Category: United Kingdom Law and Policy

Coronation notes from a non-militant republican

7th May 2023

We will start with a very British thing, a red post box.

This is is one of about 171 post boxes which, if you look carefully, have the insignia and cipher of Edward VIII.

The point, of course, is that there was never a coronation for Edward VIII.

But this fact did not stop him being king – or from exercising any of his prerogative or other powers, including signing his own instrument of abdication and giving royal assent to the Act to which the instrument was scheduled:

He was R.I. (king and emperor) all the same.

This reminds us that, from one perspective, a coronation has almost no legal or even constitutional significance.

The monarch rules from the moment the last monarch dies.

There is no need for a coronation for a monarch to rule.

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But.

From other perspectives, a coronation has immense constitutional significance – even if it makes little legal(istic) difference.

For a coronation provides the point where a new monarch enters into a number of oaths, covenants, promises, undertakings, contracts, and so on, that exist to remind the new monarch and everyone else of – in effect – the transactional and consensual nature of modern kingship.

And, in a far less secular way, a coronation reminds us of the supposed relationship between the new monarch and the Christian god and the established church in England – for this is also a basis of modern kingship.

Indeed, without an understanding of the relationship of the monarch with the established Church of England one would not grasp how kingship, and thereby the constitution, developed after the Reformation.

No Church of England, no political crisis of 1688-89 and no Hanoverian succession in 1714; and with no political crisis of 1688-89 and no Hanoverian succession in 1714, our political development would probably have been very different.

So a coronation has immense significance – in that it signifies various things about our constitutional arrangements, even if new letter boxes would get the new royal signage anyway.

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A coronation is also a reminder of who does not have ultimate political power.

There is an old line – an untrue and grossly unfair line – about Ringo Star not even being the greatest drummer in the Beatles.

(In fact, he was and is a great drummer.)

Yet it was a line that came to mind during the ceremony yesterday.

The prime minister was not even the most prominent member of his own cabinet.

Indeed, during his reading he seemed like as much an onlooker as the rest of us.

His more junior cabinet colleague – who happened to be the Lord President of the (Privy) Council – had a far more conspicuous role.

(And we are perhaps fortunate that it was Mordaunt in place and not other recent Lords President of the Council.)

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One way of thinking critically about constitutional matters is to not focus on who has what power, but on what powers various actors do not have.

And, as this blog has averred many times, the one key feature about the crown in our constitutional arrangements is not so much about the power it has, but about the power it deprives others from having.

So, in contrast with say the inauguration of a president in a republic, our head of government is a but a bit-player at the coronation of the new head of state.

Yes, this is largely symbolism – but it also put the democratic (and demagogic) element of our polity in its place.

Some may say this is a good thing, some may say it a bad thing: but yesterday the head of government was just another commoner, albeit one with a brief speaking part.

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Of course, as this blog contended a couple of days ago, a confident monarchy should be unafraid of challenges, even on coronation day.

As such the reported heavy-handed police treatment of some protesters was wrong and inappropriate.

Yet, even if the protesters had been left free, they would never have had any effect.

For this country is not going to be a republic.

Never.

So those of us who are not monarchists have got to accept this, and work with the constitutional arrangements we have to make those constitutional arrangements better than they are.

That perhaps is the greatest constitutional significance of the coronation: we are still a monarchy, and that ain’t ever going to change.

And the monarchy will still be there, when even red post boxes will be gone and forgotten.

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“The King’s Champion” – why a confident monarchy should welcome challenges on coronation day

5th May 2023

Here is a remarkable, and as this post will contend misconceived and historically illiterate, take on the coronation:

And here is a similarly misconceived message:

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Let this blog introduce you to the King’s (or Queen’s Champion).

According to that history website:

“Originally it was the champion’s duty to ride, on a white charger, fully clad in armour, into Westminster Hall during the coronation banquet.

“There he threw down his gauntlet and challenged any person who dared to deny the sovereign’s right to the throne. The king himself of course, could not fight in single combat against anyone except an equal.

“It was only at the Coronation of Queen Victoria in 1838 that the traditional ride and challenge was left out of the ceremony. Henry Dymoke – Queen’s Champion at the time – was created a baronet by way of compensation.”

And here at Wikipedia is more information – and a splendid pic:*

And akin to the familiar challenge in a wedding ceremony, the challenge was expressly made:

“If any person, of whatever degree soever, high or low, shall deny or gainsay our Sovereign Lord [     ], King of the United Kingdom of Great Britain and Ireland, Defender of the Faith, son and next heir unto our Sovereign Lord the last King deceased, to be the right heir to the imperial Crown of this realm of Great Britain and Ireland, or that he ought not to enjoy the same; here is his Champion, who saith that he lieth, and is a false traitor, being ready in person to combat with him, and in this quarrel will adventure his life against him on what day soever he shall be appointed.”

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Times change, and the nature of challenges change, but the essence is just the same.

A confident monarchy should welcome challenges on coronation day.

Offering this challenge was part of the reason there were coronations.

From a constitutional and legal perspective, a coronation has little significance: the new monarch rules and can exercise powers on the death of the last monarch.

The function of the coronation is therefore largely symbolic: and part of the symbolism was to show off the confidence of the new monarch by offering a challenge to, well, challengers.

Bearing this in mind, let us go back to the take quoted above.

“The Coronation is not the moment to start an argument about the future of the monarchy” – yet hundreds of years of the king’s champion says otherwise.

“Our tolerance for any disruption…” – imagine the, ahem, disruption of a knight arriving to challenge the coronation.

Perhaps it is understandable though that some pundits and the police don’t realise that coronations were once about challenges as well as about validations.

After all, it would take a sense of history.

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How Prince Harry’s legal case shows how the phone hacking story has returned to the start of a circle

26th April 2023

The news about the royals and hacking, well summarised and analysed by Joshua Rozenberg at his Substack, brings us back to the start of a circle.

For the phone hacking story only came about because of the royals.

The story came about because the Fleet Street press of the time – with their well-connected links with the Metropolitan police and the private investigation mini-industry, and unchecked by fearful politicians – sought access to information from the voicemails of the royal household.

Because the royal household became involved, the matter was passed to different police officers at the Metropolitan Police, who then raided and took compelling evidence from private investigators.

And in Scotland Yard that evidence was stored, and it became relevant to civil claims some years later, and then suddenly the scope and extent of tabloid phone hacking became apparent.

But without the royal household connection, the crucial evidence would not ever have been seized and stored, and without that evidence being available for later litigation, the hacking story may never have emerged.

What happened shows the practical importance of the monarchy to our politics, regardless of constitutional theory and conventional wisdom.

It seems only the monarchy has any autonomous power when the police and the media and the politicians collude.

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Such crude phone hacking now seems from another age – technologically, culturally, politically, legally.

After the current crop of cases it may well be that the phone hacking litigation comes to an end.

Prince Harry’s various cases will then perhaps be the other bookend to that provided by the original hacking of the royal household telephones.

But as the parties attend hearings at the Royal Courts of Justice in the Strand, the sophisticated surveillance and data retention by the state and technology companies continues at an unimaginable scale, again unchecked by either politicians or the media.

The phone hacking of a media generation ago seems like a garden shed affair compared with a huge urban conurbation of the exercise of “investigatory powers”.

Any abuses and misuses (or even uses) of the current technology will, in turn, probably never come to light so as to horrify.

Unless, of course, the abuses and misuses (and uses) affect the royal household.

And only then, maybe, will we ever get to hear about it.

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Why Raab’s frontal attack on the Human Rights Act failed, and why the Home Office attack on human rights law is succeeding

25th April 2023

One big error by the former Lord Chancellor Dominic Raab was how he went about dealing with human rights law.

Raab insisted on outright repeal of the Human Rights Act 1998, and nothing else.

As this blog has previously averred, the Act was the Moby Dick to his Captain Ahab.

The Act had to go.

And this approach failed, even from an illiberal perspective.

For the Human Rights Act 1998 is still there, and Raab is not.

A more effective approach from an illiberal perspective is not the full repeal of the Act, but to slowly bit-by-bit reduce its effect and restrict its scope.

Take this simple clause 1(5) from the Illegal Migration Bill:

That is all that needs to be done.

For the Human Rights Act 1998 is only a statute, and what one statute provides another can take away.

The Act does not, from an illiberal perspective, need to be repealed: it can instead be subjected to dozens of similar “notwithstanding” clauses, in new legislation and amending old legislation.

There is no point in saying: don’t tell the government this!

Those in the government already know – that is why the Home Office lawyers have put that clause in the Bill.

They do not need Raab’s cavalry charge of full repeal: they can be more effective operating on the flanks, picking off targets as they choose.

Of course, if the government goes too far there may, perhaps, be an adverse adjudication by the European Court of Human Rights on such legislation.

But that would be a cost of government business, sometime down the road, and not something to prevent putting in such clauses now.

And the pushback against such clauses will be harder than defending an entire Act from repeal.

The government can and will be more savvy in its illiberalism.

And this is far more concerning, from a liberal perspective, than Raab’s futile whale-hunt.

The Human Rights Act 1998 may now be safe from repeal, but the reach of human rights law in primary legislation is certainly not safe from attack.

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Blaming the blob

24th April 2023

There is an enduring myth that great political reforms can be achieved while antagonising those expected to put those reforms into practice.

That a lone genius or “hard” taskmaster wondering around, say, Whitehall can effect fundamental social and economic changes while also battling and even belittling the civil service.

This is not to say that such a figure cannot have political impact: headlines can be produced and even votes can be won.

But to actually achieve change on a national – or even regional and local – level requires administration.

In essence: ministers and their advisers need to have senior officials and other civil servants on their side.

Senior officials and other civil servants may not agree personally with the politics of the government of the day (and when I was a government lawyer I was certainly not a Blairite, and I still am not), but most public servants do take being non-partisan seriously in their work.

Wise ministers – of all major parties – know this.

Having a “culture war” against the “blob” is therefore not a form of policy-making and implementation, but a substitute for it.

It is what one does when one actually is not serious about effecting reforms.

Since 2016, in particular, there have been many attacks on, and removals from, the senior civil service.

And when policies fail because of the automatic operation of, well, reality, “remainer” and “obstructive” and “activist” civil servants are blamed instead.

But such complaints are the sounds of failure.

What those wanting to drive through fundamental change need to do is work with public servants rather than against them.

Of course, there will be group-think and conventional wisdom, but a minister through their private office and with intelligence can challenge and offset such things without confrontation or rancour.

Ministers and their advisers would do better to remember that they can either achieve change or “take on” their departments, but not both.

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Waiting for yet another report

20th April 2023

This evening those who take an interest in Westminster politics are waiting for yet another report.

The report – this time into allegations against Dominic Raab, which he denies – has been delivered.

It is reported Raab has read it and sees no reason to resign, and so it is now up to the Prime Minister whether Raab should be sacked, and the Prime Minister has not decided.

It seems not vey long ago we were all waiting for the Sue Gray report, and there have been various other reports and inquiries, some of which have been quietly abandoned.

The purpose of this short post is not to preempt the report: I have not seen it and, as of today, almost certainly neither have you.

Instead it is to mark that, again, reports and inquiries are taking the place of traditional politics.

Perhaps this practice is a good thing: that information is compiled before a decision is made.

But perhaps it also a bad thing: for it enables ministers and others to avoid and even evade responsibility and accountability with an investigation takes place.

It almost a contracting-out of democratic and representative functions, at least in the short- to medium-term.

And the practice is now as much a part of our polity as the more formal elements that would be detailed in a constitutional text book.

Somebody should maybe commission a report into the practice, so that we too can put off doing anything about it.

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The next eighteen months

18th April 2023

The next general election, we are told, is likely to be within the next eighteen months.

The last general election, back in December 2019, returned the Conservatives with a whopping, substantial majority.

That majority, in turn, can be seen as having been the electoral dividend of Brexit – of getting Brexit “done” – and also of seeing off the Faragist Ukip and then Brexit parties, as well as routing Corbyn’s Labour Party.

It was, in political turns, a highly successful partisan political manoeuvre.

Boris Johnson and his party in December 2019 had the very greatest prize the constitution of the United Kingdom could bestow: a large single-party majority in the House of Commons.

Something the Conservative party had rarely had since the governments of Margaret Thatcher.

And what has the governing party done with this huge majority since 2019?

The government has ****ed it away.

The Conservatives have, so far, nothing substantial to show for this big majority.

Zilch.

And time is now running out.

It may well be that the Conservatives will not have another opportunity with such a large majority – and some Conservatives perhaps know it.

There is perhaps not enough time for the governing party to force through any controversial legislation –  especially if there is opposition in the House of Lords.

But Conservative ministers will know that this is probably their last chance: to validate the the 2019 general election result, and perhaps to validate the Brexit that made that election result possible.

As the clock runs down, we can expect louder and more extreme positions to be announced – on “culture wars” and other things – notwithstanding there is almost no time to get legislation through.

There will be attempts to use (and misuse) ministerial powers and delegated legislation.

The government will be in a hurry.

For not only is the next general election at stake, but perhaps the validity of the whole enterprise of Brexit.

The next eighteen months are going to be frantic and noisy.

The more time runs out, the more frantic and noisy the government party will become.

And, if the Conservatives do lose the next general election, that frantic noise may come to be seen in retrospect as a death rattle.

 

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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Cute baby dragons and the law of copyright

3rd April 2023

There has been another amusing (at least to outsiders) copyright case.

This one is about cute baby dragons.

You do not often get – usually earnest – case reports with illustrations like this:

And it is not often that a judge gets to start off a judgment with a couple of paragraphs like these:

This is all splendid stuff – and this judgment adds to the gaiety of the world of intellectual property law, if not to the gaiety of the nation.

This judgment is well worth reading in its own right – and you can can read it here – and the purpose of my post is not to summarise the case, but to offer some commentary from the perspective of someone fascinated with both the practical law of copyright and the lore of fantastical creatures.

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On the face of it, the case was weak – and two key weaknesses stand out.

First, there was no direct evidence whatsoever of copying.

Copyright is usually about copying – the clue is in the word copy-right: it is (or should be) the law which regulates rights of copying the works of others.

In this case, any copying was to be inferred – for example by whether the defendants had access to the original work.

The judge makes short-shrift of this:

“[…] the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other High Court Approved Judgment […] That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.

The claimant was not even able to show that the work had been accessed:

“…the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.”

The second – related – weakness is that dragons are a fairly generic subject.

One claimed similarity was that both the dragons breathed fire.

Well.

That is what dragons tend to do.

Had the two works, say, had fire-breathing baby wombats…

…then that would have been a remarkable coincidence which may need explanation.

But it is perfectly possible for two creative minds to concurrently conceive of a cute baby dragon with fire-breathing difficulties.

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What does require explanation, however, is how a case as weak as this ever got to a hearing, let alone a judgment.

In civil litigation, few threatened claims ever get litigated, and few of those claims that are litigated ever get to a hearing.

This is because most civil claims are either not continued with when their weaknesses are pointed out, and those which do continue tend to get either thrown out at an early stage or settled.

Those cases – especially in the expensive High Court in London –  that end with a public judgment are rare.

And so when we get a judgment like this, one question to ask is: how on (Middle-)Earth did this case get to trial?

I am not privy to any legal materials other than the public judgment, but I think one clue may be in the successful counterclaim.

The defendants sought two remedies against the claimant.

The first was a (positive) declaration of non-infringement – which would go further than merely defeating the claim in public:

“There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration […]. The Claimant has not suggested any special reasons why it should not be granted, and as I have made clear at the start of this judgment, I consider that it would suit the useful purpose of making clear to the public and the industries in which the Defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this Court, providing some justice to the Defendants without any appreciable prejudice to the Claimant.”

The second was for what is called a publicity order:

“…there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty […]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. [Claimant’s counsel] submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance.”

If this was a claim that could have been knocked-out by the defendants at a preliminary stage, or settled as a nuisance claim, but the defendants insisted instead on going to trial, then obtaining these two very public remedies may have been an understandable case strategy.

The claimant’s use of publicity was very much a two-edged dragon-slayer.

And the claimant’s solicitors were also robust in their use of publicity:

The solicitors’ tweet linked to this spirited (ahem) puff piece:

 

In the end, the claimant suffered adverse comment in the judgment:

“[the claimant] was a little cagey, I felt, about a series of press releases in which she made allegations of copyright infringement against John Lewis, which she drafted and released to the media in November 2019, December 2020 and November 2021. She first said that she released them as she considered that it was in the public interest to do so, and then said that she gained confidence from public support. It was put to her that the press releases were made in order to promote the sale of her books and the financing of a proposed musical based on FFD. At first she denied it, but then accepted that they were, in part, for self-publicity. She denied deliberately releasing them to coincide with the launch of the John Lewis adverts in each year, and sought to say, in effect, that was mere coincidence, and she had chosen the timing as certain particular stages of these proceedings had been reached.”

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Presumably the claimant was advised that bringing any legal claim means that she would have to be prepared to go all the way to trial.

For although most civil claims settle, the paradox is that to obtain a worthwhile settlement you have have to be prepared to go to court if your case does not settle.

And the claimant was presumably also advised that any adverse public judgment would more than offset any gains from publicity along the way.

The claim looks just – just – about arguable – but without any evidence of access, let alone copying, and with a subject being something as generic as dragons – it was never a claim that had any strength.

And given the implicit attack on the integrity of the creatives working for John Lewis, there was always a serious risk that the defendants would just let it go to court and apply for the two remedies that they obtained.

It was a daft case to bring.

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The judgment, however, is a useful document.

For it not only provides a fable of what happens to a weak case that ventures into the dragon’s cave of the High Court, it also provides an informative and detailed account of a creative process.

As such it is a judgment that should be read by anyone – lawyers and non-lawyers – who is interested in the media.

And, indeed, the High Court has, helpfully, self-published its own illustrated version.

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The tragedy of the Human Rights Act

27th March 2023

Here is a playfully mischievous tweet from the Guardian:

And how we can – and perhaps should – laugh at the irony of a newspaper that has attacked the Human Rights Act relying on that same Act when it is in its interests.

It is not even the first time – here is Associated Newspapers seeking to rely on the ECHR in respect of the Leveson Inquiry  and here is Associated Newspapers seeking to rely on the Human Rights Act in 2006.

And there is nothing – absolutely nothing – wrong with Associated Newspapers seeking to do this.

For that is what the law of fundamental rights is for: they can be relied by (or sought to be relied on) by anybody.

There are useful rights for the media generally and journalists in particular under the Act.

And in other jurisdiction – notably the United States – the media and journalists are conscious of the fundamental rights they can rely on and can point to provisions that protect those rights.

The tragedy of the Human Rights Act is that despite it providing rights on which the media and journalists can rely, it is also despised in many in the media and journalism.

There is a mismatch between the reputation of the Act and the substance of the Act.

In the United States it would be unthinkable – even now – for any media organisation to call for the repeal of the First Amendment.

If only media organisations in the United Kingdom were as protective of Article 10 of the ECHR.

But there is a disconnect.

The newspaper in-house lawyers know about these provisions, and they will not hesitate to rely on the ECHR and the Human Rights Act when they can.

But across the office floor, there is not attachment to Article 10.

And that is part of the tragedy of the Human Rights Act.

Over twenty years since it took effect, it is still seen by so many in politics and the media as a partisan ornament rather than a practical instrument.

So entrenched is the dislike for the legislation it is tempting to support repealing the Act and replacing it with a new statute with exactly the same provisions but with a far less contentious name.

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