Category: United Kingdom Law and Policy

Thinking about a revolution

5th March 2025

Some things are changing rather fundamentally and the way we think should perhaps change too

*

There is that scene in Monty Python’s Quest for the Holy Grail where an armed knight crashes and easily wastes a wedding party.

 

And of course, this armed knight is able to cause so much damage at a wedding party – nobody would expect this to happen and so nobody would think to to stop him.

He shows that it is really not very difficult to move fast and break things.

The surviving gate guard outside just looks on bemused at this, and he says, “hey”.

This is pretty much what many are also doing as they watch what is happening in the United States.

They see what is happening, and their response is also a bemused “hey”.

*

Students on university history courses often study historiography – the study of historians and how they write about history.

Sometimes this study of historiography includes a look at how different historians have used certain words and concepts, such as ‘revolution’.

And those students then find that such words and concepts have been used at different times and in different ways.

So, for example, students looking at ‘revolution’ may come across the so-called ‘diplomatic revolution’ of 1756.

In early 2025 we seem to be having a similar ‘diplomatic revolution’ – in real time, and this feels odd as in the United Kingdom we have not really had one for a long while.

When I mentioned this on social media, this was one insightful response:

The United States’ current deliberate alienation (and worse) of its long-term allies is a similarly fundamental – and, no doubt, similarly consequential – shift.

And although one should hesitate before saying anything as pointed as describing president Trump and Vice-President as Russian assets, their conduct is indistinguishable from them being so.

Everything they are doing appears to increase Russian power and to limit United States power.

There seems to be no other explanatory model that explains as much.

*

This is not to say that they are necessarily actively corrupt: one is reminded of an old joke-poem about Fleet Street journalism:

You cannot hope
to bribe or twist,
thank God! the
British journalist.

But, seeing what
the man will do
unbribed, there’s
no occasion to.

In addition to any actual corruption, there seems to be also an ideological commitment to promote and protect Russia at the expense of everyone else.

Perhaps the ghost of Stalin is now kicking itself – had he only described his regime as Russian nationalist as opposed to communist, he may not have been bothered by American cold war policy and 1950s McCarthyism and so on.

*

One thing about a (genuine) revolution, like a (genuine) crisis, is that they are unpredictable in their course and in their outcome.

And another thing about a (genuine) revolution is that it often requires there to be new concepts and new words, so as to describe things which are new.

Imagine living through the French Revolution without the benefit of hindsight: from the storming of the Bastille and the ending of the monarchy to the Terror, and from the Terror to the rise of Bonapartism, and from Bonapartism to a massive war and imperial conquest, and from a massive war and imperial conquest to a total defeat and the restoration of the monarchy.

And at each stage, nobody knowing what will happen and everything always confused and foggy and (frankly) terrifying.

Events unfold into things which were not only unexpected but also unprecedented.

Decades later, of course, the frenzy settles down to calm historical narratives.

But at the time, things did not seem like that.

As somebody once said of “realistic” war films, the only realistic war film would have bullets spraying out randomly from the cinema screen.

The same can be said about reading about social and political upheavals.

*

Revolutions are thereby not often fun – despite (or because of) the enthusiasm of self-appointed revolutionaries.

Wise conservative once knew this. There is a good case that modern conservatism (at least in Europe) came out from the reaction to the French Revolution – with its philosophy articulated by Edmund Burke and its statecraft practiced by Metternich.

Constitutional arrangements and the international order were regarded as fragile things – to be, well, conserved.

(Hence, conservatism.)

Yes, one could (to be anarchistic) move fast and break things. But that was neither clever nor wise. One can imagine the looks at the faces of Burke and Metternich and others at the antics of Elon Musk and DOGE

And the reason and the motive to oppose liberals, progressives and radicals was for Burke and Metternich that in their demands for reform and progress the liberals, progressives and radicals risked the fragility of constitutional arrangements and the international order.

*

One of the most remarkable features of current “conservatism” is that that it turns this conservatism of Burke and Metternich on its head.

It is almost as if the word and concept of conservatism has had its own revolution, and it has now become the very thing it once opposed.

The only common quality is that both old-style and new conservatism grasp the fragility of constitutional arrangements and the international order.

But instead of the caution of old-style conservatives, the new conservatives see that very fragility as an opportunity to trash and do damage.

*

And so all sorts of things are now being unleashed.

Here are a couple of literary examples of horrors being unleashed in their giddy destructive excitement.

*

In the words of Yeats:

“Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.”

*

Or in the words of C. S. Lewis:

“But such people! […] bull-headed men; spirits of evil trees and poisonous plants; and other creatures whom I won’t describe because if I did the grown-ups would probably not let you read this book—Cruels and Hags and Incubuses, Wraiths, Horrors, Efreets, Sprites, Orknies, Wooses, and Ettins. In fact here were all those who were on the Witch’s side […]”

*

Alas, unlike the original literary texts from which those quotes are extracted, we are perhaps unlikely to be saved by a second coming, or even a first one.

*

What has been done in the last few weeks by Trump and his cronies cannot – at least on a conceptual level – be undone.

They have shown just how fragile are their constitutional arrangements and the international order.

That cannot be un-invented.

Other countries would now be prudent to regulate their affairs so as to minimise or eliminate their dependency on the United States – it is no longer a question of waiting out until the next United States elections.

And other political systems would be wise to limit what can be done within their own constitutions by executive order, and to strengthen the roles of the legislature and the judiciary (and also of internal independent legal advice within government).

What is happening in the United States can happen elsewhere.

It can happen here.

*

Any political culture has a stockpile of political anecdotes, precedents and other antecedents, examples and illustrations, fables and proverbs.

“Peel did this” and “Roosevelt did that” and “This is just like the 1930s”.

There is nothing wrong with this – indeed it is an inevitable part of any political culture, essentially it is a shared set of memes and gifs that help us make sense of what is going on around us.

The problem is that old categories and concepts often do not match the novelty of what is now unfolding.

We many need to think about things in a new way – so as to work out to defeat what is unwelcome.

We may need to have a revolution in our own minds.

And not just go “hey” instead.

*

(And to my history tutors from the early 1990s, I am really sorry this historiography essay is thirty-five years too late.)

***

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.

The fog of lawlessness: what we can see – and what we cannot see – in the current confusions in the United States

25th February 2025
*

“l’histoire […] [est] après tout qu’un ramas de tracasseries qu’on fait aux morts.”

[“History […] [is] an annoying trick we play upon the dead.”]

~ Voltaire

(See here regarding the translation.)

*

A war or a revolution or a riot often makes little sense to contemporaries. There is a metaphorical fog, and there is confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

It is only in the later clear prose of a good historian, or the elegant prose of a confident judge, that the events seem to take some form of order: that what was messy and complex becomes a neat linear narrative, with reasoned conclusions based on tested evidence.

But it is not like that for those at the time.

*

What is actually happening currently in the United States is unclear.

There is a metaphorical fog, and there is actual confusion. Information is incomplete or unreliable. There is anxiety and excitement. Nobody really knows what is going on.

Not even those instigating the chaos know what is going on: they are too busy moving fast and breaking (and taking) things.

They may have some vague ideas about what they will do next, but one suspects what they will do next will come down to opportunism and cunning more than anything more concrete.

*

But in this fog there are certain things which can be made out.

For example, there are individuals who are insisting on being constitutionalist – despite the intense pressure and open threats to be otherwise.

There are the federal prosecutors who refused to apply for the prosecution of a politician to be dismissed:

There is the federal judge who appointed an independent lawyer to assist the court when nobbled prosecutors were found to apply for that dismissal:

There is the governor who said “see you in court” in the face of a president announcing that they were the federal law:

*

“See you in court” is a phrase that conveys the essence of the rule of law: that there is a forum where assertions of power can be tested for their legality.

*

And then there are things which are not being said.

Here is what seems to be the sound of constitutional silence:

Some are suggesting that the lawyers here are acting in bad faith, and that they do indeed know whether DOGE has an administrator.

Perhaps.

But what is more likely – and what would be far more significant – is that the lawyers do not actually know if DOGE has an administrator.

And here the word “know” is crucial – do they have knowledge?

They may have an understanding, a guess – or they may have heard somebody say something.

But if they do not know, they do not know.

And they are not going to mislead the court otherwise.

*

Indeed, whether DOGE actually exists is becoming more of a question for a theologian or a philosopher than for a mere legal commentator.

*

Perhaps soon all this will settle down, and the fog and confusion will clear, and we will see what has really happened.

The problem is that in fog and confusion a lot of things can happen which we cannot now know and maybe will never know.

It takes time to “see you in court” – and one does not know what one cannot see before one eventually gets to court.

By the time a court intervenes – and the adults stop the infantile antics – a lot of damage can be done – and certainly a lot of data and other material can be taken.

The law is sometimes not well placed to deal with what happens under the fog of war.

***

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.

The president who believes himself a king

23rd February 2025

A telling joke told by the president of the United States

*

During the last week the president of the United States compared himself to a king.

Of course, it was intended to be a joke – not in the sense of being funny, but in the sense of saying something without any adverse consequences.

But what struck me when he said it is that this is exactly sees power: that all power – executive, legislative, judicial – flows from him, and is ultimately exercisable by him. He wants to block laws and ignore court orders at will.

As such he does see himself as an absolute ruler.

In the United Kingdom – or at least in England – the theory is that while all power flows from the Crown, it is institutionalised so that the legislature legislates (as the “Crown-in-Parliament”) and the courts adjudicate (including in the Royal Courts of Justice).

But.

The “founding fathers” who devised the United States constitution rejected this approach – for them, the executive, legislature, judiciary each derived their powers separately from the constitution document itself – and not from the executive.

Trump’s approach is a flat contradiction to this codified constitutional arrangement.

I have written more about this over at Prospect – please click and read here.

***

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.

From constitutional drama to constitutional crisis?

1st February 2025

When do constitutional problems become incapable of constitutional solutions?

*

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.

*

The execution of Charles I

*

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.

***

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.

 

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
Thank you to those of you who financially support this blog , which enables me to spend time putting together posts like this.  Reading thirteen case reports is time-consuming, for example, and it would not be possible without the support of paying readers.
You can contribute here so to enable more posts like this.

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

*

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).

*

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.

*

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.

*

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.

***

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.

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.

*

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.

*

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

 

 

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.

*

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.”

*

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:

*

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.

*

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.

*

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)”.

***

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.

*

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.

*

‘Lettuce before Action’

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

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

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

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

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

*

Back in the salmon pink

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

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

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

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

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

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

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

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

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

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

The sensation of this happening is not altogether pleasant.

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

Essentially the argument offered by the piece was:

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

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

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

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

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

*

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

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

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

*

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.

*

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”.

*

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.

*

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.

*

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.

*

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.

*

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:

*

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.

*

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.

***

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

***

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.