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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These essays are cross-posted on Patreon for my Patreon supporters.

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

17th January 2023

Here is a thought:

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

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

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

Yes

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

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

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

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

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

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

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

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

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

No

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

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

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

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

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

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

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

But

There is a problem.

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

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

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

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

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

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

Coda

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

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

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

Brace brace.

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The law and lore of the offside offence

16th January 2023

There was a controversial offside decision this weekend in a high-profile football match.

Usually, for anyone with an interest in the game, it is plain if a player is offside or not and, if so, whether there has been an offside offence.

But this understanding is rarely based on someone studying the laws of association football.

Instead it is often based on watching hundreds – thousands – of instances, playing in matches, discussing incidents with others, reading reporters and hearing commentators.

Over time, someone can build up a good working knowledge of the rules and how they should and should not apply.

In a word, for many football fans, the knowledge of the sport is lore, rather than law.

And this is no different for many games and sports, and indeed it is true for most people in every day life about the laws of the land.

But every so often something so distinct happens that the common folk knowledge of a rule, and how it is should and should not be applied, can seem deficient.

And so we had the sight on Match of the Day of the pundits putting Law 11 of the laws of association football on the screen for viewers to read the offside offence themselves.

The one thing which struck me was one single, awful word which has no place whatsoever in any formal rules or laws, either of association football or of anything else.

“…clearly…”

Those who are geeks about the rules of football may be able to explain the purpose of that dreadful “c” word in this code.

But the job of any formal law, rather than lore, is to provide a precise rule capable of being applied to relevant facts so as to create a binary situation: the rule either applies or does not apply,  and if it applies it has either been infringed or it has not been.

It is not clear (ahem) what the “c” word adds to the rule, and it seems to make the rule less precise.

As it happens, most people who watched the incident, using only the lore of offside, believed an offence had been committed.

But the referee who had to apply the formal rule said otherwise.

And, as is so often the case, lore gets things right, and the law does not.

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