United Kingdom Law and Policy – Page 2

Miscarriages of Justice: the Oliver Campbell case

21st September 2024

How a recent appeal case is instructive about how difficult it for the English legal system to right a wrong

Over at Prospect I have done a piece on the recent Oliver Campbell case.

Any person with an interest in miscarriages of justice should read the judgment in this case.

For what is striking about the appeal judgment is not so much that the convictions was quashed but just how close the court of appeal came to not quashing the convictions.

Indeed, if you read the judgment in a linear way, from start to finish (as opposed to how lawyers will tend to look at a judgment by skipping to the end), you have to wait until paragraph 133 before you see which way the court is going to decide this case.

Until this paragraph, the judgment reads as if all the grounds of appeal will fail: it is the judicial equivalent of a sudden brake turn on a lengthy journey.

Judges do not use words lightly, and so it is notable that the judge does not just say “unusual circumstances” but “very unusual circumstances” (emphasis added):

The exceptional nature of the case is again emphasised again a few paragraphs later (emphasis added):

In other words: the convictions were almost not quashed. It was a close-run thing.

But what happens next in the judgment is disconcerting.

By way of background: when the court of appeal quashes a conviction it normally considers whether there should be a retrial.

In the circumstances of this appeal – where 1991 convictions have been quashed because of reliability of the evidence of things said in interviews in 1990, and where the appellant has served ten years in prison for the offences – you may think that putting a brain damaged defendant through a retrial would not a good course of action.

But the court of appeal comes very close to ordering a retrial (emphasis added – and please read the reasoning in full):

How this could be a “finely-balanced decision” would perhaps astonish any sensible person.

The appeal judgment shows that Campbell was lucky three times: the Criminal Cases Review Commission made a reference in 2022 to the court of appeal (after it refused to do so in 1999), the quashing of the convictions almost did not happen, and the madness of a retrial in these circumstances was even more narrowly averted.

And a read of the judgment shows generally how difficult it is for any miscarriage of justice to be corrected – especially when the appeal relies on evidence that was before the original court, or on evidence that could have reasonably placed before the original court.

Of course: a justice system should be as much about quashing unsafe convictions as it is about imposing convictions.

But as averred in Prospect, the justice system of England and Wales imposes criminal liability with far more ease than it ever removes it. (Read the rest of my article here.)

Also of interest are the Criminal Cases Review Commission’s reasoning for the referral in 2022 and the informative pages of the estimable barristers of Foundry Chambers who acted for Campbell (here and here).

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Shamima Begum – and ‘de jure’ vs ‘de facto’ statelessness

21st August 2024

One striking – and troubling – aspect of the legal case of Shamima Begum is the artificiality of the United Kingdom state maintaining that she ever had the real prospect of going to Bangladesh.

The removal of her British citizenship was predicated on her being able to take the citizenship of Bangladesh, a country which she had never visited and to which she had no meaningful connection.

By way of background, this is from paragraph 1 of the relevant Court of Appeal decision:

“On 19 February 2019 Shamima Begum, then aged 19, was deprived of her British citizenship by a decision under s 40(2) of the British Nationality Act 1981 (“BNA 1981”), made personally by the then Secretary of State for the Home Department, the Rt Hon. Sajid Javid MP. Her appeal to the Special Immigration Appeals Commission (“SIAC”) was dismissed on 22 February 2023.”

Adding:

“Ms Begum was born in the United Kingdom on 25 August 1999. She was brought up in Bethnal Green in the London Borough of Tower Hamlets. Her parents are of Bangladeshi origin and, through them, Ms Begum had Bangladeshi citizenship until her 21st birthday.”

The Court of Appeal then noted:

“SIAC observed that Ms Begum’s case under this ground was straightforward: even if the deprivation decision did not render her technically stateless, it had that practical effect. One way or another, she could not go to Bangladesh, and that meant there was nowhere for her to go […].”

We are told by the Court of Appeal that material before the Home Secretary included a reference to this effective statelessness:

“On 18 February 2019 a ministerial submission with accompanying documents was received by the Secretary of State. The submission recommended that the appellant be deprived of her British citizenship on the basis that it would be conducive to the public good due to the threat that she was assessed to pose to UK national security. […]

“One of the annexes to the submission, dealing with the potential risks to Ms Begum of mistreatment contrary to Articles 2 and 3 of the ECHR, expressed the view that although there was a risk that individuals in Bangladesh could be subject to conditions which would not comply with the ECHR, the Secretary of State may consider that there was no real risk of her returning to Bangladesh. Neither the submission nor the annexes to it expressly considered the issue which forms the basis of Ms Begum’s third ground of appeal before this court, that if deprived of British citizenship she would be “de facto stateless”.

“The Secretary of State agreed with the recommendations in the submission on 19 February 2019.”

This was an eye-catching push-pull you point: on one hand, the Home Secretary was legally safe in taking away her British citizenship as Begum would in theory be able to go to Bangladesh but, on the other hand, he was also legally safe because in practice she could not do so.

One of the grounds of appeal of Begum before the Court of Appeal was:

“De facto statelessness: The deprivation decision was unlawful on account of a failure by the Secretary of State to have regard to whether the decision to deprive would render Ms Begum de facto stateless on account of her de jure Bangladeshi citizenship being of no practical value to her. SIAC correctly concluded that this was a mandatory relevant consideration to which the Secretary of State was required to have regard. However, SIAC erred in finding that the matter had been properly considered.”

In one paragraph, the Court of Appeal rejected this ground of appeal:

“It is not necessary to decide what might be difficult questions about whether the concept of “de facto statelessness” is established in international law. The point in layperson’s language is that Ms Begum had nowhere else to go. Until her 21^st birthday in 2021 she had Bangladeshi citizenship by descent but there was no realistic possibility of her being able or permitted to enter that country. The appendix to the ministerial submission made this clear, though in the context of whether she was at risk of treatment contrary to ECHR Article 2 or Article 3. As SIAC found at [302]-[305], this was sufficient to bring the issue to the attention of the Secretary of State, if he did not know it already. Despite knowing that she had nowhere else to go, in all practicality, the Secretary of State nonetheless decided that to deprive her of her British citizenship on grounds that to do so was conducive to the public good and in the interests of national security. He took that matter into account. The decision cannot be impugned on the basis that he did not do so. On the basis of the open arguments applied to the evidence that we have seen in open and closed, Ground 3 fails.”

In essence: it did not legally matter that the deprivation of her citizenship in fact (de facto) rendered her stateless, as long as (a) in legal theory (de jure) she was not stateless and (b) the minister considered this fact, and made the deprivation order anyway.

Begum then applied to the Supreme Court.

Some thought this would be a good case for the Supreme Court to engage with this extraordinary power of the UK state to take away a person’s citizenship – in some ways a person’s most basic legal right – in circumstances where in reality they would be rendered stateless, but as a legal fiction they would not be.

It could have been a Supreme Court case for the ages.

But, no.

In their short published reasons, they decided not to hear the appeal on his and her other grounds. On de facto statelessness, they provided these three paragraphs (emphasis added):

“The fourth ground of appeal concerns the fact that the deprivation decision resulted in the Appellant’s becoming de facto stateless, as there was no reasonable prospect of her being admitted into Bangladesh, of which she was a citizen. In this regard, it is argued that the Secretary of State failed to have regard to all material considerations.

“Both courts below found on the evidence that the Secretary of State had taken into account the fact that the deprivation decision would render the Appellant de facto stateless. There is nothing to indicate that that conclusion is vitiated by any error of law. The Appellant’s submission that the Court of Appeal failed to distinguish between the fact of de facto statelessness and the significance of that fact (the latter, rather than the former, being argued to be the mandatory relevant consideration) does not appear to the panel to raise an arguable point of law.

“The panel notes that the Appellant does not challenge the existing law that the prohibition, under section 40(4) of the British Nationality Act 1981, on making a deprivation decision which would render a person stateless, refers to de jure rather than de facto statelessness. Nor is it argued that the Secretary of State’s decision to make the deprivation decision, notwithstanding that its effect would be to render the Appellant de facto stateless, was unlawful because it was perverse.”

Begum may apply now to the European Court of Human Rights – a possibility which the Supreme Court alludes to elsewhere in its decision: “Whether the Convention law should be developed as the Appellant argues is a matter which can only appropriately be decided by the European court, as the authoritative interpreter of the ECHR. It is not the role of this court to develop the law under the Convention well beyond the principles established by the European court.”

But overall, this does not seem a satisfactory position.

There are many people in the United Kingdom who either through their parents or otherwise could, in theory, become a citizen of another country – even though they have no real connection with such a country.

The power used in the Begum case cried out for judicial consideration at the very highest level in our judicial system, but the Supreme Court appears to have shrugged – and, at best, passed the matter to Strasbourg.

Of course, we do not have all the facts about Begum – there may be evidence not in the public domain which justifies her exclusion; we do not know.

But the general principle about removing British citizenship requires anxious scrutiny by our highest court.

In 2020-21 the Supreme Court decided various technical points about Begum’s case.

It is a shame that the Supreme Court has now decided not to hear the substantive issue in her case.

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Lucy Letby and miscarriages of justice: some words of caution on why we should always be alert to the possibilities of miscarriages of justice

19th August 2024

Over at his Substack, the leading legal commentator Joshua Rozenberg states:

“There’s something about the Lucy Letby case that attracts conspiracy theorists. Maybe the truth — that a former neonatal nurse has now been convicted of murdering seven babies and attempting to murder seven others at the Countess of Chester Hospital between 2015 and 2016 — is just too awful to comprehend.”

The problem perhaps with this view is that miscarriages of justice do happen: indeed the criminal justice system of England and Wales is prone to miscarriages of justice.

This is not to say that the Letby case is a miscarriage of justice: I do not know, and I suspect almost everyone reading this post does not know.

But here are two reasons why one should be cautious about being dismissive.

First: in the words of a practising criminal barrister (and excellent legal blogger) Matthew Scott:

I was brought up in the Birmingham of the 1970s and 1980s – and I recall campaigners for the innocence of the Birmingham Six being called “cranks” – and far, far worse.

But those campaigners were right – and those who derided them and insulted them were wrong.

And second: as for the sentiment that some things are too awful to comprehend, one also has to remember the words of Lord Denning, an appeals judge who dismissed a civil claim from the Birmingham Six in 1980 (emphasis added):

“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.

“At the trial the same evidence about violence and threats was given all over again before the jury.

“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.

“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.

“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.

“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.

“It will take weeks and weeks.

“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.

“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.

“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .

“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.

“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.

“Whichever it is, the actions should be stopped.”

But the Birmingham Six were right – and Denning was wrong.

Sometimes there are appalling vistas, and those appalling vistas can be in any direction.

The vistas can be of horrible crimes (as Rosenberg avers) or they can be of horrible miscarriages of justice (which appalled Denning).

In either case, one flinches.

But I would submit the better view – vista, even – is not to dismiss those concerned about miscarriage of justice in serious cases as “conspiracy theorists” or “cranks” or whatever, but to patiently see if they have any point.

If they do have a point, then nothing has been gained by dismissing them; and if they don’t have a point, nothing has been lost.

And for what it is worth, of course, most failings in the legal system do not need to be explained by conspiracies, but by cock-ups.

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This week’s skirmish between the European Commission and X

17th August 2024

Law and politics are ultimately about how power is allocated and exercised within a given complex society. In particular, law and politics are about how such power is legitimised and about how it is checked and balanced.

And from time to time you will have visible contests between those with different types of power. The job of law and politics is then to regulate such contests so as to ensure that tensions do not harden into the contradictions that undermine the health of a polity.

These contests of power, when they happen, are fascinating.

Over at Prospect I have written a post about one such contest: the European Commission v X.

The latter has considerable media power: so much so that the content of its platform can often have a considerable real-world impact.

But the former also has considerable power – in the formulation of the laws that apply to the platform in the European Union and in the application of those laws in particular circumstances.

It is quite the stand-off.

When the European Commissioner responsible for the Single Market tweeted a letter last week, it reminded me of an earlier stand-off.

It evoked the stand-off in 1930-31 between the then government of the United Kingdom and the then popular press over tariff reform and imperial preference (the Brexit issue of its day).

That was a stand-off which, at least in the short-term, the government won.

(Tariffs were introduced later in the 1930s, though not directly because of media pressure.)

Often these tensions are hidden and managed out of public view, and so it is always interesting – and instructive – when they are done in public.

Something is up.

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And out the other side? The possible return of serious people doing serious things in law and policy

10th July 2024

There is a sub-genre of fantasy literature which can be called the “portal” story.

Here someone goes through a portal into a world similar to but also profoundly different from our own.

Since around 2015 we have in the United Kingdom been on our own political portal (mis)adventure.

We have collectively gone through the wardrobe, over the rainbow, down the rabbit hole, and past the second star on the right.

But now we may be emerging from our disconcerting expedition.

Over at the department of culture, the new secretary of state announces the end of the “culture wars”.

Obviously such a unilateral declaration of maturity and sanity can only have so much purchase. There is a great deal of what may be called the media-political complex which is wedded to various divisive talking points, especially given falling circulations and memberships. But for ministers to be moving on from such relentless infantilism is a start.

And in the province of law and policy – the staple of this blog – there seems to be a significant change.

Across the Ministry of Justice and the law officers’ department there have been impressive appointments.

We have a heavyweight KC as Attorney-General – the government’s chief legal adviser.

His deputy, the Solicitor-General, is an experienced and highly regarded environmental and planning lawyer, which suggests that it may not only be activists who will be taking a strategic view of what can be done with the law.

And there is the refreshing appointment of James Timpson as Prisons Minister.

On the face of it, these look like serious people capable of doing serious things.

If so, this would be marked contrast to the antics of various law officers and justice ministers over the last few years, from banning books in prisons to tweeting during live police investigations, and from performative dud legislation to leaking government legal advice.

Fortunately for the rest of us, the former governing party, now reduced to a rump barmy army in opposition, are embarking on their own awfully big adventure – and their screaming and hysterics should become fainter and fainter as their asteroid hurtles from the orbit of power for a while.

One cannot be certain that things back on Earth will change, and so it is important not to get ahead of ourselves: the new ministers may disappoint us just as their predecessors did – even if the disappointments will be of a different kind.

But that said, it is going to be strange to comment on a Ministry of Justice and the law officers when they are taking their tasks seriously.

To adapt the words of the eminent jurist Dorothy Gale:

“Toto, I’ve a feeling we’re not in Oz anymore.”

What if a parliamentary candidate did not exist? The latest odd constitutional law question which nobody has really thought of asking before

9 July 2024

What would be the legal position if a parliamentary candidate did not exist?

A non-existent candidate, yesterday.

This question is posed because of concerns currently expressed as to whether Reform Party candidates actually existed or not.

In this internet age, there will be suspicions that a person does not actually exist if they have no social media or other online presence. This sad fact probably tells us more about this internet age than it does about any (wise) person who has kept themselves offline.

A dishonestly presented fictional candidate would be such an extraordinary event at a general election that there must be a better explanation than it having happened. On this basis, this post makes no allegations of wrongdoing in any way. Instead, this post is for the public understanding of law.

However, such fictional candidates are not without precedent.

One tweeter unearthed this example from 2017:

The BBC news report indicates that the defendant was convicted not of any offence under election law, but under the general fraud offence of using a false instrument with intent:

Another tweeter, however, has pointed out that there is a corresponding offence under section 65A(1)(a) of the Representation of the People Act 1983:

This provides that it is a corrupt practice if a person causes or permits to be included in a document delivered or otherwise furnished to a returning officer a statement of the name or home address of a candidate at the election which he knows to be false in any particular.

A person providing a name and address of somebody who does not exist would presumably be caught by this offence.

The one “person” who cannot be prosecuted, of course, is the fictional candidate.

This is because they do not exist.

This is not just an amusing point, for much of the Representation of the People Act (understandably) presupposes the candidate does actually exist as a person. For example, here is the power for an election to be voided for general corruption:

Would this section (and other similar sections) still apply if there was not actually “any person” for the purpose of that clause?

The determination of that question would be an interesting judgment to read.

Would the lack of a person as a candidate be the basis for any election to be voided? If so, how? And, in what circumstances?

The wording of various provisions of the 1983 Act may have to have (non-existent) words implied in to them (“purposeful interpretation” as it is called) so as to deal with such a (non-existent) candidate.

Another interesting point is that it seems that proof of identity for a candidate may be now practically at a lower threshold than for an elector.

Here is the Electoral Commission guidance for returning officers (hat-tip):

That footnote “2” in turn refers to a couple of cases.

Of the first case from 1977, Westlaw tells us that it is authority that where there is nothing on the face of the nomination paper to raise a doubt as to the identity of the nominee, a returning officer is not entitled to investigate the authenticity of the name appearing thereon before deciding whether to accept or reject it.

(The second case, from 1975, turns more on the wording of the sub-rules of a local government statute.)

If this 1977 case is authority for the general position stated by the commission then it does seem a remarkable discrepancy that a voter has to prove their identity whilst a candidate does not.

The above post is based on research overnight, and on the help of other tweeters (which I gratefully acknowledge), as this simply is not part of my general constitutional law knowledge. It is not a question I have ever considered before.

As such, it would be wonderful if you would supplement (or correct) the above, if you have expertise in this area.

And, if you can, you do not need to prove your identity.

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The task before James Timpson: the significance of this welcome appointment – and two of the obstacles that he needs to overcome

8th July 2024

The appointment of James Timpson as prisons minister is welcome – indeed it is the most welcome appointment to this position that any sensible person can imagine.

But there are a couple of serious obstacles that he will need to overcome.

Before those two obstacles are described, however, let us remind ourselves of the Tale of Two Timpsons, for it perhaps tells us something significant about what is now our governing party.

When Edward Timpson – the younger brother of James – was selected as a candidate by the Connservative Party in 2008, this was the infantile response of the Labour Party:

Edward Timpson himself referred to this dreadful, crass campaign in an interview in May this year when he announced he was standing down from parliament:

So one thing the appointment this week maybe signifies is that the now governing party is rather more politically mature.

And the appointment also signifies a more mature approach to prisons policy.

(We can only hope that one day there is a similarly mature appointment in respect of drugs policy.)

James Timpson has an outstanding record in respect of rehabilitation of offenders, both at his Timpson business and otherwise.

He is, for example, chair of the Prison Reform Trust:

A post he wrote on appointment is worth reading here.

“We’re addicted to sentencing, we’re addicted to punishment,” he has said more recently.

“So many of the people in prison in my view shouldn’t be there. A lot should but a lot shouldn’t, and they’re there for far too long.”

This is therefore a sensible and enlightened appointment which deserves hearty applause.

But.

Timpson has (at least) two obstacles in his new position – and it cannot be certain that he can overcome them.

The first obstacle is that the track record of business people appointed as ministers indicates that they tend not to be successful as politicians.

There was John Davies under then Prime Minister Edward Heath, and he was not a conspicuous success.

There was David Young under then Prime Minister Margaret Thatcher who, despite been adept at telling her what she wanted to hear (“Other people bring me problems; David brings me solutions,” she is quoted as saying), was otherwise not a conspicuous success.

There was Archie Norman under then Leader of the Opposition William Hague, and he was not a conspicuous success (“I was the first FTSE-100 chairman to sit in the House of Commons and I will almost certainly be the last,” he said afterwards).

And there was Digby Jones under then Prime Minister Gordon Brown, who was also not a conspicuous success.

One reason for none of these business people being successful as politicians is that being good at business does not automatically mean that one will be good at politics.

Being good at politics requires specific skills – and there is no particular reason why a business person will have those skills.

That said, James Timpson is more than just a good businessman, he is a committed and knowledgable prison reformer – and this may make the difference where other business people have failed as front bench politicians.

But the reason this really matters in this instance is because of the second obstacle.

The second obstacle to James Timpson being successful as prisons minister is the structurally and politically weak position of being a mere minister of state in the Ministry of Justice – both against the Treasury and in respect of the news media.

Since 2005 prisons have been under the Ministry of Justice, having been moved over from the Home Office.

To an extent this was a good thing, for the less power the Home Office has over anything, the better.

But it was also a bad thing, for the it turned the Ministry of Justice from what was the old Lord Chancellor’s Department into a “spending” department.

And not only a spending department, but a small spending department – the worst of both possible worlds.

Part of the problem the Ministry of Justice has had since 2005 – under all administrations – is its weak position vis-a-vis the Treasury.

At least the Home Office had some departmental heft and a senior cabinet presence in its battles for public money; the Ministry of Justice almost has none.

And Timpson will not even be head of this department – the Lord Chancellor and Secretary of State for Justice is Shabana Mahmood (another welcome appointment).

Mahmood in turn will be fighting for money for the courts system and legal aid, as well as for probation and prisons. This puts Timpson further back in the queue for public money – to the extent any changes he wants to bring about requires investment.

And it will not only be the Treasury that will be need to be won over.

The right-of-centre news media is still wedded to the notion that prison works. They are, to use a phrase, “addicted to sentencing…addicted to punishment”.

It will take only one unfortunate incident of something done by an early released prisoner, and there will be a news-media fire storm.

Such a prospect would be daunting for even a seasoned politician saying prison works.

Those with long memories will recall how prisons failures engulfed David Waddington, one of the biggest hangers-and-floggers ever to be Home Secretary:

When prisons and probation things go wrong they are easy copy for time-poor news media. The screaming headlines will write themselves.

It is one thing to have warm applause and general goodwill on appointment, it is another thing when there is a horrific story on the front pages.

Being a prisons minister who believes in prisons working is hard enough.

Being a prisons minister who wants to achieve fundamental yet enlightened change is far harder.

So the task now before James Timpson is immense: to quickly become an effective Whitehall and Westminster politician so as to bring about a change in policy direction, in the faces of both a parsimonious Treasury and potential outright news-media hostility.

He has to bring about fundamental change to Whitehall’s long-settled prisons policy – one of the most difficult ‘asks’ in politics.

Yes, it is a brilliant, heartening appointment.

And if anyone can do it, James Timpson can. But it will not be easy.

One can only wish him good fortune.

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

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How the Met police may be erring in its political insider betting investigation – and why we should be wary of extending “misconduct of public office” to parliamentary matters, even in nod-along cases

28 June 2024

Some may be tempted to clap and cheer at the news that a Conservative politician is facing a Metropolitan police investigation in respect of alleged political insider betting.

But this may not be something to clap and cheer, given the potential implications.

By way of background, there is an offence under the Gambling Act in respect of “cheating” when gambling.

Over at Prospect I have done a post (click here) on that offence and why it is perhaps hard to prosecute in practice for insider betting – that is betting based on confidential information.

That said, if the Gambling Commission or any other appropriate investigating body or prosecuting authority believes it can make out a case for the “cheating” offence in these circumstances, then there is nothing inherently wrong with that.

But.

The Metropolitan police appear not to be investigating the politician in respect of the “cheating” offence – but for another offence, known as Misconduct in Public Office.

This is a far more easy and elastic charge to bring – although it is reserved for public officials and civil servants.

As such, this is the offence that the police officers allegedly caught up in this scandal face.

But the primary politician caught up in this matter is not and was not a public official or a civil servant.

At the material time he was what is called a “parliamentary private secretary” – an unpaid and nominal post which, as the “parliamentary” part of its title suggests, exists only the context of parliament.

In effect, a “parliamentary private secretary” is merely a ministerial bag-carrier and go-fer when parliament is sitting, a post to give to a certain kind of backbencher.

It is not in any meaningful way a public office.

If that is the basis for the hapless politician facing Met investigation then that is fundamentally misconceived.

(And if it is his (former) status as a member of parliament then that is also fundamentally misconceived.)

If there is misconduct as a parliamentarian then that is a matter for parliament, and not the police.

In essence: if the Gambling Commission or the Met can make out the “cheating” offence – or any other general offence – then they should proceed as normal. No sensible person would object.

But if the Gambling Commission or the Met cannot make out the “cheating” offence – or any other general dishonesty offence – then there should be no further action.

For the notion of the Met self-extending its remit so as to regulate parliamentarians under an inflated defintion of “public office” is an overreach.

All because an offence is seen as easier to prosecute it should not always be preferred.

For that, in itself, may be a form of procedural cheating.

What you need to know about commercial regulation, in the sports sector and elsewhere – for there is compliance and there is “compliance”

25th June 2024

Imagine you are a business person faced with an irksome or onerous regulation.

The regulation means that a course of action you would like to take for your business may not be available.

What do you do?

1. Breach

You can breach the regulation.

But if you breach the regulation then that can have adverse consequences for your business and even potentially for you.

In practice, this will depend on the nature of the regulation, the likelihood of detection and investigation, the likelihood of sanction, the seriousness of the sanction, and whether the sanction can be shrugged off as a “cost of business”.

A decision to breach a regulation can be be framed in terms of “taking a view” (this is an infamous phrase, as I set out in this 2022 post) – and obliging lawyers may use phrases like “this may upset the regulators” or “this may attract criticism”.

But whichever way it is dressed up, it is still a decision to take the risk of being found in breach of a regulation.

No sensible business would want to be found in breach of a regulation: it has knock on effects, especially if that business is seeking to attract investors, purchasers or to have good relations with companies that care about due diligence. It also risks adverse publicity.

So what else?

2. Challenge

You can challenge the regulation in court, usually be means of an application for judicial review.

This, however, is not common – for various reasons.

First, it is often not wise to upset your regulator.

Second, you may lose in court and even find the regulation is fortified by (for you, unhelpful) judicial comments.

Third, you may win in court and find that the regulator just makes the same regulation again but with better legal advice so as to render it challenge-proof.

Fourth, you are also unlikely to get damages if you win in court and you may not even recover your legal costs. (And those who say “it is not the money, it is a matter of principle” invariably do not still say so after the first lawyers’ bill.)

In practice, commercial judicial review is often the last resort, where the commercial consequences of not challenging a regulation outweigh any other option. Or commercial judicial review can be used in a strategic way so as to they and shape the activity of your regulator.

But, in practice, few regulated companies are in a position to fund and mount a court challenge to a regulation, even if they they would like to do so.

So what else?

3. “Compliance”

You can comply – or “comply” – with the regulation.

If you comply with a regulation then you lessen – and you hope eliminate – the risk of any sanction. You also do not need to fund any futile court challenge.

But there is compliance and there is “compliance”.

Here we nod towards a classic 1947 book by Stephen Potter: The Theory and Practice of Gamesmanship, or the Art of Winning Games without Actually Cheating:

And so, in practice, this is what most sensible regulated entities do when faced with an irksome or onerous regulation: they find a way of complying with it, either to their advantage or at least reducing the disadvantage.

It is akin to that old chestnut of a distinction between “tax avoidance” and “tax evasion”.

(The difference often being the quality of the advice.)

This is because regulation generally is not magic, and particular regulations are not spells. An undesirable activity cannot be extinguished just by typing out a law against it, any more than it can be banished by pointing a wand at it and reciting some cod-Latin.

Yes, there is often the call that “something should be done” and that there be “crackdowns” and so on.

But good and effective regulation is not easy, and not only does a regulator need to have the wit and the resources to enforce the regulation against breaches; the regulation itself needs to be crafted so as to limit creative “compliance” and also so as to avoid undesirable knock-on effects.

There is a fourth, longer-term approach, which is to engage with your regulator so as to avoid irksome and onerous regulations in future.

This is called “regulatory capture” – and it is what will tend to happen in any regulated commercial sector over time, despite the good intentions of those who set up the regulatory regime.

But in the shorter-term, creative “compliance” is often the preferred course. And if done in a smart way, there is little or nothing that can be done.

And now we come to football.

If you think about it, it should not be any great surprise that those that make money out of games are particularly good at gaming a system.

Just as a team can develop a style of play that benefits from whatever offside rule is in force that season, and thereby benefits more often than not from VAR, then a football club as a commercial organisation can work out how to work within a given system to its commercial advantage (or at least to minimise disadvantages).

(Yes, I am an Aston Villa fan.)

The current regulations about profit and sustainability (PSR) are based, like many regulatory regimes, on good intentions.

But if good intentions were always enough, there would be no need for regulations.

That transactions between football clubs now are carefully – somewhat artificially – structured so as to comply with this PSR regime should not be a shock. Indeed, it would be shock if this was not the case.

But it is less clear what any of this now has to do with sustainability – other than perhaps to sustain certain privileged clubs in their privileged positions.

(Yes, again I am an Aston Villa fan.)

All because, as with football, there needs to be some rules in place in respect of how clubs operate as commercial entities.

But there is a distinction between formulating a rule and achieving the desired regulatory outcome.

From time to time, there will be breaches and perhaps challenges, but the real problem will be when the issue becomes “compliance”.

That is, of course, until the unhappy regulated entities are able to change the rules of the game.

UTV

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Seven changes for a better constitution? Some interesting proposals from some good people.

24th June 2024

In the Times today there is a letter published from various good sorts putting forward seven practical and easy-to-make steps for a better constitution.

One of the signatories, David Anderson, helpfully posted the letter on Twitter:

Of course, changes to form and structure can only take us so far. The biggest problem of recent years has been an underlying lack of constitutionalism from government ministers (cheered and clapped by their political supporters). And until attitudes change, then rules will always be gamed or ignored and discretions abused.

But, there has to be a start somewhere to repair the damage, and these are interesting proposals.

The suggestions appear to be:

independent enforcement of a new ministerial code;
establishing new systems for managing conflicts of interest;
ditto, for lobbying;
improving regulation of post-government employment;
ensuring appointments to the Lords are only made on merit;
ensuring other public appointments are rigorous and transparent; and
strengthening the independence of the honours system, including by ending prime ministerial patronage.

The worthies aver that legislation is not necessary for most of these changes but a short bill would create the necessary powers and embed the independence of the ethics and integrity system.

Some may say that these proposals are a little “apple pie” – but they would be a move in the right direction, the least that can be done.

Words like “ensuring” and “strengthening” are easy to type – and they are almost as easy to put at the start of a sterling bullet point.

But what is the actual check on misuse? Who in practice will have the power and authority to say “No” to a trespass by a minister of the crown (or by a former minister of the crown)?

The robustness of any regulatory system is not so much in the rules being themselves commendable, but in the rigorous enforcement of those rules and in the ready and realistic availability of sanctions for breach.

In a word: there needs to be tension.

And in our constitutional arrangements, as they stand, only parliament and the courts – rather than third party agencies – have the strength and the legitimacy to check the executive on an ongoing basis, and so for each of these seven laudable aims, one question is how they can be enforced against the government’s will by other strong and permanent elements of the state.

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

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

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