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

30th March 2023

Sometimes there are odd things trending on social media.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disney has form.

You may recall the Mickey Mouse Protection Act.

One promoter of the legislation, Mary Bono said:

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

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

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

Alas, Disney did not get their way that time.

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

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

And that is the magic of the law of property.

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Slavery, continued

29th March 2023

This morning the Guardian apologised for the role its founders has in respect of the slave trade, but this apology was not perhaps as significant as the publication of the actual detail of that role.

Apologies are inherently gestures, but details can linger, and it is the provision of information that sometimes can shape public understanding more than any apology.

And the detail that should linger is (again) about just how “normal” the slave trade was to Great Britain as it emerged as a great commercial and industrial power.

I have written before – here and elsewhere – about how laws and lawyers facilitated slavery and the slave trade.

Business people – merchants, lawyers, bankers, insurers – thought little about the evils and misery of the slave trade as they went about their businesses: buying and selling, insuring and investing, gaining wealth and making profits.

To the extent anyone had scruples, they were allayed with (flimsy) devices such as the “Yorke-Talbot Opinion”.

But moving from legal London to Manchester and Liverpool, it is no great surprise that those connected with a northern newspaper at a time of the cotton industry also had connections with the slave trade and with slavery in the United States.

And there are more – many more – areas of our national life built on the back of slaves – and where those involved did not, at the time, think of slavery as objectionable or exceptional, but just as a routine if sad fact of life.

It is this quiet ongoing widespread acceptance of slavery by the many – rather than any loud support by a few – which is more subversive of our self-serving self-image as a liberal and tolerant nation.

Even after our own abolition of slavery and direct participation in the slave trade, our industry and commerce continued to prosper from slavery elsewhere.

And by the time that reliance in turn came to an end, many of our great cities and ports had taken on their familiar forms.

The skylines of many places are the monuments to the wealth derived ultimately from slavery.

And the more awareness and understanding of the detail of this widespread involvement in slavery and the profits of slavery, the better.

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Annual birthday post

28th March 2023

As it is my birthday, I will be taking a break from doing a substantial post here today.

If you would like to help me celebrate, do think about taking out a Substack or Patreon subscription.

Subscribing helps me in providing daily free-to-read law and policy commentary – and paying subscribers also get regular long-reads.

My most recent essay was on Factortame and sovereignty.

And with that, I will be off here until tomorrow.

 

The tragedy of the Human Rights Act

27th March 2023

Here is a playfully mischievous tweet from the Guardian:

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

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

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

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

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

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

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

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

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

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

But there is a disconnect.

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

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

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

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

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

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A stitch in time saves…

24th March 2023

Yesterday’s post on the appearance of Boris Johnson before the committee of privileges was supposed to the last on that topic…

…but.

It is really such a delicious constitutional moment – the legislature holding the former head of the executive to account with contested views of whether there should be a judicial process is a heady concoction of the supposed separation of powers.

And so here is a further thought, brought about by the lethal questioning of Johnson by the Conservative backbencher Alberto Costa on exactly what advice Johnson had taken, and from whom.

Johnson admitted that he did not taken legal or any other official advice before telling the House of Commons that he had been advised that the applicable rules and guidance had been followed.

It seems the advice was merely from a political adviser.

Well.

Johnson has certainly taken a lot of legal advice since.

If only he had taken legal advice at the right time, then he would have been saved having to take all this legal advice afterwards.

A stitch in time saves the need for any stitch-up later.

Have a good weekend.

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The Committee of Privileges and the Equality of Arms

23rd March 2023

Here are some further – and perhaps final – thoughts about the appearance of the former prime minister before the committee of privileges of the House of Commons this week.

Boris Johnson not only “lawyered-up” – he was as lawyered-up as it is humanly possible to be.

At his side as he gave his evidence he had a senior partner of the leading white-collar criminal law firm, and just behind him he had one of the leading barristers on due process and fundamental rights of his generation.

Before Johnson’s appearance there had been submission after submission – all at the taxpayers’ expense.

For a politician who has routinely derided legal aid lawyers and activist judges throughout his career, he certainly ensured he had resort to the best possible legal advice when it mattered to him.

And the strange thing is that this was not even a legal proceeding: this was entirely a matter for parliament and not for any court.

But Johnson was not taking any chances: he was lawyered-up to the hilts when no lawyers were needed at all.

However, because he had lawyered-up, and his lawyers had come up with elaborate and technical arguments about fairness and evidence, then the committee responded in kind.

And the the committee had access to its own legal advice, not least that of Sir Ernest Ryder – the former lord justice of appeal and senior president of tribunals.

There are few, if any, lawyers with a better understanding of the rules of evidence and fairness.

And so yesterday saw that the heavily prepped Johnson met and confounded by an even better prepped committee.

The questioning was short and relevant, and rarely outpaced the disclosed evidence, and Johnson was often left at a disadvantage.

For example, Johnson was forced to concede that the “advice” on which he supposedly advised was not from any official or lawyer – but from a political appointed adviser.

Like a tag team, each member of the committee had prepared the ground they had to cover so that as much ground as possible was covered.

From a lawyer’s perspective, the committee hearing was a forensic treat.

But.

A parliamentary committee hearing should not be such a legalistic exercise.

How much better, from a political perspective, if Johnson had simply turned up to tell the truth to a committee of his fellow members of parliament – instead of this legalistic arms race.

As it was, the committee was more than a match to Johnson’s legalistic approach.

And, of course, Johnson is (as this blog has previously averred) playing the long game of trying to influence what sanction follows, if any.

Yet in the shorter-term, the only thing Johnson has gained by lawyering-up will be a more tightly robust and comprehensive committee report than otherwise would have been produced.

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If only others in our society had access to such an equality of legal arms.

Even those who are facing an actual legal or judicial process.

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Johnson at the Privileges Committee – a post-hearing analysis

22 March 2023

The first thing to note about the appearance of Boris Johnson at the hearing today of the committee of privileges is that how little difference it will probably make to the committee’s report.

This is because the bulk of the report will be based on documentary evidence and the written evidence of other witnesses.

On certain points there is the possibility that the oral evidence of Johnson may make a difference – where it will rebut or even refute what the evidence would otherwise point to.

This is to be expected – and it can be compared with civil litigation where the respective merits of the parties’ cases can often become plain on disclosure of documentary evidence and the exchange of witness statements, long before any actual trial and cross-examination.

As such, today’s hearing was not an all-or-nothing gladiatorial bout.

For, as far as the committee’s report is concerned, what Johnson had to say may only have marginal importance, and on some points his evidence may make no difference at all.

Instead, and as this blog averred would be the case yesterday, Johnson gave the impression that he was playing to other audiences – that of his fellow parliamentarians (who would have to decide on any sanction) and to the media and the public (who would aid him in placing pressure on parliamentarians).

His combative and sometimes even confrontational performance makes no sense if you see it as an attempt to shape the committee’s report – but it made a lot of sense in his objectives to discredit the committee and any adverse report, and to frame himself as a victim.

Unfortunately for his strategy and tactics, he fell flat on at least a couple of occasions, including when he indicated that he would only accept the committee’s findings as fair if he was cleared.

No doubt if he is “cleared” he will hold the committee up as an exemplar of fairness and thoroughness.

And this will not be the first time he has wanted his cake and to eat it.

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Long term followers of this blog and this story may recall that it was observed last year that the “showing leadership” formulation was highly successful in heading off fixed penalty notices from the police.

At a stroke Johnson had a plausible explanation for being at almost all the gatherings – even thought those also attending got the penalties.

The only gathering for which that explanation could not work was for his own birthday, and so that is why he perhaps got a penalty for that and not any other gatherings.

I do not know if that theory is true, but it so far matches the facts better than any other explanation.

Today showed that Johnson is fully into his stride with the “showing leadership” explanation for his attendance at the gatherings.

The problem, however, is that a defence for his attendance which works with the police for breaking the criminal law does not necessarily work as an excuse for whether he knew the gatherings generally would be against the non-legal guidance.

It may well be that the price of heading off more than one fixed penalty notice is that Johnson now has no real answer to the hard questions of this committee about what he would have known at the time.

Johnson also had no real answer today to where some commentators think he is most exposed – his failure to correct the record as soon as he realised what he said was not correct.

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Nobody knows what the committee will decide – and, if they say Johnson is in contempt, what the House of Commons will determine as any sanction.

The committee may still find that Johnson made those statements in good faith and that he corrected the record in a timely manner – even though the other evidence points to a breach of privilege.

Perhaps.

But whether the “greased piglet” gets away (again) without serious sanction may be determined by the audiences to whom Johnson was playing today.

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The submission of Boris Johnson is a document of wonder and delight, but it should not be taken seriously for its supposed primary purpose

 

Today the privileges committee of the House of Commons published the latest submission of Boris Johnson.

Nobody takes this submission seriously, at least not for its supposed primary purpose – that of being the solemn defence of Johnson against the charge of culpably misleading the House of Commons (and/or not correcting the record in a timely manner).

Nobody, including Johnson himself and the clever wordsmiths who crafted the arguments in the document.

The document, however, may have a number of secondary purposes.

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First, there is the political and personal strategic purpose of Johnson at the end of the process being able to claim that he has been “cleared” and “exonerated” regardless of whether he is actually cleared or exonerated.

Here Johnson may have already written off the committee report, and he realises some culpability will be found.

And so what Johnson is looking at is how this document can frame what is happening for what then follows, especially any vote of the House of Commons on sanction.

If he can, for example, say that the committee accepted he acted “in good faith” but that he should have corrected the record sooner then he can say he has been “cleared” and “exonerated” even though the committee finds him in breach because of his correction.

As such he is working backwards from the tale he wants to tell after the committee reports.

(If the submission works so that he is not found in breach, then all the better – but he knows the evidence against him is compelling.)

If he makes it as difficult as possible for the privileges committee to land a clean blow against Johnson on “good faith” at the time the House was misled, then he may escape any significant sanction.

Johnson then “wins”.

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Second, there is the tactical purpose of framing the ongoing narrative of this story on terms favourable to Johnson.

He is sending signals to his media and political supporters, some of whom are happily repeating his talking points and believe Johnson to be some sort of a victim.

This spin maximises his political space for manoeuvre: he retains political support and (somehow) the benefit of the doubt of some who should know better.

This submission helps Johnson in defining the charges against him on his own terms, rather than on the committee’s terms: Is the committee being unfair? Did he act in good faith?  Hasn’t he apologised for what was on his watch?  And so on.

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Third, a long submission like this may have the purpose of justifying the considerable amount of public money spent on Johnson’s defence.

If Johnson had one strong basis for defence, a few pages would be enough, perhaps even one page, perhaps even one paragraph.

But as a general rule: the longer the litigation letter, the weaker the case.

This is 52 pages.

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And fourth (and here I am being playfully ironic), this document is a wonderful example of public art.

The amount of public money spent on this document could have been wasted on some drab statue or earnest mural, but here we have instead a thing of beauty.

Almost every sentence of this submission – almost every sub-clause – is a delight to be cherished, demonstrating real craft.

Take for example:

“the Committee did not identify a single document which suggested that I was informed or warned by anyone that any event at No. 10 was contrary to the Rules or Guidance”

Just take a moment to think about that, just as you would take a moment to ponder a clever detail in a painting or a poem.

And then you have the happy realisation that this could be said by almost any person facing any sanction at any time.

I did not wrong, the accused person could say, because I was not informed or warned that what I was doing was wrong.

Of course, Johnson like the rest of us during the pandemic were expected to know the rules and guidance for themselves – and. if not, we could always listen to the then prime minister Boris Johnson at one of his press conferences telling us about the rules and guidance.

There are many, many more such sentences.

This masterwork of a submission, full of artificial beauty, should not just be a submission to some parliamentary committee.

It should also be submitted to the Turner Prize.

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Will this submission serve the interests of the greased piglet?

Will it help him in anyway?

Will he be, with one leap, be free from serious sanction – again?

This submission shows how such an escape can happen – as long as you do not take it seriously as an actual defence.

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Ten thousand greased piglets

20th March 2023

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

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

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

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

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

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

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

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

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

While Trump and Putin may face formal judicial proceedings.

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

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

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

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

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

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

But, no.

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

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

This is not a good thing.

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

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

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

But this shift is not a good thing on scale.

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

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An Arrest Warrant for Vladimir Putin

17th March 2023

Today an arrest warrant was issued for the arrest of Vladimir Putin.

This warrant was issued by the International Criminal Court.

On the face of it, the jurisdiction of that court in this matter is not obvious.

Neither Russia nor Ukraine are signatories to the Rome Statute, which established the International Criminal Court and provides for the jurisdiction of the court.

(And nor are, for example, the United States and Israel.)

But it seems that not being a signatory is not a barrier.

According to the court’s site, “Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the Statute”.

It would appear that a mere declaration – as distinct from signing, let alone ratifying, the Rome Statute – is enough to confer jurisdiction.

Article 12 of the Rome Statute provides:

One can see how this joins the legal dots so that there is jurisdiction for a warrant to be issued.

Somewhere there is, no doubt, a paper copy of Article 12(3) with a big tick next to it.

But this, of course, will not be enough for the Russians to cooperate.

There is currently zero chance of Putin being arrested.

This should not surprise us.

For, unlike equity, international law often acts in vain.

In large part, that is the point of international law – to provide international standards even if those standards are not met

And the politics in Russia can change.

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By coincidence, the last week also saw the 103rd birthday of the last surviving Nuremberg prosecutor, Ben Ferencz.

One of the convictions secured by Ferencz was for an SS officer responsible for mass murders in Ukraine.

That mass murderer was hanged.

All Putin would face is imprisonment.

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The basis for the warrant for Putin is the forced deportation of Ukraine children.

This is a serious matter – but it is, of course, not the only war crime for which Putin is responsible.

It is, however, one of the easiest to evidence – and, indeed, it would appear the facts of the deportations are not disputed.

As such it has a flavour of Al Capone and tax evasion – a prosecution that is evidence-led and thereby more likely to reach a more advanced stage procedurally.

Presumably an arrest warrant needs a sound evidential base, and the forced deportation of Ukraine children provides the requisite evidence.

This certainly not to underplay the importance of the child deportation issue – it is more of an illustration that any practical prosecution will always be a balance between law and evidence.

Perhaps further grounds can be added in due course.

But if this prosecution has any chance of success, then at this early stage doing-it-by-the-evidence as well as doing-it-by-the book is prudent and admirable.

This prosecution may not get any further – but, if it does, it will be in part because the prosecution was properly thought-through at its early stages.

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