Category: United Kingdom Law and Policy

The Queen

8th September 2022

While we wait for news from Balmoral – from which the last reports were of the Queen’s ill-health – it is good to remind ourselves of what an extraordinary thing she achieved in securing the future of the monarchy.

It was not inevitable that the United Kingdom would stay, well, a kingdom.

When she was young the Crown was weak.

The United Kingdom over which her grandfather ruled – that of Great Britain and Ireland – had already been re-confingured in the years before her birth.

Her uncle had been forced from the throne in circumstances which showed the relative weakness of the king to the political class.

Monarchies and royal families throughout Europe were being removed and exiled.

The Empire was being decolonised and it was not certain the “Commonwealth” would take off as an idea.

The politics of the 1930s and 1940s in Europe and elsewhere often pushed in radical and extreme directions.

Any young royal in the Europe of the 1930s and 1940s would have seen the monarchy as precarious.

Even by her coronation in 1953, it was not obvious that the Crown would survive.

Yes, with hindsight, it looks as if it would not have been any other way.

But the devices of what became known as “the Firm” – the use of the extended royal family and the “balcony” royals, and the clever use of the media and imagery – were not as familiar as they once were.

Looking at the challenge before her in 1952/3 must have been daunting.

The monarchy now seems secure for at least another generation or two.

It will slim down, with more empty space on the balcony, but there seems no prospect of there being a republic in the next twenty or so years.

Even if her successors are unimpressive (or worse) the consequences will be likely to be dealt with within a monarchical framework, rather than a huge constitutional upheaval that would make Brexit seem like a jubilee street party.

Of course, the kingdom itself may be reconfigured further – with Irish unification and Scottish independence.

But something called a United Kingdom will survive – even if it will be akin to a pop band on the nostalgia circuit with only two of its original members.

A wise historian friend once said that while the Queen survives the twentieth century has not yet fully ended.

Such has been her longevity – and how with hindsight the period since 1952 seems all as one coherent piece – the sheer amount of change (and lack of change) can be overlooked.

She took a monarchy that was not in good form in the inter-war years and ensured that it has lasted to deal with the problems of the mid twenty-first century.

Even liberal republicans (of which I am one) can respect what she has achieved, even if a different model of state still would be preferred.

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The dropping of “The Bill of Rights” – and why it is both good and bad news

7th September 2022

The Human Rights Act 1998 is still in place.

And Dominic Raab is not.

Raab was three times a minister at the Ministry of Justice, and his personal and political priority was the repeal of the Act.

The legislation was the Moby Dick to his Captain Ahab.

But the whale has swum away again.

*

Raab’s latest attempt to repeal the Act was the so-called “Bill of Rights”.

When this was published my reaction was that it was a dud and a misdirection.

In essence, the rights under the European Convention on Human Rights would still be enforceable in domestic law, but there would be lots of provisions to make such enforcement more difficult in practical situations.

The United Kingdom cannot leave the ECHR without breaching the Good Friday Agreement – and so the “Bill of Rights” was a cynical attempt to make it look like something fundamental was happening when it was not.

Given the MoJ is facing chaos and crises in the prison and criminal justice systems, it seemed an odd priority for scarce ministerial and civil servant resources, as well as a waste of parliamentary time.

And this was especially the case when repealing the Act was not even in the 2019 Conservative manifesto, and so such a move was likely to be blocked or delayed by the House of Lords.

It was difficult to conceive of a greater exercise in pointlessness.

But, for Raab, the Act had to be repealed.

*

“All that most maddens and torments; all that stirs up the lees of things; all truth with malice in it; all that cracks the sinews and cakes the brain; all the subtle demonisms of life and thought; all evil, to crazy Ahab, were visibly personified, and made practically assailable in Moby Dick.”

*

And now today, on the first full day of the new Prime Minister’s time in office, we read that the “Bill of Rights” is no more:

This revelation has the ring of truth.

The “Bill of Rights” is dead.

And so…

…Hurrah.

*

But.

The cheers cannot last for too long.

For this further news is also important:

The quoted statement may look like verbiage – but it signals something important.

The “Bill of Rights” was always going to be a clumsy vehicle for all the illiberal provisions the government would like to have so as to make it more practically difficult to enforce convention rights.

And so instead of putting many of these illiberal provisions in one big bill that was likely to fail, the same illiberal ends will now be achieved in other ways.

These moves will be driven mainly by the Home Office, and not the MoJ.

This is a canny move by the government – even if it is an unwelcome one from a liberal perspective.

The claps and congratulations about the “Bill of Rights” being dropped should therefore not last too long.

The government is just going to seek the limit the benefits and protections of the Act in other, less blatant ways.

Dominic Raab and his “Bill of Rights” may have gone.

But the need to be vigilant about what the government wants to do with our Convention rights has not gone at all.

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Lawyers as brands, and “legal opinions” as franchised products – on the nature of legal opinions

5th September 2022

Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.

But there were some things missing.

And one omission in particular was deliberate.

The post did not mention either of the authors of the opinion.

This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.

The authors could have been two unknown newly qualified barristers at some obscure chambers.

Or the authors could have been the ghosts of Thomas More and Edward Coke.

It did not matter.

And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.

In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.

(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)

*

The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.

(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)

It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.

As such, it was almost as if he was being used as a brand, rather than as an advisor.

A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.

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

*

In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.

Here, the barrister involved is not to blame.

Seriously.

The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.

Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.

And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.

Who knows what the authors of the opinion thought about their work being used in the way that it was?

*

If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.

For if the legal point is sound, the reputation of the lawyer is irrelevant.

And if the legal point is unsound, the reputation of the lawyer will not save it.

This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.

As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.

*

As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:

(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)

And it also the view of the professor of public law at the University of Cambridge:

*

Such concurrence is always a reassurance.

But.

Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.

Because it is the content of a legal opinion that matters the most.

Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.

Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.

But respect is not necessarily deference, and it is certainly not subjugation.

And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.

*

Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.

For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.

They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.

And, as an opinion, it is always open to those to whom it is disclosed to take their own view.

*

So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:

(Though the “highly arguably” is adverbly painful to read.)

But.

There is nothing wrong with being a blogger.

For even bloggers can look at kings.

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The not-at-all-devastating “devastating” Johnson opinion on contempt of parliament

2nd September 2022

The “opinion”, we were told, would be “devastating”.

To quote the Daily Mail:

“An insider said of the QC’s legal advice: ‘It is absolutely devastating.'”

Not just devastating – but devastating absolutely.

Gosh.

Huge, if true.

*

*

The opinion has now been published on the government’s website.

The government website calls it a “legal opinion”:And the document itself is formatted and signed as an opinion, and it even records the instructing solicitor, who happens to be a criminal defence specialist.

But the opinion does not set out any views on the criminal law, and nor is it in respect of criminal proceedings, and the authors of the opinion are not criminal lawyers.

Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.

One could even perhaps doubt – but for (ahem) what the government website says – whether this document constitutes a legal opinion at all.

That it has been placed happily into the public domain would make one wonder if any legal privilege would attach itself to this document.

But.

The question for this post is not whether it is a legal opinion or not, but is it devastating?

*

An opinion – which is the name for a document setting out the views of a lawyer on a particular legal matter – is a curious form of legal document.

It is not a pleading or statement of case, which would set out a client’s legal position before a court or tribunal.

Nor is it a statement containing evidence that would set out the facts which a party wishes to put before a court or tribunal.

And nor is it a skeleton argument, which provides a summary of the legal arguments on which a party wishes to rely.

All three of these documents – pleading or statement of case, statement of evidence, skeleton arguments – are court- or tribunal-facing.

They are to assist the court or tribunal in determining the questions before it.

And an opinion is not itself a letter before action, which a party will send to another party so as to set out its case before a claim is issued.

No.

An opinion (or an “advice” depending on the matter) is usually a thing between a client and their lawyer.

The lawyer tells the client their view of the law – and it is to the client that the lawyer has the duty.

Sometimes, such opinions are shared or published by the client – so as to inform or influence third parties.

For example, before he went on to other things, the tax barrister Jolyon Maugham wrote an informative post on how certain tax barristers were well-known for giving convenient advices to be shared:

(Maugham and I are not close, and I am not an uncritical fan of the Good Law Project, but that was – and is – a remarkable piece of legal blogging.)

The point is that such “opinions” are that – they are the views of a lawyer who has an obligation only to their client, even if the client choses to share that document with third parties.

*

As such, an opinion is rarely “devastating” – at least, not to any one else other than the client.

It is merely an expression of a view.

No court or tribunal will adopt such an opinion uncritically as its own view – and, indeed, lawyers are required to set their cases in different documents, mentioned above.

There is a fashion for campaigners and pressure groups to commission opinions from lawyers to use as aids for their goals.

And many lawyers are happy to provide such opinions, knowing they are going to be used for such non-judicial purposes.

But such opinions have, by themselves, almost no weight as a legal document.

They are PR, not probative.

*

And now we come to this, capital-O Opinion.

This Opinion is, in effect, a PR exercise.

If this Opinion was, in fact, devastating then – in my view – it could have been quietly disclosed to the House of Commons committee of privileges in respect of its inquiry.

The inquiry would then have been devastated.

The content of the Opinion would have been so formidable that the committee would have known the game was up, and they would have terminated the inquiry with immediate effect.

That is what the effect of a “devastating” opinion would have been: devastation.

But this Opinion was not quietly disclosed to the committee.

It was instead placed into the public domain.

On a Friday afternoon.

After it was leaked to a newspaper.

(And although those reading this blog may not be readers of the Daily Mail, the newspaper was right to give this Opinion prominence and to quote the insider – for the Opinion and what the insider said are newsworthy.)

*

The publication of this Opinion is an example of litigation by other means.

It is an appeal for media and public support.

It is an attempt to place pressure on the committee to drop the inquiry.

For if the Opinion were truly devastating there would be no need for publicising it on the government website or for leaking it to the press.

That is the difference between something being devastating and something being described as “devastating”.

*

The Opinion is not strong.

Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate.

The colour of a thing would be black, but for it being white.

The object would be cheese, but for it being chalk.

And here:

“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”

*

There are a few points to make about this Opinion.

To begin with, the inquiry into whether Boris Johnson misled the House of Commons is a matter for Parliament and not the courts.

And Parliament is in charge of its own procedures which, as a matter of basic constitutional principle (and the Bill of Rights), cannot be gainsaid by the courts.

So to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.

But.

It gets worse.

*

The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.

This has been spotted by the Labour MP Chris Bryant:

The motion referring Johnson to the privileges committees was as follows:

The question for the committee is whether the misleading of the House of Common amounted to a contempt.

If Johnson did in good faith give an incorrect statement then at some point he would have realised the error.

That would not be a contempt.

But.

Under the rules of Parliament (and the Ministerial Code) Johnson was also under a duty to correct the record as soon as he realised, at the “earliest opportunity” and he has chosen not to do so.

Here is Erskine May, the authority on parliamentary procedure (highlighting added):

On this, see this thread by Alexander Horne from back in April:

And my post on the same:

There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.

The Opinion mentions the relevant duty in paragraph 26 (and the corresponding Ministerial Code duty in paragraph 28) but uses it only to somehow say that it indicates only deliberate lying can be contempt.

But if this a point set out in Erskine May, and obvious to Horne (and me) in April 2022, then it is a point that should have been addressed in an Opinion dated 1 September 2022.

As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.

*

The Opinion is also odd in how it seeks to judicial-ise parliament.

This has already been spotted by the estimable Hannah White:

This contempt inquiry is a parliamentary (and political) exercise into assessing whether Johnson was dishonest.

This process is required because of the notion (or fiction) that MPs do not lie to the House.

This is because it is assumed MPs are honourable – and it is out of order for one MP to accuse another of lying in the Commons.

Ministers, for example, do not sign “statements of truth” when giving their answers at the dispatch box.

(And you will remember that Johnson lost the prorogation case at the Supreme Court because he refused to sign a statement of truth, under pain of perjury, as to his true reasons for the prorogation.)

As such the privileges committee inquiry is part of what some commentators call the “political constitution”.

It is how certain issues and disputes are dealt with within parliament, rather than outside of parliament by courts or other agencies.

The Opinion, by seeking to judicial-ise part of the process is taking a misconceived pick-and-mix approach.

The committee has set out its process and has called for evidence:

A motion was passed by the Commons; a process was adopted in accordance with the relevant rules agreed by Parliament; documents have been sought and evidence has been called for.

This is entirely appropriate for the parliamentary issue which needs to be addressed and resolved.

If the committee were to be amenable to judicial review, then the entire process would cease to be an entirely parliamentary matter.

The whole process would have to be recast, with judicial protections built in at each stage.

And, in any case, there is no good reason – and certainly no reason set out in the Opinion – why Johnson cannot simply explain why he gave a misleading statement and did not correct it at the earliest opportunity.

He can answer, parliamentarian to parliamentarians.

The motion of the House gives precise particulars of the statements, and he was the one that made the statements.

The sanction, if he is found in contempt, is not civil or criminal liability – no criminal record or county court judgment – but a sanction to him as a parliamentarian – he could be suspended, or perhaps face a recall petition.

This is a parliamentary process to deal with a parliamentary question with a possible parliamentary sanction.

To assert that “[b]ut for Parliamentary privilege, a court hearing a judicial review brought by Mr Johnson would in our view declare the approach taken by the Committee to be unlawful” is therefore not just deft, it is also daft.

*

As a further observation: why has this matter not seemingly gone through the government legal system and treasury counsel?

It appears a top white-collar criminal firm and the barristers have been instructed directly by the Prime Minister, presumably with public money.

For all Johnson’s derision about “lefty lawyers” and his supporters’ attacks on legal aid “fat cats”, Johnson is very ready to use taxpayer money to find technicalities so as to frustrate processes.

Those caught in the criminal justice system do not have access to this sort of legal advice.

*

To conclude: the Opinion is not only not strong, it is a disappointment.

One would hope and expect that its esteemed authors would have provided a more compelling critique of the process; that they would have engaged with the “earliest opportunity” charge; and that they would have explained, in parliamentary terms why it was unfair, rather than relying entirely on a “but for” rhetorical device and a false analogue.

This could have been a far more interesting opinion.

But instead, we got this weak, misconceived, incoherent document.

Frankly, it is devastating.

 

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POSTSCRIPT

 

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Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

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***

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Judicially reviewing a political party – and why Tortoise has a point as well as a weak legal case

30th August 2022

Before I became a lawyer, I wanted to be a historian and, in particular, a historian of the concept of the “state”.

The “state” – forgive the quotation marks – is, in one way – something which exists only in the mind, as a label we give certain things around us.

Yet in another way the “state” has a real existence – and some on the left demand “the state should do this” or on the right that “the state should not do that”, both presupposing that something called the “state” exists, and it can be called on to do or not do things.

Some attribute to the “state” the same qualities of omnipotence, omniscience and omnibenevolence that some people even now ascribe to various gods (or “gods”).

But.

I did not do the envisaged postgraduate work on intellectual history, and I fell into being a lawyer instead.

And part of the reason was that with law there were debates and discussions about what the “state” should do and not do, and what were its limits, that seemed more practical, urgent and uncertain in their outcomes than in the academic study of political ideas.

Indeed it was a 1996 article about whether the Jockey Club was amenable to judicial review that first started me thinking seriously about  a career in advising on public law.

*

Judicial review is the term lawyers in England and Wales give to both procedure and the substance of holding public bodies to account in the courts.

Often what constitutes a public body – such as ministers of the crown or statutory corporations – is obvious.

But the test is functional – if you are an entity exercising a public function then you are amenable to judicial review.

And this means you are subject to certain special legal duties and remedies that may not otherwise be the case.

So it matters – practically – whether you fulfil the test of exercising a public function.

(Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.)

*

The folk at the Tortoise news and commentary site have decided to send a legal letter threatening an application for judicial review against the Conservative Party.

The letter is worth reading in full.

There are two things worth saying about the letter.

First, the application is what a judge would say is “ambitious”.

Each element of the application is arguable (sometimes only just) – but that an element of a case is arguable certainly does not make it strong.

In essence, that a point is arguable is the test for simply getting it before a tribunal – the minimum required.

Perhaps a positive judge on a sunny day and after a hearty breakfast may give the envisaged claim the judicial thumbs up.

Predicting litigation is never an exact science.

But.

It is unlikely that any court will want to bolt political parties onto the state for the purposes of judicial review – especially when political parties have their own special regulatory regime, and it is the Queen who choses who is invited to be Prime Minister.

The case is likely to fail.

Two, Tortoise has a point – despite the weak legal merits.

A membership-based national political party is conducting an exercise that will lead to the successful candidate being – almost certainly – invited to become Prime Minister and we know very little about how that exercise is being conducted.

(The position would be different if only members of parliament were involved.)

Tortoise are asking for disclosure of the following information:

“(1) Anonymised data you hold on the demographic of the Party’s membership: 

(a) Particularly, we invite you to provide, where held, the number of Party members who:

(i) Live abroad;

(ii) Are foreign nationals; and

(iii) Are under voting age.

(b) We also ask you to provide data in respect of:

(i) The age range of members; 

(ii) The geographic distribution of members; and

(iii) The genders of members.

(2) An explanation of whether, and if so how, the Party keeps its membership database up to date, ensuring that it sends ballot papers to correct addresses. 

(3) Anonymised data you hold on variations in member numbers over time, presented quarterly over the past 10 years. The public interest is particularly acute in respect of quarterly membership numbers for the past twelve months.

(4) An explanation of the Party’s system of compliance, including but not limited to the following questions:

(a) How does the Conservative Party check that new members are who they say they are?

(b) Who oversees compliance? i.e. who independently checks whether the Conservative Party is checking? 

(5) What is the number of efforts at infiltration which the Party has thwarted, i.e. how many cases have you discovered of a fictional person, a dead person, a person of non-voting age, a member of another political party or a pet registering as Conservative member?

(6) An explanation of any third party compliance mechanisms in place to ensure that only those eligible to vote do so, that they vote only once each, and that the election is not manipulated.

(7) An explanation of the circumstances by which GCHQ came to offer advice on the distribution of Conservative party ballots.

(8) An explanation of why non-UK citizens who join the party abroad are eligible to vote even if they pay no tax and spend no time in the UK. 

(9) Confirmation of whether Party members under the national voting age can vote in the election of Party leader and Prime Minister.”

On the face of it, this is the sort of information which should be in the public domain – and this would apply equally to the Labour Party or other political party in a similar situation.

The (likely) legal fact that judicial review is not the appropriate way of getting such information does not take away from this being information which should be publicly known.

Indeed, that Tortoise is resorting to judicial review indicates – if not demonstrates – that the special regulatory regime for political parties is deficient.

And it is that special regulatory regime that should change – rather than the ambit of judicial review be extended.

Political parties are not private clubs, where there is a limited public interest in their internal affairs.

Political parties are a central feature of our political system.

They are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.

So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits.

That objective should be achieved by changes in legislation, and not by judicial expansion.

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Giving the incoming Prime Minister a clean slate

29th August 2022

We are about to have a new Prime Minister.

The candidate most likely to become the new premier is Elizabeth Truss, about whom many of you will have Very Strong Opinions – though it still may be Rishi Sunak, about whom many of you will also have Very Strong Opinions.

They will replace Boris Johnson, about whom all of you will have Very Strong Opinions Indeed.

Of course, from a liberal and progressive perspective there are reasons to be concerned, if not fearful, about the new Prime Minister.

But.

As hard as it will be, it is I think useful to always give a new Prime Minister a blank slate.

(Even if some of the candidates’ harshest critics will accuse the candidates themselves of being blank slates.)

Here I would make two observations.

First, it is not unusual for a politician obtaining power to say and do things that are calculated so that the politician obtains power.

Such things may – or may not be – reflective of what they do once they have secured the power they seek.

Second, never underestimate any politician who “makes it” – who gets to the top of Disraeli’s greasy pole.

You may – perhaps rightly – regard them as a vacant dimwit.

Yet they are a vacant dimwit who got to be Prime Minister, against hundreds of other ambitious (and ruthless) politicians.

Deriding them for a lack of intelligence or insight does not, by itself, explain how they got to be Prime Minister while hundreds of other politicians did not.

Of course: past performance (or lack of performance) can be a fair guide to future performance.

But the unique nature of the job of Prime Minister is such previous ministerial and non-ministerial roles are not a perfect guide.

For what it is worth, I also adopt this approach to new Lord Chancellors.

Again that is a unique role – where previous jobs may not be a perfect guide.

Sometimes one can be pleasantly surprised: Michael Gove, for example, was shaping up to be a good Lord Chancellor, and not just because he was not Chris Grayling.

While other Lords Chancellors were hopeless, even if one strained to give them the benefit of the doubt.

Ones like, well, Elizabeth Truss.

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

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Article 16, again – what, if anything, has changed?

26th August 2022

Article 16, again.

Here is this blog in February 2021:

In September 2021:

And in October 2021:

There are many more.

Like many commentators on Brexit, it feels like I have written sixteen articles on Article 16.

There was a time when every weekend had a Sunday newspaper briefed that Article 16 was about to be triggered.

*

And here we go again.

What new can be said?

In some ways, there is not a lot that is new to say.

Triggering Article 16 will not have the dramatic – cathartic  – effect that some breathless political and media supporters of the government believe it will have.

A gun is not fired, just a talking shop established.

And the provision cannot be used to dismantle the Northern Irish Protocol.

If you want to read more along those lines. click on the links to the explainers above.

But.

Some things have changed.

And it may actually be wise for the government to trigger the provision.

This is because the United Kingdom is now in the absurd position of proposing primary legislation on the Northern Irish Protocol under the pretence that it is “necessary” for the United Kingdom government to not perform or comply with its obligations under the protocol.

The government raced to putting forward this draft legislation without going down the Article 16 route that was intended to deal with any problems with the protocol.

By actually setting up a formal talking shop on the protocol then there is the possibility of constructive engagement with the European Union, rather than this silly legislative exercise.

Article 16 should have been triggered ages ago – as it would enable structured talks.

The reason one suspects that the government has not triggered Article 16 is that ministers know – or should know – that it will not have the exhilarating effects set out in the government-supporting media.

But it could have beneficial effects – and any safeguard measures would have to proportionate and time-limited.

Article 16 may therefore offer a way of choreographing a resolution of the perceived issues over the Northern Ireland Protocol.

Of course: this assumes that our government under the incoming Prime Minister wants a solution and is operating in good faith.

Just typing those words makes one realise how unsound such an assumption is.

But.

Structured talks under the Article 16 regime can only be a good thing and the government’s scarce time and resources would be better used in doing this than in pursing the misconceived primary legislation to allow the government to break the law.

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Murphy’s Lawyers – a reply to Richard J. Murphy’s attack on lawyers for those with power

 25 August 2022

The accountancy professor and campaigner Richard J Murphy launched an attack on certain lawyers on Twitter.

It is important that this attack be understood on its own terms, without misrepresentation and distortion, so I have screen-grabbed the thread below:

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I think Murphy is wrong.

I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.

The starting point is the simple observation that modern societies – unless there is some happy intervention – tend to be unequal.

This means that in modern societies there tends to be people with more power than others.

These people would tend to have power, regardless of whether they have lawyers or not.

So why do those powerful people need to have lawyers?

It is because of a thing called “the Rule of Law” which means that every exercise of power has to have a lawful basis.

“The Rule of Law” means the powerful cannot do as they wish: instead they have to comply with the law.

That is why powerful people often have lawyers.

Imagine a society where those with power did not need lawyers – that the powerful could exercise their power without worrying about whether they are breaking the law.

That would be an even more brutal and unequal society.

In each of the categories that Murphy posits in his thread, the real significance is that the powerful have to have lawyers – because however mighty those powerful people are, the law is mightier.

What would be more worrying is if the powerful could get their way in each of Murphy’s categories without needing lawyers.

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The points I make above are not original.

The great Marxist historian E. P. Thompson in Whigs and Hunters (perhaps the best British work of practical legal history), and other books, pointed out that the Rule of Law helped those without power in their dealings with those with power.

I happen to have spent time in City law firms, and I have seen how the need for compliance with the law means that those with power have had to do things that they otherwise would not do.

If Murphy is correct, then those with power would simply exercise that power without legal advice – and without any legal constraint.

This would not have the positive effects that Murphy possibly expects.

The applicable laws may well need improving and reform – there may need to be better balances struck between the interests of those with more power and those with less power.

That is the job for the legislature.

But that those with power need to have legal advice is a Good Thing.

For without the powerful having this need to take legal advice, what could go wrong would go wrong – as another Murphy may have once said.

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The Law and Policy blog mentioned in this year’s MacTaggert lecture

24th August 2022

This blog has been mentioned today by Emily Maitlis in her MacTaggert lecture.

At 23:34.

The post she refers to is here – about how various constitutional ‘gatekeepers’ failed to prevent this government openly proposing to deliberately break international law.

The lecture is about the challenges for journalism in this age of populism.

If you would like to comment on her lecture generally – or her reference to this blog in particular – please do so below.

And thank you for following and in many cases supporting this blog – for without your following and support this blog would never have been in a position to be cited in such a prestigious lecture!

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One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

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More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

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But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

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Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people. 

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court. 

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair) President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar Chair of the Judicial Appointments Commission
Sir Geoffrey Vos Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament.  As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer. 

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.  

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

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So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

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But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

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