Category: Regulatory law

Artificial Intelligence and how it will affect commercial lawyering (and legal blogging)

17th January 2023

Here is a thought:

Or, to perhaps put it another way: could Artificial Intelligence replicate, or even replace, the work of your normal contracts lawyer?

As someone who has spent over twenty years as a commercial lawyer (constitutional law is my interest, and contracts law my drudgery) I would say the answer is yes, and no, and but.

And as a coda, I will aver that those of us who write and comment on legal blogs may face a problem too.

Yes

The yes is a recognition that a certain amount of contracts law in practice is ploddery.

You have a standard form contract, and you read every clause, and you put all the clauses together.

Many standard clauses are what is called boilerplate – their effect, and often their very wording, are identical from one contract to another.

And even clauses which can vary from one standard from to another – payment arrangements, service levels, and key allocations of risk – do not vary very much.

In larger law firms, the task of reviewing, and even drafting, such contracts is given to junior lawyers, even trainees.

Many non-legally qualified contracts managers and procurement officers are better than many commercial lawyers in dealing with straightforward commercial contracts.

And so just as a text comparison program can identify differences between contracts better than almost any human, then a computer which has a bank of hundreds, if not thousands, of standard contracts would be able to identify standard and deviant clauses.

Such a computer may even be able to propose amendments to the deviant clauses so as to place the contract onto a more standard basis.

So, yes, some straightforward contracts reviews could be done by Artificial Intelligence.

No

Standard form contracts are subject to special legal rules in case law and statute, especially when they are for business-to-consumer transactions, and so a store of contracts would not enough: external legal expertise can be necessary.

And being able to advise a client on whether a standard form contract will be in their commercial interests or not is not something Artificial Intelligence is likely to be able to do soon.

That is because assessing commercial risk in a particular situation is not a form of abstract calculus, for it requires an understanding of industry, business, economic, social and human factors.

And, of course, not all commercial contracts are on standard forms.

Certain transactions require bespoke contracts, dealing with the allocations of risk of a range of things that could go wrong.

In IT and media contracts, for example, there often needs to be an understanding of technological risks so that the legal risk allocations match and mirror what problems can happen in practice.

A well-drafted and hard-negotiated bespoke commercial contract is as much a work of cooperation, conflict and collective endeavour as you will find anywhere else in human activity.

But

There is a problem.

The good lawyers who can advise on standard and bespoke contracts can do so because of their apprenticeship in dealing with straightforward clauses in everyday contracts.

You do not have child prodigies in practical law: a practice takes, well, a lot of practice.

One reason for this is that contracts are not linear documents but complex instruments: each clause can and should relate to other clauses.

And the only way to master complex instruments is to understand how the elements of that instruments all fit (or do not fit) together in given practical situations.

(I have said before that legal drafting is akin to coding in making sure lines all work together.)

This means that if Artificial Intelligence replicates and then replaces the work of junior contract lawyers it is difficult to see how senior contract lawyers will gain their necessary experience.

Coda

Perhaps a better route for Artificial Intelligence would be to replicate and then replace the work of legal bloggers and their commenters.

Perhaps the blogpost above was written by Artificial Intelligence, and perhaps also some of the comments below will be too.

If so, then Artificial Intelligence can merrily create blogposts and comments, rendering us all redundant.

Brace brace.

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The law and lore of the offside offence

16th January 2023

There was a controversial offside decision this weekend in a high-profile football match.

Usually, for anyone with an interest in the game, it is plain if a player is offside or not and, if so, whether there has been an offside offence.

But this understanding is rarely based on someone studying the laws of association football.

Instead it is often based on watching hundreds – thousands – of instances, playing in matches, discussing incidents with others, reading reporters and hearing commentators.

Over time, someone can build up a good working knowledge of the rules and how they should and should not apply.

In a word, for many football fans, the knowledge of the sport is lore, rather than law.

And this is no different for many games and sports, and indeed it is true for most people in every day life about the laws of the land.

But every so often something so distinct happens that the common folk knowledge of a rule, and how it is should and should not be applied, can seem deficient.

And so we had the sight on Match of the Day of the pundits putting Law 11 of the laws of association football on the screen for viewers to read the offside offence themselves.

The one thing which struck me was one single, awful word which has no place whatsoever in any formal rules or laws, either of association football or of anything else.

“…clearly…”

Those who are geeks about the rules of football may be able to explain the purpose of that dreadful “c” word in this code.

But the job of any formal law, rather than lore, is to provide a precise rule capable of being applied to relevant facts so as to create a binary situation: the rule either applies or does not apply,  and if it applies it has either been infringed or it has not been.

It is not clear (ahem) what the “c” word adds to the rule, and it seems to make the rule less precise.

As it happens, most people who watched the incident, using only the lore of offside, believed an offence had been committed.

But the referee who had to apply the formal rule said otherwise.

And, as is so often the case, lore gets things right, and the law does not.

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Good bans v. bad bans, and how can you work out the difference?

11th January 2023

Hurrah, single-use plastics are being banned.

They are being banned in the European Union:

And now they are to be banned here:

Hurrah, hurrah.

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But.

Some followers of this blog will say that the “Hurrahs” seem odd, given my general wariness of “banning” things.

(This 2011 New Statesman post is still one of my favourites.)

Surely: if we outlaw plastic forks, only the outlaws will have plastic forks?

There is something to that: banning a thing is not a magical spell.

All a legal prohibition means is that the thing prohibited is attended by different legal consequences than before.

And certainly banning a thing in-and-of-itself is rarely an instant solution to any problem.

Here, however, may be an example of where a ban is proportionate and likely to achieve its public interest goal, without adverse externalities.

If you really want a plastic fork, then presumably you can still make them.

If you collect plastic forks, you can still add to your collection from a suitable dealer and proudly show that collection off on your Instagram account.

The ban is instead about the use of such products in the marketplace.

According to the consultation document, the government has been mindful that there are substitutes in place, and the impact of the ban has been assessed:

The government also said that banning such things is not its preference: 

This is a sensible approach, and it is heartening to see that there is considered and apparently evidence-based approach to putting in place a prohibition.

If only all proposed prohibitions – and the continuation of existing prohibitions – were subject to such a considered approach.

Prohibitions have their place in public policy – this is a liberal blog and not a libertarian one – but too often in politics and media the “ban” is a form of magical thinking.

Let us hope this is not a single-use policy approach, and that it is recycled for other policy areas.

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A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

*

And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

*

Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

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You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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On “banning” things, again

20th December 2022

Let us talk briefly – again – about “banning” things.

It is a topic which I have addressed before on this blog and elsewhere.

In essence: law is not magic, and so just “banning” something does not make that something somehow disappear in a puff of theatrical smoke.

And usually the something being banned will just continue, but will be attended with different legal consequences than before.

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Take for example the “illegal” asylum seekers (and, yes, we know – or should know – that seeking asylum is not itself an offence).

The clumsy government just wants to ban such asylum seekers harder, with “tougher” measures and “crackdowns”.

A sensible response would be to provide a safe route for asylum seekers to make their applications, and to provide proper resources for the applications to be adjudicated, but: no, we have to ban, harder and harder.

And yet asylum seekers still come, but through criminal gangs.

Or take for an example, the idiotic “war on drugs”.

The supply and use of drugs still continues, but with accompanying criminality and extortion.

Banning the drugs has not made the problem disappear, but instead made it more dangerous for everyone involved.

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None of the above means – or should be taken to mean – that prohibitions do not have their place.

There are many things that should be prohibited.

But any prohibition, in and of itself, is not enough – it instead needs to be part of a wider legal and policy framework.

Law and policy need to be resourced and able to deal with what happens when that prohibition is breached, and what happens next.

And politicians need to realise that banning something is stage one or two of a process of dealing with a perceived social or moral wrong, and not the only stage.

But politicians will not realise this.

We will get “crackdowns” and “tougher” measures instead.

Perhaps we should be “tough” on “crackdowns” instead.

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Gordon Gekko, “Bloatware”, and Retained EU law

16th November 2022

There is a scene in the film Wall Street which almost gets you nodding-along with, if not cheering on, Gordon Gekko.

The scene is very carefully done.

It is a company’s annual stockholders’ meeting, and Gekko is about to speak from the floor.

You will know what he says.

But what you see is a stage full of non-plussed people in suits:

“Teldar Paper has thirty-three different vice presidents each earning over 200 thousand dollars a year. Now, I have spent the last two months analysing what all these guys do, and I still can’t figure it out.

“One thing I do know is that our paper company lost 110 million dollars last year, and I’ll bet that half of that was spent in all the paperwork going back and forth between all these vice presidents.”

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The point is – or seems – inarguable.

And having got his audience – and us – onside Gekko then subverts us with his “greed is good” exhortation.

(Though even then he has to slip in “for lack of any better word” to make the sentiment expressed palatable.)

And if you find yourself thinking “but actually…”, just think of those thirty-three vice presidents all on that stage.

You cannot help but think he may have a point – doesn’t he?

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Of course: that scene is a combination of clever writing and clever visual rhetoric.

And it is easy to depict things as, in effect, bloated – and to get claps and cheers.

But sometimes what appears bloated has a less obvious purpose.

Take, for example, the new owner of Twitter.

This is a tweet from him:

And this is what then happened:

Whoopsie.

Many who logged out of Twitter could not log back in, and so if you wanted to retain access you could not log out.

Or as Rorschach once put it:

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The word “bloat” in this context is pejorative – a term used instead of thinking.

Just seeing a lot of something you don’t understand and do not like, and characterising (indeed, caricaturing) that something as “bloatware” is not enough.

There may be all sorts of hidden and semi-hidden things which are important, if not critical.

That is why a slow, methodical case-by-case approach is needed.

Else you can inadvertently turn-off something that matters, like Musk’s new Twitter did with phone-based authentication.

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And now we come to our old friend, the Retained EU Law (Revocation and Reform) Bill.

The premise of this Bill is that the mass of European Union law that still has effect in the United Kingdom is bloatware.

One can imagine a certain kind of government minister gleefully tweeting:

“Part of today will be turning off the EU retained law bloatware. Less than 20% is actually needed for the United Kingdom to work!”

Or another minister posing in front of thirty-three shelves of regulations, instead of thirty-three corporate vice presidents.

Some would be tempted to nod – perhaps even you.

But.

As this blog has averred before, a lot of retained European Union law is important and beneficial, and we negotiated and implemented it ourselves.

A great deal serves a function – even if it will take time and effort to ascertain what that function is.

Perhaps some of it is statutory bloatware and can be safely discarded.

Yet the moral of Musk and authentication is that gusto is not enough.

Caution – for lack of a better word – is good.

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Musk and the three ways his acquisition of Twitter shows a remarkable approach to legal risk

11th November 2022

The acquisition of Twitter by Elon Musk is fascinating – at least to watch from the outside.

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I am not an American lawyer, and I have not seen any of the legal or other documents related to the acquisition.

Like many of you, I only know what I have read in the media and watched play out on Twitter.

But from the information available to me, and based on twenty years’ experience as an English commercial lawyer, there are three elements of this acquisition which may show us things about Musk’s approach to the issue of legal risk.

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The first element is the agreement to purchase, which Musk reportedly sought to get out of.

It would appear that he was unable (or unwilling) to do so, and so had to complete the purchase.

There were two things here which seemed odd.

The first odd thing was that an experienced business person like Musk, who presumably had access to legal advice, could even get seemingly trapped by such an agreement.

The second odd thing was his use of issues such as the number of bot accounts as a basis to get out of the transaction.

It seemed to me that such issues would normally go to warranties than to anything more substantial.

(In this context, a warranty would be a promise that a certain state of affairs existed which would allow a cash adjustment to the purchase price if the warranty was breached – and so the ultimate price of the purchase would be adjusted to what it would have been had the correct state of affairs been known.)

The issues he raised did not appear to me to be convincing, and many better placed observers were not convinced either.

It looked like Musk had put himself into a commercial situation he could not get out.

Few business people, following advice, would have allowed this to happen.

It was a curious situation.

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The second element of this acquisition is the reported disdain for regulatory and other legal risks by Musk and his new managers once Twitter was purchased.

On this, the New York Times has reported:

Musk “was used to going to court and paying penalties, and was not worried about the risks”.

This is an extraordinary position for any experienced business person – but it does accord to his approach to risk as described in the first element above.

Some of the regulatory and other legal risks now facing Twitter are not trivial, from data privacy to employment rights.

The approach described by the New York Times is not even cavalier – it is outright denial and disdain.

What a curiouser and curiouser situation.

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The third element is the very structure of the acquisition.

Musk may be conducting himself online as if he were a buffoon, but those lenders and investors also financing the transaction are serious people.

And if for some reason those lenders and investors were easily impressed by a charismatic figure, their legal advisers certainly would not be.

The position of these lenders and investors here is the greatest puzzle of all.

What were they thinking?

Reuters tells us these are the lenders and investors:

Even if Musk was in denial or disdainful about legal or other risk, these lenders and investors would not be.

Again, according to Reuters:

“Twitter faces interest payments totaling close to $1.2 billion in the next 12 months on the debt that Musk piled on it, following a string of interest rate hikes by the Federal Reserve, an analysis of the financing terms disclosed in regulatory filings shows.

“The payments exceed Twitter’s most recently disclosed cash flow, which amounted to $1.1 billion as of the end of June, according to financial disclosures Twitter made before Musk took it private on Oct. 27.”

Even if Musk’s antics were not foreseeable, the state of Twitter would have been obvious when lenders and investors did their due diligence.

Lenders and investors proceeded even though they were aware of the precarious financial state of Twitter.

Why would they do this?

Perhaps they were confident that Musk would suddenly turn the platform around and generate revenues in excess of costs.

Perhaps they took a view on the risks and thought they could just write it off if the investment went bad.

Or perhaps they were less interested in any return on investment than in the security they could enforce if the transaction went bad.

Some lenders plan on the basis that an investment will go well – and some lenders plan on the basis that it will not.

If Twitter defaults on the payments, it will be interesting – fascinating – to see what security is in place, if any, and what is enforced, if anything is enforced.

Even if Musk somehow though this transaction was free of risk, those who co-financed the transaction would not have done.

What will happen next?

The situation gets curiouser.

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Musk’s acquisition of Twitter is almost as if it were taking place in a magical business world where legal and other risks do not really exist.

A fabulous world devised by, say, Italo Calvino rather than our mundane real world of contracts and regulations.

Perhaps the fantasy will hold, and Musk will pull off a great commercial success.

Perhaps.

But us trudging legal sorts are used to seeing the downsides.

And the utter lack in this transaction of any visible risk-based approach by Musk is remarkable.

If this transaction escapes the world of fantasy, then Musk and Twitter will need to brace, brace.

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

2nd September 2022

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

To quote the Daily Mail:

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

Not just devastating – but devastating absolutely.

Gosh.

Huge, if true.

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

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

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

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

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

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

But.

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

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

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

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

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

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

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

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

No.

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

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

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

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

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

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

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

It is merely an expression of a view.

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

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

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

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

They are PR, not probative.

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

This Opinion is, in effect, a PR exercise.

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

The inquiry would then have been devastated.

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

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

But this Opinion was not quietly disclosed to the committee.

It was instead placed into the public domain.

On a Friday afternoon.

After it was leaked to a newspaper.

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

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

It is an appeal for media and public support.

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

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

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

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The Opinion is not strong.

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

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

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

And here:

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

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There are a few points to make about this Opinion.

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

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

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

But.

It gets worse.

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

This has been spotted by the Labour MP Chris Bryant:

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

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

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

That would not be a contempt.

But.

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

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

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

And my post on the same:

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

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

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

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

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

This has already been spotted by the estimable Hannah White:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He can answer, parliamentarian to parliamentarians.

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

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

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

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

*

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

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

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

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

*

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

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

This could have been a far more interesting opinion.

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

Frankly, it is devastating.

 

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POSTSCRIPT

 

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The “tragedy” of social media?

1st September 2022

There is a concept, of which many of you will be aware, called “the tragedy of the commons”.

It is a concept about which some people have Very Strong Opinions – and even referring it risks being swamped by “you don’t understand” responses – but it is a useful idea nonetheless.

In a way, it is an articulation of one general reason for why, as a species, we cannot have nice things.

Some people, somewhere – but definitely not you – are going to ruin things for everyone.

*

Something akin – but not identical – is happening with social media platforms.

Just as this blog has recently referred to the 3 Ps – populism, polarisation, and post-truth – what is going badly in social media can be reduced to 3 As.

Abuse, Adverts, and Algorithms.

One response to the clutter, spam and trash one encounters on social media is to blame the platforms.

And the private companies that operate the platforms can and should do more to make using social media less unpleasant.

But.

The unpalatable truth about why social media platforms are often not nice places is because of the “social” part of social media, rather than the “media” part.

In other words: social media has not changed human nature, but made it more visible.

And what is happening on social media is what happens when you give large groups of people the means of instantly communicating with each other.

If this dismal observation is correct then seeking to regulate the “media” part of social media is destined to fail, because the ultimate problem is people, not platforms.

(Of course: other people, not you or me.)

And, if it is ultimately a “social” and not a “media” problem then its resolution will be in changes to social attitudes, not legal changes.

Just like people in large cities ignore each other when in close proximity, people may come to ignore each other in virtual communities.

The person shouting on the internet will be as shunned as the person shouting in the street.

Humans may perhaps adapt, once the novelty of social media wears off.

Or perhaps they will not, and social media will just get worse.

For sometimes it is people, and not regulations, that are to blame.

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Judicially reviewing a political party – and why Tortoise has a point as well as a weak legal case

30th August 2022

Before I became a lawyer, I wanted to be a historian and, in particular, a historian of the concept of the “state”.

The “state” – forgive the quotation marks – is, in one way – something which exists only in the mind, as a label we give certain things around us.

Yet in another way the “state” has a real existence – and some on the left demand “the state should do this” or on the right that “the state should not do that”, both presupposing that something called the “state” exists, and it can be called on to do or not do things.

Some attribute to the “state” the same qualities of omnipotence, omniscience and omnibenevolence that some people even now ascribe to various gods (or “gods”).

But.

I did not do the envisaged postgraduate work on intellectual history, and I fell into being a lawyer instead.

And part of the reason was that with law there were debates and discussions about what the “state” should do and not do, and what were its limits, that seemed more practical, urgent and uncertain in their outcomes than in the academic study of political ideas.

Indeed it was a 1996 article about whether the Jockey Club was amenable to judicial review that first started me thinking seriously about  a career in advising on public law.

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Judicial review is the term lawyers in England and Wales give to both procedure and the substance of holding public bodies to account in the courts.

Often what constitutes a public body – such as ministers of the crown or statutory corporations – is obvious.

But the test is functional – if you are an entity exercising a public function then you are amenable to judicial review.

And this means you are subject to certain special legal duties and remedies that may not otherwise be the case.

So it matters – practically – whether you fulfil the test of exercising a public function.

(Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.)

*

The folk at the Tortoise news and commentary site have decided to send a legal letter threatening an application for judicial review against the Conservative Party.

The letter is worth reading in full.

There are two things worth saying about the letter.

First, the application is what a judge would say is “ambitious”.

Each element of the application is arguable (sometimes only just) – but that an element of a case is arguable certainly does not make it strong.

In essence, that a point is arguable is the test for simply getting it before a tribunal – the minimum required.

Perhaps a positive judge on a sunny day and after a hearty breakfast may give the envisaged claim the judicial thumbs up.

Predicting litigation is never an exact science.

But.

It is unlikely that any court will want to bolt political parties onto the state for the purposes of judicial review – especially when political parties have their own special regulatory regime, and it is the Queen who choses who is invited to be Prime Minister.

The case is likely to fail.

Two, Tortoise has a point – despite the weak legal merits.

A membership-based national political party is conducting an exercise that will lead to the successful candidate being – almost certainly – invited to become Prime Minister and we know very little about how that exercise is being conducted.

(The position would be different if only members of parliament were involved.)

Tortoise are asking for disclosure of the following information:

“(1) Anonymised data you hold on the demographic of the Party’s membership: 

(a) Particularly, we invite you to provide, where held, the number of Party members who:

(i) Live abroad;

(ii) Are foreign nationals; and

(iii) Are under voting age.

(b) We also ask you to provide data in respect of:

(i) The age range of members; 

(ii) The geographic distribution of members; and

(iii) The genders of members.

(2) An explanation of whether, and if so how, the Party keeps its membership database up to date, ensuring that it sends ballot papers to correct addresses. 

(3) Anonymised data you hold on variations in member numbers over time, presented quarterly over the past 10 years. The public interest is particularly acute in respect of quarterly membership numbers for the past twelve months.

(4) An explanation of the Party’s system of compliance, including but not limited to the following questions:

(a) How does the Conservative Party check that new members are who they say they are?

(b) Who oversees compliance? i.e. who independently checks whether the Conservative Party is checking? 

(5) What is the number of efforts at infiltration which the Party has thwarted, i.e. how many cases have you discovered of a fictional person, a dead person, a person of non-voting age, a member of another political party or a pet registering as Conservative member?

(6) An explanation of any third party compliance mechanisms in place to ensure that only those eligible to vote do so, that they vote only once each, and that the election is not manipulated.

(7) An explanation of the circumstances by which GCHQ came to offer advice on the distribution of Conservative party ballots.

(8) An explanation of why non-UK citizens who join the party abroad are eligible to vote even if they pay no tax and spend no time in the UK. 

(9) Confirmation of whether Party members under the national voting age can vote in the election of Party leader and Prime Minister.”

On the face of it, this is the sort of information which should be in the public domain – and this would apply equally to the Labour Party or other political party in a similar situation.

The (likely) legal fact that judicial review is not the appropriate way of getting such information does not take away from this being information which should be publicly known.

Indeed, that Tortoise is resorting to judicial review indicates – if not demonstrates – that the special regulatory regime for political parties is deficient.

And it is that special regulatory regime that should change – rather than the ambit of judicial review be extended.

Political parties are not private clubs, where there is a limited public interest in their internal affairs.

Political parties are a central feature of our political system.

They are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.

So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits.

That objective should be achieved by changes in legislation, and not by judicial expansion.

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