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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Here is evidence that we are moving – at last – into post-Brexit politics and policy-making

23rd January 2023

Last week there was a (very popular) post on this blog about regulation and the supposed “bonfires” of “red tape”.

Most of the points in that post were general, but a particular point was made about the misconceived Retained EU Law (Revocation and Reform) Bill.

That Bill contains this remarkable provision as clause 1:

In other words, laws – thousands of them – will all be repealed by automatic operation of law, unless specific exceptions are made.

And nobody knows how many:

Rarely has there been an approach to legislation this daft, and it is hard to think of any legislative exercise where daftness has been on this scale.

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Of course, this causes confusion, including to business.

One may think businesses would welcome such drastic deregulation – but, in fact, businesses are far more welcoming to consistency.

In his speech today, the director general of the Confederation of British Industry addressed the problems of this Bill.

First, he did not dismiss regulatory divergence in principle:

“…I must say something about the UK’s regulatory divergence from Europe. The Government is convinced this is a major opportunity for growth. And I agree it can be too.

“But it’s a bit more complicated, than scrapping overnight many of the terms of trade we’ve used for decades.”

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So this means he is not opposed outright to what the government calls “Brexit opportunities”.

But it has to be done in a measured, case-by-case approach, and with hard realism:

“Because divergence is high-stake politics and economics.

“Often, we don’t consider the EU’s possible counterplay, and where they could outcompete us. We also need to recognise that divergence will often shrink our market size and/or add a skip-load of red tape. The party of deregulation risks simply doubling the amount we have.

“So, while it can definitely work – witness the historic success of the City of London and our rapid Covid vaccine approval – you have to run the numbers to make sure it’s not a complete own-goal.

“And it will take far more than a regulation play to make the UK win global share of global sectors.”

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He then mentioned concrete examples:

“…the Retained EU Law Bill [is] creating huge uncertainty for UK firms.

“Companies are asking will we really erode maternity and paternity regulation or health and safety standards like the General Product Safety Directive?

“Or rapidly change regulations on REACH, which governs the use of chemicals? With billions of pounds of industry costs?

“Or create the potential for firms being underinsured because it’s harder for analysts – who don’t know what laws will be retained – to effectively price risk into products?

“Do we really want to subject the public – and industry – to another round of mass confusion and disruption, just when we’re trying to exit recession?”

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The speech, however, did more than offer a critique, it also offered a contrast.

It referred to a development which I (and perhaps also you) missed just before Christmas: the appointment of Patrick Vallance and others to consider post-Brexit regulation in five particular areas – digital technology, green industries, life sciences, advanced manufacturing and the creative industries.

The speech avers:

“The Chancellor has appointed Sir Patrick Vallance to lead a thorough review into securing possible prizes in five high-growth sectors. This is the right approach. Serious reflection and consideration.

“The complete opposite in fact of the Retained EU Law Bill […]

“Instead, let’s review, retain, reform and – where appropriate – repeal EU law the Vallance way. Smartly. Not the Retained EU Law Bill’s way. Foolishly.”

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This must be the correct approach in principle: “the Vallance way”.

Yes, the Vallance review may come to nothing.

Indeed, it may never be heard from again: such reviews come and go, and sometimes even disappear with anyone noticing, or caring.

But as a statement of principle, this approach is compelling.

And it shows that even this government is capable of going about legislative and regulatory reform the right way.

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The CBI cannot be regarded as a vehicle for remoaners.

And the speech today was not expressly or implicitly a call for the United Kingdom to rejoin the European Union – or even just the single market.

It was instead refreshingly post-Brexit – about how we go about making policy and laws within our shifted post-Brexit parameters.

The more our politics and policy-making moves in this direction, the better.

The absolutist clamour of Brexiters and the purist refusal of Remainers are both, in their ways, failures to practically deal with our post-Brexit situation.

The Retained EU Law (Revocation and Reform) Bill is now as much an artefact from yesteryear as a leaflet calling for a further referendum.

We are at last moving, slowly, into post-Brexit politics and policy-making – and the government needs to catch up.

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New Substack Essay: The 1610 case of Dr Bonham, and the question of whether parliament is really sovereign

 

22nd January 2023

The new essay at my Substack is up.

The essay is on the 1610 case of Dr Bonham, and the question of whether parliament is really sovereign:

These essays on legal history or law/lore are for paid subscribers, and they are additional to my weekday free-to-read topical commentary here on the law and policy blog.

Previous essays in this series are:

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

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

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Anyone who made a Paypal donation to this blog in 2022, as well as Patreon supporters, can be given a one-year free complimentary subscription – just leave a message marked “PRIVATE” below.

It is important that nobody pays ‘twice’ for my content.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

The police officers who want to be armed are perhaps the ones who should not be police officers

20th January 2023

There is an old adage: those who want to have power are the ones who should be disqualified from having power.

Similarly, those police officers who want to be armed should be the ones who perhaps should not even be police officers.

This thought is prompted by the examples first of Wayne Couzens and now David Carrick, both of whom were keen to have the status of being able to have a gun.

Neither Couzens nor Carrick, as far as we know, misused a firearm.

But both seemed desperate to have the status of being able to have a gun and perhaps to boast about it, to themselves and others.

And that was a danger sign.

Of course, there is a necessity to have armed police: that is an unfortunate feature of the modern age.

A civilian and entirely unarmed police force belong to a golden age –  an age which probably never existed.

But.

The question is not whether some police are armed, but about how armed police are selected.

And it would seem those who put themselves forward, so that they would not only have the legal right to inflict coercive force on others, but also be able to inflict lethal force, are the constables who should perhaps be thrown out of the police altogether.

Only perhaps the police officers who are chosen by others – their superiors and peers – to have guns should be the constables who are reluctant to be armed.

And if this approach is adopted then the ‘vetting’ process would be a lot easier:

“Do you want to have a gun? You do? You’re dismissed.”

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The striking paradox of the police

19th January 2023

Here is a striking (ahem) paradox.

One one hand: police officers cannot strike.

And on the other hand: it is almost impossible to sack a police officer.

One would think that an occupation which had such near-absolute job security would also be one where the workers had ready access to taking industrial action.

But no.

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Police officers have not been able to strike since the Police Act of 1919, which in turn followed the (fascinating) police strike of 1918-19.

Since then police officers have been represented nationally by the Police Federation, rather than the more conventional trade unions that represent other emergency and front line workers.

The Police Federation is very good at protecting its members.

Successive governments have been supportive of the police generally and avoid upsetting the Police Federation in particular .

Indeed, when the then home secretary Theresa May in 2014 dared to criticise the Police Federation there was that rare thing: a genuine sense of political shock.

(I think this may be the only speech by a serving cabinet minister that has ever made my jaw drop.)

But her sentiment did not last long, and during her subsequent premiership she showed little interest in police reform.

The police also maintain (mutually) good relations with the media, and – as the Leveson Inquiry indicated – the police are an important source of content for the press.

And so perhaps the prohibition on striking has never been really tested because there has never been a need to do so.

What more power would the Police Federation want?

What would be gained by threatening to go on strike?

Indeed when in 2013 the possibility of being able to go on strike was put to a vote of federation members, less than half of police officers voted one way or the other.

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Yet every so often there is an example of how difficult it is to dismiss police officers.

For conduct which in other occupations and professions would lead to instant dismissal or disqualification, there is often the appearance that nothing is taken that seriously.

This week there has come to light the horrific case of David Carrick, but there are numerous other instances.

There seems to be, looking from the outside, structural problems within the police generally, and within the Metropolitan police in particular, that mean that violent and dishonest police officers have too much job security.

Of course, the nature of policing means that officers should have due protection from vexatious and malicious complaints.

But the level of current protection seems far too high to be explained just by the perils of policing a resentful public.

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Today the leader of the opposition suggested a substantial overhaul, such as when the Royal Ulster Constabulary was converted into the Police Service of Northern Ireland.

This would have to be more than a mere change of name.

But it is unlikely to ever be done, for in power governments since 1919 have almost always had an interest in not upsetting the police.

Perhaps the test will be if the Police Federation holds another poll, and a majority of its members take an interest and vote on whether to have the right to strike.

For that would point to real power slipping of the police in respect of policy.

But in the meantime, we have that striking paradox: the workers with some of the strongest employment protections have the fewest rights to take industrial action.

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“Bonfire of Red Tape”

18th January 2023

Nobody – really – is in favour of “red tape”.

It is instead the sort of thing which people are against.

In this way it is a bit like “complacency” as a thing which people are also against: nobody ever says “I think we should be more complacent”.

The very mention of “red tape” often prompts – and is intended to prompt – an adverse reaction, even jeers.

And, in turn, announcing a “crackdown” or “bonfire” or some other drastic-sounding word often prompts – and is intended to prompt – a positive reaction, and perhaps claps and cheers.

What sort pf person could possibly be against getting rid of “red tape”?

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But the problem is that much “red tape” has a purpose, and indeed is sometimes the consequence of that equal and opposite follies of our political discourse: “something must be done!” and “there should be a law against it!”

And so, like a perpetual motion machine, we have the following cycle:

1. An unwelcome phenomenon happens.

2. “Something must be done!” and “there should be a law against it!”

3. A thing is done and/or there is a law against it.

4. That thing or law becomes “red tape”.

5. “There needs to be a bonfire of red tape!”

6. And loop to 1.

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This is not to say that some regulations and rules are awful or redundant.

Indeed, there are many rules and regulations that any regulated person can think of without too much effort.

The problem is twofold.

First: there is no point in getting rid of a regulation without understanding its intended purpose, and also what would happen in respect of that intended purpose if that regulation was removed.

This means that repealing regulations – as with creating or modifying regulations – should be on a considered case-by-case basis,

Second: in a word, externalities.

Many areas of human activity are complex, and so removing (or adding or changing) one thing can have unexpected and unwelcome knock-on effects on other things.

This is obvious with a moment’s thought, for the very purpose of many regulations is to steer human activity in one direction rather than another.

In other words: the very intention of many regulations is to have knock-on effects.

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And now to the matter in hand: the reckless attempt by the current governing party to remove regulations inherited from our membership of the European Union.

You can tell almost no thought has gone into this exercise because of the superficial – indeed banal – contentions made in its favour.

It needs to be done, because of Brexit.

It matters not that many of these regulations may have been made for a good reason.

It matters not that some of these regulations were promoted by United Kingdom ministers and officials in our national interest.

It does not even matter that nobody is absolutely certain about how many regulations will be affected.

But it needs to be done, because of Brexit.

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What we have in this repeal bill is the combination of the older absurdity of “bonfire of red tapes” with the newer one of needing to have something – anything – to show for Brexit being worthwhile.

For in January 2023, most people – including those who have a close or passionate interest in Brexit – can point to little or nothing concrete as a benefit of Brexit.

It is all a bit silly and needless.

Perhaps there should be a law against it.

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