Category: United Kingdom Law and Policy

Did Johnson lie to the Queen on the prorogation issue? – a summary

16th August 2022

Yesterday’s post caused a little bit of excitement elsewhere on the internet, and so I think it may be useful to set out the core of that longer post in one shorter post today.

The reasoning for my argument is as follows.

1. There was communication between the Prime Minister and the Queen.

This is not in dispute, and the evidence before the court was that a formal telephone call was to take place on 27 August 2019 between the Prime Minister and the Queen the day before she would be attended by Privy Councillors to make the relevant order.

The reason this was a telephone call was because the Queen was in Balmoral.

2. In this telephone call the Prime Minister would have given reasons for the prorogation order.

This should not be a controversial point, as that would have been the purpose of the call, and the Queen and her private office would have wanted to be confident that all was proper and constitutional.

That the Prime Minister would have given reasons is supported by the witness evidence for the prorogation case of the former Prime Minister John Major:

3. The reasons the Prime Minister would have given would have been those recorded in the contemporaneous documentation.

As the litigation revealed, there had been internal documentation created in August 2019 which purported to set out the reasons for the prorogation.

In essence, the purported reasons were as follows:

“The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

The Prime Minister is unlikely to have admitted that the reasons for the prorogation was to stymie parliamentary accountability in the run-up to the then exit day of 31 October 2019.

4. The reasons he would have given were not the real reasons.

The Scottish appeals court – the Inner House of the Court of Session – found that the request for a prorogation had an “improper motive”.

The Supreme Court adopted a different approach, and held that the reasons given for the five-week prorogation did not add up (emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The reasons given were either improper or insufficient – but in either case the reasons were not accurate.

They were not the real reasons.

5. Those who put forward those reasons knew them not to be the real reasons.

This point is in part based on the Scottish appeal court’s finding of improper purpose, but it is mainly based on the absence of a signed witness statement from a minister or official setting out the reasons for the request.

This absence was conspicuous – and it was referred to in the litigation.

The government lawyers just put in as relevant evidence the contemporaneous documentation quoted above.

The Supreme Court expressly set out the consequence of the lack of witness evidence in the passage already quoted above (different emphasis added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

The need for such a witness statement would have been obvious to the government lawyers and would have been reported to senior officials and ministers.

But still nobody seemed willing, under the peril of perjury, to put their name to the purported reasons.

Had the reasons given in the contemporaneous documentation been the correct reasons then there would have been no problem whatsoever in setting them out in a witness statement.

And so there can only be one plausible explanation for the lack of a witness statement.

Those in a position to know the real reasons knew the reasons stated in the documentation (and thereby the reasons which would have been given to the Queen) were not the true reasons.

Conclusion

Given the above points,  the conclusion seems to me to be inescapable.

When the Prime Minister spoke to the Queen to give reasons for the prorogation, he knew those were not the correct reasons.

*

If anybody can show a fault with any of the five points above, or with my chain of reasoning, or with my conclusion, then I will be happy to adjust my view or recant it outright.

***

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The question of whether Boris Johnson, in effect, lied to the Queen

[ADD – I have now done a short summary of the argument advanced in this post here.]

 

15 August 2022

On Twitter a number of accounts have recently commented in respect of front page of the Daily Mirror from 12 September 2019:

The online version of the article is here.

The comments are critical of the headline and of the apparent source of the headline, which is me.

I am quoted in the article, on the front page, as follows:

“Legal expert David Allen Green said: “In effect, the court held that Boris Johnson lied to the Queen.””

This seemingly renders me the source of the “Boris lied to the Queen myth”.

Another tweeter has said of the use of the word “lie” here shows that we cannot have civil discourse until adults control how they use language and that, in our system, the law of defamation is supposed to police such silliness.

I also cannot be regarded as a credible legal commentator, I have been told, because of this statement.

(I have deliberately not named the critics here, as I have a bigger platform than they do, and do not want to cause a pile-on.)

*

Do these critics have a point?

One preliminary point I can make straight away is that I do not think the newspaper headline accurately conveys the argument I was making in the text quoted.

The “in effect” was not mere surplusage – I used the phrase for a reason.

Had I wanted to stated plainly that I knew that the Prime Minister had lied to the Queen, I would have said so.

But I did not say that, because I did not mean that.

I said what had happened showed that, in effect, the Queen had been misled, and that this had been deliberate.

And so I cannot defend the Mirror headline, and I do not do so.

It is not the headline I would have chosen for the piece that quoted me.

*

And there is another preliminary point.

The view I expressed was not (and was not intended to be) a précis of any judgment – I know what the judgments say just as much as anyone who can read the relevant judgments.

No court was asked to determine if the Queen had been lied to, and so there is no judgment which sets out whether the Queen was lied to or not.

The view I expressed was based on my own reasoning, as a commentator, based on what I had read in a particular judgment and my understanding of the relevant circumstances.

Any judgment is a text and my role as a commentator is to place that text in a context.

This is what I do with many judgments in my commentary, and so this was the view I formed about this particular case.

*

But.

That is not good enough.

Can I still defend the view that I actually did express: that, in effect, the Queen was lied to?

Let us see.

*

We now need to go back in time and remind ourselves of the relevant dates.

It was 2019, and the United Kingdom was still a member of the European Union.

The original departure date of 29 March 2019 had been missed, and the exit date was then rearranged a couple of times, with the departure date eventually being set for 31 October 2019.

Johnson became Prime Minister in July 2019.

On 28 August 2019, the Queen made the following order:

“It is this day ordered by Her Majesty in Council that the Parliament be prorogued on a day no earlier than Monday the 9th day of September and no later than Thursday the 12th day of September 2019 to Monday the 14th day of October 2019, to be then holden for the despatch of divers urgent and important affairs, and that the Right Honourable the Lord High Chancellor of Great Britain do cause a Commission to be prepared and issued in the usual manner for proroguing the Parliament accordingly.”

The prorogation of parliament was therefore to be for five weeks, which was unusual in and of itself.

But what made this prorogation politically controversial was that it would deprive parliament from sitting in the key period running up to the then exit date of 31 October 2019, meaning that there was a real prospect of the United Kingdom leaving the European Union without a withdrawal agreement.

As it happened, parliament quickly passed the so-called Benn Act on 9 September 2019, which required the Prime Minister to request an extension in the event that there was no withdrawal agreement in place (which is what Johnson then had to do).

But the legal question at the time was whether the prorogation was lawful.

And the political question was whether Johnson had sought the prorogation for cynical reasons of expediency.

*

The prorogation faced legal challenges, including one in Scotland.

The appeal judgment of the Scottish case dated 11 September 2019 set out the following events:-

15 August 2019 – a memorandum went to the Prime Minister recommending prorogation, with the reason stated as “The current session is the longest since records began, and all bills announced as part of the last Queen’s Speech have now received Royal Assent, or are paused awaiting carry over into the next session: this makes it increasingly difficult to fill parliamentary time with anything other than general debates. As a new Prime Minister, there is an expectation that you will set out a refreshed domestic programme and it would be natural to do so when the House returns in the autumn.”

16 August 2019 – the Prime Minister wrote the following response:

“1. The whole September session is a rigmarole introduced [REDACTED] to show the public that MPs were earning their crust

2. So I don’t see anything especially shocking about this proposition

3. As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually very few”.

23 August 2019 – there is a further memorandum to the Prime Minister, which the court described as a handling plan, saying:

“It refers to the PM’s agreement to approach HM theQueen with a request to prorogue Parliament within the period Monday, 9 to Thursday, 12 September and for a Queen’s Speech on Monday, 14 October. A telephone call between the PM and the Queen was fixed for the evening of 27 August. The Order in Council was to be signed on 28 August. On that day, the Chief Whip and the Leaders of the Houses ofCommons and Lords were to go to Balmoral to form the necessary meeting of the PrivyCouncil. After the signing, the members of the Cabinet would be informed, followed by theParliamentary Party and the press. The planned announcement to the Cabinet was to focus on the extraordinary length of the current parliamentary session. A statement would be made that this could not continue and that the PM would bring forward a new legislative agenda which would take matters “through our exit from the EU and the months that follow”. At the heart of the agenda would be the Government’s “number one legislative priority” (Brexit). If a deal was forthcoming, a Withdrawal Agreement Bill could be introduced to “move at pace to secure its passage before 31 October”. The PM would confirm that he was committed to facilitating Parliament’s ongoing scrutiny of Brexit. He would deliver a statement and take questions on the “first sitting back” (presumably14 October). A draft letter to Conservative MPs was provided. This re-iterated the message to Cabinet Members. It stated that the NIEFA 2019 would be debated on Monday, 9 September and that thereafter the Government would “begin preparation to end theParliamentary session ahead of a Queen’s Speech”.”

The court then noted that on 28 August 2019 three Privy Counsellors attended at Balmoral where the Queen promulgated the Order (which I quote above).

*

So we now have a sequence of events, which included the Prime Minister telephoning the Queen on 27 August 2019 and for privy councillors to attend for the Order to be made the following day.

*

The Scottish court decided as follows:

“When regard is had to all the material now before the court, it is my opinion that the petitioners are entitled to be sceptical of the proposition that the reason for making the Order was simply in order to prepare a new legislative agenda for announcement in a Queen’s Speech at the beginning of the next session of the Parliament. Further, I consider that they are entitled to ask the court to infer, as I would infer, as submitted on behalf of the petitioners, that the principal reason for the advice to the Queen to make the Order for the prorogation of Parliament was to prevent or impede Parliament holding the Executive politically to account in the run up to Exit Day; to prevent or impede Parliament from legislating on the United Kingdom’s exit from the European Union; and to allow the Executive to pursue a policy of no deal Brexit without further Parliamentary interference.”

The Scottish court did not believe the reasons which had been given in those quoted documents were the true reasons.

They were false reasons.

The court stated that there had been an improper purpose.

*

Now we come to something which was missing from the case – and from the concurrent case in England.

The dog that did not bark in the night.

As a former government lawyer, it fascinated me that the court was being invited to look at the original documents for the reasons for the prorogation, and not a comprehensive witness statement of a minster or senior official setting out the reasons.

This lack of a witness statement was referred to in the judgment:

“[Advocate] was also critical of the absence of any affidavit, whether to explain the documents or otherwise to support the reasons for advising the Queen to make the Order. It was for the Prime Minister, submitted Mr O’Neill, to commit to a position on oath and render himself liable to cross-examination. I do not agree with Mr O’Neill on any of these points. In my opinion it is open to a court to look at any documentary production which is tendered to it and give it such weight as the court considers that it is worth.” 

This absence, in my opinion, was and is highly significant.

Why would no minister or official commit themselves to a signed witness statement, which would put the minister or official under the peril of perjury?

If the reasons as set out in the quoted documents were the true reasons, then there would be no reason why a minister or official would not sign a witness statement.

The only plausible explanation, it seemed – and still seems – to me is that no minister or official was willing to commit themselves to those being the true reasons for the prorogation, under pain of perjury.

If so, this would mean that they knew those were not the true reasons. So not only were those reasons false, they were known to be false.

*

This is when I wrote the article which was quoted by the Daily Mirror.

My reasoning was as follows:

1. There had been contact with the Queen by telephone, as well as a formal advice.

2. The Queen would have been give reasons for the prorogation, consistent with the documents quoted above.

3. Those reasons were not the true reasons for the prorogation.

4. Those giving the reasons knew that that they were not the true reasons for prorogation.

Point (1) is from the judgment; point (2) I inferred from the circumstances [ADD – and can be taken from John Major’s witness evidence, quoted below in the POSTSCRIPT]; point (3) was based on what the Scottish court found; and point (4) I inferred from the lack of a signed witness statement.

Based on this reasoning, I stated that – in effect – the Queen had been lied to. She had been given reasons which were false and which those giving the reasons knew to be false.

*

The Scottish case, like the concurrent English case, then went to the Supreme Court.

This was after my statement which was quoted by the Daily Mirror.

The Supreme Court approached the case differently from the Scottish appeal court – and in particular, the Supreme Court did not base its decision on improper motive.

It approached the case as follows (my emphasis added):

“For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

The crucial element here is the requirement for a “reasonable justification”.

And again, that lack of a witness statement made all the difference (emphasis again added):

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.”

That dog was still not barking.

*

Had the Supreme Court had a witness statement from a minister or official setting out the reasons for a five-week prorogation then, in my opinion, I think the government would have won the case.

(I have since spoken with a number of people involved in the case, and they agree.)

The potential importance of the lack of such a witness statement would have been known to the government’s litigation team, and that would have been conveyed to ministers and officials.

But still no signed witness statement was forthcoming.

*

So: I do not defend the Daily Mirror headline, and nor did I pretend to be summarising the reasoning of the court.

But, for the reasons set out above, I think I can maintain that, in effect, the Queen was lied to.

And if this was not the case, then there needs to be a better explanation than the ones that I have reached for (a) the reasons that were given to the Queen when the Prime Minister telephoned her, and (b) the reason why there was no signed witness statement setting out the reasons for the prorogation.

If someone can come up with a better  explanation than the above for (a) and (b) then I will change my view and recant.

But given the reasoning above, I am afraid I cannot escape the view that, in effect, the Queen was lied to.

 

**

POSTSCRIPT

I have been reminded that the former Prime Minister John Major, in his witness statement for the legal challenge in England, expressly stated that a Prime Minister would give reasons to the Queen:

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How the Good Friday Agreement means the United Kingdom government cannot leave the ECHR (without breaching the Good Friday Agreement)

12 August 2022

From time to time the demand will come from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious difficulty for the government in doing this.

The difficulty – if that is the correct word – is the Good Friday Agreement.

This thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

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

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including:  […] (b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission […]”

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

The ECHR is integral to the Good Friday Agreement – and that rights under the ECHR can be relied upon in Northern Ireland is a fundamental part of the agreement.

This means that if the United Kingdom (including Northern Ireland) leaves the ECHR there will be breaches of the Good Friday Agreement.

*

When this is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It would thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This is in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

And so, one can either have the United Kingdom outside of the ECHR or one can have the Good Friday Agreement, but it is difficult to see how you could have both.

*

There are other ways to deal with the problems (as perceived) with decisions of the European Court of Human Rights.

In 2012 – during the Conservative-led coalition – there was the “Brighton Declaration”.

And the Supreme Court is already unafraid of showing its independence, as it did in 2013 – and which was welcomed by Conservative ministers:

*

As this blog previously averred, there is also a distinction to be made between human rights law as a legal reality and “Human Rights Law!” as an event of political rhetoric.

Last October, the Lord Chancellor made a speech to the Conservative party conference where (tellingly) the only example he gave of a wayward human rights court decision was where the law had already been changed.

As such “Human Rights Law!” is often a turnip-ghost, which has been created by politicians and the media just to scare themselves and others.

For every actual problem with the ECHR there is a practical way of addressing that problem that does not require the United Kingdom’s departure from the ECHR.

And often, stripped of political and media gloss, the apparent problems are not there.

As with the Brighton Declaration, and as with the Supreme Court, problematic features of the ECHR and its application by the Strasbourg court can be dealt with in other ways.

Ways that do not also involve breaching the Good Friday Agreement.

That is what politicians should do.

And that – one hopes though no longer expects – will be what politicians will end up doing.

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Birmingham

10th August 2022

The Commonwealth Games of 2022 have just ended.

I am not huge fan of athletics, but it was wonderful to see my home city of Birmingham being given the opportunity to show off.

A taste can be seen of the closing ceremony here:

There may be other cities in England that have more famous musical legacies – but Black Sabbath, the Electric Light Orchestra, Joan Armatrading, the City of Birmingham Symphony Orchestra, UB40, Duran Duran, Dexys Midnight Runners, and so on, ain’t bad.

We produced Ozzy Osbourne and Jeff Lynne, Paranoid and Mr Blue Sky.

*

One thing about being a Brummie is that you learn very quickly that you and your city will get disparaged, and so you get your self-disparagement in first and quickly.

You meet people who want to say “Birmingham” in an accent which sounds Liverpudlian, or Welsh, or mildly deranged.

You hear the criticism of New Street Station – but you never let on that it is that ugly so that people are not tempted to get off the train and ruin it for the rest of us.

You learn that you can’t take things about your city too seriously for too long.

As Telly Savalas avers:

What makes that video especially wonderful is that Savalas did not visit Birmingham – indeed he may not have even seen the footage.

He did a voiceover gig from afar.

*

There is not even that much of a fixed identity.

For example, because I was born before the 1973 county re-organisation, I used to say I was born in Birmingham, Warwickshire.

But pesky details meant I was wrong: I was born in Birmingham, Worcestershire – as Selly Oak was then the other side of a county line.

There were parts of Birmingham which were Staffordshire.

It didn’t matter, the industrial and residential city just sprawled out in all directions, regardless of lines on maps.

And people came to Birmingham from elsewhere in the British Isles and from abroad.

All ended up Brummies.

In terms of religion, it was varied – strong Anglicanism vs Freethinkers (for example with the Priestley riots), Cardinal Newman and the strong Irish contingent, and then religions from around the world.

All together.

And economically and commercially, there was not just one trade and business dominating – but all sorts, from the Jewellery Quarter to the Bournville chocolate factory and the Longbridge car plant.

All mixed.

Birmingham did not even formally become a city until 1889, when it was already one the largest urban areas in the then-empire.

And then without really realising it, Birmingham somehow became the second city of the United Kingdom.

This irks those from Manchester and other pretenders – which is pleasing, as it is plain how much this status would mean to them – but most Brummies are a little bewildered by it, to the extent they think about it at all.

A Birmingham football team even were once champions of Europe, which is also bewildering even for those of us who support it.

*

From a law and policy perspective, coming from a big city that is not London is a useful corrective to a lot of the London-centric approach of the English government and British media.

Coming from a city that has grown and thrived on its own terms is a reminder that regions and localities have actual and potential power.

Birmingham did not become the second city because some people in London decided to generously “level up” a midlands town.

Birmingham – like many other cities – was just allowed to get on with it.

*

Of course: there is a less pleasant side.

Birmingham grew on the back of slavery and colonialism – and, indeed, the city’s gunmakers and chain-makers were the main suppliers of slavers and imperialists.

One day there may perhaps be a Bristol-like reckoning of this, or perhaps not.

The city is also the home of those remarkable political creeds “liberal imperialism” and “liberal unionism” – which meant elevated rights for those fortunate enough to be on this island, and no rights if you were under this island’s power.

Now forgotten, those political ideas put Birmingham – and the house of Chamberlain in particular – at the heart of British politics for sixty years from c. 1880 to 1940.

And you can perhaps trace back British exceptionalism to the “liberal imperialism” and “liberal unionism” of Joseph Chamberlain and his supporters.

*

So coming from Birmingham – like coming from any other non-London place – can give you a detached view of the law and politics, and the history, of the United Kingdom.

You may have a similar story and a similar view.

And the more it is realised that there is more to the United Kingdom than Westminster and Whitehall and the Square Mile, the better.

If the rest of the country is given its head – with independent access to resources and powers – then levelling-up may happen, and not at the behest of London.

And, who knows, another city could overtake us to become the second city.

We would have still have given the world heavy metal though.

And won the European Cup.

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The significance of Rishi Sunak’s Brexit Delivery Unit

8th August 2022

Here is a tweet and video to treasure:

But other than adding to the gaiety of the nation – or to its collective despair – this video and the proposal of a “Brexit Delivery Unit” are significant.

They signify a great deal about Brexit, and about what has not been done or understood by those in the governing party.

The United Kingdom joined what became the European Union in 1973 and it departed the European Union in 2020.

That is over 45 years of accumulated law and policy.

Brexit was never going to be “done” quickly – it may never be done at all, if Brexit is taken to mean that all that law and policy is to be disentangled and reconsidered.

And a great deal of that accumulated law and policy was shaped by the United Kingdom because it suited the United Kingdom.

Going through each regulation or other legal instrument derived from our membership of the European Union, and assessing whether divergence is both possible and beneficial, will take an extraordinary amount of time and effort.

And during a cost-of-living and energy price crisis, with increasing inflation and during a European war, you would think that the finite resources of the British state would have greater priorities than such a review.

There was also, of course, an actual government department dedicated to managing the exit and its implications:

https://twitter.com/LLocock/status/1556635543575752707

The department was abolished because Brexit had been “done”.

One gets the sense that those in favour of Brexit did not realise the legal and policy magnitude of the task ahead, just as they did not appreciate the economic and logistics consequences of departure.

That was all mere detail, it would seem.

For Brexit was not actually done to solve any law or policy problem or to address any economic or logistics concern.

To the extent there was a primary reason for Brexit it was to regain sovereignty – to “take back control”.

Well.

This is sovereignty, for what it is worth – there are over 45 years of accumulated law and policy from our membership of the European Union.

Two years after we have departed the European Union, the leading politicians in our governing party still do not know what to do with all that law and policy.

And so we have a leadership contender in 2022 announcing there will be a “delivery unit” for Brexit.

Which is an implicit admission that Brexit has not yet been done.

Indeed, Brexit has hardly begun.

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Is this an abuse of the law of contempt of court?

5th August 2022

I came across a case on BAILLI which I read with increasing concern, indeed dismay.

I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.

And I could not believe what I was reading.

I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.

The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.

The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.

Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.

But this case seems to show how contempt of court this can be abused by the injuncting party

The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.

The application seemed either spiteful or irrational – for a bad reason or for no reason.

And certainly not for any good reason.

The judge was not having any of it, and these two paragraphs give a flavour of the judgment:

Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.

Is this a case worth a close reading?

Is this an (attempted) abuse of power which should be be brought to a wider audience?

Or is this a storm in a lawyer’s tea cup?

Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?

I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.

I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.

There is a Law Gazette news report here.

And Adam Wagner has done a Twitter thread here:

Let me know what you think.

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The significance of a 2014 case about stuffed toys – and why illiberal lawyer-politicians should not be underestimated

4 August 2022

Here is an amusing tax case from 2014, from eight years ago today.

You will see why I am mentioning it.

The case was about whether a toy was a stuffed toy or not.

In particular, as the tribunal put it, it was about “how two soft children’s toy animals that contained a soundbox that produced soothing sounds, intended to assist babies and children to sleep, should be classified for Customs purposes”.

If the toy was regarded as a stuffed toy its classification would have one tax consequence, and if it was not a stuffed toy it would have another consequence.

And so, eight years ago today, in Bedford Square in London, a two-person tribunal earnestly debated with two barristers about the nature of stuffed toys.

The judgment is a joy:

“The Appellant’s principal contention had been that when there was no definition of the word “stuffed”, one should look to the intended use of the product to decide whether it was stuffed. In that quest, the word “stuffed” should be taken to suggest a toy designed to be cuddled and played with by babies and children.”

Against this, the HMRC’s barrister contended:

“The products could hardly thus be said not to be stuffed, when as a pure physical matter of content they were stuffed and they plainly looked to be stuffed, and when, even on the Appellant’s test that “stuffed” meant that the toy was suitable to be cuddled, it was indeed asserted that it was a “cuddly companion and toy”.”

The tribunal considered the point carefully:

“While there is no definition of the word “stuffed” in the present context, its meaning is relatively obvious, and indeed in turning to consider the function of the product and then asserting that stuffed products can be identified because they will be soft to cuddle, the Appellant itself assumes the same obvious meaning of “stuffed” in reaching the conclusion that it must mean something along the lines that will make a toy cuddly. And what makes a toy cuddly is of course the insertion of stuffing…”

And so the tribunal concluded, with a straight face:

“this product is a cuddly toy, and that it is stuffed.”

All good fun – and it is one of those cases, like the Jaffa Cake case, which lighten up the reports of tax cases, and so add to the gaiety of the nation.

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But why is this case of interest on 4 August 2022, eight years later?

Because the victorious HMRC barrister in that case is now the Attorney General, Suella Braverman.

And the case is significant because it shows that Braverman’s bread-and-butter at the Bar was everyday public law cases.

It is often contended that Braverman is not qualified or sufficiently experienced to be an Attorney General.

But in fact she was a perfectly competent barrister specialising in public law cases and indeed was appointed to the Attorney General’s panel to conduct cases on behalf of the government.

According to Bailii, she also acted in planning cases, both successfully and unsuccessfully.

As far as can be ascertained, the Attorney General had a good, wide-ranging public law practice, including advising on human rights law.

This blog is not a fan of the Attorney General, but it is important to be fair and accurate in what can be criticised.

It is sometimes assumed – perhaps condescendingly – that the reason why some politician-lawyers are illiberal about the law is because they do not really understand the law.

But the thing about Braverman and also the Lord Chancellor Dominic Raab is that they do have experience in and knowledge of public law.

Some may say that makes their illiberalism worse – for they “should know better”.

I think that is the wrong approach.

I think one should credit the illiberals with knowing and understanding the relevant law – it is just that they do not care for it.

And this means that those of us who are liberal in their approach to the law need to make a more compelling case for it than assuming the conservatives do not “get it”.

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

26th July 2022

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

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

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

And so on.

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

The second stage is more difficult.

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

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

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

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

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

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

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

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

You can read the letter here.

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

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

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

There was a follow-up question:

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

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

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

The question being asked was plain – and precise.

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

 

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

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

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

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

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

And what they do not say.

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

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

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

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

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

The admission is instead buried in the following text:

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

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

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

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

This wording is odd.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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There is something strange and worrying here.

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

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

Curious stuff.

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The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

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In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

“Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

“Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

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Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

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It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

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“Attrition” – a guest post by Joanna Hardy-Susskind

22nd July 2022

The guest post below by Joanna Hardy-Susskind is a remarkable piece of writing, and it may be one of the best ever UK legal blogposts.

It was published yesterday on the Secret Barrister blog and it is republished here, with the kind permission of both Joanna and SB, so that it can gain the widest possible audience.

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Attrition

In 1999, Baz Luhrmann topped the UK charts with Everybody’s Free (To Wear Sunscreen).

We used to play that song on the drive to school. I was 12. My mum drove a banger that we called Bessie. “Come on Bessie” we would cheer as she chugged up the hill. Sometimes Bessie let us down, but no one minded. She did her best. Bessie’s radio had a cassette player. I liked to watch it hungrily eat tapes and spit out a glorious pop sound. My mum played the Sunscreen song on repeat. I remember those days. I remember that song. And, recently, I remembered the words:

“Live in New York City once”, the song advised, “but leave, before it makes you hard”.

School was the local comprehensive. Students were the beneficiaries of textbooks-between- two, dicey Ofsted inspections and our very own Police Liaison Officer. We did our best with what we had. And, by pure chance, it transpired we had something better than wealth: we had luck.

I had the good fortune to be born to hardworking, tremendous parents. They taught me right from wrong and the grey areas in-between. They taught me that precisely nothing in this life was given for free. And that, for some, working twice as hard is required to even make the starting line.

I was determined. And I was lucky. I read. Ferociously. I liked the words. As an adult I sometimes pronounce words incorrectly because I have only read them in books. I occasionally do it in court. Judges look at me quizzically, my expensively educated opponents tilt their heads and I confuse them all by just beaming. “Here I am”, I think silently, “with people like you”.

I remember going with my dad to buy our first family PC. It was magnificent. I typed out the words I had read. I moved them around the page until they flowed. Until they sounded just so. I did not recognise it then, but I know it now – it was advocacy. I memorised syllabuses and mock exam questions and photosynthesis and Pi and Oxbow lakes and the Somme. An A Level was not something my school offered. So I navigated Sixth Form, UCAS, bursary and then scholarship applications. I moved word after word around page after page and I persuaded people. That I knew things. That I could pass exams. That I might have some promise.

I failed often. And, each time, I returned home to my parents and their relentless cheer. “You did your best,” my mum would say. After my Oxford interview, a rejection letter landed on the doormat. I read it and muttered “two of the other candidates went to the same school, the SAME SCHOOL.”

Sometimes, I still mutter it to myself.

But luck, like rage, has a habit of holding out. I got into Law school. Words fell into place there. Sentences and paragraphs and persuasion. I was good at it. But it took everything I had. Loans. Sacrifice. Scholarships. A brutal commute when the money ran out. “It will all be worth it one day love”, my dad would offer on our bleary-eyed 6am car journey to the station. He would drive in his slippers. I would eat cereal in the passenger seat.

To become a barrister then, you had to eat 12 dinners “in hall”. It was a heady mix of Harry Potter and a weird wedding banquet. I did not know any barristers – so I took my mum. We rode cheap off-peak trains, googled which forks to use and giggled in the Ladies’ loo after drinking Port.

In my final interview to become a barrister – with 2 vacancies for 300 candidates – I wore a second-hand suit from eBay. No one noticed. My words tumbled out persuasively. More so, it transpired, than the same old boys from the same old schools. When I got the job, I opened the box containing my barristers’ wig in our lounge. We all stared at it like it was a wild animal.

Off I went. Defending people. People who had less luck, less guidance, fewer words. Many of them hoped that the courts would be fairer to them than life had been.

The words did not prepare me for the fighting. For the people I had to fight for. The terrified 14 year old girl in custody who asked me for a tampon, the shamed 55 year old who had lost his job and stolen, the addicted 21 year old with the sobbing mother, the father concealing a wobbly lip for a son who had not done his best. “Keep a professional detachment” my elders would say and I would nod before going home to lie on my bathroom floor with a rock in my heart. On and on it went. The drivers, the employees, the teachers, the students, the children, the ordinary people who thought court was no place for them until it was. Human story after human story. Stories I recognised. The grey area between right and wrong expanded. And I fought. A first court appearance then paid £35. I would have done it for free if I had not been shouldering a five-figure student debt. The cases got more serious, the money got a little better, but the relentless conveyor belt never let me exhale. I measured my success in precious ‘Thank You’ cards I stored safely in a box.

When luck runs low, I read them.

The finances have never kept pace with the fight. With what is required of me. With what is required of the mass of legally-aided barristers who ultimately have to rely on successful partners, generous families or sheer luck to get by. But, money aside, it is the conditions that deliver the sucker punch. Without a HR department the job takes and takes. There is no yearly appraisal. No occupational health appointment. No intervention. No one to assess the toll. There is a high price to be paid for seeing photos of corpses, for hearing the stories of abused children and for sitting in a windowless cell looking evil in the eye. There are no limits as to how much or how often you can wreck your well-being, your family life, your boundaries. No limit to how many blows the system will strike to your softness. The holidays you will miss, the occasions you will skip, the people you will let down. The thing about words is that they sometimes fail you. When you emerge from a 70-hour week and notice the look in the eyes of the proud parents who propelled you here – but miss you now.

And then, slowly, but to the surprise of absolutely no one, my colleagues – my friends – began to leave. Now, everything runs late. “Counsel will have to burn the midnight oil,” the nice Judge chuckles to the nice jury before I go home to lie on my bathroom floor again. The cases keep coming. The backlog grows. I am increasingly numb to the cruelty of telling broken human beings that the worst thing that ever happened to them will not be resolved for years.

Trial dates creep into 2023. Then, 2024. I edit police interviews for free. I prepare pre- recorded cross-examinations for free. I write sentencing notes for free. I teach new barristers for free. I offer suicide-prevention advice for free. The government issue statements saying everything is fine and I read them over and over trying to work out how they did not realise that justice costs something. That this is all worth something. That some of us gave everything to be here.

And so, it was this week I was reminded of Bessie and the song and those words.

“Live in New York City once, but leave, before it makes you hard”.

Perhaps being a criminal barrister is like living in New York City. Do it once, sure. But maybe I should choose a time to leave. Before it makes me hard.

I find it too heart-breaking to look that decision squarely in the eye. But many have managed it. Perhaps they had no choice. Criminal Bar Association figures show an average decrease in real earnings of 28% since 2006. Our most junior barristers work for less than the minimum wage. We have lost a quarter of specialist barristers in 5 years. 300 walked away last year alone. We miss them. Their talent and company and humour. Their help in shouldering a backlog that now stretches to the horizon.

Though sometimes I feel it, I am not alone. This summer, my (learned) friends took brave and bold action. To make this profession a better, fairer place than when we arrived. For those who choose to remain. For those brave enough to leave. And for those of us, hopelessly in love with this job, who are yet to decide.

But, most importantly, we must make this vital, important job viable for anyone who is about to begin. Regardless of their starting line.

Joanna Hardy-Susskind is a criminal defence barrister.

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