Writing about the Wagatha Christie case reminded me of this thought I once had.
Defamation is an odd tort, and to my mind it is a lot like trespass to land, which is another odd tort.
Odd, as in distinctive.
When a person goes on the land of another, and the land owner wants to sue, the land owner has to prove they own the land and that there is/was an intrusion.
It is then for the defendant to prove that they had a right to enter the land, such as a licence.
Similarly when a person defames the reputation of another, and the defamed person wants to sue, the defamed person has to prove that they have a reputation in the jurisdiction and that the defaming statement related to them.
It is then for the defendant to prove that what they say is true or a fair opinion or some other defence.
Trespasser/defamer; land/reputation; and the onus being on the defendant to justify the intrusion/statement.
It is almost as if the law conceives of a reputation almost as a property right, and the presumption is against any rightful intrusion/defamation.
The cry of “get orf my land” transforms into “get orf my reputation”.
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One criticism often made of libel law is that it is on the defendant to prove a defence.
The claimant does have to prove certain things: that they have a reputation in the jurisdiction; that there was defamatory statement published to the third party; and that the defamatory statement caused (or is likely to cause) serious harm.
So it is not true that a libel claimant does not have to prove anything.
But once these things are shown, it swings to the defendant to prove their defence, and not for the claimant to disprove it.
That this is a practical problem for defendants is obvious.
But the question is whether it could be done any other way?
Just as it would not be for the landowner to prove an intruder has not got a licence, should it be for the defamed person to disprove a defamatory statement of fact?
Surely the person defaming another should have their factual basis in place before defaming another?
Until and unless this problem of the reverse burden of proof is addressed, then many attempts at libel reform will not succeed
This is because many of the problems of libel in practice flow from this key shift in who has to prove what.
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Later today, at noon in the United Kingdom, the so-called “Wagatha Christie” libel judgment will be handed down by the High Court in London.
As I happen to practise in media law, I thought this may be a useful moment to explain some things about defamation law in general as well about this (for many) entertaining case in particular.
For there is one glaringly obvious feature of this case, whatever the result and regardless of how it has added to the gaiety of the nation.
This is a case that should never have gone to trial.
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On 9 October 2019, the United Kingdom was still a member of the European Union, Boris Johnson had only recently become Prime Minister, nobody had heard of COVID-19, and Coleen Rooney tweeted the following:
This has been a burden in my life for a few years now and finally I have got to the bottom of it…… pic.twitter.com/0YqJAoXuK1
The tweet is still there, and she also published this on Instagram and Facebook.
This tweet followed another one from earlier that year:
It’s happened several times now over the past couple of years. It’s sad to think Someone, who I have accepted to follow me is betraying for either money or to keep a relationship with the press.
Now, the United Kingdom has left the European Union, Johnson is about to depart as Prime Minister, pandemic lockdowns have come and gone, and we are today finally to find out what, if any, legal liability Rooney has for publishing this statement.
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Rebekah Vardy was not not happy with the statement – which was seen by millions.
The watching public were highly amused, and the impressive detective work set out in the statement led to Rooney being dubbed “Wagatha Christie”.
It appears that Rooney sought to settle the case at this early stage.
According to a news report during the case in The Sun that referred to a witness statement of Rooney:
That May 2020 date may be significant, as it seems to be an offer to settle before the claim was even issued.
If so, that pre-action attempt to settle was unsuccessful.
For on 12 June 2020 Vardy issued a claim in libel against Rooney.
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Libel is a complex and, for some, counter-intuitive area of law.
In a claim for libel, the claimant has to (in general) show two things.
The first is that there was a publication in writing (or another permanent form) to a third party – and here there is no doubt.
And the second is that the publication is defamatory of the claimant, that the average person reading the statement would think badly of the claimant – and here, again, there was no doubt.
Indeed, there was no dispute between the parties that the statement – or what lawyers call “the words complained of” – was defamatory.
And once the claimant has shown these two things then (again in general) the onus switches to the defendant to show that the statement is true, or honest opinion, in the public interest, or was said on a privileged occasion, such as in court or in parliament.
In this way, it is for the defendant to do the expensive spade work of showing that they can lawfully make the allegation, and not for the claimant to disprove the allegation.
So here the burden was on Rooney to show her detective work was sound and her conclusion correct, and not Vardy to show it was unsound.
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But.
What is the meaning of the words complained of?
The meaning is important as it would, in turn, frame what Rooney would have to show to defend this claim.
And so this would be the first matter for a judge to decide – and that was to be in November 2020.
Here it is worth noting that according to the news report above, Rooney sought a second time to settle this case, in October 2020 before that hearing, and she was again unsuccessful.
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You may think that the meaning of the words complained of was obvious.
Oh no.
This was a matter of dispute.
Rooney (and her lawyers) contended that the meaning was that:
“there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant’s private Instagram posts and stories to The Sun newspaper.”
Here Rooney (and her lawyers) emphasised the references to it being Vardy’s account, rather than Vardy directly.
Vardy (and her lawyers) in turn contended that the words complained of meant:
“that the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.”
Vardy’s contended meaning would be harder for Rooney to prove.
At a preliminary hearing in November 2020, the judge largely agreed with Vardy and held that the meaning of the words complained of was:
“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”
This was a set-back for Rooney, and it was seen at the time as a victory for Vardy.
The judge dismissed the argument that the average reader of the words complained of would realise that it would not just be Vardy personally who had access to Vardy’s account.
(For what it is worth, I think this was an error by the judge.)
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This decision could have been the end of the matter.
For as the judge explained:
“It is almost always helpful for the meaning of the alleged libel to be identified at an early stage. Sometimes this will lead to the end of the case, because the words are not defamatory, or because they bear a meaning which the defendant cannot defend, or for some other reason. In any event, a decision on meaning will always have a bearing on at least one of the other issues in the case.”
And the judge congratulated himself and the court:
“As this case illustrates, the process of deciding meaning is a quick and efficient one. I have heard this trial and given judgment only two months after the order for such a trial was made.”
However, it seems that the effect this decision on meaning was to make this case more complicated and time-consuming.
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The parties then amended their pleaded cases and sought to settle the case.
According to the news report above, Rooney’s third attempt to settle the case was in January 2021, after the “meaning” decision was handed down
But for some reason the case was not settled.
Sometimes cases do not settle because one party is adamant that they want their day in court, and so will refuse any settlement offer.
Sometimes the settlement offers are too low.
And sometimes, parties can get trapped by how they are funded so that they have to continue with the case as that is the least bad option.
Who knows.
But for some reason this case continued after three reported attempts to settle, and the case was now going to become far more expensive and complicated.
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Rooney’s legal team now had a challenge on their hands.
A further preliminary hearing, before a different judge (and who is the trial judge who will be handing down judgment), took place in June 2021.
Vardy (and her lawyers) sought to strike out Rooney’s amended case, especially references to Vardy’s close relationship with journalists at The Sun.
Rooney (and her lawyers) were now building an “inferential” case – that it could be inferred from other evidence that Vardy was providing private information to journalists and that would go to the sting of the allegation.
As the judge said: “an exceptionally close relationship between the claimant and the newspaper or journalists to whom the Posts are alleged to have been provided is one of the building blocks on which the defendant’s inferential case is built”.
In other words: the determination on meaning had resulted in Rooney (and her lawyers) widening their case, so that it could be inferred from similar facts that Vardy leaked Rooney’s Instagram posts.
Vardy’s strike out application was not wholly successful.
For example, the judge said of one part of the application: “While these paragraphs do not go to the core issues, the allegation that the claimant had, or was the primary source for, a gossip column about professional footballers and their partners in The Sun is logically probative similar fact evidence.”
This court decision was, to invoke an analogy, where the match started turning against Vardy.
This was the hearing where the parties made applications and counter application, and sought to get certain evidence included and excluded.
The judgment of this preliminary – not final – hearing is 56 pages, with 203 paragraphs.
This judgment is where we find that the evidence of Vardy’s agent “is that in August 2021 she lost the mobile phone that she had used during the period January 2019 to August 2021. The respondent states that this occurred while on a boat trip during a holiday, when the boat hit a wave, and she accidentally dropped her phone.”
We also become aware of the following message of Vardy:
“Would love to leak those stories x”
You can understand why Vardy would want such a message excluded from evidence, but her application to exclude it failed.
And so on.
What had happened is that Rooney (and her lawyers) had followed up their widening of their case with successfully having evidence put in about Vardy and her agent leaking stories generally.
At this stage, even if Vardy succeeded in the libel claim against Rooney, it was becoming obvious that any trial would be a PR disaster for her.
Any settlement at this stage must have been preferable to Vardy.
But still the case did not settle.
Instead it went for full trial in May this year.
And the proceedings were, as I have averred, a tonic for the gaiety of the nation:
A good time was had by (almost) all.
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Vardy can still win the case today.
Any inferential case is difficult – and proving Vardy herself leaked or directed the leaks of Rooney’s posts may be difficult.
If Rooney does not prove the following then she loses:
“Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.”
But.
Winning a legal case is not the same as winning in the court of public opinion.
And it may be that the costs consequences of Vardy “winning” may be horrendous if Vardy turned down a so-called “Part 36 Offer” (or similar) that offered to settle at a higher amount.
That a case like this will have four published judgments does not reflect well on our legal system.
That the legal costs will be very high – and to many obscenely astronomical – also does not reflect well on our legal system.
Libel litigation, however, can be highly technical and resource-consuming.
Instead of only the “meaning” being dealt with briskly in November 2020, there is really no good reason why the whole of the case could not have been done briskly, instead of the elaborate applications and counter-applications, strike outs and disclosures, amendments and oppositions.
And if it could not have heard briskly, it is a case that should have settled at the first available opportunity.
Libel litigation can grow like topsy, and often does.
And the point of libel litigation?
Well, supposedly the aim of libel litigation is “vindication”.
But after the PR horrors of the trial, it is difficult to see how Vardy comes out of this case well, even if she wins later today.
In seeking to vindicate her reputation, the practical effect of Vardy’s libel claim has been to undermine it.
This is a case that should never have gone to trial.
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On 25 July 2019 it was announced that Lady Hale would retire as President of the Supreme Court:
The retirement was to be on 10 January 2020.
This retirement was because of the operation of the mandatory retirement age for judges, which in the case of Lady Hale meant she had to retire by when she became 75 on 31 January 2020.
Lady Hale’s retirement by 31 January 2020 was thereby inevitable.
There was nothing she – or anyone else – could do about it.
This retirement announcement was made the day after a certain Boris Johnson, the now departing Prime Minister, took office.
“With iron determination we saw off Brenda Hale and we got Brexit done.”
But it was not Boris Johnson and his government that “saw off Brenda Hale” but the Judicial Pensions Act 1959 (as amended and unamended by subsequent legislation).
So what did he mean?
In terms of practical litigation, the statement also makes no sense.
The two key Brexit cases that reached the Supreme Court under the presidency of Brenda Hale – known as Miller 1 and Miller 2 – were cases which the government lost.
Indeed, Miller 2 – which held that Boris Johnson’s attempt to prorogue Parliament was unlawful – was when that unconstitutional antic was “seen off”.
So presumably he does not mean that, either.
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What I suspect he means is that he got “Brexit done” despite the various litigation attempts to shape, delay or frustrate Brexit.
The two Miller cases were, strictly speaking, constitutional cases where the judiciary upheld the rights of the legislature against executive overreach.
But the more ardent supporters of Brexit did not – and still do not – see it that way.
And there were certainly other – less well conceived – legal cases which sought to stop Brexit, such as the “Article 50 challenge” cases.
If this suspicion is correct, then Brenda Hale is being used by Boris Johnson as a shorthand for all the legal challenges and obstructions which were made to Brexit, real or imagined.
Or, alternatively, Brenda Hale is being used as a shorthand for all those constitutional checks and balances that prevented Boris Johnson doing as he wished with the ship of state.
If so, these interpretations would accord with something else the Prime Minister said yesterday:
“The Leader of the Opposition and the deep state will prevail in their plot to haul us back into alignment with the EU as a prelude to our eventual return.”
Perhaps it should not be a surprise that Boris Johnson would use the phrase “deep state” at the despatch box – a term used by certain political conspiracy theorists.
Perhaps him using that terms is an indication of the deep state we are actually in.
If the above is correct, then the meaning of what Johnson said yesterday is that he saw off the “deep state” in its judicial manifestation and got Brexit done, though the “deep state” in its other manifestations are now seeking to reverse Brexit.
This is not a healthy frame of mind.
And if this thinking (or lack of thinking) becomes more widely shared, it does not bode well for a healthy polity.
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Even if Boris Johnson was correct and that, in some meaningful way, he had “seen off” the President of the Supreme Court, then it would still be worrying that this was something any Prime Minister wanted to boast and gloat about.
The worst thing of all is Johnson’s apparent belief that it would be something to crow about if he had indeed been responsible for Lady Hale’s stepping down.
Such gloating and boasting – well based or not – signifies a hyper-partisan approach to politics, the separation of powers and the rule of law.
As with other checks and balances in the constitution, Boris Johnson sees them as things to be defeated and for those defeats to be seen as personal triumphs.
Even though those who clap and cheer Boris Johnson in doing this would be the first to complain, from constitutional first principle, if an opposition politician such as Jeremy Corbyn or Keir Starmer did the same.
And imagine the sheer fury if any judge boasted and gloated that they had “seen off” Boris Johnson.
Boris Johnson’s conspiratorial hyper-partisanship is dangerous, and so it is a good thing that Boris Johnson is now going.
But just as Trumpism has continued in the United States even after Donald Trump’s departure from the presidency, the worry is that this Johnsonian frame of mind, with its deep state conspiracy-thinking and contempt for checks and balances, will linger.
For, if anything, that is what needs to be “seen off”.
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“Curiously enough, the only thing that went through the mind of the bowl of petunias as it fell was ‘Oh no, not again’.”
– Douglas Adams, The Hitchhikers Guide to the Galaxy
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Legal and constitutional commentators are the petunias of the modern age.
The current bout of constitutional excitements started in around 2015, and these excitements have carried on relentlessly since.
Again and again the government has threatened to do something – or done something – drastic in respect of our constitutional arrangements.
Seven or so years later it is rather exhausting to keep up.
And giving up is tempting.
But keep up we must, as these are serious matters – even if government and its political and media supporters do not take them seriously.
For the political and media supporters of government will clap and cheer at each of these constitutional disturbances – and will delight in the ‘libs’ being ‘owned’.
Well, this ‘lib’ is more bored than owned.
But commentary must be offered, if only as a corrective to the narratives of those currently in power and those who support them.
And so this is the story of the Human Rights Act 1998 and the supposed “Bill of Rights” with which the government wants to replace it.
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Before the Second World War, a certain sort of English person would have boasted not of having rights but of having liberties.
The notion was that an English person was free to do whatever they wish, unless it was prohibited.
The self-image was of a robust anti-authoritarianism – and it was an image which gained wide purchase.
And to an extent it was a fair depiction – the powers of the Crown had generally been made subject to Parliament, and most exercises of state power could be contested before a court.
But.
The Victorian doctrine of parliamentary supremacy – which asserted that Parliament could make or un-make any power it wanted – had as an unfortunate implication that the subject was powerless in the face of a determined executive dominating the legislature.
This implication was noticed by, among others, a Lord Chief Justice – Lord Hewitt – who in 1929 published The New Despotism warning of the illiberal power of the British state.
And in the Second World War what Hewitt warned of in theory was carried out in practice with the government’s use of the defence regulations.
For all the comforting self-image, there was not in practice robust English liberties that would actually protect the subject against the king’s government – let alone the citizen against the state.
Perhaps there never had been.
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Following the Second World War there was a spate of international conferences and organisations that purported to declare and protect rights.
One of these, of course, was the European Convention on Human Rights.
This convention provided for a number of rights, contained in articles.
Some of the rights were set out in the original convention, and some were added in later protocols.
The convention was connected to the Council of Europe, which now comprises most European states:
By being party to the convention, a country agrees to be bound by the convention as a matter of international law.
Some claim that the convention was promoted by Winston Churchill and drafted by Conservative lawyers – but their contribution should not be overstated (see this fine book for what did happen).
The United Kingdom at the time the convention was ratified in 1951 did not see the convention as controversial or as being inconsistent with domestic law.
The convention did not only provide for rights but it also established a court to determine whether any signatory – as a matter of international law – was in breach of its obligations under the convention.
That court is the European Court of Human Rights in Strasbourg, of which you may have heard.
“Although the UK ratified the European Convention on Human Rights in 1951, it was 1965 before the UK Government declared, by an option under then Article 25 of the Convention, that it would accept the jurisdiction of the Court in relation to individual complaints. The optional clause was debated in late 1980, amid charges that the Court was “interfering with the exercise of parliamentary sovereignty” and “limiting [the UK’s] freedom of action”, but in 1981 and subsequently it was accepted for five more years. In 1994, during the negotiation of Protocol 11, the UK tried in vain to ensure that the right of individual petition would remain optional. The Government thought the Court had too much power, and the possibility of non-renewal of individual petition would act as a check on its authority.”
The United Kingdom did not allow anyone to actually petition the Strasbourg court until 1964.
And until relatively recently – the mid-1990s – governments of all parties resisted the reach of the Strasbourg court.
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This resistance had the following effects.
First, it created immense costs and delays for individuals who wanted the United Kingdom to comply with its international obligations.
For example, in the case of Malone – in my view, one of the most important constitutional cases in the last hundred years – a 1977 incident did not reach a Strasbourg judgment until 1984.
There the Strasbourg court held that any surveillance of the individual by the state had to have a lawful basis.
The English court had held, in effect, that just as it was open to any subject to do as they wish unless prohibited, it was also open to state bodies to do as they wished unless prohibited.
That’s robust English liberties, for you.
The Malone decision in turn led to the United Kingdom placing its surveillance regime onto a legal – and thereby legally contestable basis.
But it took seven years for the judgment to happen.
Second, it meant that lawyers developed various means of referring to Strasbourg jurisprudence in domestic courts.
I remember seeing this article as a law student in the mid-1990s:
By then it was getting rather silly.
A United Kingdom litigant seeking to rely on their convention rights had to go to the cost and delays of going to Strasbourg, or had to find a clever lawlerly way of relying on Strasbourg caselaw in a domestic case.
But what that litigant could not do is rely on their convention rights in a straightforward way before the domestic courts – even though the United Kingdom was bound by the convention (and by the Strasbourg court’s interpretation of the convention) as a matter of international law.
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And then, in 1997, the electorate of the United Kingdom returned a Labour government:
Things could only get better, or so people thought.
And one thing the government did to make things better was to introduce legislation so that the convention could be relied on in domestic courts.
This would not only solve the increasingly absurd problem of the costs and delays of individual petition and indirect reliance, it also gave effect to a key provision of the Good Friday Agreement which was signed in April 1998.
One of the express bases of that agreement was that the convention had to be capable of being directly enforced in the courts of Northern Ireland – in particular against the Northern Irish Assembly:
And so the Human Rights Act 1998 came into being, which allowed direct access to the courts for breaches of the convention, and not just for those in Northern Ireland.
As the government of the day boasted in an allusion to the popular football song: rights were brought home:
The Act took effect on 2 October 2000.
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But.
The Human Rights Act never gained universal support.
This is for, I think, two main reasons.
First, the popular media disliked how English judges created an entirely new tort – misuse of private information – on the back of the 1998 Act.
The Act does not expressly provide for any such cause of action.
But case-by-case, the courts crafted a new basis for suing for breaches of privacy.
And the courts did not ‘develop’ the corresponding right of free expression in any comparable way.
Few reporters and editors came to see the Human Rights Act as an instrument that would protect them like their American counterparts who could point to their constitutional rights.
Second, the politics following 2001 and 9/11 pushed against human rights protections.
It is difficult to imagine the Human Rights Act being enacted after 2001 had it not been enacted before.
The Labour governments became more illiberal, as anti-terrorist act followed anti-terrorist act.
“To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.”
“The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes.”
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.”
As it happens the government elected on the back of that latest manifesto is not prosing to “update” the Human Rights Act but now to repeal it – at least in form.
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*
Alongside these manifesto commitments, there have been various attempts to find a practical way of repealing or updating the 1998 Act.
In 2011 there was a commission established by the government:
But this went nowhere.
In 2014 the then justice secretary launched a new attack at Conservative party conference.
And that went nowhere.
And in 2015-16, the then prime minister was again about to take on the Human Rights Act – and may well have done so but for Brexit:
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*
And now, in 2022, we have yet another attempt to repeal the Human Rights Act, twenty-five years after the Human Rights Bill was introduced by the incoming Labour government.
The difference now, however, is that the proposals have reached the stage of draft legislation before Parliament.
And the justice secretary proposing the new legislation, Dominic Raab, is a long-term opponent of the Human Rights Act and was the junior justice minister under Cameron responsible charged with finding an alternative to the Act.
In effect, the Human Rights Act is Moby Dick to Raab’s Captain Ahab.
It does not matter that the criminal justice system is in crisis, scarce ministerial time and departmental resources will be devoted to repealing the 1998 Act.
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The 1998 Act is unlikely to survive this assault.
There is enough time for the bill to pass before the next general election, and there is sheer determination to get the bill through.
But.
The essentials of the Act will remain.
The Good Friday Agreement will still require that the convention can be given direct effect in the courts of Northern Ireland.
The United Kingdom will still be bound by the convention as a matter of international law.
If the domestic courts do not protect convention rights then litigants can still go to Strasbourg.
The United Kingdom will still be required to comply with the decisions of the Strasbourg court.
And resourceful lawyers – and judges – will still find ways of referring to Strasbourg jurisprudence in domestic courts when determining convention rights.
And so one consequence of the new bill is that cost and expense will be added to the process of relying on convention rights under a treaty that will still bind the United Kingdom under international law.
The convention rights are still listed in the schedule; the definition of convention rights is the same; and the key obligation on public authorities to comply with the convention is also the same.
What the bill does is to introduce a number of provisions that will make it far more difficult for litigants to rely on those rights in domestic courts.
Over at the blog of Professor Mark Elliott there is an outstanding post – written within a day of the publication of the new bill – that details all the new legislative contraptions and devices, the purpose of which is to inconvenience the litigant seeking to rely on their convention rights.
Elliott’s post should be read and circulated as widely as possible.
And Elliott’s conclusion is compelling:
“the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights.”
And this is why – jaded and fatigued as any sensible person must be who is keeping up with this government’s ongoing attack on our constitutional arrangements – we have to be vigilant about this latest exercise in limiting the ability of individuals to rely on rights which the United Kingdom is bound to protect by international law.
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The government is not – and cannot – take the United Kingdom out of the European Convention of Human Rights – at least not without breaching the Good Friday Agreement.
The government is still obliged to give effect under international law to the rights contained in convention – and individuals will still have the right to petition the court.
But after twenty years of trying, the current government party has put forward the means of attacking the Human Rights Act by limiting the ready enforcement of these rights by individuals.
And so as a bowl of petunias once no doubt thought: brace, brace.
*
**
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Of course, there are always odd and worrying things happening – increasingly in the area of law and policy.
But this is a rather odd and very worrying thing.
It is the curious incident of the government’s legal advice on its forthcoming proposal for the Northern Irish Protocol.
But to understand why what is happening is just so very odd and very worrying, we need to go back in time and also to understand how legal advice works in government.
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The current government of the United Kingdom does not like the Northern Irish Protocol of the Brexit withdrawal agreement.
This is itself odd, as it is the same government, with the very same Prime Minister, that changed the previous policy on this, negotiated and signed the agreement, sought and obtained a general election mandate for the agreement, and pushed it through into domestic legislation.
The current government, and our Prime Minister Boris Johnson, could not have done more to go from scratch in putting the Northern Irish Protocol in place.
But they have come now to regret this once “oven-ready” agreement.
And they would like it to change.
The problem, of course, is that it takes all parties to an agreement to change an agreement – and the counter-party here is the European Union, and it does not want to change the agreement.
So what is the United Kingdom government to do?
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The government tried – remarkably – to break the law,
It is astonishing to type this, and it should be astonishing for you to read this, but that is what the government sought to do, openly and expressly.
The breach was framed – you may remember – as breaking law “in a very specific and limited way”.
The Advocate General – a government law officer – resigned, as did the government’s own most senior legal official, the Treasury Solicitor.
They were right to do so – it was an extraordinary and preposterous thing for the government to do: an outrage, constitutionally and otherwise.
The government did not go ahead with this ploy.
The government learned its lesson.
The lesson was never to openly and expressly state that you were intending to break the law, either “in a very specific and limited way” or otherwise.
*
Since that botched approach the government has been very careful to say that what it is proposing does not break the law.
What the government actually wants to do, in substance, has not changed.
But now it wants to have legal cover for what it wants to do: to be able to say that a thing is lawful and not unlawful.
And under that cover, you can see through the fabric ever more desperate contortions and distortions.
Within the government there will be those insisting that there has to be “sign off” on the legalities of what is being proposed.
It is similar in this way to the attempts within government to get legal cover for the Iraq invasion, which led to the resignation of the senior government lawyer Elizabeth Wilmshurst – her resignation letter is here.
You may recall how the legal advice within government was then being chopped and changed until the advice was what the then Prime Minister Tony Blair and Foreign Secretary Jack Straw were happy with and also satisfied service chiefs and senior civil servants who wanted legal sign-off.
What happened behind the scenes came out at the Iraq Inquiry:
The Chilcot Inquiry concluded that the “circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory”.
You will see from the BBC report above, the government was shopping around for the legal advice that it wanted – because it did not like the advice of the responsible government lawyer.
In the end the then Attorney-General Lord Goldsmith managed to provide (that is, concoct) the advice the government wanted, instead of the advice of the relevant government lawyer.
And although that was a Labour government, as opposed to the current Conservative government, there was an important lesson learned and committed to institutional memory.
The lesson learned was that it is better not to shop around for new, alternative advice if you can say that you have not had adverse advice in the first place.
*
Now let me introduce you to the Devil.
That is, the “Treasury Devil” – the nickname for First Treasury Counsel.
In essence, the Treasury Devil is an external senior barrister who is activated when the government has a Really Serious Legal Problem.
Usually, this means going to court to represent the government in the most difficult and serious legal challenges.
Or it can mean advising in advance when a difficult and serious legal challenge is foreseeable.
The Treasury Devil is the legal cross between Winston Wolf and Mycroft Holmes.
He or she solves the government’s trickiest legal problems, or sits there and advises the government how best to deal with those problems in advance.
Some of the greatest judges were once Treasury Devils: Lord Slynn, Lord Woolf and Sir John Laws, as well as one member of the current Supreme Court, Lord Sales.
(I happen to be a former government lawyer, and I know of one instance where an impending legal problem was put before the Treasury Devil well before there was any litigation.)
Referring such a matter to the Treasury Devil is not routine – it is exceptional.
But it is a thing (despite what some other commentators asserted).
Indeed, when it is as plain as a pikestaff that something important will be challenged – perhaps all the way to the Supreme Court – then it is a very prudent thing.
That sometimes the Devil will be consulted on potential legislation has been affirmed by a well-regarded expert on legislation:
The current Treasury Devil is Sir James Eadie.
And you can see some of this Devil’s handiwork here.
*
Now, back to the Northern Irish Protocol.
Recently, a post on this blog set out an interesting shift in rhetoric from the current Foreign Secretary:
The Foreign Secretary had said:
“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.
“Our preference remains a negotiated solution with the EU.
“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]
“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”
In other words, the government was now to ‘comply’ with international law.
Applying the first of the lessons set out above, the government was now going to be lawful, not unlawful.
They had found a way to call what they wanted to do lawful.
“The attorney-general has approved the scrapping of large parts of the Northern Ireland Brexit deal amid mounting cabinet divisions over the plan, The Times has been told.
“Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.
“In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.
“Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”
“Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”
Suella Braverman, the Lord Goldsmith of her generation, had found a way.
Some of the vocabulary in the Times report is not strictly accurate – what is being described is reasoning and advice, not evidence or submissions – but it would appear that the newspaper had sight of the advice.
Internal, legally privileged advice had been leaked.
The desired legal advice was now in place, and the government could now do what it wanted to do anyway with the Northern Irish Protocol.
*
But.
There was one thing which could ruin this exercise in political and legal expediency.
Applying the second lesson set out above, the government needed this to be the only legal advice in town.
Whitehall was not going to be big enough for more than one advice, given the speed with which the government wanted to proceed.
A second opinion – usually helpful – would be most unhelpful to the government.
There would not be enough time to do what Goldsmith had once managed to do with the unwelcome foreign office advice.
Like the final scenes of a situation comedy, those in government would be desperate that somebody else was not asked certain questions.
*
Now we come to this week’s news.
Again internal government legal correspondence and advice has somehow found itself into the public domain.
More internal, legally privileged advice had been leaked.
.@politicshome understands, as @SamCoatesSky reports, that First Treasury Counsel James Eadie was *not* consulted by government on the legality of the Protocol legislation
Eadie would be expected to be asked for his opinion on such a high-profile & consequential bill – v unusual
Payne (a fine political journalist but not a legal specialist) may not be entirely correct here – for as set out above, the Devil is not consulted routinely on legislation.
But if something big was afoot, it would not be unusual for somebody somewhere in senior government to suggest that this is a matter for First Treasury Counsel.
“Correspondence seen by PoliticsHome has cast doubt over the government’s argument that its plan to override parts of the post-Brexit treaty without an agreement with the European Union would not breach international law.
[…]
“The government insists that this would not break international law. Suella Braverman, the attorney general, approved the plan having concluded that it was legal, The Times reported last month. When unveiling the plan to parliament, Foreign Secretary Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”.
“But in the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.
“They add they find that position “more convincing” than the view put forward by Braverman and others that the government was on solid legal footing in pursuing unilateral steps.”
*
Sam Coates, another fine political journalist, reported at Sky:
“…Sky News is told that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, has not been consulted on the question of whether the plans to overhaul the Northern Ireland Protocol will break international law.
“He is nevertheless understood to have indicated he believes it will be very hard for the UK to argue it is not breaching international law if it goes ahead with some of the moves under consideration.”
“Last night Sky News reported that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland Protocol would break international law.
“Sir James Eadie was consulted about the forthcoming legislation.
“However – in a highly unusual and possibly unprecedented move – he was asked not to give a specific legal opinion on whether the plan would breach international law.
“For the first time we can set out in detail what Sir James said.
“Eadie starts by confirming that the government has received advice from an array of other lawyers about the international legal issue raised by the planned protocol legislation.
“He goes on to say that he has been asked only to “assume” there is a respectable legal basis on which to support the arguments made by the other lawyers.
“He says he is happy to comply with this request – “I do so,” he writes – but then adds “I am not asked to opine on the merits of those views”.
“Sky News understands it is extremely rare for the First Treasury Counsel not to be consulted on an issue such as this, and be directed by government to rely on the opinion of others.
“However Eadie’s agreement to do as directed – and rely on the view of other lawyers – allows the government to say he was consulted more generally and is on board with the plan.
“Inconveniently, however, he is understood to have then volunteered a view in his submission: that he found the argument of one particular lawyer advising government “considerably easier to follow and more convincing”.
“The lawyer he cites says that it would be “very difficult” for the UK to argue it is not “breaching international law”.”
*
What appears to have happened is as follows: the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel; a clever compromise was reached where it would be referred to Eadie 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.
This is hilarious.
And it is now a mess.
One significant issue here is not that the Devil was not formally consulted – it is rare for First Treasury Counsel to be involved in pending legislation.
It would not normally be a snub.
The significant point is that for Eadie’s name and position to be even mentioned in this leaked correspondence can only mean there is almighty row going on in government over the legality of these proposals.
Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.
And not only has somebody senior insisted on this – they are so senior (or important) that they have partially got their way, and what looks like compromise instructions were then given for the First Treasury Counsel for advice.
We now have the extraordinary situation that there is convenient legal advice and also very serious grounds for doubting that advice (though not formally competing advice, because of the assumptions).
This is the worst of both worlds – for at least in the Goldsmith/Wood situation above, there could be and was a decision to prioritise one advice over another.
Here there is only one advice, and it is dubious – with no less than the Treasury Devil saying so.
*
And now, there has even been an urgent question in Parliament.
Also confirmed:
Urgent question from @amcarmichaelMP: "To ask the Minister for the Cabinet Office if he will make a statement on requests made to the First Treasury Counsel to assess government proposals to override the Northern Ireland Protocol."
— UK House of Commons (@HouseofCommons) June 9, 2022
The government is hiding behind a convention of legal privilege that it has already undermined by giving incomplete and inaccurate information to MPs in order to assert that its position is legal. The legal advice must be published, in full. https://t.co/E3Cs8lrbKI
— Alistair Carmichael MP (@amcarmichaelMP) June 9, 2022
The government minister said – with a straight face – that despite the several leaks in this matter, the government does not by convention usually disclose legal advice.
*
What we have are leaks of the Attorney General’s advice and leaks of the seeming compromise advice from the Treasury Devil, which casts serious and significant doubt on the Attorney General’s advice.
The supposed legal cover has, well, had its cover blown.
The government has now placed itself in a difficult position – by its own shenanigans.
It must have seemed such a good idea to get legal cover in this way – but it has now created a situation where somebody is in a position to leak legally privileged advice indicating there is an utter mess internally.
This is where a misconceived, seemingly clever way of getting legal cover gets you.
*
The true political problem here isn’t that First Treasury Counsel was not consulted in respect of the new proposals for the Northern Irish Protocol.
The problem is that the government tried to go out of its way not to consult First Treasury Counsel when somebody with sufficient clout insisted on it, and then the government only did so with “assumptions” so as to limit the scope of the advice.
And now it seems the government wants to suppress and disregard the First Treasury Counsel’s serious doubts as to legality.
This is an extraordinary situation.
When news broke about the Eadie advice, I tweeted that this was an extraordinary and potentially highly significant and worrying development.
Some wrongly took the development to which I referred to be that Eadie had not been consulted.
No.
The extraordinary and potentially highly significant and worrying development is that Eadie was involved at all, was being mentioned in internal emails as an alternative source of advice, and that we knew any of this about it.
That there are serious rows inside government, botched attempts to get legal cover, and frequent leaking of privileged advice is very worrying indeed.
Something odd is happening.
**
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The key legal case here was a set of appeals which were decided by the High Court in 2002, in a judgment now known as Thoburn.
The street-level appellants faced criminal sanctions and other legal impediments because they dealt their groceries and wares in imperial measures rather than metric measures.
Re-reading Thoburn some twenty years later – in the light of the United Kingdom’s departure from the European Union and this weekend’s ‘news’ about the government wanting to revive imperial measures – is an interesting exercise.
*
The first striking thing about Thoburn is the complexity of the applicable law.
Few lawyers – if any – would find it easy to follow paragraphs 8 to 35 of the judgment, which sets out all the relevant legal provisions.
Even the judge who gave the decisions of the court found it a complicated mess, saying at paragraph 81:
“In the course of the hearing I made no secret of my dismay at the way in which the criminal offences relevant to the first three of these appeals had been created. It is a nightmare of a paper chase. I accept that there was no prejudice to these individual appellants, who knew well what the law was because they were concerned to campaign against it. But in principle, I regard it as lamentable that criminal offences should be created by such a maze of cross-references in subordinate legislation.”
(The judge was Sir John Laws – notable to non-lawyers for his name and for being the uncle of Dominic Cummings – and it would be great if commenters assume these two things do not always need to be stated in their comments below.)
This judicial observation has wider import.
It is the lot of regulatory law – especially that law that regulates commerce and retail – to be complicated.
And this in turn means the law – like the one regarding the shape of bananas – will not fare well against the urges of simplification and distortion.
On one hand, you had the accessible image of market traders pricing and weighing their goods in imperial measurements for walk-up customers in English towns.
And on the other hand, you have pages and pages of impenetrable legal-ese which sets out why doing such a thing is a criminal activity leading to criminal sanctions.
Few onlookers would side with the legal-ese.
*
A second thing about the Thoburn case is just how hopeless the legal arguments were that were put on behalf of the traders.
Wide ‘constitutional’ submissions were made about ‘implied repeal’ and entrenchment of statutes – which were met by an equally wide-ranging ‘constitutional’ judgment.
This is why the Thoburn case is now – despite not being a Court of Appeal of House of Lords case – a staple of constitutional law teaching and essay writing.
The legal arguments were hopeless.
And this, in turn, was (in my view) a problem.
Many people at the time (and since) thought there was something not right about these prosecutions.
It was one thing to have common rules for cross-border trade within the single market, but it was another to prosecute and seek to give criminal records to local greengrocers and stall traders selling to local customers.
It seemed – to use a European Union concept – disproportionate.
But the hopelessness of the arguments at appeal indicates that here was a grievance here without a remedy.
There appeared at the time to be no way of practically contesting the disproportionate criminalisation of the grocers and the traders.
Even if you are (as I was and am) a supporter of the single market – and thereby of cross-border commercial standardisation and harmonisation – something just did not seem right about these prosecutions, but there was nothing that could be done about it.
And I submit that this sense of impotence in the face of what was perceived to be the legal impositions of the European Union was a contributing factor to what later became Brexit.
*
Weights and measures – like currencies – are both instruments and ornaments.
As means of exchange, such measures necessarily have to have a shared understanding – and anything which has a shared understanding will also tend to have cultural significance.
As this informative and fascinating thread by an author of a forthcoming book on weights and measures describes, one should not underestimate how important measures are to people:
I happen to have been born in 1971 and so was educated with metrification – and I still habitually think in miles, yards and feet, in stones and pounds, and in pints.
And this is despite not being especially patriotic, and not being opposed to metrification in principle.
I suspect it is not an idiosyncratic trait; I suspect many of you tend to think in imperial measures too.
*
But.
The government’s latest proposals. of course, do not make any sense.
This is partly because – after the Metric Martyrs case – both the United Kingdom and the European Union pulled back from strict applications of unified standards.
Supplementary indications of measures were to be allowed indefinitely – imperial markings as well as metric markings
And, in any case, often the relevant laws were home-made and not from Brussels:
Hello, weights and measures inspector here. They were not taken away by 'foreign bureaucrats'. It was long standing UK policy to move to SI units. The legislation to remove imperial was a UK instrument amending a UK act of Parliament. It had nothing to do with the EU.
The United Kingdom’s move towards universal measurements predates membership of the European Union and its predecessor communities.
And over time, no doubt, these more ‘rational’ and internationally acceptable measures will take hold.
(Few now can reckon in pounds and shillings – which also went in 1971.)
Yet it is one of those areas where law and policy cannot easily outpace lore and culture.
Units of measurement are the means by which people understand the world about them and indeed understand the dimensions of their own bodies.
They will not easily shift – and perhaps some may never disappear altogether.
The current government is in deep political trouble – and so it is not surprising that it seeks to get the benefit of nostalgia and sentiment.
Such a government should be treated with disdain.
But changing the everyday practices and conventions of a people is a slow process – and with metrification it still has not ended.
Not by a country mile.
**
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My first piece for the @NewStatesman looks at the powers of the @HoCPrivileges and poses the question: should the hearing to determine whether the PM misled Parliament be held in public and under oath: https://t.co/BKMGgJrPz2
In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.
If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.
(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)
On the face of it, administering such an oath has its attractions.
No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.
Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.
Horne mentions where such oaths have been used:
“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”
*
But.
It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.
That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.
And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.
Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?
(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)
Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?
It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.
And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.
*
That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.
This is certainly a constitutional problem that needs a practical solution.
The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.
The fear would be that in seeking go solve one constitutional problem, another is caused.
And so the problem remains: what can you do – constitutionally and practically – with a dishonest Prime Minister?
*
POSTSCRIPT
Horne has provided a link to a useful post where he deals with the issues in more detail:
David raises some interesting and important constitutional points in his response to my piece in @NewStatesman There are very few precedents relating to the prosecution of witnesses for perjury – but I address a couple here for anyone interested:https://t.co/pOi5ifQD5T
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“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).
*
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.
*
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.
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’.
**
Postscripts – from Twitter:
Me too! I remember feeling shocked about it. I soon realised that strategy in civil law often involves “taking a view”. I also realised that is fine to do as law sets out the consequences – damages but my political view is that morally it can result in the wrong decision.
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SLAPP – strategic litigation against public participation – is a new-ish name for an age-old problem.
Here is L. Ron Hubbard in 1955 advocating law suits against those who were using Scientology materials without authorisation:
“The purpose of the suit is to harass and discourage rather than to win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause his professional decease. If possible, of course, ruin him utterly”
SLAPP is, of course, a pejorative term (as this blog recently averred) – but, for want of a better term, is the best name we have got for a certain thing.
The problem with SLAPP being a pejorative term is that, just as one person’s terrorist can be another person’s freedom fighter, one person’s SLAPP case is another person’s legitimate attempt to defend their reputation and/or privacy rights.
Few if any claimants will say expressly that their case is a SLAPP case – not many are as brazen as L. Ron Hubbard.
And it is possible that what one side considers to be a SLAPP case will genuinely not be considered to be a SLAPP case by the other side.
That said, SLAPP as a term has two useful qualities.
First, it is not limited to any one area of law – for example defamation – and so it implicitly recognises that various areas of law can be (mis)used – not only defamation but also misuse of private information, data protection, confidentiality, intellectual property rights, and so on.
Second, it indicates that certain decisions are being made strategically – or at least, tactically (though TLASS is a less handy acronym) – about the purpose to which law is being used.
Another problem, however, with SLAPP as a term is that its American origins may mislead people into thinking all anti-SLAPP legislation is the same.
In fact, much of what constitutes anti-SLAPP reform in the United States is already part of English law, including the ready availability of costs sanctions and early opportunities for meritless cases to be struck out.
There is no single anti-SLAPP reform that fits all jurisdictions.
So as long as the strengths and weaknesses of SLAPP as a term are borne in mind, it is the best description we have got of a certain thing.
*
But – what is that thing?
Well.
One thing it usually is not about is the law or procedural rules being broken by lawyers or their clients.
In almost all SLAPP cases, the lawyers are using the laws and court procedures available to them: the issue is the ulterior purpose to which those laws and court procedures is being put.
This is why, in my view, attempts to ‘name and shame’ the lawyers involved are misconceived.
(Though, for completeness, I know and deal with many of those who are involved.)
The lawyers that have so far been publicly named are but a sub-set of the lawyers competent and willing to take on such claims.
And – frankly – you do not need parliamentary privilege to ‘name and shame’ the lawyers: all you need to do is look at the case reports to see who they are, and at their own websites to see how they promote their practices.
I happen to be a media defence lawyer (among other things) – acting for journalists, campaigners, and politicians – and I chose not to act for claimants in these sort of cases, but that is entirely a personal choice.
In my experience of seeing dozens of threatening letters (of varying quality), almost all the threats are within the scope of law and practice as it stands.
And if a threatening letter did not come from one firm, I can imagine pretty much the same sort of letter coming from a dozen other firms.
The problem is with the law and practice, and so – if you sincerely want to solve the problem – that is where the solution will be.
Although therapeutic, ‘naming and shaming’ the lawyers involved is a cul-de-sac.
*
Another thing to note is that, in England, SLAPP is not just about costs – even if the amounts involved can be eye-watering.
Yes, London claimant lawyers are expensive – too expensive.
But: American lawyers are expensive too, sometimes even more expensive than English lawyers.
Media lawyers in other jurisdictions are also high-charging and highly paid.
Yet, it is in England that certain cases are brought – and threatened.
This is because the problem with SLAPP cases in London is not just the costs, but how those costs can be easily weaponised as part of of a legal threat.
London litigation is often not a game of thrones, but a game of costs.
The dynamics of many cases will come down to costs, and how costs consequences can be inflicted and deflected.
And how this happens comes down to the structure and practice of the relevant law.
*
But perhaps the biggest difficulty about discussing SLAPP in England is that the discussion can sometimes seem abstract.
SLAPP is a bad thing, and nice people are against bad things.
Let’s boo at SLAPP!
But the challenge is to make any SLAPP reform work practically – to make a difference in actual cases.
There are a number of ways law and practice can be misused, and so any reform needs to be set against actual cases to see if the reform would make any practical difference.
One thing I recall from the campaign which led to the Defamation Act 2013 is that the key case for mobilising support – the misconceived and illiberal claim brought by the British Chiropractic Association against science writer Simon Singh – turned out not to be directly relevant to the legislation that was then passed.
Little in that Act would stop another such case being brought again – and indeed it was the court’s own decision in that case, and not any legislation, that has stopped further similar claims.
There can be a practical disconnect between cases that attract public concerns and the reforms then promoted for dealing with such concerns.
That is why this blog is going to look over the next few days at a ‘data-set’ of SLAPP cases, to see what the actual problems are and to see what, if any, solutions can be put in place to stop similar cases being threatened and brought.
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In the meantime, I would suggest anyone interested in SLAPP, and what practical reforms can be implemented to prevent such cases, look at the following:-
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There are two ways by which those with public power will act lawfully.
The first is self-restraint: that ministers and officials will act lawfully because, in essence, they want to do so.
The second is by enforcement: that ministers and officials who act unlawfully are open to challenge in the courts and can also face action from the police or other regulatory bodies.
So: if not the first, then the second.
But hopefully the first, which is better for everyone, apart from public law litigators.
The problem is what happens when ministers and officials do not care for self-restraint?
Then we have to go to the second stage, all too quickly.
But then there are new problems.
Who decides, for example, which cases to litigate?
How are those challenges to be financed?
And what if there is nobody in a position to litigate a case?
What is there – ultimately – to stop lawless behaviour by those with public power?
These questions are important – and they are not easy to answer.
One solution is to have non-governmental organisations litigate these cases, in the public interest.
But this brings new problems.
Pressure groups can have their own agendas – and some see litigation as an aid to fundraising and campaigning, rather than a thing in itself.
(When I was legal adviser to a pressure group party to a case that went all the way to the supreme court, I was careful to ensure that there was not a whiff of any ulterior motive and that the focus – correctly – was on the litigation.)
Too many pressure groups litigating elides the distinctions between politics and law.
And some may be tempted to blame the pressure groups.
But.
That is to partly see the problem the wrong way round.
The primary reason why so many non-governmental organisations are litigating is because of problems with those with public power.
The pressure groups in court are (at least) as much a consequence of poor quality policy-making and rule-making by ministers and officials.
In essence: better quality policy and rule-making will mean fewer subsequent legal challenges by pesky pressure groups.
But that would mean ministers and officials facing up to their own failings.
And it so much more easy to blame the pressure groups instead.
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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.
