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  • How the Trump administration’s “shock and awe” approach has resulted in its litigation being shockingly awful 22nd April 2025
  • How the United States constitutional crisis is intensifying 17th April 2025
  • A note about injunctions in the context of the Abrego Garcia case 14th April 2025
  • How Trump is misusing emergency powers in his tariffs policy 10th April 2025
  • How Trump’s tariffs can be a Force Majeure event for some contracts 7th April 2025
  • The significance of the Wisconsin court election result 2nd April 2025
  • “But what if…?” – constitutional commentary in an age of anxiety 31st March 2025
  • A significant defeat for the Trump government in the federal court of appeal 27th March 2025
  • Reckoning the legal and practical significance of the United States deportations case 25th March 2025
  • Making sense of the Trump-Roberts exchange about impeachment 19th March 2025
  • Understanding what went on in court yesterday in the US deportations case 18th March 2025
  • “Oopsie” – the word that means the United States has now tipped into a constitutional crisis 17th March 2025
  • Oh Canada 16th March 2025
  • Thinking about a revolution 5th March 2025
  • The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States 25th February 2025
  • The president who believes himself a king 23rd February 2025
  • Making sense of what is happening in the United States 18th February 2025
  • The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires 11th February 2025
  • Why Donald Trump is not really “transactional” but anti-transactional 4th February 2025
  • From constitutional drama to constitutional crisis? 1st February 2025
  • Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end 25th January 2025
  • Looking critically at Trump’s flurry of Executive Orders: why we should watch what is done, and not to be distracted by what is said 21st January 2025
  • A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss 18th January 2025
  • Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech 17th January 2025
  • Of Indictments and Impeachments, and of Donald Trump – two similar words for two distinct things 16th January 2025
  • Why did the DoJ prosecution of Trump run out of time? 14th January 2025
  • Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead 13th January 2025
  • A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter 9th January 2025
  • How the lore of New Year defeated the law of New Year – how the English state gave up on insisting the new year started on 25 March 1st January 2025
  • Some of President Carter’s judges can still judge, 44 years later – and so we can see how long Trump’s new nominees will be on the bench 31st December 2024
  • “Twelfth Night Till Candlemas” – the story of a forty-year book-quest and of its remarkable ending 20th December 2024
  • An argument about Assisting Dying – matters of life and death need to be properly regulated by law, and not by official discretion 28th November 2024
  • The illiberalism yet to come: two things not to do, and one thing to do – suggestions on how to avoid mental and emotional exhaustion 18th November 2024
  • New stories for old – making sense of a political-constitutional rupture 14th November 2024
  • The shapes of things to come – some thoughts and speculations on the possibilities of what can happen next 8th November 2024
  • A postcard from the day after an election: capturing a further political-constitutional moment 6th November 2024
  • A postcard from the day of an election – capturing a political-constitutional moment 5th November 2024
  • “…as a matter of law, the house is haunted” – a quick Hallowe’en post about law and lore 31st October 2024
  • Prisons and prisons-of-the-mind – how the biggest barrier to prisons reform is public opinion 28th October 2024
  • A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties 22nd October 2024
  • What explains the timing and manner of the Chagos Islands sovereignty deal? 20th October 2024
  • Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court 1st October 2024
  • Words on the screen – the rise and (relative) fall of text-based social media: why journalists and lawyers on social media may not feel so special again 30th September 2024
  • Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy 24th September 2024
  • On writing – and not writing – about miscarriages of justice 23rd September 2024
  • Miscarriages of Justice: the Oliver Campbell case 21st September 2024
  • How Taylor Swift’s endorsement of Harris and Walz is a masterpiece of persuasive prose: a songwriter’s practical lesson in written advocacy 11th September 2024
  • Supporting Donald Trump is too much for Richard Cheney 7th September 2024
  • A miscarriage of justice is normally a systems failure, and not because of any conspiracy – the cock-up theory usually explains when things go wrong 30th August 2024
  • Update – what is coming up. 29th August 2024
  • Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness 21st August 2024
  • Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice 19th August 2024
  • This week’s skirmish between the European Commission and X 17th August 2024
  • What Elon Musk perhaps gets wrong about civil wars being ‘inevitable’ – It is in the nature of civil wars that they are not often predictable 7th August 2024
  • How the criminal justice system deals with a riot 5th August 2024
  • The Lucy Letby case: some thoughts and observations: what should happen when a defence does not put in their own expert evidence (for good reason or bad)? 26th July 2024
  • And out the other side? The possible return of serious people doing serious things in law and policy 10th July 2024
  • What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before 9th July 2024
  • The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome 8th July 2024
  • How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases 28th June 2024
  • What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance” 25th June 2024
  • Seven changes for a better constitution? Some interesting proposals from some good people. 24th June 2024
  • The wrong gong 22nd June 2024
  • The public service of an “Enemy of the People” 22nd June 2024
  • Of majorities and “super-majorities” 21st June 2024
  • The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act? 12th June 2024
  • The predicted governing party implosion in historical and constitutional context 11th June 2024
  • Donald Trump is convicted – but it is now the judicial system that may need a good defence strategy 1st June 2024
  • The unwelcome weaponisation of police complaints as part of ordinary politics 31st May 2024
  • Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end 29th May 2024
  • Another inquiry report, another massive public policy failure revealed 21st May 2024
  • On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed 4th May 2024
  • Trump’s case – a view from an English legal perspective 24th April 2024
  • Law and lore, and state failure – the quiet collapse of the county court system in England and Wales 22nd April 2024
  • How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive 17th April 2024
  • Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal 25th March 2024
  • The curious incident of the Afghanistan war crimes statutory inquiry being set up 21st March 2024
  • A close look at the Donelan libel settlement: how did a minister make her department feel exposed to expensive legal liability? 8th March 2024
  • A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision 10th February 2024
  • How the government is seeking to change the law on Rwanda so as to disregard the facts 30th January 2024
  • How the next general election in the United Kingdom is now less than a year away 29th January 2024
  • Could the Post Office sue its own former directors and advisers regarding the Horizon scandal? 16th January 2024
  • How the legal system made it so easy for the Post Office to destroy the lives of the sub-postmasters and sub-postmistresses – and how the legal system then made it so hard for them to obtain justice 12th January 2024
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  • The coming constitutional excitements in the United States 31st December 2023
  • What is often left unsaid in complaints about pesky human rights law and pesky human rights lawyers 15th December 2023
  • A role-reversal? – a footnote to yesterday’s post 1st December 2023
  • The three elements of the Rwanda judgment that show how the United Kingdom government is now boxed in 30th November 2023
  • On yesterday’s Supreme Court judgment on the Rwanda policy 16th November 2023
  • The courts have already deflated the Rwanda policy, regardless of the Supreme Court judgment next Wednesday 10th November 2023
  • The extraordinary newspaper column of the Home Secretary – and its implications 9th November 2023
  • Drafts of history – how the Covid Inquiry, like the Leveson Inquiry, is securing evidence for historians that would otherwise be lost 1st November 2023
  • Proportionality is an incomplete legal concept 25th October 2023
  • Commissioner Breton writes a letter: a post in praise of the one-page formal document 11th October 2023
  • “Computer says guilty” – an introduction to the evidential presumption that computers are operating correctly 30th September 2023
  • COMING UP 23rd September 2023
  • Whatever happened to ‘the best-governed city in the world’? – some footnotes to the article at Prospect on the Birmingham city insolvency 9th September 2023
  • One year on from one thing, sixteen months on from another thing… 8th September 2023
  • What is a section 114 Notice? 7th September 2023
  • Constitutionalism vs constitutionalism – how liberal constitutionalists sometimes misunderstand illiberal constitutionalism 24th August 2023
  • Performative justice and coercion: thinking about coercing convicted defendants to hear their sentences 21st August 2023
  • Of impeachments and indictments – how many of the criminal indictments against Trump are a function of the failure of the impeachment process 15th August 2023
  • A note of caution for those clapping and cheering at the latest indictment of Donald Trump 8th August 2023
  • Witch-hunt (noun) 2nd August 2023
  • Sir Keir Starmer and the Litigation Turn of Mind 31st July 2023

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Category: Supreme Court

Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead

13th January 2025

Some things from last week you may have missed.

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The weekly constitutional

Last week I expected my blogging to centre around a post I was preparing for Prospect, where my regular contribution is to branded as a ‘weekly constitutional’.

This pleasing badge implies a weekly meander – but it will be one based on a recent (or non-recent) published case report. The aim is to use that judgment or other decision to show how law and action work – and do not work – in practice.

The first ‘weekly constitutional’ was about a significant United Kingdom Supreme Court decision that was handed down in November but which got almost no press attention (the main honourable exception was in the estimable Byline Times).

In the unanimous decision the Supreme Court justices undid a grossly spiteful attack by the then coalition government on public sector trades unions not by resorting to elaborate employment law provisions, but by applying a contract law rule so simple it is the stuff of the first weeks of any law degree.

I liked doing that post – please read it here – and I hope you will follow the ‘weekly constitutional’ post. I will post here and alert you to them, perhaps expanding on certain points.

But that post got rather drowned by the attention received by two other things that I wrote last week.

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‘Lettuce before Action’

I so wish I had thought of the above line, but it was coined by the peerless Paul Magrath, whose weekly law email is a must-read – you can subscribe here.

This is about, of course, the antics of a former Prime Minister – and indeed a former Lord High Chancellor – in sending a legal letter to the current Prime Minister.

A letter so weak it may well be the weakest threatening letter ever sent by a United Kingdom law firm.

The ‘close reading’ post I did – here – was done very quickly and promptly, and indeed so promptly that I even had to set out why as a matter of copyright and confidentiality I was entitled to publish the letter so as to comment on it.

Since the publication, the former Prime Minister has been widely ridiculed for this misfired missive – but I think there may be something more worth saying about the letter – and so I may do a post with further reflections.

*

Back in the salmon pink

Last week I was also invited to write something about about social media regulation for the Financial Times.

It is always lovely to write for what – in my biased but honest opinion – is the best newspaper, though it is always terrifyingly daunting to be published alongside proper commentators.

(Lucy Kellaway is my all-time favourite columnist in any newspaper anywhere.)

So I wrote one thing, about the inherent difficulties about regulating social media – some of which will be familiar to long-term readers here.

And is often the case, new ideas come out once you actually start something, and so I wrote a second thing about what I say as the rational drivers behind what Meta announced last week. This was based on actually listening carefully to what Mark Zuckerberg has said in his broadcast – and then reading that prepared statement even more carefully (which led to the all-important satisfying “Aha!” moment).

The two pieces were then banged into one longer piece with an overall, hopefully coherent structure.

And the resulting ‘essay’ was published in the print edition and online on Saturday.

For reasons of topicality, more than the quality of the writing, the piece became very popular.

The Bluesky stats for the article matched my Brexit posts on Twitter at the height of Brexit when I had five times as many followers.

The piece was even briefly one of the top five read FT.com pieces globally.

The sensation of this happening is not altogether pleasant.

But perhaps the one merit of the piece was that it offered an explanation for something which seemed otherwise hard to explain in rational terms.

Essentially the argument offered by the piece was:

(a) Meta has an interest in switching to a more confrontational approach with irksome foreign regulators, especially in the European Union,

(b) Meta now has an opportunity to do this because of the reelection of Donald Trump to the United States presidency,

but (c) this does not show strength but weakness, for in those foreign jurisdictions, the platforms know the respective state has the ultimate power of legal recognition.

And so this is why Meta now needs a strategic ally in the US government – and everything else follows from that.

This seemed obvious from Zuckerberg’s statement – but because it was slipped in a point number six after five rather attention-grabbing other points, but did not get the attention it should have had.

*

Litigation and regulatory strategies are fascinating – in particular, where the surface theatrics of impulsiveness, hypocrisy and recklessness misdirect onlookers into thinking the underlying commercial (or political) objectives are similarly irrational.

Even Liz Truss’s letter makes sense – but solely from a political-media perspective, and not any legal perspective.

Perhaps I should write that further piece on that letter, if only to use that ‘Lettuce before Action’ line as a title.

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Posted on 13th January 202513th January 2025Categories Artificial Intelligence, Blogging and bloggers, Close readings, Communications and Media & Law and Policy, European Union Law and Policy, Regulatory law, Supreme Court, UK Supreme Court, United Kingdom Law and Policy, Words and Things16 Comments on Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead

The public service of an “Enemy of the People”

22nd June 2024

You may remember this headline:

This was about the first of the two Brexit cases where the courts had to prevent the government acting in spite of parliament. The court held that an Act of Parliament was required for the Article 50 notification – and when this was upheld by the Supreme Court, such an Act of Parliament was duly (and quickly) passed.

But at the time, there were heightened emotions – and there were headlines like this: “enemies of the people”. The judges were, of course, nothing of the kind. The import of their decision was that our elected parliament should have a certain ultimate power, and not a prime minister exercising a discretion.

*

One of those three judges was the then Master of the Rolls, Lord Etherton.

Last week he received one of the very highest honours for public service, the GBE.

The citation should be read in full (and I have broken it up for ease of reading, and bold emphasis has been added):

“A retired judge and member of the House of Lords, he was Chair of the Law Commission of England and Wales from 2006 to 2009, Chancellor of the High Court from 2013 to 2016 and Master of the Rolls and Head of Civil Justice in England and Wales from 2016 to 2021.

“In May 2022, he was appointed as the chair, by the Chancellor of the Duchy of Lancaster and the Secretary of State for Defence, of the independent review into the impact of the historic ban on LGBT military personnel and veterans, which was published in July 2023.

“In writing his report, he personally read every testimony provided to the Review, over 1,400 pieces, some of considerable length. He met with veterans and charities throughout the UK, attended Prides throughout Britain, and met a range of ministers, other parliamentarians and military officers from the UK and abroad.

“He dedicated 15 months of his life, without pay or reward, to write and deliver the historic, ground-breaking report and the recommendations, which were fully accepted by the Government, are now being implemented in full.

“His work unveiled a culture of homophobia, bullying, blackmail, sexual assault, abusive investigations into sexual orientation and disgraceful medical examinations resulting in appalling consequences in terms of mental health and wellbeing, homelessness, employment, personal relationships and financial hardship.

“His commitment to the truth has helped draw a line under this unjust aspect of the history of the UK’s armed forces that persisted prior to 2000 but whose damaging consequences are still experienced by many LGBT veterans today.”

*

The report can be read here.

 

The introduction by Etherton is also worth reading:

“This Report is about the existence, enforcement and consequences of an official policy current in HM Armed Forces between 1967 and 2000 which is a stain on the illustrious history of the UK’s armed forces. The policy was that no person subject to service law who was gay, lesbian, transgender or transitioning due to gender dysphoria, or who was perceived to be such, even if they were not in fact, could be or remain a member of the armed forces. It made no difference that such military personnel had never engaged in same sex sexual relations or that they were not aware of being gay, lesbian or suffering from gender dysphoria when they joined the armed forces, sometimes when only 15 years of age.

“Some of those who offended against the policy of the Ban were either dismissed following a court-martial or administratively discharged. There were others who could not take the strain and stress of continually hiding their sexuality, and so resigned or did not extend their contract. The policy was not enforced uniformly across the armed forces but, where it was enforced, it was usually enforced in a rigorous and often brutal way with long term damaging consequences, many of which have blighted the lives of affected personnel to this day.

“At the heart of the Review which has led to this Report are the statements of those who were victims of this overt homophobic policy. Some victims have died a natural death since the Ban was removed. Others have taken their own lives. Many of those still living have attempted to die by suicide or have thought about doing so.

“Those statements give shocking evidence of a culture of homophobia, and of bullying, blackmail and sexual assaults, abusive investigations into sexual orientation and sexual preference, disgraceful medical examinations, including conversion therapy, peremptory discharges, and appalling consequences in terms of mental health and wellbeing, homelessness, employment, personal relationships and financial hardship.

“The survivors have waited for at least 23 years for acknowledgment of what they have suffered, and for justice and restitution. Their testimonies are very moving. In many cases, completion of their statements in response to the Review’s Call for Evidence has involved great emotional pain and courage in recalling and recording details of events which occurred decades ago but whose consequences are still acutely felt. Most have a strong feeling of bitterness at what took place. The Report contains quotations from those statements illustrating how the Ban operated in practice and its effect on the lives of those who suffered from it.

“The Report considers the factual and legal background to the Ban and its eventual abandonment in January 2000 after the European Court of Human Rights gave judgment in favour of four service personnel who were investigated and then discharged because of their homosexual orientation. The court held that the investigations and discharges in pursuance of Ministry of Defence (MoD) policy were in breach of Article 8 of the European Convention on Human Rights (right to respect for private and family life) as the UK had failed to establish that they were justified.

“The Report makes recommendations as to what might be done now by the government to acknowledge that the policy was wrong and unjust and in many cases has had life-long adverse consequences for those affected, and also to demonstrate that the service of veterans who suffered under the Ban is appreciated just as much as that of any other veterans who have served the interests of the nation. It considers how veterans affected by the Ban can now be better supported by health and welfare organisations such as the NHS and veterans’ charities.

“The Report is a unique record of what, to the modern eye, is an incomprehensible policy of homophobic bigotry in our armed forces. Promotion and enforcement of the policy by the MoD and by many in the senior ranks of the armed forces set the ethos for other serving personnel in all ranks. The armed forces today are a very different environment in terms of greater diversity and inclusion. My hope is that, if the government accepts all of my recommendations, which are briefly summarised in Annex 11, a line may finally be drawn under this unjust aspect of the history of the UK’s armed forces that persisted prior to 2000 but whose damaging consequences are still experienced by many LGBT veterans today.”

*

Views may differ on the 2016 tabloid headline quoted above, but there can be no sensible dispute that Etherton now deserves a headline just as bold:

“Servant of the Public”.

 

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Posted on 22nd June 202423rd June 2024Categories Brexit, Courts and Politics, Supreme Court, United Kingdom Law and Policy11 Comments on The public service of an “Enemy of the People”
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