The Yorke-Talbot Opinion – and why Hardwicke Chambers are changing their name

24th June 2021

Last June, after the death of George Floyd and the rise of the Black Lives Matter movement and the toppling of the statue of Edward Colston, I did a thread on Twitter pointing to the historic complicity of the legal profession in slavery.

https://twitter.com/davidallengreen/status/1271696745836228608

The second tweet in that thread mentioned a legal document of which few had heard: the Yorke-Talbot opinion of 1729.

https://twitter.com/davidallengreen/status/1271697813781561345

The Yorke-Talbot opinion was an important and consequential legal document.

The opinion had the effect of legitimising slavery in Great Britain for decades.

Yet, it was not a judgment or an act of parliament or a royal charter or indeed any text usually regarded as having the force of law.

It was, as its name tells us, an opinion.

But it was the opinion of the government’s two most senior law officers for England and Wales: the attorney general and the solicitor general.

And although in those days such figures could also do private client work, the offices of the two lawyers meant that this opinion had the highest authority.

To modern eyes, however, the striking feature of the opinion is just how flimsy it is.

The relevant text in its entirety is:

‘In Order to rectify a Mistake, that Slaves become free, by their being in England, or Ireland or being baptized, it has been thought proper to consult the King’s Attorney and Solicitor General in England thereupon, who have given the following Opinion, subscribed with their own Hands.

‘We are of opinion, that a slave coming from the West-Indies to Great-Britain or Ireland, with or without his master, doth not become free, and that his master’s property or right in him is not thereby determined or varied; and that baptism doth not bestow freedom on him, or make any alteration in his temporal condition in these kingdoms. We are also of opinion, that his master may legally compel him to return again to the plantations.’ 

You will see there is no authority cited, nor the application of any legal principle, nor the setting out of any jurisprudential reasoning.

A bare assertion of the law that would embarrass a law student in their first-term

Here is a facsimile of an early published version:

The purpose of this opinion was to counter the flow of increasingly liberal judgments on the slavery issue associated with Chief Justice Holt.

(A judge incidentally also associated with practically ending witchcraft trials.)

The consequence of the Yorke-Talbot opinion was to provide a legal device which all those involved in slavery and the slave trade – lawyers, traders, insurers, owners and so on – could rely on in the case of any doubts as the legality of slavery and the slave trade.

A piece of paper to wave in the face of any moral scruples or legal doubt.

A piece of paper with the high authority of the attorney general and the solicitor general.

It was the comfort and security needed for hardened men of business who made their fortunes and earned their professional fees out of this trade in human misery.

The great extension of British involvement in the slave trade was a feature of the period after 1729 – all under the legal cover of this Yorke-Talbot opinion.

It was not until Somerset’s case of 1772 that the courts began to decide otherwise.

Yorke and Talbot themselves did well out of their legal careers – both became lord chancellor, with Yorke taking the title of Lord Hardwicke.

(On this more generally, see my post here.)

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Hardwicke is a famous name in English legal history, and so things are named after him.

When I was called to the Bar by Lincoln’s Inn, one of the scholarships that I was awarded was a Hardwicke scholarship (though they have recently been renamed entrance scholarships) and this paid for certain administrative fees attendant on becoming barrister.

Another thing named after Hardwicke is a set of barristers chambers in Lincoln’s Inn (where I once did a mini-pupillage).

There are other things too – it is just one of those great legal names, like Halsbury or Denning.

I did not think anything concrete would come of my thread, other than to generate interest in the often unpleasant history of the legal profession.

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But something did come of it, one year later.

I understand I am one of the legal bloggers referred to in that statement.

Hardwicke chambers, who were already changing location, had decided to use the move as an opportunity to change their name at the same time.

What happened was that, prompted by the thread and the interest it generated, I am told senior members of that chambers went off to research the subject for themselves:

And the barrister Nicholas Leah has now provided a thread on the opinion far more erudite than mine:

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And so – in the great traditions of the Bar – an independent chambers had been gently persuaded of a change of name and had done so on the basis of research and evidence.

Unfortunately one government minister, a senior barrister, decided that this smacked of woke-ism:

This was a silly intervention from someone who knows (or should know) better.

It indicates that the minister does not know (or does not care) about the exceptional nature of the Yorke-Talbot opinion and of its dire consequences.

One would have hoped that a minister in the department of justice would have congratulated a chambers for showing independence and making a decision based on persuasion and evidence.

Anyway, he was gently put right:

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The curious thing is that (similar to Edward Colston) the sheer number of things named after Hardwicke obscured rather than revealed his role in history.

What had been ‘erased’ from history was the York-Talbot opinion – and it is a document that should be better known to lawyers, historians and the general public.

Changing the name of a chambers (or of a scholarship) certainly does not erase Hardwicke – indeed, he is now more widely known about (again, like Edward Colston).

And a better understanding of how the legal system and lawyers facilitated slavery provides us with a fuller understanding of our own history.

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Is there a business case in existence for the announced ‘National Flagship’?

23rd June 2021

When the proposed new national flagship was announced, there were a number of odd things about the announcement.

(Please see this earlier post on this blog, especially the many highly informed and insightful comments beneath.)

One thing which seemed especially odd was that it was announced by the prime minister’s office – and the only mention of the royal navy or of the ministry of defence was that navy would crew the boat.

There was no mention – explicitly – of which government department would pay the procurement/commissioning of the ship – nor of which government department would be responsible for its envisaged thirty years of maintenance and repair.

As a former central government public procurement lawyer, this seemed strange.

The announcement seemed, well, just flimsy – the shallowest of press releases.

Since then it has become obvious why the announcement was so flimsy.

The reason is that the thinking behind the announcement also has been flimsy – if it can be characterised as thinking at all.

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As the Sunday Times has now reported:

‘The Cabinet Office, which was originally asked to devise the plans, the Department for International Trade, which was originally expected to benefit from them, and the Ministry of Defence, which has now been saddled with the project, are all in the dark about where the money is coming from, not least because the MoD is fighting to plug a £16 billion black hole in its annual budget.

[…]

“‘Another official confirmed: “The royal yacht is a complete and utter shitshow. When it was first floated, the PM wanted it to be built in Britain. It was given to [Cabinet Office minister Michael] Gove to sort out, but it became clear that under procurement rules it could only be built here if it was a navy thing with a bunch of fake weapons on board. So Gove passed it on to the MoD. The Treasury stayed out of it.’

None of this is a surprise; indeed, all of this can be inferred just from a close critical reading of the original announcement.

Anybody with even the most basic awareness of public procurement would realise that if this was a civil (non-military) project, there could be no legal restrictions as to which tenderers would be considered.

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Now the Guardian is reporting:

‘Downing Street has backed down from insisting that the Ministry of Defence should foot the whole bill for new royal yacht Britannia in a Whitehall row about the funding of the £200m vessel.

[…]

‘The Ministry of Defence (MoD) is resisting being lumbered with the cost of the project at a time when it is trying to fill a £16bn backlog in its equipment budget.

‘On Monday, Downing Street indicated that the yacht would be paid for out of the defence budget, with a spokesperson saying: “The procurement process, which is being done through the MoD, will reflect its wide-ranging use and so it will be funded through the MoD.”

[…]

‘No 10 then clarified on Tuesday that the MoD would initially only pay for the procurement process, and that the rest of the costs has not been allocated.

‘A Downing Street spokesperson said: “This is a ship that will promote UK trade and drive investment back into our country. So we expect any costs of building and operating the ship will be outweighed by the economic benefits that it brings over its 30-year lifespan.”’

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This is what public policy-making and decision-making looks like when it is made up as it goes along.

The most plausible explanation is that nobody in government has a clue about how to go about the procurement exercise for this boat.

I am not a lobby journalist – and so I can add not other telling quotes from insiders, but I can add something.

Prompted by the announcement, I thought I would make a freedom of information request.

I made the request to the cabinet office, on the understanding that the cabinet office was the department responsible for that announcement of national flagship – and that was also the department that would deal with freedom of information requests for the prime minister’s office.

And today came the response to the request.

The cabinet office does not possess a business case for the national flagship – even though it was the department that announced it.

This odd situation can perhaps be explained as follows, either:

– there is a business case held in Downing Street, but my request clumsily missed it;

– there is a business case held in Downing Street, but the cabinet office has given me false information;

– there is a business case for this announced procurement, but it is held in another government department and has not been shared with the prime minister’s office or the cabinet office; or

– there is no business case, despite the public announcement.

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What we do know is that a business case should always precede a procurement exercise – and so the fact that a government department may then handle the procurement exercise does not mean that the business case is then created.

That would be to put the dinghy before the boat.

Business cases precede procurement exercises – and should determine whether there is a procurement exercise or not.

The reasonable suspicion of anyone following this daft exercise is that there is no business case – and that this prestige procurement was announced without any preliminary thought whatsoever.

And now the government cannot back down.

And this is how £200 million (at least) is to be spent by the government.

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POSTSCRIPT

I have now found this fascinating parliamentary answer – there appears to be no ‘assessment’, only ‘discussions’.

I have set out further information from answers to parliamentary questions in this thread:

https://twitter.com/davidallengreen/status/1407756269394481154

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Some thoughts on having read the Daniel Morgan independent panel report

22nd June 2021

I have now read and re-read the Daniel Morgan independent panel report, and here are some thoughts that I do not think I have yet seen elsewhere.

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First: corruption and other failings do not only go in one direction.

The problem that is most associated with the Morgan case is that corruption meant that the original investigations did not go far enough.

And this report certainly details the failings of those first investigations.

But what those following the case will perhaps not appreciate is that the later investigations can be regarded as having gone too far.

In particular, the manner in which the most recent investigations went about procuring and even contriving evidence so as to get the prosecutions is uncomfortable reading.

When the court threw out the prosecutions in 2011, it has to be said that the court was right to do so.

There were serious problems about how the prosecution case had been put together.

And botched, over-zealous investigations and prosecutions serve nobody – and even create false hopes

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Second, and I will set out in more fully in a Financial Times video later this week: the panel substantiate their finding of ‘institutional corruption‘.

The panel define this term with care and show what comes – and what does not come – within the definition.

The panel then applies the defined term consistently, and the report provides a number of sourced examples illustrating institutional corruption – and showing implicitly why no lesser term would be as apt.

Those – such as former metropolitan police commissioner Ian Blair – who aver that there is no evidence of institutional corruption either have not read the report or are being dishonest.

The evidence is there – detailed and sourced and evaluated – and it is difficult if not impossible to gainsay that it fulfils the defined term.

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Third: we may know more why the successive investigations and prosecutions failed, but we are no nearer knowing who murdered Daniel Morgan, and why.

If anything, the report shows the weaknesses of a number of theories about why Daniel Morgan was murdered – for example, the claim that Daniel Morgan was about to expose police corruption.

The murder case is still open – and, indeed, the report even points to a couple of new lines of enquiry.

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And finally: some (minor) criticisms.

The numberings of sections and paragraphs of the report are difficult to follow – with paragraph numbering re-starting completely (and confusingly) with each chapter, and this makes it difficult to cross-refer between different parts of the report.

The report should have had a table of recommendations  and conclusions – for currently the recommendations (many of which are important) and conclusions are scattered throughout the report and hard to find.

But these criticisms go to form, rather than substance.

In substance, the report will be hard to dislodge as an indictment, and it needs a stronger defence from the metropolitan police than a pretence that there is no evidence of institutional corruption at all.

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Worldliness is the basis of any decent constitution

Summer solstice, 2021

One of the themes of my law and policy commentary on this blog and elsewhere is that a culture of ‘constitutionalism’ is more important than constitutions – and that demands for a ‘written constitution’ should be not be seen as more urgent than demands for a constitution that works.

Constitution-mongers – to use the pejorative phrase of Edmund Burke – may serve up for sale eloquent and elegant texts, detailing which institutions should do what in an ideal polity.

But the basis of any worthwhile constitution is not the exposition of what each institution of the state can and should do, but what will check and balance each element of the state.

A worthwhile constitution is one that goes along with the grain of political behaviour, and not cut across it on the basis of what ‘should’ happen.

Those with executive power will naturally resent those who can hold them to account.

Those with legislative power will naturally be at odds with those who interpret and adjudicate upon their legislation.

Those with judicial power will often want to substitute their views for those who are charged with legislative power or executive power.

And so on.

The value – the merit – of any constitution is how well it deals with conflict between the elements of the state.

Like a contract, the purpose of a constitution is not to provide for what happens when the relevant parties are in harmony – for then there is no recourse to any legal instrument or set of arrangements.

A constitution – like a contract – is there to regulate the consequences of things going (foreseeably) badly.

The quality of understanding which things can go (foreseeably) badly is worldliness.

And constitutional worldliness, in turn, is the characteristic of those who realise that the content of constitutional texts is not enough – it is more about how the rules and values set out in those texts are enforced.

Those constitutions which have as their premise that there will be conflicts, and then provide how those conflicts will be practically regulated and resolved, are more likely to endure than those with heady, eye-catching lists of rights and freedoms and neat lists of separated powers.

Constitutionalism is the belief that there are principles and rules about how a political system is arranged that have a greater priority than the partisan interests of any politician or party.

Constitutionalism is a way of thinking – and so a polity with few formal checks and balances can have a stronger constitution than one with lots of glittery provisions that are ignored and derided.

Those with the power of the state will tend to want to abuse the power of the state.

Constitutionalism is about how this tendency is, in the real world, checked and balanced.

And any constitution without such worldliness is hardly a constitution at all.

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There cannot be ‘Public Sector Reform’ without genuine transparency and a general duty of candour

20th June 2021

(This is the third in a trilogy of short posts about the accountability of the United Kingdom state – see Garbage in, Garbage Out and The Accountability Gap.)

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Every so often there will be some politician – usually Michael Gove but sometimes someone else – who will urge that there be ‘public sector reform’.

This reform should be ‘radical’ or ‘fundamental’.

Heads will nod, and hands may even clap.

Worthy pdfs will be clicked on earnestly, only for the tabs to be then left unread.

And then nothing really happens until the next time some politician – usually Michael Gove but perhaps someone else – will urge that there be ‘public sector reform’.

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What is often missing in many of these heady, fine-sounding proposals is the one thing that would genuinely be radical or fundamental.

This would be to force public sector bodies to disclose information against their will.

For as long as public bodies – politicians and officials – can pick and choose what information can be disclosed publicly, there can never be any meaningful reform of the public sector.

There needs to be a tension – a check and a balance – in respect of any public body’s estimation of itself and its performance.

Unfortunately – as typified by the cabinet office under Michael Gove – there is a general public sector disdain for transparency and freedom of information.

There always seems to be some reason to keep public sector information secret – from ‘national security’ to ‘commercial confidentiality’.

Indeed, the most dismal and insincere official documents in existence are freedom of information non-disclosure decision letters.

Everyone involved knows that the content of such letters is faithless guff – but nobody with any power seems to care.

When there is no duty of disclosure and no duty of candour there can be no holding of the public sector to account.

And if there is no way of holding the public sector to account then any ‘public sector reform’ will not succeed against the private interests of the officials and politicians involved – nor against the interests of external suppliers.

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So, to mimic David Hume, there is something to ask of any public sector reform, whether it is proposed by Michael Gove or somebody else:

Will the proposed public sector reform result in the public sector disclosing information that it otherwise would be unwilling to disclose?

No?

Will the proposed public sector reform mean that officials and politicians – and relevant third parties – being candid when they otherwise would not be?

No?

Then commit the proposed public sector reform to the flames, for it will contain nothing but sophistry and illusion.

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The Accountability Gap and the State of the United Kingdom

19th June 2021

Here is a challenge.

Think of a normal, day-to-day process of the United Kingdom state.

And then try to think of examples when that process has succeeded in holding the state accountable – that is against the government’s wishes.

It is not easy.

Freedom of information is impotent.

The public services ombudsman is inefficient (at best).

Debates on the floor of the house of commons – and ‘opposition days’ – provide little more than Westminster theatre.

The prime minister casually lies at the weekly set-piece of political accountability, without any sanction or shame.

Written parliamentary questions take an age to be answered – and the answers given are often useless.

Government press offices are expensive exercises in not providing any help other than to the careers of those who staff them.

The only exception is that, from time to time, a parliamentary select committee can publish a report that hits through – though this often is down to the capabilities and qualities of whichever clerks work for the committee, than to the MPs and peers which formally comprise the committee’s membership.

And so because the normal processes of the state are generally so weak that we end up with ad hoc processes such as inquires and court cases to force the state into accounting for its actions (and inactions) against its will.

Think here of the post office scandal litigation, and think of the Hillsborough and Daniel Morgan panels.

And there are other examples.

(And imagine how many examples there are where there have not been such determined campaigners dedicated in getting at the truth.)

Ad hoc exercises in practical accountability such as court cases and panel inquiries are, however, often undermined (as this blog averred yesterday) by a legal inability to force disclosure against the state’s will or interests.

And each success in forcing accountability by means of a court case or an inquiry usually has equal and opposite significance as an example of failure of the institutions of the state to have held other parts of the state properly accountable in the first place.

In particular: the failure of parliament to be an effective check on the executive.

There is a severe accountability gap in the state of the United Kingdom.

And it is from this gap so many other political problems emerge.

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Garbage In, Garbage out – how ‘disclosure’ failures undermine inquiries

18th June 2021

Techies have a phrase for it: ‘garbage in, garbage out’.

Or GIGO, for short.

What this means, of course, is that the quality of the outputs of any given process are determined by the quality of the inputs.

This basic, rather obvious point is often missed by those who demand ‘inquiries’ into all sorts of apparent state failures.

The emphasis is often placed on it being ‘judge-led’ or whatnot – that is, the form that the inquiry should take.

But this is to prioritise form over substance.

And this is because any inquiry – and indeed any formal decision-making process such as a trial – is only as good as the information to which it has access.

If you control the flow of information to an inquiry (or trial) you then have significant control over the outcome.

In particular, if you control what information the inquiry does not get – even though that information is relevant and available – then you, in effect, neuter the inquiry.

This is why any duty of disclosure is a crucial element in respect of any inquiry.

If the police (in the examples of the Hillsborough inquiry and the Daniel Morgan independent panel) or the post office (in respect of the horizon scandal) deny documents exist, or refuse to give access to information, or simply refuse to disclose incriminating or embarrassing evidence, then the inquiry will be undermined.

And this is regardless of the qualities of the judges or other heads of the inquiry, or the scope and eloquence of the terms of reference, or the public interest in the matter.

GIGO.

And any entity that faces criticism or embarrassment – or even criminal liability – will not willingly disclose evidence which can be used against it.

Nor will the individuals that comprise those entities.

They will hire specialist lawyers, skilled and experienced in ‘managing’ disclosure – who will ensure the interests of their clients are protected without any law being actually broken.

All of this should not be any surprise.

And so why the obligations of disclosure are perhaps the most important thing to get right if you want any inquiry to be of any use.

Not who is the judge or on the panel, or what the terms of reference are, and so on.

Let the inquiry get the evidence that matters.

Otherwise: GIGO.

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Round-up of the best initial coverage of the Daniel Morgan independent panel report

17th June 2021

The report of the Daniel Morgan independent panel is an impressive and solid piece of work – but it will take time to properly digest.

I am working on a couple of substantial posts on the report.

Here are other things about the report you should look at.

From the family:

This outstanding Channel 4 News item – a brilliant piece of television journalism:

A good question, well asked at the New Statesman:

And a wise and insightful post by a veteran home affairs journalist:

My podcast and FT article on the Daniel Morgan report

16th June 2021

I have done a podcast on the Daniel Morgan report – click here for links to the podcast on various platforms.

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I also have done this piece over at the Financial Times.

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If you have any (non-irksome) questions on either the podcast or the FT piece – or on the Daniel Morgan report generally – ask below as a comment and I will answer if I can.

 

 

 

How the Daniel Morgan independent panel report substantiates its allegation of ‘institutional corruption’ in the Metropolitan Police

15th June 2021

The report of the independent panel into the death of Daniel Morgan – and how every investigation and prosecution collapsed – was published today.

And if you are to substantiate the serious allegation of ‘institutional corruption’ against the metropolitan police both historically and in the present tense then this is how to do it.

The report is solid, detailed, thorough, methodical, sourced, and it cannot be dismissed.

(Even if the report is ignored.)

It makes out a compelling case of corruption throughout the metropolitan police – and not just some dodgy officers at one police station.

But corruption needs a motive – and this is where the report is at its most compelling – it shows how the police were primarily motivated by reputational imperatives at each stage.

And the report demonstrates that this corruption continued with obstructing the work of the panel itself.

Given the weaknesses of a non-statutory inquiry, this is a far better report than one could have reasonably hoped for – and let us hope it brings at last some sense of justice for the Morgan family.

**

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