Category: Regulatory law

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.)

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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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Our new national pastime is pretending that Single Market membership is not a good idea

5th July 2022

We have a new national pastime in the United Kingdom, to complement complaining about the weather.

That pastime is pretending that the United Kingdom should not rejoin the Single Market of the European Union, even though it is obvious that we should rejoin.

The completion of the Single Market, of course, was in its execution something which owed greatly to the British Conservative politicians of the day, notably Lord Cockfield and Margaret Thatcher.

An array of practical proposals were promoted by the United Kingdom to make it easier to buy and sell goods and services throughout the (then) European Economic Community.

The contribution to the completion of the Single Market is something about which that the United Kingdom generally can rightly feel proud.

But we now have to pretend we do not want to be members of it.

You will recall a sensible outburst from a current government-supporting MP Tobias Ellwood and the response to it from the very chair of the Commons’ Foreign Affairs Committee Tom Tugendhat:

https://twitter.com/TomTugendhat/status/1532445501563469824

This blog covered that exchange here.

Tugendhat is an ambitious politician – and so one explanation for him to not openly admitting Ellwood was right is that it would frustrate his political ambitions.

But.

It is not just Tugendhat.

Here is another ambitious politician, Keir Starmer, the Leader of the Opposition:

Starmer contends:

“Under Labour, Britain will not go back into the EU. We will not be joining the single market. We will not be joining a customs union.”

Here Starmer avoids mentioning Peppa Pig, but we get the following imagery instead:

“The second step we would take is to tear down unnecessary barriers. Outside of the single market and a customs union, we will not be able to deliver complete frictionless trade with the EU. But there are things we can do to make trade easier.

“Labour would extend that new veterinary agreement to cover all the UK, seeking to build on agreements and mechanisms already in place between the EU and other countries – benefiting our exporters at a stroke.

“There was a story on the news the other day about a ‘wet wipe island’ that has formed in the Thames. Made of fat and oil and household rubbish one metre deep and the size of two tennis courts, it is blocking the flow of the river and changing the shape of the riverbed.

“You couldn’t imagine a better metaphor for the Tory Brexit deal. They have created a hulking ‘fatberg’ of red tape and bureaucracy. One that is hampering the flow of British business. We will break that barrier down, unclog the arteries of our economy and allow trade to flourish once more.”

Fine words.

Yet describing a “hulking ‘fatberg’ of red tape and bureaucracy” is one thing, actually unclogging it another.

Starmer – like Theresa May before him – seems to think that a pick-and-mix approach will somehow work – with the European Union happily agreeing to discrete things that will perfectly suit the United Kingdom.

Perhaps that will work, but it is unlikely to do so.

The political truth is that from Northern Ireland to professional qualifications and veterinary services, there is a glaring solution to the problems.

Membership of the Single Market.

Tugendaht’s excuse is about the United Kingdom not wanting to be a rule-taker.

But.

We are a rule-taker – and one with added bureaucracy, just for us.

Of course, the European Union may not quickly allow the United Kingdom to again be part of the Single Market.

Would you, if you were the European Union?

Why would you chance having to deal with more of the United Kingdom’s psychodrama and collective political breakdown since 2016?

So, yes – membership of the Single Market may be currently unrealistic and unlikely.

Yet that is not an excuse for this continued pretence that it would not be in our interests.

The 2016 referendum question was silent on membership of the Single Market – and there are several European countries that are part of the Single Market and not members of the European Union.

It was only because of Theresa May’s extreme interpretation of the referendum result that the United Kingdom left the European Union on the terms that it did.

And so we all now have to pretend that membership of the very Single Market that the United Kingdom shaped and crafted is somehow a Bad Thing.

It is a silly position to be in.

And as this blog has previously averred, we will only “move on” from Brexit when we can have a mature discussion about the merits of sharing a Single Market with the regulatory super-power with its hundreds of millions of customers next door.

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The Metric Martyrs case – twenty years on

30th May 2022

Before Brexit, there were the Metric Martyrs.

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.

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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.

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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.

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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:

https://twitter.com/jjvincent/status/1530905866689445888

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.

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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:

As a former Lord Chancellor avers, this ‘policy’ is also a political rallying call which is made again and again:

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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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