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.
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.
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.
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.
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 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.