinochet (Number 1) on the day it was handed down, to give to an excited academic who was not used to obtaining a written judgment so quickly.
But by the time I was called to the Bar in 1999 and cross-qualified as a solicitor in 2001 there were computers with internet browsers on almost every desk of every law firm and every lawyer had an email address, though some partners insisted on emails being printed off and brought in by their secretaries.
And this lecture is is also from the perspective of someone with over twenty years’ experience in legal practice and about fifteen years’ experience of seeking to explain legal matters in blogs and social media, and in the mainstream media, as well as dealing with blogging and social media matters as part of my legal practice.
I was not one of the earliest legal bloggers, but I was early enough so that I had to code my posts in HTML, and I used my blog to help bring about libel reform by detailing the then-notorious illiberal and misconceived case of the British Chiropractic Association v Simon Singh.
I was also a fairly early user of Twitter, and I was the appeal solicitor in the once-famous “Twitter Joke Trial” case, where we spent three years explaining internet humour to the English judiciary, before the Lord Chief Justice laughed at one of our barrister’s jokes in court and we somehow won.
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So let us ask: “What is a blog, and what is it to blog?”
For before we can assess legal blogging, we need to understand the nature of blogging – and also the nature of social media, which some have called “micro-blogging” – and how blogs and blogging differ from other media.
Here you will see that the law of England and Wales has shied from providing a definition. According to the legisislation.gov.uk website, there is only one Act of Parliament which mentions the word “blog”.
Paragraph 8 of Schedule 15 of the Crime and Courts Act 2013 refers to a situation where a person publishes news-related material on a “multi-author blog”. The term “multi-author blog” is then defined as “a blog that contains contributions from different authors”. But the wise parliamentary drafter did not attempt to define the word “blog”
The Oxford English Dictionary is a little more revealing. Blog as a noun is defined as “[a] frequently updated website, typically run by a single person and consisting of personal observations arranged in chronological order, excerpts from other sources, hyperlinks to other sites, etc.; an online journal or diary”. And as a verb, to blog is “[t]o write or maintain a blog”.
I am a commentator, and not a lexicographer, and so I will not presume to offer a definition of a blog, which would enable you in every circumstance to determine what is a blog and what is not.
But what I can do is to set out some broad features of blogging, and how these features distinguish blogging and social media from other forms of media.
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The first feature of blogging seems banal, but it is crucial. It is that blogging is about writing for a screen – and thereby also about reading from a screen.
This quality distinguishes blogging from book-based and other paper-based media. Of course, one can print off blogposts to read, just as those partners printed off their emails. Some bloggers have even published books based on blogposts.
But blogging – ultimately – is about what you can do with screens and keyboards, with a computer or mobile device.
This means that the writing of blogs is different from writing for publication in hard-copy. Instead of wanting the reader to turn a page, or to compare text on one page with another page, one aims for the reader to scroll, sometimes on a relatively small screen, and often not at a desk or in a library.
And writing readable, scrollable text is a skill. One law firm, Pinsent Masons, with its pioneering and highly regarded Out-Law site, even sensibly employs those from a journalistic background to write posts.
For the independent blogger or commentator on social media, an understanding of how your text or other material will be looked at by your readers should govern how you present it. Clutter is out. And long paragraphs are out – though you do not need to go to the extreme of one-sentence paragraphs. A reader is more likely to read ten paragraphs of ten words each, than a long paragraph of one hundred words.
And brevity is your friend. Long paragraphs can hide clumsy thinking. With short paragraphs you must set out your propositions succinctly, with nowhere to hide. It is a useful (if sometimes difficult) discipline. But in this way good internet writing helps develop and sharpen your own thinking.
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A second, and also straight-forward, feature of blogging is that usually the blogger is a self-publisher.
This is in contrast to, say, a writer published in the mainstream media, where they are commissioned, edited (and sub-edited) and published by other people: for example, a newspaper or magazine weekly columnist who has to provide an 800 or 1200 word opinion every Thursday, regardless of whether their view warrants that many (or few) words, and whether Thursday is the best day to collect their thoughts. A blogger can publish what they want when they want, and a blogger can also decide not to publish anything at all.
A blogger is often a person who, entirely by their own volition, publishes a thing to the world. Normally nobody has asked for it. Nobody may even want it. But the thing is published anyway.
Of course, this means that blogging and social media can be dominated by those who are more confident, perhaps over-confident. You are assuming that your views are worthy of publication. This is the inescapable truth for anyone who publicly volunteers their views on the internet, and it actually covers both those who blog and those who criticise them.
But confidence does not necessarily mean that you have anything worth saying. Other things are needed.
And what offers a check and a balance to those who are over-confident is the engagement with the readers, if any, of what you publish. For just as you are free to publish what you want, your readers will also be free to say what they think of what you write. They may be on the other side of the moat, but they can be just as repellent (and brutal) as any gatekeeper.
Publishing to the world is relatively new thing. Before the World Wide Web it was practically difficult for any person to personally publish a thing outside of those to whom they could deliver or post a physical copy, and it was almost impossible to broadcast, unless you went through a gatekeeper or, as with pirate radio stations, broke the law.
You could print off and distribute a leaflet or pamphlet, but there would be physical and logistical limits as to how much of what you created you could provide to others. The gatekeepers – the newspapers, the publishing houses, the established broadcasting stations – controlled who had access to wider audiences. The means of the publication and broadcast of media products were in the hands of the few, and not the many.
Now self-publication of blogs and social media posts has enabled those who are not able (or willing) to go through more traditional outlets for the dissemination of their insights. Of course, there is no doubt that the lack of commissioning and editing (and sub-editing) stages mean that there is a great deal of dross being published on blogs and elsewhere on the internet. But the lack of prior approval means that many – who would otherwise not find it easy to publish to the world – are able to do so, regardless of any gatekeepers.
One of the great early blogs was “Night Jack” which was by an anonymous then-serving police officer, describing the realities of policing. That blog deservedly won the Orwell prize.
More recently the “Secret Barrister” Twitter account and blog has provided an articulate and scathing ongoing account of the serious problems with the criminal justice system, as have other criminal barristers on social media such as Joanna Hardy-Susskind, who recently did a brilliant post on the criminal justice system. The contribution of these front-line practitioners to the public debate on criminal justice has been invaluable.
There are other examples. One outstanding blogpost was written by the tax barrister Jolyon Maugham (who has since gone on to other things). In that post he described what amounted to a racket: how senior tax counsel gave opinions that they could not have sincerely believed in support of elaborate tax avoidance schemes. It was a brave and remarkable post, and it showed the value of informed legal blogging, putting something into the public domain that otherwise could not have been published, at least not easily.
But there is one serious problem that comes with self-publication – and it is a problem that those with a legal education and/or a legal qualification should be especially conscious. A self-publisher is, in general terms, a publisher for the purposes of civil and criminal liability. Qualified lawyers are also subject to their respective profession’s disciplinary code. Many qualified solicitors will also be subject to media and social media policies of their firms. And those applying for jobs may get their social media history searched and vetted by prospective employers. Blogging and social media therefore are full of perils.
So bloggers and tweeters are, as self-publishers, free to blog and tweet as they wish, at least in there not being any third party approval before you press “send”. But this freedom includes the freedom to publish and be damned.
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A third quality is that blogging and social media is occasional and flexible. As already mentioned, one can choose when to blog and tweet and when not to do so. Unlike, say, a columnist in the mainstream media, bloggers and tweeters usually do not have to have a view on one topic every week which is exactly 800 words long.
So, if there is nothing to blog or tweet about, or you have not got anything worth saying, then you do not have to say anything. And if what you want to blog or tweet about needs only a few paragraphs, then there is no need to artificially inflate the word count.
Indeed, in my view, blogging is more akin to pamphleteering, than anything else in the traditional media. The pamphleteers were those with access to a press who wanted to publish and distribute their views and share information outside the usual media of their time.
Blogging and social media can also be speedy. When there is something worth saying, it can be part of the public debate very quickly. For example, at the time of the then Prime Minister’s attempt to invoke Article 50 without legislation, a speedy blogpost by Nick Barber, Tom Hickman and Jeff King provided the legal basis for what then became a successful legal challenge by Gina Miller and others.
Another topical post was when the immigration lawyer Colin Yeo used the newly released Paddington the Bear film to frame an informative and engaging post about the rights of refugees and migrants. This post, which may be one of the best English legal blogposts ever published, used one event brilliantly to explain another issue dominating the news.
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The electronic nature of blogging provides its fourth feature, which also distinguishes it from many other forms of media. This quality is that a blog can link to other webpages.
A legal blogger can therefore link to their sources, especially to legal materials such as case reports and legislation. What other writers can only do indirectly with footnotes, a blogger can do directly with hyperlinks. So blogging is not only pamphleteering, but pamphleteering with electronic footnotes.
This is especially useful for blogposts which comment on cases and other legal materials, and as such they allow instant comparison for the reader between the source and the commentary. Some blogs, such as the highly regarded SCOTUS blog in the United States, and the INFORRM media law blog in the United Kingdom, provide such sourced posts regularly, with multiple bloggers contributing.
Many readers of a blog will not actually click these links. On my own blog, it is usually only 1% of visitors who will click on something in the post. But it is the fact that the links are there, and so it is open for the curious or sceptical reader to check things out for themselves, which provides confidence and comfort. Because a reader knows that they can click, they will often not feel any need to do so.
As courts and public authorities become more prone to publishing what can be called “primary” materials on the internet, then bloggers and those on social media can, in effect, be the first gloss of interpretation of those materials, in addition to and sometimes circumventing the mainstream media.
And sometimes, as with Adam Wagner’s extraordinary mastery of the confusing and shifting coronavirus regulations, the blogger can become an authoritative source of information even for the courts and public authorities themselves. In this way the volunteer blogger can become an important public service.
My first book, Emergency State, on the constitutional chaos caused by the pandemic, will be out on 13 October 2022!
The fifth feature of blogging and social media has already been mentioned. It is engagement: the immediate and candid (and public) relationship the online commentator will have with their readers and critics.
Of course, lawyers in practice and academics facing peer review also are used to adversarial situations: of people telling you that you are wrong, and worse.
But the intense and open nature of feedback on the internet means that if you are wrong, this will be pointed out swiftly and sometimes powerfully.
This engagement provides a discipline that helps you avoid foreseeable errors and lazy overstatement. Of course, some will still attack you anyway, for saying something which you did not say or did not mean; but writing for a critical audience concentrates the mind wonderfully on getting things as right as possible.
This constructive engagement is distinct from trolling: the vile or condescending messages that unfortunately are a characteristic of too many online exchanges.
A blogger or social media commentator who is seen as good and insightful will, by an informal process of internet peer review, gain a substantial following. But such a reputation is precarious, and you are only one false move from unfollows and hostility.
Some blogs and Twitter accounts prompt comments and replies that are often more valuable than the original posting. This is certainly true of my own law and policy blog, where the real value of the blog is invariably in the comments below the line, which take my head post as a starting point.
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Legal blogs and social media accounts are varied.
Some are veterans of mainstream media, such as the matchless Joshua Rozenburg. One outstanding blog was by the late Sir Henry Brooke, a retired Lord Justice of Appeal, who can be fairly regarded as the best legal blogger the United Kingdom has ever produced, who turned to blogging as a hobby in retirement and mastered the medium immediately.
Some commentators are earnest, and some are less earnest.
Some blogs are by practitioners and legal academics, and some are by those with expertise even if they are not legally qualified. And some are from student and those training to be lawyers.
There are blogs and social media accounts that do brilliant expositions of the black-letter law. There are those that offer speedy case comments and critiques of formal documents. My own blogging tends to take something legally related in the news and contextualise it and assess its practical significance.
Some of these blogs and social media accounts do what used to be done in mainstream media; others do things which were not really open for traditional media channels. Some are anonymous, and others are emphatically and stridently self-promotional. Some are connected to business and practice development, while others keep their practice and their commentary separate.
There is no one right way – no single model – of using a blog or a social media account for explaining, analysing or commenting on the law, but there is one golden rule.
The golden rule that all this online legal commentary should comply with is that, as far as you can, you should try to get the law right.
This means that you do not publish something about the law about which you are not confident; and it also means that if you are shown to be wrong (or to have overstated something) you respond accordingly. Sometimes corrections and clarifications (and deletions) are painful, if not humiliating. But they have to be done.
This duty is distinct from any professional duty as a legal adviser. Not all legal commentators are in legal practice – and some outstanding legal commentators are not even legally qualified. Explaining and commenting on the law generally is not the same as advising a client in a particular situation.
But taking the law seriously, even if you seek not to take yourself too seriously, is essential.
And if you do not take the law seriously, then whatever you are doing (or think you are doing), you are not commenting on the law but are doing something else less useful instead.
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So why bother with legal blogs and social media?
For the reader – or lurker – there is the benefit of high-quality explanation, analysis and commentary that is either not elsewhere or is not easily obtained, and in a form that is easy to scroll and to click on links to open new tabs. As long as you use your critical faculty, or rely on the critical faculties of those you respect, then you are giving yourself access to a great deal of first-rate legal information.
For those who are tempted to blog or tweet about the law, we salute you. For every thing you may gain by doing so, there may be an equal and opposite reaction. These can range from being simply ignored or being told that you are wrong, to creating professional and legal risk for yourself. It is not to be done lightly, and many sensible student and lawyers choose not to comment online about the law.
But there is also something to be said for law students, law academics and legal practitioners doing what they can to promote the public understanding of law. For if lawyers do not do this, then it will be left to others, and so there will be caricatures instead of insights, and misinformation instead of information.
And so even if you do not provide online legal commentary yourself, you should help circulate good legal commentary when you come across it, for the benefit of others as well as for your own benefit.
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As we started with My Fair Lady we can also end with it.
In another scene of the film, Professor Henry Higgins turns on all the phonographic machines in his gorgeous library, and dials the machines louder and louder. All we hear is a babble of voices, and of words. Colonel Pickering covers his ears.
And this is how the internet and social media can seem to the uninitiated – a louder and louder babble of voices and words. In response to this, we may wish to share the reaction of Colonel Pickering and cover our ears, or at least turn off our browsers and internet connections.
But it is not all noise of the same quality, for there are signals there too. Not all words of equal value. For just as there are good textbooks and bad textbooks, and well-reasoned judgments and less well-reasoned judgments, there is good and well-reasoned online legal commentary, and there is bad or less well-reasoned online legal commentary.
The task to develop is to be able to know the difference, and so benefit from – and even promote – this boon to the public understanding of law.
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Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.
Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
***
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 and comments will not be published if irksome.
You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.
This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.
“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”
And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:
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This would have been huge, if true.
The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.
The Opinion is also dated the same day as the newspaper website article: 1 September 2022.
This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.
We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:
This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.
That firm, in turn, instructed two public law barristers (not criminal law specialists).
What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.
(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)
There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.
Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?
Who authorised this procurement and use of public money?
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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.
The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.
In my view there is even force in the argument that the Opinion does not contain any legal opinion.
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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:
One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:
This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.
You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.
This is odd.
For as the expert in parliamentary procedure Alexander Horne points out:
HMG would know very well that the usual practice is to send submissions to a select committee and leave it for the committee to publish; it is then protected by parliamentary privilege. But such an approach would have allowed the committee to publish its response at the same time
There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.
Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .
But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.
The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.
This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.
The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.
The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.
The committee’s report is, well, absolutely devastating.
The language is extraordinarily strong for such a report – for example, at paragraph 12:
“We consider this concern to be wholly misplaced and itself misleading.”
At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.
And so on.
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Caption: legal commentators reading the committee report
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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.
And this is a committee which has Conservative members as well as opposition members.
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This whole exercise is rather strange.
This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.
And, as such, it would be unfair to name them in this context.
This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.
A lawyer is only as good as their instructions.
Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.
There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.
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Perhaps the committee will find there was no contempt.
Perhaps the matter will just go away.
Perhaps there will be a political feeling that the former Prime Minister has been punished enough.
Who knows.
But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).
Something rather irregular happened here, and it is not the sort of thing which should happen again.
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Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.
Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.
The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.
This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.
And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.
Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.
It would be an extraordinary thing – even supernatural and paranormal.
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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.
There is no actual evidence of de-classification, then his explanation needs to deal with that absence.
There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.
It is all very odd.
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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.
If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.
The only difference here is whether the law applies to Trump as it applies to others.
Or is there a legal privilege for Trump?
This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?
Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?
Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.
For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.
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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 and comments will not be published if irksome.
Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.
But there were some things missing.
And one omission in particular was deliberate.
The post did not mention either of the authors of the opinion.
This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.
The authors could have been two unknown newly qualified barristers at some obscure chambers.
Or the authors could have been the ghosts of Thomas More and Edward Coke.
It did not matter.
And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.
In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.
(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)
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The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.
(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)
It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.
As such, it was almost as if he was being used as a brand, rather than as an advisor.
A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.
As I then described: what appears to have happened was that the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel – the Treasury Devil; a clever compromise was reached where it would be referred to him on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.
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In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.
Here, the barrister involved is not to blame.
Seriously.
The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.
Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.
And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.
Who knows what the authors of the opinion thought about their work being used in the way that it was?
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If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.
For if the legal point is sound, the reputation of the lawyer is irrelevant.
And if the legal point is unsound, the reputation of the lawyer will not save it.
This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.
As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.
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As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:
My contribution in @thetimes as to whether contempt of Parliament requires intent.
I agree with Lord Pannick QC that intent is critical – but intent needn’t be contemporaneous with the statement.
A deliberate decision not to correct the record ought also be treated as contempt. pic.twitter.com/ncICbjw6t2
(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)
And it also the view of the professor of public law at the University of Cambridge:
If the Privileges Committee inquiry ends up being cancelled on the basis of the Legal Opinion published today, it will be a constitutional outrage — for reasons I’ve explained here: https://t.co/lFNjul3Zz9https://t.co/y8gR7WiYLf
Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.
Because it is the content of a legal opinion that matters the most.
Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.
Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.
But respect is not necessarily deference, and it is certainly not subjugation.
And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.
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Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.
For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.
They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.
And, as an opinion, it is always open to those to whom it is disclosed to take their own view.
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So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:
(Though the “highly arguably” is adverbly painful to read.)
But.
There is nothing wrong with being a blogger.
For even bloggers can look at kings.
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Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.
Posts like this take time and opportunity cost, and so for more posts like this – both for the benefit of you and for the benefit of others – please support through the Paypal box above, or become a Patreon subscriber.
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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 and comments will not be published if irksome.
As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.
And these regulations were made under section 12 of the Animal Welfare Act:
