The Good Law Project (GLP) has lost again. But the lessons from this particular loss touch on a deeper problem in society. Our relationship with ‘the law’ and ‘rules’ has become dangerously confused.
What happened? Well, there was a two day hearing involving a King’s Counsel and three other barristers for the GLP, and another King’s Counsel and two more barristers for the government. That is an expensive two days.
What did the GLP want? Well, they weren’t actually clear initially, so we’ll come back to that later. But it was all to do with the issue of ministers using private emails and private WhatsApp or other messaging services for government business. The GLP were determined to stop that. They failed.
They failed, but in some ways, they won – because people who are making our society effectively ungovernable cried ‘shame’ at ministers anyway when the case was announced. No one waits to see what a court actually says these days before rushing to judgement. It’s much easier instead to accuse your enemy of breaking the rules or law and watch the mob burn them anyway.
We have lost perspective in society. A small gaggle of retired civil servants can go on the media and claim some technical breach of a rule nobody has ever heard of and get real people sacked. Our entire government can be swept away over a lawful slice of cake.
But I stay in the law precisely because it’s the only place left the mob can’t get you. And the Court steadfastly refused in this case to start policing ministers and controlling how they carry out their business.
The argument used by the GLP in this case was confused. And it’s right to note that the judges were extremely angry that the case had been brought at all. Now, because I know judges, their anger is obvious to me, I hope it’s obvious to all. Here it is:
‘The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.’
This can be translated as, ‘the fact that you can’t even say what you want us to do about this thing you are pretending is really important is a good indication it isn’t important and you should not have wasted our time’.
That’s because all sorts of things are technical breaches of law. We have a lot of law. A new law student will inevitably walk to the pub after class and suddenly see lots of crimes taking place. And what GLP focuses on isn’t even crime – they focus on lesser things called ‘civil wrongs’. You can probably guess that there are bucket loads more of them.
A good example is the tort (civil wrong) of trespass. If your neighbour trespasses on your drive once – and just once – do not try to sue him. Because yes it’s technically a civil wrong – but no the judge will not be happy and all you’ll get is shouted at and a big legal bill.
Indeed, on the second day of the GLP hearing, when they had finally made up their mind, the GLP asked the Court to effectively turn government ‘policy’ and ‘guidance’ on communications into law. This strikes at the foundation of who makes law. Previous courts have made concessions on this in the past, and said that some policies are binding on the government. But this time the Court was clear that office policies on WhatsApp – that doesn’t deal with the way ministers interact with the public – is definitely not law.
The Court also confirmed very clearly that guidance in general is not law.
We used to have laws that stopped this type of campaigning lawfare, such as the torts of Champerty and Maintenance and the tort of Barratry. The modern tool to end this kind of GLP campaigning might be the law of Standing, which asks that a party involved in a case is actually harmed by the law they are challenging. But this is only important if you want to stop GLP.
What matters for now is that ministers can, of course, carry on using WhatsApp. They can carry on using personal emails (subject to security concerns, leaking etc, etc). Our laws are made flabby so that they catch everything. That system requires something called common sense for it to work. And for common sense to work, it has to be common. So the next time you hear someone crying ‘shame’ about some technical error you’ve never heard of, you have a role to play – join the mob or resist it.
Comments