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

3rd February 2023

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

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

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

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

“In summertime village cricket is the delight of everyone. 

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

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

“They tend it well. 

“The wicket area is well rolled and mown. 

“The outfield is kept short. 

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

“The village team play there on Saturdays and Sundays.

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

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

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

“He has issued an injunction to stop them. 

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

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

“The animals did not mind the cricket.

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

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

“No doubt the open space was a selling point. 

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

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

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

“They say that this is intolerable. 

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

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

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

“I expect for more houses or a factory. 

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

“The whole village will be much the poorer. 

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

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

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

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

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

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

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

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

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

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

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

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

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

“The judge on the issue made a clear finding against the six men after a trial of eight days in which the six men had full and fair opportunity of being heard – and were in fact heard – and were represented by leading counsel.

“At the trial the same evidence about violence and threats was given all over again before the jury.

“If the jury had acquitted the six men, it would not be fair or just to hold that the finding of Bridge J. was binding on the six men in subsequent proceedings.

“But seeing that the jury convicted the six men, it is reasonable to suppose that they took the same view as Bridge J.

“In any case the issues are such that it would not be fair or just to allow the decision to be reopened by the six men.

“Just consider the course of events if this action were to proceed to trial. It will not be tried for 18 months or two years.

“It will take weeks and weeks.

“The evidence about violence and threats will be given all over again, but this time six or seven years after the event, instead of one year.

“If the six men fail, it will mean that much time and money and worry will have been expended by many people for no good purpose.

“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous.

“That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal under section 17 of the Criminal Appeal Act 1968 .

“This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.

“They should be struck out either on the ground that the six men are estopped from challenging the decision of Bridge J. or alternatively that it is an abuse of the process of the court.

“Whichever it is, the actions should be stopped.”

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

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

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

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

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

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

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

2nd February 2023

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

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

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

The whole of London will be much the poorer.

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

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

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

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

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

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

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

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

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

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

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

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

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Due process and ministerial matters

1st February 2023

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

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

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

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

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

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

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But.

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

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

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

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

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

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

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

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

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

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

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

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

And there is the danger of due process being misused.

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

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

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

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

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

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

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

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

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Tax law should be as boring as constitutional law

31st January 2023

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

Tax law, like constitutional law, should be dull.

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

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

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

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

30th January 2023

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

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

But.

This government could not even get this quite right.

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

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

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

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

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

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

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

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

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

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

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

29th January 2023

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

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

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

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

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

Previous essays have been on:

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

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

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

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

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

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

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Why historical cases are not only fascinating but instructive

27th January 2023

Over at my new Substack for the last few weeks I have been posting (what I like to call) an “essay” on a significant historical case.

Such cases are (for me) fascinating as each one shows what happened when law, litigation and public policy met at certain times and places in the past – almost like postcards of intellectual history.

With historical cases, however, it is important to remember that the litigants and the courts were not dealing with the case for the benefit of historians and other later observers.

Litigation is (usually) an immensely practical affair, with those involved focused on immediate concerns – the recorded judgment is a by-product of their joint endeavours.

And almost all judgments – and the hearings that precede them – are not inevitable.

A case only goes to trial or appeal because of certain decisions by the actors – decisions which could have gone differently.

In civil cases, there could have been settlement; in public law cases, there could have been a reason why a claim would not have been made; in criminal cases, there could be an early plea of guilty.

One misleading view which can come from reading too much academic law is that decided cases are somehow the perfect state of legal practice – whereas, in reality, cases that ever get to trial and a published judgment are a rarity.

Indeed, the key question to ask about any published judgment – especially in civil cases – is: how the hell did this case end up in court?

But even though the cases exceptional they can show us things about the times and places where they were decided.

Was this area of law uncertain?  Why did both parties risk going to trial rather than settle?  Did the parties not only disagree but also have radically different world views?  Was the court having to deal with something which was new or not usually contested?  And so on.

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The first of essays was on Malone (1979) – which is for me the one case from the last fifty years which signified the most about our constitution.

That was the case where government counsel (seriously) submitted to the court that it was open to the state to interfere with the rights of a citizen, as long as there was no law to prevent it.

(This was an application to the state of the classic liberal sentiment that one can do as one wishes, as long as there is no law against it.)

The government’s eventual defat in that case, when it went to the European Court of Human Rights, led directly to the placing of the state’s intelligence and security powers onto a statutory basis.

The second essay was on the origin of Wednesbury unreasonableness – the notion from a 1948 case that a public body can make irrational decisions, as long as those decisions are not so unreasonable that no public body would make them.

The third essay was about an example from as far back as 1610, where the court in Dr Bonham’s case said that there were limits to what could be done with an Act of parliament.

Tomorrow’s essay will about perhaps the most significant case in trade union history: the Taff Vale judgment of 1901 (case report here), where there was a clash of those two contrasting world views: individualism and collectivism.

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I know that these essays, being for paid subscribers, are not free-to-read for some of my followers, but I do seek to post free-to-read topical legal commentary here almost every weekday.  These essays are less (immediately) topical, and they do help subsidise the time and effort and opportunity cost of the daily commentary.  And the essays even encourage me to write in multi-sentence paragraphs, like this.

So please do subscribe to the Substack if you can, and each week we build up a view of the haphazard and interesting way our law has developed over time, and this may in turn help us understand the present.

And any suggestions for historical cases for future essays welcome.

(Please note that the essays are also made available to Patreon and Paypal supporters – as nobody should pay “twice” for my drivel.)

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

26th January 2023

Now here is a curious thing.

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

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

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

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

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

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

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

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

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The importance of giving important legislation very dull names

25th January 2023

In his informative post today on Dominic Raab and his “Bill of Rights”, Joshua Rozenberg quotes today’s important report by a parliamentary committee:

“What’s more, says the all-party committee, it’s not a bill of rights at all. If the government decides to press on with it, the bill’s title should be changed to something more meaningful — such as the European Convention on Human Rights (Domestic Application) Bill.”

And indeed the committee even states this as a conclusion:

The committee make a good point – and this is a missed trick by the justice secretary Dominic Raab.

Had Raab gone for a bill with such a boring title it may even now been an Act.

But he went for perhaps the most portentous title for legislation he could think of – other than Magna Carta II – and so looks like he will have no legislation passed at all.

Raab wanted to evoke and allude to the Bill of Rights of 1688-89 when all he was doing was fiddling around at the margins of how the European Convention on Human Rights was given effect in English law.

Had he been content with a more drab descriptive title, he may now have a legislative achievement to chalk up against his name.

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There is nothing wrong with dull titles for legislation.

For example, one of the most important statutes in property and contract law has the sterling, stirring title of the Law of Property (Miscellaneous Provisions) Act 1989.

What matters is the substance of a statute, not what can be said in a press release with its title.

A less pompously named statute tidying up some of the acknowledged problems with the Human Rights Act may have actually been welcome.

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But.

The problem is not just with Raab.

The Human Rights Act itself has a needlessly provocative title.

Had it been called the European Convention on Human Rights (Domestic Application and Miscellaneous Provisions) Act 1998, then there would probably be far less political and media opposition, even if the substance was the same.

Part of the reason why the 1998 Act is still contested in some political and media quarters is because of its name.

So let us worry less about the the titles of legislation and more about the substance.

And perhaps “political” titles for legislations should be banned.

The prohibition could even be contained in a Banning Daft Legislation Titles Act.

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Nadhim Zahawi, his lawyers, and a blogger

18th January 2023

There is a certain intellectual satisfaction to be had from watching an investigation done well – especially if you have watched it unfold in real time.

The work of tax lawyer and blogger Dan Neidle (who I know) on the remarkable matter of the tax affairs of Nadhim Zahawi is to be savoured.

Click on this link and read the chronology of how Neidle went step-by-step from the moment he thought something here just was not right.

(I remember in prehistoric times, when I had the same moment in the Nightjack and the Saudi prisons contract stories.)

I am not a tax lawyer, but I do know a bit about media law, and from that perspective I would like to add a couple of points about this story.

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There is nothing wrong, in principle, with any person asserting their legal rights – in defamation or anything else – if their legal rights are being infringed.

And so, until and unless the law of defamation is abolished, Zahawi and anybody else – including you – can seek to defend their – your – rights.

The problem here is not that there were libel letters, but that Zahawi’s legal strategy was flawed to begin with.

And so, faced with someone who knew what they were doing, the legal strategy first had to keep changing, before falling apart.

Moreover, lawyers’ letters can often be more revealing in what they do not say, rather than what they do say – and, if read carefully, even the most robust-seeming lawyers’ letter can expose the weakness of the position of a hapless client.

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We do not know the extent to which Zahawi’s lawyers were acting under instruction – and although lawyers can advise, it is always the client who decides.

(That said, the Solicitors Regulatory Authority was absolutely right to remind the lawyers involved that legal correspondence should not be abused.)

And the wise litigation lawyer will already know that heading a letter “Not For Publication” can be often a triumph of hope over experience, especially when dealing with bloggers.

The aggressive legal strategy would have to have been approved by Zadawi.

And so the fault for Zahawi’s botched legal strategy must ultimately be with Zahawi.

He no doubt went to his lawyers instructing them to get the problem to go away, but by doing so, he made his own position far worse.

The gaps in the aggressive legal letters were telling, and they would have been better unsent.

The legal strategy adopted by Zahawi is as much a misjudgment as anything else in this matter.

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The fate of Zahawi is now in the realm of politics, not law.

He may survive, and the political circus may move on.

But whatever happens, the elegant and thorough blogging of Neidle will stand as an outstanding example of what can be done, over time, when an investigation is done well.

Bravo.

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