Category: United Kingdom Law and Policy

From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

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What is a “constitutional crisis”?

There has certainly been a great deal of constitutional drama in recent years – in the United Kingdom, the United States, and elsewhere.

But some of this drama somehow resolved itself.

In the United Kingdom, for example, the breathless threats and press briefings that the government was to do unlawful things in respect of Brexit in the end came to very little, though some (impotent) legislation was passed.

The United Kingdom supreme court in the Miller cases and parliament, by means of the Benn Act, put the government back into its constitutional box – and the once intense political-media frenzy over the Northern Irish protocol came to a whimpering end with the Windsor framework.

But sometimes constitutional dramas do spill into constitutional crises – political tensions harden into political contradictions, and these in turn can result in bloody violence.

On the islands of Britain and Ireland this has happened at least four times since the 1620s: the civil wars and political violence of the 1630s and the 1640s; the succession and religious conflicts from 1685 to 1746; the Irish war of independence and the Irish civil war; and most recently, the Troubles.

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The execution of Charles I

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Constitutional crises are serious political conflicts where constitutional means are unable to resolve the conflict, and the ultimate outcome of the conflict then becomes uncertain.

Often the political actors involved in the crisis will resort to violence – or be prepared to do so.

At such times it may not matter that a constitution is codified or not. For what has failed is not the form of the constitution, but its substance. The real failure is that of constitutionalism.

What then is constitutionalism? It has many definitions, but one approach is to regard it as the acceptance that there political rules and principles that should apply, regardless of partisan or personal advantage.

In other words that there are rules of the game.

What has happened in the United States over the last few days looks like a determined and comprehensive attack on various political institutions, by and on behalf of the newly re-elected President Trump.

As there are well-grounded fears that neither the federal judicial benches nor Congress will check and balance this attack, then there are the makings of a genuine constitutional crisis.

And the ultimate cause of this is not so much the failure of their codified constitution, but a deeper and wider failure of constitutionalism – including but not limited to the licence given by the United States supreme court to the president to do unlawful acts, and the failure of the Senate to discharge its constitutional obligation to convict Trump on impeachment after the attempted insurrection of 2021.

From such things, other things have now followed.

Brace, brace.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Solving the puzzle of why the case of Prince Harry and Lord Watson against News Group Newspapers came to its sudden end

25th January 2025
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A third and final post about the ‘Lettuce before Action’ of Elizabeth Truss

18th January 2025

The final piece of evidence which shows, on balance, that it was not intended as a serious legal letter

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So far this blog (here and here) has provided an immediate close reading of the libel letter sent by the former Prime Minister to the current Prime Minister, and yesterday it set out a more considered approach.

But there is one further thing which perhaps should be noted about the letter.

Let us look again at the first and final pages (which for reasons given in the previous points, I have taken out the letterhead of the law firm, though there is a reference to it on the the final page, which was unavoidable if I were to show the letter did not have a “wet ink” signature).

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There is something else missing, apart from the “wet ink” signature.

It is something which would normally be at the top of the first page, or maybe sometimes at the bottom of the last page.

The letter circulated to the media does not include any of the usual “furniture” of a legal letter: a reference number, the identity of the lawyer sending it, the email address for the recipient to respond to, and so on.

As this was a letter which explicitly was sent by email, then an email address for a response would be normal.

And given the law firm sending the letter lists three postal addresses for three offices, there would be a need at least for a file reference number or other identifying paraphernalia.

But there is nothing.

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Taken together with the evidence already detailed in the previous posts that this is a weak litigation letter, then this suggests one of the following scenarios:

1. the version of the letter sent did not have a “wet ink” signature, no reference number and no identifying information as to the lawyer and office which sent it;

2. the version circulated to the press was an unsigned “client copy” of the version of the letter sent, and the letter which was sent did have a reference number and identifying information as to the lawyer and office, and either Truss or someone in her circle leaked their “client copy” version of the letter;

3. the version sent and circulated to the press was not “leaked”, but was instead deliberately crafted and intended as a publicity version for release to the media, and so care was taken that this publicity version removed any identifying details.

Normally(!) the first option would the least likely, because it would odd indeed for a multi-office law firm (as opposed, say, to a High Street one-person firm) to have no identifying information whatsoever on a litigation letter for any reply to be directed to the right person.

Yet if it is the third option, then this would mean that the letter was never intended by Truss to be taken seriously by the recipient: it was always and entirely a media-political exercise.

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On balance, taking together both the muddled content (and lack of content) of the letter and the accumulation of telling details, this letter was never intended to be a credible litigation letter, it was always an exercise in publicity.

Your response to this may be (and perhaps should be) “duh, no surprise there, Sherlock” – but it is one thing to assert that a letter has no credible legal purpose, and another to demonstrate it could have no credible legal purpose, and to demonstrate on balance that it could have no credible legal purpose is what this short series of posts set out to do.

And, if so, it is an unwelcome development that lawyers’ letters are being. used for such a media-political purpose.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

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Why the Truss “lettuce before action” is worse than you thought – and it has a worrying implication for free speech

17th January 2025

Before we start, the “lettuce before action” (for “letter before action”) line has been taken from the estimable Paul Magrath, whose weekly legal email is a must-read.

I really wish I had thought of the line for last week’s post.

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The post last week provided a quick close reading of the gloriously bad libel letter sent on behalf of the former Prime Minister Elizabeth Truss to the current Prime Minister Keir Starmer.

That post was done at speed: I wanted to respond to what the letter actually said, before I was aware of what others said it said. This is always the best way of engaging any formal document: work out what you can from reading the text yourself, before seeing what others tell you the text says.

This approach has its advantages – and also its disadvantages, not least that one can miss things others will see.

There was also the problem I did not then have access to the second page – though it was fun to speculate what could be on that second page.

This is now a more considered post, adding to the points made in the first post (which I think stands quite well), with the bonus of what seems to be the second page.

And for the reasons set out below, there is a worrying implication in the letter in respect of free expression. This is perhaps odd coming from a politician who often emphasises her free speech credentials.

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First, here is the full letter with what appears to be the second page (which has been taken with thanks from here):

 

 

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The second page, which I speculated must have contained all what was missing from the other pages, in fact adds nothing substantial to the letter.

Here it is again:

But, for completeness, the second page tells us that the words complained of were not said in parliament and so there is no issue of the absolute privilege for what is said in parliament (paragraph [7] and the footnotes to paragraph [4]).

And Paragraph [9] somehow manages to weaken what is already a very weak letter.

We already knew that this was a “cease-and-desist” letter that somehow did not set out what would happen if the recipient did not cease and desist. Paragraph [9] now sets out the sender is not even demanding a legal remedy at all.

In litigation terms, paragraph [9] should have instead been in an accompanying “without prejudice” proposing an offer for a compromised outcome. But for some reason it was included in, and thereby undermines, the “open” letter that would be placed before the court when the matter came to trial. It is a strange inclusion in such a letter.

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As set out last week, this libel threat is poor.

It is perhaps the weakest libel threat ever sent by an English law firm.

That said, it is in my view just about within the scope that a law firm could properly send, given very precise instructions.

But those very precise instruction would have to be to the effect of “send the weakest litigation letter you can”.

And so for that reason, I am not making a point of mentioning the law firm.

We should not visit the sins of a client upon a lawyer, and Truss – like you and me – is entitled to legal representation.

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Now are some further, more considered observations on the letter.

Notice the bulk of the letter is concerned with the appended expert’s report, including – impressively – a paragraph [16] with seven(!) sub-paragraphs.

This bulk makes the letter rather lop-sided.

The “legal” bits of the letter are nowhere near as detailed as the “economic” bits.

The impression this gives is that the origin of the letter was probably this report, which was then given to lawyers with the instruction of somehow building a legal letter on top of it.

The letter was thereby likely to be a device for promoting the content of the report, which it certainly did.

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And this then probably explains the existence of this letter.

As was set out last week, it is an utter failure as a libel threat.

Although – with a squint – one can see that it just about meets the requirements of a legal letter, it is plain that was not its purpose.

(And perhaps one error last week was for this blog to treat it earnestly, on its own terms, as a legal letter.)

It is not a serious legal document, but a political and media document.

And contrary to the “Private and Confidential” marking on its front page, it would appear that the intention of the client (if not of the law firm, who would have no control of the matter) was for it to be leaked and published.

That this is the case is further evidenced by the circulated version being unsigned.

For while some legal letters are not signed, and there is no strict requirement for an “ink” signature as such, it is also often the case that the client copies of correspondence are also not signed, just the letter which is actually sent.

It would seem that the letter must have been leaked either by the client or someone in her circle.

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As regards the expert report, a number of commenters have focused on the identity of the expert.

But it does not matter if the economist’s report on which the letter was relying was by John Maynard Keynes or Adam Smith.

It made no sense to rely on an expert’s report in respect of facts which the same letter also said were “clear”.

That is not what expert reports are for in civil litigation.

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And now we come to the possible implication of the letter for free expression.

Reading the letter as a whole, including the now non-missing page two, the threat made against the Prime Minister could be made by her against any person at all who said the words complained of.

There is nothing in the letter which would limit the alleged liability to the Prime Minister for saying those words.

Generally libel is blind to the identity and motives of the person who “publishes” the words – in this case says words reported in the media.

The framing of the letter is such that any person who published the words complained of would be liable to Truss for general damages.

The letter is addressed to Starmer, but it describes a claim Truss could also make against world.

Fortunately this letter is so hopeless that nobody will end up with legal liability.

But the premise of the letter is an extraordinary widening of legal liability for political speech, catching many political speech-acts on social media and other published media which most be people would assume was part of their everyday free speech in criticising Truss for what she did with the economy.

Given that the sender often promotes her belief in free speech, this is perhaps further evidence that the content of this letter was not really thought-through by Truss, beyond being the means of widely circulating a certain favourable (but probably legally inadmissible) report.

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The Prime Minister gave what must be the most appropriate response to this letter in PMQs on Wednesday.

“I got a letter this week from a Tory voter in a Labour seat.

“I hope that they do not mind me saying who it was—it was Liz Truss.

“It was not written in green ink, but it might as well have been.

“She was complaining that saying she had crashed the economy was damaging her reputation.

“It was actually crashing the economy that damaged her reputation.”

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There has been no announcement of any formal reply by Starmer to the letter, which is not surprising given the letter did not ask for a reply, still less (remarkably for a supposed cease-and-desist letter) demand any undertakings, and the letter also did not include any deadline.

Truss, however, seems to want to have the last word.

On X (previously Twitter) she responded to the Prime Minister’s jibe:

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Here, if Truss sincerely thinks accusing someone of crashing the economy is defamatory (subject to any defences), then she is with her “closer to home” comments herself defaming someone else in turn.

But at least she put “cease and desist” letter in ironic quotes.

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Politicians and others (and their lawyers) should always be careful in using any litigation documents – from letters before action to third party submissions – for the purposes of publicity.

Judges certainly do not like it.

And if done badly, you also end up looking very silly.

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At Substack, last week’s post on Truss has now overtaken the post on Taylor Swift to become the second most popular post ever published on that blog.

And this is fitting in a way.

For an alternative title for this post could have been: “Litigation (Liz Truss’s Version)”.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

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

13th January 2025

Some things from last week you may have missed.

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The weekly constitutional

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

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

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

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

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

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

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‘Lettuce before Action’

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

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

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

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

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

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Back in the salmon pink

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

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

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

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

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

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

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

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

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

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

The sensation of this happening is not altogether pleasant.

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

Essentially the argument offered by the piece was:

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

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

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

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

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

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

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

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

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A close look at Truss’s legal threat to Starmer – a glorious but seemingly hopeless cease-and-desist letter

9th January 2025

A blow against the “alternative remedies” excuse: the UK Supreme Court makes it far harder for regulators to avoid performing their public law duties

22nd October 2024

Not all cases of constitutional import involve the high drama of cheering campaigners and disappointed ministers – or of cheering ministers and disappointed campaigners.

But the cases set out what is constitutionally proper and improper all the same.

Last Wednesday to relative media silence (other than in local media) the Supreme Court handed down its decision in a Northern Ireland case about appropriate legal action for a complainant to take so as to prevent harmful chemical gases and noxious smells escaping from a waste disposal site.

This is perhaps not the most glamorous set of facts for any legal case – and this is perhaps a pity, as the Supreme Court decision asserts a point of fundamental constitutional importance: about the ability of a person to access the courts for judicially reviewing public bodies not doing their regulatory job.

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By way of background, there is an excuse which is deployed again and again by public bodies seeking to escape being taken to court for judicial review.

(In general terms, judicial review is the process by which a court will decide whether a public authority is correctly exercising its legal powers.)

The excuse is that the complainant has to “exhaust other remedies” as judicial review “is the remedy of last resort”.

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In this case, the complainant Mrs McAleenon was told that she could not go to court to get public bodies to properly regulate what was going on at a waste disposal site.

On the face of it, the local council and the Northern Irish Environment Agency and the Northern Ireland department of Agriculture, Environment and Rural Affairs all had powers to do something about it:

But the complainant (and other local people) believed that these public bodies were not doing what they should be doing about the problem.

And it was a problem – this was certainly not a trivial issue:

One would think that this was a straightforward position: some local people had a problem, and there were public bodies who could and should do something about problem.

This would seem to be as basic a situation for modern public law and administration as one can conceive.

The public authority regulator should do its regulatory job.

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But for Mrs McAleenon and her neighbours it was not a straightforward position.

When she threatened to take the public bodies to court so as to make them perform their public duties, she was told that she could not do this.

Instead, she was told that she had to do other, far more risky and expensive legal things first.

She was told by the public bodies, seriously, that judicial review should be not be available because she had “adequate alternative remedies”, in that she could herself launch a private prosecution against the owner of the waste disposal site, or could bring nuisance claim against the owner of the site.

Mrs McAleenon applied for judicial review anyway, and at first instance the court sided with her.

But then the public bodies appealed and the Northern Irish court of appeal went against her in a detailed judgment.

The appeal judges ruled that “there were two alternative remedies open to the appellant to provide her with the relief she required if her claims are correct, namely cessation of the alleged nuisance on the Site.  Each of these remedies, we find, offered her the opportunity of obtaining relief against the alleged wrongdoer”.

She should not be able to go to court against the regulator, the judges said, because her real complaint was against the site.

Mrs McAleenon applied to appeal to the Supreme Court, and she was given permission.

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One issue in the case was that there were disputes over facts and contested evidence – and judicial reviews usually do not deal with factual disputes and contested evidence. Judicial reviews are normally about pure issues of law in respect of agreed facts. As such, cross-examination of witnesses and competing expert reports and so on are rare in judicial reviews.

This looks as if it may have influenced the appeal judges – as other legal procedures were more used to assessing evidence at trial.

But it is entirely open to a judicial review court to deal with factual and evidential conflicts.

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The Supreme Court took the view that judicial review should not be refused just because there were factual and evidential conflicts.

But the Supreme Court went far further than this, and said – in effect – that for Mrs McAleenon the availability of criminal and private law procedures were not even alternative remedies in the first place.

In essence, when the complaint is against a public body as a regulator, it is irrelevant that the complainant may also have a remedy against a party that is not being properly regulated.

In two key paragraphs, the Supreme Court set out the public importance – and public benefits – of the complainants having access to judicial review against regulators:

The Supreme Court also made the point that access to an Ombudsman may not also be an adequate alternative legal remedy:

This dicta should please those who (correctly) are concerned about the general ineffectiveness of the Ombudsman system.

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The Supreme Court remitted the case back to the Northern Irish court of appeal for it to be properly decided.

This is the press release from the successful appeal solicitors Phoenix Law, who should be congratulated for a great piece of appellate work on a crucial if unglamorous issue:

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This case may have significant implications across regulatory law, both in respect of environmental issues and otherwise.

The decision strengthens the “public” element of public regulation.

Regulated entities already often have rights of appeal as well as access to judicial review. (And many regulated entities often seem to have “captured” their regulator and have established cosy relationships.)

But members of the public who are unhappy with how the regulator is performing its public duties are now in a stronger position.

No longer can such complainants be palmed-off and-waved away by the regulator with the message that they should just directly sue – or prosecute – the regulated entity bothering them.

No longer can they just be told that they should – at great expense and risk – first exhaust “alternative remedies” and not bother the regulator.

Complainants now have Supreme Court authority for being able to go to court to get regulating public authorities to do their jobs properly.

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There is a great deal of discussion about whether the Supreme Court of the United Kingdom is small-c conservative or not.

But this case, perhaps together with the 2021 Majera case, show that when it comes to the province of judicial power, the Supreme Court will firmly assert and defend the proper role of the courts in our political system.

For not all cases of constitutional importance, limiting what the executive in its various forms can get away with doing and not doing, are glamorous actions about high politics.

Sometimes they are about other, more mundane noxious things.

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Direct links (as Bailii links can be problematic on some apps):

Supreme Court decision: https://www.bailii.org/uk/cases/UKSC/2024/31.html

Northern Irish Court of Appeal decision:

https://www.bailii.org/nie/cases/NICA/2023/15.html

2021 Majera decision:

https://www.bailii.org/uk/cases/UKSC/2021/46.html

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

What explains the timing and manner of the Chagos Islands sovereignty deal?

20th October 2024

Towards resolving a puzzle about how and when the decision was announced

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Perhaps the best place to start for a blogpost or any other writing is a sense of puzzlement. A thing does not immediately make sense, and so you find out more and try to work it out.

The news about the Chagos Islands provided such a puzzle.

Why did the United Kingdom this month decide – if that is the correct word – to transfer sovereignty of the Chagos Islands to Mauritius?

Over at Prospect is an attempt at answering this question. Please click here and read the post.

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That this has been a long-lasting dispute is not, by itself, a reason for it to be resolved. Disputes can last a very long time and may never be resolved.

And that the United Kingdom was on the backfoot both legally and diplomatically also, by itself, did not explain the move.

The United Kingdom – if it was able – would have carried on playing for time.

So what happened?

Well it looks like the matter was taken out of the hands of the United Kingdom – even though it is nominally the sovereign power.

The explanation which best fitted the available evidence was that the United States and Mauritius did a deal and then told the United Kingdom that it had to be announced.

What prompted this explanation was something said in the House of Commons debate by the Speaker – which seemed more significant than anything said by minister or backbenchers (emphasis added):

This indicated that this excuse had been given to him by the Foreign Office – either by the minister himself or by a civil servant.

And although, of course, there are upcoming presidential and congressional elections in the United States, there happened to be a general election coming up in Mauritius.

Taking this evidence along with the (very) warm, detailed statement from the United States indicated that both Mauritius and the Unites States were well prepared for this news, even if the United Kingdom was not:

The lack of preparatory media briefing (and leaking) by the United Kingdom government also then made sense. Usually there would be attempts to frame such upcoming news, especially if it looked bad for the United Kingdom.

And because the United States were (so) happy with the news, this rather took the wind out of the sails of those who have been warning that transferring sovereignty would be against American interests or undermine the strategically important base on Diego Garcia.

Warnings such as this one from Johnson in 2023:

An article which, if you read carefully, shows that the former foreign secretary (and prime minister) had an inkling that such a direct deal was in the offing (emphasis added):

The problem is that the highlighted admission rather undermines the alarmism of the article’s title. The Americans were relaxed about a direct deal as long as they retained a long lease for their base.

And it seems the Johnson article correctly describes that the Mauritians and the Americans indeed cut out the “middleman” – and that is the role to which the United Kingdom was reduced, even though we were (nominally) the sovereign power.

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A look at the relevant public domain materials also shows how weak the United Kingdom’s position was becoming.

A little-known 2015 arbitration ruling was devastating in its detail:

(Legal geeks may appreciate how that tribunal deals with estoppel in paragraphs 434 to 448.)

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It was also striking how support for the United Kingdom fell away once the International Court of Justice delivered its 2019 “advisory” opinion.

In 2017, the United Kingdom had a plausible-sounding nod-along objection to the court taking on this case.

But once the court handed down its opinion, it seemed that plausible objection fell away. Support vanished.

Even most commonwealth members, as well as other former colonial powers and/or European Union member states, could not bring themselves to vote with the United Kingdom.

The United Kingdom had been shown to the UN assembly to be in breach of its general decolonisation obligations: and so this was not just another bilateral territorial dispute.

And so the United Kingdom’s position was legally and diplomatically weak: so weak that, at a time of the choosing of Mauritius and the United States, a supposedly sovereign power had to announce during recess it was ceding sovereignty.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Happy birthday, Supreme Court: the fifteenth anniversary of the United Kingdom’s highest court

1st October 2024

In the main courtroom of the Supreme Court there are the benches – really desks – where the Supreme Court judges sit, and at each place there is a microphone for each justice, with a button they can press when they want to speak.

But at the head of the bench, at the centrally placed desk, there are two buttons: one for the presiding justice to press when they want to speak, and one (I am told) which they can press to turn off all the other microphones in the courtroom – justices and advocates alike.

If you ever want to think about true judicial power, think of that second button.

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I know this because I have had the privilege of judging moots in that seat and in that courtroom. It is a splendid space, adapted from the old (indeed, olde) magistrates’ court, and still with some of the old (olde) furnishings, with an imposing portrait of that famous eighteenth-century magistrate John Fielding. But it is also up-to-date, with discreet working electronic paraphernalia and – again showing true judicial power – working radiators.

You couldn’t want a more “common law since time immemorial” feel to a modern courtroom if you tried. The only fault is the garish carpet, which must be the worst-looking carpet in England, and perhaps even the worst in the world.

There are courtrooms over at the Royal Courts of Justice that are superficially more imposing – but they are really museum pieces, without working radiators and often without any working electronic paraphernalia.

Anybody with experience of the variety of English courtrooms, up and down the country, cannot but think that it would be a good thing if more courtrooms were up to the standard of those in the Supreme Court. It is a great space, but it is not a representative one.

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When the Supreme Court was established fifteen years ago, it was a sensible decision to house it in a new building, and the choice of the old (olde) Middlesex Guildhall on the side of Parliament Square was inspired – historically, architecturally, and geographically.

From an Anglocentric perspective, it is as if the four elements of the ancient English state are on the four sides of the same public square: the Palace of Westminster (parliament), Whitehall (executive), Westminster Abbey (the established church), and now the Supreme Court.

Before then, the highest court was housed in a corridor somewhere in the Palace of Westminster, and was in form as well as in location the judicial committee of the House of Lords.

The notion was that the appeals that went to the House of Lords were heard by the judicial committee of that house. The committee could – and indeed was until the days of the Blair premiership – attended by the Lord Chancellor, a cabinet minister who was also entitled to sit in a judicial capacity.

As a system it sort-of-worked, even though it was conceptually untidy.

And so when the Blair government proposed a new supreme court to replace the judicial committee the opportunity was taken to assert the independence of the court with a new building. It also had its own budget and even it own website url (and not any gov.uk url). It even had its own remarkably impressive law library. And it is a lot easier to visit than the old judicial committee.

In terms of symbolism there could not have been a more emphatic (and welcome) break with the muddle-through of the old House of Lords regime.

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But.

Changes of form are not always changes of substance.

In many ways the new Supreme Court does much the same work as the old House of Lords committee – with a high proportion of impossibly dull complex tax cases.

And it is often the same sort of judges – and at one point recently the twelve-judge court had four Davids. (And Davids really do not need such disproportionate representation.)

Yet there are a couple of interesting changes.

First, the court is taking its role seriously as a constitutional court. This is in part because part of the constitutional reforms fifteen years ago was that it would hear certain devolution-related applications in addition to its main workload. It is also because circumstances meant that it had to deal with controversial constitutional cases, such as the two Miller cases.

But it has not got carried away – as a sequence of cases shows the court has firmly refused to extend its role in respect of policy decisions. The court will not duck the big constitutional cases – but it certainly will not decide them in a way that would always please activist liberals.

And second, the court has done as much as it can to make its hearings and judgments accessible ot the public. Its website has a great deal of detail on each upcoming case – sometimes even including documents such as skeleton arguments, video footage is made available of hearings, and the judgments are handed down with useful summaries.

Over time, as generations of law students (and interested lay people) come and go, this accessibility will be a gradual boon to the public understanding of law. The effect will not be dramatic and immediate. But having ready access to such materials can only have a positive effect.

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The court is not perfect – and there still needs to be fundamental reform of the parallel judicial committee of the Privy Council which also sits in the same building with the same judges.

But fifteen years on, it deserves a couple of cheers from those who take the separation of powers and judicial independence seriously.

And perhaps the court could mark the anniversary by, say, treating itself to a brand new carpet.

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Political accountability vs policy accountability: how our system of politics and government is geared to avoid or evade accountability for policy

24 September 2024

Over at Bluesky, the German writer and historian Helene von Bismarck, an acute observer of British politics, posted this interesting question:

“One question I have been asking myself for many years about UK politics: Why does it – regardless of who is in government – appear to be this hard to solve problems & get things done? Schools, the NHS, defence procurement, etc. Lack of money, you (probably) say. But surely this isn’t all of it?”

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One answer, of course, is that there is a lack of accountability.

On the face of it, however, there is a great deal. of accountability in the politics of the United Kingdom.

There are general elections, where the government of the day can fail to obtain a majority – as in 1997, 2010, 2017 and 2024 – as well as by-elections and regional and local elections which often (are said to) give governments a ‘bloody nose’ (or something).

And between general elections, Prime Ministers can come and go – as in 1990, 2007, 2016, 2019, and 2022 (twice).

And then, at the levels below Prime Minister, ministers come and go, often with undue frequency.

We also have the theatres of Prime Ministers Questions and the various political shows on television and the radio (and increasingly with podcasts), and we have a well-connected and ambitious lobby of Westminster journalists.

And so, superficially at least, we have a near-constant buzz of accountability – almost all day, every day.

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But.

If the word “accountability” is taken to mean (as it should be) that the accountable person can be required to give an account of what they are doing, then things look rather different.

For in the United Kingdom we have a great deal of political accountability, we have far less policy accountability.

And by policy, it is meant the formulation, implementation and administration of things by government.

The theatres of political debate and discussion do not often go to the substance of policy – and often policy only seems relevant to the extent that it offers a ready “gotcha” against a hapless or hopeless minister.

The lobby system of journalism – and there are some outstanding lobby journalists – necessarily requires a focus on the politics of Westminster, rather than on what is happening in Whitehall – and still less on what is happening outside SW1.

The doctrine of individual ministerial accountability provides a mutually beneficial pact where a minister can (plausibly) say that they were not aware of something while officials escape routine accountability for what they do.

Parliamentary questions are easily evaded either in written or oral form, with no sanction for tardiness or non-compliance.

And as for Freedom of Information, the departmental section 17 letters refusing disclosure are perhaps the most dismal and insincere – if not outright dishonest – official documents in the history of our domestic bureaucracy.

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One illustration of how weak policy accountability is in the United Kingdom are the now (all too frequent) public inquiries.

These inquiries – sometimes long after the events being investigated – often do little more than what could have been done at the time, if the organs of the state had had the necessary powers and the requisite will.

To take one glaring example: the Covid inquiry is forcing politicians and officials to give an account – ie provide accountability – about everyday decision- and policy-making during the pandemic.

This should have been done in and by parliament at the time.

Many revelations that come out of that and other inquiries is an indication of the weakness of our traditional forms of accountability.

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Why is all this so?

Part of the reason is legal(istic) – inquiries have formal legal powers which are not generally available to (say) parliamentary committees and still less available to journalists.

But the main reason is there is no real incentive for government and parliament and officials and the media to have it any other way: no careers will be benefited, there is no electoral advantage, there are no extra viewers or listeners, and there no more newspapers sold (or fewer copies left unsold).

And the primary reason for this lack of incentive is, well, us.

If voters (and viewers and readers) wanted more real-time policy accountability then there would be career, commercial and/or electoral advantages in there being more policy accountability.

But that would mean us taking policy seriously, which is dull and complicated.

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There are, however, grounds for some optimism.

Parliamentary select committees – especially in their online manifestations – are becoming increasingly impressive in what evidence is made publicly available in their ongoing inquiries.

The House of Commons library also make their outstanding briefings available to the public as well as to parliamentarians.

The decline in specialist journalists is – though only to a limited extent – being offset by specialist commentators – on Substack or elsewhere.

But, even taking all these positive points at their highest, there is generally little or no incentive for there to be real accountability, as opposed to superficial (and theatrical) accountability.

And so the massive policy problems identified by von Bismarck in her post do not have ready solutions – though, no doubt, there will one day be a scathing public inquiry about each of them.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.