Category: United States Law and Policy

The significance of the resignation of Dominic Raab

21st April 2023

The end, when it came, was not pretty.  But then again, endings rarely are.

The resignation letter was extraordinary:

The impression was that the letter was drafted in a rush – the sort of draft one would put together to get something out of one’s system, before composing something more measured.

The letter was accompanied by a 1,100 word piece in the Telegraph which was published eighty-or-so minutes later:

As a published article, it presumably would have been commissioned, edited and lawyered before publication – and so it may have been written before the letter.

But it said much the same.

One remarkable thing was that both the letter and the published article were in the public domain before the actual report – presumably to “frame the narrative” as a political pundit would put it.

And then the report was published:

And it became obvious why Raab was so anxious to “frame the narrative”– as parts of the report were, as a lawyer would put it, “adverse”.

This did not seem to be the usual, coordinated exchange of letters with a prime minister, which one would expect with such a senior resignation.

Instead, it looked a mess.

And one can only wonder about how this mess relates to the unexpected delay from yesterday, which was when the report was expected to be published and the prime minister was expected to make a decision.

What seems plain, however, is that Raab was pressed into a resignation.

If so, there is a certain irony, as it was the threatening of unpleasant outcomes to people who did not comply with his wishes/demands which was the subject matter of some of the complaints.

It therefore appears that Rishi Sunak was more skilful in this cost-benefit power-play than Raab.

In his resignation letter, Raab twice warns of the “dangerous” outcome if he did not get to continue on his way.

But in practice, Sunak by being silent and not “clearing” Raab yesterday placed Raab in an increasingly difficult situation, where it was becoming obvious even to Raab that unless he resigned he would be sacked.

Some may complain that Sunak “dithered” – but another analysis is that this former head boy and city banker patiently out-Raabed the school-cum-office bully.

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Beginnings, like endings, are also often not pretty.  And rarely are they ideal.

But, at last, the Ministry of Justice is free from perhaps the worst Lord Chancellor of modern times.

(Yes, worse even than Christopher Grayling or Elizabeth Truss.)

Over at his substack, Joshua Rozenberg has done an outstanding post on why – in substantial policy and administrative terms – Raab was just so bad.

And on Twitter, the fine former BBC correspondent Danny Shaw has also detailed the many failings in this thread:

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The Ministry of Justice is in an awful state.

The departing minister’s obsession with prioritising symbolic legislation such as the supposed “Bill of Rights” and a “Victims” Bill – which mainly comprises the shallow sort of stuff too often connected to the word “enshrining” – was demonstrative of the lack of proper direction for the ministry.

And it is significant that it was only during the interruption of the Truss premiership, with a new (if temporary) Lord Chancellor that the barristers’ strike was resolved.

Joshua Rozenberg sums up that telling situation perfectly:

“We saw an example of Raab’s indecisiveness in the way handled the strike by criminal defence barristers last summer. Increasing delays — caused initially by government-imposed limits on the number of days that judges could sit — were rapidly becoming much worse.

“Raab seemed like a rabbit frozen in the headlights, unable to decide which way to turn. The problem was solved by Brandon Lewis, who replaced Raab for seven weeks while Liz Truss was prime minister. He simply paid the barristers some more money.

“It was not so much that Raab was ideologically opposed to making a pay offer. On his return to office, he made no attempt to undermine the pay deal reached by Lewis. It’s just that he seemed unable to take a decision.”

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Now decisions can be made.

Gesture-ridden draft legislation can be abandoned.

And the grunt-work of actually administering our courts and prisons and probation service can take place.

That grunt-work will also not be pretty, and the incoming Lord Chancellor will not get easy claps and cheers that come with attacking “lefty” lawyers and “woke” judges.

But a new start can be made, and all people of good sense should wish the new Lord Chancellor well.

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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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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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The Indictment of Donald Trump and the Art of the Process

31st March 2023

Another “-ment’.

Following his two impeach-ments, former President Donald Trump now has an indict-ment.

(There is a pleasing parallel to this, as impeachment was the quasi-judicial process which our ancestors provided for dealing with errant politicians instead of having trials on an indictment.)

But just as a cover is not the book, an indictment is not a conviction.

It is instead the start of another process – and Trump has spent a good part of his life gaming and otherwise manipulating processes, both formal and informal.

This is the essence of the book ghost-written in his name, The Art of the Deal.

In that book, the title’s artfulness is about how negotiation processes can be exploited, how leverages can be gained, how opportunities and advantages are created and taken.

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It is almost as if all his career Trump has merely been preparing for dealing with an indictment in the state of New York.

But.

Some sports are more dangerous than others, and some sports are very dangerous indeed.

And so are some processes, and if Trump puts a foot wrong in his engagement with this process then he faces a criminal record and incarceration.

Of course: Trump may, in turn, game and exploit that eventuality, and appeal to his constituency as a victim and so will emerge somehow as a winner from all this.

The criminal process will take place within a wider political-social-media game which Trump will seek to play.

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I am not an American lawyer, and the actual charges for Trump are not yet clear, but it seems that they will be in respect of false accounting.

If so, the offence will not be the payment of any hush money directly, but how that payment was accounted for in the books.

And if this offence requires proof of intent, as well as the facts of the misleading or incorrect accounts, then it may not be straightforward to prove.

Absent a confession or a blatantly false statement, it is often difficult to prove fraud in respect of record-keeping.

Trump will know this, and so will his lawyers – and so will the prosecutors.

For just as Trump will be careful not to put a foot wrong, so will the prosecutors.

And as this is a criminal matter, due process and fundamental rights are on the side of Trump.

(If only all criminal defendants could be as lawyered-up and protected.)

So, yes, the indictment is novel and significant – but so were the two impeachments.

The result of this process is therefore not a foregone conclusion – for either Trump or the prosecutors.

And so both sides now will face their hardest tests.

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“Happily Ever After” – Disney and the Rule Against Perpetuities

30th March 2023

Sometimes there are odd things trending on social media.

A few days ago it was “Catford and Catford Bridge” – and this morning it was “the rule against perpetuities”.

This rule is the law student’s equivalent to the history student’s Schleswig-Holstein question, in that few feel certain they really understand it.

But in essence, it is the means by which the courts can prevent certain property arrangements from having effect too far into the future.

The main encyclopedia of English law describes the rule as follows:

“the rule against perpetuities […] which prevents the creation of interests in property which are to vest at too remote a time”.

And, looking it for the purpose of this post, I learn perpetuity in England is now set at 125 years.

In Florida, however, there seems to have been no such legislative intervention – and this brings us to today’s trending news.

In essence, the lawyers here have adopted an eye-catching variation of the living-person-plus-21-years formulation which some lawyers have used as a way around the rule against perpetuities.

The formulation provides the means of reckoning an end-date by reference to someone now alive.

Given the most recently born of King Charles’s descendants is Princess Lilibet, who was born in 2021, then if she lives to seventy-five the term of the declaration would be at least a hundred years.

I am not a Florida lawyer, but looking at the thread as a whole it would appear that the Reedy Creek Improvement District Board’s lawyers realised there was the possibility of any “in perpetuity” provision being challenged and so they prudently provided the reference to King Charles’s descendants as the fallback position if that challenge is successful.

And presumably those lawyers selected the descendants of King Charles now living because (a) their birthdates are matters of public knowledge and (b) the most recent birth of a descendant now living was 2021.

It would have made less sense if a similar provision had been adopted in say 2012, before the birth of Prince George, as the most recent descendant would then have been Prince Harry in 1984.

I have no idea if such a specific fallback provision is common in legal instruments in America or elsewhere, but contracts providing for what happens if a particular provision is unenforceable is a commonplace in many contracts.

And any sensible lawyer knowing that the rule against perpetuities would be invoked would insert a fallback position.

It is only the eye-catching example which makes this one seem that different.

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The irony here is that this is not the first time Disney have been playful with terms of years for property rights.

Disney has form.

You may recall the Mickey Mouse Protection Act.

One promoter of the legislation, Mary Bono said:

“Actually, Sonny [Bono] wanted the term of copyright protection to last forever.

“I am informed by staff that such a change would violate the Constitution. […]

“As you know, there is also Jack Valenti’s proposal for term to last forever less one day.”

Alas, Disney did not get their way that time.

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Perhaps no lawyer has ever legally defined “happily ever after”.

But from Disney’s perspective, “happily ever after” can be now be defined as twenty-one years after the death of the last survivor of the currently living descendants of the King of England, or even “forever less one day”.

And that is the magic of the law of property.

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Ten thousand greased piglets

20th March 2023

This may be quite the moment for the interplay of politics and process.

We have this week the former prime minister Boris Johnson facing detailed questions before the privileges committee.

We also have the deputy prime minister and lord chancellor Dominic Raab facing the outcome of an inquiry conducted by a senior barrister.

We have rumours that former president Donald Trump is about to be arrested.

And last week we even had an arrest warrant for Vladimir Putin.

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These are not equally momentous, but they do have two things in common.

First, each of these are examples of politicians being held to account but not in any usual way: each is unusual.

The nearest to a normal political process is Johnson being examined by fellow members of parliament before a parliamentary committee: but he may have to evidence on oath, and the story of this inquiry is already packed with legal and media attacks and manoeuvring.

The inquiry into Raab is also not formally legalistic – but it is lawyer- and evidence-driven.

While Trump and Putin may face formal judicial proceedings.

Second, each of these processes features a mode of evidence-based questioning or inquiry that is structured so that the probing is difficult to evade or ignore.

And this is because politicians are adept at evading or ignoring questions.

In other words: politicians are good at not being accountable – that is, literally, at not giving an account of what they have done.

Normal political processes of accountability have in each of the examples failed – or in the case of Putin, never really existed.

And so resort is being made to forms of questioning and inquiry that are harder to evade or ignore.

Some may think that a law and policy blogger would applaud this: for at last there will be hard examinations that cannot easily be deflected.

But, no.

And this is because legal and political processes should be distinct and separate.

Instead of this being a triumph of the forensic method, it is a failure of the political method.

This is not a good thing.

Every lurch towards extreme parliamentary processes (Johnson), non-parliamentary processes (Raab), and judicial processes (Trump, Putin) is an implicit admission of the failure of political processes to check and balance those with political power.

Yes, some of these events may end up with striking political theatre.

And it may well be that such formal processes are the only way to deal with politicians who share the famous description of Johnson as a “greased piglet”.

But this shift is not a good thing on scale.

For soon we may go from a handful of greased piglets to hundreds if not thousands, with normal forms of accountability finally being accepted as redundant.

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When William Rees-Mogg and James Goldsmith asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty – this week’s Substack essay

2nd March 2023

Over at Substack, the essay for paying subscribers is on the 1993 case brought by William Rees-Mogg and James Goldsmith against the Maastricht Treaty.

You can read it here.

For the reasons set out in the essay, it is fair to see the case as one of the origins of Brexit.

The essay begins as follows:

The case was described by the party who brought it as “the most important constitutional case for 300 years”.

This was the application for judicial review brought by the life peer William Rees-Mogg in July 1993, where he sought a High Court declaration that the legislation giving effect to the Maastricht Treaty was unlawful. Lord Rees-Mogg wanted the courts to tell parliament that a Bill, which was then about to become an Act of Parliament, was invalid. It was to be a strike at the very principle of parliamentary sovereignty.

His lead barrister for this ambitious claim was a recently appointed QC called David Pannick, and the high costs of the claim was financed by James Goldsmith (a year before he founded the Referendum Party).

The legal claim so concerned the John Major government that, in addition to instructing the then Treasury Devil (the government’s usual barrister for such cases) it also instructed one of the most brilliant barristers of the day (and still, happily, our day), Sydney Kentridge.

The stated grounds for the application also so alarmed the then Speaker of the House of Commons Betty Boothroyd to take it upon herself to warn from the speaker’s chair of the House of Commons “that the Bill of Rights will be required to be fully respected by all those appearing before the Court”.

The timing of the case was significant. When the claim was brought the Bill giving domestic effect to the Maastricht treaty was still before parliament, though it received royal assent before the hearing could take place.

The Maastricht Treaty had been signed in February 1992, but there was a sense that it was not inevitable that it would actually take effect.

The Danes had rejected the treaty by referendum in June 1992, before approving it in a further referendum in May 1993, and the French referendum of September 1992 had approved the treaty with only a narrow 51% majority. Also in September 1992 the United Kingdom’s currency had been ejected from the exchange rate mechanism on “Black Wednesday”. The European Union project was not seen by its opponents as inescapable. Not only was the Maastricht treaty contested, it was seen as capable of defeat.

Domestically the government had had problems getting the Bill through the House of Lords (including defeating Lord Blake’s amendment for a referendum) and had suffered a number of rebellions in the House of Commons.

And when the Bill received royal assent on 20 July 1993 but there was still what then Prime Minister John Major called a “ticking time bomb” of a later vote on the Social Protocol which would mean the treaty could not be regarded as ratified. Major was to win that vote only by making it a vote of confidence.

This was all very exciting at the time, and a great deal of the above – spirited public law claims led by Pannick, judges being brought into political matters, calls for referendums, close commons votes – seems rather familiar at our own time of Brexit. The case is well worth looking back on thirty years later.

And so this is the story of R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg.

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Those of you kind enough to be paying Substack subscribers can read it here – and if you are not yet a paying Substack subscriber, please consider becoming one.  The subscriptions help support my daily law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

Anyone who donated money on PayPal to this blog in 2022 can have a free one year complimentary Substack subscription – just leave a comment marked “Private” saying when you donated below, with your email address.  (It is important that nobody pays twice for my drivel.)

If you are a regular reader of this blog and are currently not able to afford a paying subscription, also leave a comment below marked “Private” saying so, with your email address, and I will consider providing a short-term complimentary subscription.

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Last week’s essay was on how the courts improvised legal solutions in the hard case of George Blake.

The week before the essay was on the lore of Lady Justice, here.

And the week before that it was on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness

Malone (1979) – perhaps the most significant constitutional case of the last 50 years

These essays are on topics to do with legal history and legal lore – and they are in addition to my topical law and policy commentary here every weekday.

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From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

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There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

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Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

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New post at Substack: 2021 and 2022 were the years constitutionalism was tested

31st December 2022

Over at Substack, for paying subscribers, I have posted a 2000 word essay (with even some multi-sentence paragraphs!) reviewing 2021 and 2022 from a constitutionalist perspective.

I will be doing such an essay at Substack every week on Friday for paying subscribers.

(These essays will also be cross-posted on Patreon – and I will also email copies to anyone who has made a PayPal contribution in the last year – just make a “Private” comment below asking for this.)

Normal daily, free-to-read blogging on law and policy will resume here on Monday.

Thank you for reading and supporting this blog.

I wish you a happy and constitutionally dull new year.

The magical thinking of Donald Trump

22nd September 2022

A theme of this blog is that law is akin to magic, and that law and lore have a good deal in common.

For example:

But the comparison is only made as a-kind-of-analogy.

I never thought that when writing about law in modern times I would come across actual magical thinking.

I was wrong.

Consider this:

Here the proposition is not that Trump could unilaterally, by some form of words, either in writing or said aloud, change the classification of documents.

The proposition is that by thinking a thing, with that thought having no other trace or manifestation, then a classification of a document can change.

This would mean that the legal consequences for other people with reference to that document would be different, even though there was no record of Trump’s thoughts, because Trump had thought one thing or another.

And, presumably, Trump can classify the document by thoughts alone, as well as de-classify it.

Perhaps he could even in turns classify and de-classify a document every few moments, and nobody would ever know.

It would be an extraordinary thing – even supernatural and paranormal.

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Of course, what is (probably) going on is that Trump is resorting to the only defence he thinks he has left, which accords with the evidence.

There is no actual evidence of de-classification, then his explanation needs to deal with that absence.

There is also the implicit point that if he accepts these are documents which he “de-classified” then they were not “planted” – as that defence would seem to contradict his purported “de-classification”.

It is all very odd.

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Stepping back, it would seem Trump has realised that he is in serious legal jeopardy.

If anyone else had been found with such classified documents without authority or lawful excuse then that person would no doubt have been arrested and charged, convicted and imprisoned.

The only difference here is whether the law applies to Trump as it applies to others.

Or is there a legal privilege for Trump?

This is a hard question for the rule of law: is there one law (or lack of law) for him and one for others?

Perhaps following his exercise in magical thinking, Trump would accept criminal liability if enough people think that he is guilty?

Or perhaps not: one suspects he would want to rely on real-world law and procedure, where things are properly written down and recorded.

For that is the thing about those who want to be above the law: they wish to dispense with legal formalities when it suits them, but they certainly want the protection of legal formalities when it protects them.

 

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