The Colston Four and ‘perverse’ jury verdicts: a very English tradition

The UK “Colston Four” trial of various people involved in removing the statue of the slave trader (and “philanthropist”) Edwin Colston from the streets of Bristol has focused attention on so-called “perverse” court verdicts and what, if anything, to do about them. Those lovers of England’s Common Law, Britain’s “rule of law”, trial by jury and Magna Carta (from which English jury trial may be seen to have derived) feel there is something wrong when that system allows protesters to apparently flout the law for political purpose.

Yet “perverse” verdicts are part of the great English legal tradition with almost constitutional import, greatly admired as a way of spurring social progress or resisting an overwheening authority. The believers of our great British traditions and the rule of law might perhaps be proud of the fact that occasionally a defiant jury has achieved a result of social importance through wholly legal means (bringing in a verdict).

The Seven Bishops case
A jury’s verdict does not set a precedent. Each case is on the facts; the jury’s decision cannot (in a legal sense) be impugned (unlike the rulings of judges or their summings up for juries in criminal cases).  But a  jury did set a precedent of sorts once – the ultimate precedent, that juries shall not be browbeaten by the authorities into giving the “correct” verdict. It is the precedent that underlined that juries should come to their own view on the cases before them, however angry it makes the authorities (or, in the present day, the newspaper people even before they were able to read the judge’s comments in the Colston case). The pride the British people have in the jury system (as enunciated in centuries of good old-fashioned Angolo-centric British history, none of your “woke” quasi-Marxist stuff) derives from that case: the Trial of the Seven Bishops.

Priti Patel and bullying: what is the law?

Can a person whose behaviour constitutes bullying really be exonerated if there was “no intention” to bully, as the case of Priti Patel, UK Home Secrtary, suggests? The answer is fundamentally no – but overwhelmingly, yes, since workplace bullies throughout the country claim this defence in disciplinary proceedings – and usually successfully when their management is willing to give them the benefit of the doubt.

Can the bully be exonerated because she is working in a “challenging” job with people resistent to change, as Patel claimed? Again the answer is no. If you resort to bullying in these circumstances that would be bullying as a technique of management – and hence intentional; or you’ve simply lost it and should be moved from your post or at the very least get some retraining. But again the answer is “yes” since blaming the victims is always a good ploy for a manager facing a sympathetic disciplinary chair.

One hesitates to say that the Patel bullying scandal has set back the rights of employees making bullying allegations since the two excuses – “I didn’t mean it” and “they drove me to it” are standard tropes when such allegations are made. They have no basis in logic or law yet employers use them to find against staff making bullying claims or mitigate the offence to the extent that throwing in a bit of anger management is deemed sufficient to show something is being done.

The prime minister, Boris Johnson, is in the lucky position of having arbitrary powers under the Ministerial Code to throw out allegations however well founded. Employers have to show themselves acting more fairly and rationally in such cases and must have somewhat stricter codes of conduct, anti-bullying policies and disciplinary procedures. Nevertheless, whatever the rules, the complainant is at a disadvantage whenever an employer backs a bullying manager.

UK Parliament or Executive: which is top dog in Britain’s constitution?

Boris Johnson is telling all who are willing to listen that he has a mandate from the people to cling to his post as prime minister come what may. This gives him remarkable powers –  to ignore the long established traditions of his party and of Parliament regarding when a prime minister has run out of road and should resign.

Does he have any constitutional justification for his view? There have certainly been questions asked about whether Britain’s “sovereign” Parliament as important – or as sovereign – as we assumed. There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern and the Prime Minister have his way.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’s prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive (including those founded in the royal prerogative).  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before Miller in a piece headlined: Parliament has no right to plot a Brexit coup.

A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?

The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from the flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition the Government’s Brexit approach – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government) and here in mor detail: Government of national unity? Possibly.

But generally in the great Brexit debate, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

The bedroom tax and Laws’ Law of Non-Intervention

The “bedroom tax” judgment in the High Court is a severe blow to disabled tenants in council and housing association accommodation. But it is more. It is an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the European Convention on Human Rights.

In Lord Justice Laws the Government seems to have an anti-Strasbourg champion, ready to return to an age when judges would offer “due deference” to the governmental authorities and intervene in executive or administrative decisions only if they were “manifestly unreasonable”.

Sadly, Laws seems not to consider it “manifestly unreasonable” to impose what amounts to a fine on disabled tenants who need more space in their homes than the average person.

Laws takes a strong constitutional stance against judicial intervention in government decisions in his rejection of claims that the bedroom tax is discriminatory in R (MA and Others) v Secretary of State for Work and Pensions (30 July 2013).

His judgment looks like a remarkable attempt to rein in the courts when considering decisions made in the political sphere. He states:

“The cause of constitutional rights is not best served by an ambitious expansion of judicial territory for the courts are not the proper arbiters of public controversy.”

Judicial restraint requires that judges limit themselves to considering the process of decision-making, not the outcome of the decision itself – otherwise Laws fears judges could end up reviewing the substantive merits of almost all public decision-making – whether decisions are morally right or wrong rather than simply whether they were properly arrived at.

Lords committee issues new criticism of Theresa May over immigration

A UK Parliamentary committee has issued further criticism of Home Secretary Theresa May’s attempts to get flawed British immigration rules accepted by the courts.

May placed 290 pages of immigration code of practice rules in the House of Lords in an apparent kneejerk reaction to the Alvi case where the rules were struck down by the Supreme Court (reported here).

The court took the view that the Home Office was trying to treat the code as law for the purpose of barring immigration and for deportations even though they had passed through no proper parliamentary procedure. The day after the case, on 19 July, May sought to gain some sort of parliamentary sanction for the code by placing it before the Lords – a few days before their summer recess (the House of Commons was no longer sitting).

The House of Lords Secondary Legislation Scrutiny Committee has questioned this latest move on the grounds that the rules “may imperfectly achieve their policy objective”. Under the 1971 Immigration Act S.3(2) to count as legislation, such rules should lie in both Houses of Parliament for 40 days to allow parliamentarians to object or debate them if they wish – the so-called “negative procedure”.

Theresa May’s meaningless statement on immigration rules

A UK parliamentary committee has expressed concerns about the procedure used by Home Secretary Theresa May to give enhanced democratic credibility to tougher action on immigration.

Her new Immigration Rules have been presented to Parliament in a constitutionally innovative manner that may have no legal validity. This involved not simply passing the rules through the two Houses of Parliament by the traditional means for secondary legislation but having an additional debate (with no vote) in the House of Commons (but not the House of Lords) to assert the legal power of the Rules against the claims of international human rights law.

The intention behind the Statement of Changes in Immigration Rules (HC 194) was to use the debate “as a vehicle to gain Parliament’s endorsement of its approach to Article 8 of European Convention on Human Rights to assist the courts when deciding appeals on immigration matters”, noted the Secondary Legislation Scrutiny Committee of the House of Lords. (Committee Report 4.3 pdf)

However, the committee implies that the procedure was of dubious validity and constitutionally unlikely to have the desired effect – to force judges to reduce their reliance on Article 8(1) when judging immigration and deportation cases.

Can Pepper v Hart save Julian Assange?

The UK Supreme Court Julian Assange European Arrest Warrant case has been delayed for two weeks for new legal arguments to be put regarding the meaning of the UK legislation that enacted the EAW system. Those arguments may draw on the minority pro-Assange judgment of Lord Mance who made interesting use of the principle in Pepper v Hart [1992] UKHL 3 (summarised below) – that judges may consult speeches in Parliament to establish the purpose or meaning of statutes.

The issue at stake is whether “judicial authority” (the words used in the 2003 Extradition Act) for the purpose of issuing the arrest warrants can include mere prosecuting authorities, as is the practice in some European countries.

Sweden’s prosecutors are seeking Assange’s arrest to question him on allegations of sexual offences. If UK law requires a court or judge to issue the warrants, then Sweden cannot have him. It is a question of how the words “judicial authority” are interpreted, and Mance cited parliamentary debate on the Extradition Bill in Hansard to suggest that MPs were clear in their minds that they were voting for judges and courts, not for prosecutors.