Category: United Kingdom Law and Policy

Another weekend, another threat to leave the European Convention of Human Rights

6th February 2023

Here we go, again.

This was a news report in yesterday’s Sunday Times:

The content of the report itself does not quite amount to the “pledge” of the headline – but the content of the report is not without interest:

“The PM has been clear he wants to introduce legislation that meets our international obligations,” a source familiar with Sunak’s thinking said. “This bill will go as far as possible within international law. We are pushing the boundaries of what is legally possible, while staying within the ECHR. And we are confident that when it is tested in the courts, we will win.

“But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts.

“If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”

Senior figures say the prime minister is prepared to deploy the nuclear option before the general election if the European court strikes down his plans. But that would put the government on a collision course with MPs and particularly the House of Lords, and it is highly unlikely it would happen before the election due in 2024.

The Tories would then put withdrawal from the ECHR at the heart of their manifesto, drawing a sharp dividing line between the Conservatives and Labour. The plan is proof, allies say, that Sunak shares the hardline instincts of the Tory right on immigration.

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What can we make of this?

Perhaps this is just a weekend frolic: a political source contriving something so as to get the weekend press coverage they want at the end of another difficult week.

If so, this would not be first weekend this has happened, and it probably will not be the last.

And in any case, the last part of the news report quoted is probably political bravado: the sound of an anonymous source getting increasingly excited by what they are imparting.

But the first part looks to me as if it may be tied to the circulation of internal government legal advice.

So with my former government lawyer hat on, let us look what could be the situation:

1. The government has a plan to deal with the boats and this plan requires legislation.

2. The government has obtained legal advice on that plan and perhaps even on the wording of the draft legislation.  This advice may be internal advice from the government legal service, and/or it could have been obtained from external specialist counsel.

3. That legal advice is that both the plan and the draft legislation may be compliant with the Human Rights Act 1998 which gives effect to the ECHR in domestic law and, if so, they will be upheld in the domestic courts.

4. However, that legal advice may also include the proviso that the ultimate  arbiter of the ECHR, the European Court of Human Rights in Strasbourg may take a different view – either on a final or on an interim basis.

5. A minister – perhaps the Prime Minister – has decided to proceed with the plan and the legislation on the basis of this legal advice.

If the above analysis is (roughly) correct then the politics of the situation may unfold as follows.

First, if the domestic courts and/or the Strasbourg court hold that the plan and/or the legislation is/are not compliant with the ECHR then it is not the government’s fault but that of the judges and the lawyers.

Second, if the the plan and the legislation is/held to be compliant then the government had won its showdown with the judges and the lawyers – by threatening to leave the ECHR the government has got the courts to cower.

In either scenario, the government will be beyond blame.

The politics of the situation would be, if the above is correct, a win-win for the government.

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But.

If the government does lose, and the courts hold that the plan and/or the legislation is/are held not to be compliant with the ECHR, what about the threat to leave the ECHR?

This is the bit which is not really thought-through.

As this blog has set out previously, the Good Friday Agreement requires the ECHR to be enforceable directly in the courts of Northern Ireland.

(The Human Rights Act 1998 currently does this for Northern Ireland, as well as for the rest of the United Kingdom – but it does not matter what legislation does it, as long as it is done.)

There is no obvious way that the ECHR can be enforceable directly in the courts of Northern Ireland if the United Kingdom is not a party to the ECHR.

Even attempts to carve out the jurisdiction of Northern Ireland from the rest of the United Kingdom – creating yet another legal(istic) border down the Irish Sea – are unlikely to work.

This is because Article 1 of the ECHR requires its signatories to secure to everyone within their jurisdictions the rights and freedoms set out in the ECHR – and so the United Kingdom cannot be a signatory for some parts of the United Kingdom and not others (emphasis added).

And unless the United Kingdom is the signatory, the ECHR cannot have legal effect so as to be directly enforceable in the courts of Northern Ireland.

The alternative possibility that Ireland still being a signatory to the ECHR could be used as the legal basis for giving direct effect to the ECHR in the courts of Northern Ireland would presumably be a non-starter with the unionist community.

In essence: if the United Kingdom leaves the ECHR then it would seem the United Kingdom will be in breach of express provisions in the Good Friday Agreement.

And all this would be in addition to the reaction of the United States of America to a breach of the Good Friday Agreement – especially as long as Joseph Biden is President.

It is impossible to see how withdrawal could be done without upset.

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Of course, some would say it is a pity that it is only the Good Friday Agreement that would prevent the United Kingdom government leaving the ECHR.

Surely there are better arguments against leaving than that?

But even if there are better normative points to make on behalf of the ECHR, the Good Friday Agreement would be a formidable structural obstacle to withdrawal.

And changing the Good Friday Agreement would probably need the consent of at least the Northern Irish in a referendum, if not that of the voters of Ireland too.

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And it appears that current Conservative backbenchers are underwhelmed by this threat, with one correctly using the technical legal term “willy waving”.

As Politico reports:

Enough of the willy waving: Playbook has seen texts exchanged in the “Home Group” of Tory MPs in response to the story over the weekend. Replying to a message from Jonathan Gullis, who had shared it approvingly, Doyle-Price said that “willy waving about leaving the ECHR will do zilch” and declared: “I have been a member of the Conservative Party for 36 years. This group leaves me cold. Upholding the law should never be a matter for debate for a Conservative. Our Home Office is crap. If the government wants to have a phone[y] war over the ECHR instead of sorting itself out it can do it without me.”

Everyone’s a critic: There was more backlash in the group from David Simmonds, who said that “the ECHR is not the issue here. By pretending it is, we are setting ourselves up for a fall as a UK court will take the same line,” and called for reform of the asylum system. Alicia Kearns agreed that “it’s exactly as David sets it out. We cannot tackle asylum claims when we haven’t given ourselves the legal grounding on coming here illegally.” Anna Firth said that while she was happy to be proven wrong, she thought Doyle-Price was “bang on the money” about the ECHR “rabbit hole.”

[…]

On the record: Bob Neill told the Financial Times that it would be “unbelievable” for the U.K. to put itself “in the same company as Russia and Belarus” by leaving the ECHR, while former justice sec Robert Buckland calls it “an undesirable state of affairs.”

 

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What seems to have happened is that that a political castle was improvised this weekend on the mound of what probably is some fairly unexceptional legal advice about whether the government’s latest plan and draft legislation would survive legal challenge at home and in Strasbourg.

On the basis of that legal advice, politicians and their advisers appear to have rapidly gamed certain political tactics, free from any thought about the structural legal problems, as well as without realising the lack of backbench support.

This is not to say that the current governing party is not capable of putting departure from the ECHR in its manifesto and, if they are again returned, seeking to put that commitment into effect.

(Withdrawal from the ECHR is unlikely before the next general election, as it was not in the 2019 Conservative manifesto, and there would be not enough time to force it through the House of Lords.)

In this age of Brexit and Trump, no such political move can be discounted.

But it would not be easy.

And it would require considerably more thought and planning than the current anonymous briefings indicate has taken place.

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Beware of judges employing rhetoric: a note on Lord Denning and his “appalling vista”

3rd February 2023

Yesterday on this blog there was a quick post on the Tate Modern privacy/nuisance case – and I am delighted that I have now been commissioned by Prospect magazine to do an online in-depth analysis of this fascinating case about the clash of public spaces and private rights.

The point of the quick post yesterday was not to offer any considered view on the Tate Modern case (on which I actually have not formed a view) but to point to a conspicuous absence in the judgment.

It was odd that the famous speech of the former Master of the Rolls Lord Denning in the 1977 nuisance case of Miller v Jackson was not mentioned, and nor indeed was Denning himself, given this is one of the most famous speeches in the history of English law.

That speech begins as follows (and I have broken out the sentences):

“In summertime village cricket is the delight of everyone. 

“Nearly every village has its own cricket field where the young men play and the old men watch. 

“In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. 

“They tend it well. 

“The wicket area is well rolled and mown. 

“The outfield is kept short. 

“It has a good club-house for the players and seats for the onlookers. 

“The village team play there on Saturdays and Sundays.

“They belong to a league, competing with the neighbouring villages. 

“On other evenings after work they practice while the light lasts. 

“Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore.

“He has issued an injunction to stop them. 

“He has done it at the instance of a newcomer who is no lover of cricket. 

“This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. 

“The animals did not mind the cricket.

“But now this adjoining field has been turned into a housing estate. 

“The newcomer bought one of the houses on the edge of the cricket ground. 

“No doubt the open space was a selling point. 

“Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. 

“His wife has got so upset about it that they always go out at weekends. 

“They do not go into the garden when cricket is being played. 

“They say that this is intolerable. 

“So they asked the Judge to stop the cricket being played. 

“And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. 

“The cricket ground will be turned to some other use.

“I expect for more houses or a factory. 

“The young men will turn to other things instead of cricket.

“The whole village will be much the poorer. 

“And all this because of a newcomer who has just bought a house there next to the cricket ground.”

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The leading legal commentator Joshua Rozenberg agreed about this conspicuous absence on Twitter:

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In the post yesterday I mentioned that I was not a fan of Lord Denning as an appeal judge, though I conceded that one cannot deny his quality as a wordsmith.

(Please note that this adverse view is not about Denning as a person, about whom I have no idea, but about the content and style of his judgments.)

One day I may write a fuller account of this adverse view, but in essence I hold this view for three reasons.

First, it seems to me that Denning’s judgments are often triumphs of form – indeed of rhetoric – over legal substance.

(Indeed, when I once read many of Denning’s judgments in succession, it felt as if he was even sometimes the prisoner, and not the master, of his style of giving judgments.)

Second, his freestyle use of law and equity created a great deal of needless uncertainty in areas of law where certainty is important, especially at appellate level.

(And the usual argument that this was for achieving justice in individual cases really goes to his deftness as a legal rhetorician: for it is difficult when reading his judgments not to sympathise with the party Denning wanted to win – “of course” they should win.)

And third, it is because his rhetorically impressive judgments often cloaked a very illiberal approach to the law and the rights of individuals.

For example there is his notorious 1980 speech in the civil claim brought by the then-imprisoned (and later rightly exonerated) Birmingham Six.

Here I will quote from that speech more fully than usual, so that you can see hos slow rhetorical build-up (and I have again broken out the sentences):

“In this case at the “trial within a trial” there was an issue whether the police had been guilty of violence or threats towards the six men so that their confessions were not made voluntarily.

“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.”

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Denning’s exercise in legal rhetoric is strikingly similar in style to his famous introduction to the 1977 case of Miller v Jackson.

But instead of the readers clapping and cheering, as most will do with the Miller v Jackson introduction, the only decent response to this Birmingham Six passage is disgust.

And this is why one should be wary of rhetoric in legal judgments – and indeed it is why we should be at our most vigilant when we find ourselves nodding-along with a rousing passage in any judgment – whether by Lord Denning or by any other judge.

Of course: judgments should be plain and succinct and comprehensible to non-lawyers.

But judges should leave the tools of persuasion to the advocates.

For if the judge has got the law right and the facts right, there is no need for the judge to also employ rhetorical devices so as to get you to nod-along with what they have decided.

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The Tate Modern viewing platform case – why did they not mention Denning?

2nd February 2023

In summertime the public viewing platform at Tate Modern is the delight of everyone.

Nearly every person can enjoy panoramic views of London, including into the rooms of neighbouring apartments, for which well-off people have paid – and they do not want other people to watch.

The platform will probably now be turned to some other use.

The whole of London will be much the poorer.

And all this because of those who have bought flats there next to the Tate Modern.

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Yes, this brief post is about the Supreme Court judgment in the “nuisance” case about whether local residents have a claim in respect of Tate Modern’s use of the top floor of its Blavatnik Building as a viewing platform.

A detailed look at this fascinating case is a subject for another post.

But, in the meantime, it is remarkable that one person who was not named in the judgment, the former Master of the Rolls Lord Denning.

I am not a fan of Lord Denning as an appeals judge, but nobody can deny his skill as a wordsmith.

And one of his most famous judgments was in the minority in the 1977 case of Miller v Jackson.

It is a case known to every student of English law.

This was a case about a village cricket pitch which, the plaintiffs contended, constituted a nuisance to the adjacent properties.

The case of Miller v Jackson is mentioned a few times in the Supreme Court judgment, but Denning’s famous minority speech is not alluded to – and he is not named whatsoever.

This can only be a deliberate omission, given the sheer fame of that Denning speech.

We should be impressed by the self-restraint of the Supreme Court judges not to mimic or even refer to the famous speech by Denning.

A temptation that cannot be resisted, however, by far lesser legal minds.

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Due process and ministerial matters

1st February 2023

The working title of this post was something like “Boris Johnson, Nadhim Zahawi, and the creeping judicialisation of ministerial matters” – but that was perhaps too provocative and over-stated, even though it does have an element of truth to it.

One starting point here is that ministers of the crown are appointed, at least in constitutional theory, by the monarch, on the advice of the prime minister.

Another starting point is that parliament is the master of its own procedures, and what happens in parliament cannot be gainsaid by any court.

Both of these things – the hiring and firing of ministers and the affairs of parliament – are firmly in the realm of politics, rather than part of the province of law.

And those commentators and politicians who are hard against things like “judicial activism” and “unelected judges” are usually the most vigilant about judicial intrusions into the realm of politics.

There is a “political constitution” we are told, and it is not the business of judges and lawyers to get involved in what are matters of politics.

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But.

In the recent political matters of, first, Boris Johnson and the privileges committee and then second, the sacking of Nadhim Zahawi we are hearing phrases such as “natural justice” and “due process”.

The contention is that neither parliament nor the prime minister should have unfettered discretion.

There are things parliament and the prime minister cannot do, it is averred, because of the procedural rights of the politician involved.

This blog covered, you may remember, the “legal” advice commissioned by Johnson and his criminal lawyers to the effect that parliament was acting with conspicuous unfairness in its dealings with Johnson, even though it would never be a matter for any court.

This advice, we were told at the time, was “absolutely devastating” but, in fact, it absolutely missed the point.

This weekend just gone saw a similar complaint from supporters of Zahawi:

One response to these protestations is simply to scoff, especially as both Johnson and Zahawi are the sort of politicians who otherwise would criticise lawyers for “getting people off on technicalities”.

(And many such “technicalities” are procedural points, as opposed to substantive points on the merits.)

Like the proverbial “foxhole atheists”, it can be remarked that politicians who otherwise would disdain, if not despise, clever lawyerly tricks seem to have a change of heart about procedural fairness when their own rights are at issue.

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But scoffing alone would be wrong: for it is actually heartening to see due process and procedural fairness being given emphasis in political matters.

Of course, taking due process and procedural fairness seriously does not (necessarily) mean political matters being dragged into the courts.

The prerogatives and privileges of both the crown and of parliament mean that such matters are not justiciable.

And there is the danger of due process being misused.

In particular, there is the problem of prime ministers using inquiries and investigations as the means of not taking decisions which they are supposed to make themselves under our constitutional arrangements.

And there is the problem that, like with the (infamous) wait for the Sue Gray report, inquiries and investigations can be used as an excuse to avoid and evade proper parliamentary scrutiny and political accountability.

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Taking due process and procedural fairness (more) seriously is a welcome development, given the alternative of arbitrary and capricious decision-making.

Yet taking such things seriously means it should not matter whether doing so is politically convenient or not.

Fairness should always a basic value, and not a means to an end.

And so the best way politicians could show us that they do take due process and procedural fairness seriously is not when it is in their own cause, but in the cause of those far less powerful in society whose rights are undermined or disregarded.

For if politicians cared as much about the procedural rights of the less powerful as they do about their own due process rights, then that would show their protests were not just cynical, self-serving expediencies.

No doubt, however, such politicians would shrug off such uneven-handed inconsistency as, well, just a technicality.

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Tax law should be as boring as constitutional law

31st January 2023

This is a very quick post, while I am writing something more substantial on natural justice and ministerial sackings (which I have not finished in time to post today, sorry).

Tax law, like constitutional law, should be dull.

And so that tax law is currently interesting is a Bad Sign.

Tax policy – as opposed to tax law – should be interesting, but once the policy has been determined, the practical implementation of that policy should not be remarkable.

The current emphasis in political debate about ministerial compliance with tax law will not end well.

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One-and-a-half cheers for the sacking of Nadhim Zahawi – and the calm, lethal prose of Sir Laurie Magnus

30th January 2023

In a summary, three-step form there seems nothing amiss about the sacking of Nadhim Zahawi from the cabinet: (1) he did some things wrong; (2) the things he did wrong were a breach of the Ministerial Code; and (3) he was sacked by the Prime Minister.

Those three steps are what is supposed to happen in these circumstances – and there are recent examples of one or both of the first two of these steps not actually being followed by the third.

But.

This government could not even get this quite right.

In particular: the things which were done wrong were known to the Prime Minister before the publication of the report from the Independent Adviser on Ministers’ Interests which set out the details of the wrongs and how they breached the Ministerial Code.

That said, there is a certain satisfaction from reading the report, with its methodical approach, accumulation of detail, and particularisations of breach.

(Well, apart from the “The General Principles of the Ministerial Code are very clear” – and longer-term followers will know why.)

The report by Sir Laurie Magnus is a fine piece of work, and one can only wonder what other recent ministerial transgressions would look like in such calm, lethal prose.

But it really should not be the job of an adviser, however independent or distinguished, to work out whether a Prime Minister should sack a minister.

There was nothing substantial in the report which the Prime Minister did not already know, or could have known with a due application of diligence.

This out-sourcing of ministerial discretion – which is reminiscent of the Sue Gray report – is a bad thing for accountability of ministers to parliament.

And when done by a Prime Minister is a very bad thing indeed.

So, a single-and-a-half cheer for this report and the sacking.

But not the three cheers that would have followed the Prime Minister doing his job and doing this all for himself.

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This week’s Substack essay – the Taff Vale case of 1901

29th January 2023

Over at Substack, this week’s essay for paying subscribers is on the Taff Vale case of 1901, which is generally regarded as the important trade union case in British history.

In that case the House of Lords held that a trade union could be sued for the damages caused to an employer by wrongful acts.  This exposed trade unions to significant legal peril when taking industrial action.

In my post I set out how the law and world view of the time, especially in respect of “economic torts”, meant that the trade union lost the case and why the labour movement had to look to parliament for legal change.  I also put the case in a context of other trade union cases of the time.

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Every weekend I do an essay for paying subscribers, in addition to the free-to-read law and policy topical commentary on this blog every weekday.

The essays are on aspects of legal history or the relationship between law and lore or popular culture.

Previous essays have been on:

Malone (1979) – which is for me the one case from the last fifty years which signifies the most about our constitution;

The origin of Wednesbury unreasonableness (1948) – the notion that a public body can make irrational decisions, as long as those decisions are not so unreasonable that no public body would make them; and

Dr Bonham’s case (1610) where a great judge said that there were limits to what could be done with an Act of parliament.

Like a Marshall Cavendish part-work publication of yesteryear, I am hoping these essays will build up to be an interesting library and resource in their own right, but without the dinky plastic models

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I have also posted the essays at Patreon for my Patreon supporters, and Patreon supporters and anyone who made a PayPal contribution to this blog in 2022 can have a one-year full complimentary subscription – just leave a “Private” comment below.  It is important that nobody pays “twice” for my drivel.

Thank you all for following this blog.  I would like to keep the topical commentary free, and these essays on less immediately topical subjects are a way of cross-subsidising the daily free-to-read topical posts.

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The Church of England seems more accountable on the floor of the House of Commons than most government ministers

26th January 2023

Now here is a curious thing.

The Church of England seems more accountable on the floor of the House of Commons than most government ministers.

This week there was an urgent question about the position of the Church of England on same-sex marriages.

And as in England, we have an established church there is a member of parliament charged with answering questions on behalf of the Church of England – from the backbenches:

In contrast to this exercise in parliamentary accountability, we have this week had the Prime Minister refer the Zadawi tax matter to the ethics adviser and the BBC mount an internal investigation into the relationship of its chair with a former Prime Minister.

This is in addition to the King’s Counsel looking at allegations against the Lord Chancellor.

There are various other inquiries and investigations, some now almost-forgotten.

And the thing is about these inquiries and investigations is that they are often exercises in political deflection and delay – deft manoeuvres so that there is no actual practical accountability of ministers, at least not immediately.

The consequence is that we are now in the extraordinary situation where the bishops of the Church of England are generally more accountable to members of parliament than the ministers of the crown.

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Here is evidence that we are moving – at last – into post-Brexit politics and policy-making

23rd January 2023

Last week there was a (very popular) post on this blog about regulation and the supposed “bonfires” of “red tape”.

Most of the points in that post were general, but a particular point was made about the misconceived Retained EU Law (Revocation and Reform) Bill.

That Bill contains this remarkable provision as clause 1:

In other words, laws – thousands of them – will all be repealed by automatic operation of law, unless specific exceptions are made.

And nobody knows how many:

Rarely has there been an approach to legislation this daft, and it is hard to think of any legislative exercise where daftness has been on this scale.

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Of course, this causes confusion, including to business.

One may think businesses would welcome such drastic deregulation – but, in fact, businesses are far more welcoming to consistency.

In his speech today, the director general of the Confederation of British Industry addressed the problems of this Bill.

First, he did not dismiss regulatory divergence in principle:

“…I must say something about the UK’s regulatory divergence from Europe. The Government is convinced this is a major opportunity for growth. And I agree it can be too.

“But it’s a bit more complicated, than scrapping overnight many of the terms of trade we’ve used for decades.”

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So this means he is not opposed outright to what the government calls “Brexit opportunities”.

But it has to be done in a measured, case-by-case approach, and with hard realism:

“Because divergence is high-stake politics and economics.

“Often, we don’t consider the EU’s possible counterplay, and where they could outcompete us. We also need to recognise that divergence will often shrink our market size and/or add a skip-load of red tape. The party of deregulation risks simply doubling the amount we have.

“So, while it can definitely work – witness the historic success of the City of London and our rapid Covid vaccine approval – you have to run the numbers to make sure it’s not a complete own-goal.

“And it will take far more than a regulation play to make the UK win global share of global sectors.”

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He then mentioned concrete examples:

“…the Retained EU Law Bill [is] creating huge uncertainty for UK firms.

“Companies are asking will we really erode maternity and paternity regulation or health and safety standards like the General Product Safety Directive?

“Or rapidly change regulations on REACH, which governs the use of chemicals? With billions of pounds of industry costs?

“Or create the potential for firms being underinsured because it’s harder for analysts – who don’t know what laws will be retained – to effectively price risk into products?

“Do we really want to subject the public – and industry – to another round of mass confusion and disruption, just when we’re trying to exit recession?”

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The speech, however, did more than offer a critique, it also offered a contrast.

It referred to a development which I (and perhaps also you) missed just before Christmas: the appointment of Patrick Vallance and others to consider post-Brexit regulation in five particular areas – digital technology, green industries, life sciences, advanced manufacturing and the creative industries.

The speech avers:

“The Chancellor has appointed Sir Patrick Vallance to lead a thorough review into securing possible prizes in five high-growth sectors. This is the right approach. Serious reflection and consideration.

“The complete opposite in fact of the Retained EU Law Bill […]

“Instead, let’s review, retain, reform and – where appropriate – repeal EU law the Vallance way. Smartly. Not the Retained EU Law Bill’s way. Foolishly.”

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This must be the correct approach in principle: “the Vallance way”.

Yes, the Vallance review may come to nothing.

Indeed, it may never be heard from again: such reviews come and go, and sometimes even disappear with anyone noticing, or caring.

But as a statement of principle, this approach is compelling.

And it shows that even this government is capable of going about legislative and regulatory reform the right way.

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The CBI cannot be regarded as a vehicle for remoaners.

And the speech today was not expressly or implicitly a call for the United Kingdom to rejoin the European Union – or even just the single market.

It was instead refreshingly post-Brexit – about how we go about making policy and laws within our shifted post-Brexit parameters.

The more our politics and policy-making moves in this direction, the better.

The absolutist clamour of Brexiters and the purist refusal of Remainers are both, in their ways, failures to practically deal with our post-Brexit situation.

The Retained EU Law (Revocation and Reform) Bill is now as much an artefact from yesteryear as a leaflet calling for a further referendum.

We are at last moving, slowly, into post-Brexit politics and policy-making – and the government needs to catch up.

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ESSAY “A decision so unreasonable that no reasonable authority could have come to it”

15th January 2023

This is my essay this week at Substack.

The Wednesbury case of 1948 provides one of the most famous and influential judgments in English legal history.

Because of the case, the phrase “Wednesbury unreasonableness” has become well-known legal shorthand for decisions and rules made by public bodies that are so unreasonable that no reasonable public body could have made them.

Nearly two-and-a-half thousand cases on the BAILII public database use the phrase “Wednesbury unreasonable”.

Indeed, the one thing that many people outside the West Midlands know about Wednesbury is that it associated with this extreme legal standard.

But in the judgment, the town’s corporation was found not to be acting unreasonably – at least in the legal sense.

And the case was not even decided on the basis of reasonableness, but on the basis of normal statutory construction.

So how did the little town of Wednesbury get such legal infamy?

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To read the rest, you can go over to my Substack and subscribe.

Every week I will write an essay on an aspect of legal history, or on the relationship between law and lore/popular culture, for those kind enough to subscribe to my Substack.  The essay will be posted on Friday/Saturday/Sunday.  I will even sometime use multi-sentence paragraphs, like this one.

Last week’s essay was on the Malone case of 1979, which I reckon to be the most significant constitutional case of the last fifty years.

The weekly essay is also cross-posted on my Patreon page for Patreon supporters.

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