Category: Litigation

SLAPP and English courts – some preliminary issues

21st March 2022

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”

(The Scientologist: a Manual on the Dissemination of Material, page 157)

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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.

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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.

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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.

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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:-

– the transcript of the oral evidence at the foreign affairs select committee on the use of strategic lawsuits against public participation (or watch it here);

– the excellent and comprehensive work by Susan Coughtrie and the Foreign Policy Centre on SLAPPS – including this policy paper;

– this House of Commons library briefing on SLAPP; and

– the UK government’s recent call for evidence on SLAPP.

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Public interest litigation against public bodies

16th February 2022

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

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

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

So: if not the first, then the second.

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

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

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

But then there are new problems.

Who decides, for example, which cases to litigate?

How are those challenges to be financed?

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

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

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

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

But this brings new problems.

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

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

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

And some may be tempted to blame the pressure groups.

But.

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

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

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

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

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

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

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Guiffre v Andrew – an explainer about civil claims, and why they usually settle

15th February 2022

Today the news broke that there had been a settlement in the claim brought by Virginia Guiffre against Prince Andrew.

For non-lawyers, such a settlement may have seemed a surprise.

This post explains why almost all civil claims settle – in America as well as in England.

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In general terms, a civil claim is when one party sues another party.

This is opposed to say when the state prosecutes a party – where the process often ends in court for a trial, or (if there is an early guilty plea) at least for sentencing.

In effect, party A wants a remedy from party B in respect of a legal wrong.

In many cases, it is bleedingly obvious to party B (and party A) whether party A actually has a case or does not have a case.

And in those circumstances either party B provides a remedy or party A does not take the case any further.

But.

There will be cases where party A and party B have different views as to the merits of the case, or as to what they would be prepared to offer and accept for the case to settle.

And so a type of choreography begins.

The civil litigation negotiation dance.

To non-lawyers, it may seem that the court – and a trial – is central to the process of a civil claim, and that a hearing and a trial is the natural end-point.

And that any departure from this supposed norm is somehow incorrect.

But in most cases, the court process provides merely the parameters of a negotiation between the parties.

Each party will seek – strategically and tactically – to use the court process to strengthen their negotiating position, or to weaken the other side’s position.

Both sides – or at least their lawyers – will know this from the beginning – and will game-plan accordingly

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In the case of Andrew, several unconvincing (indeed desperate) technical and jurisdictional defenses were mounted.

And Guiffre’s lawyers, in turn, had to dismantle each defense.

Andrew and his lawyers never seemed to emphasise a substantive defense, on the facts.

So, when all the technical and jurisdictional defenses were lost – and as Andrew’s substantive defense was not being robustly promoted – Andrew and his lawyers were placed in a very weak negotiating position.

And so, Andrew and his lawyers settled on disadvantageous terms.

Guiffre and Guiffre’s lawyers did a very good job.

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Sometimes civil cases do not settle.

Sometimes parties are unrealistic or irrational.

Sometimes there is a wider point to establish – for example the ownership of a property right.

Sometimes – rarely – there is a genuinely novel point of law that means neither side knows the strengths and weaknesses of their case.

(And sometimes in England and Wales, special rules about legal costs may mean a party has to go to trial as they are trapped by onerous costs consequences if they settle.)

But usually, civil litigation is about deal-making – though deal-making in a particular context.

It is about leverage, choosing terms of engagement, logistics, tactics, and strategy.

The Art of Law, as Sun Tzu would have put it.

Yes: some may enjoy the theatrical glamour of the criminal courts.

But for others (including me) it is civil litigation which holds the most interest.

It is like the game of chess, but with correspondence, evidence, pleadings and, sometimes, even law.

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The Meghan Markle litigation

8th January 2022

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

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

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

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

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

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

 

 

 

My quote as given was:

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

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The Markle judgments can be found here.

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

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

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

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

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

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

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

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

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

Something seems to have changed.

But what?

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Slaves as merchandise: what the first reported English case law on slavery tells us – the Butts v Penny case of 1677

13th August 2021

This blog recently looked at the end of the Atlantic slave trade, with the last (known) surviving transatlantic slaves and what their lives told us about law.

The last (known) victim died as recently as 1940, that is within the lifetime of four sitting United States senators.

This blog now moves to the beginnings of how English law dealt with slavey, with the Butts v Penny case of 1677.

(This is the first of an intended series of posts, dealing with cases on slavery and the slave trade.)

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Before we look at the case, there are three points of context.

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First, and by way of background: there was (supposedly) by the 1600s no (formal) slavery in England.

There had been been something known as ‘villeinage’ – where villeins, like human garden gnomes, were in effect held to be property fixed to the land.

Villeins however had (limited) legal protections, and could not be bought and sold like mere chattels.

By the 1600s, however, villeinage had in substance ended.

But it was the nearest English law had, at that point, to the notion of slavery.

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Second: by the 1670s English merchants had been happily and deeply involved in the slave trade for over a hundred years.

The slave trader John Hawkins was trading in slaves as early as the 1560s.

So impressed were those at the time with this trade in slaves that when Hawkins was granted a coat of arms, on its crest there was ‘a demi Moor in his proper colour, bound and captive’.

The role of English merchants in the trade in slaves was thereby not something that those at the time were somehow ashamed of – it was something openly celebrated.

At the time, a coat of arms was among the most public statement about a thing a person could make.

‘a demi Moor in his proper colour, bound and captive’

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Third: by the 1670s the trade in slaves even had the official recognition of the English state.

As early as 1618, James I had supported the establishment of a ‘Company of Royal Adventurers Trading into Africa’ and in 1663 a royal charter was granted to the Royal African Company.

So although the English courts had not yet grappled with the slave trade in its case law, and although it was a concept not (directly) known in English law, slavery and the slave trade was certainly something that was legally recognised and sanctioned.

For a court in 1677 to decide that there could not be a trade in slaves would go against both over a hundred years of actual mercantile practice and over fifty years of official support.

The odd thing, perhaps, was that it took so long for a dispute to reach the English courts to be reported.

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For completeness, mention should now be made of a 1569 case: Cartwright.

This is the case where (supposedly) it was held that ‘England was too pure an air for a slave to breathe in’.

The problem is that this celebrated – and later much-quoted – case was that it was not reported (that is, recorded) at the time, and we only know about if from later mentions in the 1700s.

Like a lost Shakespeare poem that we know about only from quotation, we do not have the original.

And it not being reported at the time, it had no contemporary impact or wider significance – if a judge said those rousing words at all.

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So we come to the 1677 case of Butts v Penny.

Here we have two law reports.

The first is from a collection of cases reported by the judge Sir Creswell Levinz.

Unfortunately, the Dictionary of National Biography tells us, that is ‘some division of opinion among English judges as to Levinz’s merits as a reporter’.

His report is here – and it is one brief report among many others he reported:

The other report is not from a judge nor even from a practising lawyer, but from an endearingly obsessive non-practising barrister called Joseph Keble, who just turned up to court every day to report cases that ended up filling twenty volumes.

His report differs from that of Levinz – and is even shorter:

Again, for Keble this was just one report among many, many others.

Neither Levinz nor Keble emphasise their reports of this case, and if you scroll (or leaf) through their reports, the report is just reported like any other.

The fact that the case was about slaves did not strike either reporter as being especially noteworthy, and presumably it did not strike their contemporaries as being that noteworthy either.

The reports are not consistent – for example, one says 100 slaves and one says 10 (and a half?).

As Levinz may have been a/the judge in the case, and is anyway the more senior lawyer of the two, his report would normally be preferred – regardless of his mixed reputation.

What does this case tell us?

First: Butts (the plaintiff) had bought slaves, and that Penny (the defendant) had taken them.

Second: Butts was suing Penny on the basis of ‘trover‘ – which means that Butts was not demanding the physical return of the slaves but was suing for their cash equivalent.

This was thereby a commercial case – and trover cases were a commonplace of the time – but unlike most commercial cases (then as now) this had not settled and so had to be determined by a court.

Third: the value or other importance of the case was such that Penny instructed a lawyer, Thompson, to put the defence – on the law, rather than on the facts.

Fourth: the lawyer Thompson put the defence that there could not be property in people – Keble says the lawyer compared the situation with the then extinguished state of villeinage.

Had the court sided with Thompson’s submission on this then perhaps the history of the law of slavery would have taken a different direction.

But after a century of English slave trading and given the royal sanction for the slave trade, it would have been a robust court that would have made such a decision.

Fifth: the court deferred to mercantile practice – the custom of merchants.

In essence: because as a commercial fact slaves were bought and sold, then the court must accept that slaves could be bought and sold.

Slaves had fewer protections than villeins – indeed no legal protections at all.

Slaves – human beings – were ‘merchandise’.

And as merchandise, they could thereby be the subject of an action for trover.

Like any other property.

And sixth: the court made reference to the slaves being ‘infidels’ as if that somehow reinforced the decision made.

And so the plaintiff won.

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The striking thing about this case is, well, just how un-striking it was at the time.

A commercial case among hundreds of others, with the briefest (and inconsistent) law reports.

The court just nodded along with the custom of merchants.

And that was that.

No outcry, no obvious public attention.

The same matter-of-fact, bureaucratic mentality that was to be a feature of how the English courts generally dealt with the issue of slavery for the next hundred or so years.

The court did not even seem to regard itself as making new law or establishing any precedent – it was instead just applying existing commercial law to yet another form of property.

As if it was completely normal.

One can presume that before 1677, similar cases would have settled on the assumption that slaves were ‘of course’ merchandise and so could be subject to an action in trover.

Only this otherwise unknown Mr Penny went to the length of litigating the case to court, employing the lawyer Thompson to raise a legal (rather than evidential) defence, and then Mr Penny lost.

Butts v Penny is an unexceptional exceptional case.

Exceptional to us, as we see human beings casually reduced to ‘merchandise’.

Unexceptional to those at the time, other than Mr Penny getting his lawyer to make a spirited but futile defence.

And this was the first mark on the legal record of how English courts would practically deal with the slave trade.

As Hannah Arendt said in a different context, this is how banal an evil can be.

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Lord Reed’s signal: the politics of the Supreme Court (continued)

5th August 2021

Over at Prospect there is a wise and informative article on the supreme court of the United Kingdom.

The piece is by the law professor and former adviser to house of lords committee Alexander Horne.

It makes the point well that the supreme court is taking a more conservative, restrictive approach to public law cases – those are the cases that concern the legality of actions by public bodies – especially when those concern policy.

If so, then there will – in turn – be less need for the current government to ‘reform’ judicial review, the usual means by which the courts deal with public law cases.

If so, this may be significant – at least in its effects.

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The supreme court in the United Kingdom – unlike its American counterpart – does not hear many judicial review cases.

This is not least because there is no codified constitution against which the courts can assess the legality of the actions of state actors.

This in turn means that there is not really a small-c conservative, small-l liberal division in the politics of the supreme court.

Almost all the cases heard by the supreme court do not concern judicial review.

That said, the cases which the court selects to hear and then give emphatic judgments will usually have a powerful effect on the courts below – well beyond the force of any binding legal precedent.

This is a signal that will be understood by – and probably influence – the judges whose day-to-day work involves public law cases and judicial reviews.

It will also be noted by the lawyers who specialise in bringing (or not bringing) certain cases.

In effect: because of the signal from Lord Reed’s supreme court, fewer judicial reviews involving policy will be brought – and of those brought, fewer are likely to succeed.

There will, of course, be hardy lawyers and even judges that will still seek to apply anxious scrutiny to cases involving policy questions.

But those judges and lawyers will soon be in the minority.

And this effect will have a practical impact far greater than could be achieved by bill before parliament.

The days of any expansive approach to dealing with the legality of policies in judicial review cases are coming to an end.

The supreme court seems to be signalling the retreat.

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Exclusion from the Lugano convention – is this the legal cost of political toxicity?

28th July 2021

I am currently putting together a piece on the United Kingdom’s exclusion from the Lugano Convention, following Brexit.

The convention provides for the enforcement of judgments in European Union and (all but one) EFTA states – in essence, a judgment of a court in the United Kingdom can be enforced in Italy or Denmark and so on.

Without the convention, enforcement of a domestic judgment is less easy – and far more expensive and time-consuming.

The United Kingdom is seeking to re-join the convention from outside the European Union – but the European Union is effectively vetoing the application.

See this CNN thread here:

https://twitter.com/lukemcgee/status/1420302117705768961

One thread in this sequence struck me – and my upcoming piece will be an assessment as to whether such a serious charge is valid:

https://twitter.com/lukemcgee/status/1420304587576205315

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If there is validity in this charge then this is indeed a concrete – and consequential – example of the ‘moral hazard’ of which this blog has previously warned.

Such infantile politics must have seemed very clever at the time – with claps and cheers from political and media supporters – but now the effects could be manifesting.

What is less clear is whether this is a serious legal problem as well as a political failure – will it make much difference in legal practice?

Or is its legal significance overblown – event if it is a political embarrassment?

I will post a link to my piece in a day or two when it is published.

**

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What has happened to the government’s fundamental attack on judicial review?

21st July 2021

I was going to use today’s post to criticise the United Kingdom government’s assault on judicial review in the Judicial Review and Courts Bill published today.

But I cannot, because they have not.

At least not in the bill as originally published.

The bill only seems to have two provisions in respect of judicial review – neither of which are exceptional nor objectionable.

One deals with a particular issue in respect of immigration judicial reviews, the other in making an additional remedy available to judges.

The latter has the strange quality in a government proposal of actually being a good idea.

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For a sense check I looked at the comments of other legal commentators (I always try to form my own view on legal instruments and judgments before seeing what else others have said).

But they too saw the proposals as mild and uncontroversial.

Lord Anderson QC, an independent peer:

Lord Pannick QC, via my near namesake the president of the law society:

And via Joshua Rozenburg:

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We can be quite sure that the (laughably) named Judicial Power Project – a group with the strange view that the primary problem in the constitution of the United Kingdom is unchecked judicial rather than unchecked executive or legislative power – will be disappointed.

And there is a serious question to be asked about whether the government will seek to introduce amendments during the passage of the bill – though the usual trajectory is for bills to start off illiberal and to become less so during their legislative passage.

There is also the detail about fettering judges’ discretion in respect of the new quashing orders.

But all this said: this is a significant (and welcome) law and policy anti-climax.

This government went from boasting and blustering about fundamental judicial review reform – with a wide-ranging consultation – to, well, this.

Front covers of right-wing magazines carried caricatures of stern out-of-touch judges, while the tabloids called them ‘enemies of the people’.

But as this blog previously described, the government did not get the consultation response it was looking for.

Perhaps there was never really any problem to begin with – other than in the extreme political imaginations of the government’s political and media supporters.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

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‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

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‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

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‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

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‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

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‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

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‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

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‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

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Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

11th June 2021

In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.

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What does he mean?

And does he have a point?

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What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.

In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.

What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.

To a certain extent, he has a point.

In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.

And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.

But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.

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Judges and courts are not stupid and naive.

Judges and courts know full well reasons can be artificial and contrived.

The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions. 

The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.

For example – take the decision by the government to seek a prorogation of parliament in 2019.

No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.

And without such a sworn (or affirmed) reason, the government lost the case.

Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.

Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.

But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making. 

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And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.

Awarding a high-value contract to cronies where a nominal (though documented)  exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.

So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.

The pram may well have fallen down the stairs anyway.

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