A Constitutional Solution to this Constitutional Crisis

This post is jointly written with Lindsay Stirton and Richard Kirkham.

On Thursday 23rd June, the electorate voted, by a margin of 52% to 48% in a consultative referendum in favour of the United Kingdom leaving the European Union. The following day the Prime Minister announced his intention to step down as Prime Minister of the UK, albeit after a period of time. Explaining this decision, the Prime Minister said in his resignation statement

A negotiation with the European Union will need to begin under a new prime minister and I think it’s right that this new prime minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

What role should Parliament play in this process?  At one level, the question is one of whether triggering Article 50 can be done by executive act alone, or requires legislation or some Parliamentary procedure. The question is not a purely technical one as to which lever to push—if legislation is required then this might require the consent of the Scottish Parliament by means of a Sewel motion. Scottish First Minister Nicola Sturgeon is claiming this interpretation, though anticipates disagreement from the UK Government.

More fundamentally, what is the constitutional role of Parliament in the process of withdrawal?  Does the referendum mean that it must now remain a mute spectator to events as they unfold?  Or does the constitution require it to take a more active role in the process?

Is Legislation Required to Trigger Article 50?

Let’s start with the text of Article 50 of the TFEU itself. According to Art 50 (1):

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

David Allen Green does a good job of parsing this provision. It requires, first a decision, and secondly that this is taken in accordance with the Member State’s constitutional requirements. First, he says, a decision could mean any number of things.

  • a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);
  • as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);
  • a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;
  • a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

As Green points out, each of these would amount to a ‘decision’, but would each be in accordance with the UK’s constitutional requirements? Mark Elliott is right when he suggests that the mainstream view is that Article 50 can be triggered without the involvement of Parliament:

The general view, though, is that the Article 50 process — whereby the UK’s departure from the UK would be negotiated — falls to be triggered by the Government exercising its so-called prerogative powers to conduct foreign policy, rather than by Parliament enacting legislation. This means that when (or if) Article 50 is invoked, that could happen without any legislation being enacted by the UK Parliament. What this boils down to is that Brexit could become irrevocable (unless the EU agrees otherwise, it follows automatically two years after Article 50 is triggered) without the UK Parliament ever enacting any legislation to which the Scottish Parliament could object.

This view is challenged by Nick Barber, Tom Hickman and Jeff King. These authors argue that domestic legislation has become so suffused with EU law—it is implicit in the long title and the general scheme of the European Communities Act 1972 as amended that we should be a member of the European Union. Equally, they argue it is the plain intent of the European Parliamentary Elections Act 2002 that UK citizens should have the right to vote in European elections. For the executive to deny that would be to unconstitutional. To probe further, we have to delve into some constitutional first principles, as well as parsing the UK legislation in some detail.

Traditionally, the power to conduct diplomatic affairs and to make treaties with other nations falls to the Crown under the Royal prerogative, the residual powers of Her Majesty, exercised on (Prime) Ministerial advice. However, prerogative power gives way in the face of statutory regulation. To clarify, the relationship between statute and prerogative is not like the relationship between statute and common law. In the latter case, while statute can amend the common law, the two can quite happily co-exist, so that many areas of law are a near-seamless co-mingling of statute and common law.

As far as the prerogative is concerned, the relationship with statute is somewhat different. The effect of legislation is not to amend but to displace prerogative. The prerogative power is then said to be in abeyance. That is to say, it is extinguished, but revives if Parliament later repeals its legislation.

It is an established principle of constitutional law—known as the de Keyser principle (after the case of Attorney General v de Keyser’s Royal Hotel [1920] AC 508) that if Parliament has conferred powers on the executive to undertake a certain act, then that act can only be done under statutory powers. To allow otherwise would be to defeat the purpose of legislating in the area. In particular, it would allow the Crown to circumvent any controls or limits that Parliament had enacted. As Lord Atkinson put it in de Keyser’s case:

[W]hen such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same — namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.

Any attempt to interpret the legislation governing the UK’s relation with this view should be read in light of this traditionally restrictive judicial attitude towards the limits of Royal prerogative in the face of controlling legislation. Barber, Hickman and King make much the same argument based on Case of Proclamations, (1610) 12 Co. Rep. 74 and Fire Brigades Union Case [1995] 2 AC 513.

We will not deal further with the application of the European Communities Act 1972 which has been addressed by Barber, Hickman and King in their post . However, it is worth emphasising that in addition to this legislation, Parliament has made further statutory provision regarding the exercise of the prerogative power to change rights arising under EU law. Section 2 (1) of the European Union Act 2011 specifies certain conditions which must be satisfied before a “treaty which amends or replaces TEU or TFEU” is ratified:

Treaties amending or replacing TEU or TFEU

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

In constitutional terms, this section now forms the bedrock of the mechanism for ratifying changes in our relationship with the European Union.  The mechanism in envisages is one of dual consent.  The consent of the electorate through a referendum is necessary where Section 4 applies, but even there it is not sufficient.  Even where the popular will of the electorate has been made clear, the requirement for Parliamentary consent through an Act remains.  The 2011 Act does not in any way make the referendum result binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011).  The European Union Referendum Act 2015 does not alter this system of dual consent.

We do not suggest that this means Parliament could or should ignore the will of the electorate.  However, the section empowers it to impose conditions and safeguards, be they procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.  This is a power it can and should exercise in the present situation.  We need not deal with Section 4 in detail. It states conditions under which a referendum is not required. But this does not affect the fact that legislation is contemplated for any amendment to the TFEU or TEU under Section 2.

Now strictly speaking, to trigger Article 50 is to make use of a provision of an existing treaty, rather than the creation of a new one. However, since the effect of would be to set in motion a process by which these Treaties would be changed, it is strongly arguable—drawing on the de Keyser principle—that Section 2 (1) implicitly restricts the exercise of the Royal prerogative to trigger Article 50. Article 50 anticipates not just the modification or amendment, but the complete annihilation of the treaty obligations of the TEU and TFEU. And Section 2 (1) clearly envisages that where such a modification is to be accomplished by Treaty then legislation is required. The question is whether the law restricts the ability of the Crown, by Royal prerogative, to trigger an automatic amendment to the Treaties which would have required legislation to accomplish had it been done by Treaty.

We think that it is quite likely that this would be the case. For one thing, Article 50 anticipates that following notification, a Member State seeking to withdraw from the European Union will enter into negotiations concerning a withdrawal agreement, and such an agreement would clearly be governed by Section 2 (1). It is not unrealistic to suggest that the alternative—that no agreement is reached, and that the Treaties would cease to apply after two years—is similarly governed.  Consider the consequences of the alternate reading.  Although Parliamentary consent to the withdrawal agreement would in theory be required under Section 2(1), a Parliamentary refusal to ratify the withdrawal agreement would in practice have no effect.  This is contrary to the letter and spirit of the constitutional mechanism set up by the European Union Act? 2011 Act.  In our view, an executive action which ran the risk of producing such an outcome would arguably be unconstitutional.

In summary, one might say the following. While it is not unambiguously certain that legislation is required in order to trigger Article 50, to do so by any other means would be a constitutional quagmire. The Crown would effectively be in a position of compelling Parliament to legislate if legal chaos were to be avoided. Moreover, since Parliamentary consent (among other things) is required for any Treaty change, it should not be for the Crown acting without Parliamentary consent to accomplish by executive act that which cannot be done by Treaty.

It has long been constitutional practice to secure Parliamentary consent for matters where there was doubt about the scope of the prerogative. The grant of independence to conquered colonies is a classic example.  Invoking Article 50 should be no exception.

Legislative Consent of the Scottish Parliament

If legislation is required, or if the Government heeds our advice that even in the absence of a strict constitutional requirement, it would create unimaginable difficulties to proceed otherwise, then a second issue arises, namely whether the legislative consent of the Scottish Parliament is required. Of central importance is Section 29 of the Scotland Act 1998 which limits the competences of the Scottish Parliament, so that it must not legislate contrary to EU law. Again, Mark Elliot takes the view that (even apart from his opinion, discussed earlier) that legislative consent is not required, since the Sewel convention is precisely that—a convention.

Second, the Scottish Parliament cannot anyway “block” UK legislation on Brexit or on anything else. Certainly, it can withhold consent. But because, as explained above, the UK Parliament is sovereign and can do as it wishes, the absence of consent from the Scottish Parliament would not legally disable Westminster from enacting Brexit legislation. This is so because the “requirement” for consent is not a legal requirement at all: it is, ultimately, no more than a political expectation that the UK Parliament will respect the constitutional position of the Scottish Parliament by not riding roughshod over it in certain circumstances.

There is no thing that we would take issue with in this statement, but it misses one larger point. While it would be “legal” for the Westminster Parliament to legislate for Scotland in this way, in the sense that the courts would give effect to the terms of such legislation it would not (as Elliott acknowledges) be constitutional (eg see Murkens). It would not be possible to say that Brexit has been accomplished by an orderly constitutional process, but has instead been accomplished in defiance of constitutional procedure. It is worth recalling that the text of Article 50 speaks of Member States’ “constitutional requirements”, not merely “as prescribed by law” (to borrow the language of the ECHR). It might therefore be possible for a court—drawing on the approach of Attorney General v Jonathan Cape [1976] QB 752—to recognise the Sewel convention in deciding whether the requirements of Article 50 had been met.

The Way Forward

The legal uncertainties outlined above connect all too closely to the political crisis that the UK currently faces. Indeed, what we are left with is something profoundly unsettling, in which former cherished legal understandings based on Parliamentary sovereignty are in danger of being overwhelmed by a dangerously selective use of an appeal to popular sovereignty. Without some additional procedural route being created to confront this crisis head on, then the prospect of ongoing constitutional turmoil, to add to the economic and political turmoil that has already taken hold, is real. However, what we also have is a once in a life time opportunity to settle not just one, but possibly as many as three or four fundamental constitutional issues. Our proposal to address this problem is as follows:

  1. As a matter of constitutional convention, whilst it might remain the authority of the PM under royal prerogative to trigger Article 50, it is not one that he is constitutionally obliged to trigger following an advisory referendum. Notably, Prime Minister Cameron declined to pull the trigger, but instead recognised the authority of the referendum by resigning.
  2. If Article 50 is to be triggered by the PM, it is an exercise that should only be undertaken once approval has been gained from the electorate through a referendum and Parliament. This reading is supported by the de Keyser principle and the precedent of the June 23 referendum.
  3. Parliament should consider itself strongly bound by—that is to say, it should act in utmost deference to—the outcome of the June 23 referendum vote but given that it remains constitutionally supreme it is entitled to lay out procedural conditions on what must happen before and after Article 50 is triggered.
  4. Those procedural conditions should include:
    1. A requirement for the PM to submit his/her proposal for EU negotiation to the electorate before triggering Article 50. We are opened-minded as to whether this requires a General Election, and the need to address the Fixed Terms Parliament Act 2011, or a second referendum.
    2. A requirement for certain consequences to follow should the response of the electorate continue to be to support the triggering of Article 50. One clear commitment that should be made is to delegate authority to the Scottish Parliament to stage a referendum on independence. Further commitments should be made in relation to Northern Ireland and Gibraltar.

An alternative to (a) would be to provide for a second referendum once the withdrawal negotiations are complete, if the final withdrawal agreement deviated significantly from what the electorate were promised.  Parliament would, in the statute authorising the invocation of Article 50, set these threshold conditions, based on the promises made by the official campaign to leave the European Union.  If the referendum were to reject the proposals, the UK would remain a member of the EU.  The government would have to obtain the consent of the other EU members to this before commencing on withdrawal negotiations.

In our view, such a provision will give Parliament a constructive constitutional role to play in the process. Given that the withdrawal negotiations will be led by politicians who campaigned for Brexit, there will be little fear of deliberate sabotage of the process.  At the same time, it will protect the expectations of those who voted for Brexit, and ensure that they have chance to respond if the conditions they were promised Brexit would secure are not in fact secured.

We are aware that a riposte to this proposal is that it disrespects the popular will of the electorate demonstrated by the results of the June 23 referendum. But the counter-argument is that such a fundamental shift in constitutional design as Brexit compels will not be stable unless the procedure is seen to be fair by the losers to the debate as well as the winners. Indeed, given that some of the most influential figures in the leave campaign now seem to have reneged on some of the commitments made during the campaign (e.g. immigration) then it is probable that even those who originally voted to leave the EU will be fundamentally dissatisfied with the eventual terms of the UK’s departure. They would be right to be dissatisfied, as they are failing to give due respect to the popular will expressed in the referendum.  This, we suggest, makes it necessary for Parliament to use the system of dual consent under Section 2(1) of the 2011 Act to ensure that the withdrawal process is adequately policed.  The suggestions we have outlined above will, in our view, accomplish that end.

One of the mantras of the leave campaign was ‘to take back control’. A first act of taking back control is to institute a process that allows all parts of the UK to take responsibility for the proposed design of the new constitutional order. Putting the process in place should be the duty of Parliament. If Brexit really is the will of people it is hard to see on what basis this proposal could be rejected.

This post is cross-posted at the University of Sussex’s LaPSe of Reason Blog.

Why the Judicial Power Project is wrong about Anisminic

This post is co-authored with Lindsay Stirton

The Judicial Power Project lists fifty supposedly problematic judicial decisions. Although a small number of these are private law cases, the vast majority concern administrative law and human rights. It is encouraging to see constitutional questions debated in the public sphere, and even more so to see one of the contributors wrestle with legal doctrine. Nevertheless, the manner in which the Judicial Power Project represents those fifty decisions leaves a lot to be desired. It is not just that the accounts they present are subjective and contestable (although they clearly are, as Mark Elliott’s response demonstrates). It is that the Project’s accounts of many of the cases are objectively misleading, because they ignore critical aspects of context.

In this post we focus on their treatment of Anisminic, the 44th case on their list (paired with In re Racal which we do not discuss here for reasons of space). We focus on Anisminic both because of the totemic position this case occupies in histories of public law, and because of the stridency of the Judicial Power Project’s criticism, accusing the Law Lords of “judicial adventurism” by sidestepping the clear words of statute. This characterisation is objectively wrong at two levels. Firstly, in terms of doctrine, Anisminic neither invented nor significantly extended the common law tradition on reading down ouster clauses. On the contrary, authorities of the highest standing at the time understood Anisminic to be an orthodox application of existing doctrine. The true significance of Anisminic, we argue, lies elsewhere. Secondly, and far more fundamentally, when we consider the decision in Anisminic in the context of its aftermath, it assumes a very different colour from that which the Judicial Power Project gives it. Far from being an instance of judicial overreach, Anisminic offers a powerful example of how the judiciary, legislature, and an engaged citizenry can work together to improve the quality of administrative processes.

We now turn to the details of each of these points.

Ouster clauses and the doctrinal context of Anisminic

Let us begin with the claim that Anisminic was an instance of “judicial adventurism” because of its reading down of ouster clauses. This point can be dealt with pithily. In the political ruckus following the decision, leading commentators insisted that there was nothing whatsoever new in the House of Lords’ reading down of the ouster clause. In a letter to the Times on 1 February 1969, H.W.R. Wade had this to say:

If legal rights cannot be brought before the courts, the rule of law collapses. The judges, well understanding this, have for 300 years firmly set their faces against such provisions and have, to put it bluntly, refused to apply them. What is now needed is a thorough study of the problem from all angles, with a view to making exceptions where they are justifiable, but not elsewhere. Meanwhile, the Government should respect the wise decision of the House of Lords, which puts justice first.

Likewise the President of the Law Society and the Bar Council, in a letter published three days later, had this to say:

In so doing the House of Lords was following and reaffirming a long established principle that sections such as that which is mentioned above do not prevent the Courts from investigating the question whether the so called determination is a nullity and, if they find that it is, so declaring and giving whatever consequential relief may be appropriate.

Careful study of the decisions themselves supports this reading. Of the dissenters in the House of Lords, Lord Pearson dissented not because he thought the ouster clause precluded him from doing otherwise, but because he thought the decision of the Foreign Compensation Commission was correct. Lord Morris, the other dissenter, similarly made it clear that “[t]he provisions of section 4(4) of the Act do not, in my view, operate to debar any inquiry that may be necessary to decide whether the commission has acted within its authority or jurisdiction.”

This is because Anisminic’s contribution to the development of public law did not lie in its reading down of “no certiorari” clauses, but in its attempt to elaborate on what this long-established principle meant in the context of the legal needs of the late 1960s. As we discuss in detail in a forthcoming piece (to appear in the LQR in 2017), there was at the time a genuine fear – seen particularly clearly in the discussions surrounding the Whyatt and Goodfellow reports – that administrative bodies, in pursuit of the entirely laudable goals that the post-War state had taken on, would give insufficient consideration to the interests of individual persons with whom they came into contact (the Whyatt Report’s famous “farmer with two acres and a cow”). This concern crossed party lines – Labour and Conservative lawyers were to be found on both sides of the debate. Parliament’s ability to provide an effective remedy was limited. As JAG Griffith put it in his contribution to Law Reform Now, Parliamentary control of the executive was more akin to the manner in which the banks of a river control its flow than the sense in which a driver controls a car. In practice, Parliament could do little in relation to individual instances of hardship, and many such instances went unredressed. Allowing “no certiorari” clauses in practice did not mean respecting Parliamentary sovereignty. It meant accepting a state of things where there were no practical checks on executive action.

Contrary to the Project’s interpretation, the solution proposed by Anisminic placed Parliamentary sovereignty front and centre. The starting point of Anisminic was that powers conferred on subordinate authorities by Parliament were not usually unfettered. The question which any purported exercise of a power by a public authority necessarily raised, therefore, was whether the public authority had been given that power. And the answer to this question lay in a separation between matters which Parliament had intended to entrust to the authority in question, and matters on which Parliament had already expressed its opinion on, and from which the authority could not constitutionally dissent. The reason the determination by the authority in Anisminic was a nullity was that it sought, impermissibly, to do the latter – by denying recourse to a class of persons who Parliament had decided should get recourse. Parliament could permit the authority to dissent from its view if it wished, and it could frame clauses absolutely excluding judicial review if it wished. However, the House of Lords pointed out (rightly) that such a situation would be so exceptional in constitutional terms that exceptionally clear wording would be expected. It would require more than the mere use of a form of words which was substantially equivalent to forms long understood to have a much more limited effect.

Objectively viewed, therefore, Anisminic represents neither “judicial adventurism” nor an attack on Parliamentary sovereignty. It represents, instead, an attempt to understand what this idea – that only Parliament (not the executive, and not the judiciary) possesses unfettered power – means when it came to a claim by an executive body to possess unbounded power.

The aftermath of Anisminic

The Project’s description of Anisminic becomes even more problematic when we look at the case’s actual effects. Far from being an example of judicial overreach, Anisminic presents an outstanding example of how a judicial decision can improve the quality of administrative decision when all parties approach its implications in a spirit of commitment to the rule of law.

The executive’s reaction to Anisminic was swift. A new Foreign Compensation Bill was at the time making its way through Parliament, giving effect to a treaty between the Soviet Union and the UK on compensation for British property that had been lost in the Baltic states on their incorporation into the USSR. The government swiftly added a clause to that Bill to deal with the decision in Anisminic:

(4) An Order in Council under the said section 3 may confer power on the Foreign Compensation Commission to determine any question as to the construction or interpretation of any provision with respect to claims falling to be determined by them which is included in any Order made under that section after the passing of this Act; and any determination of the Commission by virtue of this subsection shall be included among the determinations to which section 4(4) of the Foreign Compensation Act, 1950 (determinations of the Commission not to be questioned in courts of law) applies.

Contrary, again, to what the Project suggests, speeches in the Commons show that some members had strong reservations about this amendment. Sir John Foster spoke strongly against the proposed amendment, and in favour of the decision of the House of Lords:

The House of Commons, once again following the Burmah Oil and Prince Frederick examples, is being asked to follow a course which is contrary to justice. We are to have this tribunal and whatever it says is to be right. It can go off its head provided it follows the procedure.

The amendment nevertheless passed the House of Commons and went to the House of Lords. At this point, the legal profession and legal academics intervened in the debate. Professor Wade wrote the letter we have quoted from above, and the Presidents of the Bar Council and the Law Society wrote their joint contribution which we have also quoted. Both supported the House of Lords’ decision, and argued in the strongest terms that the proposed amendment was contrary to the rule of law. The Presidents of the Bar Council and the Law Society went one step further, and proposed a possible solution: the introduction of a statutory appeal to a court of law.

On 4 February 1969, the Bill was debated in the House of Lords. The debate was nuanced and impressive, involving the participation of Lords Denning and Wilberforce as well as other individuals. The suggestion of a statutory appeal was considered, and won support from a broad range of peers (although not of the government). Viscount Dilhorne finally moved an amendment to create precisely such an appeal to the Court of Appeal, with no further appeal to the House of Lords. The amendment was carried, and became part of the final Act.

It is hard to square this history with the account presented by the Project – that Anisminic was an arrogation by the judges of power that Parliament had clearly intended to deny them. The subsequent history makes it clear that Anisminic was an example of the precise opposite: the judiciary, Parliament, and engaged members of civil society working successfully together to resolve a problem created by a statute, and which threatened a core legal principle. Historically seen, Anisminic is a shining example of the UK’s constitutional institutions functioning at their best. To portray it otherwise is wrong to the point of misleading.

This points to a broader issue with the way the role of the judiciary is often debated. As lawyers, we have a tendency to work with ideal types – idealised representations of institutions, rather than their messy empirical reality. When it comes to the debate about judicial powers, however, there has been a regrettable tendency to work with an idealised representation of Parliament, juxtaposed against an almost cynically realist representation of the judiciary. This does not make for productive discussion. Any debate should be conducted in the light of the actual strengths and limitations of the institutions in question, to see how we can best structure their common working. Otherwise we run the danger of grounding our thought in a grave misunderstanding not just about the judiciary itself, but also about the constitutional principles that underlie its exercise of jurisdiction. The mistaken account of Anisminic on the Project’s website instantiates this danger. The idea that executive powers are not unfettered (which, as a contextual reading reveals, is what Anisminic actually said) is far less objectionable than the idea that judicial power is unfettered (which Anisminic can be read to say, but only if you take it out of context), and represents a far more important constitutional principle. When debating an issue as important as the constitutional role of the judiciary, we cannot afford to let our proposals be shaped by errors as egregious as these.

This article is cross-posted at the UK Constitutional Law Blog, UK Administrative Justice Institute Blog and at the University of Sussex’s LaPSe of Reason Blog

Multiple choice questions and the SQE: A response to the SRA

The SRA has recently posted an update on its Training for Tomorrow blog, where it’s tried to justify the central place it intends to give multiple choice testing within the proposed Solicitors Qualifying Examination.  The proposal came in for a lot of criticism in the responses to the consultation, as most readers will be aware.  Whilst it’s encouraging to see the SRA engaging actively with the academic literature, their post suggests that they still miss the point of the objections.  Specifically, although the SRA cites the US Multistate Bar Exam (MBE) as a precedent, the place of multiple-choice testing in the MBE has been quite controversial in the US and has generated a critical literature.  There are three key points that emerge from the US debate which are of profound relevance to the SRA’s proposals.  As this will be a long post, I’ll explain the points in summary before I get to the details.

Firstly, multiple-choice testing has known limitations in terms of its ability to assess legal knowledge (not skills, not writing, but legal knowledge itself).  For this reason, even in the US most states that use multiple-choice testing in their bar exams (including California and New York) do not rely exclusively on it to assess legal knowledge, contrary to what the SRA’s blog post asserts.  Instead, they assess legal knowledge partly through the Multistate Bar Exam and partly through an essay-based exam.  There are very good reasons for this, as I explain in detail below.

Secondly, the SRA’s proposals are predicated on a distinction between the assessment of legal knowledge and legal skills that simply has no mainstream parallel.  We have never done this in England and Wales (the LLB / LPC separation is not analogous as I explain below), and the jurisdictions they cite as precedents do not do this either – ironically, given the tenor of the SRA’s proposals, US bar exams actually use essay questions to bring together the testing of knowledge and skills.

Thirdly, the case in favour of the dominant approach to multiple-choice testing is largely based on research done on its suitability for assessing the ability to practice medicine.  However, there are material differences between the practice of law and the practice of medicine, which suggest that we can’t just extrapolate from one field to another.  Again, the details are below.

On to the details.

Contrary to the SRA’s claim, it is not ‘commonplace’ to assess legal knowledge purely through multiple choice testing.  There may well be some jurisdictions which do so, but the ones cited by the SRA aren’t among them.  This is largely because their examinations do not draw the sharp divide between legal knowledge and legal skills that underpins the SRA’s proposals.  This makes the SRA’s proposals quite unlike the precedents they cite.

The Multistate Bar Exam (MBE), on which the SRA places quite a bit of weight as a precedent, is part of a broader suite of offerings which cumulatively go by the name of the Uniform Bar Examination (UBE).  The UBE has three parts: the Multistate Bar Examination, the Multistate Essay  Examination (see this example), and the Multistate Performance Test.  New York uses the full suite.  California doesn’t use the UBE, but it follows precisely the same model.  It simply prefers to set its own California-specific versions of the MEE and the MPT to complement the MBE.

The MBE, like the SQE’s proposed Part 1, is focused on legal knowledge. Likewise, the MPT, like the SQE’s proposed Part 2, is focused on legal skills.  The SQE, however, has no equivalent to the MEE.  The model the SRA is proposing is, in effect, the UBE without the MEE.  This will make England and Wales quite exceptional among major common law jurisdictions.  More fundamentally, though, it is problematic because the MEE performs a very valuable function.  It expressly seeks to bring together the assessment of knowledge and skills, and it does so because the American bar is well aware of certain critical limitations which multiple choice testing has when it comes to assessing legal knowledge.  The key limitation, identified cogently and concisely in the very article cited by the SRA, is that multiple-choice tests do not assess “in-depth knowledge of a particular topic.” (Case and Donahue 2008, 373).  The article is vague about what this means, as is the material put out by the NCBE, but state bars are more candid about what they’re looking for.  Here’s what California has to say in its explanation of what is expected of students on the essay questions exam:

The answer must show knowledge and understanding of the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.

The last of these is precisely what multiple-choice tests are weak on; yet it is absolutely critical to the practice of law.  The statistical literature on testing uses a framework of three parameters on which a candidate’s answers depend.  These are the candidate’s ability, the difficulty of the question, and the question’s ‘discrimination’ – that is to say, how good the question is at separating good candidates from poor candidates.  I’m not aware of any empirical research on this, but seen in theoretical terms one would expect multiple choice questions to have a very low discrimination on the question of the relationship of principles to each other.  This is because the only way to assess this in a multiple-choice question is by giving students four alternative ways in which the principles could relate to each other and asking them to select one.  This necessarily means that you can’t test if they actually know what the relationship is.  You can only test if their general awareness of law is good enough to let them spot what sort of relationship is more plausible.

My own experience with using multiple-choice tests diagnostically (an approach I strongly recommend) is that this is a significant issue.  Consider the distinction between the equitable duty of an investment trustee not to make an unauthorised profit with the trustee’s common law duty to use reasonable care and skill in making investment decisions.  Getting the relationship between the two right, and figuring out how it affects the parties’ remedies, is not easy.  It has been my experience that if you give students a choice between four possible ways in which the two relate, they will get the answer right more frequently than they will if they have no information about how the two relate.  Longform answer questions do the latter, and that is what makes them not just valuable but irreplaceable as a way of testing legal knowledge. It is for this precise reason that jurisdictions in the US have not, in fact, sought to get rid of essay questions in their approach to assessing legal knowledge.

This matters for practice.  Frederick Pollock once half-jokingly called lawyers “knights of our lady of the common law”.  Stripped of the chivalric hyperbole, that isn’t a bad description.  We are warriors with words, and our task is to use our knowledge of the law and our words to shield our clients from those who might seek to do them harm.  Whether we’re drafting contracts, preparing for a settlement negotiation against an insurance company, or formulating arguments for a hearing, our main aim is shielding our clients from persons who could ruthlessly seek to pursue interests at variance with theirs.  There are plenty of examples where solicitors have failed to do this, precisely because they’ve adopted the sort of objective diagnostic approach to problems that a multiple-choice test will further encourage.  The facts that led to the Supreme Court decision in Scott v Southern Pacific Mortgages Ltd [2014] UKSC 52 serve as a particularly troubling example, and they arose purely because the solicitors failed to appreciate the significance of the difference between equitable proprietary and personal interests.

It is, of course, possible to test for that specific item of knowledge, but it speaks to a broader underlying issue – one which law schools increasingly refer to as ‘creativity’.  Unlike medicine, legal practice is not objective or criteria-based.  Creativity matters in the practice of law, and it implicates both legal knowledge and legal skills.  It matters obviously in high-level commercial practice, as anyone who’s ever gotten bogged down in structuring a project finance transaction will attest; but as Scott v Southern Pacific Mortgages illustrates, it also matters in ordinary conveyancing and other such transactions.  At the consultation event in York, the SRA’s representative said that the SRA took the view that creativity was not relevant to practice, but that was in all likelihood based on a misunderstanding of what academics mean by the word.  By creativity, we mean the ability to think across and beyond standard legal categories, and to use that knowledge to formulate solutions to particular factual situations.  These are attributes which are sorely needed in the practice of law, and they simply cannot be reduced to a matter of ‘legal skills’ to be tested in Part 2 of the proposed SQE.  They fundamentally implicate both knowledge and skills.

This is directly relevant to the sharp distinction the SQE will make between the assessment of knowledge (Part I) and the assessment of skills (Part II).  The SRA’s intention of separating out the assessment of knowledge and skills is puzzling.  It is harder to offer an informed critique of this proposal, as I have no idea where it’s come from, and the SRA’s documents don’t give much background.  As the discussion of the US should show, other jurisdictions don’t do this – yes, they have assessments purely focused on skills and assessments purely focused on knowledge, but they also have the essay-based assessments whose express purpose is to bring the two together. The Californian bar, for example, explain in the document quoted above that the essay questions test a combination of the students’ knowledge of the law, their ability to apply that knowledge to the given facts, and to reason in a logical, lawyer-like manner from the premises they identify onwards to a sound conclusion.

This makes perfect sense, and it is also how legal education has long been approached in England and Wales.  We’ve long separated out the LL.B. and the LPC, sure, but both have always been about teaching knowledge and skills.  The LL.B. teaches and assesses, and has always taught and assessed, a whole range of skills that are of critical importance to the practice of law (legal reasoning, argumentation, legal research, abstracting principles from cases, using legal knowledge to design transactional solutions, and so on).  Likewise, the LPC teaches and assesses, and has always taught and assessed, a huge subset of substantive vocationally-directed legal knowledge (for example, rules of civil and criminal procedure) in addition to vocational skills.  I do not see any reason at all to erect a wall of separation between the assessment of knowledge and the assessment of skills.  It is quite contrary to how legal education has traditionally worked here, and I suspect much of the deep discomfort the SQE proposals have created springs from this.

This also leads to the question of whether too much reliance is being placed on results obtained in the context of medical testing.  As noted above, there are important differences between the practice of medicine and the practice of law, involving what I’ve called ‘creativity’ (although nothing hinges on that particular label).  There are also some peculiar features of the US’ experience of the Multistate Bar Exam.  One which stands out is the high degree of correlation between LNAT results and MBE results (r2=0.94) (Day 2004, 328-331).  This is puzzling because the scores should not be so highly correlated: aptitude is one factor in achievement, but it is not the only one.  Although this has been noted in the literature, it hasn’t been adequately explained as far as I am aware.  Day’s article, which is very supportive of the bar exam (in its present format, which includes the MEE), seems to suggest it reflects a problem with law schools, but given the extent of the correlation, that would mean that students learn literally nothing at law school, which appears unlikely to be correct. Secondly, exploratory research done in 1998 on multiple-choice tests in accounting found that the difficulty and discrimination parameters of questions on those exams did not appear to depend on whether the questions actually followed the sort of question-writing guidance that Case and Donahue (and the SRA) discuss.  The K-type guidance was the sole exception.  I do not know to what extent this applies to law, but it does suggest that taking the experience of one discipline (medicine) and applying it to another (law) may not be as straightforward as it appears. To be clear: I’m not saying Case and Donahue are wrong – their advice is broadly sensible, and I follow much of what they say myself when writing multiple-choice questions.  But I don’t use it summatively.  More research, specific to the practice of law in England and Wales, is needed before fundamental changes to assessment are brought in.

One final, and somewhat broader, point.  Legal assessment has moved on a lot since the days when your typical exam question consisted of a random quote followed by a carriage return and the word “Discuss”.  There’s been a fair bit of engagement with the pedagogy of testing, and many of us (including myself) use a range of ways of testing our students’ ability to work with the law. I personally use multiple choice testing of the very type the SRA has in mind in diagnostic and formative assessment, and I’ll be spending a considerable portion of this summer drafting very advanced multiple-choice questions for a companion website to my forthcoming textbook on contract law.  The SRA isn’t facing a situation where academics and practitioners are reacting in a blind, knee-jerk fashion to the horrifying notion that we may have to do something differently from the way it was done in the days of Coke and Hale.  The concerns we have with the proposals are genuine, and are based on decades of experience in teaching, mentoring, and assessing young lawyers.  This makes it a bit irksome when the SRA’s response to us starts off as if we need to be educated in modern pedagogy. I believe I speak for most academics and many practitioners when I say that we would appreciate it if our concerns were taken somewhat more seriously and given an appropriate hearing.

Finally, I want to make it clear that this post is offered in a spirit of constructive engagement.  We would all like to see a more responsive and equal legal profession which does more to promote access to justice and to legal assistance for those who need it.  To the extent that is the SRA’s aim, it will have the fullest support of the vast majority of legal academics.  But we must ensure that we get any reforms right, because if we don’t it is the weakest in society who will be worst hit.  The best-off, most sophisticated transactors, will not be the ones who suffer.

Legal consciousness and administrative law

Legal consciousness, and its close cousins ‘claim consciousness’ and ‘rights consciousness’, are concepts we hear a lot of in private law.  That isn’t generally true of public law, however.  Although legal consciousness sometimes intrudes into discussions of civil liberties, it doesn’t feature very much in discussions about the constitution (not after the 18th century, anyway).  And I have never come across anyone invoking legal consciousness in the context of judicial review.

I’ve often thought that this is a regrettable omission, for there surely must be some form of demotic understanding of the legal constraints on administrative discretion (Lindsay Stirton and I make a related point in a paper forthcoming in Public Law). I was therefore both somewhat startled and somewhat pleased to discover clear empirical evidence this morning in (of all places) my local paper that there is, in fact, such a thing as legal consciousness of administrative law – specifically, of the Wednesbury principle.  The document in question is the letter titled “Public ignored”.

wednesburyWhat I found particularly interesting was that the ‘demotic’ understanding of Wednesbury one sees in this letter is wrong as a matter of doctrine.  To the extent Wednesbury speaks of the factors that were taken into account, it merely requires the decision maker to take into account all factors that he was bound in law to take into account (not all factors that he ‘should‘ have taken into account, which is an entirely different standard):

For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.”

And that, too, is precisely as theorists of legal consciousness predict.

What was Entick v Carrington actually about?

entick

One of the attractions of doing research in legal history is the feeling of exhilaration that can accompany a successful hunt for a document that you know existed at some time, and which you think you just might manage to find with a little bit of luck.  Earlier this year, I had that precise feeling when I found a manuscript account of the decision in Entick v Carrington (1765) 19 ST 1029 after having hunted for it for several months.  The manuscript was prepared for the solicitor general at the time, and the version that has survived is a fair copy of notes prepared in court by a shorthand writer.

The manuscript is potentially important, as the provenance of the more familiar account published in the State Trials is unknown.  Hargrave was deliberately cagey about how he got hold of a copy in his introduction to the report, and there is little chance we will ever discover its precise mode of transmission.  This manuscript, in contrast, was produced by someone who was actually in court, for a law officer of the Crown who had an obvious interest in as accurate an account of the decision as possible.  That suggests that it deserves to be taken seriously.

The manuscript for the most part follows the State Trials version quite closely, but there are a couple of differences which are very significant.  I will be discussing the manuscript account of the decision, and these differences, in some detail at SLS in a fortnight, but there are two points I will make at this stage.

Firstly, the political context comes across far more clearly in this version. Even though the words are not particularly different, the differences we do see are significant.  Lord Camden was an active politician, as was Mansfield, and the two were on opposite sides of the faultlines that ran through Whig politics – Camden was on Pitt’s side, while Mansfield sided with Newcastle.  The discussion of the powers of the Secretary of State, in particular, acquire a particularly strong significance when you read them in the light of the sharply divided positions that were being taken at the time on the rising institution of Cabinet, and of the power exercised by the Court Whigs.

Secondly, the entire undercurrent of property rights is missing in this manuscript.  The famous neo-Lockean sentence “The great end, for which men entered into society, was to secure their property” is missing.  What is there in its place turns the issue into a rejection of the idea of unbounded power, and if the role of law (as distinct from mere government practice) in setting legitimate bounds to power.  I’ll set out the entire passage as it appears in the manuscript in full:

And here it must be observed, that no subject whatever is excepted, because both Houses of Parliament have lately resolved, there is no Privilege in the case of a seditious Libel, and therefore their Books and Papers may be seized in the same way.  And I am able to affirm that this sort of Warrant, upon a late Occasion has been executed in its utmost Latitude, for in the Case of Wilkes and Wood, when the Messengers were executing that Warrant, they boggled when they came to his private Desks & Bureau, and they sent to the Secretary of State to know what they should do, and whether they must take all the Papers & Writings?  And the Secretary of State sent word – all must be taken.  And they then took all they could find, and swept the whole, and Mr. Wilkes’ private Pocket Book filled up the mouth of the sack.  And I have since been told by the ablest and most experienced messenger, and who is best acquainted with the Practice, that he was obliged to do every thing commanded in the Warrant, by virtue of his Oathe, or otherwise he perjured himself, and that on those Occasions he generally swept Alle.  As this Jurisdiction of the Secretary of State is so extensive, therefore the Power ought to be as clean as it is extensive.  It does not appear in our Law Books at all, that he has this Power.

For the sake of the security of the subjects in general, in cases of Execution of Seizures at common law, every Man by the Common Law is obliged to give up his Right for the sake of Justice and the general Good, but then that is only for a Time till the Demands for which they are seized are satisfied.  But by the Law of England every Invasion of a Man’s private property is a Trespass and subject to an Action; though not a Farthing Damage done; for no man can set his Foot upon my Land and even tread any Grass, without committing a Trespass, and being liable to an Action for it.  This is proved by every Declaration in Trespass, and is every Day’s Experience; and in that Case, the Defendant if he admits the fact he is then obliged to shew some positive Law or some unavoidable necessity has excused Him.  The Jury have nothing to do with more than the Fact, and if the Defendant shews a Justification in Point of Law, the Judges are to look into their Books, to see if the Defendant is justified either by Statute or the Common Law, and if upon looking, nothing is found, and the Books are silent on that Head, the Silence of the Books is conclusive Evidence against the Defendant, that He is not right in his Justification.

According to this way of Reasoning it is incumbent on the Defendant to show, by what Law this Trespass is warranted.  Private Papers are the only way of concealing a man’s most valuable Secrets either in his Profession or any other way, and are his dearest Property.  Where private Papers are carried away, the Secrets contained in them may be discovered.  Whence then does the Secretary of State derive this Power?  Is there any Law that gives him such a Power as this?  I cannot satisfy myself that there is, for I see none.  Then ’tis too much for me to justify that Practice.

The Lockean quote about property, had it been a part of the judgment, would have appeared at the end of the first paragraph I’ve quoted.  As you can see, the entire passage hangs together extremely well without it and, in my view, even makes more sense in the context.

The title of my SLS talk (at the second plenary session on 2 September) is “Republican liberty and the common law: The 18th century context of Entick v Carrington“.  I’m editing the manuscript, and hope to make it available online shortly after SLS (time permitting).

 

The Gower peninsula muddies the waters

Reading the Supreme Court’s decision in Arnold v Britton & Ors [2015] UKSC 36 put me in mind of something that happened when I was in practice.

We had taken on a case involving the enforcement a bitterly contested ICC award in India. We suspected that the losing side would seek to challenge the award on the ground that it was contrary to public policy, so we asked a recently retired judge of the Supreme Court of India for his opinion on whether the award violated public policy. After reading the award carefully, he gave us an impeccably reasoned opinion stating that the award was not contrary to India’s public policy.  Unfortunately, for reasons that never became clear, he also gave an opinion to the other side stating that the very same award was contrary to India’s public policy.

Both opinions emerged a fortnight later, at a meeting with the other side. The solicitor on the other side was really a fine, upstanding sort of chap. He snatched our opinion, compared it with his for a few minutes, and then said somewhat ashen-faced, “I’m sure these two opinions can be reconciled somehow.”

That is pretty much what I was thinking of as I tried to puzzle out how we might reconcile the decision in Arnold v Britton with Chartbrook and Rainy Sky. Of course, the Supreme Court quite unambigiously affirmed both cases, and as common lawyers we’re good at reconciling quite contradictory cases through our own form of pilpul.  Nevertheless, I think four points are clear, and two of them mark issues that make Chartbrook and Rainy Sky very difficult indeed to reconcile with Arnold v Britton:

  1. Pace Lord Hoffmann, but it is now very clear that there is a limit to the amount of red ink that the court can spill in correcting a contract, and it is also clear that not all judges are equally moved by the fact that the contractual provision before them makes no commercial sense.
  2. It seems quite clear that the decision in Chartbrook was far more influenced than the Court necessarily acknowledged by the evidence that was admitted for the purpose of rectification.  I generally support the exclusion of pre-contractual negotiations in evidence – having participated in that process as a solicitor, I’m acutely conscious of how misleading texts generated in that context can be.  But if interpretation is going to play the role of rectification, as it did in Chartbrook and as it arguably was called on to do in Arnold v Britton, the exclusion looks quite unsustainable.  Of course, the courts could always stop using interpretation that way, and focus more on whether rectification should be available in a broader category of cases instead, but that is extremely unlikely to happen (although it would arguably better than the current state of affairs).
  3. The retreat of private law in favour of the regulatory state continues.  The Supreme Court suggested that the individuals in question appeal to Parliament.  This is unrealistic, to put it mildly.  Getting anything on the Parliamentary agenda in the modern context is next to impossible.  However, this case makes it clear that achieving fairness is not a concern of legal doctrine or of bodies tasked with applying legal doctrine.  That is a matter for the legislature and executive.  If one wants unfair clauses in tenancy agreements to be controlled, one must look to executive or legislative action, not to judicial action.  I would expect that many, if not most, contract lawyers will regard this as an appropriate position to take.
  4. The difficulty arises from the fact that as long as both Chartbrook and Rainy Sky continue to stand, the only way to reconcile them with Arnold will lead us to a position where the courts are more willing to deploy discretion in the interests of fairness in commercial contracts than they are in non-commercial contracts.  I do not regard such a position as particularly defensible.

A fully relational contract law would have a far more elegant solution, but that is an issue for another day.

The failure of law in the Chagos litigation

A couple of years ago, I wrote a paper (preprint on SSRN) that was fairly strongly critical of the decision of the House of Lords in Bancoult (No. 2).  This was the decision which upheld the constitutionality of the expulsion of the Chagossians from their homeland.  I’ve lately been revisiting that judgment, along with the judgment of the European Court of Human Rights, in connection with a one-day symposium on the cases to be held this June at Greenwich.  There are now some points I would add to those I originally made in that article, which I think usefully supplement it and make more sense of just what it is about the decisions that make them so legally troubling.

The position of colonial subjects, as the House of Lords imagined it in Bancoult, is not simply one of control by the imperial power, but one of abject dependence on the whims of the government of the day.  To be in a position where you have no rights beyond what the government of the day chooses to give you – where all rights can be erased at the stroke of a bureaucratic pen, with no broader debate as happens in Parliament, and where all fora for the redress of grievances can be denied you at the stroke of a bureaucratic pen – is to be in a state of utter subjecthood; a subject in the literal sense, sub jecta, cast under, with no claims whatsoever in relation to what the law should say, and no right to a forum in which to have your views heard.

Edward Peters, speaking about a similar status which arose under the Greek notion of atimia, or the mediaeval canonist notion of ignomia, termed it a state of being a civil ghost; but a better label is a civic ghost.  What it does is to entirely deprive the subject of any semblance of civic status – for the subject has no protection of the law beyond what those who claim despotic dominion choose to give him; and if they choose to give him nothing he can claim nothing.  The subject has no basis to articulate his grievances in any legal forum – whether constitutional courts, legislative assemblies, or human rights fora – unless those who claim to exercise despotic dominion choose to give him one.  All he has is derived from their will, and all he has subsists only so long as they will it.

This has close parallels with the way in which the European Court of Human Rights dealt with the claims of the islanders, and in particular with the manner in which they rejected the applicability of Al Skeini drawing on Quark Shipping.  There is a fundamental category error here.  Quark Shipping dealt not with a conquered colony but with a settled colony, where there was no plenary power of ministers to make and unmake the law.  Chagos Islanders v UK presented a situation in which a conquering power used its overwhelming military might to forcibly depopulate a conquered territory, continued to use that overwhelming might to prevent the population from returning, purported to make a law excluding the population from returning, and openly asserted that it did all this purely in exercise of its right as a military conqueror.  The grounding of the exercised authority in what were claimed to be the inherent powers of a military conquerer, the constant use of brute force to legitimate this authority, and the character of the rights that this brute force was used to deny, all show striking parallels not just with the situation in Al Skeini but with the situations that gave rise to the ‘acts of authorities’ doctrine in a chain of decisions stretching back to Drozd and Janousek and Loizidou.  This cannot be dismissed perfunctorily using Article 56.  The convention does not automatically apply to colonies, it is true, but nothing in that Article suggests that it was intended to create a black hole, making lawful in a colony what would be unlawful in a third country.

Even more fundamentally, its effect is to banalise the idea of human rights by treating the exceptional – the forcible expulsion of an entire native population in exercise of a conquering power’s right – as being in principle indistinguishable, and no different from, banal everyday administrative decisions on the allocation of fishing rights in exercise of a civil administrator’s right.  To treat forcible depopulation as not just analogous but identical to a dispute over a fishing licenses in a colony which had no native population, was not acquired by conquest, and pertained to powers exercised through purely civil means rather than force and compulsion, is to treat despotic dominion as if it were mere civil authority, with the result that the exercise of the one is treated as being no more problematic than the exercise of the other.

Such a conception of authority is clearly fundamentally flawed.  What, then, went wrong in the two cases?  The heart of the problem lies in how they came conceptualise the individual in relation to the state.   British liberalism in its imperial history was marked by two rival conceptions of empire – one which we can broadly call imperial cosmopolitanism, and the other which we can broadly call imperial paternalism.  Both, unsurprisingly, drew on the political theories of classical antiquity.  Imperial cosmopolitanism drew upon those Greek and Roman philosophers who saw in empire an instantiation of the Stoic notion of a koinos noumos – a universal order for all mankind.  It was through empire that the oikoumene – the inhabited world – would evolve to becoming a brotherhood of all peoples, a cosmopolitan order in the literal sense of a single, universal body politic, under the rule of a universal law.  Such idealistic understandings of empire were powerful in the early days of British imperialism, represented particularly strongly by imperial officials like William Jones, Francis Ellis and (possibly) even Mansfield himself.  It is on this conception of empire, and on the resulting relationship between colonial government and colonised peoples, that Lord Bingham drew in his powerful and cogently reasoned dissent in Bancoult.  The other conception of empire is a paternalistic one, deriving from Cicero’s conception of Roman rule over formerly barbarian provinces as a patrocinium – the more able ruling over the less able for their benefit as the result of a near-sacred trust and duty, as in Macaulay and Kipling.  In Bancoult itself, we see this reasoning in the decisions of Laws and Sedley LJJ, and to some extent the decision of Lord Mance.

But what understanding of empire underlies the decision of the majority?  Neither cosmopolitanism nor paternalism can justify or sustain a deprivation of juridical personhood. Hannah Arendt associated it with a totalitarian conception of the relationship between the citizen and the state, but the understanding of the relationship between colonizer and colonized that justifies the creation of this peculiar status of civic ghosts is something new.

Getting to the bottom of what this new conception is requires us to shift our perspective slightly, from studying how these cases conceptualise the individual under the state’s authority to seeing how they conceptualise the state itself.  Maitland pointed out that English law had never formulated a corporate idea of the state, but saw it in terms of the Crown as a corporation sole, and the servants of the Crown.  Such a conception of the state may have been adequate in the era of Entick v Carrington but it was clearly inadequate to describe the complex network of ministerial and non-ministerial departments, commissions, technocratic regulators, public corporations and so on that had already begun to emerge in Maitland’s day and that have grown by several orders of magnitude in our day.  The regulatory, controlling state is not a corporation sole, and not even the most orthodox theorist would argue that the law today treats it as one.  So how, then, is the state conceptualised in the eyes of law?

The answer, I suggest, is that if the law cannot see the state as a corporate entity, encompassing those with authority as well as those under authority, then it is driven to identifying state with government, and to seeing it as a complex system.  If the law cannot conceptualise of the whole, then it can do no more than think in terms of the parts of the whole; and it is to precisely such a conceptualisation that the idea of a complex system lends itself.  A complex system, in Herbert Simon’s classic definition, is a collection of a large number of parts – each a sub-system – which interact in ways that are not straightforward.  In dealing with the system one is always primarily facing a particular subsystem, but one is always conscious that behind this is the larger system, which is more than the sum of its parts in that one cannot adequately capture the whole merely by representing its parts: its complexity ensures that there is far more to it than merely its parts and the manner in which they interact.  This complexity also creates vulnerability, however; and, indeed, a complex system is infinitely vulnerable to disruption unless it is rightly managed in a way that contributes to its overall resilience.

Such a conception of states will see a colony which is relatively segregated from the colonising power as a relatively self-contained sub-system; and it will almost inevitably confer the coloniser with ability to exercise high dominion in relation to their colonies, including through this strange, newly-invented status of civic ghosthood.  There is much in modern practice, particularly in relation to islands governed from afar, that suggest that such a conception does in fact influence the way in which colonising states approach their domains; ranging from the repeated use of islands for nuclear testing, the shameful refusal of the US to compensate the inhabitants of the Marshall Islands for the legacy of radiation there, to the treatment of the Chagossians.  And there is also much to suggest that it is precisely this understanding of the state and its relationship with those it rules that underlay the decision in Bancoult.  One of the striking features of the case is its religious imagery.  Carswell cited the Book of Common Prayer, but even more striking is the imagery in Hoffmann’s speech. The law gives it and the law can take it away, Hoffmann said in relation to the right to abode.  The imagery powerfully implicit here is that of the Book of Job.  The law gave and the law hath took away, blessed be the law.  And there is a Job-like rhetorical structure throughout Hoffmann’s speech – of a people who were righteous and committed no offence; who were subject to tribulations for no fault of their own, but who ultimately are too minor in the grand scheme of things – parts of too insignificant a subsystem – to demand more.  As with Job, they are asked to display endurance: endure this, as you must, and the state will reward you with a restoration – indeed, the paltry compensation and the conferment of the right to reside in the United Kingdom are portrayed as precisely such a restoration by the English and European courts.  Job could not demand that his original children be brought back to life; he must content himself with the substitutes, and so it is with the Chagossians.

Fundamental to both is the unfathomability of the purposes of the one exercising dominion – in Job, the deity, in the Chagossians’ case, the state – springing from its role in creating and maintaining order.  The capacity to exercise dominion in this context can be regulated by confining it to the margins of political discourse, but the constitution does not reduce or trammel it.  Yet this is an abandonment of the fundamental basis of constitutionalism, and of the human rights project, which do not seek to merely confine or regulate despotic dominion but deny its existence; and in particular deny the idea that all interests of a natural human can ever be subordinated to those of the state.  That, I think, is what makes these cases so profoundly troubling.