Category: United Kingdom Law and Policy

ESSAY “A decision so unreasonable that no reasonable authority could have come to it”

15th January 2023

This is my essay this week at Substack.

The Wednesbury case of 1948 provides one of the most famous and influential judgments in English legal history.

Because of the case, the phrase “Wednesbury unreasonableness” has become well-known legal shorthand for decisions and rules made by public bodies that are so unreasonable that no reasonable public body could have made them.

Nearly two-and-a-half thousand cases on the BAILII public database use the phrase “Wednesbury unreasonable”.

Indeed, the one thing that many people outside the West Midlands know about Wednesbury is that it associated with this extreme legal standard.

But in the judgment, the town’s corporation was found not to be acting unreasonably – at least in the legal sense.

And the case was not even decided on the basis of reasonableness, but on the basis of normal statutory construction.

So how did the little town of Wednesbury get such legal infamy?

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To read the rest, you can go over to my Substack and subscribe.

Every week I will write an essay on an aspect of legal history, or on the relationship between law and lore/popular culture, for those kind enough to subscribe to my Substack.  The essay will be posted on Friday/Saturday/Sunday.  I will even sometime use multi-sentence paragraphs, like this one.

Last week’s essay was on the Malone case of 1979, which I reckon to be the most significant constitutional case of the last fifty years.

The weekly essay is also cross-posted on my Patreon page for Patreon supporters.

For those of you who have kindly donated through Paypal in 2022, please leave a comment marked “Private” below, and I can give you a complementary one year subscription to Substack.

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Courts and politics and the job of judicial review

13th January 2023

What is the role of the courts when they are asked to look at decisions taken by our elected representatives?

From a legal perspective, the usual distinction is between “appeal” and “review”.

This means that a court should not examine the merits of the decision, but a court can (and should) ascertain whether it was a decision lawfully open to that decision-maker to make.

And so, the legal theory goes, as long as it is a decision within the scope of decisions open to that decision-make, it cannot (and should not) be quashed by the court.

The decision will stand, even if the court – and indeed the voters – disagree with that decision.

The decision may be unpopular but it will not be unlawful.

And therefore the role of the court should only be to judicially review a decision, rather than conduct an appeal on the merits of that decision,

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In practice the distinction is not as easily applied as it is stated above.

Of course, certain decisions can be quashed because the wrong or an unfair procedure has been adopted.

And as such “procedural impropriety” is a long-standing heading of judicial review.

A decision can also be challenged because of a want of legal power: if a decision-maker does not have the legal power to make a certain decision then a court can hold that there has been illegality.

And “Illegality” too is a long-standing heading of judicial review.

Neither of these headings are controversial.

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But there is a third heading (and possibly a fourth) which is often controversial.

That is when a decision is “unreasonable”.

From a lay (that is, non-lawyer) perspective, this can seem the same as a court looking at the merits of the decision.

For many lay people calling a decision is “unreasonable” is the same as saying that it is a decision you do not like.

For lawyers (supposedly) it has a different meaning: a reasonable decision is one which is reasoned in that the decision-maker can explain how the decision was arrived at.

It also means that the decision-maker only had regard to relevant considerations and disregarded irrelevant considerations.

Here, however, we are coming close to a judge second-guessing the decision-making processes of elected politicians.

And this is even more the case where fundamental rights of individuals are being interfered with, where a judge may have to assess whether the interference has been “disproportionate”.

By “disproportionate” it is often meant that the decision was not rationally connected to the supposed purpose of the legal power and/or the decision went further than necessary to achieve the public policy goal of the decision-maker.

As you can see, this is taking the judge close to the realm of politics.

And so this is where many of the flash-points in political-judicial relations occur.

Where do you think the balance should be?

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My essay tomorrow for paying Substack subscribers will be on the fascinating story of the Wednesbury case of 1947, the “grandfather” of English cases on reasonableness.

This was the case where a judge opined that a decision can be quashed for unreasonableness only when the decision was so unreasonable that no reasonable decision-maker could have made it.

This standard has since been called “Wednesbury Unreasonableness” – which is a little unfair on Wednesbury Corporation, as the court found in 1947 that the council had acted reasonably.

To read this essay tomorrow you can subscribe here.

(The essay will also be posted on Patreon – and anyone who has made a Paypal contribution to this blog in 2022 should leave a comment marked “Private” below for a year’s complimentary subscription to my Substack.)

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We have a coalition government, and we have had for some time

12th January 2023

Another day, another news report about the government not being able to get support from its own backbenchers for its legislative programme:

This is becoming a regular event.

The stuff of the politics of the governing party at the moment is pretty much U-turns and rebellions.

This is a governing party that was elected with a majority of 80.

Indeed, the governing party forced through Brexit in 2019-20 so as to to gain this party majority.

And this governing party has done almost nothing substantial with this nominal majority.

For despite the majority on paper, this is a government in constant negotiation with its own backbenchers.

If we drop the formalities, this is a coalition government, between the warring factions of the governing party.

And this has been the case since it was elected.

If we then look back before 2019 we also can see coalition governments: the 2010-15 formal coalition and the 2017-19 informal deal between the governing party and the Democratic Unionist Party.

Indeed, other than between 2015-17, an argument can be made that we have had, either formally or in effect, coalition government almost continuously since 2010.

Of course, this may seem counter-intuitive.

Coalitions are often seen as nice cuddly things, allowing centrists and environmental and regional parties to have disproportionate influence.

And one of the stock arguments for proportional representation is that we would have the benefit of more coalitions.

But we have had coalitions anyway.

We have just had, from a small-l liberal perspective, the wrong sort of coalitions.

But when a government cannot carry its own business without continual compromises and retreats caused by competing factions then there is perhaps no other good word for what we have.

For what we do not have is a party-based government able to implement a manifesto programme.

Indeed, other than in 2015-17, it is difficult to remember when we last had one.

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Banning the right to strike by key public sector workers

10th January 2023

The politics of striking provides one of the most enduring dividing lines in British politics.

On one side, there is support for, and solidarity with, unionised workers exercising their right to withdraw labour.

On the other side there is disdain for those same workers, especially if the workers are in the public sector or are otherwise providing public services, especially when it appears that the inconvenience of the wider public is being used as leverage in the dispute.

Some think the striking workers are entirely in the right, and some think they are entirely in the wrong.

And often there seems to be few in the middle (like me) who think both employers and unions are capable of getting things wrong and even of abusing their respective powers.

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But regardless of your view on the ultimate rights and wrongs of strikes by public sector and other public service workers, there is something fundamentally objectionable in the current government’s proposals to compel certain “key” workers to attend work when they otherwise would be entitled to strike.

And this is especially objectionable when this is being done as a “sticking plaster” so as to distract from the government’s failure to properly engage in respect of the current disputes.

There is, of course, a case for certain public sector workers – the armed forces and the civil police force – not to be able to strike.

But such workers foregoing their right to strike should have alternative entitlements and arrangements to balance this loss of a right.

Simply prohibiting other key workers from being able to strike, without sufficient alternative entitlements and arrangements to balance this loss of a right, is misconceived and illiberal.

It is an authoritarian gesture, rather than a solution to a problem.

To object to such a prohibition is not necessarily to side with the striking trade unions, but it is to say that removing the right to strike is generally wrong in principle and should never be done lightly.

The current government should be looking elsewhere for solutions to the current problems with industrial unions.

The proposals should be dropped and ministers should be thinking of other ways to address our present winter of discontent.

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New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

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This essay is also being posted on Patreon for those who subscribe to this blog using that medium.

For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

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And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

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Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

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You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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The law and policy of the return of the Parthenon marbles

4th January 2022

Photo credit

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The Parthenon marbles situated in the British Museum are back in the news.

From a legal perspective the following five points can be made – and have been made previously on this blog – here and here.

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First, there is no sound basis for the often asserted proposition that the marbles were lawfully acquired by Elgin before being given to the museum.

Any close look at the circumstances of the acquisition raises a series of issues.

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Second, if they were not lawfully acquired by Elgin then the marbles were not his to give to anyone – “title” in the property could not have passed at the time to the British Museum.

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Third, if the marbles were not lawfully acquired by the British Museum then the museum’s usual defence – that it is a serious and conscientious custodian of the world’s treasures for the public benefit – while admirable, is irrelevant to whether the marbles were lawfully acquired.

The later legal protections for possessions in its collection for the public benefit do not make good any deficiency in how the marbles were acquired.

Of course, it is far too late for this to be a practical legal issue – statutes of limitation and so on have long extinguished any legal claim against the museum for recovery of the marbles.

The museum will undoubtedly have now acquired title just by sheer passage of time: a sort of posh version of squatters’ rights.

Yet, just because there can now be no legal claim against the museum does not mean the marbles were lawfully acquired in the first place.

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But.

Where the British Museum have a stronger case is on the fourth and fifth points.

The fourth point is that the current legislation does make it difficult-to-impossible for the museum to dispose (to use the legal word) of the marbles as it wishes, either by returning them to Greece or otherwise.

An elaborate legal basis could, perhaps be provided, but – on balance – one suspects an English court would rule such a disposal as unlawful.

This means this is not a matter solely for the trustees of the museum (as I explain here).

For the marbles to be returned properly to Greece would require a change in primary legislation, which in turn means it has to have government support (or at least no government opposition).

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And this brings us to the fifth point: the future of the marbles is in the realm of politics, and not law.

It is a policy decision, where any legal changes would flow from a decision by ministers.

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The proposed work-arounds, of the British Museum loaning the marbles back to Greece, would fit within the current legislation.

Just as many things in the collection can be lent to other museums in other countries.

One can understand why the Greek government will not find such offers acceptable, despite the current hopeful leaks to the British political press.

Perhaps the Greeks will insist on there being a transfer of property – which would make it a legal issue.

But that is a legal issue which can only be practically resolved by politicians.

And as such it is a perfect example of a subject where law and policy mix and combine.

So perfect an example, in fact, that it should be on display in, well, a museum.

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Rejoiners should brace themselves for the United Kingdom to spend a long time outside the European Union

3rd January 2022

First of all, may I wish all of you that follow this blog a happy new year, even if I post things which irk you.

I do not write things just so as to provoke (and indeed much prefer for people to agree with me) but I do try to get things right, and sometimes what I think is right will be what some of you will think is very wrong.

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Second, as you may know I have started a Substack.

For now, every post published on this blog will also be crossposted on the Substack, and nothing will visibly change with what is on this blog.

But I will also be providing additional content at Substack – an essay every Friday on some aspect of legal history or the relationship between law, lore and popular culture – for paid subscribers.

(That essay will also be sent free to Patreon subscribers, and I will also make the post available for free for those who have donated to this blog through Paypal.)

The paid-for subscriptions will enable me to justify more time spent on commentary here, on Mastodon, and for my Substack essays, as all that commentary involves a considerable opportunity cost.

To subscribe to my Substack, click here.

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And now: Brexit.

Fifty years ago, on 1 January 1973, the United Kingdom, Ireland and Denmark joined the so-called European Communities, of which the European Economic Community was the most significant.

(This EEC, in turn, became the European Union on 1 November 1993.)

Thirty years ago, on 1 January 1993, the so-called Single Market was (nominally) completed.

(Indeed, for those at the time “1992” was itself a political totem, and as much a bandied a shorthand as “Brexit”.)

Both dates were momentous for the United Kingdom – especially the latter, as the Single Market in the form it took was very much a triumph for the United Kingdom government, and the architect of the Single Market in that form was a British Conservative politician, Lord Cockfield.

But.

The day was left largely unremarked, even by pundits.

Even the fact that 1 January 2023 was the second anniversary of the United Kingdom effectively leaving the European Union, after the transition period, was largely left unremarked by Brexit supporters.

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And now the news reports there are calls for the United Kingdom to re-join the European Union.

Remainers – now Rejoiners – excitedly share links to opinion polls showing majorities in favour of this and majorities against that.

This is in contrast to Brexiters not being to point to a great deal, if anything, to show that the departure from the United Kingdom has so far been a success.

But.

Re-joining is unlikely to happen, at least for some time.

And this is because there are two things which need to happen before the United Kingdom can even be considered as a restored member of the European Union.

The first is that the politics of the United Kingdom needs to settle down, and for there to be consistent and substantial majority of both voters and politicians in support of rejoining.

There is no clear sign of this happening, despite the wishful thinking of many.

The current governing party is in favour of Brexit, and the current opposition party (and likely next government) is not opposed to Brexit.

There is no visible shift in either party, and there is no reason to expect one.

Indeed there is a sizeable wing of the current governing party – and a body of voters – as energetically committed to Brexit as ever.

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And, even if there were a consistent and substantial majority of voters and politicians in support of rejoining, that would not be enough.

For, it would take the European Union – as a whole – to agree.

Believing that the United Kingdom can simply re-join just because we would want to do so is, I am afraid, just another form of British exceptionalism.

And if you were politicians in the European Union, looking at the ongoing political psychodrama of the current governing party over Brexit – and the dogged reluctance of the main opposition party to address the problems of Brexit – would you want the United Kingdom to rejoin?

Really?

Of course not.

There would be a non-trivial chance that there would be a Brexit all over again.

(For more on the practical difficulties of rejoining, see this useful piece by John Cotter.)

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The most difficult step – perhaps even harder than to get Brexiters to admit their Brexit was a mistake – is for Remainers to accept the United Kingdom is out of the European Union for at least a political generation.

What needs to be done is for practical politics to move to a post-Brexit consensus, where our politicians seek to place the United Kingdom in a sustainable and close (but outside) relationship with the European Union.

And to get the United Kingdom to be as much a part of the Single Market as possible, even if the nomenclature has to be politely different.

But – for both “sides” – this is not likely to happen.

Brexiters will see this as betrayal, and Remainers will see this as imperfect, and so both sides will resist it.

(Just as both Brexiters and Remainers voted down the Theresa May departure deal.)

So we will remain in this post-Brexit limbo.

And we can celebrate the anniversary of this limbo, well, every 1 January.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

New post at Substack: 2021 and 2022 were the years constitutionalism was tested

31st December 2022

Over at Substack, for paying subscribers, I have posted a 2000 word essay (with even some multi-sentence paragraphs!) reviewing 2021 and 2022 from a constitutionalist perspective.

I will be doing such an essay at Substack every week on Friday for paying subscribers.

(These essays will also be cross-posted on Patreon – and I will also email copies to anyone who has made a PayPal contribution in the last year – just make a “Private” comment below asking for this.)

Normal daily, free-to-read blogging on law and policy will resume here on Monday.

Thank you for reading and supporting this blog.

I wish you a happy and constitutionally dull new year.