Sources of Law

What is a source of law? To be a source is to be the originator. The source of a stream comes before the stream. The source of a leak is a necessary condition of a leak. The source of an idea is anterior to the idea.

An Act of Parliament is a source of law. An Act is constituted where a Bill passes both the House of Commons and the House of Lords and receives the Royal Assent from the sovereign. But how do we know this is so? What tells us that this is a source of law?

A beginner might naively think that there ought to be a yet further more foundational document that tells us what the sources of law in a State are. In the United States, Article 1 of the Constitution stipulates that legislative powers are vested in the Congress, which consists of the Senate and the House of Representatives. Copies of this document are on reverential display in the National Archive in Washington.

But why is the US Constitution a source of law? Is there a still yet higher document, kept in an even more secure glass box, that tells us that? If there were we would hit an infinite regress problem.

HLA Hart in The Concept of Law postulated that any system of positive law must have a Rule of Recognition at its base. This rule has as its primary function the provision of a test for the validity of a law. Examples of such rules are that a Bill that passes both Houses and receives Royal Assent is good law, or that the Constitution of the United States is valid. Such rules as they are a necessary condition of what constitutes a positive law cannot, as a matter of logic, themselves be posited. Where then do they come from?

Hart suggested, plausibly, that they arise by Convention among officials (usually judges) whereby they accept such rules. Conventions are a matter of fact and can change overtime. It is a Convention that men do not wear a hat in church. This Convention has not been posited anywhere. Although Hart was the greatest exponent of legal positivism, his account is dependent upon a rule that is not posited by authority at all.

This account works less well in relation to international law. Often there is no official or judge available to determine what international law is as no formal court has been set up to adjudicate on the matter. How did we know in, say, 1648 that the Treaty of Westphalia was legally binding? Because States by Convention treated, and treat, agreements entered into between them as binding.

Where there are multiple sources of law, the Rule of Recognition should (must?) also have rules for determining a hierarchy between them in cases of conflict. The common law, judge made law, is a source of law in the United Kingdom. It is not dependent for its validity upon any Act of Parliament. What happens when the common law says X and an Act of Parliament says not-X? The answer is that the legislation prevails. As a matter of logic, the legislature itself could not have alone validly stipulated that its Acts were to prevail. Further fine tuning is possible. So, the judges now seem to have recognised a special category of ‘Constitutional Statutes” that did not exist when I was young, which seem to have some kind of interpretive priority over other more humdrum Acts.

In the Miller decision the majority seek to meet the interpretive objections of the minority, by postulating that EU law is a source of law, and as such cannot be removed by ministerial action alone. This suggestion first came from Lord Sumption (see transcript at page 40). This seems plausible. After all, UK legislation is without doubt a source of law, and EU law has priority over it within our domestic legal order. EU law can be directly effective as soon as it is posited and is not dependent upon new legislation for its validity. It would be, to say the least, startling if ministers could, by their decisions, remove legislation or the common law as a source of law, so how could they do so with any other source?

Further, describing EU law as a source of law seems to circumvent Lord Reed’s nitpicking legalistic objections based upon the words of the European Communities Act. If EU law is a legal source it is anterior to the positive law itself, and is not determined by it.

Unfortunately, this characterisation of EU law is wrong. If the legislature passed an Act stipulating that the rules of the game Monopoly as they exist “from time to time” were henceforth to be legally enforceable, and to take priority over other rules, would that make those rules a ‘source of law’? They would not. The source would be the rule that Acts of Parliament are valid. The incorporation of the rules of the game would be wholly dependent on that rule.

Precisely the same is true of EU law within UK domestic law. It is only valid because of the European Communities Act. That Act in turn is dependent upon our Rule of Recognition in the UK. EU law is directly effective because the Act says so, and has priority over UK legislation because that is what the Act says and the judges have given effect to that. If EU law had its own freestanding validity it could not be removed even by an Act of Parliament overturning that Act.

At an international level, EU law is not dependent upon any UK legislation. But on that plane it takes its validity from the agreement between member states. It is not a new sui generis form of law.

Lord Sumption’s clever move of describing EU law as a ‘source of law’ has a strong rhetorical attraction. He was the best advocate of his generation. It is a sleight of hand.

The Vibe of the Constitution

One day I will provide a review of films for lawyers. One of the very best, that should be better known in the UK than it is, is the Australian movie, The Castle. The most famous scene is when a lawyer is asked to explain why his client should win. He cites “the Constitution.” When pressed on which particular provision of the Constitution he relies upon, he is unable to point to any specific section, but instead relies upon “the vibe of the thing”

In his dissent in the Miller decision, Lord Reed (at [177]) makes an argument that I have made repeatedly on this blog since last June

“the effect which Parliament has given to EU law in our domestic law, under the 1972 Act, is inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU. The Act imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU. It does not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership… Further, since the effect of EU law in the UK is entirely dependent on the 1972 Act, no alteration in the fundamental rule governing the recognition of sources of law has resulted from membership of the EU, or will result from notification under article 50. It follows that Ministers are entitled to give notification under article 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament.”

It is good that this argument, that was astonishingly not made before the High Court (see para 11) was at least put. It is based upon the express words of the 1972 Act. What is the response of the majority to it? It is on this that the result of the case turns. The key part of their reasoning is at paragraphs 78 to 81. What do they say?

The first claim is that there is a “fundamental difference” between variations in the content of EU law and withdrawal from the European Union, This is because the latter involves a unilateral action by the UK that changes UK constitutional law, whilst the former does not. If EU law were eliminated save for one directive on banana curvature, that would be fine, whilst its reduction to nothing at all would not.

This is very difficult to understand. It has no textual support as a distinction in the European Communities Act itself. The change in the application of EU law to the UK by withdrawal is mandated by EU law itself (article 50). There was and is nothing unilateral about that, it was agreed between the Member States. EU law changes in many different ways. Why is this change ‘fundamentally different’ from the others? Appeals to the long title and the side notes (para 88) of the Act might be justifiable if the words of the sections (which are the law) were ambiguous or could plausibly be said to have a meaning that they do not have on their face. They do not, and no reliance is placed upon the words of the Act. As Lord Reed states, no section in the Act states “the UK shall be a member of the European Union” or any equivalent.

Second it is said that EU law is a source of law, and not just law. It would be “inconsistent with long-standing and fundamental principle” for such a change to a source of law to be brought about by ministerial decision.

Again, this is difficult to understand. EU law has its status within UK law only because of the European Communities Act. It has no independent force in our domestic law. By contrast the common law, which is judge made, has no statutory basis. If EU law really were a source of law independent of an Act of Parliament, how could an Act of Parliament remove it from UK law? Legislation could not, for example, provide that future legislation ceased to be a source of law, nor could the legislature provide that what judges decide is no longer legally binding upon the parties without abolishing law within our legal system altogether. EU law within our domestic legal order is simply not like that. It is not an independent source of law, but is wholly dependent upon UK legislation. It is because it is not a source of law (ie anterior to posited law) that it can be removed by law.

The truth is that EU law is only effective within UK domestic law because the European Communities Act says so. It is, politely, surprising that the majority base their decision not upon the words of the Act, which in the key paragraphs they ignore, but on a rather more abstract enquiry into what they feel the right answer ought to be.

In the end, the case will probably be of little practical significance. We will leave the EU, and the dispute about what was once EU law’s constitutional status within the UK will become an historical curio. That said, and despite several attempts, I see no answer to Lord Reed’s dissent in the reasoning of the majority, and have consequently found it difficult to articulate what they are saying. Vague statements about ‘fundamental principles’ and basic ‘sources of law’ are little better than appeals to the vibe.

Review of the Year

This blog has become a vehicle for my thoughts on current legal issues, the area where I have expertise. My anonymity allows me to tackle topics that I would feel professionally embarrassed to discuss under my own name. Unfortunately, a number of people have now guessed my identity, and so this may be the last yearly review. We shall see.

The review of last year which can be found here was dominated by human rights and international law. At that time, the large legal change that appeared to be on the near horizon, following the election of a majority Conservative government, was the repeal of the Human Rights Act and its replacement with a “British Bill of Rights”. The immediate prospect for that seems to have receded as the government has other more pressing matters to deal with. It is an indication of how rapidly the world has changed that the European Union Committee of the House of Lords thought it a useful exercise to publish a report on the implications for our relations with the EU of the repeal of the Human Rights Act (which I criticised here).

(If Parliament could find time in 1943 to consider and pass the Law Reform (Frustrated Contracts) Act I cannot understand why the current legislature cannot hold more than one thought in its collective head. The primary legislation we enact seems to be in long term decline, returning to levels we last saw in the 1950s. At the same time, secondary legislation has mushroomed. Those concerned with Parliamentary Sovereignty might wish to look at that.)

The European Union

The furthest the blog has strayed from law was in relation to two posts on the European Union.

In the first I wrote in praise and defence of the referendum. I stand by that piece, even though I loathe the result of the vote. What can be said against it?

It is one of the golden rules of cross-examining a witness that you never ask a question that you do not already know the answer to. A common mistake is to ask one question too many, and receive an answer that unravels all the work that you have done before. In political terms this is what David Cameron did. But that the result turned out to be politically disastrous for him is not a principled objection to the referendum itself, anymore is the fact that it gave a result that is, I think, wrong.

More powerful objections are to the form of the referendum. No minimum majority was required, and no turnout threshold  required. However, politically I doubt this would have made any difference at all. Farage would be loudly proclaiming that a majority of one was enough, and Cameron would have gone to be replaced by a government in favour of Brexit.

If there was a mistake it was made in September 2014 when Cameron, Clegg and Miliband jointly made a “vow” to Scotland if its voters rejected independence. This vow should have included a pledge to remain within the EU so long as the voters of Scotland wished to do so. Such a pledge was politically possible, and would have locked the UK into the EU.

The most political post I have ever made was this one in praise of the EU. What I saw as a bulwark against populism, others saw as an affront to democracy. As someone who in the past has had the task of managing others in an organisation, my enthusiasm for being governed by the majority’s will is not great.

Article 50

The hottest legal topic of the year was article 50 of the Treaty of the European Union. Five days after the referendum I wrote explaining why no legislation would be required for the government to achieve our departure from the EU. I have had to return to make that argument more than once. The argument made there was eventually made on appeal before the Supreme Court, but not initially before the High Court where the government’s case was very confused, and ultimately unsuccessful for reasons I explained here. Seemingly like almost everyone, I also have a firm opinion on whether article 50 can be reversed.

I am unrepentant in my views, but the clear consensus among legal commentators is that I am wrong. On Betfair the odds on the Supreme Court overturning the High Court are very long (I have staked a fairly large sum, and have a side bet with the commentator Jolyon Maugham QC).  We shall see whether what the law is and what the judges say it is eventually coincide.

Whatever the result, the judges will be deciding the case according to their view of the law, not on whether Brexit is a good or bad thing. The last time judges were subject to the attacks we have seen from the likes of the Daily Mail (criticised here and here) was in the 1970s. Back then however, the allegations came from the left and not the right. 181 Labour MPs called for the dismissal of Sir John Donaldson, who was the judge appointed as head of the National Industrial Relations Court. As now, the anger was misplaced. Donaldson in ruling against trade unions was doing what legislation required of him.  Although Donaldson went on to become Master of the Rolls, his career and reputation were probably damaged by the allegations made against him. The failure of our Lord Chancellor Liz Truss MP  to defend the judiciary from the press accusations of bias is unfortunate, but it is far less significant than the criticism of the judiciary of that era.

Crime

We started the year with a straightforward explanation of why the accuser in a rape case is granted anonymity, whilst the accused is not. I also defended well-intentioned but deeply foolish attempts to restrict the evidence an accused may rely upon to defend himself here.

More interesting is the discussion of the law on assisting crime, properly and radically changed by the Supreme Court in Jogee. The source of all confusion, which persists today, is to fail to understand that section 8 of the Accessories and Abettors Act 1861 means what it says. The accessory is convicted of the principal offence. Once that is grasped, it should also be understood that the level of culpability for the accessory should not differ from that of the principal, and may vary between offences. The judges have still not got there.

Human Rights

I am a supporter of our current human rights settlement, but a frustrated critic of the intellectual laziness of some of its defenders. Re-reading this piece on the British Institute of Human Rights, I have been too harsh. The privilege of anonymity means I should not be rude, something I shall seek to remember in the new year.

Stare decisis

Law can give rise to some very pleasing intellectual puzzles. One of my favourites is the doctrine of precedent. You can now read the decision of the Supreme Court to which that post related: the important part is paragraph 21. That paragraph amounts to a direction from the Supreme Court that the obiter dicta of the Privy Council on points of English law should be treated as binding by the courts of England and Wales. This paragraph is itself necessarily obiter dicta (as indeed is all of that judgment: the only case anywhere of which I am aware of where that is true). It will be open to the English Court of Appeal to treat that statement as binding upon it, but until it does so in forming part of the ratio of a decided case it is not (yet) the law.

Privacy

Privacy is a latecomer to the list of rights recognised at common law. I am concerned that the law has now gone too far. I can well understand that publishing information about Naomi Campbell’s attendance of a drug rehabilitation clinic was wrongful, although true. If this information is published Ms Campbell would be deterred from living her life as she would choose. It does not seem good enough to expect her to toughen up, as the law once did. However, where information about someone is already in the public domain (is there anyone who does not know who the litigant before the Supreme Court in PJS v News Group Newspapers is?) any injunction is being granted to prevent humiliation and upset, not the disclosure of privare information. Alongside the dissentient in that case (Lord Toulson), I doubt whether such misery is sufficient to justify the law’s intervention. See here, here and here

What I got wrong?

The most popular (by hits) post of the year was this on whether Article 50 will ever be invoked. My conclusion was “there are good reasons for thinking that no acceptable deal will ever be struck, and no responsible government should invoke Article 50.” Whether either of those propositions will be disproved by the current government invoking Article 50 in March of 2017 is a matter I leave to you.

Leaving the EU and the Convention on Human Rights

Theresa May suggested during the referendum campaign that she supported withdrawal from the European Convention on Human Rights. The immediate prospect of this has receded, the government is busy enough with Brexit, but how this would be done, and the difference from Brexit, is another way of showing why the High Court got the Article 50 decision wrong.

Article 58 of the Convention provides

Denunciation

1. A High Contracting Party may denounce the present Convention only after the expiry of five years from the date on which it became a party to it and after six months’ notice contained in a notification addressed to the Secretary General of the Council of Europe, who shall inform the other High Contracting Parties

Only one state, Greece under the generals in 1969, has ever invoked this provision. The relevant actor for the UK in international law is, as for all states, its government. If the UK government gave such notice, six months later the Convention would cease to apply to the United Kingdom in relation to subsequent acts and we would no longer be within the jurisdiction of the court.

 

What would be the impact in UK domestic law if that were all that were done?

 

Nothing.

 

The Human Rights Act

The Human Rights Act requires UK courts to seek to interpret legislation in a way that s compatible with Convention rights, and makes it unlawful for public bodies to act in a way that is incompatible with them. The relevant rights are set out in Schedule 1 of that Act. The UK’s withdrawal from the Convention would have no impact upon this. The Convention binds signatory states in international law. The rights we have as individuals as a matter of UK domestic law are not contingent upon their continued existence. The Human Rights Act and all the rights incorporated by it  continue to apply until it is repealed. The government cannot, through its prerogative action, overturn our statutory rights. Nowhere in the Human Rights Act is it stated that the applicable rights are dependent upon the UK’s continued accession to the European Convention.

 

If the Human Rights Act were repealed, while the UK remained a signatory to the Convention, the UK would subsequently be found repeatedly in violation of Article 13 (“right to an effective remedy”). The reason that Article is not included in Schedule 1 is that the Human Rights Act itself is what ensures that the UK has an effective remedy for Convention violations before its domestic courts.

 

The European Communities Act

The European Communities Act is quite different. It does not set out what the rights that are created under EU law that are given force are. Rather it incorporates them by reference, and they change (“from time to time”). If therefore EU law ceases to apply to the United Kingdom it ceases to be incorporated by the European Communities Act.

 

The reason why notice under Article 50, and the expiry of 2 years, operates to terminate EU law as incorporated into UK law is because that is what the European Communities Act says. The prerogative is not being used to repeal any statutory rights. There would be no need to repeal the European Communities Act at all.

 

If the European Communities Act were repealed, without notice under Article 50 being given, this would place the UK in violation of international  law: it would have broken what is now the Treaty of the European Union.

 

Fortunately, nobody rational now seems to be suggesting that as a way forward.

The Daily Mail and the Rule of Law

“The People’s Will Trumps the Rule of Law” is the cry of the fascist. The frontpages of much of today’s British press are a disgrace. That the three serious, dull, middle aged men who decided yesterday’s Brexit decision should be branded “Enemies of the People” by the Daily Mail would be laughable, if the damage to our polity were not so lamentable.

Legal Formalism

What is the kind of reasoning that a judge must use in order to decide a case of great political importance, such as the Article 50 case? The substantive issue was whether it would be better if Parliament had a vote before Article 50 was invoked, and the UK’s departure from the EU became inevitable. On that political question, I think the case for a vote is strong. The referendum was merely advisory. We live in a representative democracy. Decisions of such importance should not be taken by the government alone. I am also I find, somewhat to my surprise, a passionate Remainer. I hope that every opportunity for the issue to be debated and reviewed is explored

The argument I have repeatedly given as to why the government can invoke Article 50 without Parliamentary approval is not of that kind.  It is about the technical interaction of international and domestic law, and the words of section 2 of the European Communities Act. It is, frankly, a bit boring.

One argument against it is that it is formalistic (see here, here and here). Surely, so the thought goes, the judges should base their decision on whether a Parliamentary vote would be a good or bad thing in substance, and not on the dry words and their meaning.

Owen Dixon

I am English, but one of my legal heroes is the great Australian judge Owen Dixon. On taking his oath of office as Chief Justice of the High Court in 1952, Dixon addressed the question of how he, an unelected judge, had the legitimacy to decide the issues of enormous constitutional political importance that commonly arose in the (relatively) young new federal society of Australia. Dixon said

Close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Dixon was right.

That the government lost the Article 50 case is readily explicable based upon how it was its own lawyers presented its case. I think the result is wrong, but it is not wrong because a group of judicial revolutionaries have abrogated power to themselves.

We are governed by rules, not by men.

How the Government Lost

Today the High Court handed down judgment in the Article 50 litigation, and the court held that the government does not have the prerogative power to give notice under Article 50 of the Treaty of the European Union. Legislation to do so would therefore be required.

I am as certain today as I was back in June that this decision is incorrect. The purpose of this post is to explain how the government managed to lose a case it should have won.

How the case was argued

The government argued, rightly, that the entering into and withdrawal from treaties are acts performed by the government under its prerogative powers.  Prerogative powers may be removed by legislation, but no words in the European Communities Act 1972 or elsewhere did so. As a result, such powers continued and the government could invoke Article 50 without more ado.

[That this was, startlingly, the argument as put, see paragraph 80 of the judgment, Part II and III of the government’s skeleton argument, and the oral argument at various points (eg pp 88).]

The claimants argued that a large number of rights created by United Kingdom statutes, principally the European Communities Act 1972, would be abrogated if the United Kingdom withdrew from the European Union. It is a fundamental principle of our constitution that rights created by Parliament cannot be taken away by the government. Necessarily therefore, the unfettered exercise of prerogative power could not operate without prior legislative approval. The usual unfettered exercise of such prerogative power could no longer obtain.

As presented, the case is easy and obvious: the government loses. The idea that the government possesses the power to abrogate our rights, unless there is an express statutory provision taking away its power to do so, is absurd.

How the case should have been argued

In order to understand the law it is necessary to understand that there are two bodies of law in play. One is the domestic law of the United Kingdom. The other is international law which binds states. EU law, as such, is of the latter kind. It arises by virtue of agreement between the Member States. Such law is given effect into United Kingdom law by s2(1) of the European Communities Act 1972.

So, it is a necessary condition of any such rights within UK domestic law that they exist under EU law. The rights we have under EU law vary overtime. These changes do not require fresh legislation but are given effect by s 2(1) (“from time to time”). The European Communities Act differs from other legislation in that EU law that is incorporated under it overrides any domestic law with which it is in conflict.

Article 50 is part of EU law. All of EU law as it applies to the UK is contingent on Article 50 not being invoked by the UK and the expiry of a two year period. This in turn means that all of EU law as incorporated into UK domestic law is similarly contingent. (Lawyers describe these conditions as being “conditions subsequent”: they cease to apply upon the happening of a future event.)

Once Art 50 is invoked, and two years expire, EU law ceases to apply to the United Kingdom at the international level. The only possible party that could give such notice is the government. It is the only actor in international law. At a domestic law level such rights etc cease to apply because of the European Communities Act. The exercise of the prerogative does not overturn or abrogate the rights created by the European Communities Act. Rather the Act itself states that these rights cease to apply.

The occurrence of a condition bringing a right to an end is not the same as overruling that right.

The Appeal

If the case is properly argued, the government should win any appeal to the Supreme Court. It is astonishing that they have failed to do so so far. (The correct argument is just about discernible in the skeleton, at around paragraphs 36-37.)

One reason I like my anonymity online is that it means that any arguments I make only have the force they themselves have, rather than the authority of who I am (or am not). However, if titles are more impressive than legal arguments I would suggest reading the arguments of Mark Elliott (Professor of Public Law, University of Cambridge), Paul Craig   (Professor of English Law, University of Oxford) and (especially clear) Professor John Finnis , all of whom at greater length make exactly the same argument as I do above.

Human Rights and Rape

Admiral Byng was a royal navy officer who failed to relieve a besieged British garrison in Minorca during the Seven Years War. As a result, he was sentenced to death and shot by firing squad. In Candide, Voltaire satirised the justification for the execution of the almost certainly blameless Byng on the basis that “it is good to kill an admiral from time to time, pour encourager les autres.”

The point of this story is that it is immoral for the state to use individuals as a means to an end, even if that end, the defeat of the French, is a good one. If human rights mean anything at all, it is that. This is so even if the good end one seeks is itself more justice in the world.

Legislators, from wherever on the political spectrum, tend to have a different perspective from judges in this regard. A legislator tends to think in terms of the common good. They are concerned with how things will turn out best overall. A judge, by contrast, tends to be concerned to ensure justice for the individual(s) before her. As Admiral Byng demonstrated, these perspectives may be in tension one with another. The frustrations in government of both left and right with the constraints of the Human Rights Act comes from the same source.

Ched Evans

The acquittal of the footballer Ched Evans at his retrial for rape has proven controversial, with some claiming that it sets a dangerous new precedent in cases of sexual violence. The case is  insightfully discussed by legal bloggers here and here, and those unfamiliar with the circumstances of the case are advised to start there.

The result has been a letter to the Attorney General by a number of Labour MPs seeking to change the law. Here I wish to explain why their proposals are misguided.

Sub-section 41(1) of the Youth Justice and Criminal Evidence Act 1999 provides.

If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a)no evidence may be adduced, and

(b)no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

The purpose of this section was to restrict the evidence going to the jury because of the persistent myths that “unchaste women are more likely to consent to intercourse, and are less worthy of belief.”

 The section does allow of some narrow exceptions, importantly for our purposes sub-section 41(3)(c), where

it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar

(i)to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

(ii)to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,

that the similarity cannot reasonably be explained as a coincidence.

But such evidence is not to be adduced to impugn the credibility of the complainant as a witness.

On its face this provision does not permit the admission of evidence of a prolonged period of cohabitation between complainant and accused for years beforehand (“at or about the same time”). If the natural reading of the words were given effect, they would have the effect of violating the defendant’s right to a fair trial under the Human Rights Act. When the issue of this conflict came before the Judicial Committee of the House of Lords (the forerunner to our current Supreme Court) Lord Steyn stated that whilst section 41

pursued desirable goals, the methods adopted amounted to legislative overkill.

The court took the “bold” step of reading section 41 as compatible with the Human Rights Convention by inserting an ” implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible.” (As an aside, I do not think this was a “reading” of the legislation that was permissible within the possible range of meanings of the words in the Act. What the judges have in fact done is re-written the Youth Justice and Criminal Evidence Act and made it subordinate to the earlier Human Rights Act. The court should instead have made a declaration of incompatibility.)

In the Ched Evans case, two witnesses came forward each of whom said they had had sex with the complainant in circumstances similar to those Evans had described to the police when interviewed in 2011.  This, the defence said, was relevant to whether she in fact consented on this occasion. The difficulty arises in relation to the meaning of “similar behaviour”. All that the section requires is that it “go beyond the realm of what could reasonably be explained as a coincidence.” It does not need to be unusual, rare or bizarre. It is a question of judgement whether the evidence on this occasion was sufficient, and the circumstances of its being obtained sufficiently trustworthy, so as to be of probative value. That is a matter for the finder of fact: the jury.

Intentions of Parliament

In their letter proposing a change to the law, the MPs argue that the Court of Appeal have failed to give effect to the intentions of Parliament. It is stated that only evidence that was “unusual or bizarre” was ever intended to be admissible. In support of this claim a statement by Lord Williams of Mostyn, then the Attorney General, in Parliament in promoting the Bill is relied upon, where he said the section

“might include something….so unusual that the jury should know that the complainant had consented in strikingly similar situations in the past.”

Is what Lord Williams said in 1999 relevant, as is claimed?

Nowadays, we do sometimes allow statements of minsters to be admitted for purposes of construing a statute under the rule in Pepper v Hart. It is very important to understand the limited role such evidence has. What we are concerned to discover is the meaning of the words of the Act. The subjective intentions of those Parliamentarians enacting the Act are neither here nor there. We don’t care what Lord Williams himself thought the words meant. We are concerned with what they mean. The meaning of words is however always determined by its context. “Warning! Duck!” may mean that you need to lower your head on a ship, or alert to avian aggression in a bird sanctuary: it depends on the context. In legislation, part of that context includes the words of ministers in promoting a Bill.

Is Lord Williams’ statement enough to add in a “bizarre or unusual” limitation to the words where they do not appear, as is claimed? Clearly not. He merely gave this as a non-exhaustive example of what the words covered, and nothing he said sheds such startling new light on the context of the words so as to alter their natural meaning.

Should the law be changed?

Should we change the law so as to only permit “bizarre or unusual” evidence? If this were done, the law of evidence would clearly violate the Human Rights Act. After all, long term sexual relationships are (now) admissible under s 41(1)(c)(ii) and these are hardly “bizarre or unusual.”

Over several decades successive governments have changed our rules of evidence, for example relating to hearsay or bad character, in a way that favours the prosecution. We now tend to favour allowing the jury to make up their own minds. Here the argument goes the other way.

Parliamentarians tend to be interested in justice in the aggregate, in particular securing more convictions of criminals. So, we are told that “Parliament must send a clear message to victims of sexual violence that no matter their history or background the law in the UK (sic) is there to protect them from harm.”(The criminal law is a devolved matter.) No doubt it should, but it should not do so in a way that would violate the rights of the accused to a fair trial. Politics of both left and right is still unfortunately dominated by a Benthamite utilitarian calculus, with the dispute being about how the ledger on either side is to be calculated. The individual being used disappears from view.

We can think of hypotheticals where we may be prepared to sacrifice the rights of an individual for a much larger greater good (the death of an innocent to save the world). However the case for doing so must be supported by clear and overwhelming evidence, which here is missing. We should be sceptical of those who suggest change only after the result of a trial they dislike, and not after the decision several months earlier of the Court of Appeal as to the admissibility of evidence. Scaremongering as to the ease of use of this evidence is, at a minimum, counter-productive.

Ched Evans is not a very appealing character, but human rights are not just for the virtuous.

Why “Turing’s Law” is Wrong

The government has announced that thousands of gay and bisexual men who were convicted under laws criminalising homosexual acts are to be pardoned.

 

This is wrong, indeed offensive.

 

To pardon  someone is to forgive a wrong. So, a monarch may pardon a criminal, relieving them from sanction. If we “forgive those who trespass against us” we relieve another from the wrong they have committed. There may be good reasons for doing so, but we can only pardon if there is a wrong to forgive. A necessary implication of “I pardon you” is to implicitly say that a wrong has been suffered.

 

The laws in place in the United Kingdom criminalising homosexual acts were wrong and barbaric. Such consensual acts between people of the same sex wronged nobody. There were no good public policy reasons for criminalising their actions. Those who were convicted were themselves the victims of a wrong. There is nothing for the state to forgive or pardon, indeed to say that there is is to (literally) add insult to injury.

 

How then should the government respond to this past injustice?

 

What it should do is retrospectively decriminalise these offences.  In England, consensual homosexual acts between men were only decriminalised in 1967 (shockingly, it remained criminal in Scotland until 1980, and in Northern Ireland until 1982). This legislation was prospective only. Such behaviour after the legislation was passed ceased to constitute a crime. What the legislature should now do is retrospectively repeal what should never have been criminal at all.
Why does the government not wish to do that? Because if it did so, those who were wrongfully treated would have a claim from the date of repeal for their wrongful treatment (time would only start to run against them from the moment of repeal, as that would be the first time they could sue for their wrongful imprisonment and other forms of mistreatment). If the view is taken that compensation should not be payable, because too much time has now passed, that should be incorporated into any Act retrospectively repealing these offences.

 

But a pardon, by the UK government? The only people who have the capacity to forgive are the victims of this injustice: the men wrongfully convicted.

 

 

 

Reversing Article 50

Once the UK gives notice under Article 50 to withdraw from the European Union, can it unilaterally withdraw such notice or is it locked into inevitable Brexit? Article 50 (1-3) states

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

A natural interpretation of those words indicates that once notification is given, Brexit is inevitable and the Member State cannot unilaterally withdraw its notification. Four reasons may be given. First, and most importantly. the words of the provision make no mention of the Member State having any such power of withdrawal. Second, the provision does allow for a delay in execution, but requires unanimous agreement of Member States to do so. This may be read as excluding both  the stopping of execution, and a  Member State having the unilateral power of choice. Third, as the institutions of the European Union, and other Member States, will have begun the process of adjusting to such withdrawal, such a unilateral power in the Member State may be thought unfair. The clear tenor of Article 50 is to give the balance of power to the Union, and not the withdrawing Member State. Fourth, the alternative interpretation leads to ridiculous results. Could a member state give notification, withdraw it one day before the expiry of the two year limit, and re-start the entire process on the following day?

The final word on the meaning of EU law is that of the Court of Justice of the European Union. It has been known to take what our civilian friends call a “teleological” approach to interpretation. Politely this means that it will take a purposive approach and may sometimes depart from the plain meaning of words. Impolitely, it sometimes cheats. If it were faced with the question of maintaining the integrity of a the Union if a repentant UK somewhat improbably sought to withdraw its notification, it is not impossible that it could read the words in a way to permit it to do so. Donald Tusk has suggested that that is indeed the position.

(For different views, that don’t seem to me to focus on the words of Article 50, see Auriel Sari and Professor Paul Craig  (page 35 of latter’s paper).)

One point to note about the above is the dissonance between the law and predicting what the CJEU will do. My firm view, despite the eminence of those I disagree with, is that the words of Article 50, and hence the law itself, are quite clear. The uncertainty concerns whether the CJEU will depart from the meaning of the words. Oliver Wendell Holmes In The Path of Law has been read, perhaps unfairly, as advocating the prediction theory of law: law is just our prediction of what the judges will decide. I, by contrast, consider the law, and our predictions as to what judges will do, to be different questions. The law is clear, what the judges may in the end do is not.

Do we currently care? 

Jolyon Maugham QC, who is fast becoming our most important informed commentator on tax matters, is also a passionate Remainer (as, somewhat to my surprise, I have discovered that I am). Currently before the courts is litigation concerning whether the government can give notice of withdrawal under Article 50 without Parliamentary approval. He argues that it is possible that this could turn upon the reversibility of such notification. This is important because if it does, a reference to the Court of Justice will be necessary to authoritatively determine this question.

The Court of Justice has many qualities. Swiftness is not among them. If such a referral were made it could take many months to obtain a ruling, delaying the giving of notice and postponing Brexit. Who knows whether, as the main opposition to Brexit comes from the irresistible economic gravity of the market, this could provide room for a change of course?

For good or ill, this seems very unlikely. It will be recalled that the claimant’s argument is that the government cannot give notice without Parliament as to do so would be to overturn various statutory rights. Can the correctness of this argument turn upon the reversibility of notice?

If, as the government claims, no statutory rights are overturned by the Article 50 process, then the issue of reversibility is irrelevant. As nothing is affected, it doesn’t matter. It is for this reason, I would suggest, that the government has not address the issue of reversibility. It cannot arise as a question if they are right.

If statutory rights would be overturned by Brexit, does this mean that the reversibility of notice becomes a live issue? As any notice would, inevitably, be given by the government, its ability to reverse this decision would still leave the choice whether to overturn such statutory rights in its power. If the claimant’s argument is correct then we would still require statutory authorisation even if the government could reverse itself. Reversibility cannot alter the answer.

So, reversibility cannot be determinative, and so no referral to the Court of Justice is required.

More Brexit in the Courts

 

“Just so I follow, are you saying then, that if on 2 January 1973 the government had changed its mind about the desirability of the EC treaties and their full scope in that time and sought to go and negotiate with the other member states and said well, let’s remove the right of establishment from the treaties, and they might say yes, and that would modify what the EC obligations were; that the government would in fact by reason of section 2 of the European communities act have been disbarred from seeking to exercise the prerogative in that way, ie by approaching other states to see if this he would agree to a change in the treatise because it would be such a fundamental change within domestic law”

-Sales LJ to Lord Pannick in argument

“I am troubled by this, Lord Pannick”

-Thomas LCJ to Lord Pannick in argument

It is sometimes foolish to read too much into the reaction of the bench to the submissions of counsel. Many lawyers will have stories of cases where they are convinced that the judge is for (or against) them, only to have the decision handed down give the opposite result.

However, the above exchange (at pp 108-) towards the end of Lord Pannick’s submissions in the Article 50 Brexit litigation on my reading indicates that the government is going to win.

As will be recalled, section 2 of the European Communites Act incorporates into UK domestic law all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”. The point of Sales LJ’s question is what happens if some of those rights are eliminated under EU law by agreement between member states. Does that require further legislation to be given effect?

The answer is clearly no.

So what if those rights etc were reduced to almost nothing (leaving, say, just a directive on banana curvature in force)?

Again the answer is no fresh legislation is required.

And is it any different if those rights etc are reduced to nothing, as would be the result of the government invoking article 50, which is itself part of EU law?

No.