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.