Words and Things – The Law and Policy Blog

Spiteful governments and simple contract law, a weak threatening letter, and a warning of a regulatory battle ahead

13th January 2025

Some things from last week you may have missed.

The weekly constitutional

Last week I expected my blogging to centre around a post I was preparing for Prospect, where my regular contribution is to branded as a ‘weekly constitutional’.

This pleasing badge implies a weekly meander – but it will be one based on a recent (or non-recent) published case report. The aim is to use that judgment or other decision to show how law and action work – and do not work – in practice.

The first ‘weekly constitutional’ was about a significant United Kingdom Supreme Court decision that was handed down in November but which got almost no press attention (the main honourable exception was in the estimable Byline Times).

In the unanimous decision the Supreme Court justices undid a grossly spiteful attack by the then coalition government on public sector trades unions not by resorting to elaborate employment law provisions, but by applying a contract law rule so simple it is the stuff of the first weeks of any law degree.

I liked doing that post – please read it here – and I hope you will follow the ‘weekly constitutional’ post. I will post here and alert you to them, perhaps expanding on certain points.

But that post got rather drowned by the attention received by two other things that I wrote last week.

‘Lettuce before Action’

I so wish I had thought of the above line, but it was coined by the peerless Paul Magrath, whose weekly law email is a must-read – you can subscribe here.

This is about, of course, the antics of a former Prime Minister – and indeed a former Lord High Chancellor – in sending a legal letter to the current Prime Minister.

A letter so weak it may well be the weakest threatening letter ever sent by a United Kingdom law firm.

The ‘close reading’ post I did – here – was done very quickly and promptly, and indeed so promptly that I even had to set out why as a matter of copyright and confidentiality I was entitled to publish the letter so as to comment on it.

Since the publication, the former Prime Minister has been widely ridiculed for this misfired missive – but I think there may be something more worth saying about the letter – and so I may do a post with further reflections.

Back in the salmon pink

Last week I was also invited to write something about about social media regulation for the Financial Times.

It is always lovely to write for what – in my biased but honest opinion – is the best newspaper, though it is always terrifyingly daunting to be published alongside proper commentators.

(Lucy Kellaway is my all-time favourite columnist in any newspaper anywhere.)

So I wrote one thing, about the inherent difficulties about regulating social media – some of which will be familiar to long-term readers here.

And is often the case, new ideas come out once you actually start something, and so I wrote a second thing about what I say as the rational drivers behind what Meta announced last week. This was based on actually listening carefully to what Mark Zuckerberg has said in his broadcast – and then reading that prepared statement even more carefully (which led to the all-important satisfying “Aha!” moment).

The two pieces were then banged into one longer piece with an overall, hopefully coherent structure.

And the resulting ‘essay’ was published in the print edition and online on Saturday.

For reasons of topicality, more than the quality of the writing, the piece became very popular.

The Bluesky stats for the article matched my Brexit posts on Twitter at the height of Brexit when I had five times as many followers.

The piece was even briefly one of the top five read FT.com pieces globally.

The sensation of this happening is not altogether pleasant.

But perhaps the one merit of the piece was that it offered an explanation for something which seemed otherwise hard to explain in rational terms.

Essentially the argument offered by the piece was:

(a) Meta has an interest in switching to a more confrontational approach with irksome foreign regulators, especially in the European Union,

(b) Meta now has an opportunity to do this because of the reelection of Donald Trump to the United States presidency,

but (c) this does not show strength but weakness, for in those foreign jurisdictions, the platforms know the respective state has the ultimate power of legal recognition.

And so this is why Meta now needs a strategic ally in the US government – and everything else follows from that.

This seemed obvious from Zuckerberg’s statement – but because it was slipped in a point number six after five rather attention-grabbing other points, but did not get the attention it should have had.

Litigation and regulatory strategies are fascinating – in particular, where the surface theatrics of impulsiveness, hypocrisy and recklessness misdirect onlookers into thinking the underlying commercial (or political) objectives are similarly irrational.

Even Liz Truss’s letter makes sense – but solely from a political-media perspective, and not any legal perspective.

Perhaps I should write that further piece on that letter, if only to use that ‘Lettuce before Action’ line as a title.

Zelensky and persuasion

8th February 2023

There are different kinds of political – and legal – advocacy.

One form of advocacy is to make as positive a case as you can for something you think your audience will want you to do anyway.

Here you identify the values and beliefs (and prejudices) of your audience, and tell them what they want to hear.

Another form of advocacy makes no pretence at being positive: you warn of consequences, and thereby manipulate or even coerce your audience into going along with what you want them to do.

But there is another form of advocacy – perhaps the most difficult.

And that is to make your audience feel intellectually – or emotionally – uncomfortable about deciding against you.

This cannot be done by mere warnings, or threats, or by promises and smiles.

It can only be done by making a better case than the one which – but for the advocacy – the audience would normally go for.

Today we saw in Westminster Hall an extraordinary exercise in advocacy by the Ukrainian President Volodymyr Zelensky.

The concrete policy goal of the advocacy was simple: the supply of military aircraft.

He needed to shift the policy of the government of the United Kingdom, which is currently not minded to supply military aircraft.

I am no specialist in military strategy – and nor are you likely to be – and so I have no idea whether, in the round such supply would be a wise or a foolish or even a feasible thing.

But the one outcome of today’s speech is that unless there is a compelling reason otherwise, it would be uncomfortable for any politician to disagree with Zelensky’s request.

The mark of a great advocate is not so much to get a person to agree, but to make it harder for a person to disagree.

And it seems to have worked: the government position appears to have shifted.

"Nothing is off the table" after Ukraine request for British fighter jets, UK Prime Minister Rishi Sunak says https://t.co/05Q2RqBvdD pic.twitter.com/MIXOQS09kI

— BBC Breaking News (@BBCBreaking) February 8, 2023

The gift of the signed pilot helmet was also an example of how useful physical artefacts can be in persuasion – especially as it was first presented as a gift, with the gradual reveal of the handwritten message.

This blog has previously told the story of how senior people at the British Library once persuaded Margaret Thatcher of the urgent need for the move of the library to a new purpose-built building.

They did not rely on reports and tables and words.

They just put in front of her a selection of books that were falling apart, including a novel by one of her favourite authors.

And they told her that unless they got the requested investment, that would be what the national collection of books would all end up like.

She stared at the dilapidated books.

They got the investment.

Words, words, words can only get you so far.

And Zelensky realised that there is more to persuasion than mere words, or promises, or threats.

Rarely will we see such an outstanding piece of oral and physical rhetoric at Westminster, or indeed elsewhere.

It was a Westminster speech for the ages.

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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.”

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

The always-interesting @davidallengreen has written an astute parody of a Denning judgment cited by the Supreme Court yesterday: https://t.co/DKt0u0uTla Wish I'd thought of that.

As he says, nobody mentions Denning now. It's almost as if that would weaken the authority cited.

— Joshua Rozenberg (@JoshuaRozenberg) February 2, 2023

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.”

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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Artificial Intelligence and how it will affect commercial lawyering (and legal blogging)

17th January 2023

Here is a thought:

imagine a ChatGPT browser extension that reads the Terms and Conditions agreement and flags anything that is non-standard

— Patrick Hsu (@pdhsu) January 16, 2023

Or, to perhaps put it another way: could Artificial Intelligence replicate, or even replace, the work of your normal contracts lawyer?

As someone who has spent over twenty years as a commercial lawyer (constitutional law is my interest, and contracts law my drudgery) I would say the answer is yes, and no, and but.

And as a coda, I will aver that those of us who write and comment on legal blogs may face a problem too.

Yes

The yes is a recognition that a certain amount of contracts law in practice is ploddery.

You have a standard form contract, and you read every clause, and you put all the clauses together.

Many standard clauses are what is called boilerplate – their effect, and often their very wording, are identical from one contract to another.

And even clauses which can vary from one standard from to another – payment arrangements, service levels, and key allocations of risk – do not vary very much.

In larger law firms, the task of reviewing, and even drafting, such contracts is given to junior lawyers, even trainees.

Many non-legally qualified contracts managers and procurement officers are better than many commercial lawyers in dealing with straightforward commercial contracts.

And so just as a text comparison program can identify differences between contracts better than almost any human, then a computer which has a bank of hundreds, if not thousands, of standard contracts would be able to identify standard and deviant clauses.

Such a computer may even be able to propose amendments to the deviant clauses so as to place the contract onto a more standard basis.

So, yes, some straightforward contracts reviews could be done by Artificial Intelligence.

Standard form contracts are subject to special legal rules in case law and statute, especially when they are for business-to-consumer transactions, and so a store of contracts would not enough: external legal expertise can be necessary.

And being able to advise a client on whether a standard form contract will be in their commercial interests or not is not something Artificial Intelligence is likely to be able to do soon.

That is because assessing commercial risk in a particular situation is not a form of abstract calculus, for it requires an understanding of industry, business, economic, social and human factors.

And, of course, not all commercial contracts are on standard forms.

Certain transactions require bespoke contracts, dealing with the allocations of risk of a range of things that could go wrong.

In IT and media contracts, for example, there often needs to be an understanding of technological risks so that the legal risk allocations match and mirror what problems can happen in practice.

A well-drafted and hard-negotiated bespoke commercial contract is as much a work of cooperation, conflict and collective endeavour as you will find anywhere else in human activity.

But

There is a problem.

The good lawyers who can advise on standard and bespoke contracts can do so because of their apprenticeship in dealing with straightforward clauses in everyday contracts.

You do not have child prodigies in practical law: a practice takes, well, a lot of practice.

One reason for this is that contracts are not linear documents but complex instruments: each clause can and should relate to other clauses.

And the only way to master complex instruments is to understand how the elements of that instruments all fit (or do not fit) together in given practical situations.

(I have said before that legal drafting is akin to coding in making sure lines all work together.)

This means that if Artificial Intelligence replicates and then replaces the work of junior contract lawyers it is difficult to see how senior contract lawyers will gain their necessary experience.

Coda

Perhaps a better route for Artificial Intelligence would be to replicate and then replace the work of legal bloggers and their commenters.

Perhaps the blogpost above was written by Artificial Intelligence, and perhaps also some of the comments below will be too.

If so, then Artificial Intelligence can merrily create blogposts and comments, rendering us all redundant.

Brace brace.

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Law vs Lore

8th December 2022

When I decided to start a Substack I also had to decide what to call it.

I could not call it “law and policy” as that is the name of this blog.

Dear old folkloric wizard “Jack of Kent” is safely dead and buried.

And so I settled on “law and lore” as that put together two things which not only interest me but also are more closely connected than many people realise.

Let me explain.

Many of those reading this blog will not be lawyers and so have had little need to look up the raw black-letter texts of the law – in statutes, case reports and elsewhere.

Even those of you with the unfortunate affliction of being a lawyer, will not always have read the black-letter texts of every law about which you will have a view or an understanding.

And in society generally, a great deal of the law in practice is what people believe it to be – or should be.

“You cannot do that.”

“I cannot do that.”

“That is not allowed.”

“I have my rights.”

“Technically you are not allowed to do this.”

“Technically if you do this you don’t break a law.”

And so on.

Entire areas of law are, in practice, mini belief systems where people are confident about what the law is, free from ever looking it up: data protection, health and safety, consumer rights, Magna Carta.

And on the political plane, belief is (or was) a great deal of our uncodified convention: a general sense of balance and self-restraint.

This all fascinates me.

I have often wondered what an alien looking down would work out about our laws and legal system just by watching what people do and do not do.

Would such a Martian’s account correspond to what our legal texts say about the law?

And so my view is that to understand law in practice, one has to have an understanding of lore, which I see is helpfully defined online as “a body of traditions and knowledge on a subject or held by a particular group, typically passed from person to person by word of mouth”.

This is not to say that it is consciously invented: those with strong opinions about the law usually believe that they are actually correct.

Sometimes there is a close relationship between law and lore – in, for example, mercantile law, the practices of business folk often give rise to enforceable legal obligations.

And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law.

I would like to explore this distinction between law and lore more in future posts in particular areas.

Let me know if you have any ideas for subjects of such posts.

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A close reading of Boris Johnson’s statement saying he is not standing for leadership

24th October 2022

Yesterday the former Prime Minister Boris Johnson provided a statement about not standing for the leadership of the United Kingdom’s governing Conservative Party.

I joked on Twitter that a close of reading of this statement was a joy – and I was then commanded by the highest of all temporal and spiritual authorities to do a post setting out why.

And so here it is.

A close reading of any text has to have regard to the (seeming) intentions of the author, the content of the text itself, and the relevant context(s).

Here we have a resignation but not a formal resignation – indeed, there was not even a prior application, formal or informal, to which this is a sequel.

It is not any form of a required text – it was instead volunteered by its author.

This means that more regard has to be made to (seeming) intention and context than otherwise, as there are no formal, required “buttons” to “press” with its content.

Now let us begin.

“In the last few days I have been overwhelmed by the number of people who suggested that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

See how the “I”s are buried in this sentence, so as to indicate that it is not really about him.

The references to “the number of people” and to “the public and among friends and colleagues in Parliament” is pretty much an exercise in duplication.

The author could have said more simply “In the last few days I have been overwhelmed by [encouragement] that I should once again contest the Conservative Party leadership, both among the public and among friends and colleagues in Parliament.”

But the author needs to emphasise the quantity of people, and so the double-egging of “the number of people”.

The “overwhelmed” also indicates that he is protesting too much – and, indeed, the context implies that he was instead underwhelmed.

He did not get enough support.

“I have been attracted because I led our party into a massive election victory less than three years ago – and I believe I am therefore uniquely placed to avert a general election now.”

The author was once a winner, and it is important that this is emphasised and that the reader is reminded.

There was not just a “election victory” but a “massive” one.

And it was not now some time ago, back in 2019, but only “less than three years ago”.

But it is the last part which is most interesting, where the author puts forward a false proposition about an imminent general election.

There is no imminent general election – and there cannot be one without the governing party wanting one.

So this is misleading.

The author then protests that he is not only well placed but “uniquely placed” to “avert” this non-existent imminent general election.

He presents himself as The One – “uniquely”.

And he uses “therefore” when he means “thereby” – a neat and deft trick to make the proposition seem stronger than one bare assertion leading from another.

“A general election would be a further disastrous distraction just when the Government must focus on the economic pressures faced by families across the country.”

The “further disastrous distraction” means, of course, that there was a previous “disastrous distraction” – and here he can only mean his own loss of office.

The necessary implication of seeing his own loss of office as a “disastrous distraction” is that he is not contrite about how he lost the premiership.

“I believe I am well placed to deliver a Conservative victory in 2024 – and tonight I can confirm that I have cleared the very high hurdle of 102 nominations, including a proposer and a seconder, and I could put my nomination in tomorrow.”

Ah, the “well placed” line – a feature of a million job application letters, where the applicant cannot think of a better way of boasting that they are fit for a vacancy.

This follows the “uniquely placed” just two sentences ago, and it is saying the pretty much same thing: his electoral prowess.

Also note the passing mention of 2024, as for when this election should be.

Then we have “tonight I can confirm that I have cleared the very high hurdle of 102 nominations”.

Not just a hurdle.

And not just a high hurdle.

But a “very high hurdle”.

And he has “cleared” this hurdle.

This is energetic imagery.

The superfluous “I can confirm” – like the “therefore” in a previous sentence – is intended to make a proposition seem stronger.

Of course, in context, this is an unimpressive proposition, as his supporters have claimed for days that he had over a hundred nominations.

He is now reduced to claiming that he has managed 102 (or perhaps more).

The detail of “including a proposer and a seconder” gives an impression of desperation.

The crescendo of this sentence is “I could put my nomination in tomorrow” is an attempt to convince the reader and perhaps also the author.

Of course he could.

“There is a very good chance that I would be successful in the election with Conservative Party members – and that I could indeed be back in Downing Street on Friday.”

Not just a chance.

And not just a good chance.

But “a very good chance”.

“But in the course of the last days I have sadly come to the conclusion that this would simply not be the right thing to do. You can’t govern effectively unless you have a united party in parliament.”

But.

Having bigged himself up as the one who is “uniquely placed” to avert an imminent general election (which will presumably now have to take place) and “well placed” to give his party a general election victory in 2024, he now says it is not actually in his party’s interests for him to avert this looming defeat and claim this brilliant victory.

It would “simply not be the right thing to do”.

Why?

Because, he says, “You can’t govern effectively unless you have a united party in parliament.”

Seemingly gone is the “overwhelming” support he has in the party from the start of the statement, and gone also is the support that enabled him to “clear” a “very high hurdle”.

The support, in fact, is not “overwhelming”.

His candidature would split the party so much that he would not be able to “govern effectively” – even though he contends he is “well placed” to govern so effectively as to achieve a general election victory in 2024.

None of this adds up.

“And though I have reached out to both Rishi (Sunak) and Penny (Mordaunt) – because I hoped that we could come together in the national interest – we have sadly not been able to work out a way of doing this.”

With “reached out” we switch in style from the hapless job application to irksome public relations verbiage.

The context here is that the other two contenders rebuffed him.

The framing of this sentence is to blame the other two contenders for rejecting his approach: they are the ones who are not thereby acting in the “national interest”.

He is the statesmanlike goodie, and they have let him and you down.

And you are to be “sad” at this outcome.

“Therefore I am afraid the best thing is that I do not allow my nomination to go forward and commit my support to whoever succeeds.”

Hello, here is “therefore” again, seeking to add gravity.

Just sentences ago he had “come to the conclusion that [becoming leader again this week] would simply not be the right thing to do”, and now – separately – he is saying he has concluded because of another reason that “the best thing is that I do not allow my nomination to go forward”.

Given he had already decided this before “reaching out” it makes no sense for him to say that the rebuff is the reason he did not “allow” his nomination to go forward.

The author wants us to believe he is both a wise statesman and the unfairly scorned reject.

He wants both the credit for not standing and for others to be blamed for him not standing.

He wants the king-making cake, and to eat it.

“I believe I have much to offer but I am afraid that this is simply not the right time.”

Well.

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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:

Trump says as president he could declassify documents just by thinking in his head that they're declassified.

That's beyond wrong, it's insane.pic.twitter.com/5tR30e7Clb

— Citizens for Ethics (@CREWcrew) September 22, 2022

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.

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.

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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Why the broadcast of the Accession Council was informative and significant

12th September 2022

The Accession Council was broadcast live on Saturday morning.

That broadcast was a boon for the public understanding of the constitution of the United Kingdom, showing the sort of things that are usually hidden from public view.

It was fascinating watching for anyone interested in the nature of our constitutional arrangements.

You can watch it here – and I will explain below why various aspects of it were important and/or interesting:

https://www.youtube.com/watch?v=aKci6iKET2Q

The Accession Council is a configuration of the Privy Council.

David Torrance, who has written an outstanding briefing for the House of Commons library on what happens when a monarch dies, explains the background of the Accession Council:

That there is now no longer a strict statutory requirement for an Accession Council should not mislead you into thinking that the council meeting was mere ceremony and its content mumbo-jumbo.

There was actually a point to a good part of it, even if that point was constitutional rather than strictly legal(istic).

For example, take the oath in respect of the Church of Scotland.

(Here note I am neither Scottish nor a Scots lawyer, and so please nudge me in the comments below if I put my foot wrong.)

The taking of the oath is a legal requirement, under the Protestant Religion and Presbyterian Church Act of 1707.

Under this Act, it is provided among other things:

“And Lastly That after the decease of her present Majesty (whom God long preserve) [Anne] the Sovereign succeeding to her in the Royal Government of the Kingdom of Great Britain shall in all time comeing at his or her accession to the Crown Swear and Subscribe that they shall inviolably maintain and preserve the foresaid Settlement of the true Protestant Religion with the Government Worship Discipline Right and Priviledges of this Church as above established by the Laws of this Kingdom in prosecution of the Claim of Right”.

This is an Act not of the Parliament at Westminster but of the Parliament of Scotland.

Indeed, it appears to be the legislation passed just before that parliament voted for union with England:

The Act was passed by the Scottish Parliament at a time when the then Queen looked as if she was to be succeeded by distant relatives – and the Scottish Parliament was presumably anxious to ensure that its position would be protected by the new monarch.

The 1707 Act has (as far as I can tell) a unique legal and constitutional status.

The Westminster Parliament cannot repeal this Act if there is a regency in place.

Under the Regency Act of 1707:

“The Regent shall not have power to assent to any Bill for changing the order of succession to the Crown or for repealing or altering an Act of the fifth year of the reign of Queen Anne made in Scotland entitled “An Act for Securing the Protestant Religion and Presbyterian Church Government.””

I am not aware of any other statutory provision which prevents the Royal Assent of an otherwise passed Bill – and it is a deft device to achieve a measure of entrenchment.

Now let us turn to seals.

It is a mark of our age that it is difficult not to think of aquatic animals when the word “seal” is used:

Privy Seal pic.twitter.com/d60mSxhQE8

— Grunwin (@grunwin) September 10, 2022

Unhelpful.

But if we can put out pinniped friends aside for a moment, seals were – and are – important.

Part of the business of the Accession Council was for the new king to approve the various seals still used in government business.

These seals convert documents that have no legal standing and effect into instruments that can have just as much legal standing and effect as any Act of Parliament.

Seals are an important part of the business of government.

The current seals have the name, image and chosen inscription of the late Queen:

(From Wikipedia.)

There was no legal requirement for Charles to confirm that the current seals could continue to be used, for the Succession to the Crown Act 1707 provides:

“And be it further enacted by the Authority aforesaid That the Great Seal of Great Britain the Privy Seal Privy Signet and all other Publick Seals in being at the Time of the Demise of Her Majesty Her Heirs or Successors shall continue and be made use of as the respective Seals of the Successor until such Successor shall give Order to the contrary”.

There was also a confirmation that Charles will surrender the (considerable) revenues of the Crown Estate in return for the Sovereign Grant.

And today (the Monday after the Saturday) there has already been a statutory instrument amending this provision of 2011:

With this one:

Given the amounts involved – the annual revenue of the Royal Estate is about half a billion pounds – one can appreciate why the government would want to act quickly to ensure the legal framework was up-to-date.

It should be noted that Charles referred to the “tradition” of surrendering the revenue of the Royal Estate, as if it were a voluntary act which he just happens to wishes to continue with, rather than being a firm legal obligation.

This “tradition” dates back to George III and it is unthinkable that the surrender would ever be rescinded, but it is an element of our uncodified constitution which owes more perhaps to a “good King’s theory of the constitution” rather than the more well known “good chap’s”.

Charles also approved legislation for a bank holiday for the State Funeral.

This approval was legally required under the Banking and Financial Dealings Act 1971:

The usual statutory bank holidays are listed in schedule 1 to that Act – and so for England and Wales they are:

The eagle-eyed among you will see that neither Christmas Day nor Good Friday are statutory bank holidays.

This is because they are bank holidays at common law, a point which is recognised by this wonderful sub-section that follows the one just quoted:

This means the King and his Privy Council has the legal power, by proclamation, to make it like Christmas everyday.

The broadcast of a meeting of the Privy Council itself – even if this special one – is illuminating.

The business is done directly between the monarch and the ministers attending, seeking approval for various measures.

A famous such meeting took place three years ago:

Note the “Note” at the bottom.

The business of the council is conducted standing up:

The same principle commonly applies to morning meetings in tech startups. Who knew that Queen Victoria was the first Agile Scrum Master?

— Frederic Heath-Renn (@flahr) September 11, 2022

Orders in Council can cover many things, ranging from important constitutional acts to trivial-seeming amendments of existing royal charters.

They are, however, a system of making law parallel to the legislative process at Westminster.

Many would be surprised at what can be given legal effect outwith the Westminster Parliament.

The meetings take place wherever the monarch happens to be – and, as Torrence explains in another outstanding briefing, the Queen would engage with ministers on the measures to be approved:

The public broadcast of the Accession Council was a decision that must have been made some time ago.

It is difficult to believe that the filming was arranged at speed after the death of the Queen.

There seems to be no inherent reason why they cannot be filmed and broadcast – and so it is presumably in the gift of the King as and when other Privy Council meetings are filmed and broadcast.

Perhaps future meetings will also now be filmed and broadcast – showing Charles engaging face-to-face with government ministers on a range of issues.

This may be good – or bad – for Charles and/or the ministers involved.

If so, they would be an interesting complement to the filming and broadcast of parliamentary proceedings.

The business of the Accession Council included matters that went back to the Stuarts.

The content included the monarch’s promise to protect of the Church of Scotland; the monarch’s tradition of surrendering the revenues of the Crown; the practical need to carry on the Monarch’s government; and the proclamation of a public holiday.

As the historian Judy Stephenson noted, the Accession Meeting was in the round a reminder of various agreements and compromises over centuries that have shaped our current constitutional arrangements:

For me all the different proclamations demonstrated the persistence of the unique set of agreements that a union and constitutional monarchy were the best way of managing power and responsibility over the centuries. The restamping of lots of important little contracts.

— Judy Stephenson (@judyzara) September 11, 2022

The cameras and coverage gave us for the first time the human faces of that commitment – and importantly, faith. Glorious, and very profound.

— Judy Stephenson (@judyzara) September 11, 2022

The decision to film and broadcast the Accession Council was a wise and informative one.

A whole sector of the usually hidden constitution was opened to the public gaze – and it was informative, and not just for constitution geeks.

It was also a reminder of the key distinction between the Crown and those who have served the Crown.

The King on one side, and – roped-off – some familiar faces on the other:

The Accession Council meeting should now be required viewing for history and law students, among others.

And let us hope that further Privy Council meeting are now televised.

There are few events in which varied elements of our constitution, from different times, are brought together in one place and at one time.

I wish it could be possible to have such insights every day.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Lawyers as brands, and “legal opinions” as franchised products – on the nature of legal opinions

5th September 2022

Friday’s blogpost on that “devastating” legal opinion has been very popular – with over 30,000 views.

But there were some things missing.

And one omission in particular was deliberate.

The post did not mention either of the authors of the opinion.

This is because, for the purposes of the blogpost, it did not matter who the authors were of the opinion.

The authors could have been two unknown newly qualified barristers at some obscure chambers.

Or the authors could have been the ghosts of Thomas More and Edward Coke.

It did not matter.

And this is one of the great things about law – for it is the content of a given legal document that usually matters, and not the identity of the lawyer.

In this way, a pupil barrister or trainee solicitor can sometimes trump a QC or a partner, just as a cat can look at a king.

(And this is one reason why it is so important that all lawyers should have access to a fully resourced law library, rather than such facilities being only for top chambers and big law firms.)

The omission was also deliberate in that so many other pundits were placing huge reliance on the reputation of one of the opinion’s authors, David Pannick.

(Pannick, for example, acted in the two Miller cases against the government and he is regarded as the leading barrister in England on constitutional and public law matters.)

It was almost as if he had been instructed just so it could be said: “look, this is what even Pannick says”.

As such, it was almost as if he was being used as a brand, rather than as an advisor.

A similar thing recently happened, you may recall, with the attempted use of the Treasury Devil, James Eadie, to say that the Northern Irish Protocol Bill was lawful under international law – see my posts from June here and here.

As I then described: what appears to have happened was that the government got its convenient advice from the current Attorney General; somebody insisted that this still had to be referred to First Treasury Counsel – the Treasury Devil; a clever compromise was reached where it would be referred to him on the basis of certain assumptions, so as not to undermine the convenient legal advice; and the Devil, while accepting those assumptions, provided an unhelpful view on the merits of those assumptions.

In both cases, there seems to be a cynical exercise to get a convenient-seeming opinion from [Pannick/Eadie] so that it could be said that this distinguished lawyer had supported it.

Here, the barrister involved is not to blame.

Seriously.

The so-called “cab rank” rule means, among other things, that a barrister cannot refuse an instruction just because of the identity of the person instructing them.

Once the Prime Minister and his chosen criminal defence firm instructed the authors of last week’s opinion, those authors had little choice but to accept the instruction.

And Pannick – himself a parliamentarian – has a record in dealing with matters concerning parliamentary procedure, such as his support for Anthony Lester.

Who knows what the authors of the opinion thought about their work being used in the way that it was?

If a legal position is being urged by politicians or pundits just on the reputation of the lawyer who has (supposedly) endorsed it – be it Pannick or the Treasury Devil or anyone else – then it is suspect.

For if the legal point is sound, the reputation of the lawyer is irrelevant.

And if the legal point is unsound, the reputation of the lawyer will not save it.

This is especially the case when – with both the Pannick and Eadie advices – we do not have the crucial, prior “instructions to counsel”.

As techies would say, without sight of the instructions, such opinions can be instances of “garbage in, garbage out”.

As it happens, the thrust of my post on Friday is also the view of the former Conservative justice minister David Wolfson:

My contribution in @thetimes as to whether contempt of Parliament requires intent.

I agree with Lord Pannick QC that intent is critical – but intent needn’t be contemporaneous with the statement.

A deliberate decision not to correct the record ought also be treated as contempt. pic.twitter.com/ncICbjw6t2

— David Wolfson (@DXW_KC) September 4, 2022

(And Wolfson is about as un-woke a lawyer as I am a woke legal commentator.)

And it also the view of the professor of public law at the University of Cambridge:

If the Privileges Committee inquiry ends up being cancelled on the basis of the Legal Opinion published today, it will be a constitutional outrage — for reasons I’ve explained here: https://t.co/lFNjul3Zz9 https://t.co/y8gR7WiYLf

— Mark Elliott (@ProfMarkElliott) September 2, 2022

Such concurrence is always a reassurance.

But.

Even if the cards had fallen differently, and I was saying something in support of (say) Pannick and against (say) Wolfson and Elliott, it would not ultimately matter.

Because it is the content of a legal opinion that matters the most.

Just as if a “distinguished” computer programmer churns out code that does not add up, it is the same for lawyers and legal opinions.

Being distinguished – or experienced or well-regarded – is a factor, as such lawyers and commentators may be accorded more respect.

But respect is not necessarily deference, and it is certainly not subjugation.

And a wise lawyer or commentator knows this, and will take ready account of better and stronger views.

Without knowing the instructions and other privileged material, little weight can be placed on any formal legal opinion; and even if there is full disclosure of such things, any opinion has little weight in a court or tribunal.

For such opinions are not pleadings or statements of case to be presented to a court, and nor are they statements of evidence or summaries of the arguments before a court.

They are documents addressed solely to the client, on the client’s terms, and can be disclosed to third parties only if it suits the client.

And, as an opinion, it is always open to those to whom it is disclosed to take their own view.

So, in conclusion: this harsh (now deleted) put-down on Twitter is correct:

(Though the “highly arguably” is adverbly painful to read.)

But.

There is nothing wrong with being a blogger.

For even bloggers can look at kings.

***

Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The comments policy is here.