Legal Debate Series: The Limits of Law

The eighth in the series of Thomson Reuters Legal Debates took place on Sept. 1 at Thomson Reuters Canary Wharf Auditorium with the motion under debate being whether the judiciary, not just parliament, must address breached election promises. The Rt. Hon. David Lammy, MP and Robert Palmer, barrister, Monckton Chambers, argued for the motion which was opposed by Polly Toynbee, a journalist with The Guardian, and Dan Neidle, a partner at Clifford Chance, who made it very clear from the outset that he was speaking in a personal capacity and not on behalf of Clifford Chance. Chaired by Axel Threlfall, Reuters Editor at Large, the debate was a lively investigation on the limits of law in the context of election promises.

The event started with the audience being given the results of the pre-debate vote which was organized through the Thomson Reuters Convene app or by text message. This showed that 64 percent of those voting were in favor of judicial intervention to address breached election promises with 11 percent disagreeing and 26 percent undecided.

Whilst the motion under consideration allowed for a very wide debate on the subject of judicial intervention in politics, even those in support of the motion recognized that to have no limits on the scope of judicial intervention would be an unnecessary and unworkable curtailment of the right to free speech and would turn politics into a litigated product in the way that contract disputes are litigated in the courts.

For the motion

David Lammy’s argument was much more closely pinned upon the recent Brexit referendum than the other debaters. He argued that as the parliamentary vote which led to the Brexit referendum was only ever meant to be advisory, the fact that the present government had converted it into a binding obligation had led to a constitutional crisis that only the judges could resolve. Mr. Lammy didn’t say what that resolution would look like in general application other than observing that, in the particular context of the Brexit vote, the court was to be asked to determine that the Article 50 trigger required a further vote in parliament before it could be activated.

Robert Palmer focused upon the well established doctrine of legitimate expectation in support of allowing judges to determine whether elections promises had been breached. He argued the government’s political mandate stemmed from the promises advanced in its manifesto and that the courts should rightfully intervene to ensure that such promises were kept, and where not kept, reasons for departure given. Such judicial intervention would expose a change of promise to proper public scrutiny with a judgment at the end of it to say whether the legitimate expectation had been breached. Mr. Palmer limited this doctrine to manifesto promises only, rather than to general political aspirations, noting that such an approach was in keeping with the Salisbury convention, established following the Labour Party’s landslide election victory in 1945 but at a time when they only had 16 members of the House of Lords, whereby the Lords agreed not block bills mentioned in the election manifesto and for which the government could claim a mandate.

Against the motion

Polly Toynbee’s argument was that elections are won and lost not on election promises but upon whether the public sufficiently trusts the vision that a party has for the future. The fact that the vision is incapable of delivery is then judged, and should be judged, not by judges but by the voting public and by opposition parties and the media who expose governments for their non-delivery. She argued that the only beneficiaries of a change of approach would be the lawyers and that judicial intervention would be unworkable and restrict the aspirational space that political debate and even election manifestos should occupy.

Dan Neidle argued that politicians, whatever their faults, are elected and accountable. Judges, whilst clearly decent and honorable, are not. They cannot and should not be expected to step in to determine fine issues of judgment on political promises and commitments. The only guaranteed outcome that such a law would produce would be untold litigation (and richer lawyers) together with the creation of the politicians caveat whereby every promise would be accompanied by a large, lawyer created, caveat that the policy would be delivered subject to no unforeseen change of circumstances, a general review of the state of the economy and the need to utilize the limited available parliamentary time. In short, he argued that political promises would become so anodyne that they would lose all meaning and the politics of distrust that seemed to be a current feature of our democratic system, would only worsen. Such a law would only help the rich, the litigious and the lawyers and would be unenforceable.

Interventions from the floor

Perhaps the most telling intervention from the floor was an observation that the court had very limited remedies to deploy should a finding of a violation of a promise be established. Whilst it raised a rather large cheer from the floor, the proposal that politicians be imprisoned or fined for failing to keep election promises (as an illustration of how unworkable such a law would be) was properly regarded as ridiculous. The issue was considered from a criminal law perspective by my colleague, David Bacon, in his blog post Are breached election promises a matter for the judiciary?

Outcome: The Nos have it, just

At the end of the debate a further electronic vote was held. The numbers had dramatically changed. Those disagreeing with the motion were now on 48 percent with a 2 percent lead on the Agrees on 46 percent. The undecided had reduced to 6 percent.

Comment

It was interesting that the debate brought about so dramatic a change of views in the audience. This may not have occurred as a result of any speakers particular argument but may have arisen from the realization that although our democratic system is flawed, accountability through Parliament and elections is preferable to accountability enforced through the courts.

From medieval times until the early 20th century, a man’s promise to marry a woman was considered a legally binding contract actionable in law. Dickens’ Miss Haversham, abandoned on her wedding day, took to her room, closed the curtain and “never since looked upon the light of day.” Whilst an election promise is a long way from a promise of marriage, some might say that the reluctance of the law to become involved in arbitrating disputes to do with promises of marriage should inform the debate on the law intervening to arbitrate on election promises. It might have been hard for Miss Haversham to take but would litigation in the courts really have helped her position? The law would never, by way of specific performance, have forced her suitor to actually marry her.

Politics is hard business. We need our politicians to be robust and to occupy the domain of aspirations and vision. This should not be seen as a license for politicians to lie (as some might think occurred on both sides of the Brexit debate) but the final court for judgment should be that of the voting public rather than courts. This requires a thriving democratic debate where both sides of the argument are given proper space to make and have their arguments reported so that come election time, those who have broken their promises can, where the public considers it important, be properly held to account. Nobody wants to have politicians so shackled by an aversion to litigation that politics ceases to occupy the realm of aspiration and vision and sometimes, even broken promises.

You can watch the complete debate here: