Category: Legal Words and Phrases

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

2nd September 2022

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

To quote the Daily Mail:

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

Not just devastating – but devastating absolutely.

Gosh.

Huge, if true.

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

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

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

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

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

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

But.

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

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

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

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

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

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

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

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

No.

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

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

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

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

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

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

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

It is merely an expression of a view.

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

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

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

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

They are PR, not probative.

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

This Opinion is, in effect, a PR exercise.

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

The inquiry would then have been devastated.

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

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

But this Opinion was not quietly disclosed to the committee.

It was instead placed into the public domain.

On a Friday afternoon.

After it was leaked to a newspaper.

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

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

It is an appeal for media and public support.

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

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

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

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The Opinion is not strong.

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

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

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

And here:

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

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There are a few points to make about this Opinion.

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

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

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

But.

It gets worse.

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

This has been spotted by the Labour MP Chris Bryant:

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

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

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

That would not be a contempt.

But.

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

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

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

And my post on the same:

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

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

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

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

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

This has already been spotted by the estimable Hannah White:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He can answer, parliamentarian to parliamentarians.

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

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

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

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

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

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

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

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

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

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

This could have been a far more interesting opinion.

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

Frankly, it is devastating.

 

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POSTSCRIPT

 

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The curious resignation letter of Lord Geidt – what it says, what it does not say, and what it signifies

16th June 2022

Lord Geidt is an unlikely man of steel.

Yet it appears that steel was the reason for his resignation.

And so, as a discreet but embarrassed courtier, he has chosen to exit via the ‘trade’ route.

(Photo by Chance Agrella from Freerange Stock – donation made.)

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See this outstanding and informative thread from the estimable trade expert Sam Lowe for the practical background to this matter:

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But what can we make of the resignation letter and the reply?

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Lord Geidt comes from a diplomatic background.

And diplomats, like lawyers, are wordsmiths.

(It is just that their wordsmithery is often about imprecision and ambiguity, in contrast to the lawyerly lust for precision and clarity.)

He will have chosen his words and formulations carefully.

So let us look at the operative paragraph:

An “impossible and odious position” is quite a striking thing to say.

(Though “deliberate and purposeful” seems a tautology.)

The Prime Minister’s letter sets out more about the request for advice:

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There is a lot here that does not make immediate sense.

Lord Geidt for all his many merits is not a lawyer, still less a trade lawyer.

There would be no obvious reason for “tasking” him for a view on something to do with the legality of tariffs.

The question must have come before him another way.

Some are speculating that it may be because of party donations, but this appears to be being denied (though the denial is in a curious form):

My current suspicion is that there may have been a request for a ministerial direction to do something with which an official did not feel comfortable, which then somehow got referred to Lord Geidt.

Who knows.

But connecting the [X] of a steel tariffs issue to the [Y] of an ethics adviser resigning is not easy.

And this is the case even if Lord Geidt simply used this issue as a pretext to resign.

There is something missing here.

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But.

What is not missing here, however, is that this incident shows that our current Prime Minister is at best indifferent to two rules-based regimes.

The first is the Ministerial Code – which, as this blog has previously averred, is a constitutional nonsense, as it offers no real check or balance whatsoever to any Prime Minister.

The second is the rules-based system of the World Trade Organisation.

You may recall government-supporters during Brexit clamouring for the United Kingdom to trade on ‘WTO terms’.

It often seemed they did not know what that actually meant, and it was said because it sounded good.

Well.

It seems that the government of the United Kingdom is as contemptuous of this type of international law as it is of others.

This very week we have seen the government of the United Kingdom seek to break international law with the Northern Irish Protocol Bill and make aggressive noises about compliance with the orders of the European Court of Human Rights.

The rules of the World Trade Organisation are now the third international law regime the government of the United Kingdom want to be free from this week – and it is still only Thursday lunchtime.

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At the heart of this government is a sense of lawlessness – that in area after area there is the view that rules do not and should not apply.

The resignation of Lord Geidt seems to be a double-whammy of two such areas – the Ministerial Code and WTO rules.

But it could have been compliance with the orders of the European Court of Human Rights, or compliance with the Northern Irish Protocol, or compliance with Covid regulations, and so on.

And so on.

Perhaps we will find out more about the circumstances of this particular resignation.

But we already know from previous resignations that much of what has happened is already all too clear.

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The curious clause one of the Northern Irish Protocol Bill

14th June 2022

Let us start at the beginning, for it is a very good place to start.

And at the beginning of the Northern Irish Protocol Bill, just after the title, purposes, and preamble, is clause 1.

(A ‘clause’ is what becomes a ‘section’ by legal magic when a Bill becomes an Act.)

Clause 1 provides:

There will be time to look at the other provisions of this Bill, but let us take a moment to look at clause 1.

The content of the clause is not part of the title, purposes or preamble to the Bill.

No, we can check, and it has a clause number.

Clause 1 is intended to be part of statute, to have the force of primary legislation.

But.

It does not seem to be law.

I do not know what it is.

It is called ‘Introduction’ – as if it was part of some Penguin Classic.

But the the title, purposes and preamble are usually all the ‘introduction’ a statute needs.

For example. the purposes tell us that the Bill is to make “provision about the effect in domestic law of the Protocol on Ireland/ Northern Ireland in the EU withdrawal agreement, about other domestic law in subject areas dealt with by the Protocol and for connected purposes.”

That will tell a court what the Act will be for, if a court needs an introductory aid to construction or interpretation of any of the provisions.

The provisions of this clause 1 do not create obligations, or confer any discretions or rights.

What are they doing?

Are they capable of legal effect, in and of themselves?

Are they intended to have legal effect, in and of themselves?

Are they intended to be aids to construction or interpretation of any of other provisions, in the case of ambiguity or doubt?

If so, how?

What are they supposed to be?

They read more like a policy statement or explanatory note for the Bill – but these are separate documents that the government has also published.

The published explanatory notes do not help us:

“[S]ummarises”?

Is the purpose of a clause to “summarise”?

“[M]akes clear”?

Oh dear gods.

If the rest of the Bill needs a provision like this so as to “make” things “clear” then the drafting of the other provisions needs to be done again.

Perhaps clause 1 is just to get “Union with Ireland Act 1800 and the Act of Union (Ireland) 1800” somehow onto the face of the Bill – indeed on to page one – so as to placate unionists?

And, applying the rule against surplusage – that courts give effect, if possible, to every clause and word of a statute so that no clause is rendered superfluous, void, or insignificant (definition taken from here) – what actual difference does clause 1 make to the rest of the Bill?

If clause 1 were – say – to be deleted, what difference would it make to the legal effect of the Bill once enacted?

The fear must be that the creeping use of legislation as a form of political propaganda – press releases by other means – has now infected the very statutory provisions themselves.

It is difficult to imagine what the parliamentary drafter intends by clause 1 as to its legal effect.

Perhaps this has happened with other Bills – and, if so, please leave comments and links below with examples.

Perhaps it a commonplace, and I have missed it in other legislation.

But it does not seem right.

And it perhaps suggests that the government does not sincerely intend to place this Bill on the statute book, and that the Bill as a whole – and not just clause 1 – is merely for political consumption.

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POSTSCRIPT

 

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The lawyering-up of Boris Johnson – how the Prime Minister’s statement on the Sue Gray report may give clues to how he escaped more penalties

26th May 2022

Let us start with one stark fact that demands explanation.

That fact is that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present received many more.

One response to this striking fact is to posit that there must have been a stitch-up or some other conspiracy – and nothing in what follows in this post denies that possibility.

This blog, however, is not a conspiracy blog, but a place for law and policy analysis and commentary.

And on that basis, let us look to see if there can be another explanation.

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Let us now go to what the current Prime Minister said in the House of Commons yesterday, in his pre-prepared statement.

One passage was especially interesting:

“The exemption under which those staff were present in Downing Street includes circumstances where officials and advisers were leaving the Government, and it was appropriate to recognise them and to thank them for the work that they have done. [Interruption.] 

“Let me come to that, Mr Speaker. I briefly attended such gatherings to thank them for their service—which I believe is one of the essential duties of leadership, and is particularly important when people need to feel that their contributions have been appreciated—and to keep morale as high as possible. [Interruption.] 

“I am trying to explain the reasons why I was there, Mr Speaker.”

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This passage seemed to be very carefully put together – and (as a former government lawyer) I gained the impression that it owed far more to legal advice than to any genuine articulation of Boris Johnson’s state(s)-of-mind.

Johnson was present, he claims, because he was fulfilling a management function – an ‘essential dut[y] of leadership’.

He was, he says, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible.

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If you read the last sentence again, you will see it says much the same thing in three different ways.

This is a trick many lawyers know and use to make it look like an obligation has been fulfilled.

It takes the form of [duty A] was fulfilled because of [x, y and z], where [x, y and z] are synonyms or near-synonyms.

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The impression I had on listening to this passage of Johnson’s statement was that some lawyers had been presented with the unhappy facts of the Prime Minister attending leaving parties and giving toasts, with glass in hand.

How does one possibly convert that situation into something that brings it within the legal exemption of being part of a gathering that was reasonably necessary for work?

After all, a leaving party is not reasonably necessary for work, and toasts are not reasonably necessary for work.

But if you flip the description of what happened from parties and toasts to performing an ‘essential dut[y] of leadership’ by synonym, near-synonym, and near-synonym – ahem, thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – then, there you have it, a reasonable excuse.

That excuse may not cover others present at the same gathering – but it would cover the one providing ‘essential leadership’.

And it would not cover the one gathering where that excuse – I mean, explanation  – would and could not apply – the birthday gathering.

That is why, I aver, he got a penalty for that indoor gathering but not the other parties.

My suspicion – which may or may not be well-founded – is that this is the very reason why someone is quoted as saying that the Prime Minister was assured that he would only get one penalty.

(Of course, this may be wrong and it may be that there were Metropolitan Police leaks or undue contacts between the Prime Minister’s office and Scotland Yard – but my theory has the merit of not needing any such conspiracy.)

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Yesterday I set out this theory in a brief Twitter reply – which was not sufficiently clear – and I was told that I was wrong – that leaving parties and toasts were not and should not be reasonably necessary for work.

But I agree with those points.

My suggestion is not that leaving parties and toasts were, by themselves, reasonably necessary.

It is instead that providing ‘essential leadership’ is reasonably necessary – and this can be distinct from how that leadership manifested itself in particular circumstances.

And synonym, near-synonym, and near-synonym – thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible – may all be supposed examples of such ‘essential leadership’.

Of course, there were many other ways a senior manager could have performed these ‘essential’ tasks – by Zoom calls, or thank-you notes, and so on.

And indeed, during the lockdown, this is what other senior managers did so as to provide their (genuinely) essential leadership.

If your view is that the current Prime Minister could have performed his role without giving toasts at leaving parties, no sensible person will disagree.

But from a legal perspective, if that was his reason for being at a gathering – and if it is accepted that thanking staff for their service, appreciating people for their contribution, and keeping morale as high as possible can all be elements of a leadership function – then you can now see how the Prime Minister has managed to take the benefit of the exemption.

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The theory set out above has the merit of explaining the striking fact stated at the head of this post: that the current Prime Minister received only one fixed-penalty notice in respect of the many gatherings at Downing Street, while others present at those gatherings received many more.

And if this theory is sound then it shows the irony – hypocrisy – of Johnson’s many attacks on ‘activist’ lawyers for others while taking the benefit of legal advice for himself.

It is also shows the unfairness of the more senior people in ‘Partygate’ getting lawyered-up when more junior figures were not able to do so, and so were penalised instead.

If Johnson should be toasting anyone, then it should be the lawyers that gave him a way of avoiding legal liability in this awkward situation.

But, no doubt, he will ‘move on’ – and start attacking lawyers again.

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Why it will really matter when the Prime Minister realised he had misled the House of Commons – even if his four misleading statements were in good faith

22nd April 2022

As the cliché of American political reporting has it: what did the president know, and when did he know it?

Applying this same sort of question to current British politics, it may not be important so much that the prime minister (says he) did not realise he had misled the house of commons on four occasions, but about when he realised he had done so.

Here we need to look at this Twitter thread by the estimable Alexander Horne:

It will be impossible for any sensible person to believe that the prime minister did not realise at the time he misled the commons that he was lying.

Of course he did.

But – let’s pretend that the prime minister inadvertently misled the house of commons and that he believed in the truth of what he was saying.

Let’s pretend.

At some point between then and this week, he would have come to the realisation that he had misled the house of commons.

That might be when he had subsequent advice and briefings in respect of his evidence to the Sue Gray investigation.

It might have been when he had sight of the Sue Gray report.

It might have been when he had subsequent advice and briefings in respect of his evidence to the metropolitan police investigation.

But it is unlikely that the first time he realised was when he received his (first) fixed penalty notice.

Now, let us turn to a curious form of words used by the prime minister last Tuesday in his statement to the house of commons (emphasis added):

“Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules.”

At the time, that the two words “or subsequently” struck me as odd and in need of explanation.

The words did not seem like mere surplusage.

And now, given Horne’s highly useful and informed thread, the meaning of those two words are apparent.

For it is one thing for the prime minister to claim that he did not realise at the time of his four statements that he was misleading the house of commons.

But it is quite another for him to also maintain that he corrected “any inadvertent error at the earliest opportunity”.

At some point between the four misleading statements to the house of commons and last week’s statement, the prime minister became aware that those four statements were not true.

(Of course, he knew at the time he misled the house, but let us continue pretending for the sake of exposition and analysis.)

And if and when the Sue Gray report is published (and/or the briefing given to the prime minister for the metropolitan police inquiry is disclosed) it may become plain that the prime minister did not correct “any inadvertent error at the earliest opportunity”.

Those two words “or subsequently” are going to be doing a lot of work.

For, if it can be shown that even if the prime minister did in good faith mislead the house of commons on each of those four occasions, he also needs to satisfy the privileges committee that he corrected “any inadvertent error at the earliest opportunity”.

And it may be that the Sue Gray report – or other information – may show that is just not true.

Given the powers of the privileges committee, that will not be a comfortable position for the prime minister.

He should brace, brace.

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

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The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

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So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

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To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

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Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise.  I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

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The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

*

So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

*

For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

*

Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

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Why the term “for the avoidance of doubt” is the hallmark of shoddy legal drafting

5th April 2022

It is nice to be cited and complimented in the Houses of Parliament.

This is the Green party peer Baroness Jones mentioning one of my (many) bugbears in the recent debate on the Nationality and Borders Bill:

(Hat-tip to CJ McKinney for spotting this.)

So I suppose this is the time to set out this bugbear more fully.

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Imagine – even if you are not a lawyer – that you are writing some legal or other formal text.

(The verb ‘to draft’ is used for this strange activity.)

Imagine now you have drafted something – but you realise that it is not spot-on.

The question is what you do next.

Do you go back to the text and amend and improve it until it does say what you want it to say?

Or do you just add a new sentence, that starts “For the avoidance of doubt…”?

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In my opinion, the term “for the avoidance of doubt” is the hallmark of shoddy legal drafting.

If you are ever presented by a lawyer with an original formal document that contains this phrase, you should cross it out with your brightest coloured pen or pencil.

And then sack the lawyer.

The only time the term is permissible in a formal document is if you are doing a rescue job, amending someone else’s shoddy original text.

In that circumstance, even the strictest lawyer may have no other option but to use the dreaded term, as reframing the relevant clause or other provision may not be a realistic option.

But apart from that one situation, it is a danger sign in any formal document.

It means the author of the substantive clause or other provision is conscious that the formal text is vague or ambiguous, but that he or she cannot be arsed to make the text clear and precise.

The use of the term in informal writing is less of a problem, though it still indicates sloppiness in expression.

(And the keen-eyed of you will note that the preceding sentence avoided using the term.)

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So thank you Baroness Jones for the parliamentary mention and commendation of this view.

And, for the avoidance of doubt, this stricture also applies to me and other legal bloggers.

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“Take A View” – the three words with which P & O and others will internally justify breaking civil law obligations

25th March 2022

“How can you defend someone you know to be guilty?” is the one question almost all lawyers will be asked at one time.

But it is perhaps a question about the wrong lawyers and about the wrong area of law.

The question presupposes criminal lawyers and criminal law.

Yet no criminal lawyer can actively defend as not guilty someone who has admitted their guilt (though the prosecution can still be put to proof).

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There is a far more difficult question for those who advise on civil rather than criminal liability.

(Civil law is, in general, about the legal obligations that we owe each other in contract, or tort, or otherwise – as opposed to obligations we owe to the state.)

The question is: “How can you defend someone you know to have deliberately breached civil obligations?”

For what often happens in civil law is that the client will know that they are (or will be) in breach of a contract, or of a duty of care, or of some other legal obligation.

But they do not care.

They just want to know the consequences of that breach – whether they can avoid or mitigate the consequences.

The lawyer will, in turn, explain the consequences of the breach – the likelihood of actually being sued and the amount of damages and so on.

The client will then assess whether the breach is worth the trouble.

They will – to use a common phrase in legal practice – ‘take a view’.

That the ‘view’ being ‘taken’ is a view on whether they should risk breaching a legal obligation is not said aloud.

The relevant exchange is in the following form:

Client: Can I do [x]?

Lawyer: If you do [x] then there is a risk of [y] legal liability.

Client: Ok, we will take a view.

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Some lawyers would say there is nothing wrong with this.

If there is a breach, and the party adversely affected sues successfully, then the injured party will be compensated and (supposedly) placed in the position they would be in had the legal wrong not happened.

A breach of contract will lead to damages to put the injured party in the position had the promise been fulfilled.

In (most) torts, the injured party will have damages intended to place them in the position had the tort not been committed.

And so on.

In effect – damages and so on are the cost of business.

Like professional fouls in association football.

*

And this is how one suspects the bosses at P & O went about breaking the law in respect of sacking their staff.

It was not because they did not realise that there would be legal consequences.

But instead they knew that if they budgeted for the resulting compensation payments, they would head off any legal claims.

They would deliberately break civil obligations knowing that they could manage any civil risk.

They would ‘take a view’.

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Postscripts – from Twitter:

 

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The Chelsea FC statement that is not what it seems

27th February 2022

Last night – at 6.45pm on Saturday – Chelsea Football Club unexpectedly published this statement:

In terms of media coverage, the statement could not have been timed better.

It was early enough to be just about picked by the Sunday newspapers, but late enough to avoid lengthy scrutiny.

And it was at that time on a Saturday that those on Twitter are expecting ‘breaking’ stories.

Accordingly, the statement was quickly taken (and shared) by many in news and sports media as being significant.

This apparent significance also seemed warranted by the content of the statement, which I publish below (with sentences split out):

“Statement from Club Owner Roman Abramovich

“During my nearly 20-year ownership of Chelsea FC, I have always viewed my role as a custodian of the Club, whose job it is ensuring that we are as successful as we can be today, as well as build for the future, while also playing a positive role in our communities.

“I have always taken decisions with the Club’s best interest at heart.

“I remain committed to these values.

“That is why I am today giving trustees of Chelsea’s charitable Foundation the stewardship and care of Chelsea FC.

“I believe that currently they are in the best position to look after the interests of the Club, players, staff, and fans.”

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Let us look at what this actually says.

One phrase which stands out is “stewardship and care” – which Abramovich is “giving” to the “trustees of Chelsea’s charitable Foundation”.

Two sentences before that phrase – deftly – this is framed as a “decision”.

This looks solemn and legally meaningful.

But.

The statement has no legal meaning at all.

Indeed, it would seem that the statement was crafted deliberately so as to give the impression that something legally significant was happening – a “decision” to transfer a thing to “trustees” – when nothing legally significant was happening at all.

This is PR – and this is what you get when you can afford expensive and wily PRs.

And it had the desired effect:

And there were many excited tweets from those in news media who should have known better suggesting the statement said something important.

*

The phrase “stewardship and care” looks like it should be a legal phrase.

It is similar to, say, “duty of care” (which is a legal term of art) – and “stewardship” has a nice legal-ish comforting ring to it.

But it is flapdoodle.

What one transfers to trustees is not “stewardship and care” but ownership of property.

The trustees then – literally – hold that property on trust on behalf of beneficiaries.

But if you look at the Chelsea FC statement there is no property been passed to trustees.

The word “trustees” is, in effect, a misdirection.

They may as well be assistant referees or physiotherapists, for their title is – strictly speaking – irrelevant to what is being described

It is very skilfully put-together statement for journalists and others in a hurry.

And only those with a background in commercial and trusts law would realise immediately that the statement did not actually say what it seemed to say.

*

This does not mean that the fact of such a statement is not without its own significance.

There would be a purpose to such a statement at such a time: statements like this are not randomly put out at 6.45pm on a Saturday when Russia is invading Ukraine.

*

Of course: there is nothing wrong about retaining ownership of Chelsea FC – even from my perspective as an Aston Villa supporter.

It is certainly not defamatory to say that Abramovich remains as much the owner of Chelsea FC after this statement as he was before.

(And we would especially like to welcome all the representatives of London’s defamation law enforcement community who have chosen to join us here on the law and policy blog at this time.)

Nothing on this blog should be taken to mean that one should think any worse of anyone involved – indeed, this post registers admiration at a such a perfectly deft exercise in PR.

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Being duly diligent about the phrase ‘due diligence’

23rd February 2022

Another day, another phrase for us to examine.

Today the phrase is ‘due diligence’  – a phrase that appears to be used in politics by those hoping it means something that it does not.

Here is the example from today:

The phrase is a nod-along word in politics, something said to reassure the listener.

It sounds impressive, even formal.

But.

Those who invoke the phrase need to be able to explain what they mean by it.

And it seems they cannot:

The phrase – to state the obvious – comprises two words.

Taking the second word first, it means that a person is being careful in respect of a certain matter: [x] is being diligent.

The first word ‘due’ then qualifies that diligence, so it means that person is not only being careful but that the person is being appropriately careful in a given circumstance: [x] is being duly diligent.

And so, anyone claiming to be duly diligent needs to be able to explain exactly how they are applying their diligence in a given situation.

In commercial and corporate legal practice, what constitutes being duly diligent can vary according to the nature of the investigation or inquiry in hand.

Some issues will require anxious scrutiny while others warrant less intense scrutiny.

And once the lawyers have done their ‘due diligence’ – that is, been duly diligent – they can advise their clients on the risks of a certain transaction or other course of action.

In all cases, those being duly diligent will be able to not only assert they have been careful but how they have gone about being careful.

So, coming back to Boris Johnson’s spokesperson and their buzz phrase of the day: what did they mean by ‘due diligence’?

It should mean that the Conservative party has not only been diligent in respect of donations to the Conservative party, but that the Conservative party also has method in its diligence: that certain questions have been asked and that certain risks have been assessed.

That the Conservative party has been – well – duly diligent.

And if the party has been duly diligent it then should be able to explain what that means in these circumstances.

For if that cannot be explained, it indicates that nothing is actually meant by the term – and it is mere flapdoodle.

And we can work this out by ourselves being – well – duly diligent about those who use the phrase ‘due diligence’.

https://twitter.com/davidallengreen/status/1496480334363435008

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