The *real* licences to kill issued by the United Kingdom state

29th October 2021

What would be a ‘licence to kill’?

The word ‘licence’ is familiar – but is also important.

At law, a licence is not – say – a mere endorsement or an encouragement.

It is not really just a bare permission (which can be for something you are permitted to do anyway).

A licence is a permission to do a thing that otherwise would be unlawful – but for that licence.

It is, in effect, the get out of jail card – or at least a get out of any liability card, either criminal or civil.

So, for example, a licence will stop a person in another person’s field from being sued for trespass, or a software user from being sued for copyright infringement for using another proprietary software.

Or a licence will stop you from being prosecuted for driving a car on the public highway – or even for watching everyday programmes on an everyday television.

And so on.

Licences are the signifiers of the sheer extent of the prohibitions around us.

They are permissions to do things that are otherwise banned.

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A ‘licence to kill’ would be a permission to kill another person that otherwise would lead to the killer incurring criminal and/or civil liability for that killing.

In essence: to kill without legal consequence.

You may think that a ‘licence to kill’ is the fictional stuff of James Bond and other spy thrillers.

But, in legal fact, they exist in the law of the United Kingdom – and they are multiplying.

They are not formally called ‘licences to kill’, of course – and they are not numbered sequentially (as far as we know) – but they do exist.

Go over to my column this month at Prospect magazine to find out more.

(And please do click on the article, as it means a lot to me and to the magazine.)

 

Budget special: the Fiscal State vs the Legal State

28th October 2021

Over at the London Review of Books there is a fascinating and informative review by Ferdinand Mount.

The review is of a book by Julian Hoppit about the history of tax and spending in the United Kingdom (which I have not yet read), but there are some thought-provoking points in Mount’s review.

The points in the review are, in effect, useful counter-balances to the usual critique of the United Kingdom constitution on blogs like this one and from other liberal constitutionalists.

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This usual critique is that there is an inherent illiberal problem with the constitution of the United Kingdom: that the doctrine of parliamentary supremacy creates a real scope for political dictatorship – even if this possibility has not (yet) been fully realised.

There is nothing to stop it, for there is nothing that can gainsay the legislative supremacy of parliament – and so an executive with an ascendancy in parliament faces no ultimate checks and balances.

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It was not always like this, of course.

In the early 1600s, the great lawyer Edward Coke averred that there were limits to what could be done by acts of parliament:

“for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void”.

But the political facts of the civil wars of the mid-1600s and of the deposition of a reigning monarch in 1688 meant that parliament became, in practice, legislatively omnipotent.

And this political reality was fixed into rigid ideological doctrine in the late 1800s by A. V. Dicey, whose articulation of the sovereignty of the crown-in-parliament has been orthodoxy ever since.

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As this doctrine of parliamentary supremacy took hold, there were voices of alarm.

In 1929, the sitting Lord Chief Justice – Hewart – published The New Despotism warning of the implication of the power of a government that controlled the legislature, for it would tend “to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme”.

In 1976, the Tory (former and future) Lord Chancellor Lord Hailsham warned of an “elective dictatorship”.

Both Hewart and Hailsham were experienced politicians as well as senior judges, and they could see how flimsy were the ultimate checks and balances on the executive.

All we had to rely on is what the constitutional historian Peter Hennessy has described as ‘the good chaps theory of government’.

This described how self-restraint was the primary reason why the executive did not carried away with its unchecked constitutional power.

And in an age of Boris Johnson and Dominic Cummings (and of Donald Trump and Steve Bannon), this is not a comforting prospect.

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So how did we end up like this?

Why has the United Kingdom state almost sleepwalked into creating the conditions where raw executive power is effectively unchecked?

Mount’s review provides an interesting explanation.

The explanation is that this was not any conscious political intention, but the implication and by-product of the fiscal state.

Here Mount’s review starts with this wonderful anecdote:

“‘You were so generous, you British,’ Hans-Dietrich Genscher, West Germany’s perpetual foreign minister in the 1980s, once remarked: ‘You gave us a decentralised federal structure and a proportional system of election so that never again could we concentrate power at the centre, but you took neither of these for yourselves.’ Canadians and Australians could say much the same […]”

Mount then explains why we did not take the liberal constitutionalist course we imposed on others:

“The answer provided by one strong, perhaps dominant, tradition in English historiography is that monarchy, single rule, is a remarkably effective system, the secret of England’s survival and, for many centuries, the driving force behind the expansion of its power. Hence monarchy’s enduring popularity. […]

“Kings of England commanded a range of power and control over all subjects which outdistanced supposedly greater monarchs on the Continent.’

“This power consisted, above all, in the capacity to collect taxes. There were popular eruptions and, of course, exceptions (smuggling was one nagging drain on revenue), but between the poll tax riots of 1381 and the poll tax riots of 1990, what’s remarkable is the docility, by and large, with which the English paid their taxes, even when they reached monstrous levels to finance the Napoleonic Wars and the world wars of the 20th century.

“[…] after each convulsion – the Civil War, the Glorious Revolution, the Great Reform Bill, universal suffrage – the essential supremacy of the queen-in-Parliament (‘absolute omnipotence’, in Dicey’s phrase) re-emerged virtually unchanged.

“In this version of history, Parliament itself is reduced to a serviceable appendage for securing popular assent.”

(By the way, Mount’s review is more nuanced than the quotations above may indicate, so don’t take those quotations as the entirety of his stated position.)

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In other words: what makes no sense – and is akin to madness – from a liberal constitutionalist perspective, makes perfect sense from a fiscal perspective.

The executive’s abilities to impose taxation and to obtain revenue, and to have general consent in doing both, benefits greatly from the crown-in-parliament.

Translating finance bills in to acts of parliament is the thing.

And because of this, few front-rank politicians of any party would want to question, still less disturb this happy political situation – other than legal-political observers like Hewart and Hailsham.

Politicians and parties simply want the keys to this efficient fiscal-legal-political state.

And indeed a great deal of the United Kingdom constitution – and its history – is best understood from a fiscal perspective – including the respective powers of the two houses of parliament following the 1909-11 constitutional crisis.

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But.

What happens when the priorities of a government are not limited to the mundane business of tax-and-spend, but expand instead to wanting to use the executive in hyper-partisan exercises to stoke endless culture wars, and so on.

For not only do new ministers get they keys to the efficient fiscal-legal-political state, they also get the keys to unchecked executive power more generally.

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What is useful about being informed (or reminded) as to why the constitution of the United Kingdom came to be in its current arrangement is that at least it explains a thing which is a horror from a liberal constitutionalist perspective.

And it forces the question: can the constitution of the United Kingdom be reformed so as to become less of this liberal constitutionalist horror without losing the fiscal-legal-political efficiency that politicians (and – presumably – their voters) find so attractive and will not plausibly relinquish?

This is a difficult question.

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The phrase ‘enshrined in law’ has met its perfect subject: sewage.

27 October 2021

At last the phrase ‘enshrined in law’ has met its perfect subject.

Sewage.

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This blog has previously averred that ‘enshrined in law’ is one of the most dishonest phrases in the political lexicon.

https://twitter.com/law_and_policy/status/1453040659846336512

This is usually for one of two main reasons.

First: a commitment ‘enshrined in law’ is often accompanied by various get-outs, or is in broad terms – so it has no real legal effect.

For example, the supposed spending commitment on international aid.

Or second: the doctrine of parliamentary supremacy means that anything done by a statute can easily be undone by a statute.

This is because placing something on a statutory basis does not give it some super-duper magically entrenched power.

For example, the successive Brexit dates that were ‘enshrined in law’ before being postponed.

In the constitution of the United Kingdom it is impossible for any provision to be ‘enshrined in law’ in any meaningful way.

It will always be one political move away from circumvention or frustration, or a simple parliamentary move away from amendment or repeal.

The phrase ‘enshrined in law’ is therefore used by political and media fools, or by political and media knaves taking you to be a fool.

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And so yesterday this dreadful phrase found its natural policy home.

The government’s apparent u-turn (or u-bend, in the circumstances) over sewage.

Last night the government published this statement:

“The Government has today (26 October) announced that the Environment Bill will be further strengthened with an amendment that will see a duty enshrined in law to ensure water companies secure a progressive reduction in the adverse impacts of discharges from storm overflows.”

This statement is political sleight-of-hand (and in a normal world would not be on an official government website in this form, but – hey – those days have gone).

For instance, the term ‘further strengthened’ is in tension with the government’s own backbenchers voting against the house of lords amendment on this very point.

What has happened, of course, is that there has been a political storm overflow, drenching those nod-along government supporters who voted down the amendment with the raw product of popular dissatisfaction.

And so the government has had to reverse its position, while getting publicly funded officials to misdirect the public about it being a ‘further strengthening’.

But.

If you look carefully at the statement you will notice something that is not there.

There is no text of an amendment.

And this, no doubt, is because the there is no text of the amendment, for the amendment does not yet exist.

So we have the spectacle of the government asserting that there will be a ‘further strengthening’ of a bill without saying how this will be done.

Just words, and air.

And it is this vapour is what will be ‘enshrined in law’.

Misdirection upon misdirection: government by panicky press release.

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Whenever the phrase ‘enshrined in law’ is used then there is foolishness and/or knavery afoot.

Either the person saying this does not understand the law or that person is wanting to mislead you about the law.

And, in either case, something is being done that has not been properly thought-through.

The phrase has always come with a smell.

And we now know what that smell is of.

Sewage.

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Why the United Kingdom needs a new post-Brexit negotiator – but also needs a new post-Brexit politics

26th October 2021

If the United Kingdom government is to get anywhere with its post-Brexit policy – ‘to make progress’ is a loaded phrase – then it needs to consider appointing a new head negotiator.

This proposition seems to be true on any sensible view – for the current situation is not good even for those who want Brexit to work in practice.

When the current negotiator – David Frost – was appointed as a minister this blog was supportive.

There was merit – it seemed to me – in the person responsible for the conduct of Brexit negotiations being formally responsible to parliament, even if it is to the house of lords.

There also seemed to be merit in the person being appointed having detailed knowledge of the two Brexit agreements, the withdrawal agreement and the trade and co-operation agreement.

And Frost’s background as a diplomat in the European Union meant he should have an understanding of the various tactical and strategic means of securing the United Kingdom’s objectives.

But.

That positive view was misconceived.

The core – inescapable – problem is that Frost is now reduced to dumping on the negotiated text he himself was responsible for negotiating.

It may be (conceivably) in the United Kingdom’s interests to vary or otherwise address what was agreed – for circumstances can change, and what was agreed may not have been fully understood.

But when that is the situation, the reversal cannot credibly be handled by the very person who not only negotiated but also commended what was agreed.

And the lack of credibility goes further: as there will be the suspicion that what is being loudly said now is not in the United Kingdom’s interest, but in the interest of the negotiator covering his back for having negotiated something that they now regret.

Put simply: if the United Kingdom’s current position has any merit then it needs a fresh negotiator, who has no political capital sunk in the previously agreed texts.

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And this freshness is needed more generally.

It may be that the United Kingdom will not achieve a great deal in post-Brexit negotiations until and unless we not only have a new post-Brexit negotiator but we also have a new generation of politicians in positions of power (and of opposition).

For, like the political equivalent of a historical reenactment society, we seem destined to keep on fighting the battles of 2016.

There needs to be a wider move away from justifying (and criticising) Brexit in principle, from the politics of defence (and attack), to dealing with Brexit as it is and is likely to remain for at least five-to-ten years, if not longer.

For this to happen will mean that both Brexiters and Remainers/Rejoiners have to move on from the rigid, absolutist partisanship of the last five years.

This seems unlikely to happen.

But just as we need a new post-Brexit negotiator, we need a new way of approaching post-Brexit more generally.

Else we will keep getting the post-Brexit negotiators that our political culture perhaps deserves.

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The Ministry of Justice needs leadership – but we are served scorecards

25th October 2021

Another weekend gone, and another proposed ministry of justice policy reported in the Sunday press.

The last one, if you recall, came from an interview given by the new justice secretary and Lord Chancellor (and deputy prime minister) Dominic Raab to the political editor of the Sunday Telegraph.

There he spoke of a ‘mechanism’ for ministers to ‘correct’ judgments which they happened to disagree with.

And not just any judgments, of course, but those where the courts had found that the state had interfered with fundamental rights and freedoms.

One would have thought that, if the effect of such judgments needed to be overturned, this would be a matter for parliament.

But no: ministers should be able to do this, it would seem, at a whim.

As this blog averred, the fact that such a thing was his ministerial priority when the criminal justice system is in crisis was enough to make any sensible person weep.

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We now have another proposal, given to another political editor at another Sunday paper (though this was not an on-the-record interview but from a ‘source’, so it may have come from special advisors as opposed to from the justice secretary directly).

Scorecards.

This new proposal is as follows:

– Raab ‘wants people to be able to look up their local court online and check how quickly cases are dealt with’;

– the new national register ‘will give scores on the speed cases go through the system, and on the ‘quality’ of justice served, measured by the percentage of guilty pleas before cases come to court, as well as the number of cases rearranged because of problems with the prosecution’;

– the register will also score ‘victim engagement’, described as ‘how many crime victims give up and drop out of the process’

– the justice secretary has said ‘he wants ‘granular data’ on how courts are performing across the justice system’;

– the scorecards will be ‘introduced by the end of this year and data will be updated twice a year to monitor progress’; and

– it ‘is understood the Justice Secretary is keen on introducing scorecards on a regional level, so that in future members of the public would be able to look at the performance of local courts’.

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One response to this proposal is to point out (which the ministry of justice ‘source’ either did not know or kept hidden) that much of this data is already published.

That statement of the should-be obvious fell to the main opposition spokesperson on justice:

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And Lammy is right in another respect: the intention between this policy seems not for data to be published, but for court users to be misdirected.

The notion appears to be that court users will use the scorecards to put pressure on courts to perform better, and for courts to feel under pressure to show court users that they are performing better.

Court users will thereby be (mis-)directed into thinking that poor court performance is a matter for the individual courts.

But.

The problem about the court system is not micro, but macro.

The system is structurally under-resourced, and it needs leadership.

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Here, let us turn our attention from the Sunday press to the National Audit Office:

The NAO published a major report just before the weekend.

The NAO did not propose scorecards.

Instead the NAO said: “if sustainable recovery in criminal courts is to be effective, the Ministry will need to improve its leadership of the system”.

Leadership.

Yes, the NAO used the ‘L’ word: Leadership.

But instead of leadership and solid policy, we get another weekend-special gimmick.

And not only just a gimmick – but one which appears to have the intention of misdirecting court users.

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As this blog has previously averred: it does not have to be like this.

The justice secretary is a senior cabinet minister with the title ‘deputy prime minister’, as well as an experienced lawyer.

As such he is better placed than most recent justice secretaries to obtain better funding from the treasury, and to win the prize of serious reform.

But yet another weekend goes by where we are served trivial trinkets, instead of such a prize.

It is still enough to make any sensible person weep.

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‘Parliamentary Sovereignty’ and ‘Parliamentary Supremacy’

24th October 2021

In the Attorney General’s interesting recent speech on judicial review, there is the following passage:

“But this flexibility, this resilience, should not obscure the central principle embedded in the very heart of our constitution, of fundamental importance since at least 1689.

“That principle is Parliamentary Sovereignty – it both underpins and anchors our constitutional settlement.

“I agree with the position as advanced by Lord Bingham in Jackson v Attorney General:

“‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament . . . Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.'”

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The sharp-eyed among you may have noticed that the speech here switches between ‘parliamentary sovereignty’ and ‘the supremacy of the Crown in Parliament’.

Two s-words.

And you can see that the second s-word used is qualified by the term ‘Crown in Parliament’.

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Some use the two terms ‘parliamentary sovereignty’ and ‘parliamentary supremacy’ interchangeably, as constitutional synonyms.

I try to avoid doing this, as I think there is a distinction between the two.

This is because parliament, in and of itself, is not sovereign.

What may be sovereign is, as Lord Bingham was careful to say but the Attorney General was not, is ‘the Crown in Parliament’.

An Act of Parliament – following royal assent – is the supreme law of the land.

But nothing else done by parliament is ‘sovereign’.

For example: a parliamentary resolution or standing order binds only parliament (if at all)

And statutory instruments can be struck down by the courts as ultra vires the parent Act of Parliament.

Parliament is only sovereign when its primary legislation is endorsed by the crown – and not in respect of any other activity.

Even the limits of so-called parliamentary privilege are subject to judicial construction and interpretation.

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The former appeals judge Stephen Sedley avers – correctly in my view:

“It needs to be understood, because events in the earlier part of [the twentieth] century have obscured it, that there are within the separate powers of the modern British state two sovereignties, those of Parliament and the courts.”

Sedley in turn quotes Lord Bridge from a 1991 House of Lords Case, X Ltd v Morgan Grampian (Publishers) Ltd:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.

“In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law.”

In other words: in interpreting and applying the law – but not in making or unmaking the law – the courts are sovereign too.

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This is not – or should not be – a surprise.

The sovereign entity in the United Kingdom is – as the label suggests – the monarch.

In law-making, the Crown and parliament are sovereign.

But in interpretation and application of the law, the Crown and the courts are sovereign.

Indeed, if you ever wander into a formal courtroom, you will often see the crown above the head of the judge.

(And just as those in the armed services salute the badge and not the person of a senior officer, when lawyers and others in court ‘all rise’ they are effectively paying respect to the source of the court’s power, and not to the person of the judge – or at least that is what you can tell yourself.)

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None of the above takes away from the legislative omnipotence of parliament in enacting primary legislation.

And it is certainly not an error to say ‘parliamentary sovereignty’ when one speaks of primary legislation.

But to do so may imply that parliament is the only form of state sovereignty in the United Kingdom (at least in England and Wales).

And it may imply that parliament is sovereign in some other respect than in enacting primary legislation.

Her Majesty’s Courts are, well, the Crown’s too.

And in interpretation and application of the law, the Crown and the courts are as sovereign as the Crown and parliament is in making and un-making the law.

So that is why – though it is only a personal preference – I tend to say ‘parliamentary supremacy’ – and not ‘parliamentary sovereignty’.

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A commentator explains why commentary is overrated

23rd October 2021

On the podcast I did this week I averred that commentary is overrated.

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This may seem odd coming from, well, a commentator.

But then again, perhaps a commentator is well placed to realise their own lack of importance.

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Many people read or listen to commentators to affirm views that they already hold.

Some do so to adopt views.

And a few may do so to challenge views – like Remainers who follow a Brexiter or vice versa.

Yet – generally – there is little a commentator can offer that an intelligent person cannot work out for themselves.

So in respect of this blog, posts like do not add a great deal.

Where commentary often adds value is when the commentator is in a special position to explain or analyse a certain thing.

So posts on this blog that take apart a case or some other document, or provide a guide to some law or policy phenomenon, can be useful.

And although such posts take time and are at a opportunity cost, such posts are far more satisfying to write.

But unless commentary adds something to a point that the reader or listener could not work out for themselves then the commentary has little value.

However much it affirms what you already think.

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This is partly why there is currently a mild crisis among columnists.

Once upon a time a columnist – literally – was employed to fill a column of space in a newspaper.

As such, the columnist was a poor third behind adverts and news (and good news reporting was – and is – expensive).

A columnist would be expected to provide copy on a regular (usually weekly) basis, with each opinion lasting (say) 800 words.

And this would be regardless of whether the topic addressed was complex or simple.

But this exercise was, of course, artificial.

Not every topic warrants exactly 800 words.

And some weeks there may be more things to set out a view about, and some weeks there may not be anything worth commenting about.

There was little choice for the columnist, for that was the nature of the medium.

Same length, once a week, every week, same time every week.

Now, with the internet, there is little use for the general regular commentator.

Expert analysis and commentary is a few clicks away on any emerging topic.

A generalist has little or nothing to add.

And so that is why some columnists are giving up, and they are not being replaced.

That is also why some topics – for example the supposed ‘woke’ debate and various moral panics – get undue prominence, as they provide fodder for columnists, either for or against or tutting at both.

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I commentate here on a daily basis partly for the selfish purpose of forcing myself to write every day.

I also commentate on a daily basis as it forces me to get my mind around some law and policy topic – and so it helps prevent intellectual laziness.

And, as I averred some time ago, there is perhaps a public good in setting out contemporaneous criticism of law and policy, even though law makers and policy makers disregard the criticism.

But the one motivation I do not have as a commentator is the hope and expectation of it actually ever making any practical difference.

The same old mistakes will still be made in the same old way – even if there are new labels for the follies.

So although I will carry on commentating at this blog and elsewhere (though less on Twitter), I do aver it is an overrated activity.

And I am therefore grateful to those of you who read and support this blog, as this enables me to continue doing this instead of other things (or instead of doing nothing at all).

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Law and policy and the power of names

22nd October 2021

I was a guest this week on this podcast – so you can listen to my Brummie Wednesday Addams voice:

One of the discussion points was about re-branding – and thereby the power of names.

And as I said, I have often said that a good part of the problems of both the Human Rights Act and the European Union are their names.

Had the Human Rights Act had a more plodding, prosaic name like The European Convention on Human Rights (Construction and Interpretation of Statutes and Related Purposes) Act then a great deal of the political antipathy would dissolve.

And if the European Union was known as the Sir Winston Churchill Memorial International Organisation then perhaps Euro-scepticism may never have got off the ground, let alone Brexit.

That these playful averments are even plausible is, of course, not a Good Thing.

It would be a lot better if people were concerned with the substance rather than the form of such legal regimes.

But they are not.

It is difficult to get people to look at – or care about – the detail of law and policy.

And that is why this blog has a plodding, prosaic name – rather than its predecessor Jack of Kent blog – so it would help focus both its author and its readers on the topic in hand.

Law and policy blogs, like constitutional law, should not be exciting; they should be dull.

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The Supreme Court judgment in Majera – court orders have to be obeyed, even by the Home Secretary

21st October 2021

Yesterday, while lawyers and commentators were discussing the recent speech by the Attorney General, the Supreme Court of the United Kingdom handed down a judgment that may be more significant than anything the Attorney General said and what others will say about that speech.

The case is that of Majera – and it is about immigration and deportation, but it is about a lot more than that.

Majera was born in Rwanda and came to the United Kingdom as a child, but in 2006 he was convicted of serious offences, and when in prison he was issued with a deportation order.

He was then released on licence in 2015, but was again detained, and so he applied to the relevant tribunal for bail, which was granted in a court order.

So far, so complicated – though not an unusual set of facts in the ever-expanding caselaw about deporting foreign-born convicts.

But Majera then did something that prompted even more litigation and led ultimately to yesterday’s significant Supreme Court judgment.

Majera volunteered to work in a charity shop.

*

You would think that it would be a good thing for a convict facing deportation to contribute to society by doing unpaid work for the public good.

But: no.

This was intolerable for the Home Office.

The problem, however, was that the tribunal order granting bail did not preclude Majera from working on a voluntary basis, but from paid employment or from any business or profession.

(The other bail conditions were strict: Majera could only do voluntary work as approved by his supervising officer – so not any voluntary work but only that which a state agent endorsed, and he was subject to a curfew.)

The Home Office, disregarding the judge’s order, formally notified Majera that he could not do voluntary work – and when objections were made, the Home Office came up with various excuses which they abandoned on legal challenge.

And so Majera challenged the Home Office decisions, as he was entitled to do so.

The Home Office, in response, came up with the argument that the judge’s order on bail was invalid, and thereby void, as it contradicted another statutory provision.

Accordingly, the Home Office contended, it was perfectly open to the Home Office to disregard the judge’s order and impose conditions of their own.

*

Majera won his challenge.

But.

The Home Office appealed.

It would seem the prospect of Majera working in a charity shop was so unacceptable that public funds were justified in taking this to the Court of Appeal, and so the Home Office did, instructing a QC to do so.

*

The Court of Appeal decided in favour of the Home Office.

Their reasoning was that if a decision is void then, well, it is void.

If the judge did not actually have the power to make the order that was made, then the order disappeared in a puff of legal magic, and it should be treated as if it never happened.

The order would have no effect, by the automatic operation of a lack of law.

Here the appeal judges relied on cases where subordinate legislation and administrative decisions were held to have no legal effect because they were ‘ultra vires’.

Majera appealed, and the Supreme Court agreed to hear his appeal.

*

The Supreme Court, in a unanimous decision led by Lord Reed the president of the court, granted Majera’s appeal.

The decision is a wide-ranging survey of the law of ‘ultra vires’ and a detailed critique of vague notions such as ‘void’ and ‘null’ when applied to things that otherwise would have legal effect.

It is a judgment that will repay careful reading.

In essence: the supreme court held that orders of the court were special, and so should not have been lumped together with ‘ultra vires’ subordinate legislation and administrative decisions by the Court of Appeal.

A court order must be obeyed until and unless it is set aside by the court (or possibly overtaken by legislation).

It was not open to the home secretary – or anyone else – to pick and choose which orders were valid or invalid.

*

This is a judgment that is significant on its own terms – but (on first glance) it also may be one with wider implications.

For example: one of the government’s current legislative proposals for judicial review is about giving courts the power to make ‘suspended’ quashing orders that would limit the legal effects of a finding of ‘ultra vires’.

Another government proposal is about limiting the scope of judicial review in the tribunal system – and this case shows that it is not only the individuals but the state itself that can take bad public law points in claims and defences.

This may not be a judgment that was intended to contribute to the discussion about judicial activism and the reform of judicial review, but it may be an important contribution nonetheless.

*

But it is certainly an important case about the separation of powers.

For just as in a recent judgment in favour of the home secretary, Lord Reed said that is certain cases, the courts should accord ‘respect’ to the home secretary, this case in turn is about the respect the executive – and everyone else – should accord to the orders of the court.

Even the home secretary.

For just as the Lord Chancellor and the Attorney General are warning judges to keep off the executive’s lawn, this is the Supreme Court, in effect, telling the government to keep off the lawn of the courts.

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The Executive Power Project continues – the interesting speech of the Attorney General

20th October 2021

There is a thing called the Judicial Power Project, which – as its name does not suggest – is not really about judicial power.

The project is about promoting executive power and is generally against any judicial check or balance of that executive power.

Sometimes it may affect to be defending ‘parliament’ or ‘the people’ against the judges – but it will complain of cases (such as the Miller cases) where the courts have been resolute in upholding the democratically elected parliament against the executive.

This executive power project had been fairly quiet in recent times – but it is back.

The Attorney General has made a speech – and it is not a flimsy speech – setting out a general critique of judicial power which could have been written by the executive power project themselves.

In one way, we should be grateful – for it is useful to have the arguments and contentions (and the case references on which those arguments and contentions rest) all in one accessible place.

And it is also good that it was done in a speech before a serious legal audience – and thereby ‘on the record’ – as opposed to briefed to the media or in an interview with a political reporter.

One does not have to be a great fan of the current Attorney General to admit that this was the right way to set out this general critique.

But.

The speech is not compelling – and this blog will in a few days set out a reasoned response to the speech.

It is, however, my tribute to the speech that it cannot be dismissed within a few minutes of reading it by a scathing blogpost.

The scathing post on this blog will have to take a bit longer.

In the meantime: here is a YouTube video Professor Mark Elliot, one of the leading experts in this area:

And this is his thread:

At least this speech means there is now the possibility of a proper political and policy discussion – or even a debate – about this general issue.

I will put up my post on the speech in a day or so.

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This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

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Comments are welcome, but they are pre-moderated.

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