Texts and Textual Analyses – The Law and Policy Blog

Unpacking the remarkable witness statement of Johnny Mercer – a closer look at the extraordinary evidence put before the Afghan war crimes tribunal

25 March 2024

Over at Prospect I have written a piece on the remarkable witness statement of Johnny Mercer MP given to the current Afghan war crimes inquiry.

(On that inquiry, see the earlier posts here and here.)

But before you read that Prospect commentary, however, please read the following original documents.

First: a typed memorandum, dated 5th April 2011, from a field commander of a UK special forces unit to the director of UK special forces. This is perhaps the most important publicly disclosed document to the inquiry so far.

It is hard to over-emphasise the importance of this 2011 memorandum. This law and policy blog will setting out the significance of the 2011 memorandum shortly.

But in essence, there were grounds for serious concerns of a field commander that UK special forces were killing detained individuals and then fabricating evidence that the killings were lawful – and that there was, at a senior level, a call for a thorough investigation.

The second document to look at is undated but we know from oral evidence from the inquiry it is from August 2020. It is a letter from Mercer – then a junior minister – to Ben Wallace, the secretary of state for defence.

The gist of the letter is that Mercer is unhappy with what he is being told within the department about the available evidence of war crimes by UK special forces in Afghanistan, and that he is also unhappy with what he is being expected to say to the House of Commons.

It is a sensible rule – if you have the time and inclination – to read the original documents referred to in a witness statement before reading a witness statement itself. This is because a witness statement is often a framing device for the presentation of original documents and other evidence which a witness knows a court will also see.

A witness may have an interest in presenting an original document in a certain way, and so it can be wise to have had your own independent reading of the document.

The art of commentary is too often the putting (and pulling) of carts before horses: you are telling people what to think about things of which they usually have no direct information.

But when following the work of an inquiry (or a tribunal or court) it is prudent if you can to be evidence-led, and thanks to the impressive inquiry website we can read some of the key documents and witness evidence for ourselves.

Third, and once you have got a sense of the 2011 memorandum and the August 2020 letter then click on and read the Mercer witness statement itself.

Take your time.

Read and digest the statement.

Re-read it.

You will not regret this, for it is an extraordinary tale, well-told.

It is a witness statement for the ages.

Now you can look at my Prospect commentary on the Mercer witness statement, which is here.

In summary: the witness statement is remarkable, but it also should not be taken at face value.

As one tweeter put it: the witness statement is both revelatory and self-serving.

Since writing the Prospect piece, I think there are a some further observations that are perhaps worth sharing.

So here I will further unpack the statement.

First, if you look carefully at the witness statement, you will notice that the only parts of it which were formally compelled by the Inquiry’s request for evidence are on pages 16 to 19 of what is a 19-page document.

This means the sterling narrative of the bulk of the document was, in effect, volunteered.

Mercer is making sure his version of events is being provided, and on his terms.

Second, the witness statement more-or-less frames at least four items of evidence to which the Inquiry would have independent access:

(a) the 2011 memorandum (above) and that Mercer was aware of it – and why he did not have a copy of it. Here we have the plausible secret-squirrel melodrama of a MoD official giving the minister the document and taking it away again:

(b) the other documents held by the MoD (and now before the inquiry) which had not been provided to Mercer:

(c) what was said by Mercer to parliament in the House of Commons adjournment debate of January 2020, and in particular this passage (emphasis added):

Compare this with what Mercer told Wallace in the August 2020 letter, where he says incorrect information was put by him before the House of Commons which requires formal correction:

And also with what he now says in his witness statement, about why he provided that incorrect information to the House of Commons:

(d) the circumstances of the August 2020 letter from Mercer to Wallace (above) – and what happened (and did not happen) and what he did (and what he did not do) following that letter:

Note here that Mercer states explicitly that he – as a defence minister – did not believe the chief of general staff (CGS) and the director of special forces (DSF) about whether these claims had been investigated.

(There will also be documents available to the inquiry in respect of the attempts by Mercer to investigate the matter – and the responses (and lack of responses) of officials and officers to Mercer’s enquiries.)

In summary, the Mercer witness statement frames the following evidence and information also available to the inquiry:

– how he knew that serious allegations warranting a thorough investigation were made at a high level (the 2011 memorandum);

– that he became aware of other key documents which were withheld from him (the documents obtained by Panorama and the Sunday Times);

– how he (in this own view) provided incorrect information to the House of Commons which needed to be corrected (the January 2020 adjournment debate); and

– how he ultimately did nothing about this, other than write an internal letter to the Secretary of State (the August 2020 letter).

One striking point to also come out of reading the Mercer witness statement is that claimant lawyers were far more successful in obtaining incriminating documents out of the Ministry of Defence than one of its own ministers seeking that same information internally.

As such, the Mercer evidence rather undermines the concept of the ‘political constitution’ – where we are supposed to rely on officials providing good information to ministers, and on ministers in turn providing that good information when pressed in parliament, rather than it being a matter for courts and judicial review. The January 2020 adjournment debate, at a stroke, is especially telling in this regard.

Mercer is to be commended for volunteering the additional information in his witness statement. He could have just given guarded answers to the formal requests, and he chose not to do so. It is also plain that Mercer is justifiably angry at the obstructions and lack of answers he got as a minister in his own department. For him to place all this information before the inquiry, and thereby into the public domain, is a boon for the public understanding of government.

And as a piece of prose, the witness statement – which has many refreshing signs of not being fully written or finalised by lawyers – is an impressive literary document, and quite the thing to read.

But the claps and cheers for Mercer should not go too far.

Left to himself, there would not be this inquiry – and indeed he expressly warns Wallace in the August 2020 letter of the prospect of such an inquiry. Indeed, left to himself queries from the media and from those affected by these allegations would still be referred to the MoD – the very MoD that would not give answers to one of its own ministers.

Left to himself we would not know that there were concerns at a senior level that there were numerous extra-judicial killings by UK special forces in Afghanistan and fabricated evidence to cover those killings up.

Left to himself, parliament would be (as he himself puts it) misled by incorrect information.

And left to himself the courts would be stymied in holding the armed forces to account in such civil and criminal matters by the very legislation he himself promoted.

What the judge said and did not say at the Just Stop Oil hearing, and what the judge should and should not have said

22nd February 2023

The from-court sensation last week was not about something in the High Court, the Old Bailey or any of the other august courts of the English capital, but about what happened at a hearing at Wolverhampton Magistrates’ Court.

It was a legal case that involved no great issue of law, and indeed there seems no dispute about the applicable law or even its application.

The sensation was not the result of sensational news reporting from an intrepid news reporter, for there seems to have been no media present at the hearing.

And there does not seem to have been any miscarriage of justice, and the findings of guilt and acquittals seem not to have been wrong on the available facts.

But there was a sensation, all the same.

Tweets went viral, with one tweet on the hearing recording 1.4 million views.

The case was taken up by the national press, and pundits were emphatic in their support or opposition to what happened.

A former home secretary said this:

And, from the opposing perspective, a well-known Canadian campaigner said this:

And all this for case in a local magistrates’ court, with no great issue of law, no obvious miscarriages of justice, and it seems no news reporters present to record what happened.

Regardless of the substance of what happened, it is an example of what happens when the legal system and modern social media (and after a lag, mainstream media) meet.

So what did happen at that hearing at Wolverhampton Magistrates’ Court?

The straight answer is that we perhaps cannot be certain absolutely what happened, as accounts differ, and there seems to have been no recording of the hearing.

But what we can work out is as follows.

We are told there were nine defendants.

(There is a reason for the “We are told” choice-of-words, as will become apparent.)

We are also told the offence was aggravated trespass, which is an offence under section 68 of the Criminal Justice and Public Order Act 1994:

The Crown Prosecution Service guidance on the offence is as follows:

The prosecutions were in respect of this incident from April 2022, as reported by the local news Express & Star:

According to that news report:

“Around 30 protesters from the Just Stop Oil coalition, including two on the roof of a petrol tanker, blocked the exit and entrance to the Esso fuel terminal in Wood Lane, Tyburn, Birmingham.

“Members of the group called Just Stop Oil said it had blocked a number of “key oil” terminals, including the site in Tyburn, Birmingham.

“Police warned of delays as ExxonMobil UK, one of the country’s largest privately-owned underground oil pipeline distribution networks, confirmed demonstrations were under way at some of its sites. It said it had shut down three of its sites.”

The Birmingham Evening Mail reported:

“A protester was carried away by five police officers during a new blockade at a Birmingham fuel terminal.

“Activists from Just Stop Oil again blocked access to the Esso site in Tyburn today, Sunday, April 3, despite more than 100 arrests across the country this week. A police cordon was in place in Wood Lane, where officers had been stationed since 7.30am. West Midlands Fire Service was also in attendance.”

Two days before, the Birmingham Evening Mail reported:

“A Just Stop Oil protester glued his hands and bare feet to the road during a nine-hour protest in Birmingham. Others have glued themselves to each other.

“Up to 45 protesters have been disrupting oil tankers heading in and out of the Esso Fuel Terminal on Wood Lane, Tyburn, near Erdington, since 4am today, Friday, April 1.”

The “Just Stop Oil” group behind the protests published this release at the time:

“For the third day in a row, supporters of Just Stop Oil have disrupted oil supplies from 7 critical oil facilities near London and Birmingham in support of their demand to the UK government to end new oil and gas projects in the UK.

“Early this morning people climbed on and blocked oil tankers at 5 critical oil terminals. A few have entered the loading bay at Buncefield oil terminal in Hertfordshire and are standing on oil tankers holding banners.

“At Kingsbury, Midlands and Esso terminals in Birmingham oil tankers have been prevented from leaving by people sitting in the road.”

From the contemporaneous news reports and the contemporaneous Just Stop Oil press release there can be no doubt that (a) disruption was caused and (b) disruption was intended to be caused.

As such, anyone who caused the disruption and intended to cause the disruption could have no serious defence to a charge of causing and intending to cause the disruption.

And so from the protest last April, a prosecution was brought this month at Wolverhampton Magistrates’ Court.

We are told that that the hearing involved cross-examination, and that evidence was put in by the defendants.

This would mean that notwithstanding the openly expressed intention by Just Stop Oil to cause disruption, and the evidence of the disruption caused, the defendants pleaded not guilty. This would also accord with two of the defendants being acquitted.

Seven of the defendants were however found guilty.

The judge – District Judge Wilkinson – said some things.

And this is when things become less certain.

A judge can say various things during a hearing – indeed, no one is usually in a position to tell them to shut up.

A judge making any significant decision will usually give reasons.

A judge imposing a sentence will give what are called “sentencing remarks” – which, in some national-profile cases are collected and published by the Judicial Office (previous examples are here).

But when a judge acquits they may also give reasons.

And sometimes what a judge says is set out in a prepared script, sometimes it is based on notes, and sometimes a judge may speak without notes.

After the hearing, the Just Stop Oil published a press release:

This was quite the headline, given that there were seven defendants found guilty.

The press release also contained what it called a “summation” – which is not a legal term for anything a judge says – and this “summation” is quoted as if it was verbatim:

“It’s abundantly clear that you are all good people. You are intelligent, articulate and a pleasure to deal with. It’s unarguable that man-made global warming is real and we are facing a climate emergency. Your aims are admirable and it is accepted by me and the Crown Prosecution Service that your views are reasonable and genuinely held. Your fears are ably and genuinely articulated and are supported by the science.

“When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.

“No-one can criticise your motivations. You all gave evidence that was deeply moving. I certainly was moved. The tragedy is that good people have felt so much, without hope, that you feel you have to come into conflict with the criminal justice system.

“Thank you for opening my eyes to certain things. Most, I was acutely and depressingly aware of, but there were certain things.

“I say this and I mean this sadly, I have to convict you. You are good people and I will not issue a punitive sentence. Your arrests and loss of good character are sufficient. Good people doing the wrong thing cannot make the wrong thing right. I don’t say this, ever, but it has been a pleasure dealing with you.

“You should feel guilty for nothing. You should feel proud that you care, have concern for the future. I urge you not to break the law again. Good luck to all of you.”

It was the screenshot of this “summation” that went viral.

And, as you can see, it is the last of the paragraphs quoted which provided the headline to the press release.

The impression of that last paragraph (given the “you” in the prior “… I have to convict you…”) is that the judge’s remark that “You should feel guilty for nothing” is addressed to all the defendants.

But that final remark is no more striking than the rest of the quoted text.

Did a judge really say all these things to defendants in a criminal case?

When I saw the viral tweets I did nothing to promote or amplify them.

In fifteen years of legal commentary I have learned that when a judge is reported to have said something sensational – especially if it accords with your world-view – it is better to wait for it to be verified before congratulating or castigating the legal system.

But pretty soon these viral judicial remarks prompted an equal and opposite reaction. The Daily Telegraph reported:

The news report continued:

“But on Friday afternoon, the Judicial Office, which represents judges, admonished the group for “misquoting” the judge. […]

“In a rare intervention, the body accused them of taking a phrase “out of context” and issued an almost entirely different account, saying it was “what the judge actually said”

“[…] the Judicial Office said: “It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter.”

(The judge’s statement was also posted on the Crimeline site, though inadvertently incorrectly titled as “full” sentencing remarks.)

An “almost entirely different account”?

This was becoming fascinating.

So far in this post I have relied on the Just Stop Oil press release for the from-court facts – hence the “We are told” formulation above – but the facts stated above – charges, number of defendants, disposals – do not seem to be controversial, or indeed controverted.

But now we have an alternative version of what happened.

The Judicial Office had contacted the judge, who provided his own note of what was said.

The judge’s note was:

“As a judge my overriding duty is always to uphold the law without fear or favour.

“This is not a court of morals it is a court of law, if I allow my own moral compass or political beliefs to influence my decisions and ignore the law where it is convenient to me to do so then the court becomes one where the rule of law no longer applies.

“If judges across the criminal justice system did the same then there would be no consistency and no respect for the law, decisions based on the personal beliefs of members of the judiciary cannot be consistent with the rule of law and the ideal that each law will apply to all equally.

“Trust in the rule of law is an essential ingredient of society and it will erode swiftly if judges make politically or morally motivated decisions that do not accord with established legal principles. Indeed I would become the self appointed sheriff if I acted in such a way.

“It is abundantly clear that you are all good people, intelligent and articulate and you have been a pleasure throughout to deal with. It is unarguable that man made global warming is real and that we are facing a climate crisis. That is accepted and recognised by the scientific community and most governments (including our own).

“Your aims are to slow or even stop the advance of global warming and therefore to preserve the planet not just for generations to come but for existing generations. No one can therefore criticize your motivations and indeed each of you has spoken individually about your own personal experiences, motivations and actions.

“Many of your explanations for your actions were deeply emotive and I am sure all listening were moved by them, I know I was. In simple terms you are good people with admirable aims.

“However if good people with the right motivation do the wrong thing it can never make that wrong thing right, it can only ever act as substantial mitigation.”

The Judicial Office also told reporters by email on Friday last week:

“The judge in the case pointed out that Just Stop Oil have have misquoted him and put in words he never spoke. He has sent [us] the text of what he actually said below.

“They have also quoted the line, “You should feel guilty for nothing” out of context. It was said to one of the defendants who in his evidence had said (through tears) that he felt guilty for not doing enough to save the planet for his daughter. It was not in the context that the seven convicted should feel guilty for nothing which would make no sense at all in the context of the judge having convicted them.”

I asked the Judicial Office whether the judge’s note was read out verbatum in court – or it it was just the basis of what was said in court. I also asked for confirmation that the note was not prepared after the hearing.

I was told the following:

“[these] were words that the judge had prepared before sentencing and were said verbatim. He made some other comments as part of his sentencing but these were based on notes he made in advance but were not delivered verbatim. As there is no recording or transcript made of proceedings in the magistrate court and in the absence of fully written sentencing remarks, this was the best [we] could provide at short notice in terms of what the judge had said in his own words.”

If you compare and contrast the two statements – what Just Stop Oil said and what the judge said through the Judicial Office – there are three main points of comparison and contrast.

The first part of the judge’s comments are not in the Just Stop Oil press release, and they are a statement of general principle. As my fellow legal blogger Matthew Scott avers, “As an abstract statement of principle that could not have been put better.”

But as Scott also correctly observes, these remarks expressly introduce a tension between “politically or morally motivated decisions” and “established legal principles”.

As such, these prefatory remarks do not really help the judge against criticism – and they do not really change the framing of what then follows.

Yes, these general remarks provide a context – but they do not render what then follows as out of context.

If we now jump to the end of the comments, and to the Judicial Office email, the judge, however, has a good point.

The “you should feel guilty for nothing” remark appears not to have been directed at all the defendants, but to only one and in a specific situation.

Just Stop Oil accepted this, and they amended part of their press release accordingly – though this was too late for the viral tweets.

Just Stop Oil, however, have not amended the sensational title of their press release, which still gives the impression that the statement was said to all the defendants:

As for the middle part of the text, there is little substantial difference between the two accounts.

Other than the paragraph “When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change. Millions of people, and I do not dispute that it may be as many as 1 billion people, will be displaced as a result of climate change.” – which seems an unlikely frolic for a judge to have gone on in sentencing remarks – all the other comments attributed to him seem to have counterparts in the Just Stop Oil account.

In my view, the differences can be accounted for by brief notes being reconstructed after the event into prose.

Of course, Just Stop Oil should not have presented such reconstructed comments as being verbatim. But it is a strain to say that their version of what was said is an “entirely different account”.

Indeed, had it matched the judge’s own notes exactly, it would look as if they had secretly recorded the judge.

I asked Just Stop Oil to explain how they put their version together. They said:

“We have notes from a defendant in court who cross checked them with others that were there and also notes from the defence lawyer […] who acted for one of the defendants.

“We corrected the press release when we became aware via Crimeline that one of the remarks was said to an individual defendant and we had taken it out of context.

“We have not received any communication from the judicial office and there appears to be nothing on the website so we’re slightly bemused by the framing in some of the media articles that suggests that we had some kind of official rebuke.

“We have not seen the information that was given to the press in its entirety but it is obvious that the Crimeline account stops short before the remarks around sentencing (since it contains no information about the sentences that were handed down).

“From looking at [lawyer’s] notes we can see that several of the remarks we have reported were made after sentences were pronounced.”

So it does appear the supposed verbatim press release was reconstructed – and that the statements were not said all at the same time.

Which leaves the final question: was it right for the judge to say such things – regardless of the reported sequencing?

Here, we should rely on the judge’s own account of what he said.

Judges’ comments when sentencing are not a bad thing.

Every court day, up and down the country, criminal judges will say things in what are immediate situations that exhort the defendant to do better in future or admonish the guilty.

At worst, such statements are harmless or futile, and at best, such statements may be beneficial to those being exhorted or admonished, and thereby to society.

Not all sentencing remarks can or should be as impeccable as the ones published on the national judicial website.

But.

Judges can and do say things they should not say.

Here a judge was addressing protesters in respect of a highly publicised incident organised by a highly publicised pressure group.

It was entirely foreseeable that what he said would be publicised.

And even it was not foreseeable, and it was an otherwise unexceptional courtroom on a cold and routine day in Wolverhampton Magistrates’ Court, it was inappropriate for a judge to express such general political sentiments, either in sentencing remarks or otherwise.

As it happens, as someone with politics broadly as green as my surname, the sentiments expressed by the judge would be ones I would like to see expressed more often by politicians.

But imagine a latter-day Judge Pickles or Judge Argyle type judge expressing sentiments in support of what illiberal right-wing protesters had done on some other demonstration.

That would be wrong, and would call the administration of justice into question, and so what the judge in Wolverhampton said was wrong too.

So, in (ahem) summation: Just Stop Oil erred in the title and content of their press release, and the judge erred more seriously in making the comments in the first place, even accepting his own version of his remarks.

And the real problem, as this blog averred recently, is with the refusal by the courts to provide or allow recordings of what judges say in open court.

There is no good reason for this prohibition, and scarcely even a bad reason – it is just unthinking conservatism.

Perhaps there should be a protest organised against it.

***

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How to read a formal document

27th July 2022

This post follows yesterday’s very popular post which provided a close reading of the letter from Prime Minister Boris Johnson to the House of Commons liaison committee.

Indeed, the most popular posts on this blog are often close readings of some formal document or another.

It therefore seems a good idea to do a stand-alone post on how to read formal documents.

In doing this, please note I am not trained in forensic linguistics – nor am I clever enough to understand deconstructionism or post-modern philosophy.

My perspective is that of a practical lawyer and legal commentator.

This means that with one hat (or wig) I create legal and other formal documents, and with the other I take them apart and seek to explain them to the public.

So treat this post like a poacher’s guide to gamekeeping, or as a gamekeeper’s guide to poaching.

It is also perhaps relevant that I have a history degree and that I am a former central government lawyer.

In other words: I am a documents geek.

Let us begin with what we are looking at.

What is a formal document?

Literally, a formal document would be a document that has a certain, well, form.

And documents that have to be set out in a certain form are usually formal documents.

But the term has a wider meaning, and I take it to cover serious and considered documents generally.

In this way formal documents are distinct from, say, casual writing.

In essence: a formal document is a document which has been created with care to serve a function.

So the first step is to understand the function of a formal document.

Why has this document been created?

An Act of Parliament or a deed is created so as to create or affect legal relationships.

A resignation letter is created so as to effect a resignation.

A letter in response to a request needs to be understood in the context of the request.

And so on.

Once you have ascertained the function of a document, that will inform you as to what one can expect to be in the document.

For example, here is the resignation letter of President Richard Nixon:

This letter fulfils its function.

Nothing more needed to be said, and so nothing more was said.

In contrast, this is the Article 50 notification letter of then Prime Minister Theresa May.

All that letter needed to say was that the United Kingdom is providing notification of its intention to depart the European Union.

But the letter went on (and on) for six pages.

There was no need for anything more than one substantive paragraph.

And so by understanding the function of a formal document you can understand which part of its content serves the function of that document – and what part needs other explanations.

The next question to ask is whether the document is an instrument.

Some documents record things, and some documents do things in-and-of-themselves.

For example, an Act of Parliament does not (normally) record the law but is a source of the law.

Or a deed does not (usually) evidence a contract but can create legal relationships and obligations.

This is why lawyers can be prone to pompous language such as “hereby” and “hereinafter” as the idea is that the words on the page that are themselves (magically) creating things.

If a document is an instrument then for it to have the intended (magical) effect then certain words and phrases (spells) have to set out (incanted) in a certain way.

And if those words and phrases are not set (incanted) in a certain way then the instrument fails.

One error that can be made by those who are inexperienced with dealing with certain instruments is to take such formalities as saying something in particular.

For example, take the preamble for an Act of Parliament:

If you had never seen an Act of Parliament before you may wonder why all these lords (spiritual and temporal), and commoners, happened to be assembled in one place for enacting this bill.

But when you realise the document is an instrument – a document which, in-and-of-itself does a thing, you see which parts make it instrumental – and thereby which parts do not need another explanation

The next question to ask is about what audiences the document will have.

For example, take a lawyer’s letter threatening legal action.

If the letter is “open” it is intended to be placed before the court to show that the suing party put its case to the defendant(s) before issuing a claim.

The letter thereby is written for the judge.

But the letter is also written for the other side to see – and to have a certain effect on the other side.

Another audience for the letter is the suing lawyer’s own client, who may have wanted a robust lawyer’s letter as a form of satisfaction – or perhaps therapy.

A wise lawyer in a high-profile case will also realise that a potential audience for such a letter can be the public and/or the media.

Another example are contracts.

A contract is there to tell the court what the parties have agreed, including as to what would happen in certain circumstances.

But a contract also needs to be comprehensible to the parties without going to court.

And the contract may need to be disclosed to regulators and tax authorities, or investors and business purchasers.

Parts of the contract may be written with one or more of these audiences in mind.

And in this internet age, resignation letters – of which there have recently been a large number in British politics – can be written not just for the respondent but also for the public to read on social media.

And now we get to the author(s).

Many formal documents are not created by a single author.

Indeed, many formal documents can be regarded as negotiated documents – whether the negotiation is between different parties (like a contract) or between the nominal author and their advisors and employees.

A ministerial letter can be as much the product of civil servants and perhaps special advisers than of the mind of the minister themselves.

Some formal documents, such as Acts of Parliament, are the work of dozens – perhaps hundreds – of people.

Sometimes one can discern the subjective intention of an author – and how the creation of a document serves that author’s personal or partisan interests.

This is especially true if a particular person approves the final version of the document.

But sometimes that personal or partisan interest is not obvious and is difficult to disentangle from the function of the document and the purposes of its content.

Authorial intention is important – sometimes crucial – but it is not the only thing.

The best starting points with a formal document are function and purpose – and it is then, by relief, that you can sometimes see how an author’s personal or partisan interests are being promoted or protected.

Now we come to the important bit.

The first of two ingredients of close reading.

Read what the document (actually) says.

Read every word and every phrase and think about those words and phrases.

You should presume every word and every phrase of a formal document is there for a purpose.

Your job is to work out that purpose.

Some lawyers call this “the rule against surplusage”.

The document itself should have a function – but in serving that function every word and every phrase in that function can be presumed to have a purpose.

Of course, you can have redundant words and phrases – just as you can have redundant code in a computer program.

But until you are satisfied that the words and phrases are redundant, the safe presumption is that they are purposeful.

For what is written with care should be read with care.

So you should ask: what is that word or phrase doing?

And now we come to the difficult bit.

The second ingredient of close reading.

This is working out what is not said – or what could have been said differently, but was not.

For it is one thing to read carefully what is written, but it is another to work out what is not there.

Here we are not only concerned with complete, glaring omissions.

It is more about the words and phrases that could have been used – but were not.

It is about the text in the context of its function and of the relationship between the author(s) and its audiences.

Here context is important.

Some judges like to say “context is everything”.

This is true – but this does not mean context is anything.

The context of a text needs to relate to that text – and, in particular, the function of the text, the purpose(s) of its content, the audiences of the text, and the position (and subjective personal and partisan interests) of its author(s).

Now let’s look again at Johnson’s letter to the liaison committee.

That letter, in response to a direct and plain query, could have said (and ideally should have said):

1. Alexander Lebedev’s name and his position as a former KGB spy;

2. That the then Foreign Secretary meeting Alexander Lebedev at the party was unexpected;

3. But in any case, that no official business was discussed between Alexander Lebedev and the then Foreign Secretary; and

4. That the meeting was, of course, reported to officials.

Had the Prime Minister been able to give this (ideal) response then he would have done so.

But he did not.

And he did not because he could not.

(And, although Johnson is a habitual and fluent liar, he could not say something in this exchange and in this formal document which may emerge as untrue.)

He did not want to say plainly: “As Foreign Secretary, I was not surprised to meet Alexander Lebedev, a former KGB spy, at a party where government business may have been discussed, and I did not subsequently report this meeting to officials”.

One can understand why.

So, applying the above approach, we can work out the following.

The function of his letter was to reply to the committee’s query.

The purpose of the content of the letter was to give the impression that he was answering the question posed.

Care and effort went into the words and phrases used.

As a ministerial letter, it would have been authored by Johnson in negotiation with his advisers, but he would have had final approval.

The audience for the letter is the committee and the public – and, crucially, individuals who may have evidence that government business was discussed.

We know what he could (and should) have said in an ideal world in response to the query – that he had not met a former KGB spy and he had not discussed government business without officials present.

We also know what he could have said, if he were writing plainly – that he had met a former KGB spy and may have discussed government business without officials present, and he did not report this meeting.

By comparing what he could (and should) have been able to say with what he did say we can see a gap.

Johnson went out of his way not to mention Alexander Lebedev by name, let alone his position as a former KGB spy.

Johnson went out of his way not to say that the meeting was unexpected – saying only that it was not “pre-arranged”.

Johnson went out of his way not to say plainly that official business was not discussed, but instead used a formulation “[a]s far as I am aware” that makes no sense as he would presumably have complete knowledge of any conversation to which he was a party.

And Johnson goes out of his way to give the impression that things were properly reported when he did not report the conversation to officials subsequently.

All this can be worked out not by just reading what the letter says but by comparing what the letter said with what it should have said in response to the query.

A close reading of any formal document is a combination of reading carefully what is said and considering carefully what could have been said but was not.

The danger of this approach, of course, is that one can speculate or project things.

This is why understanding the function of the document and the purpose(s) of its content are important.

Regard to function and purpose provides the guide to measure what is said against what is not said – and it also provides the discipline against speculation and projection.

Nixon’s resignation letter requires little or no gloss.

May’s Article 50 notification letter indicates that five pages of verbiage requires some explanation by something other than the notification itself.

Johnson’s letter to the liaison committee contained twelve paragraphs in response to a simple query, seeking to mask and misdirect from the true situation – that he had, as Foreign Secretary, met a former KGB spy and was not able to say definitively no official business was discussed, and that this meeting was not subsequently reported to officials.

In essence: a formal document is one where the document has been created with thought and care to serve a function, and with words and phrases chosen (and not chosen) by its author(s) so as to serve particular purposes before certain audiences.

And a close reading of that formal document is where you have regard to the thought and care that went into that document, and its context, working out why certain words and phrases were chosen and what things were not said instead.

Welcome to being a documents geek.

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“As far as I am aware, no Government business was discussed” – A close reading of Boris Johnson’s letter about the Lebedev meeting

26th July 2022

There are perhaps two stages to a close reading of a legal, formal or otherwise considered or negotiated document.

The first stage – sometimes overlooked – is to read what the document actually says (and not what you think or hope it says).

The questions to ask here are: What is the content? How is that content framed and conveyed? What propositions are put forward? How are paragraphs and sentences structured? What words are used?

And so on.

In essence: if thought has gone into compiling a text, thought should also go into reading that text.

The second stage is more difficult.

Here the reader needs to work out not what is said, but what is not said.

Why did the writer not say certain things which they otherwise would have said?

What were the words and phrases and sentences which could have been used, but were not?

Of course: this second stage can be prone to speculation or projection or other forms of (over-)elaborate analysis.

But it can be a useful exercise when one has a document where the wording seems, well, strained or odd.

In short: why does the text say this – and not something else?

Now we come to a letter that was placed today into the public domain.

The letter is from the current (and departing) Prime Minister Boris Johnson and it is on his official headed paper.

You can read the letter here.

The portion of the letter with which this blogpost is concerned is that under “Question 41“.

The background to this is as follows: on or about 28 April 2018, Boris Johnson, then Foreign Secretary, attended a social event in Italy where one of the other guests was Alexander Lebedev, a former KGB agent.

He was asked about this when he appeared at the recent liaison committee of the House of Commons on 6 July 2022:

There was a follow-up question:

This was not a comfortable moment for the Prime Minister – and it was at the time he was being forced to announce his upcoming departure as Prime Minister.

You will see from the exchanges above that Johnson said he would write to the committee – but in any case the chair of the committee wrote to the Prime Minister on 8 July 2022 expressly asking for – among other things – the Prime Minister to write on the matter of:

“Whether you met with Alexander Lebedev on 28 April 2018 without officials, and whether officials were subsequently informed of the meeting”

The question being asked was plain – and precise.

In his letter dated 21 July 2022 (and published by the committee today) devotes over a page of a four-page letter to responding to this question:

You will see the response to the question asked comprises twelve paragraphs.

And you will see that from the fifth paragraph onwards, the information provided is not the information requested.

Indeed, if you look at the final paragraph, the Prime Minister is providing information about who Labour politicians have met.

Only the first four paragraphs of the response relate to the request and should be read again:

You can read these paragraphs as well as anyone, and it is worth taking time to read what they say.

And what they do not say.

For some reason, there is no mention of Alexander Lebedev by name – he is instead alluded to as “Evgeny Lebedev’s father”.

Johnson was asked both in the committee and in the chair’s subsequent letter whether officials were subsequently informed of the meeting.

Johnson’s letter places emphasis on a notification made about hospitality and that officials were “aware” in advance that he was attending.

You will see both the notification and the “aware” comment are about the social event generally – and not the meeting with Alexander Lebedev in particular.

Johnson cannot bring himself to say plainly that officials were not subsequently informed of the meeting with Alexander Lebedev.

The admission is instead buried in the following text:

In plain language: the Prime Minister did not subsequently notify officials of his meeting with Alexander Lebedev.

Johnson seeks to misdirect the reader with mentions of a notification about hospitality and officials being “aware” in advance of the social event generally, but the answer to the straight question is that he did not notify officials.

Indeed, there is no reason to believe from the content of this letter that officials were aware in advance that Alexander Lebedev would be in attendance.

Johnson further states the meeting with Alexander Lebedev was “not a formal meeting, nor something that was pre-arranged”.

This wording is odd.

That it was not “a formal meeting” is no more than a tautology that this was a social event – it is not a new point, but a dressing up of a point already made.

And that the meeting was not “pre-arranged” does not preclude the meeting as being expected.

Johnson does not say he was surprised to see Alexander Lebedev, which he could have said.

The most remarkable phrase in the letter, however, is that “[a]s far as I am aware, no Government business was discussed”.

That formulation is strained in the extreme, as it would be within the Prime Minister’s knowledge what was discussed and what was not.

The “[a]s far as I am aware” proviso makes sense in a formal document when a person cannot have complete knowledge of a thing themselves.

But Johnson would presumably have complete knowledge of what he said.

Note also the Prime Minister does not simply say “[N]o Government business was discussed”.

If the Prime Minister could have said just that, he would have done so – and put the matter beyond any doubt.

But he did not say that, and that is presumably because he cannot say that.

He also does not use the more common “[a]s far as I can recollect” proviso.

The only reasonable explanation for the proviso “[a]s far as I am aware” in that statement is that the Prime Minister is aware of the possibility that government business was discussed, and so he does not want to be pinned down to a more committed answer that could mislead parliament.

In summary, Boris Johnson did not notify officials that he had met Alexander Lebedev, and he cannot recall exactly what was discussed.

That is the only sensible interpretation and construction on the letter he has sent to the liaison committee, even though the letter goes out of its way not to mention Alexander Lebedev, and goes out of its way not to say expressly that officials were not subsequently notified, and goes out of its way to implicitly accept government business may have been discussed.

Instead of the twelve paragraphs of misdirection and waffle he could have said:

“I did not notify officials that I had met Alexander Lebedev, and I cannot recall exactly what was discussed.”

Instead, none of the information which the committee asked for directly is provided directly.

There is something strange and worrying here.

If the meeting in Italy was straightforward and above board, then the response published today would also have been straightforward and open.

But the response was not – and that presumably is because the meeting was not.

Curious stuff.

***

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The odd and worrying situation of the legal advice on the Northern Ireland Protocol

9th June 2022

Something odd – and worrying – is happening.

Of course, there are always odd and worrying things happening – increasingly in the area of law and policy.

But this is a rather odd and very worrying thing.

It is the curious incident of the government’s legal advice on its forthcoming proposal for the Northern Irish Protocol.

But to understand why what is happening is just so very odd and very worrying, we need to go back in time and also to understand how legal advice works in government.

The current government of the United Kingdom does not like the Northern Irish Protocol of the Brexit withdrawal agreement.

This is itself odd, as it is the same government, with the very same Prime Minister, that changed the previous policy on this, negotiated and signed the agreement, sought and obtained a general election mandate for the agreement, and pushed it through into domestic legislation.

The current government, and our Prime Minister Boris Johnson, could not have done more to go from scratch in putting the Northern Irish Protocol in place.

But they have come now to regret this once “oven-ready” agreement.

And they would like it to change.

The problem, of course, is that it takes all parties to an agreement to change an agreement – and the counter-party here is the European Union, and it does not want to change the agreement.

So what is the United Kingdom government to do?

The government tried – remarkably – to break the law,

It is astonishing to type this, and it should be astonishing for you to read this, but that is what the government sought to do, openly and expressly.

The breach was framed – you may remember – as breaking law “in a very specific and limited way”.

The Advocate General – a government law officer – resigned, as did the government’s own most senior legal official, the Treasury Solicitor.

They were right to do so – it was an extraordinary and preposterous thing for the government to do: an outrage, constitutionally and otherwise.

The government did not go ahead with this ploy.

The government learned its lesson.

The lesson was never to openly and expressly state that you were intending to break the law, either “in a very specific and limited way” or otherwise.

Since that botched approach the government has been very careful to say that what it is proposing does not break the law.

What the government actually wants to do, in substance, has not changed.

But now it wants to have legal cover for what it wants to do: to be able to say that a thing is lawful and not unlawful.

And under that cover, you can see through the fabric ever more desperate contortions and distortions.

Within the government there will be those insisting that there has to be “sign off” on the legalities of what is being proposed.

It is similar in this way to the attempts within government to get legal cover for the Iraq invasion, which led to the resignation of the senior government lawyer Elizabeth Wilmshurst – her resignation letter is here.

You may recall how the legal advice within government was then being chopped and changed until the advice was what the then Prime Minister Tony Blair and Foreign Secretary Jack Straw were happy with and also satisfied service chiefs and senior civil servants who wanted legal sign-off.

What happened behind the scenes came out at the Iraq Inquiry:

The Chilcot Inquiry concluded that the “circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory”.

You will see from the BBC report above, the government was shopping around for the legal advice that it wanted – because it did not like the advice of the responsible government lawyer.

In the end the then Attorney-General Lord Goldsmith managed to provide (that is, concoct) the advice the government wanted, instead of the advice of the relevant government lawyer.

And although that was a Labour government, as opposed to the current Conservative government, there was an important lesson learned and committed to institutional memory.

The lesson learned was that it is better not to shop around for new, alternative advice if you can say that you have not had adverse advice in the first place.

Now let me introduce you to the Devil.

That is, the “Treasury Devil” – the nickname for First Treasury Counsel.

The late great legal blogger (and, ahem, former appeals judge) Sir Henry Brooke did this fine post on this role – which you should now click on and read.

In essence, the Treasury Devil is an external senior barrister who is activated when the government has a Really Serious Legal Problem.

Usually, this means going to court to represent the government in the most difficult and serious legal challenges.

Or it can mean advising in advance when a difficult and serious legal challenge is foreseeable.

The Treasury Devil is the legal cross between Winston Wolf and Mycroft Holmes.

He or she solves the government’s trickiest legal problems, or sits there and advises the government how best to deal with those problems in advance.

Some of the greatest judges were once Treasury Devils: Lord Slynn, Lord Woolf and Sir John Laws, as well as one member of the current Supreme Court, Lord Sales.

(I happen to be a former government lawyer, and I know of one instance where an impending legal problem was put before the Treasury Devil well before there was any litigation.)

Referring such a matter to the Treasury Devil is not routine – it is exceptional.

But it is a thing (despite what some other commentators asserted).

Indeed, when it is as plain as a pikestaff that something important will be challenged – perhaps all the way to the Supreme Court – then it is a very prudent thing.

That sometimes the Devil will be consulted on potential legislation has been affirmed by a well-regarded expert on legislation:

The current Treasury Devil is Sir James Eadie.

And you can see some of this Devil’s handiwork here.

Now, back to the Northern Irish Protocol.

Recently, a post on this blog set out an interesting shift in rhetoric from the current Foreign Secretary:

The Foreign Secretary had said:

“That is why I am announcing our intention to introduce legislation in the coming weeks to make changes to the Protocol.

“Our preference remains a negotiated solution with the EU.

“In parallel with the legislation being introduced, we remain open to further talks if we can achieve the same outcome through negotiated settlement. […]

“The Government is clear that proceeding with the Bill is consistent with our obligations in international law – and in support of our prior obligations in the Belfast Good Friday Agreement.”

In other words, the government was now to ‘comply’ with international law.

Applying the first of the lessons set out above, the government was now going to be lawful, not unlawful.

They had found a way to call what they wanted to do lawful.

The source of this advice?

This was revealed by the Times:

The Times reported:

“The attorney-general has approved the scrapping of large parts of the Northern Ireland Brexit deal amid mounting cabinet divisions over the plan, The Times has been told.

“Suella Braverman has advised that legislation to override the Northern Ireland protocol would be legal because the EU’s implementation of it is “disproportionate and unreasonable”.

“In evidence accompanying her findings, Braverman says that the EU is undermining the Good Friday agreement by creating a trade barrier in the Irish Sea and fuelling civil unrest.

“Her submission argues that the agreement has “primordial significance” and is more important than the protocol. “There’s mountains of evidence that there’s a trade barrier down the middle of our country,” said a government source. “Suella has argued that trade is being diverted.”

“Her submission also details “societal unrest” and cites hoax bomb attacks, including one targeting Simon Coveney, the Irish foreign minister. “There are increasing signs of violence in Northern Ireland,” the source said. “That can’t be allowed to carry on.”

Suella Braverman, the Lord Goldsmith of her generation, had found a way.

Some of the vocabulary in the Times report is not strictly accurate – what is being described is reasoning and advice, not evidence or submissions – but it would appear that the newspaper had sight of the advice.

Internal, legally privileged advice had been leaked.

The desired legal advice was now in place, and the government could now do what it wanted to do anyway with the Northern Irish Protocol.

But.

There was one thing which could ruin this exercise in political and legal expediency.

Applying the second lesson set out above, the government needed this to be the only legal advice in town.

Whitehall was not going to be big enough for more than one advice, given the speed with which the government wanted to proceed.

A second opinion – usually helpful – would be most unhelpful to the government.

There would not be enough time to do what Goldsmith had once managed to do with the unwelcome foreign office advice.

Like the final scenes of a situation comedy, those in government would be desperate that somebody else was not asked certain questions.

Now we come to this week’s news.

Again internal government legal correspondence and advice has somehow found itself into the public domain.

More internal, legally privileged advice had been leaked.

.@politicshome understands, as @SamCoatesSky reports, that First Treasury Counsel James Eadie was *not* consulted by government on the legality of the Protocol legislation

Eadie would be expected to be asked for his opinion on such a high-profile & consequential bill – v unusual

— Adam Payne (@adampayne26) June 7, 2022

Payne (a fine political journalist but not a legal specialist) may not be entirely correct here – for as set out above, the Devil is not consulted routinely on legislation.

But if something big was afoot, it would not be unusual for somebody somewhere in senior government to suggest that this is a matter for First Treasury Counsel.

Especially as Eadie had acted in much of the relevant litigation to date and would be expected to act in court as and when the new proposals were challenged.

Payne’s news report at Politics Home is as follows:

“Correspondence seen by PoliticsHome has cast doubt over the government’s argument that its plan to override parts of the post-Brexit treaty without an agreement with the European Union would not breach international law.

[…]

“The government insists that this would not break international law. Suella Braverman, the attorney general, approved the plan having concluded that it was legal, The Times reported last month. When unveiling the plan to parliament, Foreign Secretary Liz Truss said “we are very clear that this is legal in international law and we will be setting out our legal position in due course”.

“But in the leaked correspondence, a senior figure advising the government on legal matters says they hold the view that it cannot be “credibly” argued on legal grounds there is currently no alternative to unilaterally disapplying the treaty, and that it is “very difficult” for the ministers to make that case.

“They add they find that position “more convincing” than the view put forward by Braverman and others that the government was on solid legal footing in pursuing unilateral steps.”

Sam Coates, another fine political journalist, reported at Sky:

“…Sky News is told that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, has not been consulted on the question of whether the plans to overhaul the Northern Ireland Protocol will break international law.

“He is nevertheless understood to have indicated he believes it will be very hard for the UK to argue it is not breaching international law if it goes ahead with some of the moves under consideration.”

And he then reported:

“Last night Sky News reported that the First Treasury Counsel, the government’s independent barrister on nationally important legal issues, was not asked to give his opinion on whether imminent plans to overhaul the Northern Ireland Protocol would break international law.

“Sir James Eadie was consulted about the forthcoming legislation.

“However – in a highly unusual and possibly unprecedented move – he was asked not to give a specific legal opinion on whether the plan would breach international law.

“For the first time we can set out in detail what Sir James said.

“Eadie starts by confirming that the government has received advice from an array of other lawyers about the international legal issue raised by the planned protocol legislation.

“He goes on to say that he has been asked only to “assume” there is a respectable legal basis on which to support the arguments made by the other lawyers.

“He says he is happy to comply with this request – “I do so,” he writes – but then adds “I am not asked to opine on the merits of those views”.

“Sky News understands it is extremely rare for the First Treasury Counsel not to be consulted on an issue such as this, and be directed by government to rely on the opinion of others.

“However Eadie’s agreement to do as directed – and rely on the view of other lawyers – allows the government to say he was consulted more generally and is on board with the plan.

“Inconveniently, however, he is understood to have then volunteered a view in his submission: that he found the argument of one particular lawyer advising government “considerably easier to follow and more convincing”.

“The lawyer he cites says that it would be “very difficult” for the UK to argue it is not “breaching international law”.”

What appears to have happened is as follows: the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel; a clever compromise was reached where it would be referred to Eadie on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.

This is hilarious.

And it is now a mess.

One significant issue here is not that the Devil was not formally consulted – it is rare for First Treasury Counsel to be involved in pending legislation.

It would not normally be a snub.

The significant point is that for Eadie’s name and position to be even mentioned in this leaked correspondence can only mean there is almighty row going on in government over the legality of these proposals.

Somebody senior internally is insisting that First Treasury Counsel be consulted, and that the Attorney General’s convenient advice cannot be accepted on the nod.

And not only has somebody senior insisted on this – they are so senior (or important) that they have partially got their way, and what looks like compromise instructions were then given for the First Treasury Counsel for advice.

We now have the extraordinary situation that there is convenient legal advice and also very serious grounds for doubting that advice (though not formally competing advice, because of the assumptions).

This is the worst of both worlds – for at least in the Goldsmith/Wood situation above, there could be and was a decision to prioritise one advice over another.

Here there is only one advice, and it is dubious – with no less than the Treasury Devil saying so.

And now, there has even been an urgent question in Parliament.

Also confirmed:

Urgent question from @amcarmichaelMP: "To ask the Minister for the Cabinet Office if he will make a statement on requests made to the First Treasury Counsel to assess government proposals to override the Northern Ireland Protocol."

— UK House of Commons (@HouseofCommons) June 9, 2022

The government is hiding behind a convention of legal privilege that it has already undermined by giving incomplete and inaccurate information to MPs in order to assert that its position is legal. The legal advice must be published, in full. https://t.co/E3Cs8lrbKI

— Alistair Carmichael MP (@amcarmichaelMP) June 9, 2022

The government minister said – with a straight face – that despite the several leaks in this matter, the government does not by convention usually disclose legal advice.

What we have are leaks of the Attorney General’s advice and leaks of the seeming compromise advice from the Treasury Devil, which casts serious and significant doubt on the Attorney General’s advice.

The supposed legal cover has, well, had its cover blown.

The government has now placed itself in a difficult position – by its own shenanigans.

It must have seemed such a good idea to get legal cover in this way – but it has now created a situation where somebody is in a position to leak legally privileged advice indicating there is an utter mess internally.

This is where a misconceived, seemingly clever way of getting legal cover gets you.

The true political problem here isn’t that First Treasury Counsel was not consulted in respect of the new proposals for the Northern Irish Protocol.

The problem is that the government tried to go out of its way not to consult First Treasury Counsel when somebody with sufficient clout insisted on it, and then the government only did so with “assumptions” so as to limit the scope of the advice.

And now it seems the government wants to suppress and disregard the First Treasury Counsel’s serious doubts as to legality.

This is an extraordinary situation.

When news broke about the Eadie advice, I tweeted that this was an extraordinary and potentially highly significant and worrying development.

Some wrongly took the development to which I referred to be that Eadie had not been consulted.

No.

The extraordinary and potentially highly significant and worrying development is that Eadie was involved at all, was being mentioned in internal emails as an alternative source of advice, and that we knew any of this about it.

That there are serious rows inside government, botched attempts to get legal cover, and frequent leaking of privileged advice is very worrying indeed.

Something odd is happening.

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What the Home Secretary’s Ministerial Direction on Rwanda signifies – and what it does not signify

18th April 2022

The home secretary has issued ‘a ministerial direction’ for her proposal for a ‘migration and economic development partnership’ with Rwanda for the processing of asylum claims.

Such a direction is significant – but it is also important to realise what it does not signify.

The direction by itself does not mean that the proposal is wrong, or will not work, or is unlawful.

What it does mean is that there is sufficient concern within the home office that the most senior official wants Priti Patel to own the decision to go ahead with it.

And this is worth exploring.

The partnership proposal was published last (Maundy) Thursday – which is odd, given that parliament was not sitting and we are around the time of the start of the central government ‘purdah’ for the local election campaigns.

Also published was a memorandum of understanding (MoU) with Rwanda.

In general terms, an MoU is a document that is supposed to impress you as as being effective and formal, but is not actually effective nor formal.

A political (and legal) sleight of hand (SoH).

And followers of this blog will enjoy the wording of paragraph 2.2 of the MoU:

“2.2 For the avoidance of doubt, the commitments set out in this Memorandum are made by the United Kingdom to Rwanda and vice versa and do not create or confer any right on any individual, nor shall compliance with this Arrangement be justiciable in any court of law by third-parties or individuals.”

So that was (Maundy) Thursday.

On (Easter) Saturday, in the late afternoon, two letters were published by the government.

These letters were dated 13 April 2022, that is the Wednesday before the proposal and the MoU were published on the Thursday.

The first letter was from the most senior civil servant at the home office.

He was insisting on a ministerial direction.

Why?

To answer that question we need to understand government policy on ‘managing public money’.

This policy is not the sort of partisan policy which politicians announce or publish in a manifesto.

It is instead the sort of policy which any government has, regardless of which part is in power.

And within each department the most senior official – in this case the permanent secretary – is the ‘accounting officer’ responsible for ensuring the policy is complied with.

When I was a government lawyer fifteen years ago, it was known as ‘VFM’ – value for money.

Part of the ‘managing public money’ policy provides:

The fine folk at the Institute of Government have provided this excellent explainer on ministerial directions which you should now read.

And this is the government’s own page for such directions.

Now we go back to the permanent secretary’s letter.

You will see the first three paragraphs set out his understanding of the policy and what it is seeking to achieve – and this is set out in positive terms to which the home secretary herself cannot object.

The fourth paragraph then sets out his role as the accounting officer, and the fifth paragraph sets out the extent to which he sees there is no problem with the Rwanda proposal (emphasis added):

“The Accounting Officer advice that I have received comprises a rigorous assessment of the regularity, propriety, feasibility and value for money of this policy, drawing on legal, policy and operational expertise. I have satisfied myself that it is regular, proper and feasible for this policy to proceed. We have incorporated learning from Windrush in developing this policy and the plans for its implementation.”

So, according to the official it is generally “regular, proper and feasible” for the proposal to proceed.

But.

There is something about which he as accounting officer is not satisfied, and this is set out out in the next paragraphs (which I have separated out for flow):

“However, this advice highlights the uncertainty surrounding the value for money of the proposal.

“I recognise that, despite the high cost of this policy, there are potentially significant savings to be realised from deterring people entering the UK illegally.

“Value for money of the policy is dependent on it being effective as a deterrent.

“Evidence of a deterrent effect is highly uncertain and cannot be quantified with sufficient certainty to provide me with the necessary level of assurance over value for money.

I do not believe sufficient evidence can be obtained to demonstrate that the policy will have a deterrent effect significant enough to make the policy value for money.

“This does not mean that the MEDP cannot have the appropriate deterrent effect; just that it there is not sufficient evidence for me to conclude that it will.”

The proposal has a “high cost” – but there is no sufficient evidence that the high cost will be offset by savings from it having any deterrent effect.

The evidence for such an effect is not only uncertain but “highly uncertain”.

He therefore cannot sign off on the policy as accounting officer.

He instead needs to escalate it to the minister to sign off personally.

And so (again broken up for flow):

“Therefore, I will require your written instruction to proceed.

“I consider it is entirely appropriate for you to make a judgement to proceed in the light of the illegal migration challenge the country is facing.

“I will of course follow this direction and ensure the Department continues to support the implementation of the policy to the very best of our abilities.

“Should you issue a direction, I am required to copy all relevant papers to the Comptroller and Auditor General (who will inform the Public Accounts Committee) and the Treasury Officer of Accounts.

“I anticipate publishing our exchange of direction letters as early as practicable.”

So this is not any usurpation of ministerial responsibility and democratic control, but a reinforcement of the priority of minister over officials.

The minister will get their way – but they have to take the decision themselves.

And so the home secretary replied, giving the direction.

Her letter is also worth looking at – though this time for what it does not say.

Her letter does not engage with the value for money points but sidesteps them (again broken for flow):

“While we understand it is not possible for HMG to accurately model the deterrent effect from day one, together with Rwanda, we are confident this policy is our best chance at producing that effect.

“It is only by introducing new incentives and effective deterrents into the system, as our international partners like Denmark, Greece, and Australia have succeeded in doing, that we can take on the criminal gangs facilitating illegal entry and break their lethal business model.

“I recognise your assessment on the immediate value for money aspect of this proposal.

“However, I note that without action, costs will continue to rise, lives will continue to be lost, and that together we have introduced safeguards into our agreement to protect taxpayer funding.

“And while accepting the constraints of the accounting officer framework set out by HM Treasury, I also think there are credible invest-to-save arguments in the long term.

[…]

…I also believe there is an imperative to act now to mitigate the impact on staff wellbeing as well as departmental operational and financial pressures in the longer term.

“It would therefore be imprudent in my view, as Home Secretary, to allow the absence of quantifiable and dynamic modelling – which is inevitable when developing a response to global crises influenced by so many geopolitical factors such as climate change, war and conflict –– to delay delivery of a policy that we believe will reduce illegal migration, save lives, and ultimately break the business model of the smuggling gangs.

“I am therefore formally directing you as Accounting Officer to take forward this scheme with immediate effect, managing the identified risks as best you can.”

For the home secretary, the lack of sufficient evidence of any deterrent effect does not matter.

She believes the Rwanda proposal will work, and so it shall be taken forward.

She is confident that in the longer-term there will be value for money, and – in any case – modelling is not easy for this sort of things.

Her decision; her call.

Of course, one should be wary of taking documents such as these two exchanged letters seriously at face value.

Such exchanges can be choreographed and it sometimes (though not here one suspects, given the disjoined nature of the reply) the same official will draft both letters – ‘sign here minister’.

It could be that the request for a direction here is a manifestation of deeper unease within the home office at this proposal – and that such a request, framed in VFM terms, was the only way of signalling publicly this unease.

The bureaucratic equivalent of the blinking hostage.

On the other hand, the home office is certainly capable of nasty and expensive policies.

And the permanent secretary in his fifth paragraph goes out of his way to say it is “regular, proper and feasible for this policy to proceed”.

Who knows?

Perhaps the permanent secretary knew the value for money objection could not be gainsaid and that it would not look like he was criticising the merits of the proposal.

Perhaps, perhaps, perhaps.

We do not know the realities behind the scenes.

The request for a direction is significant – but what it signifies generally is not clear.

But what we do know from this exchange of letters is that on the very eve of the publication of the proposal, the most senior official in the home office said that there was not sufficient evidence that the proposal would have any deterrent effect, and in response to this the home secretary could not provide any such evidence but wanted to go ahead with the policy anyway.

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How the Government both won and lost the Priti Patel High Court bullying case

6th December 2021

Today judgment was handed down in the case brought by the civil service union the FDA in respect of the Prime Minister’s determination that the bullying of the Home Secretary had not broken the Ministerial Code.

On the face of it, the government won the case.

And so this is what the press reported (and that is what time-poor news desks have published on their news sites):

#Breaking The FDA union has lost a High Court challenge over Prime Minister Boris Johnson’s decision to back Home Secretary Priti Patel following accusations of bullying

— PA Media (@PA) December 6, 2021

But.

There are different ways that a government can win a case like this – and a closer look at the judgment shows that in substance this is not a welcome decision for the government at all.

First, we need to know what the case was – and was not – about.

The case was not about deciding whether the Home Secretary is a bully or not – that was not what the court was being asked to determine, and the detailed evidence about bullying was not put before the court:

And, as that was not the question before the court, then the hot takes that the court has ‘cleared the Home Secretary of bullying’ are not and cannot be true.

The primary question before the court was whether it was open to the Prime Minister, given the information before him, to determine that there had not been a breach of the Ministerial Code.

The court found that, on this occasion, the determination that there had not been a breach of the Ministerial Code was one of the determinations open to the Prime Minister on the information before him.

But in reaching that conclusion the court made a number of points that were against the government – and these points may be significant in future cases.

First, the court held that the Prime Minister’s determinations of the ministerial code were, in principle, amenable to judicial review by the courts.

The government made a spirited attempt to argue that the Prime Minister’s determinations of the ministerial code were not ‘justiciable’ – that the very subject matter was a no-go area for the High Court.

The court deal with justiciability in paragraphs 25 to 43 of a 61 paragraph judgment – about a third of the decision.

The court accepted that not every determination of the Code may be judicially reviewed.

And, of course, those judicial reviews which are heard by the court may not succeed (as with this case).

But there is nothing stopping a similar case on different facts succeeding just because of the subject matter.

That the court held that, in principle, prime ministerial determinations of the Ministerial Code are amenable to judicial review is a boon for transparency and accountability.

Once the court had dismissed the government’s attack on justiciability, it turned to whether the Prime Minister had misdirected himself in applying the Code.

Here the key paragraph of the Code is:

“1.2 Ministers should be professional in all their dealings and treat all those with whom they come into contact with consideration and respect. Working relationships, including with civil servants, ministerial and parliamentary colleagues and parliamentary staff should be proper and appropriate. Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The information before the Prime Minister was an advice from Sir Alex Allan, the independent adviser on the Code.

His advice included the following:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect.

“Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally. This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time.”

Having considered this advice, the Prime Minister’s conclusion was:

“Sir Alex’s advice found that the Home Secretary had become – justifiably in many instances – frustrated by the Home Office leadership’s lack of responsiveness and the lack of support she felt in DfID three years ago.

“He also found, however, that the Home Secretary had not always treated her civil servants with the consideration and respect that would be expected, and her approach on occasion has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals.

“He went on to advise, therefore, that the Home Secretary had not consistently met the high standards expected of her under the Ministerial Code.

“The Prime Minister notes Sir Alex’s advice that many of the concerns now raised were not raised at the time and that the Home Secretary was unaware of the impact that she had.

“He is reassured that the Home Secretary is sorry for inadvertently upsetting those with whom she was working. He is also reassured that relationships, practices and culture in the Home Office are much improved.

“As the arbiter of the code, having considered Sir Alex’s advice and weighing up all the factors, the Prime Minister’s judgement is that the Ministerial code was not breached.”

The FDA’s claim was that, given Allan’s advice, this was not a conclusion that the Prime Minister could have legally made.

Here paragraph 58 of the judgment is important about the Prime Minister’s conclusions:

In other words: because the Prime Minister did not say Patel was not a bully, it must be that he either accepted Allan’s advice or did not form his own view.

Had the Prime Minister explicitly rejected Allan’s advice that it was bullying then it would have been a different legal situation.

The judgment then goes on in paragraph 59 to the other factors considered by the Prime Minister – it is not a paragraph easy to follow in one go, and may require re-reading:

The essence of the paragraph is in the sentences:

“In that context, the statement that the Prime Minister’s judgement was that the Ministerial Code was not breached is not therefore a finding that the conduct could not be described as bullying.

“Rather, it is either a statement that the Prime Minister does not consider, looking at all the factors involved, that it would be right to record that the Ministerial Code had been breached, or alternatively, that the conduct did not in all the circumstances warrant a sanction such as dismissal as it did not cause the Prime Minister to lose confidence in the minister.”

The Prime Minister can consider himself very lucky to have won this case.

Once can quite imagine a differently constituted court (or the Court of Appeal) taking a harder view against the Prime Minister

The FDA, in turn, are right to aver the following:

“The High Court has decided:

– That the prohibition on bullying, discrimination and harassment in the Ministerial Code is justiciable in the Courts.

– That the Prime Minister must correctly apply those concepts when determining complaints against ministers.

– That it is not an excuse for bullying under the Code that a minister does not intend or is not aware of the upset and distress caused by their actions.

“These findings vindicate the claim brought by the FDA and represent a clear rejection of the idea that there are different standards for ministers than for civil servants. The FDA is applying for its full costs of the claim to be paid by the government.

“In an unexpected development, the Court also found that the Prime Minister had not acquitted the Home Secretary of bullying in his decision in November 2020. The Court has held that the Prime Minister must have accepted the advice of Sir Alex Allan that the Home Secretary had engaged in bullying (or at least that he did not reach any concluded view on the matter).”

Whichever government lawyer drafted the conclusions of the Prime Minister ultimately won this case for the government.

A more clumsily worded statement would have meant that even this court would have decided in favour of the FDA.

The government won – just about.

But now there is a High Court decision holding that determinations of the Ministerial Code are justiciable and that the Prime Minister must act properly in applying the Code to particular cases.

The case was also decided on the bases that the Home Secretary was not exonerated of the allegations and that the lack of intention did not mean it was not bullying.

The FDA must be tempted to have one more heave – and to take this to the Court of Appeal (though there would be a risk that it could lose the gains it has made).

The government is in the harder appeal position – for it can hardly appeal a case which it has ‘won’ and so it is stuck (for now, unless the FDA appeals) with the finding of justiciability and other points made by the court.

So this is a good example of a case which both sides can be seen to have lost – but one in which both sides can also be seen as having won.

And the more significant victory, for transparency and accountability, is that of the FDA.

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Are President Biden’s comments on ‘the Irish Accords’ a life line for the Human Rights Act?

22nd September 2021

Yesterday United States President Biden spoke about his concern about a possible change to what he called ‘the Irish Accords’.

From the context of the question and answer, Biden meant the Good Friday/Belfast Agreement – though the question was framed in terms of the Northern Irish Protocol of the Brexit withdrawal agreement.

The question and answer are here and you should watch and listen for yourself:

Life line for our Human Rights Act, too. https://t.co/HB4ZQN8JfH

— Sonya Sceats 🧡 (@SonyaSceats) September 22, 2021

You will see in the tweet above that the estimable Sonya Sceats, the chief executive of Freedom from Torture, avers that the exchange is a life line for the Human Rights Act 1998.

Is she right?

And what is the connection between that exchange and the Human Rights Act 1998?

Here we need to see what the Good Friday/Belfast Agreement says.

In respect of the European Convention on Human Rights (ECHR), the agreement says the following:

‘There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including […] the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission [and] arrangements to provide that key decisions and legislation are proofed to ensure that they do not infringe the ECHR and any Bill of Rights for Northern Ireland’

and

‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency’.

These passages are explicit: the ECHR is a ‘safeguard’ and the ECHR has to be enforceable in the courts of Northern Ireland.

The agreement does not expressly mention the Human Rights Act 1998 – not least because that legislation had not yet been passed at the time of the agreement.

But one of the things that the act does in respect of Northern Ireland – as well as for the rest of the United Kingdom – is to make the ECHR enforceable directly in the courts.

This is instead of requiring a party seeking to rely on the ECHR to petition the European Court of Human Rights in Strasbourg, as was the position before the act took effect.

Of course: you do not – strictly – need the Human Rights Act 1998 to be in place to fulfil the express requirements of the Good Friday/Belfast Agreement, as long as the ECHR remains enforceable locally in Northern Ireland.

But if the Act were to be repealed – which is a long-term goal of the new lord chancellor and justice secretary Dominic Raab – then there would need to be replacement legislation in place the very day the repeal took effect for ECHR rights to remain directly enforceable in the courts of Northern Ireland.

So does this mean the Human Rights Act 1998 is safe?

I am not so sure.

I averred on this blog when Raab was appointed (and I am sorry to quote myself):

‘And one would not be surprised that one stipulation made by Raab in accepting the position as lord chancellor is that he get another crack at repealing the human rights act.

‘If so, then the act will probably be repealed – though there will no doubt be a less strikingly (and provocatively) entitled ‘European Convention on Human Rights (Interpretation and Incorporation of Articles) and Related Purposes Act’ in its stead – not least because the Good Friday Agreement provides that the convention has to be enforceable in Northern Ireland.’

Having seen the exchange with Biden, I am now wondering if my (dismal) view is correct.

A wise government of the United Kingdom will be anxious not to give the slightest indication that anything related to the Good Friday/Belfast Agreement was up for any change – and continuing local enforcement of the ECHR is an express provision of that agreement.

A wise government, concerned about its relations with the United States, would thereby not touch the repeal of the Human Rights Act 1998 with a barge pole.

It would just take one credible complaint that the Good Friday/Belfast Agreement was at risk, and there would be an international problem.

Repealing the Human Rights Act 1998 would not be worth these risks – especially as it would have to be replaced immediately with legislation having the identical effect in respect of Northern Ireland.

But we do not have a wise government – we have a silly government.

And given the long-term obsession of the new lord chancellor with repealing the Human Rights Act 1998 – and that this may even be a reason for why he accepted his political demotion – one can see the repeal (and its immediate replacement) still going ahead in symbolic form – even if not in much substance.

But the politics of symbolism does not just have one direction.

Against Raab’s fixation with the symbolism of repealing the Human Rights Act 1998 is the transatlantic symbolism of doing anything that could remotely affect the Good Friday/Belfast Agreement.

So it may be that Sceats’ view is correct – and the Human Rights Act 1998 is safer than before.

But, on any view, repeal seems an unwise political path to take, given how much politically – and how little legally – is at stake.

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‘Can we have two golds?’ – how the right Olympic high jump outcome was also in accordance with the rules of the sport

2nd August 2021

At a spare moment yesterday, I happened to turn on the television and I was quickly engrossed by the high jump final.

It was transfixing.

Anybody who watched the events unfold – as opposed to forming an opinion on the news afterwards – will understand how, in that dramatic moment, the resolution of the final made perfect sense.

The resolution, of course, was the shared gold medal.

Watch this video from beginning to end:

https://www.youtube.com/watch?v=fb2gMh8_gF0

The result was absolutely appropriate for that exceptional sporting moment.

But.

Was it the right thing done against the rules?

No: it was done in accordance with the express rules of the sport.

Indeed, it would seem that the rules of the very event envisaged what could happen in the circumstances, see rule 26.8 generally and rule 26.8.4 in particular of the technical rules of world athletics.

If both jumpers were equal in that neither could clear 2.39 metres (and they could not be differentiated by rules 28.1, 28.2 or 28.3) then there could be a ‘jump-off’ or ‘if the relevant athletes at any stage decide not to jump further, the tie for first place shall remain’.

And this makes sense: if the jumpers have jumped the same height but cannot jump any higher then it is reasonable for the jumpers to jointly win.

So this was not an exercise in sportsmanship in breach of the rules – and still less a cynical exercise in gamesmanship.

This was an outcome that was envisaged by the rule-setters for that particular sport, and so it was a result in full compliance with the rules.

Some have complained on social media that sharing the gold medal ‘literally defeats the object of having a sporting event’.

But this is incorrect: the technical rules of that sport ‘literally’ provide that the gold medal can be shared in these circumstances – and so the critics should have respect for the rules of the sport.

And finally: this is a blog that often criticises those who make rules (in many contexts) for not properly anticipating what can go wrong – and so it is nice and heartening to see a practical example of rule-making done well.

Thank you for reading.

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‘No – not that free speech’ – How ‘free speech!’ advocates can quickly get tied up in knots

16th July 2021

This was a remarkable tweet:

On Tuesday a contributing presenter took the knee live on air and this was an unacceptable breach of our standards.

— GB News (@GBNEWS) July 15, 2021

You really would need a heart of stone not to laugh like a drain.

It would appear GB News are in favour of ‘free speech’! – but not that free speech.

It was wrong sort of free speech.

How do those who say they are arguing from first principle get into such knots?

It is a problem in constitutional matters too.

Some of those who supported Brexit did so, they say, to ‘return power back to Westminster’.

But such Brexiters generally said nothing (or little) about a Brexit-supporting executive seeking to take power from parliament – for example in ensuring that the article 50 notification was done on the basis of a parliamentary act rather than the prime minister’s discretion.

That was the wrong sort of parliamentary supremacy.

And so on – there are many other examples.

The answer is, I think, about how people like to invoke principle in political, policy and legal matters.

Say you like [x] or are opposed to [y].

You can say ‘I like [x]!’ or ‘I oppose [y]!’.

You could, but it may not get you very far.

And so you gild the utterance: ‘[x] is good!’ and ‘[y] is bad!’.

But even that can not be enough, and so you invoke principles.

And you end up saying that liking or disliking [x or y] is matter of ‘free speech!’.

So, take for example that a person may dislike a certain minority [z] and would like to say so.

They could say: ‘I dislike [z]’ – but they not want to say this, at least aloud in polite company

Or: ‘[z] are bad people’ – though again they may be deterred.

And so they resort to ‘disliking [z] is quite frankly a matter for an individual quite frankly, and quite frankly people should have the right to say so, quite frankly, as it is free speech.’

Here, the resort to principle to being used to frame a proposition that the person making the utterance would not want to say in a more direct form.

But.

The problem is that the person making the utterance is invoking principle as a matter of rhetorical convenience.

And this is an error.

For the principle of free speech is, well, a principle.

And as a principle it has application generally, if not absolutely.

And so it applies to utterances with which you will strongly disagree.

This is why those who (say they) believe in free speech as a matter of general or even absolute principle end up so quickly in knots.

How those who want to parade their anti-woke offensiveness are (genuinely) horrified by the taking of the knee, or a white poppy, or inclusive language employed by a third party.

It is because their resort to principle is a cynical rhetorical device.

Their only interest in ‘free speech!’ is that it allows them to make utterances that, for whatever reason, they do not wish to make in more direct ways.

They do not want to say that they like [abhorrent sentiment] or that [abhorrent sentiment] is good.

They instead just want to say it and get away with it, but without any implications.

Last week I even had a tweeter telling me that the England footballers expressing political opinions should not be selected for their clubs or country – and when I looked at their bio, it said ‘supporter of free speech’.

This, of course, is not just a problem with those with which you disagree.

Anyone engaged in policy or legal or political discussion can make the same mistake.

And this is because we all seek to gild our utterances, as it is a natural temptation to big up one’s opinions.

The best guard is to only use first principles in circumstances where you know that you would also invoke the same principle when it was something applied to something with which you dislike, or even oppose.

The resort to principle – rightly – can have considerable purchase power in a discussion, but that power also can be devalued quickly.

And in particular: the principle of free speech has no real purchase if it is only to gild sentiments to which you do not object.

Thank you for reading.

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