Category: United Kingdom Law and Policy

The public service of an “Enemy of the People”

22nd June 2024

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Of majorities and “super-majorities”

21st June 2024

The greatest prize that the constitution of the United Kingdom can bestow is a substantial parliamentary majority at a general election.

With such a majority you can be confident to pass major legislation, not worry too much about backbench opposition, and even face down the House of Lords.

And so one of the most remarkable things about the current government – which brought about its own emphatic general election victory in December 2019 by (among other things) “Getting Brexit Done” is how little use it has made of this great prize.

Some people are suggesting that after this next general election (in less than two weeks now) the Conservative may now be out of government for a very long time. Who knows? But if so, that will be a lengthy period for the politically-right-of-centre to kick themselves for not having used their chance to drive through fundamental reforms when they had it.

Many people would find it difficult to name – other than Brexit – one fundamental reform which current government has driven through with primary legislation. The last few Queen’s and now King’s speeches have been limp affairs.

All that political and legislative power – as close to absolute power that our constitutional arrangements can admit – and nothing, or close to nothing.

Given that part of the reason for the Brexit referendum and for then “getting Brexit done” was for the political advantage of the Conservatives, it seems odd. What was the (party political) point? All that chaos and dislocation, for this?

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In the early 1990s the Conservatives lost their overall majority under John Major and then were out of office from 1997 – and in a long haul, and via a coalition, they eventually gained an overall majority only in 2015.

They promptly threw that away in 2017.

They then exploited an exceptional political situation in December 2019 and got that majority back, and then did nothing much with it.

And now that second chance at an overall majority is about to end.

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Over at Prospect – please click here to read – I have done a post on the fears of a Labour “super majority”.

But what Tories should fear is not the use of a “super majority” but just the effective use of a sustainable and substantial parliamentary majority.

And that can be quite the forceful thing, not that the outgoing government ever really cared to use it.

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The strange omission in the Conservative manifesto: why is there no commitment to repeal the Human Rights Act?

12th June 2024

As each party manifesto is published online, and for my own easy amusement, I like to search the pdf for words like “enshrine” and “clear”.

And after that easy amusement, I look for more serious things.

Yesterday the Conservative manifesto was published.

(Many “clears” but disappointingly only one “enshrine”.)

What were the Conservatives were promising (threatening) this time for the Human Rights Act?

 

Doing something to this Act has been a mainstay of every Conservative general election manifesto for as long as I can remember.

But the search return was…

…0/0.

I am a clumsy typist and so I thought: a typo. Let me try again.

And it was still a nil return.

Something must be up with the search function, I thought.

And so I tried “ECHR”.

I even typed out in full the “European Convention on Human Rights” and the “European Court of Human Rights”.

Nil, nil.

How odd.

Could it be that the manifesto actually did not threaten the Act or the Convention?

Well.

A closer look revealed one fairly oblique mention:

Of course, the European Court of Human Rights is not meaningfully a foreign court: it has British judges, British lawyers can appear, British residents can petition the court or appeal cases there, and its caselaw can be relied on in our domestic courts. Foreign law usually is a matter of expert evidence, but Strasbourg case law is part of our own jurisprudence.

It is an international court, of which we are part, rather than a foreign court.

But that is by-the-by.

What is significant is not this sort-of commitment, but the lack of any other promises (or threats).

It is an astonishing, unexpected absence for a Conservative manifesto – perhaps the manifesto equivalent to leaving a D-Day commemoration early.

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Over on Twitter, Adam Wagner noticed the same:

Of course, it must be noted that government has recently been disapplying the Act on a statute-by-statute basis, rather than making any full frontal attack.

But even taking that point at its highest, one would still expect an explicit manifesto commitment just for the claps and cheers of political and media supporters.

And this is a governing party that needs all the claps and cheers it can get.

It is a remarkable omission.

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And one suspects it is an accidental omission, for the governing party has little to gain by leaving it out, and something to gain electorally (or at least hold on to) by leaving it in.

If so, the possible significance of the omission is that the Conservative leadership, having got bored with the pretence that the Act will ever be repealed or substantially amended, simply are not thinking about it any more.

Their minds have moved on to other “red meat” for their more illiberal supporters.

But what it also means is that, in the highly unlikely event of the Conservatives staying in government after 4 July 2024, there is no manifesto commitment they can rely on in forcing any changes to the Act through the House of Lords.

What that in turn means is that the Human Rights Act will now be safe for the lifetime of the next parliament, whatever happens at the general election.

And that itself is quite a thing.

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The predicted governing party implosion in historical and constitutional context

11th June 2024

From time to time the party now known as the Conservative and Unionist party has done badly – very badly.

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In 1828-32, the old Tory collapsed as what some historians call the British “ancien regime” itself collapsed with Roman Catholic emancipation and the Reform Act of 1832.

Relatively moderate Tories, “Canningites” like Melbourne and Palmerston, went off to join with the Whigs.

But the Tories were back in government by 1834, and rebranded as by Peel as “Conservatives” they had an overall majority by 1841.

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In 1845-46, the Conservatives collapsed as the Corn Laws were repealed (the “Brexit” of its day.

Relatively moderate Conservatives, “Peelites” like Gladstone, went off to ally themselves with the Whigs.

But the Conservatives were back in government by 1852, and after reinvention by Disraeli they had an overall majority by 1874.

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In 1905-06, the Conservatives – now allied with the Liberal Unionists – collapsed, in good part because of splits on tariff reform and imperial preference (the “Brexit” of its day).

Relatively moderate Conservatives, “Free Traders” such as the young Winston Churchill, went off to join the Liberals.

But the Conservatives (who formally fused in 1912 with the Liberal Unionists to create the current Conservative and Unionist party) were back in government by 1916, and (posing as a national coalition) they had an overall majority by 1918.

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And in 1997, the Conservatives lost badly, in good part to splits on the European issue following Maastricht and Black Wednesday (the “Brexit” of its day.

There were a number of defections of (now forgotten) Conservative politicians to the Labour and Liberal Democrat parties.

But the Conservatives were back in office by 2010, and they had an overall majority by 2015.

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The four examples above have common themes – including the facts that the Tory-Unionist-Conservatives-National Coalition managed to get back into office again, before winning an overall majority at a later election.

There is also the example of 1945, where a heavy Conservative defeat was followed by taking office again by 1951.

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But there is one theme which is different, and which may make what happens after the imminent general election in 2024 different.

After each of the defeats referred to above, the defeated rump of the party pretty much remained. It did not go off to create a new party to their right.

And so as the pendulum of politics in time moved away from those who had defeated that rump, they were able to take advantage.

Of course, they also often took the time and effort to rebrand or reinvent themselves. And they were able to take advantage of working with others, such as the Liberal Unionists after 1886 and the other parties in national coalitions from 1918 to 1935.

But they never had to deal with a party trying to take their place as the main party opposing the more left-wing party.

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Here an analogy may be with the Liberals, who last won an overall majority in 1906 – and were then after 1906 outpaced by the rising Labour party.

All because the Tory-Unionist-Conservatives have come back each time before, it does not mean that they necessarily will do again.

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The “first past the post” electoral system tends to favour established parties with their established brand names – and tribal loyalty and voters’ muscle memory will tend to do the rest.

As such, the Conservatives have an advantage over the Reform party now trying to outpace it to the right.

It may well be that the Reform party do no better than flash-in-the-pan(ic) parties like the “New Party” of 1931-32 and the SDP of 1981-88.

But when the electoral system finally shifts against a party, it shifts – as the Liberals found out after 1906.

And until and unless there is fundamental electoral reform, the Conservatives not only face heavy defeat (which they have survived many times before) but also a spirited attempt by Reform to be their replacement.

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So, if as widely predicted there is a heavy defeat for the Conservatives on 4 July 2024, will they soon bounce back as they (and their previous incarnations) did after 1832, 1846, 1906, 1945 and 1997?

Or will this be their equivalent to what happened to the Liberals in 1906?

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The unwelcome weaponisation of police complaints as part of ordinary politics

31st May 2024

Here is a news snippet that showed the sheer dislocation in our politics.

It is from 2022. You may remember the context.

There was always something that seemed wrong about “Beergate”.

But one has to be careful to identify exactly what was wrong.

The proposition that politicians were subject to the law is one which should get universal assent in a liberal society.

And that the course of police investigations should not be subjected to political interference is another fine principle.

Instead the problem was about how the complaint and investigation was weaponised politically.

It appeared that politically motivated complaints to the police were to become a feature of our politics.

And that did not seem right.

Less obvious, however, was what to do about it.

For, as this blog has averred before, not every political problem has a solution.

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“Beergate” was not to be a one-off.

The tax affairs of Angela Rayner also led to a politically motivated complaint to the police and to a clamour on newspaper front pages.

And, just as with “Beergate”, the serious allegations were found not to warrant any further action.

But again it is less obvious what formally can be done about it. What law could be enacted or policy adopted to make sure It Never Happens Again.

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This week at Prospect (click and read here) I set out that any solution will have to come from the world of politics and not the legal system.

There should be a self-denying ordinance: a sense that this is not acceptable politics.

And, if that does not work, we can only hope the tactic becomes seen as ineffective, and it falls into disuse.

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Thoughts on the calling of a general election – and on whether our constitutional excitements are coming to an end

Another inquiry report, another massive public policy failure revealed

21st May 2024

There are so many governmental scandals that it is difficult to keep up with them all, and one horrific scandal this blog has not before covered is about contaminated blood.

This week this inquiry report was published, and even a cursory view of its conclusions is evocative of the public policy failures that have been covered here.

 

There are two points in particular which will stand out for followers of this blog.

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The first point is that it appears that officials did not tell ministers everything. You may recall that this was also the problem with the Post Office horizon scandal. You may also recall that the Afghan war crimes inquiry has also revealed that officials were not forthcoming – and even obstructive – even when there was a determined minister seeking explanations.

It is this disconnect – if not breakdown – between ministers and departments that undermines and indeed discredits the old doctrine of individual ministerial responsibility (which I also wrote about at Prospect).

A minister cannot be meaningfully responsible to parliament (and thereby to the media and the public) if they themselves are given duff and misleading information. As the techies among you will know: GIGO – or garbage in, garbage out.

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And this leads to the second point: this inquiry is yet another example of an exercise in accountability that should and could have been undertaken by parliament and in real-time. (My Prospect piece on this is here.)

Instead, and long after many of the key events, it has been left to an inquiry to show what happened at the material times – and what went wrong at the material times.

As such, this is another example of failure by our parliamentary system to provide proper, real-time scrutiny.

Parliament is simply not well-equipped to force information and materials out of an unwilling government. Parliamentary questions are easily batted back; select committees have few real powers to prise out documents.

And our media is also not well-equipped. Press offices are unhelpful when the queries are unwanted; freedom of information in the United Kingdom has no real teeth. A great deal of press scrutiny – perhaps too much – is dependent on briefings: information is disclosed only when it suits someone in government.

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How many more inquiries – with damning detail and revelatory narratives – are we to have before we realise that it is parliament that needs significantly strengthening?

Parliamentarians should have access to coercive powers to compel evidence from ministers and officials which are no less powerful than those available to public inquiries.

And parliamentary questions as a norm should be addressed to and answered by the actual officials responsible, rather than the evasive and convenient fiction that ministers are responsible for entire departments.

But all this would require taking parliament seriously.

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On how regulating the media is hard – if not impossible – and on why reviving the Leveson Inquiry may not be the best basis for seeing what regulations are now needed

Star Wars Day, 2024

I once came across a quote in a history book which I have never been able to re-find. It was from an acquaintance of I think Lord Randolph Churchill (Winston’s father), or perhaps of Benjamin Disraeli, and it was along the lines of:

“Dear Sir, you do not believe that there are actually solutions to political problems?”

This astonished admonishment from a Victorian politician has lingered.

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There is a conceit in the notion that just because a problem can be stated it thereby can be solved. Maybe this fallacy comes about by reason of human optimism, that articulating a problem means that somewhere somehow it can be remedied.

If course, stating a problem accurately and plainly is a necessary condition of it being solved.

But it often is not sufficient – at least not in terms of public policy.

And one problem is how, if at all, the media should be regulated.

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Not long ago the media were far easier to regulate.

This was because there were fewer media entities to regulate and the ability to publish and to broadcast was more restricted.

Indeed, until the 1990s it was was actually quite difficult for most people to publish or broadcast to the world – or even to circulate things beyond your immediate circle or place. You had to go through gatekeepers who had a near-monopoly of the means of publication and broadcast: newspaper titles, publishing housed, broadcast stations.

From time to time there would be the spirited eccentrics who would, say, set up up a pirate radio station in the North Sea or self-publish books and pamphlets. But such self-publication was derided as a “vanity”.

(Little did they realise the upcoming relentless mass self-publications of social media.)

That such self-publication was possible at least in theory was always an important principle- indeed, it was the original meaning of the phrase “freedom of the press” (a 2012 New Statesman post on this is one of my favourite pieces).

But few if any sensible people had a press at home, even though could have one.

Now most people have access to the means of publishing and broadcasting to the world.

The device you are reading this on is no doubt capable of such worldwide publication or broadcast, at least via a social media platform.

And just as it was once odd to possess a personal printing press or pirate radio ship, it is now similarly odd not to personally possess something capable of far greater publication or broadcast.

For want of a better word, this is an information and communications revolution. A fundamental shift, comparable to the first writing and alphabets, or the invention of movable type.

And the implications of this revolution are still being worked out – if they can be worked out at all.

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How – if all – can media be regulated now that everyone is a potential publisher?

My day job is as a media and communications (and commercial) lawyer – constitutional law is a mad hobby – and I see everyday the attempted use of law and policy to try to make people and companies do things (and not do things) which they otherwise would not do (or would do) but for that law and policy.

Such regulation is hard. Sometimes it is ineffective. Sometimes it is ignored. Sometimes it has unintended effects. Sometimes, even, it works.

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Turning to the wrongful conduct of parts of the news media in the first decade of this century (and before), there is no doubt bad things happened – and there is also no doubt that we do no know the extent of the bad things that happened.

And the one thing that can be correctly said of the Leveson Inquiry – and of the criminal and civil litigation that followed – is that a lot of these bad things were placed into the public domain which otherwise would not have been placed into the public domain.

This was a boon for the public understanding of the news media.

But.

The purpose of the Leveson Inquiry (of which only one of two parts took place) was to use that investigation for the purpose of proposing a new regulatory model.

And this is where there is maybe a category error.

For what happened in the UK news media before around 2012 is not a good data set for regulating the news media in 2024 and beyond.

Indeed, it is far harder to say what is now news media. You cannot walk down Fleet Street and its environs and point, saying “there” and “there” and “there”.

For example, if a freelance journalist has a social media following of hundreds of thousands they often can have a bigger “circulation” than any title they work for. In those circumstances, what practical purpose would there be in just regulating the latter? And if you try to regulate the former, at what point do you stop trying to regulate everyone?

Anyway, please now click here and read my article at Prospect on whether “Leveson 2” should take place.

And tell me and other readers of this blog what you think.

For, dear Sirs and Madams, you – unlike me – may believe that there are actually solutions to political problems.

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Law and lore, and state failure – the quiet collapse of the county court system in England and Wales

22nd April 2024
One theme of my blogging is the relationship between law and lore. By ‘law and lore’ I mean what people believe to be the law to be, as opposed to what the ‘black letter’ law actually is.
Few people, if any, regulate their lives by what the law actually is – for no (normal) human being can know the detail of all the laws that apply at every moment of their lives, from statutes and by-laws to contractual terms and conditions. The best that one can do is know as much actual law as you can and hope that what you believe about law corresponds with what the law actually is.

(And, of course, it may not always be plain what the law actually is, in any case.)

Another theme of my blogging is state failure. By ‘state failure’ I mean the acts and omissions by and on behalf of public officials and public bodies that indicate fundamental and/or systemic failings.

Sometimes these state failings can be hidden deliberately from the public and indeed politicians and the media, and sometimes there is perhaps no need to deliberately hide them as too few people care. In either case the ultimate problem is either lack of resources or lack of accountability, or both.

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Over at Prospect I have done a piece that illustrates these two themes: the unsexy and perhaps uninteresting topic of local civil justice – and in particular, the county court system.

Please click and read here.

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I fell onto this topic by chance. I was looking at the transcript of the recent ‘liaison committee’ of the House of Commons for something I am writing about parliamentary accountability. This committee, comprised of select committee chairs, is one of the few recent improvements in holding the executive account, with its periodic examinations of the Prime Minister.

At the most recent session, I saw that the Justice committee chair devoted about half his allotted questions to the county court system. He could have chosen many other topics – from international law to prisons – but this was the subject he selected. That in turn led me to seeing that the justice committee has started an investigation into the county court system. Such an inquiry is welcome.

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The reason the county court system combines state failure (of which it is an example) with law and lore is that, for most people the county court system would be where they would enforce their everyday legal rights and obligations in respect of civil law – contract, torts, family law, property law, and so on.

Few people would be able to commence such litigation in the more expensive and exclusive High Court – just as few people would be able to lunch at the Ritz.

Of course, most people will not ever litigate. Indeed most people will happily go through their lives without attending a county court – or even knowing where their nearest one is situated.

But they will conduct themselves often on the assumption that certain rights and obligations can be enforced ultimately.

However, if the county court system continues to collapse, then that assumption will become increasingly academic. In essence, what people believe they can enforce at court will become more lore than law.

This is not to say that there will suddenly be anarchy and lawlessness: systems of customary oral law can be very enduring, and some systems of non-enforceable law can be rather resilient.

But eventually the mismatch between what is understood to be the law and what can actually be enforced will have some effect, and that effect will, in turn, modify behaviours – and in an adverse way.

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We are getting close to local civil justice not being meaningful to many in the community.

Let us hope that, unless local civil justice is somehow revitalised, that the lag between law and lore is a long one.

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How the civil justice system forced Hugh Grant to settle – and why an alternative to that system is difficult to conceive

17th April 2024

Hugh Grant has acted in many counter-intuitive scenarios.

But the situation he described today on Twitter is perhaps the most counter-intuitive predicament of them all:

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Grant has been correctly advised by his lawyers – both as to the legal position and that he should settle.

Had Grant’s lawyers not given that advice they would have been negligent: this was the legal advice that had to be given.

But it seems wrong – how can this be the position?

And what can be done to change it?

These are good questions – though the second question does not have an easy answer.

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First let us strip the case of the celebrity of the claimant. We shall the claimant [X].

And we will strip away also the notoriety of the defendant. We can call them [Y].

Now consider the following:

– X is suing Y for damages in respect of a tort committed to X by Y.

– Damages is a money remedy.

– Y offers X more money than X would be likely to win at court if the case does go to trial.

In this circumstance, what should be done?

As the claim is only for money, and more money is offered than the claimant would receive if the case goes to trial, then what is the point of going to trial?

From one perspective, there is no point in the case continuing. After all, X is seeking damages – a money remedy – and X is now receiving money – more money than they are likely to be awarded by a court.

This perspective is the traditional one in English civil litigation: a claim in tort for damages is just another money claim, and so it can be addressed by money.

It does not matter if the tort is negligence, or copyright infringement, or misuse of private information, or whatever. Damages are the thing.

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But.

For a claimant there may be a desire for a public determination by a court of their claim.

A claimant here can point to, say, the relevant part of Article 6(1) of the European Convention of Human Rights:

“In the determination of his [or her] civil rights and obligations […], everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…”

Surely, X – here, Grant – is entitled to “to a fair and public hearing” with the judgment “pronounced publicly”?

Surely?

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Well, you would think so.

And in a technical (but somewhat artificial) sense, Grant has not been refused his public hearing and public judgment. There is no express prohibition on him continuing.

What has changed is not his entitlement to a public hearing and to a public judgment – both are still available – but the consequences of him exercising his entitlement.

These consequences are because it is seen as a good thing – generally – for civil cases to settle before trial where possible.

And so the rules of the court are that if one side offers a high amount in settlement then the other side should be, in turn, encouraged to accept that offer.

Such settlements save time and money for the parties and they save scarce resources for the court system.

And as many claimants in money claims are concerned with, well, money then an early offer of money is often welcome.

In general terms: why should X and Y have to go to court if the matter can be resolved before trial?

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Some offers to settle are flexible, and can be set out in correspondence marked “without prejudice” or “without prejudice save as to costs” (though for many non-lawyers and even some lawyers, these terms can be employed incorrectly and counter-productively).

But the rules of the court have also fashioned a man-trap of a procedural device which we can presume was used in the Grant litigation.

This is the…

(drum roll)

…Part 36 Offer.

 

Part 36 is a powerful procedural weapon – for good and for bad – perhaps the most powerful single provision in the civil procedural rules.

Part 36 offers are to be taken seriously – very seriously – by both sides.

In essence, Part 36 provides teeth – like a man-trap – to an offer to settle.

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A Part 36 offer is usually an offer to settle the entire claim.

If it accepted them the the legal costs of the claimant up to the offer are paid.

Hurrah!

But.

If the Part 36 offer is not accepted then the pressure is on the offeree to “beat” the offered amount a trial.

And if the offeree does not “beat” the offered amount, then the effects are much as Grant says in his tweets.

The offeree has to pay the other side’s legal costs, despite winning the case.

And the stressful thing is that the judge who awards the damages will not be shown the Part 36 offer. The judge will not know what the parties know.

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It is a very brave – or foolish – party who rejects an even-plausible Part 36 offer.

In practice, there is an art and a science to the timing and setting of Part 36 offers. At the right moment and at the right amount, a skilled litigator can bring a civil claim to a speedy halt.

There is also – unsurprisingly – extensive case law about what constitutes a Part 36 offer and what constitutes acceptance, and so on. This case law is because so much depends on the offer being valid.

It is a man-trap in the middle of a mine-field.

If and when to make and accept (or reject) a Part 36 offer is often the single most important decision a party and their lawyers will have to make in any valuable civil case.

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In the Grant case, it is apparent that the alleged tortfeasor chose now was the best time to set the man-trap.

It would have to have been for a substantial amount – which was higher than the likely amount to be awarded to Grant.

It was an offer he could not refuse.

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But.

Understanding the purpose of Part 36 – to make parties consider their positions seriously – does not counter the sense that there is something wrong here.

Yes: the Grant claim is a claim for damages.

But it was also a claim for the court to determine whether there had been wrongdoing by the defendant, which is denied.

And now there will not be a judicial determination – and the defendant can continue to maintain its lack of liability.

A Part 36 offer, as a settlement offer, is not an open admission of liability – or of culpability.

You can see why Grant and others are upset.

The defendant has been able, in effect, to again purchase its way out of any admission or a determination of any wrongdoing.

The defendant has adopted a clever and deft litigation strategy – and it is working well, insofar as no admissions or determinations have been made.

Surely this cannot be acceptable?

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The issue is that Part 36 works well for many relatively mundane cases.

It means the claimant can get a generous offer of money at an early stage of a case, with their legal costs met. It means a defendant has to err on the side of generosity in the amount that is offered.

It means that hard-headed decisions about the litigation have to be made at an early stage, rather than put off for trial.

In essence, what seems wrong in the Grant case is also what goes well for damages cases generally.

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There is an exception to the automatic operation of Part 36 – a court has the discretion not give effect to the consequences of Part 36 if it is “unjust”:

But that is a very high hurdle to meet: and a judge in the Grant case may not be easy to convince that it would be unjust in what is a damages claim for Grant to suffer the consequences of rejecting what was a generous Part 36 offer.

That Grant wanted a public determination of culpability by the defendant would not, by itself, make a Part 36 offer unjust.

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The hard question is how the system could be changed so that Part 36 could not be used as it has been in the Grant case – but still could be used in other damages claims.

And there may not be an easy answer.

Perhaps there can be a public interest exception – where a certified claim will not meet the normal consequences of not beating a Part 36 offer.

Or perhaps the “unjust” exception could be widened to have regard to the wider public interest.

Whatever the solution – if there is a solution – it would need to not have adverse consequences for those claimants that achieve early resolution of their damages claims against powerful defendants.

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The ultimate problem, of course, is that this damages claim was doing the work which should have been by other parts of the legal system – and by the aborted part 2 of the Leveson inquiry – where clever and deft use of the civil procedure rules would not help the defendant.

(No doubt lawyers skilled in those alternative procedures would employ their own tactics.)

But this was a damages claim – an important damages claim with wide implications – but still a damages claim. And from a litigation perspective, that is how it has been dealt with, and the claim is now resolved.

Perhaps the upcoming claim of Prince Harry will lead to a determination of wrongdoing.

Perhaps he is the claimant brave – or foolish – enough to reject a generous Part 36 offer.

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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.

More on the comments policy is here.