The Law and Policy Blog

Sir Keir Starmer and the Litigation Turn of Mind

31st July 2023

The leader of the opposition is a former litigator, and many litigators have a certain strategy – or at least a set of tactics: a certain cautious approach.

This approach is to think backwards from what may happen at trial – indeed sometimes to think backwards from what may happen with any appeal.

This sort of litigator anticipates what can go wrong with a case and thereby acts to, as far as possible, close the potential problem(s) down.

Other litigators can be more gung-ho, trying to make the most of their case at each and every point, from aggressive letter before action to expansive claim forms. Such litigators often encounter set-backs.

The more cautious litigator looks at everything the other way round, focussing on the strengths of the other side and the weaknesses of their own.

The merit of this approach is that if and when one gets to trial one is less exposed to defeat.

And often not being defeated on key points is enough for a good result.

If both sides adopt this approach then the “winning” party will be the one who has made the fewer mistakes.

But.

Politics is not law, and a general election is not a trial.

Yes, there is a place for mitigating or even eliminating predictable lines of attack.

And that may be enough for a political party to at least avoid a heavy defeat.

It may not, however, be enough to mobilise sufficient support so as to make an outright victory more likely.

For that there needs to be a positive message: to have points that the other party instead needs to mitigate or eliminate.

This is not to say that closing down lines of attack is a bad thing, just that it is not a sufficient thing.

A cautious litigation turn of mind has its place, but campaigning is not litigation.

A political leader – even those who were once lawyers – also needs a political frame of mind.

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The value of X – making sense of a re-branding, from a lawyer’s perspective

26th July 2023

Much – most – of the commentary about what Elon Musk is doing with the social media platform previously known as Twitter focuses on his personal role and decision-making.

But, as an intellectual exercise, let us de-personalise the matter and see what, if any, sense we can make of the re-branding of that particular platform.

And, for the sake of this post, let us assume the individual heading the platform to have the generic quality Y.

From the perspective of an information technology (IT) and intellectual property (IP) lawyer, a platform like Twitter is comprised of one or more things of value.

Sometimes the platform is rich in IT – there are processes and hardware and software which are distinct and significant and difficult to copy. Sometimes that IT can be protected by patents, or by another form of IP, or it can be a mysterious trade secret. Sometimes that IT is simply on a scale, or is configured in a certain way, that makes hard to impossible to duplicate.

With Twitter, this does not seem to be the case.

The IT for social media platform is not, shall we say, rocket science.

Message boards and micro-blogging are quite common and although Twitter may have many more users than other platforms, the value of Twitter is not really in its IT.

And in their different ways, the Threads platform (which is the property of Meta) and the Mastodon phenomenon (which is largely non-proprietary) show that rivals can produce a Twitter-like experience without the Twitter proprietary IT.

So if it is not the IT then perhaps the value is in the branding, which would be protected by trade marks and other forms of IP.

Even if the technology is commonplace, there would be value in the brand.

Twitter – and its associated words tweet (as a noun) and tweet (as a verb) – is part of the vernacular and popular culture.

The branding is well-known internationally.

A purchaser of or investor in Twitter could disregard and replace the IT completely and still have something of huge value in the brand.

And as long as the user experience was not affected, few would care or indeed notice.

Here Twitter has an advantage: it may not be rich in IT, but it is in IP – at least in respect of branding.

Regardless of the quality of the owner Y, it would be a very strange thing for an acquirer of or investor in Twitter to renounce the brand.

A third thing of value in a business is what can be called generally “goodwill”.

Here the word means the collection of non-tangible (and tangible) things that keeps a business in, well, business.

So a platform which had commonplace IT and, say, unimpressive branding can still be worth buying because of the quality of, for example, its workforce or leadership team, or because of the size and loyalty of its customer or user base or its relationship with advertisers.

Sometimes a company will be acquired just for such assets – regardless of its IT and IP.

Twitter, however, has lost most of its workforce and its leadership team, and many users and advertisers have been alienated.

Users and advertisers are going elsewhere, creating goodwill somewhere else.

To the extent that Twitter users and advertisers have been the focus of attention, it has been as things to exploit for short-term revenue rather than for long-term development.

The above list – IT/IP, branding/IP, and goodwill – is not exhaustive: technology and media companies are bought and sold, or invested in, for all sorts of reasons everyday.

Sometimes such companies, like football clubs, are bought for reasons that make no commercial sense whatsoever.

But when someone purchases or invests in technology and media companies one (or more) of those three things is usually the real target of the transaction.

And so what happens when a platform is purchased for an extraordinarily high amount of money which is (a) IT poor, (b) stripped of its valuable branding, and (c) alienates its users and advertisers?

What actually has been bought?

What is the value of such a company?

Well, now we know.

It is the value of X.

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Why the Northern Irish Border Poll of 1973 was both unimportant and profoundly important

(This post is a long excerpt from a fuller post at the Empty City substack for paying subscribers.)

This post is about the border poll that took place in Northern Ireland on 8 March 1973.

The choices in that poll were:

“Do you want Northern Ireland to remain part of the United Kingdom?

“Do you want Northern Ireland to be joined with the Republic of Ireland outside the United Kingdom?”

(Pic source.)

By 591,820 votes to 6,423 votes, on a 56% turnout, the result of the poll was in favour of Northern Ireland remaining part of the United Kingdom.

This result was not a surprise, given the electorate of Northern Ireland at the time.

And the low turnout was, in part, caused by a boycott of the exercise by the nationalist community.

This 1973 poll – or plebiscite or referendum, for the terminology varied – is not that well-known. Many histories of the period do not mention it.

When it is mentioned the poll is often regarded as a pointless exercise which did nothing to satisfy the unionists, and which certainly had no legitimacy for the nationalists.

And even at the time the poll was regarded as being fairly unimportant, almost trivial.

The poll was imposed by the United Kingdom government during a political and security crisis; the Northern Irish unionists had not asked for any such poll to take place; the nationalists did not campaign or vote; and, in any case, the result was a conclusion foregone.

The poll also had little-to-no direct impact on events: it did not seem to change anything that otherwise would have happened either in 1973 or the years that followed.

Soon the poll was pretty much forgotten about.

And none of the subsequent periodic polls in Northern Ireland which were then envisaged by the United Kingdom government took place.

As such, the poll can be seen as a minor detail, almost a footnote, to the story of Northern Ireland during “the Troubles”.

The 1973 poll was unimportant, at least in any direct sense.

But.

But the poll can perhaps now be seen as profoundly important in its implications and consequences, for two reasons.

First, this poll was the first referendum under a dedicated Act of the parliament of the United Kingdom, and this meant that it was far easier for the other referendums that followed.

Before 1973, there had been local polls by local councils on local matters in the United Kingdom, held under general and permissive Acts of Parliament that enabled local councils to hold such local polls on local matters.

But this border poll was different – radically different.

It was the first time a matter which would normally be for the parliament in Westminster (or the then Northern Irish parliament at Stormont) was put to the people directly, despite heady notions of parliamentary supremacy or sovereignty, in any or all of the four constituent parts of the United Kingdom.

As my Substack has previously set out, senior British politicians since late Victorian times had sometimes called for referendums, usually to help them out of knotty problems.

But this was the first referendum to actually take place on a matter usually reserved for parliament.

As such, this was the first actual exception to the hitherto hard doctrine of parliamentary supremacy.

Other exceptions would soon follow.

Following this first dedicated referendum there was then the referendum in 1975 on the United Kingdom remaining part of the then European Communities, and then referendums in Scotland and Wales on devolution in 1979.

And those referendums, in turn, meant that by the late 1990s referendums were seen as a valid means for dealing with renewed calls for devolution.

In 1998 a referendum was seen as the obvious means for endorsing the Good Friday Agreement.

Also, from the early 1990s, referendums were frequently demanded in respect of the European Union, and one was finally granted in 2016.

There was even a referendum on electoral reform.

Referendums went from being a constitutional exception to being, at least for certain matters, a constitutional rule.

Yet without the Border Poll of 1973 the referendums of 1975 and 1979 and many of those thereafter may never have taken place.

Perhaps the vote on the Good Friday Agreement would have still occurred, but even then the precedent of 1973 was perhaps instrumental in it being recognised that it was for the people of Northern Ireland (and not their politicians) to make this key decision.

After 1973 the old doctrine of parliamentary supremacy became undermined in reality, if not in strict constitutional theory.

There were certain matters which it became parliament should refer to the people.

Second, not only was the border poll an exception to one fundamental principle, it was also an important practical assertion of what was to become another fundamental principle.

For the border poll of 1973 was the first application of what is now a fundamental principle which can be stated as follows: that it is for the people of Northern Ireland to decide whether Northern Ireland is to become part of a unified island of Ireland or to remain part of the United Kingdom.

And note the reference here to “the people” – and thereby the decision is not for the politicians of Northern Ireland or any representative body, such as a Northern Ireland parliament.

This is significant.

The principle – which was first canvassed by the United Kingdom government in the late 1960s – informed and shaped what has happened in Northern Ireland since 1973, via the Good Friday Agreement, to the present day.

And it is this fundamental principle that explains why it is probable there will be a further border poll in Northern Ireland in the next few years.

The 1973 Border Poll, however, came about almost by accident, as one of many novel improvisations in a difficult political situation.

Here we need to go back to the United Kingdom’s Ireland Act of 1949 that provided that in no event would Northern Ireland cease to be part of the United Kingdom without the consent of the parliament of Northern Ireland.

It was a matter for the parliament of Northern Ireland, and not the Northern Irish people directly.

See section 1(2):

But by 1973 there was no parliament of Northern Ireland.

The parliament of Northern Ireland had been suspended.

And so when the government of the United Kingdom, facing the escalation of the Troubles, decided that there should be some affirmation of Northern Ireland’s position in the United Kingdom a decision was made that there should be a direct poll instead.

What had been, under the 1949 Act, a matter for the elected parliament of Northern Ireland was, at a stroke, made a matter for the people of Northern Ireland directly.

The 1949 Act had not said the consent of the people was needed or even should ever be sought on the place of Northern Ireland in the United Kingdom. It was not an issue for any popular vote.

But in 1973 it was made a matter for the people of Northern Ireland directly, and it has been ever since.

See section 1 of this 1973 Act, which followed the border poll:

And then section 1 of the 1998 Act that gave effect to the Good Friday Agreement:

Never again would an Act of Parliament say the place of Northern Ireland in the United Kingdom was a decision to be taken on behalf of the people of Northern Ireland.

So in terms of the immediate politics of 1973 the border poll may not have been important, but the use of a referendum for such a question was profound in its implications and consequences.

And as we approach a probable new border poll in Northern Ireland, it is a story that is perhaps worth knowing.

Over at my Empty City Substack I have posted a fuller account of the 1973 border poll for paying subscribers.

The fuller article has also been posted at my Patreon.

Any PayPal subscribers wanting access to the fuller article should leave a message below marked private with their email address.

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A close reading of Twitter’s legal letter to Meta: a guided tour of a weak litigation letter

7th July 2023

This is a close reading and exposition of the letter sent on behalf of Twitter to Mark Zuckerberg, the chairman and chief executive officer of Meta.

The letter is dated 5 July 2023 and has been published at the Semafor news website.

For the reasons set out below, this letter reads to this English litigation lawyer as being weak. Perhaps that view is wrong, and that there is some super-duper legal-magic which an American lawyer can see in this letter and which this post cannot.

But unless there is something which this post is missing, this is about as weak a litigation letter as can be, without the letter saying nothing substantial at all.

Please note that I am not an American lawyer, and so everything which now follows in this post should be read subject to this proviso.

In particular, I am an English lawyer (though trained at an American law firm in London) with twenty years of various experiences as a litigator, usually for potential defendants at early stages of disputes. This means I have read more litigation letters than is good for any human being.

Litigation letters really do comprise an odd and distinct genre of literature.

There is sometimes a lot going on – and sometimes a lot not going on – in a litigation letter.

You need to be able read what is there, and to work out what is not there.

Let us begin with the first paragraph of the the letter sent on behalf of Twitter to Meta:

First you will see the strange “as successor in interest” formulation of who the letter is being sent on behalf of. This is because of this recent business news:

Nothing in this post rides on this strange formulation, but it is worth noticing in case X Corp ever needs to establish any legal rights to sue.

What is more immediately interesting is the “Based on recent reports…”.

This is early warning sign of a weak letter.

The letter could say “we have direct evidence” or even “we have in our possession documentary proof which we attach”.

But the letter does not say either of these things.

Instead, the sender states that the evidence is only (news) reports.

The letter then connects these “recent reports” to “serious concerns”.

Again, this is mild.

There is no allegation of breach – just a statement of “serious concerns”.

A strong letter would begin with something like “we have in possession direct evidence [or proof] that [you are in breach of the following legal obligations]”.

But this letter backtracks straightaway from any such a robust position.

The first paragraph then seems to become aggressive: “systemic, wilful, and unlawful misappropriation”.

To an unexperienced eye this looks striking – and it is intended to look striking.

But such strident words have already been weakened by the framing.

Compare and contrast:

“we have in possession direct evidence that you are engaged in systemic, wilful, and unlawful misappropriation in breach of your legal obligations”

with

“based on reports we have concerns that you are engaged in systemic, wilful, and unlawful misappropriation”.

From this very first paragraph this does not look like a serious letter.

If the author of the letter could have put the allegations more highly then they would have done, but they did not.

And this is no doubt because they could not.

As a genre of literature litigation letters are often far more significant for what is not said than for what is said.

(This is perhaps the only thing litigation letters have in common with the prose of Jane Austen.)

A non-litigator may read such an opening as in this Twitter letter and be worried at what is said; but an experienced litigator will read that paragraph and will spot what is not said.

Now the second paragraph:

We know from the first paragraph that the allegation made in the second half of this paragraph is based on reports rather than on any other evidence and so this paragraph has to be read with this in mind.

As such the allegation is nothing more than a supposition.

The language “deliberately assigned…specific intent…in violation of…” again looks forceful, but is based only on (news) reports. No evidence is offered, let alone any proof.

(And in any case Meta denies any Threads engineers are former employees of Twitter.)

There are also no specifics in this paragraph – no particularisation at all.

There is instead the vaguest possible reference to“trade secrets and other intellectual property”.

Patents? Copyright? Trademarks?

Who knows?

Perhaps nobody knows.

The third paragraph goes over the page:

Here we have“highly confidential information” now thrown in as well, but again without specifics or particularisation.

Then there is the deft but weak “intends to strictly enforce”.

This is not even a clear and present threat to sue.

It is at best a threat to possibly sue in the future, maybe.

The “reserves all rights” is also a weak sign.

The relevant rights of Twitter will presumably exist regardless of any formal statement of reservation.

If Twitter is able to obtain civil remedies and an injunction without notice then it does not need to tell Meta that it is formally reserving its rights. Such words are ornaments not instruments.

And now look at what is not here: there is no deadline.

There is no ultimatum.

There is no “unless [x] by [y date] then we are instructed to do [z]”.

Nothing.

Now onto the fourth and penultimate paragraph:

This is framed as a warning.

But it is a warning that does not substantiate anything so far in the letter.

In essence, Meta is merely being told to conduct itself lawfully.

There is no evidence, still less proof, that Meta is doing any of the things mentioned unlawfully – just a bare accusation.

And again, as in the previous paragraph, there is no deadline or ultimatum for Meta to say it will comply with this demand.

There are no requests for undertakings.

Twitter also “reserves all rights” – but nothing in this paragraph sets out how those rights are going to be enforced.

This penultimate paragraph is thereby again just decoration.

And now the final paragraph:

At last there is some substance to the letter, but not much.

In English civil litigation there is an obligation on potential parties to a possible dispute to retain relevant evidence if they are aware that litigation is contemplated. I suspect there is a similar obligation in American civil litigation.

But in England sending a letter only to put a party on notice to retain documents for possible litigation is about level one on the litigation Richter scale.

It is the least possible substantial reason to send any litigation letter.

Such notice can make a legal difference in that Meta cannot now deny it is aware that litigation is contemplated.

This demand at least looks as if a litigation letter is doing something: that the letter is justified in its existence.

But this is a weak final paragraph to a litigation letter.

Taken in its entirety the letter is a bundle of suppositions, bare accusations, and reservations of (already existing) rights, with a small blow of the litigation trumpet with a notice to retain documents provision in the last paragraph.

No evidence is provided or even mentioned, let alone proof; there are no specifics or particularisations; no precise laws are cited; and there are no deadlines or ultimatums; and no demands for undertakings.

The letter does not even ask for a response – such as an undertaking or confirmation.

(And one thing a wise litigator does with a weak letter is not to ask for a response, as it looks yet weaker when no response will be coming.)

Overall, this is the weakest possible letter that could have been sent on behalf of Twitter to Meta – that is other than the letter having no substance at all.

Litigation letters have many (potential) audiences.

The best ones are written with the court in mind: how would this letter look to a judge? Those letters are the scary ones – and paradoxically the letters which are most likely to mean a case is resolved before court.

(The best way to avoid going to court in civil litigation is to prepare for court.)

Good litigation letters will also force the other side and their lawyers to think about their legal position afresh.

And then…

…there are letters which are the consumption of the client and/or the media.

Some clients sometimes demand that such a litigation letter is sent even when there is little or no case, and this is the sort of letter that gets sent in those circumstances.

The audience for this sort of letter is not the other side, still less the court, but the client itself – and perhaps the public and media.

Perhaps evidence will come to light of wrongdoing by Meta.

Nothing in this post – a disclaimer! – should be taken to mean that there is no possible legal case that X Corp can bring to enforce its rights against Meta.

But any such claim would require a very different letter to this one.

And that would need a very different letter – with evidence and specifics and particulars and deadlines and ultimatums. The sort of letter which this letter is not.

And if such a serious letter is sent (and published) then we will know that a serious legal situation is afoot.

But, for the reasons set out above, and from the perspective of an English litigation lawyer, this is not a serious letter.

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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.

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Threads – remembering an influential moment in that 1984 film

6 July 2023

Threads is the the social media platform of the day.

(My Threads account is here – and the early impressions are positive, though further functionality needs to be added, but it is a marked improvement on the Hell-site that Twitter has become.)

But for those of us of a certain age and from a certain place Threads has another meaning:

The film had an immense influence on me when showed at school, though not one which seems to be shared by others.

My school was a south Birmingham 1980s comprehensive, and the well-meaning, earnest progressive teachers no doubt intended that the film would make us think about the issues of nuclear war.

As it happened, the depicted post-war apocalypse was nothing compared to the sort of things I was reading about anyway (though I am sure I really shouldn’t have been doing), and so almost all the film left me unfazed.

But.

There was one moment which stuck with me, with force, and it has shaped my political and legal thinking ever since (to the extent that my political and legal ponderings warrants being called “thinking”).

By way of background, part of the film is about some people in a bunker who were in charge – or at least regarded themselves as in charge.

All the bunker scenes have been collected here:

And in that bunker they had telephones.

Proper, bulky desk telephones, not what we have now.

And via those telephones the important people in the bunker requested things and gave orders.

That was how those in control were to keep in control – telephony was the means of transmission and obtaining intelligence.

Telephony was the – ahem – thread that kept those who governed in charge of those who were governed.

*Spoiler Warning*

Those in the bunker die, pretty much unnoticed by the survivors of the nuclear strike.

Eventually some come to dig them out.

And there is this moment as the torch light goes around the bunker.

Corpses, and dust, and broken things.

And also a redundant telephone:

For some reason the sight of that redundant telephone stuck with me more than any of the special effects or make-up and horrific images and awful sounds.

I could not stop thinking about it.

What happens when those who are supposedly in charge no longer have the means of being in charge?

For in any large human grouping those in charge cannot do it by personal, face-to-face dominance alone, there needs to be methods of communication and means of control.

And those methods and means are precarious, and so they cannot be taken for granted either by those who govern or by those who are governed.

About this time in the mid-1980s I also became fixated by this image in a book I had about kings and queens, which I have featured a few times in my blogging:

The combination of the Threads telephone and this Thackeray picture led me to a lifelong preoccupation about constitutions and language and images and law – about how one small group of people in one place actually get to exert day-to-day power over people in other places.

How does this actually, practically work?

And so I ended up as a lawyer and commentator.

Of course, those with power can always resort to coercion and lethal force – but short of this last resort, there are norms and systems and lore and laws which provide how we govern and are are governed.

So how are these threads crafted and put in place, and how are they maintained and repaired?

And these systems and methods of communication and means of control can sometimes just go: whether by technical failures, or even by the loss of legitimacy and authority.

The threads can snap – or they can be cut.

And then what happens?

Well.

Thank you for indulging me and letting me share my Threads anecdote. As today is Threads day, one way or another, I thought this would be the best time to tell it.

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A modest proposal for helping the Prime Minister “keep on top of government” and “to push priorities”

3rd July 2023

Over on Twitter, the estimable Dr Cath Haddon is live-tweeting a talk from a former cabinet minister to the Institute of Government:

Here is an idea for a Prime Minister to have something to help him or her keep on top of what is going on in government and to push priorities.

The Prime Minister should form a committee of, say, about twenty-two individuals, each responsible for a specific government department or public function.

Those on this committee should report directly to the Prime Minister.

And the Prime Minister should be able to appoint and replace members of this committee as he or she chooses.

This committee should meet at least a couple of times a week – and this meeting should be at Downing Street chaired by the Prime Minister.

There can also be sub-committees dealing with matters where more than one government department is concerned – and these sub-committees can also be chaired by the Prime Minister or their designate.

So as to ensure that priorities are pushed – and as politics should be the language of priorities as one politician once said – these appointees should be politicians not officials.

And appointing members of parliament to this committee would also mean that the Prime Minister would have a useful direct line to what is said about the departments in parliament.

Meetings of this committee should also be attended by the head of the civil service, so that he or she can be part of the discussions and to provide advice and practical insight.

The deliberations should be confidential so that discussions can be frank and not leaked.

And there should be collective responsibility for those on the committee, so that there is a single overall direction to the course of the government.

Those on this committee should also be paid a substantial amount in addition to their parliamentary salary so as to recognise the additional work and to attract the brightest and best.

Such a model would, at a stroke, keep a Prime Minister on top of what is going on in government and for priorities to be pushed across government.

And this is the important thing…

…if a Prime Minister cannot effectively use such a committee to keep on top of what is going on in government and to push priorities, then no “Prime Minister’s Department” is going to be of any greater help.

The only thing left is what to call this committee.

Pic source.

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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.

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Why the United Kingdom government cannot leave the ECHR without either breaching or re-negotiating the Good Friday Agreement

1st July 2023

The overlooked obstacle to the United Kingdom withdrawing from the ECHR

From time to time the demand comes from a government minister, or from one of their political and media supporters, for the United Kingdom to leave the European Convention of Human Rights.

This short blogpost sets out the most obvious obstacle for the government in doing this.

The obstacle – if that is the correct word – is the Good Friday Agreement.

That thirty-six page document – which is not as read as widely as it should be – contains a number of express provisions in respect of the ECHR:

“The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.

[…]

“There will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including: […]

“(b) the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission

[…]

“The Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas, subject to: (a) the ECHR […]”

And so on.

The ECHR is not just mentioned in passing in a recital.

Instead the ECHR is integral to the Good Friday Agreement.

Rights under the ECHR that can be relied upon in Northern Ireland are a fundamental part of the agreement.

It was important to Ireland – and to the nationalist community – that there were rights beyond the reach of Westminster and Whitehall (and Stormont) that could be enforced directly against the state of the United Kingdom, including against the police and security services.

When this obstacle is pointed out, sometimes the response is “Aha! Why not just have the ECHR applicable in Northern Ireland?”

Of course, there is nothing in the Good Friday Agreement which expressly requires rights under the ECHR to be directly enforceable elsewhere in the United Kingdom.

But.

Article 1 of the ECHR provides:

It may thereby not be open to the United Kingdom to be a party to the ECHR and pick-and-choose who within its jurisdiction can have the benefit of the rights.

This would be in addition to the political issues about having a further legal “border down the Irish Sea”, which presumably would not be welcome to unionists.

Perhaps the government of the United Kingdom could seek to renegotiate the Good Friday Agreement?

This would mean Ireland agreeing that those – especially nationalists – in Northern Ireland should have their existing legal rights against the United Kingdom state removed.

It would also mean Ireland agreeing that it would not be able to take the United Kingdom to court in Strasbourg.

And it would also mean – in practice – the United States and the nationalist community agreeing that legal rights and protections are removed.

This is not at all realistic.

And the difficulty cannot be resolved by simply copying and pasting the Convention rights into a domestic statute for Northern Ireland.

For unless the rights are as constructed and interpreted by the Strasbourg court, and unless a disappointed party can petition the Strasbourg court directly, they are not “convention rights” – even if identically worded.

(This is partly why even Dominic Raab’s “Bill of Rights” that was to repeal the Human Rights Act had the convention rights in a schedule and a duty on public authorities to comply with those rights.)

Part of the difficulty of Brexit was because some did not know or did not care about the particular situation of Northern Ireland. Some also pretended it was not an issue, but as we now know it needed special care and attention – and it still has not been fully resolved.

Similarly those who believe just leaving the ECHR would be easy may again be overlooking the Irish and Northern Irish dimensions.

And unless the Good Friday Agreement is re-negotiated, the United Kingdom leaving the ECHR would place the United Kingdom in breach in Good Friday Agreement.

Well, at least as long as Northern Ireland remains part of the United Kingdom.

And that would be another story.

This post is partly drawn from this earlier blogpost.

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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.

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Understanding the significance of today’s Court of Appeal decision on the Rwanda removals policy

29th June 2023

Today the Court of Appeal ruled that the United Kingdom government’s controversial Rwanda removals policy was unlawful.

The judgment is here and there is a court-prepared summary here.

By saying the policy was itself unlawful, this means that each and every possible removal of any asylum seeker to Rwanda for their asylum application to be processed is currently unlawful. There are no current circumstances where a removal would be lawful.

The reason for the unlawfulness is that Rwanda is not a safe place for the processing of asylum claims:

This goes beyond the decision of the High Court that each particular removal happened to unlawful, on a case-by-case basis, because an appropriate process had not been followed. The High Court had said that the general policy was lawful, but each application of it so far had been unlawful.

The Court of Appeal now says that even the policy was unlawful. No removal, even with elaborate procedural compliance, would be allowed.

So both in practice and in the round the Rwanda removals policy has been held unlawful.

Opponents of the policy can celebrate – to an extent.

Here are some further thoughts about what this decision signifies and does not signify.

First, and from a practical perspective, the government’s far bigger problem was the initial High Court judgment. It does not really matter if a policy is (theoretically) lawful if the procedural protections required for each individual case are such that, in practice, removals are onerous and extraordinarily expensive.

I blogged about these practical problems when the High Court handed down its judgment:

Today’s ruling that the policy itself is unlawful makes no real difference to the government’s practical predicament with the policy in individual cases.

And the government appears not to have appealed the adverse parts of the High Court judgment.

The Home Secretary, and her media and political supporters, can pile into judges and lawyers because of today’s appeal judgment. But their more serious problems come from the last judgment, and not this one.

The Home Office is simply not capable or sufficiently resourced to remove many, if any, asylum seekers to Rwanda even if the policy was lawful.

Second, the Court of Appeal decision today is likely to be appealed to the Supreme Court.

And, from an initial skim read of the relevant parts of the judgment, one would not be surprised if the Supreme Court reverses this Court of of Appeal decision.

Today’s Court of Appeal decision is not unanimous – the Lord Chief Justice was in the minority on the key question of whether Rwanda was a safe country for processing asylum claims.

The Supreme Court is (currently) sceptical of “policy” type legal challenges, and is likely thereby to defer to the Home Secretary’s view that Rwanda was a safe country for processing asylum claims – a view also shared by the two judges at the High Court and the Lord Chief Justice.

If the Home Office appeals to the Supreme Court then one suspects it is likely to win.

(Though it must be tempting to the Home Secretary to now abandon this – flawed – policy, and blame the judges.)

Third, any appeal to the Supreme Court will take time. As it has taken until June 2023 for an appeal decision for a December 2022 High Court decision, it may be another six months before there is a Supreme Court hearing and decision.

And in that time, and unless a competent court decides otherwise, all removals will be unlawful as a matter of policy.

If the government wins at the Supreme Court then there would presumably be further delays while individual challenge-proof removal decisions are made.

In other words, the period for any actual removals before a general election next year will be short.

Even with a Supreme Court win, it will be that few if any asylum seekers are removed to Rwanda before a likely change of government.

(Though it cannot be readily assumed that an incoming government will change the policy.)

Fourth, it should not be overlooked by opponents of the Rwanda removals policy that the appeal lost today unanimously and comprehensively on every other ground:

These defeats are not any cause for opponents of the policy to celebrate.

Finally, there is a possibility of a work-around, which the government could adopt.

In the Abu Qatada case it was held by the courts that a deportation to Jordan for a trial was unlawful because of the use of evidence extracted by torture in the Jordanian legal system.

And so the United Kingdom government did a deal that the Jordanian legal system changed its ways so that the deportation could take place.

Abu Qatada was then, lawfully, deported.

(And then acquitted by the Jordanian court in the absence of such evidence.)

This deportation was presented by the United Kingdom government as a win against pesky human rights lawyers – when in fact the government had in reality complied with the judgment.

Similarly, the United Kingdom government may work with the Rwanda government to improve the asylum system, and correct the evidenced defects, so that concerns of the majority of the Court of Appeal are addressed.

No doubt the government would then similarly present any Rwanda removals on this basis as a win against pesky human rights lawyers – but again it would be the government complying with what the court would have approved.

The judgment released today is long – and nobody commenting on the judgment today – politician or pundit – can have read it and properly digested it.

This post is thereby based only on initial thoughts and impressions.

That said, there is reason today for opponents of the Rwanda removals policy to celebrate.

But perhaps not too much.

This has been cross-posted from The Empty City Substack.

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“How did this person die? – And what lessons can we learn?”

27 June 2023

A sensible policy proposal to monitor the recommendations of coroners’ inquests

“How did this person die?”

In any organised society this is one of the most important and basic questions that can and should be asked.

Was it a death that could have been prevented?

Are there things that can be done so that similar deaths can be avoided?

These questions are not just about the immediate, medical cause of death – but the wider circumstances which led to a person dying.

“How did this person die?” is a question which the legal system can often only answer indirectly. A police investigation and a criminal trial can sometimes ascertain the circumstances of a death when there is potential criminal liability. A civil trial can sometimes ascertain the circumstances of a death when there is potential civil liability.

But not all preventable deaths or lethal system failures are matters for the criminal and civil courts. And the purpose of court proceedings is not directly to inquire into facts generally, but to allocate legal liability – which is not always the same thing. For example, criminal proceedings especially have very strict rules of evidence.

There therefore needs to be another way of inquiring in the circumstances of the death and drawing any lessons – distinct from and in addition to the criminal and civil courts.

A way where the focus is not on the rights and liabilities of persons, but on simply finding out what happened and what that tells us.

And there is such another way.

In England there is the ancient office of the coroner.

Coroners have long provided the public good of conducting inquests into the circumstances of deaths – and coroners can make recommendations that may prevent further deaths and avoid similar lethal system failures.

It is difficult to think of anything that serves a more fundamental public interest.

But.

There is little wider point in coroners conducting their inquiries and making recommendations if nothing comes of the lessons that have been identified.

And this is a serious problem about our coronial system.

Here is a worked example provided by Inquest, the charity that provides expertise on state related deaths and their investigation:

And here is another case study:

As Inquest say at the end of that case study:

“…there is no central body dedicated to collating and analysing the Government’s follow-up to these recommendations to encourage positive action to prevent further deaths. Instead, it falls to families, lawyers, charities and coroners to join the dots.”

In essence, the lack of any body (and, indeed, anybody) being responsible for monitoring what happens to coroners’ recommendations robs the coronial system of any wider efficacy.

A public good may be being served by individual inquests into particular deaths, but this public good is not being converted into a wider social benefit.

That there is even this gap is extraordinary.

Other public entities have, in turn, their monitors – for example, the inspectorates of the police and of prisons.

There are many bodies that answer Alan Moore’s question of who watches the watchmen (or, as Juvenal once put it, quis custodiet ipsos custodes?).

Given the fundamental public interest in avoiding preventable deaths and lethal system failures, it would seem to be a no-brainer of a public policy proposal.

Inquest are today launching a campaign for such a body:

Inquest have also published this persuasive guide – from which the above case studies are taken.

Though the proposed name of a “national oversight mechanism” is a bit cumbersome – I would suggest OffQuest – there can be no sensible doubt that it is required as a thing.

And as we approach the next general election, it would seem straightforward for political parties to commit to such a body in their manifestoes.

It is a gap that should be filled and can be filled, and it is a proposal that can only have benefits.

For after all, the reason why “How did this person die?” is such an important question is that the answer can often help those who are still alive.

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Over at his Substack, Joshua Rozenberg has written a good post on this topic.

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This has been cross-posted from my Empty City substack.

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Photo credit: wikimedia commons.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

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

More on the comments policy is here.

The government is running out of time

26th June 2023

In the words of the eminent jurist Paul Simon:

“Time, time, time
See what’s become of me

“Time, time, time
See what’s become of me
While I looked around for my possibilities”

One hard structural fact about the politics of the United Kingdom is that the government is running out of time.

By automatic operation of law the next general election has to take place by 28 January 2025.

That gives the current government about 580 days left, maximum, before a general election which many forecast that the governing Conservative party will lose.

About 580 days sounds a lot, but it really is not – at least in parliamentary terms.

That date presupposes that the general election is called at the last possible moment – 17 December 2024 – leaving the longest possible election campaign.

Current speculation is that the next general election will be in October 2024, which means the last parliamentary session will need to be over by September 2024, and given summer breaks, that basically means legislation will need to passed by June/July 2024.

So that is about 365 to 400 days.

We are still – remarkably – within the same parliamentary session that commenced two prime ministers and one monarch ago in May 2022.

And as the Hansard Society averred in May, few of the Bills announced in that speech have become law:

It is expected that there will be a new King’s Speech this November.

This means that it is highly likely that there is just one more parliamentary session left before a general election – November 2023 to June/July 2024.

(There is the theoretical possibility of more than one remaining parliamentary term if the government has a sequence of truncated parliamentary sessions, with multiple openings of parliament.)

One implication of there being only one more parliamentary session before an election is that it is probable that there is not enough time to force any new legislation through the House of Lords under the Parliament Act, for that requires a Bill to be approved in successive sessions.

And then there are the recesses:

As one adds up the delays and holidays, and the speculation of an election by October 2024, the gross figure of 580 days becomes a lot less in practical legislative terms.

The grand hourglass of parliamentary time is running out for the current government.

We are not talking years, we are now talking months – and soon we will be talking weeks.

And not only time is against them – there is the problem of legislative preparation.

Put simply: this government is not very good at preparing legislation.

As the Hansard Society politely put it:

Parliamentary time for bills should not be, say, “step one’‘ of a process but about “step four” – after policy formulation, consultation and development – all within or by departments.

And so if you factor in the time to actually put together new practical – that is, passable – legislation then not even the maximum 580 days are really enough.

Even if following the conference season this year there is a “whizz-bang” King’s Speech with lots of legislative proposals, that whizzery and bangery needs to being prepared now in departments, and there is not a lot of evidence of any whizzery and bangery taking place anywhere in Whitehall at present.

Not only does the government need enough time to get legislation through parliament and implement it before the next general election, ministers and departments need lead-in times to get the legislation to be in any state to pass.

The time left looks very tight.

Too tight.

What we have is a government that not only is running out of time, but in some ways has already ran out of time to do anything radical and substantial in its one (likely) remaining parliamentary term.

And what makes this even more remarkable that this is a government elected in December 2019, on the back of Brexit, which had a substantial majority – only the second overall majority the Conservatives had had since 1992.

In legislative and policy terms, that majority has been largely wasted.

(Which may be a good or bad thing, depending on your politics.)

This is a government running out of possibilities.

“Time, time, time
See what’s become of me

“Time, time, time
See what’s become of me
While I looked around for my possibilities”