Category: Uncategorized

The Tate Modern viewing platform case – why did they not mention Denning?

2nd February 2023

In summertime the public viewing platform at Tate Modern is the delight of everyone.

Nearly every person can enjoy panoramic views of London, including into the rooms of neighbouring apartments, for which well-off people have paid – and they do not want other people to watch.

The platform will probably now be turned to some other use.

The whole of London will be much the poorer.

And all this because of those who have bought flats there next to the Tate Modern.

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Yes, this brief post is about the Supreme Court judgment in the “nuisance” case about whether local residents have a claim in respect of Tate Modern’s use of the top floor of its Blavatnik Building as a viewing platform.

A detailed look at this fascinating case is a subject for another post.

But, in the meantime, it is remarkable that one person who was not named in the judgment, the former Master of the Rolls Lord Denning.

I am not a fan of Lord Denning as an appeals judge, but nobody can deny his skill as a wordsmith.

And one of his most famous judgments was in the minority in the 1977 case of Miller v Jackson.

It is a case known to every student of English law.

This was a case about a village cricket pitch which, the plaintiffs contended, constituted a nuisance to the adjacent properties.

The case of Miller v Jackson is mentioned a few times in the Supreme Court judgment, but Denning’s famous minority speech is not alluded to – and he is not named whatsoever.

This can only be a deliberate omission, given the sheer fame of that Denning speech.

We should be impressed by the self-restraint of the Supreme Court judges not to mimic or even refer to the famous speech by Denning.

A temptation that cannot be resisted, however, by far lesser legal minds.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

“Bonfire of Red Tape”

18th January 2023

Nobody – really – is in favour of “red tape”.

It is instead the sort of thing which people are against.

In this way it is a bit like “complacency” as a thing which people are also against: nobody ever says “I think we should be more complacent”.

The very mention of “red tape” often prompts – and is intended to prompt – an adverse reaction, even jeers.

And, in turn, announcing a “crackdown” or “bonfire” or some other drastic-sounding word often prompts – and is intended to prompt – a positive reaction, and perhaps claps and cheers.

What sort pf person could possibly be against getting rid of “red tape”?

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But the problem is that much “red tape” has a purpose, and indeed is sometimes the consequence of that equal and opposite follies of our political discourse: “something must be done!” and “there should be a law against it!”

And so, like a perpetual motion machine, we have the following cycle:

1. An unwelcome phenomenon happens.

2. “Something must be done!” and “there should be a law against it!”

3. A thing is done and/or there is a law against it.

4. That thing or law becomes “red tape”.

5. “There needs to be a bonfire of red tape!”

6. And loop to 1.

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This is not to say that some regulations and rules are awful or redundant.

Indeed, there are many rules and regulations that any regulated person can think of without too much effort.

The problem is twofold.

First: there is no point in getting rid of a regulation without understanding its intended purpose, and also what would happen in respect of that intended purpose if that regulation was removed.

This means that repealing regulations – as with creating or modifying regulations – should be on a considered case-by-case basis,

Second: in a word, externalities.

Many areas of human activity are complex, and so removing (or adding or changing) one thing can have unexpected and unwelcome knock-on effects on other things.

This is obvious with a moment’s thought, for the very purpose of many regulations is to steer human activity in one direction rather than another.

In other words: the very intention of many regulations is to have knock-on effects.

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And now to the matter in hand: the reckless attempt by the current governing party to remove regulations inherited from our membership of the European Union.

You can tell almost no thought has gone into this exercise because of the superficial – indeed banal – contentions made in its favour.

It needs to be done, because of Brexit.

It matters not that many of these regulations may have been made for a good reason.

It matters not that some of these regulations were promoted by United Kingdom ministers and officials in our national interest.

It does not even matter that nobody is absolutely certain about how many regulations will be affected.

But it needs to be done, because of Brexit.

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What we have in this repeal bill is the combination of the older absurdity of “bonfire of red tapes” with the newer one of needing to have something – anything – to show for Brexit being worthwhile.

For in January 2023, most people – including those who have a close or passionate interest in Brexit – can point to little or nothing concrete as a benefit of Brexit.

It is all a bit silly and needless.

Perhaps there should be a law against it.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

New weekly law and lore content on my Substack

30th December 2022

I think I have worked out how to balance (a) carrying on with daily free-to-read posts on law and policy issues here with (b) also providing substantial original content for paying subscribers.

I will continue to post my daily law and policy post, and this will be crossposted to my “law and lore” Substack.

But.

For paying Substack subscribers I will also provide an exclusive weekly long explanatory background post on a more general legal topic.  Or this exclusive post may be on something to do with legal history or the relationship between law and lore/popular culture.  It will be something I will enjoy writing and which I hope you will enjoy reading.  And there even will be multi-sentence paragraphs, like this one.

As and when I start podcasts in the new year, these will be made available first to paying Substack subscribers too.

So please do consider becoming a Substack subscriber.

My first paid-for post will be tomorrow on Saturday 31st December 2022 – a review of 2022 as a constitutional year.

They will be published every Friday thereafter.

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If you are already a Patreon subscriber, this new exclusive content will also be posted on my Patreon site, so that you will not have to pay twice.

(I will also be contacting those of you who make regular donations by other means about either (a) you migrating to a Substack subscription or (b) me providing you with an appropriate other means of accessing the exclusive content – if you are one of these, please let me know your thoughts as a comment below, with comment marked PRIVATE)

It is important that nobody feels they are paying “twice” for my content.

Alternatively, do feel free to cancel your existing payment arrangement and switch to a Substack subscription.

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Many thanks you lot.

I am looking forward to freeing up more time to do longer content for you.

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Correction to yesterday’s post

3rd November 2022

Yesterday I attributed the following to the leader of the opposition:

“The Prime Minister promised integrity, professionalism and accountability in Government. His Home Secretary has leaked information, is overseeing chaos in the Home Office and has broken the law. What will she actually have to do to get the sack?”

The question was instead from Dame Meg Hillier, the chair of the public accounts committee.

I have corrected and amended the post accordingly.

I apologise for this error.

(It is never fun to correct such an error, but it should be done openly, as it goes to ensuring that readers can have confidence in the blog generally.)

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

The comments policy is here.

The new Prime Minister of the United Kingdom – a constitutionalist perspective

6th September 2022

We have today a new Prime Minister.

You may have Very Strong Opinions about them as a person and as a politician.

But let us put those Very Strong Opinions to one side, and let us look at the appointment from a constitutionalist perspective.

Constitutions are about, among other things, parameters of political action – constitutions provide what certain political and other actors can and cannot do, and when.

So the first point to make is that the new Prime Minister only has a short period so as to make any political impression before the next general election.

It is now September 2022 – and the next general election has to be called by December 2024, in just over two years’ time.

The last possible date for an election, once called, is January 2025.

This means that any controversial legislation – especially if it outside the scope of the Conservatives’ 2019 manifesto – is unlikely to get through the House of Lords in time.

And the new Prime Minister may even want to call a general election sooner, which they can do because the Fixed-term Parliaments Act is now repealed.

The second point to make is how weak the new Prime Minister is, despite the governing party’s majority in the House of Commons.

Only 50 of the new Prime Minister’s colleagues supported them on the first vote, out of 358.

The new Prime Minister did not even have a majority support of their parliamentary party at the final round before it went to the party membership vote.

This means that there seems to be little positive support in the Conservative parliamentary party for the new Prime Minister.

Indeed, both the departing Prime Minister and the defeated leadership contender will probably have as much substantial support in the parliamentary party as the new Prime Minister.

The new Prime Minister, in their first appointments, seems to be rewarding their supporters rather than building a party-wide coalition.

As any Prime Minister only has so much autonomous power, the lack of a natural and positive parliamentary majority will be a problem.

The governing party is currently prone to rebellion and revolt, and there is nothing about the appointment of the new Prime Minister and their first cabinet appointments that looks as if this propensity to rebellion and revolt will change.

So, not only is there a looming general election and the practical inability to force contentious measures through the upper chamber, there is the possibility that the new Prime Minister may not even be able to get legislation through the lower chamber.

Within the United Kingdom more widely, the matter of the Northern Irish Protocol is no nearer resolution, and the Scottish government is pressing for a further referendum.

Serious questions about the future of the Union are being posed at a time where the new Prime Minister is not in a strong position.

And all this – all of this – is in addition to the pressing political problems of the cost-of-living crisis and the escalating energy crisis, as well as war in Europe.

Any one of these would be a challenge to a Prime Minister in a strong position.

It is difficult to see how the new Prime Minister, who is in a weak position, is going to be able to address, let alone resolve, these issues.

As this blog has said before: do not underestimate any politician who clambers to the top of what Benjamin Disraeli called the “the greasy pole”.

And this blog will give the new Prime Minister a clean slate.

But.

Given the circumstances of the appointment, the outlook for the new Prime Minister Elizabeth Truss is not looking good.

It is difficult to be optimistic – even if one supports her politically.

Brace, brace, as they say.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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Is this an abuse of the law of contempt of court?

5th August 2022

I came across a case on BAILLI which I read with increasing concern, indeed dismay.

I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.

And I could not believe what I was reading.

I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.

The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.

The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.

Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.

But this case seems to show how contempt of court this can be abused by the injuncting party

The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.

The application seemed either spiteful or irrational – for a bad reason or for no reason.

And certainly not for any good reason.

The judge was not having any of it, and these two paragraphs give a flavour of the judgment:

Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.

Is this a case worth a close reading?

Is this an (attempted) abuse of power which should be be brought to a wider audience?

Or is this a storm in a lawyer’s tea cup?

Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?

I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.

I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.

There is a Law Gazette news report here.

And Adam Wagner has done a Twitter thread here:

Let me know what you think.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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The Brexit Multiverse of Madness

13th May 2022

The multiverse is a concept well known to superhero comics fans.

A multiverse, in essence, allows the same characters and places to exist in a number of alternative realities.

For the storyteller and the reader this allows different stories to be told about say, Batman and Gotham City, unconstrained by the hobgoblins of continuity or consistency.

For the publishers and film-makers it allows deployment and exploitation of valuable intellectual property in a number of different contexts, unconstrained by those same two hobgoblins.

And there is the added advantage that, every so often, you can have crossover and ‘crisis’ events where universes collide.

Everyone is a winner.

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Brexit is a multiverse.

In one continuity, Brexit-I, you have the official position – as illustrated by treaties signed and legislation passed, and by economic data.

This is the version of the Brexit story that a historian working only from official and business records would tell.

In another continuity, Brexit-II, you have the excited briefings and front-page newspaper splashes that spill over from the soap opera of Westminster politics.

The weekly event of the United Kingdom government about to do something rather dramatic and plainly stupid, in return for claps and cheers from the easily impressed.

Often this second continuity crosses over to the first continuity and there is a crisis event.

And there is a third continuity, Brexit-III, which are the same events as set out above but as seen with bemusement and/or horror from Dublin, Washington, Brussels and elsewhere.

This is the world of Brexit-III – the story of outside entities who are affected by but cannot directly intervene in the worlds of Brexit-I and Brexit-II.

Those in Brexit-III are conscious of the propensity of Brexit-II in particular to create crisis events.

Yet Brexit-III is stuck in its own external continuity, with its own norms and values unknown in Brexit-II.

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Every so often in comics you will get a bright and ambitious executive who directs that the separate universes in the multiverse be fused, because it is all getting too complicated for new readers.

And we then get stories where characters in different universes are confronted with their counterparts, knowing only one version of themselves will survive.

This can be all great fun – but such grand fusions rarely last long, and the universes again multiply because that is the way of superhero comics, as it suits the respective interests of readers, storytellers, and businesses.

Some may think it is a good thing for a multiverse to be fused, but nobody really likes it for long.

And the same can be said for the Brexit multiverse of madness.

Brexit-I is best kept as far as possible from Brexit-II.

Those invested in Brexit-II will never understand Brexit-III, and vice versa.

Trying to unify Brexit so there is a single continuity and narrative that can be shared by all is pointless and futile.

There will not be a single Brexit story, at least for a political generation.

And so we will have, at least for a political generation, crisis events where these Brexit universes collide.

Brace, brace.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

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Solidarity with university and college law lecturers

14th February 2022

I have a honorary lectureship at a law school and, although that is not a ‘staff’ role and I am not a union member, it does not seem appropriate to break the ‘digital picket line’ today, as my colleagues are on strike.

As such I will do what I can – little as it is – and respect my colleagues and not commentate on legal matters today.

Back tomorrow.