“written constitutions do not happen by accident”

“written constitutions do not happen by accident”

Adam Tomkins – Public Law

Alongside its “inescapably political” nature (Adam Tomkins), the contours of our ‘constitution’, and hence its abiding ‘regimes’ of Administrative and Public Law, have always been highly ‘contested’ (Mark Elliott), and nowhere is that aspect of our legal/political life more apparent than when we focus on the ‘codification’ debate.

From Montesquieu and Voltaire, through Bagehot to the the fictitious Mr. Podsnap our ‘supposed’ constitution has hitherto (or so the British would want to believe) attracted a great deal of admiration but with recent (post June 23 2016) events at the forefront of all commentators minds, it would not be stretching the point to say that said ‘admiration’ has been/is being tested if not shadowed by as Dicey put it that “dark saying” of De Tocqueville . [A ‘supposed-ness’ that “forced from De Tocqueville, in a moment of irritation, the impatient aphorism that there is no constitution in England: “elle n’existe point”].

With a constitution cobbled together by what Sidney Low (The Governance of England 1908) once called ‘tacit understandings’, the question on everyone’s lips has to be what happens (to paraphrase Low) when “those understandings are no longer understood”.

‘Constitutional reform’ is once again very much in vogue and as such it is inevitable that the very question this essay poses is once more centre stage.

It is not a new question and as with all lego-political conundrums it is arguable from both sides; “deservingness cannot be determined a priori” to quote Dominic Grieve.

“Unnecessary and unjustifiable” on the one hand; “long overdue” (in the name of ‘certainty’) on the other; with both sides (most likely) acknowledging the need for reform, yet it would seem disagreeing fundamentally as to how that change is to be secured.

Vernon Bogdanor has long argued that the case for ‘codification’ is an intellectually strong one (mainly focussing on certainty) but nonetheless it still involves negotiating, and more importantly ‘justifying’ negotiating, Hume’s (is-ought) guillotine; whilst others (Low and Tomkins) amongst them have suggested that in fact the differences between written (codified) and unwritten (un-codified) constitutions is much exaggerated, an argument that may give weight to the ‘business as usual’ (as opposed to ‘radical reform’ argument). But why if Tomkins is correct would the decision to ‘codify’ (as put forward by Gordon Brown PM in his Governance of Britain 2007 Green Paper) be any more ‘radical’ than simply effecting those changes through the more familiar (to the British) process of ‘incremental change’.

Bogdanor once again has the (or at least an) answer; captured in his pithy aphorism: “what the Queen in Parliament enacts is law”.

At the core of the British constitution is the notion of Parliamentary sovereignty; and this in and of itself is in tension with any ‘project’ that may be advanced to ‘codify’ what he once called our ‘indistinct, indeterminate, and unentrenched’ constitution; regardless of the type of codification (be it a ‘lawyers’ constitution’ as per India or a ‘peoples’ constitution as per USA) adopted.

Different from Bentham’s fears of ‘ancestor worship’ (inevitable to a degree) this is not exactly a small detail. A codified constitution by its very nature, to a degree supplants Parliamentary sovereignty (witness the very different roles of the 1689 Bill of Rights (essentially asserting the rights of Parliament against the king) and its American equivalent). And if Miller/Santos [2016] is anything to go by (with both sides attempting to make use of Parliamentary sovereignty to buttress their Article 50 claims) it is less than clear that the time has arrived where such a radical departure from our constitutional tradition has yet arrived; in spite of the turmoil that has ensued following the unexpected referendum outcome.

This shifts the paradigm.

So much has been made of the ‘constitutional moment’; that quintessential game changing set of events (be it war/revolution/independence) that sets the scene for seismic constitutional reform, but much less analysis has been given to the nature of the impetus, the ‘constitutional momentum’ if you will.

Bogdanor has written extensively about the post-1997 constitutional ‘reforms’ (of which he lists 15 in his 2007 paper “Should Britain have a written constitution”), the constitutional independence of the Bank of England, the rise in the salience of referendums, devolution, electoral reform, the Human Rights Act 1998, the Freedom of Information Act 2000, the Constitutional Reform Act 2005 to name just a few; and just prior to the 2015 election he wrote of the “concatenation” of a whole variety of unresolved questions the constitution faces (the English Question/Asymmetrical Devolution/Crisis of Representation) wondering whether a game-changing ‘constitutional moment’ had or had not arrived. Well factor in Brexit and the threat of ‘indyref2’ and surely there has to be enough.

But there’s the rub.

The riposte may well be couched in terms of ‘unnecessary and unjustifiable’ but the key question will (as in all areas where law and politics interface) be, is there adequate political will; enough ‘constitutional momentum’ so to speak.

This takes as back to Gordon Brown. He was an undoubtedly a great thinker and few can doubt Bogdanor’s credentials in this area; but Brown was not a Margaret Thatcher or a Tony Blair. And in this Bogdanor is yet again very near the truth. To effect these kind of changes political will is just not enough any more (if it ever was). You need political ability. Specifically the ability and foresight to not only see the advantages that a codified constitution would bring but the capability of mobilising the ‘populus’ as you attempt to align constitutional ‘form’ with political ‘force’.

It was exactly what Cameron failed to do with regard to Brexit; as he clamoured to play a party political ‘card’ (appeasing the Eurosceptics) at the same time as (unsuccessfully) persuading the nation to vote Remain; never once seeming to connect his endless anti-Strasbourg rhetoric (prisoners’ votes etc.) with the rising pre-Brexit tide.

A constitutional ‘moment’ has certainly materialised but whether it will be enough to tip the balance in favour of a coded constitution remains to be seen. I am rather doubtful.

Parallels have been drawn with the 1830s (which spawned the Great Reform Act) and the first decade of the 1900s (which yielded the Parliament Act 1911). Well we have Theresa May’s Great Repeal Bill to look forward to, and it may be all that we can expect (even deserve) at this stage. If Scotland does finally secede and perhaps even Ireland reunite, it is not inconceivable that then, but only then, in the spirit of ‘damage limitation’ that Gordon Brown’s Charter 88 idea of `not just tidying up our constitution but transforming it’ will finally be taken seriously.

As John Locke established (Two Treatises of Government), though it may be in large part illusory we have an emotional stake in our constitutions, Bolingbroke articulated this in terms of constitutions having ‘values’, ‘goals’ as Tomkins puts it; at least for the time being the British remain attached to the ‘comfort blanket’ of Parliamentary sovereignty. As and (only) when the connection between this essentially anti-constitutional notion, and the escalating executive hegemony the last two decades has witnessed is made, may adequate constitutional ‘momentum’ be found to effect a change that in terms of constitutional ‘certainty’ and true popular democracy is long overdue.

“but for your fault…”

“Although, therefore, mesothelioma claims must now be considered from the defendant’s standpoint a lost cause, there is to my mind a lesson to be learned from losing it: the law tampers with the ‘but for’ test of causation at its peril.”

“But for your fault, it would not have happened” is the characteristically to-the-point way that Lord Denning first articulated the ‘but for’ rule of ‘factual’ causation in Cork v Kirby MacLean [1952]. It’s wide-scale adoption, both across criminal and tort law would suggest that in spite of its rather awkward ‘counterfactual’ construction (on this see: Richard Epstein – A Theory of Strict Liability) at the very least, it has a practical application, and captures something of the everyday way in which we construct notions of ‘causation’ and ultimately ‘culpability’ in our lives. But factual matrices are complex, and at times, this perhaps over simplistic paradigm, constructed as it is on ‘necessity’ rather than ‘sufficiency’ (on this see Allen Beever – Rediscovering the Law of Negligence), has threatened to disrupt ‘normative’ notions of ‘fairness’. And so, in what has been essentially a ‘three-stage process’ (as Lord Brown outlines in Sienkiewicz v Greif (UK) Ltd [2011]) in certain, though carefully prescribed scenarios, the courts have been willing to countenance other ways to conceptualise ‘causation’, and so ultimately apportion liability. This ‘departure’ from ‘but for’ causation has met with mixed responses both academically and judicially which is the subject of this essay.

As Lord Hoffmann established in Gregg v Scott [2005], the world, at least in legal terms, is bound by the laws of causality. “Everything ha[s] a determinate cause, even if that cause [is] unknown”; but as Spencer v Wincanton Holdings [2010] clarifies, the law has needed to draw a line under potentially infinite chains of causation, when ultimately it would be “unfair to let it continue”. Historically it has used ‘but for’ causation (coupled with the civilian ‘balance of probabilities’ standard) as one means to achieve that end.

Within even Epstein’s simplest example of tortious causation: ‘A caused B harm’, there is some room for ‘speculation’. Would the patient in Barnett v Chelsea and Kensington Hospital Management Committee [1969] definitely have died if the negligent doctor had in fact attended, could a ‘competent rescuer’ have changed the outcome in the Ogopogo [1971]. Both claimants (McWilliams v Sir William Arrol [1962]/Chester v Afshar [2004]) and defendants (Bolitho v City and Hackney HA [1998]) may behave unpredictably.

But as soon as we start to consider ‘multiple defendants’ (Cook v Lewis & Akenhead [1952]), ‘consecutive causes of the same damage’ (Baker v Willoughby [1970]/Jobling v Associated Dairies [1982]) and ‘damages for loss of a chance’ (Hotson v East Berkshire

Health Authority [1987]/Gregg v Scott [2005]) things start to become much more complex.

But even here the courts have tended to favour ‘certainty’, as they have attempted to weigh up ‘just how certain can we be’ against a required ‘burden of proof’. In most instances the civil ‘balance of probabilities’ sufficed, with the doctrine of ‘novus actus interveniens’ proving adequately ‘robust’ to balance out absurdity and justice (McKew v Holland & Hannen & Cubitts [1969]/Wieland v Cyril Lord Carpets [1969]). Though it too was sorely tested at times (Reeves v Commissioner of Police of the Metropolis [2000]/Corr v IBC Vehicles [2008]).

Malignant Mesothelioma has proven to be the straw that broke the camel’s back:

Itself a condition of inordinately complex ‘pathogenesis’ (on this see: Fairchild v Glenhaven Funerals Services [2002]), it was almost inevitable, that as its connection with certain kinds of asbestos exposure were unravelled, it would impact the way in which the courts considered ‘causation’, and consequently allocated liability for damages.

The story predates Fairchild [2002] and we can see at least two ‘departures from’ perhaps better consider ‘modifications to’ the ‘but for’ test:

A. The ‘material contribution to the harm’ modification

A ‘material contribution to the harm’ as developed in Bonnington Castings Ltd v Wardlaw [1956] was a first step in the direction of current day practice, when classic ‘but for’ causality could not be used to provide Mr. Wardlaw with ‘justice’; there being a fundamental uncertainty as to whether his pneumoconiosis (as an ‘accumulative’ condition) had been caused by ‘tortious’ or ‘non-tortious’ dust exposure.

B. The ‘material increase in risk’ modification

These uncertainties were to become even greater in McGhee v National Coal Board [1973], where much as in mesothelioma, just how dermatitis came about had not been definitively established; and in what can be seen as essentially a ‘benefit of the doubt’ exercise, the court established that it was ‘sufficient’ for a plaintiff to show that the defendant’s breach of duty made the ‘risk of injury’ more ‘probable’ even though it was ‘uncertain whether it was

the actual cause’. McGhee was however distinguished in Wilsher v Essex Area Health

Authority [1988] where the ‘multifactorial’ nature of causation regarding ‘retinopathy of prematurity’ was used to negate ultimate liability.

Thereafter, Lord Brown’s three-stage process (as outlined in Sienkiewicz [2011]) proceeds as follows:

• Fairchild v Glenhaven Funerals Services [2002] • Barker v Corus UK Ltd [2006]
• Compensation Act 2006 (section 3)

Fairchild v Glenhaven Funeral Services [2002] represented a trio of appeals to the House of Lords, and resulted in a lengthy and complex judgment. With three complainants and a series of successive potential tortfeasor employers, the court wrestled to provide a coherent rationale to their decision, in particular regarding awards. Ultimately, the court followed the McGhee ‘approach’ (though as had been discussed in Wilsher v Essex Area Health Authority [1988] the case lacked a clear ratio) of a ‘material increase in risk’, and allocated liability between the employers according to ‘joint and several’ liability.

C . Fairchild/Barker exception + Compensation Act 2006 – a true ‘departure’

Just four years later in Barker v Corus UK [2006] this would be overturned, to much consternation both academic and from concerned parties, with a return to ‘several’ liability. The condition’s peculiar pathogenesis meaning that in many instances, chasing down potential but often long gone ‘tortfeasors’ proved to be a fruitless task.

So soon after, Parliament intervened and (as Lord Brown explained) Section 3 of the Compensation Act 2006 was enacted, in what might be considered a true ‘departure’ from the ‘but for test, with the “sole effect [being] to reverse the House’s decision in Barker’s case on the issue of quantum”; resulting (when coupled with the Fairchild/Barker ‘principle’) in what Lord Phillips has called ‘draconian consequences’. As Lord Brown affirmed mesothelioma claims must now be considered from the defendant’s standpoint a lost cause.

We are left to answer the all important question has this all been for the good, which was certainly the chorus after the initial Fairchild judgment, in the light of the devastating consequences of this, at the time, poorly understood condition; or is the current situation, as Lord Brown suggests entirely unsatisfactory?

But in fact this question elides three separate conundrums:

  1. the relative worth of the ‘but for’ test
  2. does ‘justice’ at times require its modification

iii. how should sufferers of ‘indivisible’ conditions such as dermatitis/mesothelioma be

compensated

The ‘test’ has been heavily academically criticised; with its potential for ‘absurdity’ (see: Richard Epstein – A Theory of Strict Liability), and Allan Beever arguing that it has little place in ‘overdetermined’ conditions such as mesothelioma. Alternative models (such as Stapleton’s targeted ‘but for’ test and Richard Wright’s NESS test) do exist, but the common law is slow to incorporate ideas that are not its own ‘offspring’, and Lord Brown’s defence of ‘but for’ causality resides in the “clarity, consistency and certainty in its application”. A closer reading of his judgment, reveals that his principal concern is in fact damage allocation (‘aliquot’ as opposed to ‘in solidum’), and how “quixotic the path by which [the current day position] has been arrived at”.

One senses he feels that Section 3 Compensation Act 2006 has robbed the common law of some of its flexibility and nuance, and he is consequently ‘obliged’ to decide the case in a way that goes against his better judgement. Citing that both Bonnington Castings and Fairchild, in fact did not consider ‘apportionment’ he goes on to suggest that on the facts, Greif’s liability (prior to the 2006 Act) would not have been held to be absolute. Fairchild already represented a ‘rock of uncertainty’ and the law would not benefit from any further ‘anomalies in the system’ (Lord Brown having in mind the “supposedly critical distinction between so-called ‘single agent’ and ‘multiple agent’ cases”).

However justice, just as it requires “clarity, consistency and certainty” does require a modicum of flexibility. Epstein has the ‘luxury’ if you will of being able to criticise the ‘but for’ test, in the ‘certain’ knowledge he achieves his ‘certainty’ through strict liability. Whilst it is worth remembering that at the other end of the doctrinal spectrum (tortious negligence) Cork v Kirby MacLean [1952] though known for the birth of the ‘but for test’,

was also every bit a case concerning ‘remoteness’ and the ‘fairness’ of damages allocation in the light of the Law Reform (Contributory Negligence) Act, 1945.

Shifting a causal paradigm from a ‘balance of probabilities’ to a ‘might have caused’ is no small thing; and the Fairchild ‘exception’ has recently (in Heneghan v Manchester Dry Docks Ltd [2016]) been extended to cover ‘asbestos induced’ pulmonary carcinomas. But there is a danger that in the form of Section 3 Compensation Act 2006, Parliament has gone that little bit too far, robbing the common law of some of its nuance (say in the form of Lord Bingham’s 6 carefully crafted Fairchild criteria), that also afforded defendant employers a certain degree of necessary protection.

Wherever this debate ends, and it appears to be very far from over, there can be little doubt that mesothelioma (and the hugely raised awareness in relation to the condition) has impacted the judiciary’s thinking in relation to causality just as much as it has blighted the lives of those who were, or indeed are, unfortunate enough to have been exposed to its horrors. However it is approached there are no easy answers. At one end of the equation we have the victims and/or relatives of a devastating, relentlessly fatal condition possibly ‘caused’ many years before; at the other employers facing almost certain liability, following anything more than a minimal degree of negligent exposure to asbestos fibres. But it is arguable that in terms of judicial notions of ‘causality’, certainty has come at a cost; ‘aliquot’ apportionment might have been one way to resolve this conundrum without unnecessarily sacrificing one of the common law’s most loyal workhorses, in the form of ‘but for causation’, on the altar of certainty.

to tweet or not to tweet…for now at least that remains the question

 

 

If (as Sir Ivor Jennings said) “conventions… provide the flesh that clothes the dry bones of the law”, then for any UoL examiners (and at this stage of my law studies I can only imagine) it must surely be apposite, relevant cases that make their day, as they wade through script after script, in those nerve wracking weeks that occupy the interregnum between completing an exam and finding out just how badly or well (remaining optimistic) we as students have performed.

So imagine their joy at a brand new, as yet to be decided, case.

Just such an opportunity has been given to all tort students, as the media is awash with the libel case that is unfolding between @MsJackMonroe and @KTHopkins. I have knowingly used the Twitter monikers of the parties, otherwise known as food writer and ‘campaigner’ Jack Monroe, and Mail Online columnist Katie Hopkins, as much if not all of the case will focus on what constitutes libel on the social media platform Twitter.

The facts are not disputed.

The Twitter feed (following an incident in which memorial to the women of the second world war in Whitehall was vandalised with the words “Fuck Tory scum” during an anti- austerity demonstration) ran as follows:

@KTHopkins: Scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?

@MsJackMonroe: I have NEVER ‘scrawled on a memorial’. Brother in the RAF. Dad was a Para in the Falklands. You’re a piece of shit.

followed by a second message:

@MsJackMonroe: Dear @KTHopkins, public apology + £5K to migrant rescue and I won’t sue. It’ll be cheaper for you and v satisfying for me

Hopkins deleted the first tweet but responded with:

@KTHopkins: Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @MsJackMonroe.

The significance of @PennyRed is that this was a case of mistaken identity.

Minutes previously Laurie Penny, a columnist for the New Statesman, had tweeted from her account @PennyRed that she “[didn’t] have a problem” with the vandalism as a form of protest, as “the bravery of past generations does not oblige us to be cowed today”; Hopkins had crossed her wires and the rest of the exchange is history.

Now any tort student will be aware of the basics when approaching a defamation case, and a large number of answers will open in the following way:

Winfield defined defamation as “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.” to which must be added the requirement for ‘serious harm’ as per s.1 Defamation Act 2013 etc.

But here it is likely that even the more seasoned commentators will begin to run dry. The generalities may well flow; with even the Ministry of Justice (quoting Eric Brendt) acknowledging that prior to reform:

“the previous law on libel cases had been criticised as being antiquated, costly and unfair, which resulted in a chilling effect on freedom of expression and the stifling of legitimate debate.”

but just how this particular case will be decided remains in the balance with Mr Justice Warby reserving judgment until later this month.

With Hopkins’ counsel trying to diminish the impact of the events, likening Twitter to the ‘wild-west’ of social media; William Bennet (Monroe’s barrister) was having none of it, actively rejecting the idea that “people don’t believe what they read on Twitter”.

Even though the tweet was deleted some 2 hours later, @KTHopkins has some 681.7 thousand followers, and is herself no stranger to actions in defamation. The Guardian confirming that “in December, Mail Online was forced to pay £150,000 to a British Muslim family over a column by Hopkins which falsely accused them of extremism after they were stopped by US immigration officials en route to Disneyland.” Few can doubt the unpleasantness of the content. Certainly lacking in any, let alone a ‘substantial degree’ of

truth, the question will certainly focus on the potential for serious harm as to Monroe’s ‘reputation’.

As her counsel stated:

“Even if Twitter is the wild west, which we dispute, that doesn’t exclude it from the operation of the law. Even the wild west had local marshals to ensure people weren’t bullied.”

The outcome will be watched carefully by all tort students and scholars, as we will get to learn whether the Defamation Act 2013 really does have adequate ‘nuance’ to protect an individual’s reputation, and/or we have moved into a new era of tweet and be damned.

Sections 2–4 of the Defamation Act 1996 might have offered Hopkins a way out. Though not strictly a ‘defence’, more a form of ‘settlement’; nonetheless this would have required her to publish a ‘correction and apology’, and to pay Monroe determined compensation and costs. With self-reflection not exactly being Hopkins’ strong suit she apparently decided to play hard-ball (see: https://www.theguardian.com/uk-news/2017/mar/01/katie-hopkins-should- pay-price-over-libel-trial-strategy-say-lawyers) it remains to be seen if such a non- apologetic strategy works in (or against) her favour.

Your thoughts on the matter would be every bit appreciated; or you could just tweet me at @markpummell if you think that advisable.

Happy Studies

 

 

 

“just keep swimming…”

 

 

Remember, remember the Fifth of November,

the Gunpowder Treason and Plot,

I see no reason why Gunpowder Treason should ever be forgot.

Guy Fawkes, t’was his intent to blow up King and Parliament.

Three score barrels were laid below to prove old England’s overthrow;

By God’s mercy he was catch’d with a dark lantern and lighted match.

Holloa boys, holloa boys, let the bells ring.

Holloa boys, holloa boys, God save the King!

Hip hip hoorah!

If not quite being asked to walk on water, current Public Law students (of which i am one) are at the very least being asked to negotiate some fairly choppy, constitutional seas; and wherever you look, the prospect of that changing in the immediate future, seems extremely remote. The roots of our current ‘crisis’ stretch back decades, some may even say centuries, but however constitutional history comes to be told, June 23 2016, will perhaps like November 5 1605 (which the oft quoted folk-poem above commemorates) ’[n]ever be forgot’.

But the truth is that history does have a tendency, if not to rewrite itself, then to be rewritten; and I will return to the Guy Fawkes analogy to illustrate the point somewhat later. Prior to the ‘Brexit’ (and even in that name resides a tale, for in fact it concerns the fate of the entire United Kingdom) referendum, few had heard of Article 50, the legal pink ribbon (to stay with the maritime analogy) required to launch the United Kingdom into ultimate ‘independence’ from the European Union. Even fewer, could have imagined the extent of the legal ramifications that would flow from the debate, let alone the ultimately legal challenges (in the form of McCord re: Judicial Review [2016] NIQB 85 and Miller/Santos v Secretary of State for Exiting the EU [2017] UKSC 5 to name just two) as to ‘just who’ gets to cut said ribbon.

New articles appeared on the UK Constitutional Law Association like starlings around a newly dug flower bed, seventeenth century cases were dusted off, and new principles formulated, in an attempt to un-puzzle this particularly intricate Gordian knot; our very own Brexit ‘discussion forum’ thread reaching some 145 posts.

The decision (as we all know) has been handed down; Lord Sumption with a ‘sleight of hand’ (as it has been called) had introduced a new ‘source’ of domestic law (https://twitter.com/SpinningHugo), a legislatively entrenched convention remained a convention rather than becoming a legal rule (https://ukconstitutionallaw.org/2017/02/10/joe-atkinson-parliamentary-intent-and-the-sewel-convention-as-a-legislatively-entrenched-political-convention/), and Lord Reed had written a clinically perfect but perhaps ultimately unsatisfying dissenting judgment (https://ukconstitutionallaw.org/2017/01/30/patrick-obrien-all-for-want-of-a-metaphor-miller-and-the-nature-of-eu-law/).

We may agree with the decision, or not. We may agree with parts of the decision and not others. We may even be unsure how to categorise the decision ‘politically’ (progressive/conservative). Was it a pro-Brexit decision, a pro-Remain decision, or none of the above; none of this helped by the oft forgotten fact that dos Santos was in fact a pro-Remainer; never mind the copious amounts of academic and ultimately judicial disagreement, all compounded by a media, that as ever, chose to make of it, exactly what they chose.

The ‘people’ have spoken so we are told, and even commentators as eminent as Vernon Bogdanor were hailing a new chapter of ‘popular democracy’ (http://linkis.com/www.thetimes.co.uk/a/EFed3 ). But with over four million signatories demanding a second referendum (https://petition.parliament.uk/petitions/131215), grave concerns surrounding the economy (https://www.bloomberg.com/news/articles/2017-01-26/u-k-economy-dismisses-brexit-threat-as-growth-beats-forecasts), and academics as tuned-in as Mark Elliott in his recent piece for Counsel (https://www.counselmagazine.co.uk/articles/miller-and-the-modern-british-constitution) suggesting that Miller has served little ultimate purpose other than to clarify just how difficult it is to locate sources of law in our ‘ramshackle’ constitution, we might do well to remember.

Remember what, you may well ask. Well just as our Guy Fawkes poem had a far more sinister second verse, that very few may even know of, let alone recall:

A penny loaf to feed the Pope

A farthing o’ cheese to choke him.

A pint of beer to rinse it down.

A faggot of sticks to burn him.

Burn him in a tub of tar.

Burn him like a blazing star.

Burn his body from his head.

Then we’ll say ol’ Pope is dead.

Hip hip hoorah!

Hip hip hoorah hoorah!

so indeed our Brexit referendum, had a far more cynical, entirely political underbelly, than any of our politicians are/were willing to advertise. Just as did the 18 September 2014 Scottish referendum. David Cameron didn’t promote a referendum because he had the slightest interest in the ‘will of the people’, he did it to appease the increasingly vocal and ever powerful euro-sceptics in the Conservative Party, just as in 2013, Westminster (after much disagreement) had finally conceded to pass the Scottish Independence Referendum Act 2013. As regards the latter the media response was no less unreasonable (https://www.theguardian.com/commentisfree/2007/may/03/theheatofthescottishsun).

So it seems that Cameron, perhaps unwittingly, has come to light a fuse that will have every bit as big a constitutional impact as that the Catholic ‘terrorist’ Guido Fawkes, and his 12 co-conspirators had in mind some four hundred odd years ago. Whether the good ship Brexit will bring great fortune to all ‘those who sail in her’, or will founder on her maiden voyage, remains to be seen. It was certainly not Foreign Secretary Boris Johnson’s finest moment when he announced the government will make a ‘titanic success’ of Brexit, but then again, he is not renowned for fine moments (https://www.theguardian.com/politics/2016/nov/03/brexit-will-be-titanic-success-says-boris-johnson).

Yale’s Ian Shapiro (https://www.amazon.co.uk/Moral-Foundations-Politics-Ian-Shapiro/dp/8187879262/ref=sr_1_2?ie=UTF8&qid=1486790850&sr=8-2&keywords=ian+shapiro) will often be heard saying “you can’t wring the politics out of politics”, and this is never more true than today as we witness challenges to the rule of law on both sides of the Atlantic. What lessons are we to learn from all of this; well on the broader view I will have to leave it to the ‘will of the reader’, as to current Public Law students, with exams approaching fast, perhaps we have no choice but to once more learn from the ocean and ‘just keep swimming’.

Happy Studies

 

 

 

Even Homer Nods

 

In March 2012, in an article entitled ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ Baroness Hale said the following:

“Lastly, I have heard it argued that our considerable respect for the Strasbourg jurisprudence is getting in the way of our regarding the Convention as a properly British Bill of Rights, of taking its guarantees as a starting point and working out the proper balance between the competing interests for ourselves. It might even be suggested that if we had paid less attention to the Strasbourg jurisprudence, we would not have given human rights such a bad name in certain quarters, because we could be seen to be having regard to British values, British mores and British legal principles.”

She was herself making reference; generally, to a series of cases in which the Supreme Court’s decisions can be said to have ‘mirrored’ that of Strasbourg’s, and more specifically to the scholarship of Francesca Klug and Helen Wildbore, in the light of those decisions.

This paper is an attempt to revisit some of those cases, and the controversy that they have engendered, and argue that ultimately they did play a role, indeed a significant role in feeding the anti-European sentiment that made the ‘seemingly impossible’, in the form of our unstoppable trajectory to exiting the European Union (and most likely the Council of Europe if Theresa May is re-elected in 2020), a very real, if not certain outcome.

Not written in a spirit of blame, it is simply an attempt to ‘understand’ how we might have arrived at this constitutional juncture, and that to a degree, does require apportioning ‘responsibility’. I shall openly draw on the work of New York psychoanalyst Doris Brothers as I develop the idea that ‘uncertainty’, which I believe these decisions engendered, has played a large part in fuelling both societal disregard for European ‘values’, with legal values representing  just one ‘set’ of such values, and by so doing, contributing to a wider cultural ‘dysphoria’ where in Brothers’ terms, ‘complexity-reducing dualities’ can flourish.

If there is a psychological equivalent to horror vacui, it would have to be mooted in terms of ‘uncertainty’ or some such equivalent. If as Brothers suggests, trauma begets uncertainty, it doesn’t seem an enormous leap of faith to assert that uncertainty is a ‘state of mind’ that ‘we’, both as individuals, and as a society will recoil from. A noxious stimulus if you will.

And just as Brothers was able to observe in her patients, one can identify many of these ‘trauma-generated’ (or ‘attempt-to-reduce uncertainty’) patterns emerging over the last decade or so; “the transformation of certainty into certitude”, “denial[s] of sameness and difference” and “the creation of complexity-reducing dualities”. It was just this tendency, one can argue, that drove David Cameron (who purportedly wished to stay in Europe politically, but yet was unable to constrain his frustration at some of the judgments passing back and forth between the UK’s higher courts and the European Court of Human Rights) to reduce the nation’s constitutional destiny to the quintessential ‘complexity-reducing duality’,  a referendum. 

June 23 2016 saw the nation being posed a seemingly very simple question:

But with none of the ‘procedural constraints’ that would usually ‘hedge’ in such a proposition, we in true British pantomime style were simply asked whether we “believed in fairies or not”. Chaos and consternation (not to say legal ramifications) have flowed from a nation simply doing what it was told to do. In this particular instance, opting for the latter ‘leave the European Union’ option, has left the nation, and to a degree the world in a state of not entirely positive wonderment. Not I think so much at the actual decision, but at the extraordinary degree of naivety that underpinned the way that decision was arrived at.

Lady Hale’s  analysis followed on the heels of, but interestingly makes no reference to Lord Irvine’s 2011 Bingham Centre for the Rule of Law lecture, A British Interpretation of Convention Rights. Though there is a broad consensus between the two writers, there is also a detectable divergence. Lady Hale ends on a note of optimism (“we may look forward to an even more lively dialogue with Strasbourg in future”) whilst Lord Irvine’s offering has a distinct undertone of disbelief and frustration, and concludes with a velvet-gloved admonition:

“This temptation must be rejected. Section 2 of the HRA means that it is our Judges’ duty to decide the cases for themselves and explain clearly to the litigants, Parliament and the wider public why they are doing so. This, no more and certainly no less, is their Constitutional duty.”

Whilst both commentators agree (and I draw freely on the cases used by both) that there have been some more ‘progressive’ cases; it is the case line that runs Alconbury Developments, Ullah, Al-Skeini, Ambrose that oftentimes first comes to mind, that to a degree created that all important ‘first impression’ and one from which, after the media had made merry, it has proven extremely difficult (in spite of some moves in the right direction) to recover from.

The genesis of what Lord Irvine saw as an excessive ‘deference’ to the European Court, what Lady Hale saw as “getting in the way of our regarding the Convention as a properly British Bill of Rights”, may be traced to Lord Slynn’s Alconbury Developments [2003] speech when referring to s. 2 (1) of the Human Rights Act 1998, he stated:

“…although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence.”

And there you have it, the ‘confounding variable’, a ‘clear and constant jurisprudence’, had entered the calculations and to an extent it has yet to be eradicated. Only a year later, in Ullah [2004] Lord Bingham was adding the gelatin to the jam when he opined:

“it is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”

which Lord Brown made his own in Al-Skeini [2008] when he ‘respectfully suggest[ed]’:

the last sentence could as well have ended: “no less, but certainly no more….”

By the time we arrive at AF and Ambrose (2009 and 2011 respectively), a disturbing pattern of unquestioning ‘deference’ to Strasbourg, had definitely set in, and the higher courts were making decisions that even they didn’t believe in; with perhaps Lord Hoffmann’s position in AF [2009] (following just weeks after the Grand Chamber judgment in A v UK) setting the high-water mark:

“A v United Kingdom requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.”

with Lord Hope’s judgment in Ambrose leaving little room for optimism that a true ‘dialogue’ was taking place, when he stated:

“Lord Bingham’s point…was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation. That is why, the court’s task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies.”

A judgment against one’s better judgement is not what we expect from the Supreme Court and neither should it be; and Lord Irvine (who supports his position from a variety of sources including Hansard) is very clear, that perhaps more importantly, it was not what Parliament had intended.

He himself said, back in 1997, when introducing the bill to Parliament:

“[the HRA] will allow British judges for the first time to make their own distinctive contribution to the development of human rights in Europe.”

whilst Lord Bingham suggested:

“it seems to me highly desirable that we in the United Kingdom should help to mould the law by which we are governed in this area … British judges have a significant contribution to make in the development of the law of human rights. It is a contribution which so far we have not been permitted to make”

The fact this has not come to fruition, and I think it is fair to say that it has not, is perhaps all the more surprising, in that the higher courts, by the time the Human Rights Act entered into effect (2 October 2000) were no strangers to either European Union Law (through the impact of the European Communities Act 1972), nor to Convention rights; the United Kingdom having been a signatory to the European Convention on Human Rights since the early 1950s.

There had been plenty of time to adjust to Lord Denning’s ‘incoming tide’ of civilian mores; and as such, for an extended period of time, some 10-15 years there existed a very real ‘window of opportunity’ to develop a uniquely British judicial ‘take’ on the ECHR, and the Convention rights that flowed therefrom; and by so doing to make a significant contribution to how human rights developed both domestically and in Strasbourg. To establish a ‘dialogue’ with Strasbourg.

Though briefly observable in cases such as Horncastle, as it was ‘impacted’ and ultimately came to ‘impact’ Al-Khawaja, the conversation never really got started.

It is not my purpose here to look in any depth, at the reasons for this, but its effect. It created doubt, indecision and to a degree disappointment; all the hallmarks of ‘uncertainty’ in the terms of our original hypothesis. Constitutional politics entered a new era, to use Aileen Kavanagh’s term; and the ‘votes for prisoners’ prove to be the straw that broke the camels back.

Uncertainty begets uncertainty.

The nation was asked to make sense of a Prime Minister, who one the one hand, was extolling the virtues of the single market, yet with the other, was vowing to ignore the rulings of the European Court. The stage was being perfectly set for the European Union Referendum Act 2015, the disastrous lack of clarity that its ’silence’ has engendered, and ultimately the populist divisions that we are now witnessing.

By failing to truly appreciate what was being asked of them, the House of Lords, now the Supreme Court, contributed to this confusion. By failing to accurately grasp Parliament’s intent (as regard s. 2 (1) Human Rights Act 1998), and their establishment, and ultimate incorporation of of the ‘Ullah principle’ they as Lord Irvine suggested:

“elide[d] two distinct concepts. The UK Courts have no power to bind any other CoE member state, and the Strasbourg Court is of course not bound by their decisions. The domestic Courts do not interpret the content of the ECHR as an international Treaty; they interpret the Convention rights under domestic law.”

As Homer nodded so ‘uncertainty’ crept in from the cold; at best the nation faced neurotic ‘ambiguity’, at worst a schizophrenogenic/‘double-binding’ parent in the form of David Cameron. None of this helped by the complexity of the European institutions, and an executive that barely seemed to know its Strasbourg from its Luxembourg. But there you have it, and here we are.

If we have learned nothing, other than how poor Horace might have felt at times, when even the great Homer could no longer conceal his corporeal frailty; something of the fear and indignation (‘indignor’) we feel when confronted with ‘uncertainty’ from those we have appointed to be our keepers, then perhaps we have still learned something. But we can ask no more of our judiciary, than that they be human, even when they are as eminent and statesman-like, as the late great Lord Bingham, about whom Lord Irvine was originally referring. Unfortunately, to complete Lady Hale’s literary device, the net result is that ‘uncertainty’ as to quite what Argentoratum just said, or meant by what it just said, is rapidly being replaced by a very cold and certain clarity as to exactly what London has in mind; and that may well be iudicium finitum.

References:

i. indignor quandoque bonus dormitat Homerus

ii. https://www.rt.com/uk/372125-may-election-human-rights/

iii. Doris Brothers – Toward a Psychology of Uncertainty: Trauma-Centered Psychoanalysis

iv. nature abhors a vacuum

v. Miller/Santos v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) & McCord, Re Judicial Review [2016] NIQB 85 (28 October 2016) being just two examples

vi. Lord Irvine of Lairg – A British Interpretation of Convention Rights UCL Judicial Institute/The Bingham Centre for the Rule of Law

vii. R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198 R (G) (Adoption) [2009] 1 AC 173

viii. R (Alconbury) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295

ix. R (Ullah) v Special Adjudicator  [2004] 2 AC 323

x. R (Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153

xi. AF v Secretary of State for the Home Department [2009] 3 WLR 74

xii. Ambrose v Harris (Procurator Fiscal)[2011] 1 WLR 2435

xiii. in particular the dialogue that took place concerning hearsay

xiv. Application no 3455/05

xv. see cases such as R v Secretary of State for the Home Department ex parte Brind [1991] & Derbyshire CC v Times [1993] where pre-HRA 1998 the court drew on Convention rights as a source of legal wisdom…

xvi. Bulmer v Bollinger [1974] Ch. 401

xvii. R v Horncastle [2009] UKHL 14; [2010] 2 AC 373

xviii. Al-Khawaja and Another v United Kingdom 49 EHRR 1

xix. Lord Irvine suggests: “Many of our Judges have all too easily slipped into the mind-set that the domestic Courts, even the Supreme Court, are effectively subordinate (in a vertical relationship) to the ECHR.”

xx. Aileen Kavanagh – Constitutional Review Under the UK Human Rights Act (Law in Context)

xxi. http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf

xxii. http://www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html

David Howarth: On Parliamentary Silence

xxiv. https://www.sonoma.edu/users/d/daniels/laingsummary.html

xxv. Lord Bingham having sadly passed September 11 2010

xxvi. http://www.vanityfair.com/news/2017/01/hard-brexit-theresa-may

 

 

Of Our Christmas Yet To Come

 

 

“I am in the presence of the Ghost of Christmas Yet To Come?” said Scrooge. “Ghost of the Future!” he exclaimed, “I fear you more than any spectre I have seen.”

In 2020, Theresa May will get to hoist a flag she has long had in preparation, when as part of the Conservative’s manifesto she will get to include a repeal of the Human Rights Act 1998, and its replacement with a (yet to be drafted, but to a degree outlined) British Bill of Rights. What is even more concerning to many, is that she is committed to a path yet more radical than her predecessor David Cameron, in that she also plans to extricate Britain from the European Convention on Human Rights (which would entail inevitable expulsion from the Council of Europe). All this in spite of the Convention’s Conservative origins, and contradictory to a long standing Conservative antipathy to incorporated Bills of Rights; that usually centred on a fear of disturbing Parliamentary sovereignty, and by so doing giving the “unelected courts… the final say in determining what the law should be in a democracy”.

Like all manifesto matters, it will undoubtedly be attractively packaged; having been described as “a pledge to withdraw Britain from the European Court of Human Rights (ECtHR) [and] to give the UK Supreme Court the ultimate say as to how those rights are applied”, and indeed since 2011 it has been touted as a “return to traditional English freedoms” within a framework of “Bringing Rights Back Home”. It originally formed part of Michael Howard’s 2005 election campaign, with David Cameron affirming the pledge in 2006 (alongside emphasising ‘responsibilities’ in addition to rights) when he said:

“The act has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country, and at the same time it hasn’t really protected our human rights.”

So given that Brexit means Brexit (whatever that may mean), and to some our exit from the European Union is inevitable, why not, as May and team are spinning her announcement,  just make a clean break of it; the clarity (and in some eyes kudos) of exiting the European Union (baby) and the ECHR (bath water) in one tenure.

Why, given its obvious appeal to anyone with an ounce of red, white or blue flowing through their veins, is it arousing such opposition; and so much of that opposition not only cross-party but from some of the country’s most informed and experienced politicians, judges and academics. We have the likes of Alice Donald, joining academic forces with Mark Elliott, and ex-Attorney General Dominic Grieve to counsel strongly against such a decision; whilst the House of Lords’ EU justice committee in May of last year warned:

“[the] government’s proposed bill of rights will hamper the fight against crime, undermine the UK’s international moral authority and could start “unravelling” the constitution”

Well I think the answer is simple enough, for anyone like Ebenezer Scrooge, that has had the courage to dare to imagine a future, (albeit rather unwillingly in Scrooge’s case, and in our case), outside of the Council of Europe; it is something to be feared, and with good reason.

Lawyers or no, we are often told that the ‘devil is in the detail’, but therein must also lie our salvation, and that is certainly true of the Human Rights Act 1998. It is a very well and subtly crafted Act, and to imagine that it can be easily replaced, is just as illusory as the idea that a well crafted Great Repeal Bill will solve all our Brexit woes.

In October 2014, Mark Elliott cited at least six reasons to be concerned with the Conservative Party’s Protecting Human Rights in the UK, even if (as the proposal suggests) the new Bill of Rights would contain all of the rights presently given effect to by the Human Rights Act:

  • Convention rights would be ‘glossed’; though seemingly ‘enhanced’ by new and more precise definitions, the net effect would be a reduced scope of some rights, ‘bastardised versions’ in Elliott’s terms.
  • Rights, in some instances, would become ‘contingent’ upon having discharged ‘civic responsibilities’; the example he quotes is:

“so for example a foreign national who takes the life of another person will not be able to use a defence based on Article 8 to prevent the state deporting them after they have served their sentence.”

which is an erroneous conflation of the long-standing Convention principle of ‘balancing’ or ‘qualifying’ rights, with a particular model of ‘cause-and-effect’ quite alien to any modern day system of human rights.

  • Section 2(1) of the Act would essentially be eliminated; the Bill looking to “[b]reak the formal link between British courts and the European Court of Human Rights” because “Britain’s courts will no longer be required to take into account rulings from the Court in Strasbourg.” This as in many aspects of the proposal fails to capture the actuality, and indeed flexibility of that ‘link’, and suggests the ‘relief from an obligation that they [the courts] do not — and do not believes themselves to — have’.
  • The falsity that the Bill will “[e]nd the ability of the European Court of Human Rights to force the UK to change the law” has been discussed in great depth elsewhere; it is simply misleading and as Elliott highlights:

“[the idea that] domestic legislation could change the international-law status of ECtHR judgments is straightforwardly wrong. Parliament can “treat” Strasbourg judgments as ‘advisory’ if it wishes, but it will not make them so.”

It also, yet again, fails to capture the nuanced nature of s. 2 (1)’s ‘take into account’ directive, and seems (one might suggest almost wilfully) to misunderstand the system of ‘declarations of incompatibility’ under Section 4.

  • The Bill also sets out to hamstring the courts Section 3 ‘interpretive’ capabilities, stating:

“In future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.”

Elliott suggests, that this, working in tandem with the Bill’s new and ‘glossed’ Convention rights would have considerable ‘practical impact’ on the availability of human rights in the UK.

  • But last but not least, the Conservatives propose establishing a ‘threshold’, before one’s human rights are engaged:

“The use of the new law will be limited to cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters. There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.”

This is to say nothing with regard to our International obligations, the impact of the Bill upon devolution, or any potential conflicts with “the increasingly vigorous doctrine of common law constitutional rights”.

A year later in September 2015, former Attorney General Dominic Grieve addressed the Faculty of Advocates in Edinburgh, and asked “Is the European Convention working?”.

Coming just a week after Lord Sumption’s assertion of our nation’s ‘pride in their own separateness’, he attempted to tackle the Bill of Rights’ flouted benefits, which include:

  • halting the “mission creep” of Strasbourg
  • providing clarification of how Article 3 and 8 should be applied in deportation cases
  • setting a threshold “below which Convention rights will not be engaged”
  • removing the reach of the Convention over British armed forces

In a characteristically impassioned defence (which can be read in full here), highlighting groundbreaking cases such as Ireland v UK and Marckx v Belgium, he was keen to explore and tease out the parallels between the European Court’s interpretive methods, and our own ‘common law traditions’; but also took a far less parochial stand, seeing the court’s steady but inevitable transformation:

“into a court of final resort for some 800 million people, many of them living in states where the principles underpinning the rule of law are often misunderstood, misapplied or ignored.”

He was also keen to highlight:

“[the] paucity of concrete examples that are identifiable in the Government’s list of complaints against the way the Strasbourg Court is interpreting the Convention and the incoherence of its suggested solutions”

Addressing the shortcomings of the UK Borders Act 2007, much as Mark Elliott above he advanced:

“it is difficult to see how any proposed changes to gloss the Convention text itself will make any difference, unless the intention is to create total incompatibility with its principles”

before going on to specifically deal with the Government’s inconsistencies as regard Article 3 rights, and the positioning these arguments in a much wider, international framework.

By turning our back on the Convention, the UK:

“will offer an example and an invitation for it to be ignored by others. It is already the case that countries such as Russia and the Ukraine have used the UK position to procrastinate on implementing judgments. Others will do the same and the Convention will be further challenged and undermined.”

As One Crown Office Row David Scott has pointed out:

The fallout will not be limited to the Council of Europe. The UK position was used by Venezuela in justifying ignoring obligations under the American Convention on Human Rights arising prior to its denunciation in 2013, and the President of Kenya cited it when the UK and others were pressing for cooperation with the ICC, of which Kenya accepts jurisdiction. Were the Convention as a whole to lose authority, we would also lose its beneficial impact as a “benchmark for citation in courts in places such as India and South Africa”

Alice Donald has pointed out the wide ranging scope and potential of Section 6 of the Act; which is to say nothing of the loss of Section 19, which requires that all new Acts of Parliament are required to come with “statements of [Convention] compatibility” or “make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.

‘I am the ghost of Christmas future…with fries!’

Lord Sumption is undoubtedly correct, that these are essentially ‘argument[s] about method’; but there seems to be an overwhelming tide of opinion that the Government’s ‘method’ will result in a seismic shift in our current human rights paradigm. With a consequent narrowing of the scope (indeed a marked narrowing) in some instances, with a complete loss of previously recognised rights in others, that shift is in one direction, and one direction only.

Let’s make no mistake, in simple terms this just equates to less human rights, less ‘check’ on the executive, and on occasions an utter disregard for the notion, which once was considered vital to a modern day understanding of human rights, of ‘balancing’ competing rights.

Essentially making a nonsense of Dominic Grieve’s statement that:

“deservingness cannot be determined a priori.”

this is not ‘human rights with fries’, this is an empty bun, with no hamburger and precious little dressing.

Now no doubt this debate (just as Brexit v Remain has done) will attract its fair share of ‘loaves of opinion’, and precious few ‘crumbs of analysis’, but in contrast to Brexit, in this instance we have the luxury (and after June 23 2016’s referendum it is not to be underestimated) of a three year’s ‘heads-up’; three years to marshal and make public what are quite complex yet highly compelling arguments. That might equate to a sense that we have less room to excuse ourselves from the “I didn’t realise” paradigm, that has haunted the political debate of recent months, but that ultimately has to be seen as a good thing.

Charles Dicken’s most likely made Ebenezer’s final haunting, the ‘last of the spirits’, ‘tall and stately’ for good reason. The writing was on the wall, in large bold copper plate, it was not to be hidden from. Just like Ebenezer we are in the presence of a warning, that is cold and to a degree most chilling, and a warning that is most certainly written in bold copper plate. It is a warning of our Christmas Yet To Come, of all of our Christmases Yet To Come, and we might just be wise to listen carefully to what it has to say.

References:

i. Charles Dickens – A Christmas Carol

ii. Othman (Abu Qatada) v. United Kingdom (European Court of Human Rights) (2012)

iii. The Conservatives – Protecting Human Rights in the UK

iv. https://www.rt.com/uk/372125-may-election-human-rights/

v. http://rightsinfo.org/search/conservative/

vi. Aileen Kavanagh – Constitutional Review under the UK Human Rights Act

vii. Klug F – A Bill of Rights: Do we need one or do we already have one? (2007) Public Law 701

viii. https://www.policyexchange.org.uk/wp-content/uploads/2016/09/bringing-rights-back-home-feb-11.pdf

ix. jackofkent.com/category/brexit/

x. Lorna McGregor – Reclaiming Human Rights – http://rightsinfo.org/reclaiming-human-rights/

Why saving the Human Rights Act will be good for your health – Alice Donald

My analysis of the Conservative Party’s proposals for a British Bill of Rights

xiii. Dominic Grieve – Why Human Rights Should Matter to Conservatives – The Political Quarterly, Vol. 86, No. 1, January–March 2015

xiv. https://www.theguardian.com/law/2016/may/09/british-bill-of-rights-could-unravel-constitution-say-mps

Is the European Convention Working? Grieve advocates before Faculty of Advocates

xvi. http://www.dailymail.co.uk/news/article-3243549/Britain-ditch-European-human-rights-laws-stood-Nazis-says-judge.html

xvii. http://www.advocates.org.uk/media/1859/domgrievelecture.pdf

xviii. IRELAND v. THE UNITED KINGDOM (Application no. 5310/71) 18 January 1978

xix. MARCKX v. BELGIUM (Application no. 6833/74) 13 June 1979

xx. Human Rights Act 1998 – Section 19

xxi. https://www.loc.gov/collections/james-madison-papers/about-this-collection/

xxii. Lord Goff of Chieveley: Hunter v Canary Wharf Ltd [1997] AC 655; 2 ALL ER 426 (HL)

“on the faith of a promise”; a proposed alternative solution to ‘contract modification’

Brand-Strategy-Brand-Promise

www.brandingstrategyinsider.com

It is rare in legal judgments to be so overtly critical of another’s decision as was Colman J of Glidewell LJ’s judgment in what has become known as simply, if somewhat infamously, as Roffey; when at 108 he states:

Glidewell LJ substituted for the established rule as to consideration moving from the promisee a completely different principle – that the promisor must by his promise have conferred a benefit on the other party. Purchas LJ. at pages 22-23 clearly saw the non sequitur but was “comforted” by observations from Lord Hailsham LC in Woodhouse AC Israel Cocoa Ltd v. Nigerian Product Marketing Co Ltd [1972] AC 741 at pages 757-758.

It is the aim of this essay to briefly revisit that decision (though the facts and the ultimate decision are known to all); but primarily to view this decision in the light of Lord Denning’s 1952 paper: “Recent Developments in the Doctrine of Consideration” and to wonder if it isn’t time to revisit Lord Wright’s Law Revision Committee’s 1937 sixth interim report once more regarding the enforceability of certain promises in spite of a lack of overt consideration.

What we are reminded of in Denning’s writings is the importance he placed on promise; indeed even in High Trees we may do well to remember that of the nine cited cases he made use of four cases:

  • Fenner v Blake [1900] 1 QB 426
  • re: Wickham (1917) 34 TLR 158
  • re: William Porter & Co. Ltd [1937] 2 All ER 361
  • Buttery v Pickard (1946) 174 LT 144

that he was keen to point out were not “estoppel in the strict sense”; but: “cases of promises which were intended to be binding, which the parties making them knew would be acted on and which the parties to whom they were made did act on”. 

In his ’52 paper what we see is him attempting to tease out Lord Cairns’ House of Lords decision in Hughes v Metropolitan Railway (1877) to establish a distinction between ‘promise induced reliance’ and ‘conduct induced reliance’ (first having distinguished between ‘formation of contract’ promises and promises to “waive, modify or discharge” contractual obligations) and in particular in relation to whether that reliance need be detrimental or not; the driving force behind the essay being that in his perception: “we are tending to regard any act done on the faith of the promise as sufficient consideration to support it, even though the act done is no benefit to the promisor and no detriment to the promisee.”

His concluding remarks suggest that he reads the case law; also citing:

  • Robertson v Minister of Pensions [1949]1 KB 227
  • Foster v Robinson [1951] 1 KB 149
  • Panoutsos v Raymond Hedley [1917] 2 KB 473
  • Charles Rickards v Oppenheim [1950] 1 KB 616

to suggest that: “in cases of deliberate promises which are intended to create legal relations it is sufficient if they are acted upon, even though there is no detriment in so acting”, and further suggests: “these cases seem to fall more naturally under the law of contract, rather than the law of estoppel.”

As for the poor relative ‘conduct’ which leads another party to reasonably believe that “strict legal rights will be waived, modified or discharged”  as there has been “no question of good faith – no question of a man keeping his word” he suggests the aggrieved party would need to demonstrate ‘detrimental reliance’ and such cases would most likely best fall under the ‘estoppel’ rubric, though leaving the option open of an ‘implied promise’ to draw them into the fold of contract.

It is important to note that it is also in this paper he provides his reasoning for not seeing Combe v Combe [1951] 2 KB 215 as an exception to any rule (and certainly not affording it the importance that McKendrick does); simply suggesting that not all promises “import a request” whilst citing:

  • Lampleigh v Braithwait (1616)
  • Rose and Frank v Crompton [1923] 2 KB
  • Alliance Bank Ltd v Broom (1864) 2 Dr & Sm 289

amongst others as he does so.

The final credits go to FB Ames and Denning’s assertion that: “since the fusion of law and equity, we are approaching a state of affairs which Ames regarded as desirable, namely that any act done on the faith of  a promise should be regarded as sufficient consideration to make it binding.”

How might we apply such thinking to Roffey?

One thing was for sure on any reading of the facts something needed to yield; it strikes one as inconceivable that any court common law or equity would have allowed the perhaps somewhat guileless though not entirely blameless Lester Williams to walk away completely empty handed. The ‘more for the same’ offer had come from the Roffey brothers manager Mr. Cottrell who had himself acknowledged that the original price was “less than reasonable” and Williams post-negotiation had continued to “second fix” a further eight apartments.

In the absence of duress (which was not suggested on the facts) the court (if it wished to provide Mr. Williams with some kind of remedy) essentially had one of two choices: locate some consideration to anchor the promise and/or invoke some kind of estoppel. Russell LJ somewhat side-stepping the issue, appealed to ‘commercial pragmatism’, whilst Purchas LJ looked wistfully at Watkins and Sons Inc v Carrig (1941) 21 A 2d 591 for a potential solution, but as previously suggested it was Glidewell LJ’s extension of consideration to include ‘practical benefit’ that has raised so many eyebrows (though that is not to suggest it has not attracted some equally high-powered admirers).

Pace Glidewell LJ I have to say it is not my favourite judgment but admittedly it can not have been the easiest. Overshadowed by the High Court precedent of Stilk v Myrick he decided (after rejecting promissory estoppel on the grounds of Syros Shipping Co SA v Elaghill Trading Co [1989] 2 Lloyd Rep. 390, 392) to draw on three very different cases:

  • Ward v Byham  [1956] 1 WLR 496
  • Williams v Williams [1957] 1 WLR 148 (CA)
  • Pao On v Lau Yiu Long [1979] 3 All ER 65 Privy Council

(and alongside attempting to historically context Stilk v Myrick) he proceeds to announce (and this is the non sequitur Colman J refers to) the “present state of the law” articulating the ‘benefits’ or obviated ‘dis-benefits’ that constitute ‘practical benefit’ as we have now come to understand it. The sum originally awarded (£3,500.00) at first instance was affirmed and the calculation explained, Stilk v Myrick was left intact and the implications for Foakes v Beer scenarios were not broached.

At this point it must be highlighted that it is a motley trio of cases from which to arrive at such a significant statement of law. Firstly all three cases were essentially played out in terms of legal (not factual/practical) benefit and thus ultimately became ‘more for more’ scenarios, secondly Ward v Byham and Williams v Williams were domestic cases and whilst there were some parallels (in that the court was looking for consideration to ground a promise) Lord Denning’s judgments were heavily influenced by his position on promise rather than any kind of imputed ‘practical benefit’, and thirdly whilst Pao On as a commercial case and as such categorically nearer to Roffey than the previous two cited, it was a complex tripartite case, not primarily determined with reference to ‘practical benefit’, that seems to raise at least as many questions as it answers.

McKendrick in Contract Law (11th edition) offers four “alternative analyses”. Firstly as expounded in Watkin & Son Inc v Carrig (1941) (see above) essentially based on a model of ‘reciprocity’; both parties giving up their rights to sue each other providing adequate consideration to found a new enforceable agreement. Secondly Chen-Wishart’s “collateral unilateral contract to pay more (or accept less) if performance is rendered” model which certainly has something to recommend it and was likely the implicit model that was used to calculate damages in Roffey. Thirdly drawing on Sir Frederick Pollock’s notion (as recognised in America) that consideration should only apply to the formation and not the modification of the contract; though having the commercial appeal of facilitating contract renegotiation (see Hadson (1990) “Sailors, sub-contractors and consideration” ) as McKendrick clarifies this model may require some additional formal requirement. Finally in Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23 the New Zealand Court of Appeal simply chose to bypass the issue; neither affirming Roffey nor negating ‘consideration requirements’, but simply affirming the variation as binding.

I would like to suggest a fifth alternative drawing on Lord Denning’s 1952 paper. If (and I am suggesting that this is how many business men might view Roffey) what ultimately matters is Mr. Cottrell’s ‘deliberate promise’ (on behalf of Roffey Bros and Nicholls Contractors Ltd) and that Williams simply took him at his word (rather than what he did to found that promise which is very much the emphasis of Glidewell LJ’s judgment) then we might be in FB Ames’ territory in that he acted in ‘reliance’ (regardless of detriment as per Denning’s categorisation) “on the faith of the promise” and this in itself should be enough to provide ‘valuable consideration’.

This does however raise three questions. Firstly, just as with option three above, for both legal and practical commerical reasons it may make good sense to require some additional formal requirement such as evidencing in writing or production of a deed. Atiyah’s suggestion that “insistence on form… (is) characteristic of primitive and less well-developed legal systems” would be of little comfort to future Mr. Williams in the event that the court had found otherwise, just as happened under other circumstances in Actionstrength Ltd v International Glass Engineering. Secondly what remedies would be available in the event of breach? Well if such modifications are held to be of a contractual nature then clearly (as per Treitel) they would be calculated on an expectation basis but sensibly with the Chen-Wishart ‘proviso’; which for example in the case of Roffey generated 18 unilateral contracts and hence his final payment of £3,500.00 (8 x £575.00 = £4,600.00 “less some small deduction (sic) for defective and incomplete items”). Last but not least what of Foakes v Beer/Pinnel’s case scenarios. Well as long ago as 1602 in Goring v Goring the courts distinguished between ‘consideration’ and ‘satisfaction’ in relation to such cases, and as recently as 1937 the Law Revision Committee (also drawing on Ames’ “Two theories of consideration” (1899)) described Pinnel’s Case as “one of the most absurd doctrines which have succeeded in becoming established as part of the English law of contract” and recommended that: “either payment or promise” be sufficient to discharge a debtor’s obligations “provided that in the case of a promise the original obligation shall revive on failure to implement the promise by payment”.

The above proposed solution though not perhaps the most elegant would ensure certainty, serve to clarify the role of consideration in contractual modification and not require the over expansion of promissory estoppel  for which it seems the judiciary, despite Arden LJ’s enthusiasm in Collier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329 appear to have mixed feelings.

But let us not forget the words of Bennion, who only a year later in his riposte to Denning’s paper was moved to say: “what Lord Mansfield was too late to achieve in the eighteenth century cannot be achieved in the twentieth century otherwise than by legislation.” In reply I suggest that the acknowledgement of the centrality of promises in business transactions and in particular their significance to contractual modification does not translate to an ‘emasculation’ of the doctrine of consideration as he opines, but do agree that given the current confusion in this area it would be best resolved (as were third party rights) by fresh Law Commission and ultimately legislature action; the (optional) addition of a formal requirement saving the court the endless hours required to establish whether a promise was adequately ‘deliberate’ (just as with estoppel there is the primary but nonetheless time consuming requirement to establish ‘inequity’) and hence preserve the ‘doctrine of intention’s’ position within the bigger picture of contractual obligations.

References:

i. Williams v Roffey Bros [1990] 1 All ER 512

ii. South Caribbean Trading Ltd v Trafigura Beheever BV [2004] EWHC 2676 (Comm)

iii. Modern Law Review 1952 Volume 15 No. 1

iv. Robert Pearce QC – “A Promise is a Promise” available at: http://www.radcliffechambers.com/media/Misc_Articles/A_promise_is_a_promise.pdf

v. Central London Property Trust Ltd. v High Trees House Ltd., [1947] 1 KB 130, [1956] 1 All ER 256

vi. Ewan McKendrick – Contract Law 11th edition.

vii. FB Ames: “history of assumpsit” 2 Harv. L. Rev. 1 1888-1889, parol contracts prior to assumpsit” 8 Harv. L. Rev. 252 1894-1895, and infra note 31

viii. Mindy Chen-Wishart “Consideration, practical benefit and the Emperor’s new clothes” & “A bird in the hand; consideration and contract modifications”

ix. Adams & Brownsword “Contract, consideration and the critical path”

x. Stilk v Myrick [1809] EWHC KB J58

xi. section 2-209 (1) of the Uniform Commercial Code

xii. Coote (2004) “‘Consideration and Variations: A Different Solution’ Law Quarterly Review 46, 12

xiii. Atiyah – “An Introduction to the Law of Contract”’ p. 94

xiv. Treitel on the Law of Contract 14th edition

xv. Penny v Cole [1602] 5 Co. Rep. 117a

xvi. Goring v Goring (1602) Yelv 11

xvii. KCT Sutton “Existing Debt As Consideration” http://www.austlii.edu.au/au/journals/ResJud/1957/77.pdf

xviii. Newport City Council v Charles [2008] EWCA Civ 1541, The Times, 11 Aug 2008

xviii. Francis Bennion – “Want of Consideration’”16 The Modern Law Review 4 (1953) 441

whose fault is it anyway…

3Richelieuhttp://www.honourandthesword.com

“If you give me six lines written by the hand of the most honest of man, I will find something in them which will hang him”.

So said Cardinal Richelieu (Louis XIII’s Chief Minister”) and it goes a long way to explain why the objective/subjective fault argument is a protracted one; unlike in a civil court where perhaps at worst we might be dealing with an injunction or some financial recompense, in criminal cases we are dealing with a man’s liberty or ultimately (in some jurisdictions) a man’s life. Consequently it should not be that surprising, that what exactly constitutes fault and from what perspective that should be considered has been subject to the greatest degree of scrutiny within the legal profession.

Originating from Latin; subjectivus and objectivus respectively… the former has come to be synonymous with a personal essentially internal view of a set of actions/circumstances while the latter with an impartial, external consideration of the same situation; but quantum physics (in particular Einstein’s notion that it is the “theory that decides what one can observe”) has taught us that such divisions are perhaps less black and white than we might imagine

Let’s try to see how these two ways of assessing criminal fault may or may not be reconciled and which if either should we be favouring in the name of justice.

It might be said that “desert in punishment” lies at the very core of criminal law and indeed penology, explored in Punishment and Responsibility (HLA Hart 1968) it works outwards (or indeed inwards) from the premise that the more serious the punishment the more subjective the mental attitude/state (or mens rea) should be in order (in a somewhat tautological manner) to justify said punishment; we should have as Hart tells us a “fair opportunity” to exercise our “mental and physical capabilities” to avoid transgressing the law and by so doing avoid punishment. Only by this being so can society apportion blame, hold the wrongdoer responsible for his/her acts and they be punished accordingly.

Consequently for an act such as murder; it may not be surprising to find that the requisite mens rea has a highly subjective criterion (based on intention) central to its common law definition; whilst at the other end of the spectrum we find crimes (often driving related such as careless/dangerous driving) that are assessed using essentially objective criteria. Now this may all be very well and good if there were no (or minimal consequences) to such a degree of criminalisation (and this is largely the rationale behind strict liability crimes which are usually considered “regulatory” rather than “criminal”). But what if I am a doctor found guilty of gross negligence manslaughter (see Adomako [1994]) where the consequences involve a loss of livelihood and potential imprisonment; is it right and proper that my internal view as to the wrongness of my action, (whether or not I chose to act wrongly(or otherwise)) plays no part. Similarly was it fair that Riding (McCrone v Riding 1938) as a novice driver was held to the same standards as a more experienced driver?

If we consider intention, recklessness and carelessness/negligence as three mens rea shades of grey (as we move across the fault spectrum from highly subjective to highly objective) we could do well to visit briefly each in turn but also retaining an awareness that alongside mens rea the subjective-objective dialectic plays a great part in the assessment of the validity of the vast majority of the available partial and full defences in criminal law.

images

https://greenwalledtower.wordpress.com

Running through the complex case law regarding intention (and these have generally been as explained previously homicide cases) we immediately see a tension as the law lords have attempted to tease apart cases such as Hyam (v DPP (1975)) and Nedrick (1986) from more obvious “smoking gun” (direct intention) murder cases; anxious not to confuse motivation with intention and amidst a sea of misdirections the final distillation in the form of (when deemed necessary) the Woollin (1998) direction does partly resolve this dilemma by returning the conundrum in the form of admissible evidence for the jury’s ultimate consideration in its terms of “virtual certainty” and “appreciation” but we are in many ways no nearer resolving the subjective/objective conundrum.

Perhaps greater clarity emerges from the 2006 Law Commission Murder, Manslaughter, Infanticide’s suggestion that a “person is taken to intend a result if he or she acts in order to bring it about” (a return to the common law interpretive notion that words should be given their everyday meaning) and greater yet from Duff’s highly subjective notion that direct intention refers to a state of mind that would result in a sense of failure if certain “intended” consequences did not result. As regards oblique intention the Law Commission’s position is very similar to the wording found in Woollin the net result being that cases such as Matthews and Alleyne (2003) are still decided on the jury’s (mixed objective and subjective) inference of culpability (given regard to all the evidence).

If none of the above is terribly clarifying the law surrounding recklessness is perhaps no more edifying; though as Wilson points out it should be so, with recklessness a subjective fault element requiring “thought” and/or “awareness” and as such easily distinguished from negligence which does not. The case history (and this is only compounded if one considers Scottish law) is complex and contradictory so much so that it prompted Joshua Barton to write a 2011 paper attempting to ascertain what was the predominant modality (subjective v objective) in Scottish law; a question of vital significance (as he points out) with recklessness forming the mens rea of a whole host of offences.

To briefly recap it is standard to start with Cunningham (1957) which in fact (and this is as we shall see later underpins some if not much of the problem in this area) centred on a dissection of the term “malice” and ended up by invoking Professor Kenny’s definition which included (alongside classic intention) an essentially subjective definition of recklessness with an emphasis on “conscious foresight” (Stephenson (1979)). A brief and confusing period followed Lord Diplock’s ratio in Caldwell (1982) which invoked objectivity (so long as the “risk was obvious” but was both confused by D’s voluntary intoxication and subsequent decisions such as Spratt (1991) in which these criteria were not applied to assault/malicious wounding cases) for this only to be finally overruled in 2003 in the criminal damage/arson case concerning two minors R and G.

If we take it as a given that “all examples of recklessness” are automatically “examples of negligence” but not necessarily vica versa; where does that leave us with cases such as Daryl Parker’s smashed telephone booth (R v Parker [1977]) of “closed mind recklessness” in which essentially the subjective fault element is imputed given the obviousness of the outcome in relation to the actions/circumstances etc.

Negligence, with its focus on conduct is potentially wider yet, yet despite its pure objective aspirations it is a far from a binary criteria with a variety of subtle gradations from plain old butter finger carelessness to actions of such a preposterously low standard that only serious criminal consequences seem to fit the bill.

It is perhaps (at the margins of these various categories) that we are able to gain some access to to begin to assess the relative justness/unjustness of these two (not necessarily opposing) models of apportioning blame.

Barton makes the very valid point that in the vast majority of cases the answer to this question will not make a very great difference but it is in these borderline decisions that clarity of thought seems of the utmost importance.

 

slideshow_image_jury

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For sake of brevity I want to focus on just three areas I consider important:

  • just how objective can any decision be (and in corollary the same can be said to apply to subjective decisions)
  • the unique beast that is UK common law
  • how might this situation be improved; is a greater degree of codification the answer?

Firstly I think it is a fundamental truth that is underpinned by many disciplines (scientific, philosophical and psychoanalytical) that there is no such thing as a pure decision/assessment of a situation etc. All seemingly objective decisions ultimately include subjective factors and vica versa and as the law tries to resolve the inevitable tension between two of its most fundamental tenets (Sankey’s “presumption of innocence” and there being “no excuse for ignorance of the law”) it seems inevitable that victims and perpetrators alike will attempt to draw on both sides of this “consideration spectrum” to maximise their personal sense of justice, just as society will continue (one can only imagine) to demand its pound of flesh in instances in which it considers itself wronged/ violated. (Rape and the changes evinced by the Sexual Offences Act 2003 is a perfect example of the struggle to fine tune legislation and an attempt to make sense of the subjective/objective continuum).

Secondly UK common law is highly based on very evolved definitions (of for example intention/recklessness/negligence etc.) alongside very precise drafting of statutes etc. (as opposed to European civil tradition with its emphasis on generalised statements of principles). This undoubtedly has its advantages but one of its disadvantages is that occasionally it can produce rogue decisions and the excessive (some might say) attention to detail can at times obfuscate the obvious.

A simple example might be the notion of gross negligence manslaughter; for all its objective aspirations it is coined in what is highly subjective (responsibility invoking) language and in its need to transmit its sense of outrage and disapprobation often misses a lot of the details (Adomako had been trained in Russia and was considered by the judge to be woefully under-supervised etc.).

Some kind of justice is served, blame is undoubtedly apportioned but some vital ingredient that I think is at the core of justice is omitted; (it may even be in this day and age that Adomako’s counsel would invoke Article 6 of the HRA 1998 and suggest that denying his subjective position as regards the case was a denial of his right to a fair trial etc.).

It is widely acknowledged that the criminal legislation is woefully anachronistic (Draft Criminal Code 1989) and I think it is without doubt that a thorough review of many core charges would be welcome; but alongside such a process (which is not the focus of this essay) I think that justice would be better served by the understanding that the subjective- objective continuum in fact exists as a dialectic rather than a dichotomy. This doesn’t mean that for all strict liability charges the defendant would have the right to submit a 3,000 word statement as to just why he/she had parked their car on the double yellow line but it does mean that (rather along the lines of the Woollin direction) the jury are entrusted with as much evidence (both subjective and objective) as is practically possible and in that light their decision is made.

If the prime aim of justice is to be fair and as such to reduce to an absolute minimum any miscarriages of justice I can see no other practical alternative; this process (which could be seen as further allying the UK legal decision making process to that of European civil law principle driven practice) needs to be accompanied by a closer examination of just what (objective) standards we are asking of our citizens and an assurance that (in terms of precedence) we really are comparing like with like (for example much mention of R v Seymour [1983] was made in Adomako [2014]; at one level it is arguable how much these two cases actually have in common).

Law just like life is not a static phenomenon (see Lord Scarman in McLoughlin v O’Brien [1983] 1 AC 410) and neither should it be; sometimes the twain can meet.

“The Good, The Bad & The Ugly”; in consideration of a Cybercrimes Act 2015

cyber-bullying

http://thekingmaker.me

“anonymity is a kind of relation between an anonymous person and others, where the former is known only through a trait or traits which are not coordinatable (sic) with other traits such as to enable identification of the person as a whole.” 

Wallace, Katherine

“Having two identities for yourself is an example of a lack of integrity.”

Mark Zuckerberg as quoted in David Kirkpatrick’s The Facebook Effect

September 11th 2014 marked an highly significant day in the world of social media, with Mark Zuckerberg’s Facebook finally instituting his company’s “real name” policy forbidding users from “pretending to be anything or anyone” other than themselves and explaining that the “name you use should be your real name as it would be listed on your credit card, driver’s license or student ID” or risk having said account deleted.

Six months earlier in China, March 16th 2014 marked the Beijing imposed deadline for Sina Weibo users (China’s most popular microblog) to register their names and mobile phone details; only those so doing and subject to a “satisfactory” verification process would be able to use the website in an active capacity. This coming shortly after the Latvian based website ask.fm promised something similar in the wake of Hannah Smith’s cyber-bullying related suicide.

The very fact that such terms as “cyberbullying”, “cyberstalking”, “flaming”& “trolling” have now shifted from “urban” to “oxford” dictionaries; with charity ChildLine reporting quantum increases in reported cases of cyberbullying (4,507 in 2012/2013 as opposed to 2,410 in 2011/2012) and there are calls in Australia for a “Charlotte Law” (for tougher cyberbullying legislation) following the recent high profile suicide of TV celebrity Charlotte Dawson would suggest that we are more than ready if not long overdue, for some legislative reform in this critical area of 21st century life which essentially “has no precedent in the offline world”.

In August 2012 the New Zealand Law Commission had the following to say:

“In New Zealand, as in many other countries, there is growing and strong concern about the use of new communication technologies to cause harm. Young people are particularly vulnerable, but the problem is by no means confined to them: there are examples of the most disturbing and damaging communications between adults as well. There is a widespread desire that something be done.”

They also went on to highlight the other potential cyber-crimes of “malicious impersonation” or “hijacking of another person’s online identity”; the vast majority of these crimes taking place behind the veil of online anonymity the internet affords.

It is the aim of this essay to propose legislative reform in these areas whilst additionally giving consideration be given to the wisdom and legality of anonymity on the net in general.

Anon; just who are we protecting?

young-boy-stressed-with-cyberbullying.ashx

 

“Cyber bullies can hide behind a mask of anonymity online, and do not need direct physical access to their victims to do unimaginable harm.”

Anna Maria Chavez  CEO Girl Scouts USA

Let us begin by looking at the realities and consequences of internet anonymity and the kind of debate it may engender in somewhat greater detail.

It is difficult to even imagine the terms of a debate in this area without some reference to the First Amendment for any illusion that solutions (even partial ones) can take place at an entirely national level simply serve to remind us of the behemoth the modern day world wide web has become; we may therefore do well to remind ourselves of its exactitudes:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

though not enshrined in such terms in our constitution; it nonetheless marks the tone of the discourse that would inevitably rage in the event of any anonymity related legislation.

We would also do well to remind ourselves of the fact that many (if not the majority) of the big players in the social media game (Ask.fm/Facebook/Sina Weibo/Twitter etc.) are not in fact hosted in the UK  and as such are not directly affected by any homegrown legislative directives; but as with any attempt to institute &/or develop the “rule of law” it is inherent, indeed intrinsic to its very notion that such a process will be incremental and inevitably painstaking.

Internet anonymity has undoubtedly become one of the “basic fault lines in (the) political and ethical considerations of Internet regulation” and we can be grateful to Nogami (2009) amongst others for furthering our understanding of how this “privilege” (axial to this essay’s theme is the idea that anonymity is perhaps best considered a “privilege” as opposed to a right) actually affects human behaviour.

It has long been known that circumstance & social pressure can drastically change the way that individuals behave (witness Milgram’s “obedience to authority” studies & Zimbardo’s Stanford Prison Experiment) but the literature on the psychological impact of anonymity is more recent, yet nonetheless equally salutary.

According to Wallace anonymity acts to “minimize accountability” & with the sole prosocial exception of donation serves to increase the incidence of anti-social, criminal/unethical and selfish/self-interested behaviour. Yet in spite of the fact that the vast majority of cybercrime is committed anonymously there is still a strong ground swell of support for it on both sides of the Atlantic.

Publishing material anonymously (regardless of purpose) is by no means a new phenomena, it is even suggested in a recent biography that our esteemed Lord Mansfield (William Murray 1st Earl of Mansfield) published a pamphlet anonymously in support of his marriage to Lady Betty Finch; but the internet has opened up new possibilities that no one could have foreseen when in March 1989 Tim Berners-Lee wrote a proposal for “a large hypertext database with typed links”.

We ought not forget the many advantages the internet has brought to our lives; from commercial possibilities, through the many positive aspects of social networking to endless educational opportunities. Indeed in the light of the 2013 Snowden/NSA revelations & some if not many recent world events it is wonderful and not surprising to hear Tim Berners-Lee himself calling  for a bill of rights (making reference to an “internet version of the Magna Carta”) that would “guarantee the independence of the internet and ensure users’ privacy”.

But that does not directly equate to the “right” to post anonymously (other antonyms for “anonymous” might include: identified/known/named/public/visible) on the internet. Indeed it is quite possible to contemplate a world wide web where corporate &/or government control was minimal yet citizens were required to be in someway “accountable” in terms of their posting/s on websites. And if our psychological analysis is correct, it seems likely that if such measures (as I will be proposing) were put in place the incidence of cyber-crimes and general cyber-related discontent (the cost of which we are very far from being able to calculate) would fall precipitously.

I am not unaware of the kind of resistance that Zuckerberg’s brand of “radical transparency” or some variation thereof might engender & indeed it’s implications are potentially very far reaching but I for one would welcome the democratic debate that such a move would engender and it is in this light that I propose my potential law reforms.

For any legislation to be “desirable, practical and useful” it is essential that the problems it is intended to resolve are deeply understood, carefully targeted and it (being the legislation) is implemented in such a way that the benefits clearly outweigh the detriment. The evidence regarding anonymity and lowered standards of behaviour (both on and off the internet) is beyond persuasive. Many just use the internet’s shroud of anonymity for what might seem to be nothing other than harmless banter; but at its periphery lies a far more sinister story of which awareness is growing with alarming rapidity.

As Helen Goodman (shadow minister for culture, media and sport) recently said:

“I think it is the responsibility of legislators to do what only they can do. We don’t want another voluntary response. We need to address this gap between online and real identity… and make cyber bullying a criminal offence.”

To suggest legislative reform in this area (and calls are already underway in both England & Wales) without a careful consideration of the role anonymity plays in this process is tantamount to swatting the wasp without actually tackling the nest.

Current Climate

UK law in this area is very piecemeal; but prosecutions involving “cyberbullying”, “cyberstalking” & “online harassment” have sought to apply a number of existing laws:

•Malicious Communications Act 1988

•Criminal Justice and Public Order Act 1994

•Protection from Harassment Act 1997

•Communications Act 2003

•Breach of the Peace (Scotland)

•Racial & Religious Hatred Act 2006

• Defamation Act 2013

Under the School Standards and Framework Act 1998 (or Education (Independent Schools Standards) Regulations 2003 for independent schools) all UK schools are required to have anti-bullying policies; and though December 2012 saw the issuing of Crown Prosecution Service guidelines on “prosecuting cases involving communications sent via social media” there remains no current legal definition of “cyberbullying” within UK law.

In August 2009 Keeley Houghton became the first person in Britain to be jailed for “bullying on a social network site” (under the Protection from Harassment Act 1997) after posting:

“Keeley is going to murder the bitch. She is an actress. What a fucking liberty. Emily Fuckhead Moore.”

as her Facebook status.

June 2012 saw Nicola Brookes (after a series of over 3,000 abusive messages falsely representing her as a drug dealer and paedophile were anonymously posted online) win a landmark High Court judgement securing a Norwich Pharmacal order against social media giant Facebook requiring them to hand over the names & IP addresses of the alleged abusers.

Meanwhile in New Zealand; following the Law Commission review (quoted above) Justice Minister Judith Collins fast-tracked legislation to create two new offences:

  • Inciting suicide – up to 3 years jail
  • Using a communications device to cause harm – $2000 fine/up to 3 months jail

Additionally “courts will also get powers to order individuals, internet service providers and social media sites such as Facebook to remove or correct harmful material, apologise, give complainants a right of reply, and disclose the identity of anonymous sources.”

This latter decision, has not surprisingly raised a lot of First Amendment hackles in the USA where the debate concerning defamation and anonymity has long raged (attempting to balance the contrasting positions of Melvin v Doe and Ampex Corporation); Contra Costa County Superior Court Judge Judith Sanders in 2001 firmly erring on the side of internet anonymity.

Nonetheless nearly all US states have amended and passed state laws and legislation to address cyberbullying and harassment by electronic communications.

Law Reform Proposition

 

 

cyber-crime

http://www.ibtimes.co.uk

My proposition to the Law Reform Commission is conceptually simple; with nearly one in five children suffering a “negative experience” online last year according to a NSPCC survey and a 2012 study suggesting “over half of all internet users have received abuse online” it would seem that new legislation is required and sooner rather than later. I would initially propose an (umbrella):

A. Cybercrimes Act 2015; ultimately generating a series of new crimes to include all areas of digital criminal activity:

  • cyberbullying
  • cyberhate (racial/religious/otherwise)
  • cyberstalking
  • harassment by electronic communications
  • hijacking of another person’s online identity
  • malicious impersonation

This is by no means a small task & would be required to be an highly consultative process; the bill would be required to be very carefully drafted and express a very thorough and accurate understanding of what is and isn’t possible on the world wide web much in the way that banks, governments and other financial institutions have often been required to consult with ex-hackers to fully understand how secure their systems are or are not.

B. Amendments to existing laws to ensure “fitness for purpose”

There would need to be a thorough review of all previously mentioned Acts (see Current Climate above) to ensure that they were “adequately up-to-date to be applicable to digitally mediated communications.”

C. A nationwide review of all school & workplace anti-bullying policies to ensure they were bullet proofed for the realities of a “digital age”.

D. Last but not least I would wish for the House to consider (for the reasons presented above) an Anonymity Billproposing that at the very least that:

  • the right to block anonymous messages should be legally protected
  • consideration should be given to legislation that enshrines the concept of “radical transparency” essentially outlawing all anonymous posting on the internet

There is little in the world that cannot be turned to purposes both positive and negative and the world wide web is proving to be no exception. Invented by a Britain, it would seem there is now the very ripe opportunity for the UK to set the standard, if not aspire to lead the way in web-related legislation. With UNICEF, the Human Rights Commission and the United Nations calling for a “coordinated approach from governments around the world”, the 2009 Unlearning Intolerance Seminar recommending “international strategies on awareness, education, family involvement and policy change in dealing with “cyber-hate” we don’t have the luxury of delay. This essay is an attempt to contribute to that process by recommending the fast-tracking of cybercrime related legislation (in which we already lag behind a whole host of other jurisdictions) but also to suggest we go one step further and at least give adequate consideration to what would be potentially groundbreaking reforms; there seems little doubt that such legislation would be controversial and so it should be, for freedom of debate is what ultimately defines a democracy.

Just tabled amendment to Criminal Justice Bill to make life just a bit harder for cyber-bullies and sex pests using texts to harass victims.

Angie Bray’s Twitter account: 7:58 am 24 March 2014

Though welcome, current proposed reform does not go far enough, just serving to remind us of how the Ministry of Justice (particularly in its latest incarnation) tends to obfuscate rather than clarify, produce confusion (as if there were not already enough at common law) when we are craving pellucidity. Based on the deep understanding that these goals are not mutually exclusive; legislation in this area needs to be comprehensive, highly informed yet adequately codified and it is in such a light that I propose the Cybercrimes Act 2014.

just yesterday (28th September 2014) saw the passing of an 18 week custodial sentence for Peter Nunn after a prolonged campaign of Twitter intimidation of MP for Walthamstow Stella Creasy; her crime, campaigning to put Jane Austen on the 10 pound note, resulting in a series of rape threats: http://www.bbc.com/news/uk-england-29411031

References:

Claire Perry’s description of user-generated websites as reported: http://www.theguardian.com/technology/2014/jan/30/labour-calls-for-better-laws-to-stop-cyberbullying

Wallace Katherine “Anonymity.” Ethics and Information Technology 1 (1999): 23-35.

The Facebook Effect David Kirkpatrick ISBN-10 1439102120

http://www.facebook.com/help/112146705538576

http://www.bbc.com/news/technology-17337252

http://www.theguardian.com/society/2013/aug/19/ask-fm-cyberbully-hannah-smith-death

http://urbandictionary.com: “an online argument that becomes nasty or derisive, where insulting a party to the discussion takes precedence over the objective merits of one side or another”

http://oxforddictionaries.com: “make a deliberately offensive or provocative online posting with the aim of upsetting someone or eliciting an angry response from them.”

http://www.theguardian.com/society/2014/jan/08/cyberbullying-more-children-affected-childline

http://www.theguardian.com/world/2014/feb/22/charlotte-dawson-found-dead-sydney-home

New Zealand Law Commission August 2012 Ministerial Briefing Paper “Harmful Digital Communications: The adequacy of the current sanctions and remedies”

First Amendment to the United States Constitution (within all Council of Europe jurisdictions the reference point would be Article 10 of the ECHR)

Tom Bingham “The Rule of Law” ISBN 9780141962016

http://digitalfreedoms.idebate.org/digitalfreedoms/mtt/paper

Nogami T (2009). Reexamination of the Association between Anonymity and Self-Interested Unethical Behavior in Adults. Psychological Record, 59(2), 259–272.

Stanley Milgram “Obedience to Authority; an experimental view” ISBN 006131983X

http://www.prisonexp.org/psychology/1

Eckel C C & Grossman PJ (1996). Altruism in anonymous dictator games. Games and Economic Behavior, 16, 181–191.

Silke A (2003). Deindividuation, anonymity, and violence: Findings from Northern Ireland. The Journal of Social Psychology, 143, 493–499.

Postmes T & Spears R(1998). Deindividuation and antinormative behavior: A meta-analysis. Psychological Bulletin, 123, 238–259.

De Cremer D & Bakker M (2003). Accountability and cooperation in social dilemmas: The influence of others’ reputational concerns. Current Psychology, 22, 155–163.

http://www.theguardian.com/commentisfree/2014/jan/15/reveal-real-identity-online-anonymity

Norman S Poser Lord Mansfield Justice in the Age of Reason ISBN 9780773541832

http://www.w3.org/History/1989/proposal.html

http://mashable.com/2014/06/05/edward-snowden-revelations/

http://www.gmanetwork.com/news/story/381200/scitech/technology/inventor-of-world-wide-web-warns-of-threat-to-internet

http://www.theguardian.com/technology/2014/jan/30/labour-calls-for-better-laws-to-stop-cyberbullying

http://www.bbc.com/news/uk-wales-24525491

http://nobullying.com/anti-cyber-bullying-legislative-matters-in-the-uk/

http://www.cps.gov.uk/consultations/social_media_consultation.pdf

http://www.theguardian.com/uk/2009/aug/21/facebook-bullying-sentence-teenage-girl

http://www.localgovernmentlawyer.co.uk  Information Law in the Facebook Age

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10875273

Melvin v. Doe, 49 Pa. D. & C. 4th 449, 477 (2000)

http://articles.latimes.com/2001/dec/11/local/me-13765

Stiles A Everyone’s a Critic: Defamation and Anonymity on the Internet http://scholarship.law.duke.edu

H.R. 1966 (111th): Megan Meier Cyberbullying Prevention Act http://www.govtrack.us/congress/bills/111/hr1966

http://www.bbc.com/news/uk-23654329

http://www.telegraph.co.uk/technology/facebook/9323700/Trolling-abuse-got-worse-for-victim-Nicola-Brookes-after-Facebook-victory.html

https://www.mitnicksecurity.com

http://www.theguardian.com/technology/2013/nov/19/facebook-twitter-allow-block-anonymous-messages-david-cameron-adviser

http://www.k4t3.org/2013/07/04/radical-transparency-privacy-after-a-decade-of-facebook/

Lord Hailsham The Dilemma of Democracy ISBN 0002118602

Angie Bray’s Twitter account: 7:58 am 24 March 2014

http://www.theguardian.com/technology/2014/mar/26/cyber-bullies-tougher-penalties-internet-troll?

Glazebrook’s preface to Blackstone’s Statutes on Criminal Law 2014-2015