A possible implication of the recent “Will of the People” rhetoric of ministers

15th May 2023

Last week there was a newspaper article under the names of two cabinet ministers.The piece was a warning to the House of Lords about the government’s illegal migration bill.

The “will of the people” in the headline is eye-catching.

And what is also eye-catching is that the new Lord Chancellor put his name to this piece.

One would perhaps not expect too much from the current Home Secretary, but it is striking that Alex Chalk is content to have this under his name too.

The “will of the people” in the headline could have been disregarded as an editor’s embellishment if it was not for the last paragraph of the article (emphasis added):

“We urge the House of Lords to look at the Illegal Migration Bill carefully, remember it is designed to meet the will of the British people in a humane and fair way and back the bill.”

So the “will of the people” line is quite deliberate.

The cabinet ministers are being serious.

And if they are serious, this line perhaps has serious implications.

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The United Kingdom is, of course, a representative democracy and a parliamentary system.

As such, the United Kingdom is not a direct democracy.

Even the few referendums that have been held only had any legal consequence to the extent that a parliament provided for that consequence.

In this system, the notion of a mandate has weak purchase.

An incoming government can ignore a manifesto commitment after a general election.

A government can even flatly reverse a manifesto commitment, as the Conservative government in 1987-92 did with the poll tax (“community charge”).

The only significant effect that a manifesto commitment has for a government after a general election is that, in the event a Bill has opposition in the House of Lords, ministers can say it is an issue on which the democratic element of the polity has conferred a mandate.

And then, by convention – but not by any hard constitutional law – the House of Lords will pass the legislation, rather than delay it or defeat it.

Now, let us look at the Conservative manifesto for 2019:Oh.

(That is the manifesto’s only express mention of asylum seekers.)

There is also this:

The key passage here is “Only by establishing immigration controls and ending freedom of movement will we be able to attract the high-skilled workers we need to contribute to our economy, our communities and our public services.  There will be fewer lower-skilled migrants and overall numbers will come down”.

The introduction to the manifesto also promised that there would be“an Australian-style points based immigration system”.

And there is a promise to “overhaul the current immigration system, and make it more fair and compassionate”. 

No particular legislation is proposed, and – in respect of “illegal” migration, there is no specific measure promised or even a policy stated.

There are just very general objectives.

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And now let us look at the bill before parliament.

This bill does not introduce “an Australian-style points based immigration system”, the only (relatively) specific policy mentioned in the manifesto in respect of controlling borders.

There seems nothing in the Bill which was spelled out in the manifesto.

Contrast this with, say, the 1987 commitment to introduce the poll tax:

“We will reform local government finance to strengthen local democracy and accountability.

“Local electors must be able to decide the level of service they want and how much they are prepared to pay for it.

“We will legislate in the first Session of the new Parliament to abolish the unfair domestic rating system and replace rates with a fairer Community Charge.

“This will be a fixed rate charge for local services paid by those over the age of 18, except the mentally ill and elderly people living in homes and hospitals. The less-well-off and students will not have to pay the full charge but everyone will be aware of the costs as well as the benefits of local services. This should encourage people to take a greater interest in the policies of their local council and in getting value for money.”

Legislation was then promised and the content of that legislation described – both in what will be repealed and what would replace it.

There is nothing in the 2019 Conservative Manifesto which has similar detail about the current illegal migration bill.

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What this means is that ministers are contending that broad-brush statements in a manifesto confer a mandate, rather than any detailed proposals.

As long as ministers can say a general objective is stated in a manifesto, they can seek to browbeat the House of Lords.

The two ministers in their article say:

“It is entirely right that the Lords should scrutinise this important piece of legislation — that is the purpose of parliament’s second chamber. At the same time, it must be balanced against the clear desire of the British people to control immigration. This was a government manifesto commitment in 2019, with a pledge to take back control of our borders.”

Note the weasel word “clear”.

“That is why we have taken robust measures, with the assistance of some of the country’s finest legal minds, to ensure our bill can meet the expectations of the British people.”

Note the implicit admission that these measures were not before the electorate at the 2019 general election, but have been developed afterwards – by “some of the country’s finest legal minds”.

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Is the Conservative manifesto of 2019 sufficiently precise for this bill to have a mandate?

No, of course not.

Statements of general objectives in a manifesto do not – cannot – confer mandates on particular measures.

It is not, and should not be, open for a minister to declare that a measure should not be delayed or defeated in the House of Lords because of general statements of intent in a manifesto.

Many measures could be said to meet that intent – measures different to the ones before the House of Lords.

Had the governing party specified the actual measures in the manifesto, then ministers would have a point.

But the governing party did not, and so ministers do not.

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The implication of this “will of the people” rhetorical device is that the government does not wants  be subject to the rules and conventions of representative democracy and of a parliamentary system.

The implication is that a minister’s interpretation of broad statements in a manifesto cannot be gainsaid.

What the minister wills is the will of the people.

Members of parliament and peers would then be left with no role other than to approve what a minister says is the will of the people, just because of general statements in a manifesto.

That would create a significant constitutional imbalance.

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And on a more mundane level, if this approach catches on then it may mean that even those (like me) who are sceptical of proportional representation and electoral reform will have to change their (our) minds.

For the one-member-per-constituency model only makes sense (if it makes any sense at all) if MPs are not delegates but representatives.

And the so-called “Salisbury doctrine” – that provides that the House of Lords does not block manifesto commitments – only makes sense in respect of things that have a degree of specificity in a manifesto.

What Braverman and Chalk are seeking to do here may be attractive to them (or their article writers) in the short-term, but for each constitutional push there is (or should be) an equal and opposite counter-push.

And so seeking to bully the House of Lords with rhetoric about “the will of the people” for measures which were not actually set out in a manifesto could be counterproductive.

If ministers are acting like there is a direct democracy, then the current system is not sustainable.

And if there is electoral reform and proportional representation, then it is likely that such stridency in policy will be far more difficult.

The ministers may tell peers that the measures are good and practical (even if they are not), and thereby promote the bill on its merits.

But if they keep playing with this “the will of the people” rhetoric, Conservative politicians may discover that, if there is electoral reform and proportional representation, the actual will of the people will be a very different beast.

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Ecce Homo, Ecce Rex

12th May 2023

There was one part of the coronation ceremony last week – other than the poor minister carrying that sword for such a long time – which I found striking.

It was when, as part of the religious element of the the service, the king was stripped to his shirt.

And the reason this struck me was not its religious significance, but because it reminded me of a nineteenth century sketch that this blog has featured before.

This engraving by William Makepeace Thackeray:

The point of the caricature, of course, is that there is a distinction with any ruler between the natural person and their paraphernalia of office.

The comic series Sandman also deals with this point, where the entity Dream realises that he has wrongly infused (or perhaps confused) his three symbols of power (helm, powder, ruby) with own immense power.

This is not a new thought: as long as we have, as a species, have had notions of (what we would now call) lordship (rather than face-to-face dominance) then there has been the issue of the extent to which artefacts confer power – or whether the artefacts instead recognise and convey power.

Of course, the more confident the ruler, the less they need to resort to any visual rhetoric and symbolism.

Genuinely powerful rulers need few props, for they have power instead.

And a confident ruler in a culture where there are props of office will be unafraid to not be seen with those props.

The paraphernalia is an extra, not the essence.

And this is true whether the garb is a crown, or a judge’s wig and gown, or a police officer’s helmet and warrant card.

This is why this step of the coronation was so interesting (and it is, it seems, an ancient component of the service and not some novelty).

Not only did we see a king with his crown and his orb and his sceptre: we got to see him before he put any of them on.

We got to behold the man, before we got to behold the king.

And the point that Thackeray was slyly making with his cartoon is that some with power would very much not want you to behold any such thing.

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Note: the title may be better as Ecce Homo, Ecce Regum – and so I apologise for my prioritisation here of style over substance:

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Why the dropping of the REUL sunset clause may be very bad news for Rejoiners

11th May 2023

There is a glorious, telling passage in the new book from Anthony Seldon about Boris Johnson.

It is the day of the Brexit referendum result:

“Boris Johnson had expected Remain to win: ‘Holy s**t, f**k, what have we done?’ he uttered under his breath on hearing the result. […]

“‘Oh s**t, we’ve got no plan. We haven’t thought about it. I didn’t think it would happen. Holy crap, what will we do?”

What will we do, indeed.

As a Canadian diplomat remarked at the time: the Brexiters were the dog that had caught up with the car.

And that has pretty much been the general position since: what do we actually do with the possibility of divergence from EU law and policy?

Because there have been few answers to that question, there have been a succession of simplistic, gesture-ridden proposals.

For example, the Johnson government promoted a Bill that would mean that all retained EU law would be repealed automatically on a given date: a so-called “sunset clause”.

As Brexiter ministers could not think of anything specific to repeal, they decided to repeal everything, all at once.

This was silly.

The unintended consequences of sudden removals of forty-five years worth of technical legislation would have been horrific.

And this sudden removal ignored the fact that much of that legislation had been crafted and shaped by United Kingdom ministers and officials in our interests and to meet our needs.

The proposed legislation was a reckless exercise in superficial politics.

The government, now recovering some of its wits under the new Prime Minister Rishi Sunak, has now announced that the sunset clause will be ditched.

This is a sensible and welcome move.

Some who want the United Kingdom to rejoin the European Union may want to gloat at the government’s reversal.

But.

Rejoiners should perhaps be worried instead.

For this shift – like the Windsor framework – is a signal that Brexit silly season may be coming to an end.

And that long-term, fundamental divergence is about to begin.

The government is now getting real – and realistic – about Brexit.

The clowning legislation of Jacob Rees-Mogg is being dumped.

Of course: some Brexiters are upset at this symbolic sunset being itself sunsetted.

For them the politics of Brexit is just about symbols and gestures.

And so they too are quite unaware that the real Brexit is now beginning.

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Today’s Metropolitan Police apology shows they are still failing over Daniel Morgan

10th May 2023

The Metropolitan Police fail and fail again in respect of the murder of Daniel Morgan.

Some of these failures were in the five botched police investigations and the often accompanying corruption.

But some of these failings are in how the Met has dealt with the disclosure of materials to the Daniel Morgan inquiry, which reported in 2021.

In the report, the panel said (emphasis added):

“There was not insignificant obstruction to the Panel’s work. At times the contact between the Panel and the Metropolitan Police resembled police contact with litigants rather than with a body established by the Home Secretary to enquire into the case, and to which the Metropolitan Police had promised to make ‘exceptional and full disclosure’.

“The Panel concludes that, despite the express commitment by the Metropolitan Police in the Terms of Reference to support the Panel’s work, the Metropolitan Police did not approach the Panel’s scrutiny with candour, in an open, honest and transparent way, making exceptional and full disclosure of relevant documents. The way in which material was disclosed or withheld had the effect of making the Panel’s work more difficult.”

And so, to the surprise of absolutely nobody, the Met has now admitted to substantial material non-disclosure:

If you are gullible enough to accept the Met’s explanation for this delayed disclosure at face value, do note that there has been no reason given for why materials found in January are now only being acknowledged in May.

(Also note the deft and vague “number of years” – the appointment of the panel was announced in 2013.)

There can be no good reason for the non-disclosure of these materials and for the delay in admitting they exist.

This is simply a continuation of the evasive and obstructive non-disclosure practices of the Met throughout this whole matter.

The Met did not like – and do not like – the concentrated scrutiny that comes with an inquiry such as that conducted by the Daniel Morgan panel.

The Met would much prefer to deal with the short attention spans of time-poor and story-hungry media.

The problems identified by the Daniel Morgan panel, which I set out in this video, are still present in the Met.

Our thoughts should be with Alastair Morgan and the Morgan family at this latest let-down.

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Big “P” Party vs little “p” party

9th May 2023

I once listened to a Young Conservative’s spirited explanation to two passers-by about how the Conservative Party did not actually exist.

There was, you see, the National Union of Conservative and Unionist Associations; and then, you see, there is the parliamentary party, which is quite separate; and then, you know, there is Conservative Central Office.

As the Young Conservative then went onto explain how professional party agents did not fit into this neat scheme, I could tell those being canvassed-in-the-street were both impressed and bewildered.

Surely a “Party” is a thing?

Well, actually, the Young Conservative was more-or-less correct.

And “parties” are still quite difficult to define.

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Of course, there are legalistic definitions.

In the Political Parties, Elections and Referendums Act 2000, “party” is to be interpreted as including “any organisation or person” and “registered party” is defined as a party registered under that Act.

This is not illuminating.

Once registered, parties have certain obligations and rights, but that will not help us understand what is meant by “party”.

Halsbury’s Laws of England tells us the effect of that Act:

“In order to field candidates at elections, political parties must be registered.

“A party may not be registered unless it has adopted a scheme which sets out the arrangements for regulating the financial affairs of the party and which has been approved in writing by the Electoral Commission. The scheme must include such information as may be prescribed by regulations made by the Commission and must determine in particular whether the party is to be taken to consist of a single operation with no division of responsibility for the financial affairs and transactions of the party, or a central organisation and one or more separate accounting units. Where a registered party is a party with accounting units, each unit has a treasurer and an officer.”

Again, informative but not illuminating.

Elsewhere in the law, there are hints

For example, one of the (many) contributions by James Goldsmith to the law of defamation was to bring a case which resulted in it being established that a political party cannot sue for libel.

In this way political parties are like public authorities.

But again, this does not tell us what a “party” is.

Outside of law, we can point to the defintion of the eighteenth century Irish philosopher and British politician Edmund Burke:

“a body of men united, for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.”

One may quibble with at least a couple of words in this defintion – but it is helpful because it does not constrain us to just looking at professional politicians, professional staff, and/or volunteers.

It is a body of [people].

And once one adopts this broad and practical defintion, one can begin to see what are perhaps the real parties.

For example, the fluid movements between think tanks and media organisations and news desks and op-ed gigs and special advisors and hired consultants – and elected politicians and peers – show bodies of people united by their joint endeavours to promote what they see as the national interest upon various agreed principles and policies.

A Martian looking down at Westminster, Whitehall and (what used to be called) Fleet Street would assume, by observation alone, that the sum of the interactions and communications between various bodies of people were the real political parties – regardless of formal nomenclature.

And this is not necessarily a thing about the political right – for there is also, often on the political left and in the political centre – fluidity between pressure groups and campaign groups and trade unions and public bodies and campaigning organisations and civil servants.

These small-p Burkean parties can overlap and sometimes correspond to the big-P Parties.

The big-P Parties indeed seem to be coalitions of these teeming small-P Parties, sometimes spilling outside.

And as big-P Parties decline – for changes in media and communications mean the information-dissemination and organisational purposes of the big-P Parties are falling away – these small-p parties will become again more important, as they were in the days of Burke.

It will not be a complete reversion – big-P Parties will still be significant because of enduring brand loyalty (and recognition) and lingering tribal allegiances.

And these small-p parties – although highly influential – are impossible to regulate with ease.

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We will have to get used to the boundaries between media and politics and business becoming more blurred – individuals casually going from news rooms to parliament to commerce, and so on, working in tandem with others similarly moving around.

And if enough of us object to this trend in our political culture?

Well: we can form our own a body of people united, for promoting by our joint endeavours the national interest, upon this particular principle on which we are all agreed.

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Coronation notes from a non-militant republican

7th May 2023

We will start with a very British thing, a red post box.

This is is one of about 171 post boxes which, if you look carefully, have the insignia and cipher of Edward VIII.

The point, of course, is that there was never a coronation for Edward VIII.

But this fact did not stop him being king – or from exercising any of his prerogative or other powers, including signing his own instrument of abdication and giving royal assent to the Act to which the instrument was scheduled:

He was R.I. (king and emperor) all the same.

This reminds us that, from one perspective, a coronation has almost no legal or even constitutional significance.

The monarch rules from the moment the last monarch dies.

There is no need for a coronation for a monarch to rule.

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But.

From other perspectives, a coronation has immense constitutional significance – even if it makes little legal(istic) difference.

For a coronation provides the point where a new monarch enters into a number of oaths, covenants, promises, undertakings, contracts, and so on, that exist to remind the new monarch and everyone else of – in effect – the transactional and consensual nature of modern kingship.

And, in a far less secular way, a coronation reminds us of the supposed relationship between the new monarch and the Christian god and the established church in England – for this is also a basis of modern kingship.

Indeed, without an understanding of the relationship of the monarch with the established Church of England one would not grasp how kingship, and thereby the constitution, developed after the Reformation.

No Church of England, no political crisis of 1688-89 and no Hanoverian succession in 1714; and with no political crisis of 1688-89 and no Hanoverian succession in 1714, our political development would probably have been very different.

So a coronation has immense significance – in that it signifies various things about our constitutional arrangements, even if new letter boxes would get the new royal signage anyway.

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A coronation is also a reminder of who does not have ultimate political power.

There is an old line – an untrue and grossly unfair line – about Ringo Star not even being the greatest drummer in the Beatles.

(In fact, he was and is a great drummer.)

Yet it was a line that came to mind during the ceremony yesterday.

The prime minister was not even the most prominent member of his own cabinet.

Indeed, during his reading he seemed like as much an onlooker as the rest of us.

His more junior cabinet colleague – who happened to be the Lord President of the (Privy) Council – had a far more conspicuous role.

(And we are perhaps fortunate that it was Mordaunt in place and not other recent Lords President of the Council.)

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One way of thinking critically about constitutional matters is to not focus on who has what power, but on what powers various actors do not have.

And, as this blog has averred many times, the one key feature about the crown in our constitutional arrangements is not so much about the power it has, but about the power it deprives others from having.

So, in contrast with say the inauguration of a president in a republic, our head of government is a but a bit-player at the coronation of the new head of state.

Yes, this is largely symbolism – but it also put the democratic (and demagogic) element of our polity in its place.

Some may say this is a good thing, some may say it a bad thing: but yesterday the head of government was just another commoner, albeit one with a brief speaking part.

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Of course, as this blog contended a couple of days ago, a confident monarchy should be unafraid of challenges, even on coronation day.

As such the reported heavy-handed police treatment of some protesters was wrong and inappropriate.

Yet, even if the protesters had been left free, they would never have had any effect.

For this country is not going to be a republic.

Never.

So those of us who are not monarchists have got to accept this, and work with the constitutional arrangements we have to make those constitutional arrangements better than they are.

That perhaps is the greatest constitutional significance of the coronation: we are still a monarchy, and that ain’t ever going to change.

And the monarchy will still be there, when even red post boxes will be gone and forgotten.

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“The King’s Champion” – why a confident monarchy should welcome challenges on coronation day

5th May 2023

Here is a remarkable, and as this post will contend misconceived and historically illiterate, take on the coronation:

And here is a similarly misconceived message:

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Let this blog introduce you to the King’s (or Queen’s Champion).

According to that history website:

“Originally it was the champion’s duty to ride, on a white charger, fully clad in armour, into Westminster Hall during the coronation banquet.

“There he threw down his gauntlet and challenged any person who dared to deny the sovereign’s right to the throne. The king himself of course, could not fight in single combat against anyone except an equal.

“It was only at the Coronation of Queen Victoria in 1838 that the traditional ride and challenge was left out of the ceremony. Henry Dymoke – Queen’s Champion at the time – was created a baronet by way of compensation.”

And here at Wikipedia is more information – and a splendid pic:*

And akin to the familiar challenge in a wedding ceremony, the challenge was expressly made:

“If any person, of whatever degree soever, high or low, shall deny or gainsay our Sovereign Lord [     ], King of the United Kingdom of Great Britain and Ireland, Defender of the Faith, son and next heir unto our Sovereign Lord the last King deceased, to be the right heir to the imperial Crown of this realm of Great Britain and Ireland, or that he ought not to enjoy the same; here is his Champion, who saith that he lieth, and is a false traitor, being ready in person to combat with him, and in this quarrel will adventure his life against him on what day soever he shall be appointed.”

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Times change, and the nature of challenges change, but the essence is just the same.

A confident monarchy should welcome challenges on coronation day.

Offering this challenge was part of the reason there were coronations.

From a constitutional and legal perspective, a coronation has little significance: the new monarch rules and can exercise powers on the death of the last monarch.

The function of the coronation is therefore largely symbolic: and part of the symbolism was to show off the confidence of the new monarch by offering a challenge to, well, challengers.

Bearing this in mind, let us go back to the take quoted above.

“The Coronation is not the moment to start an argument about the future of the monarchy” – yet hundreds of years of the king’s champion says otherwise.

“Our tolerance for any disruption…” – imagine the, ahem, disruption of a knight arriving to challenge the coronation.

Perhaps it is understandable though that some pundits and the police don’t realise that coronations were once about challenges as well as about validations.

After all, it would take a sense of history.

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Somebody should copyright “flawed music copyright cases” so as to avoid future abuses

4th May 2023

Another flawed musical copyright case.

The news from the Manhattan court is that Ed Sheeran has won the latest case.

These cases are not about piracy and bootleg copies being made for sale.

These case are also not even about samples being lifted.

They are about mere chord progressions.

As Sheeran’s lawyer avers: “the letters of the alphabet of music”.

These are the cases that bring discredit on media and copyright law – and also perhaps show a misunderstanding of how music is composed and how music develops.

We should just wish that the very notion of bringing such flawed cases could themselves be subjected to the law of intellectual property.

And then potential plaintiffs could just be sent a “cease and desist” letter – and so be stopped immediately in their, ahem, tracks.

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“Frankenchickens” and the law

3rd May 2023

Scrolling though Instagram while trying to think of a legal angle on the coronation worth writing about I came across this:

As it happens I have a lot of time for the broadcasting of Chris Packham and Megan McCubbin, and for my fellow Brummie Benjamin Zephaniah, and so I thought this may be an interesting case to write about for a blogpost.

What is being described as a “Frankenchicken”?

According to Zephaniah: “Decades of selective breeding have turned [chickens] into monstrous frankenchickens who can barely carry their own weight, and who lie in crowded barns, being burned by their waste.  We should not be treating animals like this.”

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The applicant – The Humane League – was kind enough to share their legal arguments with me.

At the heart of this legal case is a paragraph.

It is paragraph 29 in a schedule, in a schedule to some regulations, which are in turn regulations made under an Act of Parliament.

And this paragraph 29 provides:

“29.  Animals may only be kept for farming purposes if it can reasonably be expected, on the basis of their genotype or phenotype, that they can be kept without any detrimental effect on their health or welfare.”

(My emphasis added, for a reason which will become obvious.)

The schedule containing this paragraph has effect by reason of regulation 4 of the relevant regulations, and this provides:And these regulations were made under section 12 of the Animal Welfare Act:

It is in this elaborate way that many things are regulated: provisions within provisions within provisions – a legislative pass-the-parcel.

The applicant in this case is contending the government misunderstands paragraph 29.

The applicant says paragraph 29 prohibits the keeping of animals for farming purposes unless it can reasonably be expected that, on the basis of their genotype or phenotype, that they can be kept without any detriment effect on their health or welfare.

The applicant says the government is in turn contending that paragraph 29 does not establish any such prohibition “and, moreover, [the government] disputes that the word “kept” refers to keeping at all”.

(I do not have access to the government’s legal argument.)

The applicant then contends that because the government misunderstands paragraph 29 the government thereby makes two further legal errors.

First, the misunderstanding means that the government has adopted and maintains policies and practices, including a Code of Practice and a system of monitoring and enforcement, founded on legal error – including a policy of non-enforcement.

And second, as the policies and practices do not discriminate against those who in breach of the paragraph, there is a consequential lack of equal treatment between producers.

The applicant’s press release sent to me states:

“The Department of Environment, Food and Rural Affairs (Defra), the defendant in the case, argues that it has no policy which condones or permits the use of Frankenchickens, despite fast-growing breeds being standard in the chicken industry.

“The case also challenges the ‘trigger system,’ Defra’s monitoring system aimed at detecting welfare issues associated with conventional chicken breeds, of which the overwhelming majority will be fast-growing.

“The trigger system requires slaughterhouse vets to report problems, but only if they occur above a given threshold – which The Humane League argues is far too high.

“A final ground of the case argues that the system in place is creating unequal treatment between chicken producers that comply with the law and those who do not.”

This, of course, is not an animal welfare blog – but from a law and policy perspective what is fascinating – and clever – about this case is that the applicant is seeking declaratory relief.

This means the court is being invited to declare the meaning of a legal instrument, in this case paragraph 29.

And this is a perfectly proper thing for a court to be asked to do.

The court is not being asked to directly quash any policy, but to say what a legal provision means.

And a paragraph deep in a schedule to regulations made under a statute is as much a statutory provision as section 1 of any Act of Parliament you can think of.

It also seems that there are differing views on what paragraph 29 means – and the view contended for by the applicant in this case has survived a permission hearing and so can be taken as at least arguable.

This is therefore not a simple try-on, but something the high court thinks is a serious legal question to be heard.

The framing of the case, however, means that if the applicant prevails then it will also pull away the basis of various policies and practices based on that paragraph.

That is an ambitious case to make, but again it is a legitimate and arguable one.

If the government has based policies and practices on a misunderstanding of the law then those policies and practices can fall too.

According to ITV, Defra argues that fast-growing chicken breeds are not inherently condemned to suffer health problems and that there is no scientific consensus saying so.

A spokesperson is quoted as saying:

“We are proud to have some of the highest animal welfare standards in the world.  All farm animals are protected by robust animal health and welfare legislation. This sets out detailed requirements on how farmed livestock, including meat chickens, must be kept.

The hearing is today and tomorrow.

I have no idea which side will win – though I am on the side of the chickens – but this is an example of litigation done well by a pressure group – and it is thereby an example of how such public interest litigation should be brought.

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You can read more on the Humane League’s campaign here.

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Hurrah for this latest move towards transparency of the UK Supreme Court

27th April 2023

The test for whether an appeal reaches the Supreme Court of the United Kingdom is that it raises “a point of law of general public importance”.

This means that, by defintion, the appeals are of wider interest than to the parties themselves.

It also means that it does not matter how interesting the facts of a particular case may be to judges or to the public, it will not get to the Supreme Court unless the outcome matters to others.

As such, all cases before the Supreme Court should be as transparent as possible.

But.

There is nominal transparency, and there is real transparency.

Being able to watch streamed proceedings, for example, is of little use if it is difficult – even impossible – to follow the submissions and lines of argument.

You may as well walk into the court from Parliament Square and try to work out what is going on at a hearing.

Real transparency comes from having access to the documents before the court – the skeleton arguments (setting out the legal argument), the statements of case (setting out the basis of the parties’ positions), and even the witness statements.

Only then do you have real transparency.

And so the latest news, as reported by Legal Futures, is welcome.

The Supreme Court is moving to putting documents online – subject to the usual (and usually understandable) exceptions for confidentiality in particular cases.

This would be a huge boon for the public understanding of law, and it will enable viewers to fully and constructively engage with what is going on.

A student – or a lay person – could sit with two screens – one watching the hearing, and the other toggling between documents, joyfully clicking onto hyperlinks to case reports and legislation.

There are few better ways than to grasp the nature of practical law and to understand how cases work.

There can be no argument in principle against this: for after all, these are cases which raise “a point of law of general public importance” – and these are documents referred to in open court.

There will be grumbles from some lawyers, who may not be willing to have their well crafted documents effectively become texts freely available in the public domain.

But that would be the cost of having a case before the Supreme Court – if you are litigating on “a point of law of general public importance” then it has to be on an open book basis.

And the general availability of such texts – which would otherwise often be stored in the exclusive precedent files of a small group of law firms and chambers – will promote best practice generally.

Lawyers at such law firms and chambers will be giving something back to the wider profession in a helpful and meaningful way.

Of course: pretty soon many people would get bored by the novelty of such access.

But in the longer term it generally would have a positive effect on legal study and professional development, as well as on the public understanding of law.

And, it must be admitted, it would be pretty great for legal bloggers too – and the readers of such blogs.

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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.

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