Why there should be a “no fault” compensation scheme for serious personal injuries

17th February 2023

Some of the most depressing case reports to read are tortuous claims when someone has had a life-changing injury.

The case reports are depressing for both what they say and what they do not say.

A person has a horrific injury – such as in this recent case report:

“He sustained catastrophic injuries which have rendered him paraplegic.”

The case report in such a case details the background to the injury and then – because such cases are invariably claims in negligence – there is often elaborate and somewhat artificial consideration of whether there was a duty of care and any warning, and whether there was any contributory negligence and fault.

Sometimes as in the case linked to above, the case can touch on obscure legal provisions which neither party actually had any idea about at the time.

And because there is a case report that means that there is a dispute – and almost invariably (though I do not know about the linked case) the case is contested because an insurer does not want to admit liability.

In other words: the case is really about who (if anyone) pays for the ongoing medical needs of the poor claimant.

Knowing this, it seems unfair that the monies for a person’s medical needs when there has been a catastrophic injury should hinge on whether a piece of evidence had been put in, or a finding of a fact, or the application of some hitherto unknown law.

The person’s needs are still the same.

Reading such judgments is like watching a ball on roulette wheel.

And it is rarely the resources of the nominal defendant which are at stake.

As my tort lecturer said once: the law of tort is really a branch of the law of insurance.

Some jurisdictions, such as New Zealand, have a no fault compensation fund for those who suffer injuries.

This is a better (and no doubt all-round cheaper) way than the dismal case reports where one sees a judge making finely balanced decisions that mean whether someone has their medical needs properly paid for or not.

There is a role for the law of negligence in other matters, but it seems out of place here.

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Imagine what would happen if – if – the Northern Irish Protocol issue is resolved

16th February 2023

The news is promising:

So let us think what would happen if – and it is an if – the Northern Irish Protocol issue is ever resolved.

(And some of you will doubt it ever will be.)

As it stands the focus of the post-Brexit relationship is Northern Ireland and the protocol.

The government of the United Kingdom is seeking to be able to break international law for the sake of doing something about the protocol.

The government is also telling its political and media supporters that it will withdraw from the European Convention on Human Rights as a distraction, it seems, from any compromise on the protocol.

Everything in UK-EU relations – at least on the United Kingdom side – appears to be governed by the protocol.

So imagine: what if that issue was no longer there?

What then?

The cynical will think that there would have to be a new issue for the governing party to rally support of Brexiters: that a new dispute with the European Union will be raise, even contrived, and off we will go again.

Maybe.

But there would also be the possibility of the pragmatists and realists to guide policy and move on to what needs to happen next: a sustainable basis for a close UK-EU relationship.

The preference of this blog (ever since the referendum result) has been for the United Kingdom to leave the European Union and to move quickly into the closest possible association agreement, with as much participation in the single market as the European Union will allow us and which the United Kingdom government can also get past its supporters.

Negotiations for such an ideal arrangement should ideally have started by now, and discussions need to start by the time the periodic review of the relationship begins under the withdrawal agreements.

A deal on the Northern Irish Protocol will enable this grown-up and sensible discussion to (finally) take place.

Ho, ho.

Of course, this side of a general election there is little prospect of the government openly seeking a closer relationship with the European Union.

But such a close relationship would necessarily require the Northern Irish Protocol to be practically settled first.

(By “practically settle” I mean that the tensions and frictions occasioned by the protocol have viable work-around solutions – for, as this blog has averred before, the ultimate issue of there being a post-Brexit trading border on the island of Ireland can only be solved by Irish unification – or by the United Kingdom rejoining the European Union.)

And there would then need to be a period where the United Kingdom approach to policy is – frankly – less crazy than seeking to break international law as leverage so as to get its way in a dispute.

United Kingdom policy and politics on Brexit would need to calm down for a while.

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Any deal in the coming weeks on the protocol between the United Kingdom and the European Union will also need to survive attacks from the Democratic Unionist Party and some of the government’s own backbenchers.

These attacks may delay the issue being practically resolved – but these attacks may be time limited in their potency.

But until such attacks do become politically impotent, it may be that practical resolution of the Northern Irish Protocol issue will happen, but not just yet.

We will have to wait.

(In the longer term, of course, the issue of there being a trading border on the island of Ireland probably will be resolved by Irish unification.)

And if the Northern Irish Protocol issue is practically resolved then we perhaps can have fresh and interesting conversations about our post-Brexit relationship with the European Union.

Gosh.

Imagine that.

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The resignation of the First Minister of Scotland

15th February 2023

Today the First Minister of Scotland announced her resignation.

And none of the extensive punditry that her announcement swiftly generated is as interesting and thought-provoking as her speech itself, which should be watched in full.

To say it is interesting and thought-provoking is not to take the content of the speech at face value.

But this post will focus on one juxtaposition.

The most able proponent of Scottish independence has resigned in part on the basis that she was becoming an impediment to independence.

The one passage that struck me – in this era of what this blog has previously described as the Three Ps – was this:

“But the longer any leader is in office, the more opinions about them become fixed and very hard to change. And that matters.”

She has a point: think of many politicians – Johnson, Trump, Corbyn – and you instantly also think of deep partisan lines, regardless of their actual positions on any particular issue.

If she is correct in this, then she is saying that she recognises herself as being the greatest barrier to the cause to which she is committed.

It would be as if Johnson refused to consider becoming Prime Minister again so as to help the United Kingdom find its best place in a post-Brexit world; or Trump standing aside because that would by itself make America great again; or Corbyn accepting that the Labour party is more electable without him.

And even if you are cynical and think there are other reasons for her resignation, it is still difficult to imagine many politicians with or near power voluntarily relinquishing their position, let alone for the cause they also promote.

The resignation may make little practical immediate difference as and when there is ever a further referendum for Scottish independence.

Very few if any people will, at that stage, base their vote on what Sturgeon did or said today.

But between now and then the debates over Scottish independence can proceed without being dominated by partisan views for and against one particular politician.

If only the debates over Brexit, the future of the United States, and the nature of the Labour Party could also be free from being dominated by partisan views for and against one particular politician.

Or any particular politician.

Imagine.

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Will there be a deal on the Northern Irish Protocol? And what then?

14th February 2023

The negotiations for the final shape of Brexit continue, even though the United Kingdom departed the European Union three years ago.

Of course: it would have been more sensible to have concluded these negotiations before the United Kingdom departed (as some of us pointed out at the time), but both the United Kingdom and the European Union wanted to press on and get the formal departure over with as soon as possible.

But the price of that speed has been a lack of finality.

The current news reports indicate that a deal may be on the offing about the dispute over the Northern Irish Protocol.

You may recall that this dispute was once so urgent that the United Kingdom government, with a straight face if not a straight bat, maintained last year that its envisaged domestic legislation that would enable the United Kingdom to breach the protocol even met the test of “necessity” under international law.

That was balderdash, as anyone sensible at the time knew – and it is no surprise that the enabling legislation has been frozen.

The one sticking point appears to be something that is both fundamental and trivial: the role of the European Court of Justice.

Fundamental because, to the extent that the laws of the European Union apply in respect of Northern Ireland being inside the single market, the European Union understandably want those laws to be interpreted in accordance with the European Union treaties and consistently across the single market.

And the only entity that can ensure such authoritative and consistent interpretations is the European Court of Justice, for that is what that court does.

But for Brexiters this smacks of the European Court of Justice having jurisdiction in Northern Ireland, which it should not have, because of Brexit.

And it is also trivial, because few other than obsessives care and in practice it would not make much difference.

Given all this, there will be some fancy choreography and packaging.

What will probably happen is that the substance of European Union laws being applied in accordance with the European Court of Justice’s jurisprudence will be maintained, but it will somehow look as if this is not the case.

The reason for such a compromise is that Brexit and completely open trade borders on the island of Ireland are not ultimately compatible – they never have been, and never will be.

And this predicament of the Irish border – although obvious – was not thought through by those who clamoured for Brexit.

Other problems may be addressed – if not resolved – by the establishment of “lanes” and the use of technical “real time” data.

However, getting the two sides to a sort-of-agreement is one thing, getting the endorsement of the United Kingdom parliament is another.

And unless the deal can be framed as a great British victory (and Brexiters swallow this) then either the deal will not pass parliament or the passage of the deal relies on opposition support and thereby breaks (further) the governing party.

No wonder the Prime Minister’s circle are making noises about quitting the European Convention on Human Rights and persisting with its daft legislation on repealing retained European Union law.

The Prime Minister needs all the distractions he can muster, as getting this deal past his own backbenchers is not going to be easy.

And we may even end up – as with 2017 and 2019 – with the run-up to a general election being dominated by parliamentary splits and rebellions over the question of Brexit.

Brace brace.

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This week’s Substack essay – About Lady Justice

14th February 2023

My latest essay over at Substack for those who kindly support my blogging is on lore rather than case law: the figure of Lady Justice.You can read it here.

You can also read last week’s essay, on the case of Jane Wenham and the last of the English witch trials.

Other essays include (in chronological order of the subject):

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign

Taff Vale (1901) – perhaps the most important case in trade union history

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

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

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These essays for paying subscribers are in addition to my free-to-read, topical law and policy commentary every weekday.

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These essays are also crossposted on my Patreon.

And anyone who has supported my blog on Patreon, or on Paypal in 2022, can have a free one year subscription to my Substack – just leave a comment below marked private with your preferred email address.

It is important that nobody pays “twice” for my drivel.

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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.

Private nuisance and Tate Modern

13th February 2023

Over at Prospect I have an article about the Tate Modern privacy case.

Click here (even if you do not read it).

As the article shows, I am no fan of either the new Tate Modern building or the blocks of flats facing it.  I have always thought it is better to live inside an ugly building looking at a nice building, rather than living in a nice building looking at an ugly building, and the sad predicament in the Tate Modern case is that you have two ugly buildings facing each other.

And like many people, I instinctively sided with the art gallery, as at least the public gallery was a public good, and that offset the private inconveniences of the wealthy leaseholders.

But.

As I read the case reports carefully, and the majority opinion of the Supreme Court in particular, I found it hard to legally fault the final decision:

High Court decision

Court of Appeal decision

Supreme Court decision

If there is to be a law of private nuisance then this seems to be the correct application of that law.

My lingering reaction is to wish that only privacy rights were as easy to enforce in non-property cases.

Anyway, you can read the article here – and please comment below.

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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.

Whole Life Orders when there is not loss of life

10th February 2023

Although this blog is written generally from a liberal perspective, I do not object – in principle – to whole life orders for exceptional offences.

Other liberals would contend that no prisoner should face the prospect of never being released, to have all hope removed – and that to put a person in this position is in and of itself a cruel and unusual punishment, a form of torture.

But although this blog is deeply sceptical of imprisonment as a routine punishment, there seems to me to be a special category of offenders whose offences mean they should literally have a life sentence.

If whole life sentences, however, are available, one question which arises is whether such sentences should be limited to murderers.

And this question has, again, been prompted by the sentencing of David Carrick.

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The estimable legal blogger and criminal barrister Matthew Scott has set out why the sentence for Carrick of thirty-two years is correct.

Scott tells us that the reasoning of the judge as set out in her sentencing remarks is “unassailable”.

Given he is an experienced criminal barrister and I am not (and neither will be most of you) then we should defer to his expertise.

But “unassailable” was not the view I formed when I read the sentencing remarks.

Instead my immediate reaction was that the reasoning was not compelling.

In paragraph 32 of the sentencing remarks, the judge says:

“I have assessed very carefully whether given your abuse of position this case should attract a whole life order.”

In paragraph 35 of the remarks, the judge then says:

“The stand out feature is the element of abuse of the status of a police constable but having considered the matter with care I have come to the same conclusion as the prosecution. Of the utmost gravity though this is, the “wholly exceptional circumstances” test is not met.”

What confused me was that in the Wayne Couzens case, the Court of Appeal held (emphasis added):

It provides for its unique and defining feature, which was that Couzens had used his knowledge and status as a police office to perpetrate his appalling crimes against Ms Everard and for the extensive and extreme nature of the other aggravating features which were present: the significant and cold-blooded planning and pre-meditation; the abduction of Ms Everard; the most serious sexual conduct; the mental and physical suffering inflicted on Ms Everard before her death; and the concealment and attempts to destroy Ms Everard’s body.

We agree with the judge that having determined there should be a whole life order, given the misuse of Couzens’ role as a police officer and the serious aggravating features of the offending the guilty pleas did not affect the outcome.

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It seemed to me that if the Couzens’ role as a police officer meant that what otherwise would be a long term sentence was converted into a whole life order then it would follow that the same would be the case for Carrick.

Against this view, the Crown Prosecution Service in the Carrick case made a point of not seeking a whole life order, and I did not immediately understand this concession, and nor why the judge went along with it.

But now, looking again at the authorities, I can see why Scott is (probably) right and – unsurprisingly – why my instinct was (probably) wrong.

Let me explain.

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On the face of it, the legislation permitting whole life orders is not limited to murder or any other offence:

S. 321. Life sentence: minimum term order or whole life order

(1) Where a court passes a life sentence, it must make an order under this section.

(2) The order must be a minimum term order unless the court is required to make a whole life order under subsection (3).

(3) The order must be a whole life order if—

(a) [in effect, the offender is over 21], and

(b) the court is of the opinion that, because of the seriousness of— (i) the offence, or (ii) the combination of the offence and one or more offences associated with it, it should not make a minimum term order.

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This means as long as the conditions in section 3(a) and 3(b) are ticked then there can be a whole life order.

There is no mention of any particular offence.

But in a 2020 case the Lord Chief Justice sitting with the other senior criminal appeals judges considered whether non-murderers would ever meet the threshold for a whole life sentence.

The Court of Appeal said (in a passage which I have broken up for flow):

We endorse the line of authority which does not shut the door to a whole life tariff in a case not involving murder.

The infinite variety of circumstances which give rise to serious offending make it impossible to identify such cases in advance, but we give an indication of the circumstances that might justify such a sentence.

We can envisage circumstances where murders of similar exceptionally high seriousness […] are substantively planned to a point close to execution (conspiracy to murder or attempted murder) but the crime does not occur because the enterprise is foiled or prevented by some fortuitous intervening event.

Examples might include when a bomb planted on a commercial airliner fails to explode or does so without causing sufficient damage to bring it down; similarly, a bomb in a public place does not achieve the wicked aim of those who planned or planted it; or intervention by the authorities prevents an act of mass-murder.

There will be other cases that do not involve a planned homicide of this kind which will merit a discretionary whole life term but, as Lord Phillips observed in Neil Jones, when they occur the need for such a sentence will be clear.

Otherwise, a determinate term of appropriate length will meet the requirements of retribution and punishment.

The offending in the cases of McCann and Sinaga, very serious indeed though it is does not, in our judgment, call for either to receive a whole life tariff.

This is not to minimise the seriousness of their offending but instead to ensure that the most severe sentence in our jurisdiction is reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment.

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So if a whole life order can be imposed when there has not been loss of life – but normally it should be where there was a plan to murder which somehow failed.

If this is the settled and firm view of the court of appeal – and the sheer seniority of the judges on that panel would indicate that should be taken to be the Court of Appeal’s policy, then we can see why the Crown Prosecution Service and the judge in the Carrick case did not seek or consider a whole life order.

Yes, a whole life order can be imposed where there is not loss of life – but not even in a case like Carrick, notwithstanding the misuse of the defendant’s misuse of his police status.

Indeed, it would appear that the misuse of the police status was instrumental in getting Carrick to the starting point of a sixty year sentence which, after the “credit” for his guilty plea, and a reduction to take account of what period a life prisoner would otherwise spend out of prison on licence, ended up with the minimum of thirty-two years to be served.

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You may think that despite the Court of Appeal setting out the exceptional circumstances where a non-murderer can get a whole life order, one should have been imposed in Carrick’s case.

Or you may think that given the age of Carrick, it is academic whether it is a thirty-two year sentence or a whole life order.

Or you may have another view.

My own normative view is that the Court of Appeal has set too narrowly the sort of cases that warrant a whole life order, and that if misuse of his position as a police officer was enough to convert Couzens’ sentence to a whole life order then the same should have been the case for Carrick.

But practical law is not normative but positive, and you have to take the law as it is, and not what you would like it to be; and the Court of Appeal’s policy on whole life orders meant that neither the Crown Prosecution Service nor the trial judge were in a position to seriously seek or consider a whole life order in this case.

And, for the reasons Scott gives in his post, it is indeed unlikely that the Court of Appeal will shift its position if Carrick’s sentence is referred to it as being “unduly lenient”.

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Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

 9th February 2023

Oh dear old Thoburn, what shall be done with you?

Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?

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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.

Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.

But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.

Incredible, if true.

And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.

But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.

What will law students and pundits do?

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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.

This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.

But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.

How should the courts deal with this situation?

The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.

But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.

And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.

(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)

And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.

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But in 2002 the court was faced with another seemingly awkward situation.

It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.

On the merits of the case, the court found that this was not the position.

But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.

Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?

On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.

But.

As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.

And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.

If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.

His dictum was as follows (which I have broke out into one-sentence paragraphs):

We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.

The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

The special status of constitutional statutes follows the special status of constitutional rights.

Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.

It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.

The ECA is, by force of the common law, a constitutional statute.

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This was exhilarating, provocative stuff.

And it was utter flapdoodle.

There was no basis for positing such “constitutional statutes” – either then or now.

They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.

The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.

It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.

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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.

The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.

But the Supreme Court was unimpressed by the Thoburn point.

The court described the submission (again broken up into one-sentence paragraphs):

On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.

In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)[2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.

At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:

“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.

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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.

The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

“Academic.”

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.

“Even if”

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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.

But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.

For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.

The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.

But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.

Or has it?

No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.

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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.

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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.

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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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Government departmental reorganisations are a form of magical thinking

7th February 2023

Today we were supposed to have had a ministerial reshuffle.

But there was little ministerial shuffling or reshuffling.

Instead we had yet another exercise in creating and renaming government departments.

In reality, not a great deal changes when this happens.  The same civil servants will sit in the same buildings doing much the same things.  The signage on the doors will change, new email addresses will be created, and somebody somewhere will get a lot of money for a rebranding exercise.

The belief seems to be that changing the name of a department – no doubt to something more “eye-catching” – is a thing that by itself means something significant.

Yet it is not even rearranging the deckchairs on the Titanic – it is more like changing the names on the back of the deckchairs.

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And sometimes, in the longer term, such reorganisations make things worse.

The creation of a “Ministry of Justice” – by combining what had once been the small Lord Chancellor’s Department overseeing the court system and the prisons part of the Home Office created a mid-sized spending department which, when austerity cuts were inflicted, meant that the court system became increasingly underfunded.

The supposed “synergies” from a “holistic” and “beginning-to-end” approach to the justice system never converted from management-speak waffle to hard policy implementation.

*

At the start of Brexit you may recall the sudden creation of two pop-up departments: the Department for Exiting the European Union and the Department for International Trade.

Both must have seemed such really good ideas at the time.

But both were useless.

DExEU soon got dragged back into the Cabinet Office, which had a natural centre of gravity in Whitehall for the relevant negotiations.

The Department for International Trade had nothing to do for a couple of years, as trade deals could not be finalised and executed (and thereby meaningfully negotiated) until the United Kingdom actually left, and then the department spent its time doing what any business department (or foreign office) could have done with the rollover agreements and the few other opportunities.

Both were an exercise in pointlessness – as well as both illustrating the fundamental lack of understanding of the nature of Brexit by the then-government.

And from today the Department for International Trade is no more, even though we are now “free” to strike our own trade deals.

What a waste of time.

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Some wag once said that, in an office job, meetings are the practical alternative to work.

Similarly, reorganisations are often a manager’s practical alternative to, well, management.

It is perhaps not even worth learning the new departments’ names, and their acronyms, as soon they will change again, with little useful having been achieved in the meantime.

At least the Prime Minister will nod to himself as he thinks he has done something, while all around nothing substantial has changed.

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