Wednesbury reform will not reverse the Cherry / Miller decision

Team Boris has turned to reform of judicial review, as I have argued they should several times over the last few months.  However a simple change to reassert the Wednesbury rules will not fix the system on its own. It will not overturn Lady Hale’s decision on the prorogation case (Cherry/Miller).

There is no avoiding going over old ground to some extent, but to avoid repeating everything I will refer to previous articles:

Few judicial reviews actually succeed (about 1%, plus some out-of-court settlements) and this has kept the procedure out of the headlines until the recent Gina Miller cases, which are the reason for the sudden interest in reform. There have been troubling decisions in past years though (as other articles outline), and it is just that their political impact was limited.

Even amongst the claims brought by ‘Remainiacs’, it is only the last decision, the prorogation case, which stands out as a wildcard decision, and one wrongly decided in the opinion of much of the legal profession.

The Wednesbury rules are the main focus of comment and are widely cited with approval. These are a good, principled set of rules for judging the propriety of administrative decisions where the authority is granted by statute and that statute intends that the powers be used for a particular purpose. Therefore a power of compulsory purchase granted to enable infrastructure projects should not be used instead to acquire land for property speculation, and a power to impose planning conditions should not be used to get the developer to provide a new, unrelated civic facility (which are both genuine examples).

However, the Wednesbury rules were invented by judges out of necessity for lack of any guidance from Parliament. As a result, the rules can be stretched by a judge who wants a particular result. Leading judgments emphasise that decision-makers make decisions by their own discernment and judges may not substitute their own ideas, but in other judgments a judge has found a perception of a flaw through which he may crawl to strike down a decision he does not like. All this is because Parliament has hitherto failed to do its duty in defining rules for the interpretation of the powers it has granted. It is for the authority granting a power, namely Parliament, to define what power it is granting.

Once the rules can be defined on the original, Wednesbury principles and Dicey’s concept of the rule of law, then mission-creep can be restrained. That still does not affect the Cherry/Miller case though.

A change in the law will not always change the judgments. Statute law is black and white, but it is interpreted by each judge. There are several examples of judges deciding that an Act passed to overturn a judgment has only really restated the existing law so no change is needed: in this you might think of the attempt to liberalise contempt of court after the Thalidomide case – the words “serious harm” are easy to read as “anything more than negligible harm”.

A point well made in the commentaries concerns interference with prerogative powers. This is not about making governments powerful but about the fundamental rule of law, which is a very Conservative concern. The Wednesbury Rules of reasonableness and purpose apply to delegated decisions because delegated authority is always limited authority, but the Royal Prerogative is primary power, not delegated, and so it should not judged by those limits, only by the actual extent of the power. Some judges have trespassed there, and each precedent invites a new trespass. That must be slapped down. It still does not affect the Cherry/Miller case though.

The Prorogation case of Cherry/Miller is unaffected by any Wednesbury reform.  Lady Hale was careful to word her decision not as a Wednesbury case nor as turning on reasonableness or proper purpose or what was said to The Queen, but as turning on a primary constitutional rule. This rule was hitherto completely unknown – or to put it plainly, she made up.

The Prorogation case is in a line of dangerous decisions treading on the common law constitutional understanding. It will be hard to ensure that no Hale-type usurpation takes place in the future, if judges are prepared to invent new rules, but curbing the tendency must help. This particular case would need a discrete rule, that “no common law rule limits Her Majesty’s authority to prorogue or dissolve Parliament nor the length of the prorogation or dissolution”. (No ifs; no buts: add any condition and you bring the whole Wednesbury apparatus into it.)

It is worrying if Parliament now has to think of constitutional fundamentals which some wild judge might think of overturning. It would be unthinkable for a court to invent a new condition to prevent Royal Assent to a Bill, for example, but an invented rule about prorogation that contradicts every textbook written in the last 500 years would have been unthinkable just a few months ago.

See also

Books

Hobbes manifesto: taxes and publique charity

Equall Taxes

To Equall Justice, appertaineth also the Equall imposition of Taxes; the equality whereof dependeth not on the Equality of riches, but on the Equality of the debt, that every man oweth to the Common-wealth for his defence. It is not enough, for a man to labour for the maintenance of his life; but also to fight, (if need be,) for the securing of his labour. They must either do as the Jewes did after their return from captivity, in re-edifying the Temple, build with one hand, and hold the Sword in the other; or else they must hire others to fight for them. For the Impositions that are layd on the People by the Soveraign Power, are nothing else but the Wages, due to them that hold the publique Sword, to defend private men in the exercise of severall Trades, and Callings.

Seeing then the benefit that every one receiveth thereby, is the enjoyment of life, which is equally dear to poor, and rich; the debt which a poor man oweth them that defend his life, is the same which a rich man oweth for the defence of his; saving that the rich, who have the service of the poor, may be debtors not onely for their own persons, but for many more.

Which considered, the Equality of Imposition, consisteth rather in the Equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there, that he which laboureth much, and sparing the fruits of his labour, consumeth little, should be more charged, then he that living idlely, getteth little, and spendeth all he gets; seeing the one hath no more protection from the Common-wealth, then the other? But when the Impositions, are layd upon those things which men consume, every man payeth Equally for what he useth: Nor is the Common-wealth defrauded, by the luxurious waste of private men.

Publique Charity

And whereas many men, by accident unevitable, become unable to maintain themselves by their labour; they ought not to be left to the Charity of private persons; but to be provided for, (as far-forth as the necessities of Nature require,) by the Lawes of the Common-wealth. For as it is Uncharitablenesse in any man, to neglect the impotent; so it is in the Soveraign of a Common-wealth, to expose them to the hazard of such uncertain Charity.

Prevention Of Idlenesse

But for such as have strong bodies, the case is otherwise: they are to be forced to work; and to avoyd the excuse of not finding employment, there ought to be such Lawes, as may encourage all manner of Arts; as Navigation, Agriculture, Fishing, and all manner of Manifacture that requires labour.

The multitude of poor, and yet strong people still encreasing, they are to be transplanted into Countries not sufficiently inhabited: where neverthelesse, they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground, to snatch what they find; but to court each little Plot with art and labour, to give them their sustenance in due season. And when all the world is overchargd with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death.

From ‘Leviathan’, Chapter XXX

See also

Books

Mend the Kingdom – roll up that map

Give me the map there. Know that we have divided In three our kingdom

King Lear, Act 1, Scene 1

If Whitehall is to be tasked with mending the tattered relationships across the United Kingdom, it must first reverse its two-hundred year practice of driving it apart.  It may start by shredding all the maps in every Government office. They are three hundred years out of date.

When Great Britain was united three hundred years ago and more, it was the consummation of a process of unity that had been moving on since the Reformation, and the actual incorporating union of the mediæval kingdoms into one was intended to began a process of integration to the benefit of all. Something went wrong.  That may be the subject of another article on this site shortly. Now though the priority is fixing it.

Firstly, there is no shortage of Scots in the civil service: the service takes the best and brightest, or most complaisant, and none is disadvantaged through having been born far from the din of London. The issue is found in a deeper structure.

Many Whitehall departments have become, since devolution and often before it, mainly England-only, with some responsibilities across the nation. I once asked a high-level mandarin in one such department whether his was a England-and-Wales department with some UK functions, or a UK department with some England-and-Wales-only functions: the result was an embarrassed silence. This equivocal quality in such departments will ensure that the mindset in those departments ends at the Tweed and just has add-ons for Scotland and Northern Ireland (when they remember Ulster at all). That is not serving the residents of Scotland or Ulster with equal consideration.

Furthermore, where functions do legally extend only to England, that paper boundary can become too real, forgetting that there are people beyond it who are affected by the decisions made. Their needs are just as much a part of the responsibilities of a British government department.

Responsibility is the key, not power, for the one does not come without the other, and even if a particular power is for some reason legally limited to one regions there is responsibility for every Briton who is affected by it even those not usually resident in the region in question.

I recall some government guidance which gave (and I believe still does give) details of how to get particular documents signed in England and Wales and how to get them done in foreign countries, but with no hint on having them signed in Scotland or Northern Ireland. My enquiry about this to the office in question was brushed off with the assertion that they are restricted to England and Wales and cannot look at Scotland or Northern Ireland; and this to the extent of pretending they do not exist, even though the rest of the world was considered.

Maps are deadly. There are maps in Whitehall that end at the River Tweed, and others where the mediaeval border is so heavy it looks like an impassable frontier. Others omit Northern Ireland, though it is barely 12 miles of water apart from Great Britain. Such maps discourage those who look at them from thinking beyond. Maps mould the mind.

Shred the maps – all of them. Make a big heap in the courtyard and consign them to the flames. Let no more like that pass the portal.

Wipe the data maps. These are more frequent and pernicious: those with statistics, which show England as an island on its own. Wipe them from every database. No map in government, unless it is of a narrow region, should show anything less than the whole of the United Kingdom (or of the British Isles as that is the spatial reality, and all things must be based on reality). Where a map is used as a graph of statistics, those statistics may well relate only to England or England and Wales, but there will be equivalent statistics for Scotland and Ulster, so include them: the welfare and status of Britons of those parts are equally the department’s responsibility. If they can shy off that responsibility, nevertheless without a full picture of statistics for the whole of Britain, you have a partial and misleading picture. There may be lessons too to be learnt from the wider picture.

As to those hermaphrodite departments; split your teams. There are those whose concerns day-to-day are with a limited area, and they should not then be trusted to do Scotland as an afterthought. Where the responsibility is national, there are no internal borders. There should be maps with no borders to illustrate to those concerned that there is no border, nor has been one for over three hundred years. Borders on maps make borders in the mind, so have none.

Recently Holyrood adopted a law that the Scottish devolved government may not buy any map of Scotland that shows Orkney and Shetland in a separate box. Whitehall should adopt a rule like it: no government office may acquire nor produce any ‘national’ map that does not include the whole of the United Kingdom, nor any map that includes ‘the border’ as anything beyond normal administrative boundaries. That way our governors may lift up their eyes to the full extent of their responsibilities.

See also

Books

Army of clerks

It is not true that the Ministry of Defence has more civil servants than there are soldiers – there are only half as many. That is still shocking though:  one clerk for every two regular soldiers. What do they do all day that is not already done by the General Staff or the regimental staff?

The navy, army and air force are already top-heavy in senior officers. The structure is basically that which served an army of millions and has not come to terms with shrinking to the mini-army we have today, which does not need such a multiplicity of generals let alone field marshals.  They are all fine gentlemen, no doubt, but you begin to suspect that they were promoted out of politeness. Balls at Mansfield Park may have glittered with admirals, rears and vices, but their great fleets of ships to command are no longer there, and mass retirement is something to be discussed in quiet corners.

The excess of generals is one thing, but being overbalanced by civilian clerks is a humiliation.

Maybe a cure could be to stick each one in uniform with a rifle and bayonet in their hand, and they might be an effective rearguard force – the Civil Service Rifles were a well-regarded volunteer unit from the Victorian period and formed a regular regiment which fought with distinction in the Great War.  I can see no sign of the desk-wallahs of today following their forebears though.

We come back to why we need a civil servant for every two soldiers.  It is not as if the clerk ever meets his two Tommies. It is a waste of breath: I do not know either.  Only those who have spent time in the depths of Whitehall will have any idea of what is actually done, and where the redundancies are, and those who have been there will soon go native. Maybe now we have a new army, of defenestrated ex-ministers, there is someone who can suggest what to do, from the outside and with knowledge of the inside.

The Ministry of Defence is a model of inefficiency, as were its predecessors it must be said.  Basic items that can be picked up for a few bob in civvy street are billed to the MoD at a 1000% mark-up and more, and soldiers still buy their own boots rather than rely on the dodgy stock issued to them, or did in my day.  The equipment is every more sophisticated and expensive, and sits in storage its whole life because a soldier’s work in the field still comes down to pushing a piece of steel through the enemy just as it was at Thermopylae.

(Imagination and innovation are the best weapons for an officer, which is seen in every great general and admiral from Caesar to Montgomery. Imagination and innovation are a horror to the civil service mentality. How the two can work together is a mystery.)

The men are not coming forward to serve these days. We no longer have starving men ready to join the ranks to fill their bellies, and no constant colonial adventure to draw the adventurer. Neither are there six-foot bewhiskered sergeants causing women to swoon at the sight and young men to join up in envy and emulation. What we do have is an inhuman, limp-wristed, computerised, out-sourced recruitment system that every soldier hates and which has presided over the greatest fall in numbers since the first day of the Somme. No minister may criticise their own contractor. Perhaps those who have escaped may do so.

Perhaps the Ministry of Defence is kept at in such numbers to administer a shell of the armed forces, which are ready to fill up to full strength when there is a major war, and the army is swollen to six million men as once it was. Still, it has been seventy-four years since the end of the War, and thirty years since the end of the Cold War, and even the Blair Wars did not appreciably increase the army (or even the Royal Marines, who get handed the brunt of special operations). Are they dreaming of greatness never to come again, like a country house once teaming with glitering parties and a battalion of staff, now left an echoing shell in case the days come again?

Another thought comes to mind: increasing defence spending is a vote-winner, but having got the funds, what can it be spent on, where there are no men to fill the uniforms? Petty clerks is the answer. There – we can have increase spending on “defence” but not a penny more going to war-fighting capacity.

See also

Books

Eschatological Rebellion

What makes a respectable, wealthy, middle class, middle-aged woman climb up and try to smash a window in a government ministry? What brings more white, middle class academics and children of professionals on to the street to block the traffic, vandalise buildings and run countercultural camps in the streets? It is not the environment.

The end of the world! There were once eccentric men walking the streets with placards announcing “The End of the World is Nigh!“, and how we chuckled at them; now they wear beads and flypost ominous stickers on the Tube. I would laugh, but they are scaring children half to death with their unhinged eschatology.

If your stomach was turned by some of the displays available on YouTube it may be the sight of people dressed up as hippies or students doing ‘interpretive dance’ in the street or tents with signs for mindfulness sessions. That tells you more about us outside, really. It is a culture-clash: these are the people we do not want to be like, and we are the people they do not like because we do not appreciate their way of thinking.

(There is nothing wrong with interpretive dance on the street – in fact it is positive as it identifies the people I can ignore.)

Extinction Rebellion is wrong in just about everything they stand for. Having made that point, I have to look at the attraction they have for many, and why there is anger when I every doubt them.

The cause they claim is saving the world; every comic-book hero’s quest, and who can doubt that? It is what we are brought up with. We try to ignore the incongruity when Batman destroys a city just to save a girl, because he is just a comic fantasy, and so is Extinction Rebellion’s rhetoric.

So what makes a respectable, wealthy, middle class, middle-aged woman climb up and try to smash a window in a government ministry? That answers itself – the stifling social constraints of respectability. Bursting out of the constraints, liberation like a fly escaping from a bottle – that is what it is all about. There are hammers and spraypaint and free-form dance, and at least the latter harms no one. That ever-present voice inside says ‘settle down, be good, do your homework;, but then a new ideology is available that says ‘all those things you never dared to do – do them!’

The rest of us look askance at the chaos that denies our learnt, ordered pattern of the world, but maybe with a hint of jealousy.

The odd thing is though that this gathering of thousands of likeminded or easily misled souls is itself a quest for respectability.

There are other. There are grannies suddenly finding a purpose for their time. There are junior clergymen losing their purpose. There are academics from ex-polytechnics with books and little imagination, resigned never rise to the height that demands actual intellect. They are powerless, and here they find some semblance of power. Their works will never be cited at Oxford, but here their voice can be heard for a moment, whatever unscientific nonsense they speak, and if they can persuade the government to act, as they sincerely desire, then that is power indeed. No wonder they respond so viciously when doubted: we are stealing their last chance for power.

For the rest of us, who may be doing more for the benefit of mankind and his environment than the whole parcel of the ‘XR’ mob, this is an annoyance to be cleared up like any other. What to do about it – that must be another article.

See also:

Books