Category: United States Law and Policy

The 3Ps, politics and Anglocentrism – or what should they know of Johnsonism and Trumpism who only Johnson and Trump know?

25th July 2022

“And what should they know of England who only England know?” was a question once posed by an imperialist poet.

One of the problems of commentary is insularity: you comment about what is familiar, with nods to things which are – you think – recognisable.

And so it is with law and policy commentary, even when (like this blog) one strives not to be Anglocentric and seeks to pay as much attention to (say) Edinburgh and Dublin and Washington and Brussels as to London and Birmingham.

In particular, one thing commentators seem to do is emphasise endogenous explanations – for example, about what the example of Boris Johnson tells us about the historic weaknesses of the United Kingdom polity and constitution – with a sideways glance at the United States

But Johnson is also a local manifestation of something happening in many countries.

Johnson is not the only one.

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In a fascinating and insightful new book The Revenge of Power, Moisés Naím – a former Venezuela trade minister and editor-in-chief of Foreign Policy posits the 3Ps:

“3P autocrats are political leaders who reach power through a reasonably democratic election and then set out to dismantle the checks on executive power through populism, polarization, and post-truth.”

In his preface he mentions a list of applicable politicians – and although Johnson is discussed in the book, he does not even make this primary list:

“We have in mind here Donald Trump, of course, but also Venezuela’s Hugo Chávez, Hungary’s Viktor Orbán, the Philippines’ Rodrigo Duterte, India’s Narendra Modi, Brazil’s Jair Bolsonaro, Turkey’s Recep Tayyip Erdoğan, El Salvador’s Nayib Bukele, and many others.”

In turn, the 3Ps are defined and illustrated:

“Populism may be the most persistently discussed of the three Ps and the most often misunderstood. Because it ends with “-ism,” it is often mistaken for an ideology, a counterpart to socialism and liberalism in the competition for a coherent governing philosophy. It is no such thing. Instead, populism is best understood as a strategy for gaining and wielding power.”

“Polarization eliminates the possibility of a middle ground, pushing every single person and organization to take sides.”

“In their current approach to post-truth, leaders go far beyond fibbing and deny the existence of a verifiable independent reality. Post-truth is not chiefly about getting lies accepted as truths but about muddying the waters to the point where it is difficult to discern the difference between truth and falsehood in the first place.”

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Of course, elements of all three are not new.

And we can self-indulge in a parlour game of “well, actually, there is this antecedent”.

Yet, the combination is a current phenomenon, made more potent by technological and political changes, such as the decline of parties and of traditional news media.

And it seems to be something liberals and progressives – and even conservative constitutionalists – are finding difficult to combat, or even comprehend.

And even though the Boris Johnsons and the Donald Trumps may personally leave office one way or another, the frames of mind with which they are associated are likely to linger.

The problem may therefore ultimately not be about the peculiarities of uncodified British constitution or its codified American counterpart.

The 3Ps were (are) going to be a problem whatever our constitutional arrangements.

It is not the fault of us not having a codified constitution any more than it is the fault of the Americans having a codified constitution that privileges illiberal and low-population states.

The problem is not (ultimately) constitutional or legal, but political.

It is about our sense as a polity: about what is acceptable in our political leaders, about what we value as checks and balances, and about how we believe political decisions should be made.

And because it is a political problem then it needs a political solution.

No constitution-mongering, by itself, will offer an easy way out.

The cases for liberalism and progressivism – and indeed constitutionalist conservatism – all need to be made afresh and in new ways.

Even seeking to place fundamental rights beyond the reach of 3Ps politicians will not be enough, as these politicians and their political and media supporters will simply politicise and discredit and trash the rights instruments, rather than respect them.

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It was never going to be inevitable that the world would become more liberal and progressive, and enlightened and tolerant – despite the triumphalism of some liberals and progressives in the heady halcyon (ahem) days of Clinton, Blair, Obama and the EU constitutional treaty.

That said, it is also not inevitable that the 3Ps politicians will win – their triumphalism may, in turn, also be ill-based.

So it is still all to fight for.

But.

In this contest, we should not think these are just local problems for local people.

The 3Ps politicians are part of a worldwide trend, and so we need to be aware of what works and does not work elsewhere – and not just in the United Kingdom and the United States.

Where has the case for constitutionalism – codified or not – been made successfully?

Where have people been made to care that their politicians are lying?

Where have voters and politicians valued checks and balances that may go against their partisan and personal advantages?

For, to adapt the poet:

“And what should they know of Johnsonism and Trumpism who only Johnson and Trump know?”

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My new FT Video: constitutionalism and the reversal of Roe v Wade

12th July 2022

This blog is written from a liberal constitutionalist perspective.

But like “country” and “western”, liberalism and constitutionalism are not the same thing, even though the coupling works well in practice.

Take for example the abortion issue.

From a liberal perspective, the issue is about who makes the decision.

The decision here being whether a woman can have access to a safe abortion or whether she should be forced to continue with an unwanted pregnancy.

The liberal will consider that the decision – at least before late in the pregnancy – should be that of the woman, in consultation with her doctors.

Others, however, will insist that the decision should absolutely not be that of the woman concerned, but should be decided on her behalf by a legislature.

But.

Believing that the decision should be that of the woman concerned does not, in and of itself, tell you how the constitutional and legal system should provide for that right.

And one can be a conservative constitutionalist as well as a liberal constitutionalist, as constitutionalism is about believing there should be rules and principles that provide the parameters of political and legal action.

In the United Kingdom – and now including Northern Ireland – the right to an abortion is not a constitutional right, or it is not usually considered as such.

It is a legal right provided for by statute.

In the United States it was not possible to enact similar legislation that would cover all Americans, not least because of the disproportionate power many conservative but less populous states have in the federal legislature.

So the route taken by those in favour of a right to abortion was to litigate so that the United Supreme Court found that the right to an abortion was a constitutional right.

And the Supreme Court found that there was such a right in 1973.

Then, a couple of weeks or so ago, a differently constituted Supreme Court found there was not such a right.

Over at the Financial Times I have done a video setting out this constitutional journey.

The video is also on YouTube:

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Many of you will have strong opinions about abortion – I certainly do – but the focus of this blog and and any comments below is on how the issue is or should be dealt with as a matter of law.

The United States took a constitutionalist and judicial approach, not least because there was no other United States-wide approach that would work.

But what one Supreme Court can give, another Supreme Court can take away.

And so it was always a precarious basis for such an important right.

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Russia’s flimsy constitution and the USA’s rigid constitution, and the notion that codified constitutions are necessarily a good thing

5th May 2022

From time to time this blog (and my commentary elsewhere) is accused of being against a codified constitution for the United Kingdom.

(A codified constitution is often also known – inexactly – as a ‘written’ constitution, but uncodified constitutions are usually written down, just not in one place.)

This accusation of being against a codified constitution for the United Kingdom is, in my view, unfair and incorrect.

A codified constitution for the United Kingdom may be a good and welcome thing.

Or it could be a horrible and unwelcome thing, entrenching domestic executive power yet further.

It all depends.

This is because codified constitutions can be good things or bad things.

The view of this blog (and my commentary elsewhere) is that a codified constitution of the United Kingdom is not necessarily a good thing.

And it rejects the casual plea ‘and this is why we need a written/codified constitution’ that often follows some political outrage.

A codified constitution is not a liberal panacea.

It is not even necessarily better than our current constitutional arrangements – so the alternative plea of ‘at least it would be a step in the right direction’ is also misconceived.

A codified constitution could be, from a liberal perspective, very much a step in the wrong direction.

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Codified constitutions are relevant to two of the current main international news stories – the Russian invasion of Ukraine and the likely overturning in the United States of Roe v Wade.

As this blog has previously set out, there are few constitutions which on paper are as liberal and wonderful as that of Russia.

And yet the Russian president had unlimited illiberal powers at home and no check on what he orders to be done (or attempted) abroad.

In the United States, the fundamental right of a woman of access to the means of aborting a pregnancy may no longer be a constitutional right, and thereby enforceable in all the states of the union.

This is because its status as a constitutional right rests only on mere case law, and not on the express provisions of the constitution itself.

And that, in turn, is because the constitution of the United States is difficult to amend generally, and it is practically impossible to amend on the issue of abortion – and so the constitutional right depended on litigation rather than on any formal enactment.

Other rights that seemed significant in the eighteenth century are set out in writing and cannot (easily) be removed.

Americans have the right to a well-regulated militia, but not a right to regulated and safe abortions.

But…. but….

…those are different, will come the defiant response of the constitution-mongers.

A codified constitution of the United Kingdom would be just right – not too flimsy, and not too rigid.

Perhaps this ideal codified constitution will be drafted by Goldilocks.

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Again, nothing on this blog should be taken to mean a codified constitution will necessarily be a bad thing.

But one should be critical, and one should not even presume that a codified constitution would tend to be a liberal panacea.

The government – backed by the considerable resources of the government legal service and the treasury panel of barristers – would seek to game any written constitution in the executive’s favour.

And against such a concert, mere wishful thinking will be no match

But…. but….

…this should be different, will come the response of the gamed constitution-mongers.

But.

Be careful what you clamour for.

A liberal constitutional order is not easy to achieve.

And that it may be the current arrangements without codification are more liberal than anything that the government would permit to be put in place as a codified constitution.

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Why the ‘leaked’ Alito opinion will be especially worrying to supporters of a constitutional right to an abortion

3rd May 2022

I am not an American lawyer but I am a strong supporter of the fundamental right of a woman to choose to have an abortion, and so I have read what appears to be a leaked draft judgment by Alito published by Politico.

You can read the draft ‘opinion’ here.

If this opinion is adopted by the majority of the United States Supreme Court then the two key previous Supreme Court cases of Roe v Wade and Casey are overruled.

That would be bad enough.

But.

What is especially worrying for supporters of the right to choose is that the draft Alito opinion is not a flimsy piece of legal reasoning.

On its own terms, it is quite a solid and well-reasoned piece of legal writing, setting out in detail not only the limitations of the judgments in Roe v Wade and Casey, but also setting out why each basis for reversing a previous judgment of the court is met.

Some of this opinion is more plausible than other parts – the draft opinion is weakest (in my view) on some aspects of ‘stare decisis’ – the notion that a court should usually follow settled judgments of a previous courts, and some of its historical paragraphs are contestable.

But it is strongest when pointing out the weak legal reasoning of Roe v Wade.

As this blog has previously averred, the decision of Roe v Wade is not compelling.

A constitutional right to an abortion was implied into a constitution that does not expressly mention such a right, on the basis of a general constitutional right of privacy that also is not expressly mentioned, and this latter general privacy right has no firm basis – some judges think it is derived from a number of specific rights, while others derive it from the ‘due process’ clause.

Jurisprudentially, the Roe v Wade judgment is (sadly) all over the place.

All because – from a pro-choice perspective – the result in Roe v Wade was the right one, does not make the judgment itself solid.

And the worrying quality of the Alito opinion is not that it is a superficial counter-objection to Roe v Wade, but that it is detailed and reasoned in a way that the original judgment is not.

This in turn will mean, if adopted by the majority of the court, that reversing this reversal will be even more difficult.

And this creates a dreadful situation for supporters of the right to choose as a fundamental right across the United States, as opposed to the issue being left to different states.

It means that nothing less than a constitutional amendment is now needed – for even a federal law – ‘codification’ – may now be vulnerable to being struck down by the Supreme Court.

The problem is that constitutional amendments are almost impossible to achieve – especially when so many individual states are opposed to abortion.

But they may be no alternative for supporters of the right to choose as a fundamental right.

The Alito draft opinion not only will reverse Roe v Wade – but it also may close off the Supreme Court as the way of ensuring the a general right of access to an abortion.

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Two reasons why today’s ‘Reclaim these Streets’ high court decision is significant

11th March 2022

The ‘Reclaim these Streets’ decision was handed down by the High Court today.

In a welcome judgment, it was held by the High Court that the Metropolitan Police had acted unlawfully in respect of blanket banning a vigil during lockdown.

The ruling is detailed and thorough, but on the first reading there are two points that seem worth making.

First, the court placed the police decision-making under anxious scrutiny.

This was instead of the court’s usual deference to police decision making – where the long arm of the law is kept at more than arm’s length.

This is refreshing approach instead of the more familiar nodding-along by judges at police conduct.

Second, and just as refreshing, the court took the legal right to freedom of expression  – under Article 10 of the ECHR – seriously.

This was rather than the common lip-service paid by judges – who invariably mention free expression rights only to allow them to be interfered with.

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This must have been a challenging case to bring, to prepare for and to argue, and so there should be considerable credit for the applicants and their legal team for doing so.

Indeed – in getting the court to overcome its traditional deference to the police and in getting that court to then take free expression rights seriously – it is difficult to imagine a harder such case to fight and to win.

Well done to all who were involved.

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A legal look at the Giuffre settlement agreement on which Prince Andrew is seeking to rely

5th January 2022

A happy new year to all the readers of this law and policy blog, and welcome back.

Today’s post is about civil law – that is the law which (broadly) deals with the legal obligations we owe to each other, as opposed to criminal law which (broadly) deals with the obligations we have to the state.

In essence: in civil law you can sue or be sued, and in criminal law you can be prosecuted or not prosecuted.

Civil law – especially contract law – is fascinating, and this post takes a topical legal agreement as the basis for explaining about civil law generally and contract law in particular.

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The topical legal agreement is the recently disclosed settlement agreement between Virginia Giuffre and the now dead Jeffrey Epstein, on which (Prince) Andrew is currently seeking to rely in American litigation.

I have chosen this as a topic because it is rare for the substance of any legal agreement to be newsworthy – and legal commentators have to take our examples as we find them.

I have no view on the underlying litigation as I do not know the facts – and I have no particular view on Andrew other than a general preference for republican government and a disdain for inherited titles.

My sole purpose in this post is to use a topical legal agreement for promoting the public understanding of law.

(By way of background, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation, and this post draws on principles I believe are common to English and American contract law.)

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Let’s start by looking at the agreement – click and open tab here.

It is, in essence, a seven-page agreement – and so pages 2 to 8 of the pdf are the ones to focus on.

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A preliminary question is how seriously we should take the agreement as something agreed to by both Epstein and Giuffre – was it a one-sided imposition, or something freely negotiated with both sides getting legal advice?

Clause 9(c) tells us ‘This Settlement Agreement was negotiated and entered into by the Parties with the advice and assistance of respective counsel.’

This means that it is not, say, a standard form contract – but one which has been negotiated by lawyers with each party having legal advice (and the lawyers are even listed at the end of the document).

This in turn means a court will take seriously what was agreed, and it will seek to give effect to what was agreed between the legally advised parties.

This is reinforced by clause 9(a), which provides that the parties ‘confirm and acknowledge that this Settlement Agreement is being entered into without any duress or undue influence, and that they have had a full and complete opportunity to discuss the terms of the Settlement Agreement with their own attorneys.’

Of course, such a provision can – in principle – be disapplied if it is factually untrue and there was actual duress.

On the face of it, this was not an agreement imposed by one party on the other, but one which was negotiated by both parties with the benefit of legal advice.

So, again on the face of it, this is an agreement by which both Epstein and Giuffre intended to be bound.

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With that preliminary question addressed, we come to the first big question.

What was the purpose of the agreement?

This is what can be called a question of construction – putting together the agreement as a whole so that we can then, as the next stage, interpret any constituent part.

With any legal instrument, and especially contracts, construction precedes interpretation.

Here there is a clue to the purpose in the title: Settlement Agreement and General Release.

This title indicates the agreement is doing two things – and you will see that these two things are, in turn, set out respectively in clauses 1 and 2.

But before we get to clauses 1 and 2 we can also see, almost as a recital, that the parties Giuffre and Epstein both entered the agreement so as to ‘resolve the pending litigation’ between them.

This litigation is then set out in clause 1: the parties agree to dismiss a civil claim brought by Giuffre against Epstein in the Florida courts.

But clause 1 only covers part of what was agreed.

For clause 2 then sets out the General Release.

This further provision sets out a more general release than ending one particular case.

Here Giuffre accepts a substantial sum (US$500,000) – as opposed to say a nominal sum – in return for the release.

In respect of Epstein the release provides that Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein][…] from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein […] for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’

This is a comprehensive list of things for which Giuffre agrees she cannot now sue Epstein.

Epstein was not only released from the current case but other cases, State and Federal.

If Giuffre was ever to litigate against Epstein again, then Epstein’s lawyers would have sought to rely on this release and have the case thrown out.

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But.

The release is not just in respect of Epstein, but also for other persons.

I will now quote the provision again but with what I had omitted now in bold:

Giuffre shall ‘remise, release, acquit, satisfy, and forever discharge [Epstein] and any other person or entity who could have been included as a potential defendant (“Other Potential Defendants”) from all, and all manner of, action and actions of [Guiffre] , including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that [Giuffre] ever had or now have, or that any personal representative, successor, heir, or assign of [Giuffre] hereafter can, shall, or may have, against Jeffrey Epstein, or Other Potential Defendants for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.’

These provisions in bold purport to extend the General Release granted to Epstein to other persons or entities – to give them exactly the same protection from further state and federal lawsuits as Epstein.

The term in bold, however, is not clearly drafted.

One reading is that the Other Potential Defendants are those who, on the facts alleged in the Florida litigation, could have been added as defendants to that litigation.

This would perhaps make sense as a matter of construction, as this agreement settles the case in respect of civil wrongs – torts – alleged to have happened in respect of which the Florida court had or has jurisdiction.

This reading is reinforced by the provision in clause 1 that the Court will be asked to retain jurisdiction to enforce the terms of this settlement agreement.

Clause 7 expressly provides that the parties envisaged this matter also capable of being litigated in federal courts (bold added):

‘In the event of litigation arising out of a dispute over the interpretation of this Settlement Agreement, the prevailing party shall be entitled to recover its cost of litigation, including attorneys’ fees and other reasonable costs of litigation. Should the federal court not retain jurisdiction, the Parties (and any third party) agree that the courts of the 15™ Judicial Circuit of Palm Beach County shall have exclusive jurisdiction over the subject matter and shall have personal jurisdiction over the Parties (and third parties).’

What the agreement does not seem to envisage, however, is the matter being litigated in another state, other than Florida.

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In my view, the General Release probably should be constructed as providing protection to Other Potential Defendants in respect of the issues raised in the Florida proceedings.

(This narrow construction would be notwithstanding the General Release is in more general terms than the dismissal in clause 1.)

So, if Andrew – by reasons of residence/jurisdiction, or the facts alleged by Giuffre in the Florida case – was not capable of being a defendant to the Florida proceedings then – as a matter of construction – then it is difficult for me to see how he can take the benefit of the General Release.

The agreement would not have been for him.

In essence: if Andrew could not have been jointly or separately liable for the tort claim within the Florida jurisdiction then the General Release may not apply.

That said: a judge could take a wider view of what the General Release covers, and that it covers not just the Florida allegations.

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There is, however, a possible problem here for Giuffre’s lawyers – for the term Other Potential Defendants must mean something.

The term Other Potential Defendants cannot mean nothing – for this is a negotiated and formal agreement, and the presumption is against surplusage.

If Giuffre’s lawyers contend that the General Release does not extend to Andrew, they must be able to explain who actually was to be covered by by the term Other Potential Defendants.

What Giuffre’s lawyers need to be able to do is to show who would be in the class of Other Potential Defendants – if not Andrew.

And if they can give a plausible meaning to that phrase without it including Andrew then they will address this problem.

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Now we turn to interpretation, as opposed to construction.

Some commentators, with little or no background in contract law, have gone straight to the term Other Potential Defendants and speculated what that phrase could mean.

But a clause is not a legal instrument, and still less a selected quote from a clause.

Yes, Andrew – like you reading this – is a potential defendant: indeed everyone other than Giuffre is.

But a settlement and a General Release in respect of a Florida case is unlikely to create a legal basis of releasing all potential defendants everywhere in the world in respect of any claim brought by Giuffre about anything – not least because the Florida court would not have jurisdiction to enforce such a general release.

In whatever way Other Potential Defendants is to be interpreted as including and not including, it is not an exercise in anything goes.

Other Potential Defendants cannot be interpreted as including Andrew if, as a matter of construction, the agreement would not apply to him.

On the other hand, if Andrew could plausibly have been added as a defendant to the original Florida case, then the phrase can be interpreted so as to include him.

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But.

Even if the agreement can be constructed so as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, there are two further problems for his lawyers.

The first is that, whatever is said on the face of the agreement, there can be rules of law and public policy that may preclude reliance on such an agreement by a defendant in another case in another state.

The essence of Andrew’s objection is that Giuffre should not be allowed to sue him for alleged civil wrongs – that she should not even have access to a court for a determination of her case.

No court will simply nod-along with such a contention – it is a serious matter to remove a person’s right of access to a court.

And so even if Andrew can be brought within the terms of the General Release, a judge may find as a matter of policy that the claim brought by Giuffre should be heard anyway.

A court, of course, would not be likely to do this if the claim was brought against Epstein (or his estate), as he was full square within the terms of the General Release.

But Andrew is at least one step away.

The second further problem is that, even if the agreement can be constructed as to cover Andrew and the phrase Other Potential Defendant interpreted as including him, it may not be legally open to Andrew directly to enforce the provision.

Andrew was not privy – that is, a party – to the original agreement (and, indeed, he is not even named).

This legal principle of privity of contract prevents a stranger to a contract either taking the benefit or bearing the burden of an agreement to which they are not a party.

In essence: it would have been for Epstein (or his estate?) to enforce the term protecting Other Potential Defendants, and not Andrew or another potential defendant directly.

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For completeness, you will see the agreement also provides the following:

‘It is further agreed that this Settlement Agreement represents a final resolution of a disputed claim and is intended to avoid litigation. This Settlement Agreement shall not be construed to be an admission of liability or fault by any party. Additionally, as a material consideration in settling, First Parties and Second Parties agree that the terms of this Settlement Agreement are not intended to be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal.’

Some commentators have leapt on this provision, but I do not think it takes us in any direction very far (though the judge may disagree).

It is not Giuffre who is seeking to rely on the settlement agreement – but a third party.

And the terms are not being relied on by Andrew as admissible evidence of liability or otherwise, but on a question of law in respect of jurisdiction.

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As I aver above, I am not an American lawyer, but an English lawyer with experience of contracts and civil litigation who has spent part of their career dealing with American contracts and civil litigation.

But even if this agreement were under English law, I could not confidently predict what a judge would do.

This is because the agreement – while clear in its primary aim of protecting Epstein from further suit – is not clear about third parties, and this is no doubt because that the position of third parties was not the main purpose of the agreement.

The agreement has been taken from its primary context of protecting Epstein and into a context which the parties perhaps did not envisage.

And so it is not a surprise that the agreement is less clear in this context.

Had the lawyers for the parties in this agreement expected this contract to be used by third parties, then the provisions in respect of third parties would be set out more clearly – but they did not, and so they are not.

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We are currently awaiting the judge’s decision on whether Andrew can rely on this agreement.

In my view, Andrew’s lawyers have the far harder task.

They have to show that, as a matter of construction and interpretation, the General Release covers him when he is not named and is not a party to the agreement; that no rule of law and policy means he loses that protection; and that he can enforce the protection regardless of the lack of privity.

All this, so as to extinguish Giuffre’s right of access to the court, which no court will do lightly in any case.

Giuffre, in turn, only has to succeed on one of these points – though her lawyers will need to explain what Other Potential Defendants means if not the likes of Andrew.

And even if Andrew succeeds on this technical defense, Giuffre may still win on appeal.

In summary and in conclusion: Andrew’s lawyers should be prepared to defend the substantial claim, rather than to rely on this technical defense.

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Abortion, law and policy – why there needs to be a constitutional amendment

2nd December 2021

The abortion issue is about one ultimate question: who gets to choose?

Is it those who are pregnant?

Or is it those who have control of a legislature or the courtrooms?

From a liberal perspective, the answer is simple.

As far as possible, those who are pregnant should have the choice to decide to terminate or not terminate their pregnancies.

This is because of the principle of autonomy.

But many do not want women to have that choice: they believe it is a choice for others to make, who do not know the woman or her circumstances.

Answering this ultimate question, however, is not enough.

For there is a further question: how should the right of someone to control their own pregnancy be enforced?

In the United States, the Supreme Court in Roe v Wade held that there was a ‘constitutional right’ to an abortion.

The problem with this is that the constitution of the United States does not expressly provide such a right.

It instead has to be read into the constitution by the courts.

And what a court can give, another court can take away.

Another problem is that the reasoning in Roe v Wade is not that compelling – even it arrives at the (morally) right conclusion.

So there is now a case before the Supreme Court where there is a very real chance that Roe v Wade will be severely limited, if not overturned.

This would be an illiberal and unfortunate outcome.

*

For nearly fifty years, however, the effect of Roe v Wade has not been converted into an actual constitutional amendment, so as to put the ‘constitutional right’ beyond doubt.

And those opposed to abortion have, step by step, judicial appointment by judicial appointment, increasingly positioned themselves to overturn the decision.

It has been skilfully, deftly done – and in plain sight.

The judicial appointments under presidency of Donald Trump has made the shift irreversible for at least generation.

The only liberal way forward is not to litigate, but to legislate.

The ‘constitutional right’ of a woman to, as far as possible, decide the outcome of her own pregnancy is too important to rest on a flimsy Supreme Court decision, with poor reasoning and relying on a right not expressly set out in the constitution.

And if and when the constitution expressly sets out the right, then the decision as to who gets to decide whether to terminate a pregnancy will be, as afar as possible, back with who it should be.

The mother herself.

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Has an American court recognised a ‘cocaine hippopotamus’ as a legal person?

1st November 2021

One of my interests in law is not about human beings and their constitutional ups and downs, but about something which (I aver) is of fundamental importance.

That is the extension of rights to animals that are recognised and enforceable by courts, and the acceptance that animals can be legal persons.

This should not be a strange proposition: after all, we confer rights and legal personality on corporations which do not actually (that is directly in a tangible form) exist.

This is not to say animals should have absolute rights (other than against human cruelty), but then again few human rights are absolute.

And if minors and the incapacitated (as well as corporations) can have their rights enforced on their behalf then there is no reason, in principle, why the rights of animals cannot be enforced on their behalf too.

It is just that, unless there is a reason not to do so, a court should be able consider the rights of an animal in any given situation.

*

But, as a commentator, one has to take cases and other legal developments as you find them, and so that brings us to today’s subject.

The hippopotamuses of a drug lord.

This is the story of the hippopotamuses that descended from those that formerly belonged to Pablo Escobar.

(That is not a sentence I ever expected to type.)

This was the Guardian news report (based on a news agency report).

Huge, if true.

An American court conferring personality on an animal.

However, if you look at the report carefully, that is not quite what has happened – though what has happened is a welcome development.

The group which handled the American litigation is the Animal Legal Defence Fund.

Their press release is here.

In essence, the American court was asked to make an order in respect of litigation in Colombia.

The hippopotamuses are a party to the Colombian litigation.

From the press release, it appears that the American court had an application under this provision: Assistance to foreign and international tribunals and to litigants before such tribunals.

In that provision you will see this passage:

“The order may be made […] upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.”

Stripped of the hippopotamus dimension, this is about a court in America making an order for the benefit of a party to litigation in another jurisdiction.

On this occasion, that party happened to be hippopotamuses, as opposed to a natural person or a corporation.

We have not seen the actual order of the American court (or a judgment), but going on the basis of the press release, that is more-or-less what the court did (with emphasis added):

“In granting the application pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings, the court recognized the hippos as legal persons with respect to that statute.

“This U.S. statute allows anyone who is an “interested person” in a foreign litigation to request permission from a federal court to take depositions in the U.S. in support of their foreign case.

“The U.S. Supreme Court has said that someone who is a party to the foreign case “no doubt” qualifies as an “interested person” under this statute.

“The Animal Legal Defense Fund reasoned that since the hippos are plaintiffs in the Colombian litigation, they qualify as “interested persons” under this statute.”

*

What the American court has decided, it seems, is not so much that an animal is a legal person but that the fact a party to foreign litigation happens to be an animal is not a bar to being an “interested person” under one statutory provision.

This does not mean the hippopotamuses are now legal persons for all purposes should they somehow manage to come to America.

Nor does it mean that the hippopotamuses have had any substantive rights (or perhaps even any procedural rights) recognised by the court.

The decision means only that hippopotamuses can be brought within a procedural definition.

In essence: a party to foreign litigation was accepted as being a party to foreign litigation.

They just happened to be hippopotamuses.

*

Still: it is a start.

An American court could have (conceivably) have rejected the application on the basis that hippopotamuses are not capable of being persons, and so could not even be interested persons for this one procedural provision.

And a minor decision like this can be a move towards wider recognition in the next well-chosen case.

In America as in the United Kingdom we are some way off animals being accorded legal personality and having rights recognised by and enforceable in courts.

This case is a hippopotamus’s step towards that objective.

But on close examination the case perhaps does not live up to the news report headlines.

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A hard look at the latest Brexit speech of Lord Frost

13th October 2021

Yesterday the Brexit minister David Frost gave a speech – and it is a speech that is worth considering carefully.

One reason to consider it carefully is that – unlike many ministerial speeches (and articles) that are produced by advisors and other functionaries – it is plain that this speech is the product of the minister’s mind.

As such, the speech has more historical and probative value that the usual erratic yet dry sequences of banalities, evasions and misdirections that constitute most ministerial communications.

We have an actual insight into one key minister is thinking (or not thinking) at this key moment, and this is rare, and we should appreciate it.

And as he is the minister who negotiated the two Brexit agreements – the withdrawal agreement and the trade and cooperation agreement – an insight into his thought (and lack of thought) is especially important at this time.

*

The explicit inspiration for the title of yesterday’s speech is a pamphlet by the eighteenth-century Whig writer and politician Edmund Burke.

And yesterday’s speech is, in turn, expressly a sequel to Frost’s Brexit speech in February 2020, which was also named after a publication by Burke.

In that February 2020 speech, English-born Frost described Burke as ‘one of my country’s great political philosophers’.

Burke was Irish.

And Burke died in 1797, before the Act of Union between Great Britain and Ireland.

This is just not a debating point: the slip is indicative of the shoddy combination of showiness and shallowness – about Ireland and other matters – in both of Frost’s speeches.

The Burke cited is the Burke of the quotation dictionaries, and of the beginnings and conclusions of C-grade A-level history essays, and not the Burke of history.

The Burke of history would probably have impeached this illiberal government in an instant.

*

The two Frost speeches, looked at together, reveal tensions.

For example, the February 2020 speech praised agreement negotiation at speed.

Referring to the then-prospective trade and cooperation agreement, 2020 Frost said:

‘…we can do this quickly. We are always told we don’t have enough time. But we should take inspiration, I think, from the original Treaty of Rome back in 1957. This was negotiated and signed in just under 9 months – surely we can do as well as that as well as our great predecessors, with all the advantages we have got now?’

But 2021 Frost does not like agreement negotiation at speed: the Northern Irish Protocol was ‘drawn up in extreme haste in a time of great uncertainty’.

The problem here is that there is no deeper thought beneath the phrases employed.

Frost has a fine phrase for negotiation at speed, and he has a fine phrase against negotiation in extreme haste.

But he does not realise nor care that the two phrases conflict: they are both simple expedients to get him through to his next paragraph.

This explains why during the Brexit negotiations Frost has been so constantly wrong-footed.

There is no substance, for all the paraded erudition.

The big negotiation taking place here is not between the United Kingdom and the European Union, but between the David Frost of 2020 and the David Frost of 2021.

And, somehow, both are losing.

*

Looking more closely at yesterday’s speech, you will see that it is structured (superficially) as a sequence of five ‘points’:

‘First to say that Brexit has changed our international interests and hence will change our patterns of European relationships – not necessarily fundamentally, but significantly. Second, that Brexit means competition – we will be setting a different path on economic policy. Third, that Brexit was about democracy – it is a democratic project that is bringing politics back home. Fourth, that the EU and we have got into a low-equilibrium somewhat fractious relationship, but that it need not always be like that – but also that it takes two to fix it. And fifth and finally, that fixing the very serious problem we have in the Northern Ireland Protocol is a pre-requisite for getting to a better place.’

Each of these points, however, turn out to be exercises in characterisation.

The United Kingdom position is characterised, and the European Union position is characterised.

Each characterisation is loaded and self-serving: the United Kingdom is portrayed as blameless and misunderstood, and the European Union is depicted as ignorant and even spiteful.

These characterisations are so extreme that both are better described as mischaracterisations.

And so the characterisations dissolve on closer examination as nothing more than excuses and accusations.

For example, take the issue of policy.

At one point Frost says that the United Kingdom will develop more substantial policy relationships with some European Union countries and not others, rather than the European Union as a whole.

But then he complains that the European Union is too rigid in binding the member states together in matters of policy:

‘In most EU member states many important things can’t be changed through elections – trade policy, monetary policy, fiscal policy, important elements of immigration policy, indeed some important aspects of industrial policy.’

Frost does not seem to realise that the United Kingdom is – and will be treated as – a ‘third country’.

The tactic of trying to circumvent the European Union and with engaging member states directly did not work during the Brexit negotiations, and there is no reason to believe it would work now.

*

But the most important part of this speech is about Northern Ireland.

Here he makes some general contentions about sovereignty and the role of the European Court of Justice.

He then insists that the import of these contentions is that the Northern Irish protocol needs to be replaced.

In a way this is a reversal of the usual caricature of continentals being obsessed with airy abstractions, in contrast to our robust Anglo-Saxon empiricism.

For the complaint as articulated by Frost does not amount to much more than a general objection to the European Court of Justice on conceptual grounds.

And, in the meantime, the European Union is proposing a range of practical measures to give efficacy to the Protocol but without removing the minor and residual role of the European Court of Justice.

And so he is wrong-footed again.

*

The one thing in common between the two speeches is that Frost is brashly defiant in his support for Brexit.

He is certain that it was a historical necessity that the United Kingdom had to break free.

This, in turn, means he sneers at the European Union for not understanding the true nature of Brexit and its implications.

But both the 2020 and 2021 speeches reveal that the real failure to understand the implications of Brexit are with Frost and other United Kingdom ministers.

The European Union, on the other hand, seem to understand the (current) United Kingdom government all too well.

Frost complains about lack of trust: ‘we are constantly faced with generalised accusations that can’t be trusted and are not a reasonable international actor’.

But these accusations are not ‘generalised’ – instead they are, to use a phrase, ‘very specific and limited’.

And, according to statements today from a former Brexit adviser, the accusation of bad faith is well grounded.

*

So, yes.

Frost’s speech has historical and probative value.

But it is not an impressive piece of work.

Characterisations (and mischaracterisations) do the work of propositions; accusations pile upon excuses; assertions are implicitly undermined by other assertions; and (ahem) very specific and limited concerns are dismissed as too general to matter.

And so the true historical and probative value of the speech is not as an insight into the thinking of the government at this stage of Brexit, but to its lack of thought.

Here it should be noted that Frost relies on the (supposed) popularity of Brexit as its ultimate justification:

‘That’s why I don’t see anything wrong with Brexit being described as a populist policy. If populism means doing what people want – challenging a technocratic consensus – then I am all for it.’

The wise counterpoint to this populism, of course, was once put as follows: that our ministers and representatives owe us their judgement – and that they betray us instead of serve us if they sacrifice their judgement to public opinion.

And who made this compelling counterpoint so eloquently?

Edmund Burke.

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Understanding the hostility to the Human Rights Act – and why this matters

7th October 2021

This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.

That was telling.

Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.

Some resort to blaming cats (and I am not making this up).

And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?

What are the actual reasons why the Human Rights Act 1998 is so hated?

I think there are four reasons.

*

The first reason is its very title and its express mention of ‘human rights’.

For many this title seems alien – and provocative.

It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.

The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.

This is, of course, misconceived – both in theory and practice.

In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.

And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.

But we pretend that the United Kingdom is not like that – that we are always the good guys.

Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.

*

The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.

This is a similar sentiment to the hostility to the European Union that contributed to Brexit.

And it is the ‘E’ word that seems to make all the difference.

The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.

We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.

And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.

The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.

Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.

That the the rights are seen as ‘European’ is, of course, a misconception.

The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.

Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.

But instead the ECHR provisions – and thereby the Human Rights Act – are European.

‘Ugh.’

*

The third reason is that the Human Rights provides rights for humans, including the humans many do not like.

The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.

For example: foreign criminals, domestic criminals, asylum seekers, and so on.

Why should these people have rights?

The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.

But that is the nature of human rights: you have them because you are a human.

But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.

You may ‘use’ your rights, but they – they ‘abuse’ their rights.

The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.

But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.

If you think about it.

*

The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.

Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.

But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.

And part of this is – in my view – the fault of the courts themselves.

After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.

A right that was enforced in cases against the media.

But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.

No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.

Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.

The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.

If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.

*

As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.

The Act does not actually do a great deal, but it does enough to make a difference in certain situations.

But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.

And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.

It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.

But.

There is a problem here.

A real problem, which sensible liberals should not ignore.

Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.

Laws such as the Race Relations Act were – believe it or not – controversial at the time.

The Human Rights Act – twenty-one years after it took effect  – remains controversial and – in good part – unloved.

It has not simply become embedded as part of the political consensus.

And that is a failure.

A failure that cannot be wished away.

So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?

For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.

The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.

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