Disproportion about proportion

May 17 2023

In my review of Adam Wagner’s Emergency State I talked about proportionality:

Proportionality is a key concept in human rights law, and Wagner’s approach and my criticism of it may be explained by different instinctive approaches to proportionality. … Perhaps my background as a former government lawyer makes me tend to allow a substantial margin for a range of different policy approaches all to be justifiable, whereas some very human rights-minded lawyers can seem to think proportionality is a search for the one and only exquisitely calibrated ideal response, with all “really existing” options presumptively unjustified. I see this approach as hypercritical, and making it difficult to recognise, acknowledge or support proportionate measures when you see them.

There was an interesting judicial review judgment the other day, against the anti-lockdown protester Deborah Hicks (it was one of two cases she lost, in fact), who’d claimed that a Magistrate’s Court, having convicted her of breaching coronavirus lockdown regulations in 2020, had unlawfully refused her permission to appeal on a point of law to the High Court (something that’s called a “case stated appeal” because in legal jargon the Magistrates’ Court “states a case” to the High Court; I’ve never known why this particular procedure has this name, but it’s a very interesting, highly legally technical sort of criminal appeal).

Mr Justice Chamberlain explains the facts (para 3 of the judgment):

On 16 May 2020, there was a protest in Hyde Park against the lockdown. Debbie Hicks learned of the protest and decided to attend. She drove from Stroud to London and then took the underground to Hyde Park, arriving at about 12.30pm. At 1.10pm, Ms Hicks was standing on the edge of the crowd, which numbered over 100. Police Constable Casey of the Metropolitan Police approached her, explained that she was committing an offence under the Regulations and directed her to go home. She responded that she did not care and attempted to argue with the officer. PC Casey explained that failure to comply could lead to a £60 fine. She did not leave, so PC Casey issued an FPN for £60. She did not pay and was charged with contravening reg. 7 of the Regulations.

Regulation 7 made it unlawful to take part in a gathering of more than two people in a public place.

If you’re interested in the law of the pandemic and the law of protest, as I am, you’ll be interested in the whole story, and in Chamberlain J’s rejection of Ms Hick’s complaints. But I want to make a particular point about proportionality.

Deborah Hicks asked the judge to state 7 questions to the High Court, which you can read at paragraph 7 of the judgment. In those draft question she raises questions of proportionality repeatedly, wanting the Hight Court to consider:

Did District Judge Snow carry out a correct analysis of proportionality of interference with human rights … Did he fail to assess the proportionality of the interference with human rights posed by the regulations, as opposed to only considering the proportionality of the court finding her guilty of the offence? … Did he fail to properly consider proportionality of the interference with Ms Hicks’ human rights at all? … Can it be said that the interference by the Government with human rights … by restricting gathering to protest during periods of national lockdown was proportionate given that there were less restrictive measures available …

Chamberlain J unsurprisingly saw no problem with the proportionality of the conviction.

Think about this way. She drives a long way to this unlawful (and perhaps in some people’s view dangerous) protest, then takes part in it for 40 minutes without a legal problem. Even when a police officer approaches her, all that happens is she’s told to go home. Then even when she refuses to comply, all that happens is that, in effect, she’s fined £30 (which is all she would actually have paid had she just got her debit card out within two weeks). Deborah Hicks decides to fight that all the way to the High Court.

Who’s been disproportionate here?

2023-05-16T21:23:45+00:00Tags: , , , |

Retained EU law: shredding the shredder

April 28 2023

That video gives the impression, doesn’t it, that Rishi Sunak was going to “shred” retained EU law within a hundred days? That was certainly the sort of thing many Conservative members wanted to hear last summer.

They believe, and believe they’ve learned from experience, that the best way of dealing with Brussels and its works is to passive-aggressively set a deadline after which we leave with No Deal, or upon which every bit of retained EU law goes up in a puff of smoke. They doubt these sudden shocks would be a problem; but anyhow, the threat of the cliff edge will concentrate minds. That was the impulse behind Jacob Rees-Mogg’s plan to “sunset” masses of retained EU law by the end of 2023, and to which Sunak’s campaign video spoke.

But if you were listening carefully to Rishi Sunak last year, his actual intentions always seemed different. Point 4 of his “Ten Point Plan for Britain” read as follows:

Delivering on Brexit – Scrapping all EU laws that hold the economy back before the next election.

Apart from the different timescale, note that what’s being referred to here is a cleverly defined subset of retained EU law. Brexiteer MPs and Conservative members tend to believe that all EU law by definition holds the UK economy back; so naturally they think Sunak was promising to scrap all retained EU law. I suppose you can’t blame them, given that video. But you, I and Rishi Sunak know that he meant only those specific bits of retained EU law that in his view really do hold the economy back. I said so at the time:

The original Rees-Mogg plan was always impractical. Easy for the Conservative barrister Steven Barrett to say that it’s just a question of

going through a pile of law and putting on a red/amber/green sticky note

and I suppose it would be relatively easy if you just said all retained EU law should stay—but that’s not what was intended, of course. Easy if you think large amounts of law can just be deleted without having any negative effects on the country—but you’d have to be reckless to think that. The hard bit, the bit that will take lots of civil service and ministerial time, is thinking through how any retained EU law that can be improved on, should be improved on. That’s actually the goal, and the government certainly doesn’t have the time or resources to do it all by the end of this year.

I had thought ministers would stick with the bill as it was and just use the very extensive powers it would give them in such a way as to quickly roll over most retained EU law at least for three years, and only replace choice bits of it. Ministers do seem to have that sort of plan but it now appears that they’ve decided to drop or delay the end-2023 deadline as well. The FT says Kemi Badenoch

told Tory Brexiters this week that the majority of almost 4,000 pieces of retained EU law would remain on the statute book, with perhaps 800 being removed by the end of the year.

Badenoch’s allies did not deny on Thursday that the government was preparing to ditch a December 31 2023 “sunset clause” …

Ditching the deadline would save the time and trouble of making new laws about lots of things just to maintain the status quo.

Funny, in a way, that this all became news this week. Michael Gove told the Levelling Up committee a month ago (see his answer to Question 26) that

Of course, a question is raised by the timetable in the retained EU law Bill, but—I will be making this point to Ministers from the devolved Administrations when we meet to discuss the Bill—we are seeking to ensure that our statute book is in an orderly fashion, looking at every piece of retained EU law and deciding whether we want to retain, amend or ditch. I think that, in the overwhelming number of cases, by the end of this calendar year we will have decided that we want to retain.

I suppose most MPs will have missed Gove’s answer at the time, whereas now Kemi Badenoch’s said the same directly to them, they can’t miss it.

This is a sensible and welcome approach from the government, whatever anyone might feel about that campaign video.

2023-04-28T08:45:21+00:00Tags: , , |

Is a digital newspaper a newspaper? The “always speaking” principle

April 27 2023

Times print and digital editions

A Supreme Court judgment recently held that a digital newspaper isn’t a newspaper. This was the case of News Corp v HMRC, in which the media giant tried to get the court to agree that its digital newspapers fell within the special zero rate of VAT that applies to “newspapers” under section 30(2A) of and Schedule 8 to the VAT Act 1994.

You might think the answer is obvious: a digital newspaper must be a newspaper, just as a brown dog is a dog. That’d be a wholly linguistic approach, which I’m not sure works infallibly on its own non-legal terms (is oat milk milk?). But it’s certainly not good enough when thinking legally about legislation. I’m biased, but I reckon legal thinking about the meaning of legal texts—what in the UK we call statutory interpretation—is miles more interesting, nuanced, important and complicated than philosophical wordgames. This Supreme Court judgment is a bit of a masterclass in statutory interpretation from Lords Hamblen and Burrows, with an interesting separate but concurring judgment from Lord Leggatt.

The starting point of the analysis is the legal presumption that an “updating” construction should be put on legislation—it normally means what its text means now, not, normally, what it meant when it was enacted. It’s immediately obvious that this presumption is the opposite of the “originalism” you often hear talked of by American constitutional lawyers.

Lords Hamblen and Burrows explain this idea that legislation is “always speaking”  at para. 29 of their judgment:

What is meant by the always speaking principle is that, as a general rule, a statute should be interpreted taking into account changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and changes in the law. Very importantly it does not matter that those changes could not have been reasonably contemplated or foreseen at the time that the provision was enacted.

But the “always speaking” presumption of updating construction is not the only applicable principle in the case. The context of this tax dispute was that the UK was allowed to zero-rate newspapers because of an exception in EU VAT law which allowed this. The dispute relates to a period when the UK was in the EU, which is why EU legal principles and case law are considered throughout the judgment.

In EU law, national exceptions like this to a general principle (here, that the supply of goods and services should attract VAT) are to be interpreted strictly, or narrowly if you like. Lords Hamblen and Burrows derive that principle from a number of European cases, but as they say, it is a well established EU law idea.

In that context, they say at paragraph 48,

the always speaking principle … has to be applied having regard to the EU law constraints imposed by the standstill provision and the principle of strict interpretation of exemptions … Here these constraints mean that the always speaking principle is significantly limited so as to ensure that it does not conflict with the requirement for zero-rating for newspapers to be strictly construed and not extended.

Against that background, the court concludes that there’s just too much difference between hard copy and digital editions to see the digital version as a “newspaper” within the meaning of this particular legal text (paragraphs 57 and 58):

the technological development that has led to digital editions is a radical one which takes one a long way from the physical item and opens up all sorts of possibilities for interactive communication that were not possible with print newspapers. … Although … the content of the digital editions is the same or very similar to physical newspapers, it is clear that digital newspapers are in other respects very different from print newspapers.

In our view, therefore, having regard to the constraints of EU law, the always speaking principle cannot be applied so as to interpret newspapers as covering digital editions.

Lord Leggatt gives a concurring judgment (in other words, he agrees with the result but he thinks his legal reasoning to get there is different enough to be worth drawing attention to) amounting to a historical and legal deconstruction of updating construction. He concludes (para. 90) that no such presumption applies when interpreting laws in the light of technological change:

Whereas there is a presumption, in deciding what rights and obligations a statute creates, that current social values and scientific knowledge should be applied, the advent of new technology seems to me an essentially neutral factor. There is no equivalent justification for any general rule or presumption that a statute is intended to apply to a newly invented object or process.

He discusses the important difference between meaning and application, or sense and reference, with a quote from the famous philosopher Quine, before he concludes (para. 96):

For these reasons, I do not consider that anything which can be described as an “always speaking doctrine” has a role to play in this case. There is no reason why the fact that digital editions did not exist when provision for the zero-rating of “newspapers” in the UK was originally made … should give rise to any presumption that the term should be read as including the digital editions after they were invented. When technological progress occurs, the proper approach is simply to ask in accordance with ordinary principles of interpretation whether the newly invented object falls within the meaning of the statutory language, interpreted in the light of the legislative purpose.

The majority, then, holds that the “always speaking” presumption of updating construction does apply when considering questions like this, but in this EU law context is rebutted or outweighed by a different interpretative principle; while Lord Leggatt thinks no such presumption applies to this sort of thing in the first place.

Large sums of money can turn on the legal application of interpretative rules and presumptions like this, as can the success of public policy, guilt and innocence, and individual freedom: it matters hugely to business, governments and individuals. It’s the worldliness of statutory interpretation that I think makes it so fascinating.

Lord Burrows gave an excellent lecture earlier this year on statutory interpretation, by the way, which I recommend to anyone who’s interested in this subject.

2023-04-22T19:27:37+00:00Tags: , |

Emergency State by Adam Wagner: having and eating cake?

April 23 2023

detail from cover of Emergency State

Adam Wagner has written a very interesting, highly readable and thought-provoking book about law and the pandemic, based on his professional experience in a number of important court challenges to aspects of the restrictions, not just as an ordinary citizen. I’m very late to review it, but I recommend it. If you have an interest in law you really should read it.

None of which means I agree with its premises, arguments or conclusions. What Wagner’s right about is the extreme departure from normal social life we experienced during the pandemic, and that Britain could have handled better the legal aspects of that abnormal period. Many of his criticisms of the government and the police are hard to argue with.

He’s right that the government was too anxious to avoid Parliamentary scrutiny, and MPs insufficiently anxious to insist on more. He’s right about “dog law” (you’ll need to read the book to find out what that means), that the regulations were often very complex, perhaps too complex, that they were often published too late, and confused with guidance, and that police sometimes enforced them wrongly or excessively in many cases, particularly over the Sarah Everard vigil. He’s right I think the Civil Contingencies Act should have been used rather than public health legislation. He’s absolutely right to criticise the Johnson government’s tendency to authoritarianism and arbitrariness, and its contempt for Parliament and law. Right too to disagree with “lockdown sceptics” like Lord Sumption. So he’s right about a lot of things.

He’s also balanced. He accepts that it was very difficult for government and police to get to get everything right, especially when time was critical with lives at stake; and doesn’t suggest any country obviously did much better. Unfair, this book isn’t.

Still, Wagner’s approach is flawed in ways that I think lead him astray on the big picture. He says sometimes that we “lent” our freedoms during the crisis, but sometimes that we “lost” them, and because of this ambiguity his detailed critique carries throughout (intensified by its key conceit, the ominously capitalised “Emergency State”) a implication that we’ve lived through something like a Carl Schmitt-style “exception“, a suspension of legal and constitutional order in which we “lost our freedoms” to absolute dictatorship. But that’s not something that happened, or felt likely to happen. Wagner doesn’t go full Giorgio Agamben by any means (and rightly condemns grotesque comparisons to Nazi laws), but there is a logic in “states of exception” thinking that can feed conspiracism and scepticism of science and democratic government, and I worry that this book flirts a little with that logic.

A second significant flaw is how non-committal the book is on the big question of whether national lockdowns (for example the original order to “stay at home”) were justified. Wagner defends this stance on the basis that it’s not a question for lawyers, and only time and science can tell us how many lives were saved:

What I will not do is tell you whether every aspect of the restrictions was justified. These are issues of vital importance. But they are not ones on which a lawyer has the expertise to reach a conclusion. In truth, I doubt we have reached a stage when some judgments can even be made.

But it just isn’t good enough to duck this. Whether lockdowns were justified in terms of public and human rights law is a question squarely within his expertise; it’s not one that can be outsourced to scientists, any more than its political and moral aspects can. And it must be judged on the basis of what was known at the time the decision is made, or else no lesson can ever be applied at any future moment of crisis, by a minister or a court who will again have to act on uncertainty. The only reasonable conclusion is that by and large pandemic restrictions, including national lockdowns, were justified—and should in some cases have been introduced earlier than they were. It’s disappointing that Adam Wagner’s unwilling to say clearly that he agrees.

The conclusion I reached was that as a human rights lawyer my efforts would be most useful spent not pontificating on the huge question of whether lockdowns could be justified: I could no more reasonably answer that than any other non-scientist.

I said he disagrees with Lord Sumption’s lockdown scepticism, and he does. But he also concedes too much to Lord Sumption, I think, and ends up too generous to Sumption’s position.

looking back now, I agree with much of his critique. 

There’s another strand of “cakeism” in his discussion, which I see as linked to hypercritical thinking about proportionality. On one hand Wagner’s concerned about the untargeted, broad-brush national lockdowns that affected everyone equally, whether infected or exposed to the virus or not. On the other, once geographically targeted restrictions come in, he’s worried about how they discriminate. He says that to be proportionate, measures must be

as close as possible to the precise restrictions necessary to contain COVID-19

while also complaining about constantly changing rules with ever increasing exceptions, and a “summer of micromanagement” in 2020. But of course when circumstances are constantly changing this is the only way to stay as close as possible to what’s precisely necessary. You can’t be against both rough simple rules that apply equally, and precisely targeted, calibrated measures—unless you’re against both. To be fair Wagner himself identifies these tensions in his thinking and is right, of course, that there are human rights considerations favouring one approach in some circumstances, and others favouring the other. He concludes that human rights thinking needs to be at the heart of emergency response; but really what this all shows is that human rights can’t tell you what you need to do. He admits that when he says—

It is beyond the scope of this book to reach a scientific conclusion as to which methods should have been used and which not.

Proportionality is a key concept in human rights law, and Wagner’s approach and my criticism of it may be explained by different instinctive approaches to proportionality. How critical of a unwelcome measure should we be when asking whether it was proportionate to some threat, and therefore justified? How much latitude should we allow the decision maker? How intense a review is the proportionality analysis lawyers and courts should apply? Perhaps my background as a former government lawyer makes me tend to allow a substantial margin for a range of different policy approaches all to be justifiable, whereas some very human rights-minded lawyers can seem to think proportionality is a search for the one and only exquisitely calibrated ideal response, with all “really existing” options presumptively unjustified. I see this approach as hypercritical, and making it difficult to recognise, acknowledge or support proportionate measures when you see them. This is a particularly telling paragraph:

One of the odd aspects of the government’s covid-19 strategy was that, from a proportionality perspective, it seemed to be happening back to front. Ordinarily you would expect the state to begin by quarantining those most likely to be affected and isolating those who are infected. If that does not work, you can cast the net wider. But the UK government did the opposite. It began, in March 2020, with the quarantining of the entire population, regardless of the likelihood of infection.

The point he misses is that nothing short of lockdown was at the relevant moment sufficient to be confident of contain the pandemic and saving lives, and therefore only lockdown was proportionate to the threat. Proportionality does not in all circumstances require a graduated response.

There is one part of Wagner’s argument that I think he blows up out of proportion—when he discusses the so-called “sex ban”. It’s true that when it was illegal to visit someone else’s home, you couldn’t go round to your girlfriend’s or boyfriend’s and have sex with them there (or eat a meal with them or share a bottle of wine, to mention other possible activities). This was of course a huge limitation on many people’s lives, for as long as it lasted. But sex was not being targeted any more than meals or wine were—there was no criminal offence of having sex, or criminal law penalisation of sex, as he implies even if he doesn’t seriously mean to. And if a ban on social visits was necessary, as I think it was, then a “sex exemption” would have blown a huge hole in it, since anyone could have claimed they were having sex at any private residence they wanted to visit. To call this a “sex ban” is I think tabloid-like, and no more accurate than to suggest Boris Johnson was fined “for eating cake”. It’s the point of the discussion at which I think Wagner’s human rights-mindedness comes close to resembling the dodgy “libertarian instincts” that led Boris Johnson into (for other people) fatal errors.

Wagner says

It is perhaps a feature of our prudish culture that it was treated as a sniggering but not serious criticism of the lockdown rules

But actually the “sex ban” complaint was a typically British sniggering reflex, thinking about the consequences of extreme legislation in the same way teenagers might look up the rude words in a dictionary. Wagner’s point would be more persuasive if he plainly argued that some lesser restriction on home visits would have been sufficiently effective: but of course that’s the sort of judgement he doesn’t want to make.

I must mention his conclusion that we need a written constitution. This is a standard demand of centre-left liberals and many public and human rights lawyers, but there’s really nothing about the pandemic that suggests we need one, or would be better off with one. Wagner admits that restrictions were more, not less, rigorously enforced in some other European countries with written constitutions.

At one point he quotes Orwell, writing that whether you lose or keep your freedom depends on “the general temper in the country”. Orwell was right of course, and his insight tells us why, in Britain, the pandemic felt like lending but not losing liberty. The general temper favoured justified restrictions, but only justified ones. Wagner agrees, fundamentally, that there was in Britain no great historic clash of freedom versus unfreedom.

But that thoroughly sensible view is obscured by some mixed messages. They make “Emergency State” ultimately an ambiguous, conflicted book that sometimes evades key questions, unjustifiably implying more than it justifiably says.

But Adam Wagner makes many good points, and has a lot to contribute to preparation for the next pandemic or similar emergency. I look forward to disagreeing with his next book.

2023-04-22T19:26:12+00:00Tags: , , , |

Letter from a Birmingham Jail

April 22 2023

I’m perhaps a few days late to commemorate the 60th anniversary of a great modern document—Dr Martin Luther King Jr.’s Letter from a Birmingham Jail, written in April 1963, but widely published a few weeks later. Written while he was detained in Alabama, having been arrested for taking part in an unauthorised protest march in breach of an injunction, it’s an eloquent argument for non-violent disobedience, and a classic of politically, or I suppose more accurately morally activist literature.

What most interests me is King’s discussion of law, set out below. This is not only the best, most accessible and persuasive explanation of natural law theory I’ve read; it’s also highly persuasive advocacy for a view of the rule of law that has elements of what’s sometimes called a thick approach, making genuine law dependent on democracy, equality and respect for human rights; and elements of a procedural morality type of approach to the rule of law was being developed at Harvard Law School by Lon Fuller at about this time. There is so much to think about in this passage, whether you’re concerned about statues in Bristol, or “small boats”, or how far protesters and lawyers should go in climate change activism.

The US Supreme Court decision he refers to is Brown v Board of Education, and towards the end of the letter he mentions the Hungarian uprising of 1956.

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I it” relationship for an “I thou” relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.

You don’t have to agree with natural law theory, or have any religion, or to agree with everything King wrote or did in order to be impressed by this clarity of thinking about law, and commitment to justice. Please listen to the entire letter, read by King in the video; read the letter itself; and look at images of the typed version of the letter sent to clergymen who’d criticised his approach.

2023-04-22T07:30:16+00:00Tags: , , , |

Laughing gas and the Psychoactive Substances Act

September 1 2017

It’s been reported that some prosecutions under the Psychoactive Substances Act 2016 have collapsed recently, at Southwark and Taunton Crown Courts. The Taunton case at least was about the section 7 offence of possession with intent to supply a psychoactive substance, and both cases related to nitrous oxide—or “laughing gas”. The cases have led to a predictable chorus of claims that the Act is fundamentally misconceived and unworkable. But is it? Or have two Crown Court judges got the law wrong?

You can be only be guilty of the section 7 offence if what you intend to supply actually is a psychoactive substance—and psychoactive substances are defined in section 2. There’s no dispute that nitrous oxide has psychoactive effects. The argument that has succeeded is that nitrous oxide is an exempt substance under section 2 because it’s a medicine, medicinal products being listed as exempt substances in Schedule 1 to the Act. Nitrous oxide is used for analgesia and anaesthesia, for instance in dentistry. Many of us will have “had gas” in the dentist’s chair. It’s lawfully sold under marketing authorisations granted under the Human Medicines Regulations 2012. For example a firm called Air Liquide has a marketing authorisation for nitrous oxide mixed with oxygen, which it sells under the name Equanox.

No judgments are publicly available, these cases having ended presumably after rulings by the judge in each case that there was no case for the defendant to answer. They must I think have concluded that nitrous oxide is in fact a medicine, and so as a matter of law exempt. That all seems straightforward … but actually, it’s not. It’s hard to know without seeing their reasoning, but I suspect the judges have gone astray. Here’s why I suspect that.

The Act defines a medicinal product as having 

the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).

Those regulations in turn define a medicine in the same way as does article 1.2 of the EU Directive 2001/83—the Medicinal Products Directive (see page 13 of the pdf). What interests us in this case is the “functional” limb of the test. A medicine is:

Any substance … which may be used in or administered to human beings either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action …

Notice that this definition is very broad. It’s much wider than simply products intended to treat disease, and potentially catches anything that pharmacologically modifies our body functions—like an anaesthetic. It also, if you think about it, catches many foods. The classic example I was given when I advised the UK medicines regulator was a banana. When a banana gives you a bit of a boost, then it’s pharmacologically or metabolically modified your physiological functions.

No one would seriously suggest regulating bananas as medicines, even thought strictly the definition may include them. But what if some extract of banana were found to actively cure an illness? Then, without any doubt, banana extract tablets marketed for treating the disease would rightly be treated as medicines. This example shows that the question whether or not to classify something as a medicinal product is not a “black and white” issue of what it contains or is made of. It’s actually a multi-factorial, contextual question requiring a bit of judgement. Paradoxical as it seems, one and the same substance may be a medicine in some circumstances, and not in others.

The Court of Appeal had to look at one example of this sort of thing last year in the Blue Bio case, a judicial review against the UK medicines regulator, the MHRA, about glucosamine-containing products or GCPs (glucosamine is something extracted from shellfish, and can be used to treat osteoarthritis). At para. 19, the Court of Appeal explained that

The existence of a significant pharmacological or metabolic effect on the body is not the only criterion that justifies a classification of a product as a medicinal product: it must be considered in the round. Thus the MHRA will consider the familiarity that consumers have with the product as a non-medicinal substance and the manner in which it is actually used. These factors assume particular significance in the case of substances that have both a medicinal and a non-medicinal use. Examples of such products are: salt, ascorbic acid, alcohol, caffeine and even water.

The court quashed the MHRA’s decision to treat some GCPs as medicines and others not. But this difference in classification of identical GCPs was unlawful only because the MHRA could not show that there was a significant difference in the way they were used. Para. 66 of the Court of Appeal’s judgment is key:

orally ingested GCPs whose active ingredient is glucosamine sulphate and which carry a recommended daily dose of 1500 mg share several significant characteristics with a product classified in the UK as a medicinal product; and in accordance with article 2.2 of the Medicinal Products Directive must be classified in the same way unless they have another significant characteristic which takes them outside the definition of “medicinal product”. That characteristic may well be the manner in which they are used, but it has not so far been demonstrated.

In principle, the MHRA approach of seeing use as potentially decisive was approved by the court, in line with various rulings over the years by the European Court of Justice. Glucosamine used to treat osteoarthritis is a medicine; glucosamine used only as a food supplement is not. The fact that the two things may be physically identical is not in itself decisive.

So the Blue Bio case alone shows us that laughing gas supplied by one person to another in Somerset or London as a recreational drug is not necessarily a medicine just because a canister of Air Liquide’s Equanox is.

The clearest guidance we have on whether new psychoactive substances are medicines comes from the European Court of Justice’s 2014 ruling in Cases C-358/13 and C-181/14, D and G. This was a preliminary ruling in criminal cases about supplying synthetic cannabinoids. The German court was asking the ECJ whether EU medicines law was (para. 24)

to be interpreted as meaning that substances or combinations of substances within the meaning of that provision which merely modify — that is, do not restore or correct — human physiological functions are to be regarded as medicinal products only if they are of therapeutic benefit or at any rate bring about a modification of physiological functions along positive lines? Consequently, do substances or combinations of substances which are consumed solely for their — intoxication-inducing — psychoactive effects, and in the process also have an effect which at least poses a risk to health, fall under the definition of ‘medicinal product’ contained in the directive?’

The ECJ reiterates the multi-factorial approach to determining whether a product is a medicine (para. 42) before concluding in paras. 46 and 47 that

the substances at issue in the main proceedings are consumed not for therapeutic but purely for recreational purposes …

… such substances cannot be classified as ‘medicinal products’.

and ruling in the operative part of the judgment (para. 51)

Directive 2001/83/EC … on the Community code relating to medicinal products … must be interpreted as not covering substances … which produce effects that merely modify physiological functions but which are not such as to have any beneficial effects, either immediately or in the long term, on human health, are consumed solely to induce a state of intoxication and are, as such, harmful to human health.

Synthetic cannabinoids are not medicines as a matter of EU law, then, at least when used recreationally. Of course, if some synthetic cannabinoid actually had a therapeutic use—and who knows, perhaps one will be shown to have a clinical application one day—then it would be a medicine if supplied for the purposes of treatment. As we saw earlier, one and the same substance can be a medicine when used for such a purpose, but not when used non-therapeutically.

It follows that while nitrous oxide sold as Equinox for clinical use is a medicine, laughing gas consumed not for therapeutic but purely for recreational purposes and solely to induce a state of intoxication, to use the ECJ’s words, is not.

Let’s now return to the Psychoactive Substances Act. Since no one disputes its psychoactive effects, nitrous oxide is a psychoactive substance unless exempted under Schedule 1. Under schedule 1, para. 2, there’s an exemption for medicinal products, a phrase which as we’ve seen

has the same meaning as in the Human Medicines Regulations 2012 (S.I. 2012/1916) (see regulation 2 of those Regulations).

Regulation 2 reproduces exactly the definition of a medicine in article 1.2 of the EU Directive, (page 13 in the pdf). It’s elementary law that UK courts need to interpret national implementing legislation, such as the Human Medicines Regulations, consistently with the EU Directive to which they give national effect. What’s a medicine under the Directive, therefore, is a medicine in the Human Medicines Regulations. Finally, because Schedule 2 of the Act defines medicinal products by reference to the Regulations, the same things are medicines under the Directive, the Regulations and the Act.

All medicinal products covered by the Directive—but only those covered by the Directive—are exempt under the Psychoactive Substances Act. If a substance does not fall within the Directive, it’s not exempt.

The D and G case told us that, as a matter of EU law, substances used purely for recreational intoxication are not covered by the Directive, it follows that laughing gas intended or used as a “high” cannot be an exempt medicinal product under the Psychoactive Substances Act. You can only think it so if you assume that because nitrous oxide can be a medicine, it always is; but that, as we’ve seen is the wrong legal approach. If it’s the basis of the rulings at Southwark and Taunton Crown Courts, then in my view those courts have erred in law.

An English criminal court can properly convict someone under section 7 for possession of the psychoactive substance laughing gas with intent to supply it; and if it finds all elements of the offence made out (importantly, you must intend to supply it to be consumed for its psychoactive effects) then it should do so.

The Psychoactive Substances Act may represent a bad policy—I’m not a drugs policy expert, and I don’t know. But it’s not the legal ass some think it is.

2023-02-19T19:18:55+00:00Tags: , |

Will Brexit rights have direct effect? The Human Rights Act may show us the answer

August 23 2017

The government published its latest “future partnership paper” today on “Enforcement and dispute resolution”, and most of the attention it’s gathered—and the government’s spin—has been about its “dispute resolution” aspect. In other words, what role the European Court of Justice may have in the UK’s future relations with the EU.

But I want to focus on the other bit—enforcement. I think the paper is at least ambiguous about the relationship it envisages between what we might call “post-EU law” and our domestic legal system. It’s a very interesting ambiguity.

Both the UK withdrawal agreement and any “future relationship agreements” between the UK and EU are likely to confer rights on UK and EU citizens and firms. Rights to trade, rights to work and so on. Enforcement is about how citizens and firms will be able to claim those rights in national courts, and get redress if their rights are denied.

Currently, EU law rights are enforced in UK courts partly through a concept called direct effect. This isn’t something laid down in EU treaties, but an idea invented by the European Court of Justice to ensure we can enforce EU law rights even, if need be, over the heads of governments and national laws. Direct effect means that, if the UK laws on equal pay don’t properly match EU equal pay law, for instance, you still get the full EU equal pay rights in your local employment tribunal, because you can rely on EU law directly. You are not able to enforce only the UK simulacrum of EU equal pay law; you can enforce EU law itself.

Ted Heath’s government knew all about the concept of direct effect, and it’s section 2(1) of the European Communities Act 1972 that brought the concept into our own law. The result is that EU law rights themselves are “recognised and available in” our own domestic law, and are “enforced” accordingly by our courts.

Direct effect is a unique EU law concept, though. An example of a treaty the UK abides by that does not use the concept of direct effect is the European Convention on Human Rights. Over the decades we’ve been bound by that treaty, the UK has given effect to it in two different ways.

In the 20th century, we simply complied with the ECHR as a matter of external, international law. There were lots of British laws that delivered your right to a fair trial, for instance, and of course you could use those laws in British courts. But what you couldn’t do was actually make arguments in a British court based on your ECHR right to a fair trial. You could do that, as it happened, by applying to the European Court of Human Rights but in a British court, all you had to rely on was the UK simulacrum or simulacra of the right. Let’s call this the “pre-HRA model”.

That changed in 2000 with the Human Rights Act, which (to simplify slightly) for the first time gave domestic legal effect to the ECHR rights themselves. Under the Human Rights Act, you can go to a court in Britain and rely on Convention rights in much the same way as you rely on EU law rights. The UK has, in other words, chosen voluntarily to incorporate Convention rights into its own national law in a way that’s similar to the direct effect of EU law. We can call this “the HRA model”.

Now, let’s turn to today’s “enforcement and dispute resolution” paper. Most observers are I think reading it as saying the UK intends to comply with future UK-EU relationship agreements using the pre-HRA model, simply enacting UK laws to give effect to whatever rights those agreements create, and allowing firms and citizens to go to court to enforce those UK laws. But is that what the paper actually says? I’m not sure it is.

The first key passage addressing this issue is in para. 17, which says:

When it implements these agreements in its domestic law, the UK will also as appropriate provide for an effective means for individuals to enforce rights under the agreements, and challenge decisions of the competent authorities concerning those rights.

The literal meaning of para. 17 is that it’s rights under the agreements that will be enforceable in our courts; not simply the UK simulacra of those rights.

The second key passage is in para. 22, which says:

where the Withdrawal Agreement or future relationship agreements between the UK and the EU are intended to give rise to rights or obligations for individuals and businesses operating within the UK then, where appropriate, these will be given effect in UK law. Those rights or obligations will be enforced by the UK courts and ultimately by the UK Supreme Court. UK individuals and businesses operating within the EU should similarly be provided with means to enforce their rights and obligations within the EU’s legal order and through the courts of the remaining 27 Member States.

Again, the plain meaning of this is that it’s those rights or obligations in the WA and “FRAs” that will be enforced in national courts; not simply the UK laws reflecting them.

If the reading I’m suggesting is right, then ministers may have in mind something like the HRA model: a unilateral UK choice to incorporate “future relationship rights” into our legal system in such a way that individuals and firms can rely on them directly in UK courts, in much the same way as they can rely on EU law and Convention rights now.

This isn’t the only way of reading the paper: some will read it as setting its face against anything like direct effect and spelling out the pre-HRA model instead. That view is lent some support by a technical note on implementation of the withdrawal agreement (thanks to Raphael Hogarth for bringing it to my attention). It says (para. 3)

It would be both inappropriate and unnecessary for the agreement to require the UK to bring the EU concept of direct effect into its domestic law. The same substantive result can be achieved if the Withdrawal Agreement requires the UK to give citizens specified rights, and the UK enacts domestic legislation whose effect is to bestow those rights.

This seems on its face to be describing a pre-HRA model. But wait. Strictly speaking, all it’s rejecting is the EU law concept of direct effect, which obviously won’t apply if we’re out of the EU. It may not be rejecting something similar, but of purely domestic origin. Look for instance at para. 9:

The EU Treaties are unique in requiring parties to implement them by incorporating the concept of direct effect into their domestic legal orders. That concept is specific to EU law, and reflects the fact that the Treaties have created their own legal system which forms an integral part of the legal systems of the Member States. The principle will therefore cease to apply to the UK when it ceases to be a Member State, and it would be inapt to require the UK to maintain it in its domestic law when it is no longer part of the legal order of which direct effect is a corollary.

All this is saying is that the EU law concept of direct effect won’t have any place in UK law. That’s uncontroversial, and compatible with either the pre-HRA or the HRA model.

Para. 11 intriguingly refers to “domestic concepts”, a funny phrase to use if all you mean is workaday British legislation:

There is nothing in principle to prevent the UK from implementing [a requirement in the withdrawal agreement] using domestic concepts, as long as those concepts are sufficient to achieve the result required by the agreement.

Para. 12 innocently explains that

There is nothing unusual in the idea that international agreements should be implemented by different parties in different ways. It is normal for agreements between the EU and third countries to be implemented in different ways in the internal legal orders of the EU and the third countries, even if the obligations are expressed in reciprocal terms.

but introduces footnote 6, which makes specific reference to the EEA agreement, saying:

the EEA Agreement does not require the non-EU States to implement it using the concept of direct effect … They may choose to implement it using a domestic concept that has the same consequences as direct effect, but that is their decision …

which would be a domestic concept very like the HRA model.

Perhaps I’m wrong. Perhaps all the lawyers, civil servants and DExEU ministers who’ve worked on and cleared these papers are of one mind, and envisage implementing the withdrawal agreement and future relationship agreements using the pre-HRA model.

But that would make paras. 17 and 22 of today’s “enforcement and dispute resolution” paper misleading, read literally; and it would be unfortunate if DExEU had ended up allowing a former government lawyer like me to see at least ambiguity in its drafting. I suspect the ambiguity is real, and may reflect disagreement and uncertainty about what UK implementation will look like.

If people in Whitehall do have the HRA model in mind, it’s a model some of them may be learning belatedly to love.

2017-08-23T18:02:07+00:00Tags: , , , |

The Suez file: the Attorney’s letter to the Prime Minister, November 13, 1956

January 3 2017

The final document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 13th 1956 from the Attorney General, Sir Reginald Manningham-Buller, to the Prime Minister Sir Anthony Eden.

The previous Thursday, the 8th, the day the government had survived a vote of confidence in the House of Commons. Eden had ordered a ceasefire from midnight on November 6-7. Ten days after this letter was sent, the Prime Minister went to Jamaica to rest; he resigned in January 1957.

The Attorney’s concern was the legal position and his own.

The Lord Chancellor, I gather, expressed the view in Cabinet that our threat and our use of force was legally justified.

He mentions that Kilmuir said so in the House of Lords on November 1st, just as Selwyn Lloyd had the day before and as R.A. Butler did the same day, in the Commons. He went on:

Although I support what we have done and have said so publicly, we cannot, as you know, agree with the statements made on behalf of the Government that we were legally entitled so to act.

It seems extraordinary now that an Attorney General could support a policy of force in spite of thinking it unlawful. Perhaps the Attorney’s political support for the invasion in spite of its unlawfulness explains why he did not resign over the affair. He certainly knew he’d been compromised:

… it is very questionable if it is proper for Law Officers to continue to hold office if, on an issue of this importance, it is sought to justify the Government’s actions on legal grounds which they cannot support. If this occurred again, I feel I must frankly say that I think the position of the Law Officers would become impossible.

The chances of any such thing occurring again were vanishingly small, of course, and the warning was too little, too late. Was it worth making at all, by then?

Sir Reginald remained Attorney General until 1962, when (after Macmillan’s “Night of the Long Knives”) he replaced Lord Kilmuir as Lord Chancellor. He held that post until Labour won the 1964 election. He then sat as a Law Lord from 1969 till just before his death in 1980.

2017-01-03T11:43:54+00:00Tags: , , |

The Suez file: correspondence between Sir Gerald Fitzmaurice and the Attorney General, November 6-7, 1956

January 2 2017

From the Attorney General’s 1956 Suez file I’m today reproducing (with permission of the image library of the National Archives) a letter dated November 6 1956 to the Attorney General, Sir Reginald Manningham-Buller, from the Foreign Office Legal Adviser Sir Gerald Fitzmaurice; and the Attorney General’s reply of the following day.

Fitzmaurice tells the Attorney that he’d been asked by Foreign Secretary Selwyn Lloyd to comment on a letter from the Attorney (which must be his letter of November 1).

Apart from saying that the views of the legal advisers here entirely coincided with yours as to the absence of any legal justification for our present actions in Egypt,

he writes,

the comments I made related mainly to the constitutional position.

The extracts he then repeats to the Attorney show him stressing to the Foreign Secretary that the Law Officers, not the Lord Chancellor, are the government’s legal advisers.

As I understand it, the Lord Chancellor is not invested with any actual function of this kind …

It is the Law Officers—i.e. the Attorney and Solicitor General—who are the highest legal authority in government, he says.

The Law Officers therefore have an absolutely unanswerable case over not having been consulted.

The Attorney’s answer is short and approving.

Sir Gerald Fitzmaurice later became a judge at the International Court of Justice, and at the European Court of Human Rights.

2017-01-02T11:36:11+00:00Tags: , , |

The Suez file: Lord McNair’s letter to Lord Kilmuir, November 4, 1956

January 1 2017

Today’s document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 4 1956 to the Lord Chancellor Lord Kilmuir, from Lord McNair.

Lord McNair was a professor of law at Cambridge. He had served as President of the International Court of Justice until the previous year, and so was obviously one of the leading international lawyers of the day. He went on to be President of the European Court of Human Rights from 1959.

McNair had spoken in the House of Lords in September, making clear his view that Egypt’s nationalisation of the Suez canal would not justify force, having regard to the Kellogg-Briand Pact and the UN Charter. What’s striking about that speech is that not only makes the case repeated later by the Attorney General (who doubtless knew of and was influenced by McNair’s view) but that McNair dismisses Sir Austen Chamberlain’s “British Monroe Doctrine”— a doctrine Lord Kilmuir later seize on in the legal argument he made.

Lord McNair could not know what Kilmuir was telling his ministerial colleagues, of course. What he did know was what Kilmuir had said in the House of Lords a few days before, and what the Prime Minister had said on TV the previous evening.

I can find no authority

McNair writes (para. 1),

for the view that when two States are engaged in fighting and their hostilities may cause injury to the nationals or the property of a neutral State, the Neutral State has a right to intervene by armed force.

As far as the UN is concerned (para. 4)

So far from seeking authority for our armed intervention, we presented the United Nations with a fait accompli, and we concealed our intentions from them

McNair dismisses Kilmuir’s reliance on the Caroline incident (para. 5) before writing

I come now to what you appear to regard as the main justification of our intervention, namely, self-defence. I consider that you adopt an unduly wide conception of this term …

Ultimately, McNair writes,

My general conclusion is that our intervention is illegal.

Politely phrased though it is, this letter reads, as no doubt it was intended, as a slap-down by an eminent international lawyer of arguments he clearly saw as both weak and self-serving.

McNair didn’t say he was copying his letter to the Attorney General; I don’t know how a copy found its way into the Attorney’s file.

2017-01-01T14:12:43+00:00Tags: , , |
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