Professor Mark Elliott, one of our more perspicacious commentators on public law, has recently argued that the Lord Chancellor should consider his position in the light of the UK government’s Safety of Rwanda (Asylum and Immigration) Bill. He does so on the basis that s 17 of the Constitutional Reform Act 2005 s 17 requires the Lord Chancellor to swear an oath to uphold the rule of law, and the Rwanda Bill would place the UK in breach of its obligations under the European Convention on Human Rights.
Just the one resignation so far, as far as I can see. I do hope the Lord Chancellor is considering his position, given the oath he took under section 17 of the Constitutional Reform Act 2005. https://t.co/iipTpPY3kYpic.twitter.com/RNtmecVDvm
Similarly, it has been suggested that the Rwanda Bill itself is contrary to the rule of law, by removing from the courts the power to determine the legality of the government’s decisions.
Students of constitutional law are often taught that there is a difference between a “thin” conception of the rule of law and an aptly named “thick” conception.
If the “rule of law” is a useful term, it refers to the importance of being governed by rules, posited in advance by those with authority to do so. This is of particular importance in relation to those with power over us. If Parliament were to enact that government officials could detain us at their discretion, that would be contrary to the rule of law even though enacted by our legislature. Instead of being governed by rules, we would be subject to the choices of individuals with power.
The use of the “rule of law” to encompass lots of other kinds of values, however important, such as those embodied in human rights conventions, is confusing. It is like insisting that the virtue of bravery must include honesty, or humility encompass industry. It is useful to employ different labels for different qualities, if these terms are not to collapse into all meaning “good.” Similarly, “the rule of law” should not be confused with justice more generally. We may have laws that are wholly unobjectionable from a rule of law standpoint, but which are grossly unjust in one or more other respects.
Unfortunately, many English law students take their understanding of the Rule of Law from Lord Bingham’s widely read book on the subject. I strongly recommend John Gardner’s quietly devastating review.
If therefore I regularly and repeatedly flout traffic laws, that is not a rule of law concern. My behaviour is very bad because we all of us have good moral reasons in an overall just system to obey the law. It is not bad because there are no rules governing the situation. Quite the opposite, it is bad because there are rules.
Rwanda
One of the many problems with the Rwanda Bill is that it will place the UK in breach of its duties in international law in relation to the protection of refugees from being subject to persecution (refoulement). Is that a rule of law problem?
Again, the answer is no. It is a problem because the UK will be in breach of the rules. Not because there are no governing rules.
Within our own domestic legal order, if government officials repeatedly and with impunity ignored the rules governing their behaviour, that would pose a rule of law problem. People and institutions with great power over us would not be being governed by rules.
At the international level, the subjects of laws are states, neither individuals nor even the governments of those states. The UK owes duties under international law, Rishi Sunak does not, although his actions may place the UK in breach of its duties. Does the UK breaking international law by refusing to comply with its refoulement obligations pose a threat to the rule of law, here the laws governing states?
It does not. The UK’s behaviour is bad because international law is an overall just system of rules, and we have good reasons to comply with those rules. We have such reasons even if in an individual case the rules are unjust (and here there is little reason to think that they are).
The UK is a medium sized European state. Its place in the international legal order is not the same as that of the UK government within our domestic system. The UK complies with the overwhelming majority of our international legal obligations.
Russia invading Ukraine, if left unchecked, is a threat to the international legal order, as was Germany invading Poland. The UK’s behaviour is bad because it violates the rules, not because there are no rules nor because the system of rules itself is in danger from behaviour of this kind. International law is more robust than that.
Deeming
What about the Rwanda Bill within our own domestic legal order?
Peter Birks gave the following example.
“Among the sillier Oxford stories is that of the Dean’s dog. The college’s rules forbid the keeping of dogs. The Dean keeps a dog. Reflecting on the action to be taken, the governing body of the college decides that the Labrador is a cat and moves to next business. That dog is a constructive cat. Deemed, quasi- or fictitious, it is not what it seems. When the law behaves like this you know it is in trouble, its intellect either genuinely defeated or deliberately indulging in some benevolent dishonesty.”
The Dean’s dog rule was “Dogs are banned, except the Dean’s.” It employed a fiction but we can look through that. We may deprecate fictions, it would be more honest to clearly say what the actual rule now is, but it is not contrary to the rule of law.
Clause 2(1) of the Bill states
Every decision-maker must conclusively treat the Republic of Rwanda as a safe country.
This is so even though, as a matter of fact, it is not. It treats the dog as a cat. We may substantively dislike clause 2(1) on its merits (I do). We may think it would be better if it were openly phrased as an exception to the general rules on refoulement, rather than as a fiction (I do). But it is not contrary to the rule of law or the separation of powers. It is a bad rule for other reasons.
Different kinds of injustice
I yield to nobody in my dislike for the Rwanda Bill. My judgement is that it is an appalling measure, unjust and costly. However, it is not contrary to the rule of law or the separation of powers. That is like saying a liar is a coward, or a drunkard is envious.
The 1957 film Twelve Angry Men (based upon a teleplay of the same name by Reginald Rose from 1954) is not just one of the greatest courtroom dramas ever made, but one of the best films.
Set in a sweltering New York, 12 men sit to decide whether a teenager who has been accused of stabbing to death his abusive father is guilty. At the start, Henry Fonda playing very much to type, stands alone against the views of the eleven others in wishing to give a verdict of not guilty. Over the course of the film, claustrophobically set in a single room, Fonda persuades the others one by one to change their minds. The evidence is carefully weighed and discussed, and we understand how the majority reached their conclusion, but also how they were wrong.
Legally there is one sour note, when Fonda produces an identical switchblade to the allegedly distinctive one used by the murderer and known to have been owned by the accused. Overall, however, it is a celebration of the triumph of reason and liberal good sense over bigotry. Alongside Fonda, Lee J Cobb as a juror subconsciously motivated by a desire to punish a young man he sees as a proxy for his own son, and EG Marshall as Fonda’s most articulate opponent, stand out.
The Remake
The film was remade for television forty years later, with Jack Lemmon in the Fonda role, and George C Scott in that of Cobb’s. Unfortunately, by then both actors were twenty years too old for their parts, and the film suffers as a result. The stand out performance is given by James Gandolfini, two years before the Sopranos, as a working man who listens to others and has the physical presence to prevent the intimidation of other jurors.
Twelve White Men?
One of the oddities of the film is that the jurors are all men. But women had sat on juries in New York from 1937, and the odds of an all-male jury having been selected would have been around one in 4096. Some states continued to ban women from sitting on juries even into the 1970s, but New York was not one. My guess is that the film is based upon Rose’s experience of having sat on an all-male US army trial.
By the time of the 1997 remake, the diversity of the jury in terms of ethnic background had improved, but the jurors were still all men. The filmmakers try to disguise the oddity of this by having Mary McDonnell appear as the judge, a character missing from the original. Unfortunately, the remake is also marred by the questionable artistic choice of having one of the few black jurors, Mykelti Williamson, play the part of the overtly racist juror, played by Ed Begley in the original.
Liberal Fantasy
Although great drama, 12 Angry Men is a liberal fantasy. The now posthumously disgraced judge Lord Devlin described the jury as the “lamp that shows that freedom lives” but this is romantic nonsense.
The best account of the problems with the jury system that I know of is by Malcolm McCusker QC, formerly the Governor of Western Australia. A version of his arguments for the abolition of the jury (here expressed in relation to a more limited proposal to always give the accused the option of being tried by a judge alone) is best summarised here. (McCusker is also distinguished by having saved two men from a shark off Cuttesloe beach by swimming out to save them and punching the shark in the head. Aged 60.)
Reasons
The single biggest problem with the jury is that, unlike a judge, they do not give reasons. Reasons serve three important functions in a system of justice. First, they enable others, in particular the victim and the accused, to determine how the decision was reached. Second if those reasons are defective it enables an appeal. Third the discipline of giving reasons requires the decision maker to think through how they are reaching the result. Reasons lead to better decision making. The true lesson of 12 Angry Men is the importance of reasoned decisions, but in the film that only occurs because of the fortuity of one person prepared to stand alone against the rest.
Some supporters of the jury system accept that juries should be required to give reasons, even if only of a somewhat cursory box-ticking type of answers to questions formulated by the judge. Given the general romantic attachment to the jury system, this should be taken as a first step. Once it is taken, I expect that it will quickly lead to the abolition of the jury system as the reasons for many, but not all, decisions are demonstrated to be defective.
Competence
Judges cannot say so out of humility, but they become good decision makers from decades of experience in assessing factual disputes. It is a skill. It is one that some people do not possess, but that can be developed. The idea that anyone off the street is an equally good decision maker is far-fetched.
Juries are not solely concerned with deciding facts, but with applying those facts to the rules that they are given by the judge. My own experience of having sat on a jury is limited, but what I do have extensive experience of is teaching the law to (supposedly) some of our best and brightest young minds. When I taught the criminal law, students were required to spend a week reading the material on, say, provocation in the offence of murder, and produce an essay on the topic. What was very striking was how many did not understand even the basics after having spent a week of study. I vividly recall teaching the old test in DPP v Camplin that required a distinction to be drawn between characteristics of the defendant that went to the gravity of provocation and those that went to the degree of self-control. By the end of each week, hardly any students had understood this. Wisely, the House of Lord in a subsequent decision removed this distinction and introduced a simpler test. Students of law do, of course, become better over time, and more mature third year students would probably have no problem grasping and applying the more subtle Camplin rule. But, for me, it meant that my confidence that juries understood the legal directions they were given, and could then apply them to the facts, was destroyed. It seems far more likely that juries are taking an holistic view of what the just outcome is, and deciding accordingly. That means we are being ruled by men, jurors, and not by rules applied in a legal process.
Exceptionalism
The use of the jury by common law systems is out of step with the approach of most systems from other traditions (which, by population and number, are a large majority). Further the use of juries in criminal trials is an anomaly not just comparatively, but within our own legal system.
At one time, jury trials were also used in civil actions. This died out in England after World War 1 because the pool of potential jurors had shrunk (German machine guns had killed too many of those who could sit). In England today, civil disputes will in practice never be before a jury. The position is different in the United States, where the jury survived in civil actions because the same systemic shock never occurred. Today, there is no serious support in England for an expansion of the use of juries and to see their return in civil disputes. Why not? Because nobody thinks it a better system than trial by judge alone.
The Closed Box
Politically, there are good systemic reasons why lawyers and judges like juries. The decision is anonymised, nobody can point a finger at the decision maker and blame them. There is nobody to hold responsible. This is however a bad reason for the continuation of the jury.
12 Angry Men is attractive as a piece of film making because it purports to offer us a peek into what goes on inside the closed box. No doubt, many, perhaps most, jury deliberations involve an impressive dispassionate weighing of the evidence, and an application of the facts found to the rules articulated by the judge. In order to tell whether that is so in a sufficiently high proportion of cases, we need to let daylight in on this magic, and require reasons to be expressed. Too many people extrapolate from their own experience on a jury, which is a sample of perhaps one, and so of no significance in judging whether they are just.
Lawyers are, temperamentally, conservative. Some who are opposed to change have pointed at the one small study we have, the Thomas Report on whether Juries are Fair. This gave them (largely) a clean bill of health, but I am wholly unpersuaded by this study. First, the sample is too small (see p 9). Second, inevitably, the behaviour of those being studied changes by virtue of their knowledge of being studied.
Conclusion
The best parody of the 1957 film was written by Galton and Simpson for Tony Hancock two years later. It contains the immortal line:
Does Magna Carta mean nothing to you? Did she die in vain?
Unfortunately, I fear that something like this represents the understanding many jurors will have of the law they are meant to be applying. We should be governed by rules determined dispassionately in advance through democratic process. Not by the choices of men. The jury is contrary to the rule of law.
I have a love for film, and the law. The purpose of this series (the length of which I cannot predict) will be to give my reaction as a lawyer to a number of films in which the law plays a central role. I will not attempt any lengthy review of the films themselves. Others, more competent than me, will already have done so.
Punitive Damages
One of the problems with writing about law in films is that so many come from Hollywood. The United States is unlike all other legal systems in many different ways. From an English perspective, this is problematic as so many lay-people will acquire what smattering of legal knowledge they have from American movies and tv shows. In America, they still talk of “plaintiffs” and “writs”, and so those are the terms the English general public often use, even though they were pointlessly, and inelegantly, changed in England to “claimants” and “claim forms” 25-years ago.
Two ways in which the United States differs from elsewhere is in its use of juries in civil actions, and in the availability of punitive damages. In England, juries have almost completely disappeared outside of the criminal law. After the First World War, German machine guns had so comprehensively destroyed a generation of men that there were insufficient jurors, hastening the abandonment of their use. In relation to defamation, jury trials persisted in England for longer than in relation to other forms of action, but even there have over the last ten years effectively been abolished. In the United States, juries are still often used in civil actions not only to determine issues of fact (as in the criminal law, that of guilt or innocence) but also the quantum of award.
The availability of punitive damages (usually in England unfortunately now called exemplary damages) is also much more restrictive in all jurisdictions other than the United States. This combined with the ability of juries to quantify such awards (similar to allowing them to determine the sentence of a criminal) can lead to great drama. The claim I will make is that they also reveal something that US law gets right, and the rest of us wrong.
Three Films
Punitive damages awarded by a jury feature prominently in three excellent films, which in their substance share the same plot structure. A wrong is committed. A plucky lawyer against the odds gets a verdict in favour of the deserving plaintiff, after obstruction by the more well financed defence. Punitive damages are awarded. The films are The Verdict (1982), The Rainmaker (1997) and Dark Waters (2019). For reasons of space, I shall ignore the similar Erin Brokovich (2000) because so well known.
The first, and best, stars Paul Newman, directed by Sidney Lumet and written by David Mamet. Newman is a washed-up alcoholic ambulance chaser. He takes on a claim for medical negligence, initially hoping to settle and claim a third on a contingency basis (again a difference from the English position). Presented with the victim in a vegetative state, he refuses the settlement and decides to go to trial. His legal opponent, the classic English villain, albeit one nominally playing an American, is James Mason, the senior partner of the opposing major law firm with more than a dozen unspeaking smirking assistants.
The film is not flawless. Charlotte Rampling, twenty years Newman’s junior is an implausible love interest, despite his autumnal good looks, and her brilliant performance. But that was the era in film. It is however also the one of the three films that is greater than the genre, providing a study of a man saving himself, and containing what is even now a shocking act of violence.
The important feature it shares with the other films is that the defendants resist what they know is a good claim using every nefarious means possible. An offer is made far below what is due, but pitched at a level to buy off Newman’s drunk lawyer. Expert witnesses are pressured to disappear. Newman’s new partner is suborned to inform against him. The (inevitable) jury verdict is the best one of the movies here considered.
The second, The Rainmaker, was an undeserved box office failure. Written and directed by Francis Ford Coppola, it was his last good film (unless the in-production Megalopolis proves a return to form). Based on a John Grisham novel, it follows the same formula but with a different underlying action. A predatory insurance company refuses to pay out on an obviously good claim under a medical insurance policy. Plucky newly qualified lawyer, Matt Damon, ably assisted by the unqualified but legally more knowledgeable and able Danny DeVito, seek justice.
Again, the more well-moneyed defence (led by John Voight) resort to unscrupulous tactics in order to defend the indefensible. The first judge appointed to the case is corrupt, but fortunately dies of a heart attack and is replaced by the obviously honest and sympathetic Danny Glover (uncredited). As in The Verdict, key testimony is ruled out on an apparent legal technicality, only here to be brought back in through Damon’s skill and determination. Although a punitive award is made, the defendant company goes into bankruptcy. The working-class family who have brought the action are shown however to be uninterested in mere money.
The film although very watchable is not perfect. A sub-plot involving Claire Danes as a battered wife, presumably included in order to give Damon a love interest, is clunky, uninteresting and disconnected from the main story. However, Micky Rourke, in one of his best roles, gives a wonderful turn as a corrupt lawyer.
The weakest of the three, but still worth your time, is the Mark Ruffalo vehicle Dark Waters. Visually, it is the most beautiful and memorable, as might be expect from the director Todd Haynes and cinematographer Edward Lachman. Based on a New York Times Magazine article, it tells the true story of the claim brought by the lawyer Robert Bilott against the chemical manufacturer DuPont, for contaminating a town with chemicals used in the production of Teflon (an action that led to the bankruptcy of the company). Unlike the other films, it does not focus on the drama of the court proceedings, with the traditional build up to the final decision by the jury. Instead, once the truth has been established as to what DuPont had done, the movie draws to a close, with the punitive awards through litigation stated in credits.
The important feature it shares with the other films is the behaviour of the defendant after it had committed the initial wrong. Obstacles were put in the plaintiffs’ way. A ludicrous “discovery” of documents is made, where truckloads of dusty boxes are dumped at the lawyers’ offices, for our hero Ruffalo to search through. Pressure is applied on the law firm not to proceed against a corporate defendant who would, ordinarily, be one of its repeat clients. An attempt is made to trigger the running of a limitation period through a misleading letter informing the community affected of what has happened in confusing terms.
For many lawyers, the true hero of the film will be Tom Terp, played by Tim Robbins, who as senior partner of the firm backs the pursuit of the action at potentially great financial cost (his defence of doing so is probably the film’s best scene). Another feature in common with the other two films is the thankless part given to the leading woman, here Anne Hathaway as Ruffalo’s stoic wife.
Dark Waters is too worthy, slow-paced and predictable to be a great film. Although the critical response at the time was good, it was not a big box office success.
The Problem With Punishment
In England, punitive damages are today more often referred to as “exemplary” damages. Awards solely made in order to make an example of the defendant, and thereby deter others from behaving in similar ways, are hard to justify. First, without more they are straightforwardly immoral. They seek to use the defendant as a means to an end, as with the execution of Admiral Byng. Second it does not justify giving any award to the plaintiff, who acquires an undeserved windfall. Third if such a punitive award is made in a civil action, the protections given in criminal proceedings are absent.
Much easier to justify is an award given because of the wrong done to the plaintiff itself, regardless of whether, counterfactually, the plaintiff has been left in any way worse off. If you are untruthfully called a paedophile on the frontpage of a national newspaper, that should entitle you to a substantial award without more ado. If you are detained against your will, but plied with beefsteaks and ale so that you are left better not worse off than you otherwise would have been, significant damages should still be available to you.
The Gist of the Wrong
In all three films, the gist of the wrong that the plaintiff suffered from the defendant’s obstructionism was the same, although the underlying causes of action differed (in the first medical negligence, the second non-payment of a contractual debt, the third either public nuisance or negligently inflicted personal injury or property damage). In each case the plaintiff was owed a legal obligation, called for payment, but the defendant knowingly took steps to frustrate its performance.
In one sense the wrong done was a public one, a disrespect for the legal system and the law. In another however it was done to the individual plaintiff. The initial wrong was compounded: the defendant knowingly sought to evade or frustrate their legal obligations. In both The Verdict and Dark Waters the initial tort was not highly culpable, in the first because of a momentary lapse in giving anaesthetic, in the latter because of the lack of knowledge of the risks posed by the chemical concerned. However, these initial wrongs were made far worse, injury added to the initial injury, by the refusal to perform the secondary legal obligation that the defendant knew that they were under, and the steps taken to resist being compelled to perform it. As in politics, the cover up is always worse.
In legal terms, what is most interesting about The Rainmaker is that the claim for punitive damages involved a tort, bad faith failure to pay, that has been recognised in the United States since the 1980s, but that has no analogue elsewhere in the common law world. The English courts for example have refused to recognise any such tort. The Supreme Court of Canada (in a case far more dramatic and extreme than those in the film based on Grisham’s novel) has recognised a claim for punitive damage for breach of contract on similar facts, but this would be thought of as heterodox by English lawyers.
It seems however that the Americans, and not the Canadians, have the correct categorisation here. A punitive award should not be available for a breach of contract per se, and the gist of the wrong is no different in any case of a bad faith attempt to frustrate being compelled to perform any legal obligation, whether contractual, tortious or otherwise.
Lessons for Elsewhere
US law is exceptional in two further ways that are also reflected in the three movies.
First, in England and elsewhere “costs follow the event”. This means that the loser (whether claimant or defendant) will generally be ordered to pay not only their own but the other sides legal costs as well. This does not however usually involve the winner recovering all their costs. Where the counterparty has behaved particularly egregiously, as the defendant did in the three films, a more generous indemnity costs order may be made. In the US each side must generally pay their own costs, regardless of victory, and this might be argued to in part to justify the different approach to punitive damages. An indemnity costs order will however merely ensure that the victor is left no worse off. It would not reflect the compounding wrong the plaintiff in all three movies suffered.
Second, contingency fees (ie fees quantified as a percentage of any award) were at one time prohibited in England but this has been relaxed with “success fees” now permitted, although the quantum of these is capped. In the United States by contrast, the position is much less restricted. This is reflected in the plot of all three films. In The Verdict the unreformed Newman has the initial option of taking $70,000 for doing essentially nothing, as a percentage of the settlement. Coupled with the availability of punitive damages, this liberality has the capacity to make successful American lawyers very rich, as reflected in the huge payment received at the end of Erin Brokovich.
The American tort of “bad faith failure to pay” was initially rejected in England in 1990, in a world where civil legal aid still existed. State funding for those unable to pay for litigation has now almost disappeared. In policy terms, we now live in a different world, where impoverished claimants may be forced to give up as unable to pay when faced with obstructive bad faith defendants.
This does not mean that in England we should embrace the American enthusiasm for the jury. It does however mean that we should reconsider our opposition to the form of tortious wrongdoing found in all three stories. That is the (legal) lesson from all of these movies.
This post is about the legal reasoning in the decision of the High Court in Bell v Tavistock. It is not about the appropriateness or effectiveness of the hormone therapy given to children that that case concerned. I have no competence in relation to the latter factual question. The purpose of this post is to as dispassionately as possible set down the relevant principles. I shall not seek to address all of the nonsense said about the case online. The conclusion is that although the result may be right, the reasoning of the court is not.
Our Bodies
Our bodies are our own. As an adult, I can consent to others doing things to my body that are not necessarily beneficial: an ear piercing, a tattoo, or the infliction of pain. If I consent, no wrong is committed.
Conversely, if I do not consent others cannot do things to my body even if they are beneficial. So, if I object on religious grounds to a blood transfusion, any attempt to force one upon me would be a battery. The law could then be used to order anyone who tried to stop.
Children
Children are different. A question arises as to when they can consent in the way that an adult can.
A child of, say, seven cannot validly consent to many of the things an adult can. So, a child cannot validly consent to having a tattoo, an ear piercing or the infliction of pain. There is nobody who can validly consent to these things on behalf of the child either. If the parent and child agree that it should have a face tattoo, it would be a battery to do so. The ear piercing of young children is a battery, regardless of the parents’ views. A child is not a parent’s chattel.
If a child requires medical treatment (eg stitches in a gashed knee or a blood transfusion) and they cannot themselves consent (as a very young infant most obviously cannot) then their parent may do so on their behalf. If the parent withholds consent to beneficial treatment, as has happened in relation to those who object to blood transfusions on religious grounds, a court may instead act for the child.
For older children, a question may arise as to whether their consent suffices. So, the Gillick case concerned the prescription of contraception to under 16s. The parent, Mrs Gillick, argued that her consent was necessary. The court rejected this on the basis that the consent of a child with sufficient understanding sufficed.
Bell v Tavistock
Proceedings for judicial review were brought concerning the practice of Tavistock NHS Trust of prescribing puberty blockers to children who experience gender dysphoria. The claim was brought to stop the treatment.
From the first principles above, two issues arise, that need to be differentiated.
Is the treatment in the best interests of the child?
Does the child have the competence to consent to the treatment?
If the treatment is not in the child’s best interests, nobody can validly consent to it. Not parent, child or court. It is like a face tattoo.
If the treatment is in the best interests of the child, then a child with sufficient understanding should be able to consent without the consent of an adult. If they lack such understanding, and it is in their best interests, then as with a blood transfusion, a competent person who is responsible for them, usually a parent, can consent on their behalf.
In a case such as this, it is easy to confuse these two issues. Whether the treatment is, as a matter of objective fact, in the best interests of the child is dependent upon that child being able to make an informed choice about the life they wish to lead. If the child doesn’t wish the treatment, then (unlike with a blood transfusion) it is not in their best interests to proceed. If they do wish to have the treatment, the issue arises as to whether their assessment of their best interests is accurate. We all of us, adults and children, subsequently regret many of the decisions we make. To what extent are we able to trust that this child’s self-understanding is sufficient that we can be sufficiently certain that the treatment is in their best interests?
Reasoning
The court in Bell characterised the issue before it as follows
The court in this case was concerned with the legal requirements for obtaining consent for the carrying out of medical treatment. The court was not concerned with deciding whether there were benefits or disbenefits in treating children with gender dysphoria with puberty blocking drugs. ([3]of summary, see also [9] of judgment.)
In the light of the brief statement of first principles above, this is a mistake.
We can demonstrate the error in two ways.
First consider an extreme hypothetical where we are certain that the treatment is in the best interest of the child. Say the child is suicidal, has repeatedly tried to end his or her life, and has stated that if they are not stopped from proceeding on to puberty that they will kill themselves. Assume that we are certain, beyond peradventure, that this is true. Can consent to this treatment be given, by this child or by a competent adult on their behalf?
I suggest that the answer is plainly yes.
Second, if the issue were genuinely about consent, if we were certain that the treatment is genuinely beneficial, then Gillick competent children should be able to consent to it, or competent adults should be able to do so on their behalf. But the conclusion of the judges is that it was “highly unlikely” that a child 13 or under could consent, and doubtful whether a child aged 14 or 15 could do so.
Why did the court think that children could not validly consent? Because of a potential lack of “understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child.” But these factors, if accepted, go to show that the child lacks the self understanding to assess whether the treatment is in their long term interests, and as a result makes us unable to conclude that it is in fact in their best interests.
Why?
If the court’s reasoning is, as I suggest, mistaken, why is this so?
The first reason is that this is the way the case was argued by counsel. Both sides argued the case on the basis that it was about capacity to consent.
The second reason, and perhaps the reason why the claimants put the claim in this way, is that capacity to consent is a legal issue for the courts and the law. A medical practitioner does not get to decide whether an 8 year old can consent to a blood transfusion. The law determines this question.
In determining a question of whether a medical treatment is beneficial, however, the courts place great weight on medical opinion. Judges are not experts in blood transfusions. This deference is not, however, absolute. In the context of liability for negligence, for example, it is no longer sufficient to show that a body of professional opinion supports a treatment. That body of opinion must be reasonable.
Is it wrong?
Despite these criticisms, I am not certain that the result reached in Bell v Tavistock Trust is wrong. I urge those interested to read the case itself, and the court’s review of the evidence the Tavistock Trust relied upon to show the efficacy of the treatment. The court repeatedly states that the lack of data produced for good outcomes was “surprising”. The Tavistock Trust’s treatment of children in its care was, on my reading of these facts, shocking. The better reading of the result is that on the facts of the case the treatment being given was not in the child’s best interests.
That does not mean that this treatment may not sometimes be in the best interests of some children. Again, that factual question is not one I am competent to answer.
“If you want to know the law and nothing else, you must look at it as a bad man.” – OW Holmes, The Path of Law
Last night the Prime Minister set down a number of rules of conduct to be followed during the Coronavirus pandemic. This has prompted two responses that I think are misconceived. “How is this to be enforced?” and “This offends the rule of law.”
OW Holmes thought that what distinguished law from morality was the presence of a sanction for breach. This explained why he thought the appropriate perspective was that of the bad man, who cared nought for morality, but cared about sanctions just as much as anyone else.
This perspective misses the importance of rules for guiding our conduct. Even in a society of angels, we need rules, as is demonstrated by the latest pandemic. Should I still go to work? Can I go to the pub? How often can I go out? Can I still visit my family? On our own, answers to these questions may be unclear. We also face a collective action problem: is there any point in my choosing to stay at home if nobody else is?
All of us need rules to guide us. Where do rules come from? Sometimes they arise by convention, such as the rule that men do not wear a hat in church, or (perhaps more pertinently) that we say “bless you” when somebody else sneezes.
Conventional rules are however slow to develop, and may be so open-textured as to provide inadequate guidance. So, we need someone with authority to posit the rules for us. This may be a legislature, the producer of a game such as Monopoly, or a business such as Waitrose when it stipulates that only the elderly or vulnerable may shop at certain hours.
Further to think that rules work because of the possibility of sanctions is (as a matter of observable fact) implausible. There are around 125,000 police officers in the UK. That is far too small a number to ensure that a recalcitrant population of 66 million comply with any social distancing rules (or indeed all the other legal obligations to which we are subject). Rules work because we internalise them. We use them in deciding how to act. Very few people (fortunately) are like Holmes’ bad man. We want to comply with the rules. We just need to know what they are.
In order for rules to work as regulation, it is important for them to be “bright lines”, expressed in terms people can understand. Vague talk of “social distancing” doesn’t suffice. Telling people to stay at home, only travel to work when absolutely necessary, shop for necessaries as infrequently as possible, take one form of exercise per day alone or with a member of your household, does this.
It is best if important rules (such as these) are posited in primary legislation, following green papers, multiple debates in the legislative chamber, public scrutiny, and so on. In an emergency however, the only body able to posit rules with sufficient speed is the government. And that is what they have done. No other body possesses the authority to have done this. It would be optimal if no further police powers or enforcement measures ever prove necessary (although the Prime Minister stated that they will be forthcoming). The best thing now to happen would be for all of us to internalise the rules, and follow them.
Although all posited laws are rules, not all rules are laws. If we all know what the rules are the moral pressure to comply with them becomes very strong (as the owner of Sports Direct, Mr Mike Ashley, discovered when he initially stated that he would keep his stores open). The posited laws of England can be interpreted by the courts. The rules posited by the government yesterday are not like that. Those demanding further clarity are, missing the point of them. Use them yourself.
The “rule of law” is about the importance of being ruled by rules posited in advance, that enable us to guide our conduct, rather than our being ruled by the choices of others (police, judges, government officials) with power over us. The rules set down yesterday are a demonstration of the importance of that ideal, not a violation of it.
Say you lived in a society with a First Past the Post voting system. Say at the last election the Evil Party won with 11 million votes. Second came the Slightly Less Evil Party with 10 million votes. After them came a variety of Not At All Evil parties with 9 million votes.
How should you vote this time?
If you vote tactically, as millions of your fellow citizens did last time and do in every election, you should vote Slightly Less Evil. After all, if the only possible results are Evil or Slightly Less Evil choose the lesser.
But it is this tactical calculation that both Evil parties rely upon. If nobody voted tactically at all, and instead voted for the best of the Not At All Evil parties on offer, one of them would win. Maybe not this time, but at some point in the future.
The problem with tactical voting in situations like this is that we can all get locked into a choice between Evil and Slightly Less Evil. Even if we think that we should determine our vote by some kind of utilitarian calculus, supporting one form of Evil where it is less bad than the alternative (I do not), longterm tactical voting is counterproductive. Longterm the best tactic is not to vote tactically this time. Elections are not one offs, and tactical voting may leave us trapped between two awful options forever.
Vote Not At All Evil.
[Any relation of this post to any real world choice in the 2019 UK General Election is purely coincidental.]
If, like me, you wish the UK to remain a Member of the European Union how could it be done? How could Brexit be ended, with a good outcome?
At some level Brexit can never be defeated. There will always be some, such as Mr Nigel Farage, who will passionately favour and argue for Brexit come what may. If however there is a majority of the country that would prefer Remain over any of the other available options, how can this be achieved in a way that is perceived as fair by those who voted for, or still support, Brexit?
The most powerful argument that still persists for Brexit is that the 2016 referendum should be respected, and so should be carried out, regardless of the merits of the case. The major flaw with this argument, which was not apparent to me at the time of the 2016 referendum, is that when Remain is contrasted with any specific form of Brexit (from a Farage style no deal, through Johnson’s hard leave, May’s customs union, to staying within both the customs union and the single market) its majority evaporates. Remain beats any real world Brexit. Only when Brexit’s varieties are aggregated does it beat the concrete option of Remain. This is because as the “democratic sovereignty” of the UK is increased by its disentaglement from international entanglements, so the economic cost increases. This is one reason why those who voted Remain feel there is no democratic mandate for Johnson’s deal, and so are irreconcilable to it. There was no majority for any actual real world Brexit outcome.
So, in order to overcome the argument that the referendum must be respected, another countervailing democratic vote is required that shows that Remain is more popular than any specific form Brexit may take. This is the only way of reconciling those who can be reconciled to a remain result that they do not prefer.
This leaves two options.
First is the victory in a General Election of a party explicitly advocating remain. At the moment, this seems unlikely.
Second is another referendum.
The Labour party’s current policy is to renegotiate its own form of Brexit and put this to the test against Remain in a referendum.
This is not a plausible way of bringing Brexit to an end. Many of the Labour shadow cabinet explicitly favour remain of any other option. The shadow foreign secretary has stated that she would campaign for remain against any deal negotiated by her government. When compared to remain, a “soft brexit” option negotiated by a Labour government would only receive the support of the small majority of those who favour Brexit within the Labour party. Remain would easily win any such referendum. It is a policy that enables the Labour party to be unified, but it is not one that will ever reconcile those who oppose it to a remain result. Brexit as the dominant political issue will continue, drowning out everything else.
In the end therefore, we will need a referendum either where a number of Brexit outcomes are put, or (less ideally) where a deal negotiated by a government that genuinely favours Brexit is pitted against Remain.
There is, of course, another way of ending Brexit, although not a good one. A large General Election victory by a party favouring a specific form of it.
Politically, the installation of a temporary government with the sole policy of seeking EU27 agreement to the extension of the UK’s membership of the European Union is extremely difficult. Conservative MPs may be willing to vote against their own party in government, but they will be very reluctant to pass a vote of no confidence in it. A necessary condition of there being such a government is that there is an alternative bipartisan candidate for Prime Minister, and the leadership of Labour does not wish to accept the legitimacy of anyone other than Mr Corbyn (who is by definition because of his role not such a person) taking office. The unfortunate label a “government of national unity” has become attached to the idea; which as it would exclude the vast bulk of the Conservative party and the DUP, would have only one policy, and only last until after an election held at the earliest opportunity, is a misnomer. The shadow Home Secretary, echoing others, has rejected a return to the approach of Labour’s first Prime Minister, someone called “Ramsey Mcdonald” (sic).
As Mr Bush rightly says, the Cooper-Letwin Bill, which became the European Union (Withdrawal) Act 2019, serves as a ‘proof of the concept’ that legislation is possible. This Act was passed against government opposition. Although ordinarily the government is in control of the timetabling of business before the Commons, and could choose not to schedule any Opposition or Backbench MP Business Days, MPs could seek to take control of the agenda themselves by tabling, and amending, an Emergency Debate under Standing Order 24 (see the Institute of Government Paper at p 10). The government may oppose the passage of such a Bill through the Commons and Lords, and Brexit supporting MPs might seek to filibuster, but the previous legislation shows that the procedural barriers are not insuperable.
Far more serious is Standing Order 48. This prohibits petitions for the spending of public money unless recommended by the Crown. So, whilst a Private Members Bill criminalising or decriminalising certain activity is possible, a Bill requiring the building of a hospital in a local constituency is not. There are good reasons for such a rule. We need the state’s finances to be the responsibility of one entity. Chaos would result if there were a free for all by MPs enacting legislation for their pet project. Finances need to be taken in the round, with priorities set. Project X may be a good thing, but Project Y may be better.
Cooper-Letwin I
The Speaker of the Commons ruled that the Cooper-Letwin Bill, that required the Prime Minister to set down a motion to seek the extension of the UK’s membership of the EU, was not a finance resolution. He did so on the basis that although continuing to be a Member State of the European Union had substantial tax and spending consequences, the government already had the powers to cover such expenditure under the European Union (Withdrawal) Act 2018.
The enacted version of the Cooper-Letwin Bill neither required the government to agree an extension, nor to change “exit day”. Instead it drew a distinction between “seeking” (ie asking for) and “agreeing” an extension (see ss1(6). In this way it did not require further expenditure because it did not require the government to agree to whatever the EU27 offered. Instead it merely required the government to ask, thereby not in fact compelling it to extend. And if the government did agree to an extension, the costs of that were already covered by the earlier legislation.
Johnson
This means that an enactment along the same lines as Cooper-Letwin I will not work. A Johnson government might, with reluctance, be compelled to ask for an extension, but if an offer of one were to come back from the EU27, with or without conditions, it could respond “no thanks.”
Only an enactment requiring the government to agree to an extension can work, and such an Act would be a finance measure contrary to SO48.
Whilst I do not agree with Mr Stephen Laws QC that it would be appropriate for a government to withhold Royal Assent from a Bill passed without government assent to an amendment to Standing Order 48, I do agree that such a Bill would be, put at its lowest, a dramatic change of procedure,
What is clear is that legislation of the form of the original Cooper-Letwin Bill will not force a determined government to stop a no deal Brexit. Legislation of a kind never before enacted will be required. The original Cooper-Letwin Bill was reliant upon a majority of one.
A Constitutional Crisis?
We do not have a constitutional crisis. Court orders are obeyed by the government. Legislation is passed and given effect to by the courts. What the law is is clear, and is obeyed by the various constitutive elements of the state. Widespread civil disobedience has not occurred.
What we have is a political crisis. This is caused by the existence of a Commons majority opposed to the central policy of the government, but that same Commons being unwilling to put in its place a government whose central policy has majority support. This is caused by the party system: the policy with majority support is found across parties but not within the largest.
Instead of attempting legislation that may not work, MPs should work together to temporarily replace the government for the purpose of the election that is coming soon in any event. Whether they have the political bravery to do so may be doubted.
If there were an election tomorrow, and the main opposition party won a landslide victory, what would the duty of the current Prime Minister be?
No statute anywhere tells us. Certainly not the Fixed-term Parliaments Act, which says nothing about the issue.
The answer is however clear: he must resign. He must resign because he no longer has the confidence of the Commons and another person, in this example the leader of the opposition, is better placed to do so. This rule is found in Convention, not the posited law. It was this Convention that caused Gordon Brown to resign in 2010, before him John Major in 1997 and before that every other Prime Minister who lost the confidence of the Commons when another was better placed.
In some cases it may be unclear whether the Prime Minister has lost the confidence of the Commons, and so a vote is held to test the matter, as happened in December 1923. But what he or she must do after losing such a vote is not set down in any statute or other posited law anywhere.
In terms of a strict reading of the [Fixed-terms Parliaments Act] Boris is not required to resign. It is completely silent on all of this. The onus is on the incumbent Prime Minister – they get to choose whether they resign. If they do not it is hard for a new government to be formed without dragging the Queen into politics.
This statement is extremely misleading. It is true that the Fixed-term Parliaments Act is silent as to the Prime Minister’s duty to resign in favour of another better placed to command the confidence of the Commons. That is because it is legislation concerned with fixing Parliaments, not Governments (see its name). It is silent, just as is the Fisheries Act 1981 or the Contagious Disease Act 1864, because it concerns something else.
This blog began life four years ago to deal with this serious, and I thought dangerous, misreading of the Fixed-term Parliaments Act. It is a topic I have felt the need to return to.
Conventions are unenforceable. Indeed, courts cannot authoritatively rule upon them (save where they come up as an issue of fact as happened in the Spider Memos Case, and as questions of foreign law often do).
If a Prime Minister were so to disgrace his office by refusing to resign, destroying representative democracy in the United Kingdom, the only recourse middle aged conservative people such as myself personally have is to take to the streets. You will have to join me.
Confidence Motions
As the PACAC report on the Act makes clear, all that the Fixed-term Parliaments Act does in relation to a vote of no confidence is fix the form of it for purposes of starting the clock towards a General Election. It does not state what a vote of no confidence is, the form it must take, or what the Prime Minister should do if one is passed.
In order to leave the Prime Minister no option but to resign it must be clear that there is someone else better placed to command the confidence of the Commons. If there is a doubt about that the incumbent may say “ok, I don’t have the confidence of the majority, but nobody else does either, so I can continue, at least on a caretaker basis.”
If a vanilla no confidence motion in Johnson were passed (eg “this House has no confidence in Her Majesty’s Government”) the incumbent could, with some plausibility, claim that he did not have to resign if there were nobody else better placed. The Leader of the Opposition is not only unpopular with MPs from other parties but with many from his own, and it may be that there is a majority opposed to his being Prime Minister under any circumstances.
Stopping no deal Brexit
How could the legislature stop a determined Johnson government from pursuing a no deal Brexit?
The first method is legislation, a form of which I suggested here. Although some Conservative MPs may prefer this option it is difficult. First the government is in control of the legislature’s tabling of legislation. Second, even if a friendly Commons speaker were to defy Convention and allow legislation to be put, it would face stiff opposition in the Commons and Lords and it may be doubted whether it could be passed with sufficient speed.
The second and easier method is to pass a Confidence motion. This does not have to be in the form necessitated by the Fixed-term Parliaments Act. The government, by Convention, must make time for an opposition confidence motion. If it (completely outrageously) insisted that this could only be put forward in the form set out in the Act, the opposition could do so and it should be amended.
A motion of the form suggested below, clearly demonstrates the Commons’ lack of confidence in the Prime Minister, puts forward a person who does command the confidence of the House, and would not trigger the Fixed-term Parliaments Act as it is in a different form from the words used there
“This House, not wishing a General Election and wishing to stop a no deal-Brexit, has no confidence in her Majesty’s Government, and calls for the formation of a new Government led by the member for [X}.”
The person who then became Prime Minister could do so on a temporary basis for one purpose: seeking a further extension of UK membership of the European Union, in order for there to be a General Election or other vote. Who that person should be is of secondary importance (and indeed could be settled in the debate on the motion). MPs need however to start discussing names,
The Monarch
In our constitution today, the person of the Monarch is almost entirely symbolic. Although some powers are formally carried out through her, she is just a pen.
What if a motion of the above form were passed, and a Prime Minister so forgot himself so as to defy it, and stay in post? What should the monarch do?
In such extraordinary circumstances, she should dismiss him, and call on the person who commands the confidence of the House.
Mr Julian Assange was arrested yesterday after the Ecuadorian government withdrew the asylum they had given him in their embassy, thereby depriving him of the immunity they had conferred upon him from arrest. He was first arrested for failing to attend court on 29 June 2012 in contravention of his bail conditions. He was then further arrested on behalf of US authorities under an extradition warrant under section 73 of the Extradition Act 2003.
The shadow Home Secretary has intervened urging the Prime Minister to block the extradition of Mr Assange to the United States on human rights grounds, calls echoed by the Leader of the Opposition and the Shadow Lord Chancellor. The purpose of this post is to explain why, legally, this cannot be done. Ironically, the best hope Mr Assange now has of avoiding extradition to the US is if the Swedish authorities apply for him to be extradited there for other offences.
The Extradition Act 2003
The United States is a “category 2” country for the purposes of the Extradition Act 2003. In almost all respects, the decision whether to grant extradition is a matter for the courts, and not for the Secretary of State. In particular it is for the judge, not the Secretary of State, to decide whether extradition may be denied on human rights grounds. This is for good reasons that are illustrated by the Assange case itself. It is best to have cases like this decided by rules set down dispassionately in advance and adjudicated upon by judges, rather than through the discretion of politicians whose choices may be influenced by considerations unrelated to the justice of the case. We need clear rules of extradition that may be quickly applied. If the UK wishes those who are suspected of violating its criminal law to be tried here, and not to be able to flee to other jurisdictions to escape sanction, comity requires that we extradite to other countries those accused of offences there. There need to be safeguards in place (for example ensuring that any person extradited will obtain a fair trial) but we do not wish the extradition hearing to enable the accused to be able to run all the same substantive arguments as to his innocence as he would in the criminal trial (thereby obtaining two bites of the justice cherry, and encouraging flight).
The Indictment
Under the doctrine of specialty, a person extradited to stand trial may only be tried for those offences specified, and not for any other pre-extradition offences. The offence alleged in the US indictment is that of conspiring with Chelsea Manning to obtain unauthorised access to information held on a computer holding information of the United States classified as “secret”. Hacking.
In the United Kingdom, it would similarly be an offence to conspire to commit the unauthorised obtaining of data held on a computer contrary to section 1 of the Computer Misuse Act 1990 (this is of significance, as we shall see).
The Role of the Judge
The first issue for the judge is to determine whether the offence on the warrant is an extradition offence (we will not extradite for, say, road traffic offences, or for breaches of esoteric offences we do not recognise).
An extradition offence is one that is both an offence in the UK and the country seeking extradition. Further that offence must carry a term of imprisonment of 12 months or longer. The maximum prison sentence for the UK equivalent offence is 2 years. This “dual criminality” test here seems satisfied.
Second the court must consider if any of the bars to extradition apply: double jeopardy, passage of time, if the real motive for the prosecution is in fact to punish the defendant for another reason such as political belief, hostage-taking considerations, and the forum seeking extradition is inappropriate for reasons of justice.
It may be that some will argue that the motivation for prosecuting Mr Assange is for his political beliefs, but this seems hard to sustain. It is his alleged role in the hacking that is the concern, not his libertarian views.
This last requirement (the forum) is the only one possibly applicable, but is itself carefully defined. The essential questions are whether the United States is the appropriate forum for any trial (it plainly is) and whether such a trial would be unfair on the defendant? It was on this basis that Mr Lauri Love (another alleged hacker) successfully resisted extradition to the United States, because of his physical and mental fitness to be extradited. As far as is known, no equivalent consideration applies to Mr Assange, but his condition after seven years confined to the Ecuadorian embassy may not be good.
The third requirement is that the extradition must be compatible with accused’s Convention rights as defined by the Human Rights Act. Most obviously, if the accused would not be afforded a fair trial extradition would be refused under article 6. It was on this basis of the accused’s human rights that in 2012 Theresa May as Home Secretary refused the extradition of Mr Gary McKinnon’s to the United States on the basis of his article 2 right to life (there was a risk of suicide were he to be extradited). However, this power to decline on human rights grounds was (rightly) transferred to the courts by the Crime and Courts Act 2013, reducing the Secretary of State’s role.
The most relevant Convention Right applicable to Mr Assange is Article 10 (freedom of expression). After all, Mr Assange’s motive was to disseminate information through Wikileaks, which he then did. Would extradition to the United States violate his right to freedom of expression?
Given the “dual criminality” rule, it is hard to understand how it could. If Mr Assange were to be tried for equivalent offences in the United Kingdom, would the court interpret the Computer Misuse Act to permit this kind of hacking, or declare that that Act is incompatible with the Human Rights Act? This seems implausible. Mr Assange is not simply charged with publishing information obtained illegally by Chelsea Manning, but with conspiring to obtain unauthorised information from a computer system. This is not required by freedom of expression.
The Secretary of State
The extradition process is now “substantially judicialised“. The Secretary of State’s role is now limited to considering whether he is prohibited from allowing extradition on the basis of the death penalty, specialty, or earlier extradition to the UK. None of these apply here, and so if the court makes an order for extradition the Secretary of State must comply.
The calls by newspapers and politicians for the government to act to prevent extradition of Mr Assange are therefore misconceived at best. This is a matter for the courts, and on its face all the conditions for extradition are met.
Sweden
There is however one way in which Mr Assange might avoid extradition to the United States.
Originally, Mr Assange had sought asylum in order to avoid a European Arrest Warrant from Swedish authorities in relation to rape allegations. This warrant is no longer extant, but the proceedings may recommence.
Where the Secretary of State receives competing extradition request he may order one request to be deferred until the other has been disposed of. The relevant considerations include the seriousness of the offences, where they were committed and the date when each request was received. Rape is a more serious offence than hacking, and the original Swedish warrant was seven years earlier.
If Mr Assange were extradited to Sweden, he could not be extradited from there to the United States for offences the UK would not also extradite him for (an aspect of the specialty rule). He could not therefore be any worse off. Sweden’s extradition treaty with the United States is differently worded from that between the US and UK, and prohibits extradition for an “offense connected with a political offense”. Mr Assange’s alleged hacking may be said to be covered by this wording, in a way that it is not under the UK legislation.
Ironically therefore, once Mr Asasange has served his punishment in the United Kingdom for skipping bail, his best hope for avoiding extradition to the United States is that he is extradited to Sweden first.
spinninghugo 