About John Jackson

John Jackson is a lawyer who has never practised the law professionally.  He is chairman of Mishcon de Reya and History Today on the Board of openDemocracy and founder of JJ Books.

Articles by John Jackson

This week's editor

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Adam Ramsay is co-editor of OurKingdom.

What If

John Jackson (London, Mishcon de Reya): Some days ago I was at a private breakfast party in the City of London. The ‘guest of honour' was a distinguished business man who had had a very successful career as a clearing and investment  banker. I asked him why nobody had asked the ‘what if' questions. Why had nobody asked ‘What happens if the wholesale money market dries up?' or ‘What happens if American borrowers cannot keep up with their mortgage payments?' or ‘What if the banks do not understand what is inside these "securitised" packages they are investing in?' Those questions must have occurred to somebody.

His answer was illuminating. ‘Well, Mervyn (King) said something but the truth is that people tend not to ask such questions in boom times, particularly if politicians or the government of the day are important to them.' What he was describing was an insidious form of self interested self censorship which we are all tempted to engage in at some time or another. We are like ostriches that mix their metaphors as they stick their heads in the sand with their tail-feathered bottoms pointed to the sun and murmur either ‘apres moi le deluge' or ‘I have never had it so good.'.

But now we are not in boom time and people - not the politicians -  may be more inclined to ask ‘what if' questions. There are two which interest me particularly.

What if?

 

Some days ago I was at a private breakfast party in the City of London. The ‘guest of honour’ was a distinguished business man who had had a very successful career as a clearing and investment  banker. I asked him why nobody had asked the ‘what if’ questions. Why had nobody asked ‘What happens if the wholesale money market dries up?’ or ‘What happens if American borrowers cannot keep up with their mortgage payments?’ or ‘What if the banks do not understand what is inside these “securitised” packages they are investing in?’ Those questions must have occurred to somebody.

His answer was illuminating. ‘Well, Mervyn (King) said something but the truth is that people tend not to ask such questions in boom times, particularly if politicians or the government of the day are important to them.’ What he was describing was an insidious form of self-interested self-censorship which we are all tempted to engage in at some time or another. We are like ostriches that mix their metaphors as they stick their heads in the sand with their tail-feathered bottoms pointed to the sun and murmur either ‘apres moi le deluge’ or ‘I have never had it so good.’

But now we are not in boom time and people – not the politicians -  may be more inclined to ask ‘what if’ questions. There are two which interest me particularly.

Gradually, throughout the world, the banking system is becoming owned or controlled by national governments. In some countries that has been the established situation because of constitutional or political commitment. But in others it is new and, supposedly, temporary. What if there was a change of political will and it became permanent? A good friend of mine said to me ‘They could not do it. Those governments must sell their stakes back to the private sector as soon as possible. They need the money.’ I understand that but what if , for political reasons,  they decided not to do it? What would follow?

A second, and related, question. What if ‘labour’ organised itself globally and either bought those government owned stakes or used political leverage to ensure they were not sold. Would not labour then, in a sense, be on the road to owning or controlling capitalism? There’s a thought!

Perhaps such developments would make it easier for international treaties to ‘stick’. But that pre-supposes a global outbreak of honest government.  Maybe that poses the most important ‘what if’ question of all.

The Smoke is Clearing

John Jackson (London, Mishcon de Reya): It would be niggardly and ungenerous to deny the Ministry of Justice any praise for its long awaited Green Paper, Rights and Responsibilities: developing our constitutional framework. The 64 page document is interesting, well written and reflects many hours of careful work. The discussion of rights is far more compelling than that of responsibilities. That latter could have been summed up in one quotation from Thomas Paine: ‘A declaration of Rights is, by reciprocity, a Declaration of Duties, also. Whatever is my right as a man, is also the right of another; and it becomes my duty to guarantee as well as to possess.' That thinking is reflected in the views of my American friends who regard the upholding of the US Constitution as their highest civic duty. To go beyond that and attempt to erect a ‘system' based on the duties of citizens to their state looks unwise.

In one or two places the Green Paper is also politically courageous. The statement  ‘Today, our constitution is a rich fabric of statute, common law and convention and our fundamental rights and freedoms are embedded throughout it. Inevitably these have been shaped by the beliefs and perspectives of the times in which they were created and new demands continually arise to create new challenges. - - - - The Government believes the time is right to explore the case for drawing together and codifying such rights in a new constitutional instrument.'. is an example. Leaving aside the point that the ‘fabric' is so ‘rich' as to be completely indigestible by the ordinary person, most governments, knowing that within eighteen months they would be facing a critical electorate, would have avoided opening up what their party political advisors will have been telling them could become the proverbial can of worms.

Targetting What?

John Jackson (London, Mishcon de Reya): Target setting by departments of government and their functionaries is designed to improve the quality of public services and the efficiency with which they are delivered.

As the shocking case of the Stafford hospital, which seemed to forget that its main purpose was to care for the sick and injured, has shown, this managerial practice can produce strange results. It can be used also for strange purposes.

Yesterday morning a colleague and I had an unpleasant experience. We had tickets (and reserved seats) on the East Midlands train due to leave St Pancras at 9.25 for Leicester. The number of the departure platform was not announced until close to 9.20. As a large number of waiting passengers hurried to the barriers, two burly officials in dark suits appeared, stationed themselves either side of the narrow entry, instructed us brusquely to ‘form two lines with our tickets and passes ready' and sent to the rear of the lines those who said that ‘as usual' they intended to purchase their ticket on the train. This process took time and a considerable number, including some with tickets, missed their train when shortly before 9.25 the barriers were shut against them. We were the last to squeeze through and the train was moving before we found our seats. Bizarrely, within two minutes another inspector appeared and examined our tickets.

Epitaph for Molly

John Jackson (London, Mishcon de Reya): Some weeks ago I remarked in a piece posted on OurKingdom that livelihood without liberty is mere servitude. When I wrote that I did not yet know that Molly had died in hospital, in her 93rd year, in early January.

Molly, born and bred in Scotland, left school when she was 14.  Armed with the sound and extensive teachings that her country, with its poverty, Calvinist traditions and commitment to universal education, then provided to all its children, Molly went straight into ‘service', probably as a kitchen maid, with a wealthy family that owned a local ‘big house'. There she was joined later by a younger sister who, after some years, married the assistant gardener, Dick, employed by the same household.

Frog Spawn

John Jackson (London, Mishcon de Reya): Spring is here and the frogs in my garden pond are spawning. As I watch the randy little males croaking with excitement and clambering over each other to clasp the strangely passive females and let down their fertilising milt as they, the females,  exude their transparent tapioca-like eggs, I am reminded of government ministers and shadow ministers as election time approaches. They too croak away and clamber onto our backs as they seek to inseminate our voting capacity with support for the views of their political party.

If the sovereignty of ‘we the people' or, indeed, representative democracy are to be more than forlorn hopes we should rebel against being treated in this way, as passive spawners available for clasping by the political elite in their springtime. It is ‘we' who should be setting the agenda and making clear that ‘we' require  those who seek to govern or represent ‘us' to make clear their position on matters that ‘we' regard as fundamental, particularly matters relating to how ‘we' are governed and represented.

Fred the Pig

 John Jackson (London, Mishcon de Reya): The stink from the Palace of Westminster that I wrote about recently is spreading! Members of both parliamentary chambers who insist on playing the game according to the rules - and to their own personal advantage - should not be surprised if others are keen to follow their example.

The rule based stance of Sir Fred Goodwin reminds me of the pig clubs that flourished in the last World War. With ministerial encouragement, households collaborated together in the ownership and care of a pig. In a club I knew, the pig was always named Fred. Rather like discretionary contributions to a company pension scheme,  waste food donated by each family which owned a share of Fred went to make up the swill that was dumped in his trough. Nobody liked to tell Fred that the deeper he buried his snout the quicker he would be turned into bacon.

The slaughter of Fred by a government approved executioner was quite a ritual. Those that were not squeamish assembled and Fred was formally knighted before, now Sir Fred, his throat was cut and the gore led off to become the foundation of black puddings. I think someone may have told Harriet Harman about this. There is a difference though: the pig club that I knew respected the rule of law with great care and no special rules were made for dealing with the porcine knight.

The Palace of Westminster Stinks

John Jackson (Mishcon de Reya): Playing the game according to the rules is an ancient activity closely associated with the boundary between the socially acceptable and the unacceptable.

The best villas in Rome and its settlements had under-floor heating, running water and lavatories. And excessive indulgence in food and wine was permitted provided you did not throw up on the way to the conveniently situated vomitarium.

The functionaries in mediaeval palaces advised you on what was permissible if relief was necessary. Quite usually this involved squatting in the corner of the great hall and, having performed your ‘necessities', wiping yourself down with straw. When the smell became completely unbearable, the palace was vacated so that it could be scrubbed out and fresh straw laid. Come to think of it, rather like our general elections when the accumulation of excrement and used straw in the Palace of Westminster becomes too great to bear.

Parliament: the desert white mouse

“Parliamentary supremacy is fine. Parliamentary sovereignty sucks.” - Swansea University student, 2008.

When I became a law student, nearly sixty years ago, one of my initial tasks was to learn about the history of the English legal system. After some weeks of indolence I thought it politic to ‘confess’ to my supervisor – who appeared senior and wise to me but was probably all of thirty years of age – that I had failed to find a copy of our constitution. After listening to his explanation of my failure – there was not one to find, I remarked that the situation he described was difficult for the ordinary person to understand.

'I do not think the ordinary person needs to understand it.’

‘But if they do not understand it , how can they change it?’

‘Change it?’ - this rejoinder coming with an emphatic stiffening of posture.

‘Well, yes, our constitution must belong to all of us; we must be able to change it.’

‘Jackson, you should understand that our constitutional arrangements are part of our great historical heritage and are not to be meddled with by those – and this seems likely to include you - who do not have the capacity to understand what they are doing.’

To me, who as a schoolboy had applied to join the Common Wealth party and was well down the road to becoming what, David Marquand would later describe as a democratic republican, that put-down was so absurd that I burst out laughing. It was only when I saw the expression on his face that I realised how deadly serious my teacher was. I apologised for my ill manners and left his rooms with a voice inside me saying ‘There is something wrong with that.’ It was some time before I focussed on ‘what’.

Liberty and livelihood

John Jackson (London, Mishcon de Reya): Last week the Appeal Court handed down a very important judgement settling a question about the Hunting Act. The Act provides that no offence is committed if hunting is done in a way which brings it within one of a number of exemptions laid down in the Act. Astonishingly, the  authorities had argued that they had little chance of  bringing successful prosecutions if they were asked to prove that challenged hunting was not within the exemptions. They wanted the court to rule that it was up to the accused to prove that what was done was lawful. To rule, in other words, that the accused would be found guilty unless innocence could be proved. The court rejected the prosecutors' request.

The right to be held innocent unless and until proved to be guilty - the presumption of innocence - is one of our ancient and fundamental freedoms On 28 February in London, and in meetings being organised across the country, the Convention on Modern Liberty will deliberate on the many perceived, and growing,  threats to all the fundamental rights we have fought for and enjoyed as a free people.

Will International Law help Binyam Mohamed?

John Jackson (London, Mishcon de Reya): A careful comparison between the judgement of the Divisional Court in the Binyam Mohamed case and what David Miliband said in Parliament is revealing.

In Miliband's view, and I quote, ‘The question at issue was whether intelligence provided on a confidential basis by one state to another, in absolute trust that it will be kept secure, may be disclosed to the public by a foreign court- - ‘.

In the court's view the issue was how to balance the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.

It is important to understand that at no point did the court intend to disclose publicly the content of highly sensitive documents given to the court, very properly, by David Miliband's advisers and which, for a time, the US authorities did not want BM's lawyers to see. It only wished to include in its judgement a summary of reports by the US Government to our Security and Secret Intelligence Services on the circumstances of BM's incommunicado and unlawful detention in Pakistan and of the treatment afforded to him by or on behalf of the US Government.

The court wished to do that because the summary, which, it said, could not possibly be described as ‘highly sensitive classified US intelligence', was highly material to BM's allegation that he had been subjected to torture or cruel,inhuman or degrading treatment and to the commission of criminal offences. Under UK law a prosecution can be brought, with the consent of the Attorney General, against a person who aids and abets, or assists in concealing, grave breaches of the Geneva Conventions (such as torture or inhuman treatment) in the UK or, if that person is a UK national or resident, anywhere in the world.

Has David Miliband breached the rule of law?

John Jackson (London, Mishcon de Reya): On Thursday I wrote an immediate analysis of the 'The case of Binyam Mohamed'. It raises fundamental issues about how we are ruled and whether, indeed, we enjoy the rule of law. 

An examination of extensive exchanges in Parliament last Thursday reported in Hansard makes it clear that David Miliband now claims the US authorities did not make threats in relation to the sharing of intelligence information and that he had not raised this aspect of the BM case with colleagues in the US since the inauguration of President Obama. This is so astonishing as to defy belief when placed next to what the Divisional Court said in its last judgement published last Wednesday. I quote:

The case of Binyam Mohamed

John Jackson (London, Mishcon de Reya): The case of Binyam Mohamed (BM) is the latest in a long line of disputes concerning terrorists, alleged terrorists and their treatment to come before the courts. The judgement published on Wednesday - the last (maybe not) in a series of judgements in this case - is extremely interesting and addresses what the Divisional Court (with two judges sitting) believes to be ‘a novel issue which requires balancing the public interest in national security and the public interest in open justice, the rule of law and democratic accountability.'. Were it not contained in 33 closely argued pages,I would recommend the judgement as ‘required reading' to all participants in the forthcoming Convention on Modern Liberty. It discusses many issues relevant to the Convention and will certainly feature in the session addressing the question ‘Who decides, the politicians or thejudges?'. Lord Bingham, a member of the panel opening that session, is quoted extensively in the BM judgement.

The inflexible constitution

John Jackson (London, Mishcon de Reya): In his post yesterday, Stuart Weir referred to the ruling classes ‘self- defeating insistence on the great merit of a flexible constitution’. That insistence is also self-serving and depends on a strange and disingenuous circular argument.

By definition a flexible constitution contains uncertainties and is not definitively written down. But, say its advocates, we also embrace the rule of law and that does require certainty. And, given that we have a flexible constitution, that certainty can only be provided if somebody has the last word. That is the justification of the concept of parliamentary sovereignty encapsulated in the phrase ‘The Crown in Parliament can do anything it wishes except bind its successors’. Parliament – these days a Parliament which is largely the captive of government – has the last word and can insist on what it wants.

The foundation of liberty

John Jackson (London, Mishcon de Reya): Tony Benn’s piece on liberty is beautifully written by a true libertarian. However it is, in essence, a call for vigilance and little more. That is not enough.

I am writing this in the United States where people are confronting with some discomfort aspects of their country’s recent past. Their new President when announcing the end of waterboarding and the closure of Guantanamo has reminded  them that the US will have and deserve little moral influence if it does not hold to its founding ideals. At the heart of those ideals is ‘liberty’. My friends are asking themselves what ‘liberty’ truly is and who should enjoy it.

What strikes me again and again is that when discussing some of the less fragrant events of the recent past they do not ask ‘Was it legal?’: instead they ask ‘Was it constitutional?’.

Holding to the Constitution is an important part of being American. It is part of the glue which holds American society together.

We have nothing similar in the UK. We are almost discouraged from thinking about our Constitution. We are the poorer for that. 

A bill of rights that belongs to us

John Jackson (London, Mishcon de Reya): Here in California, eight hours behind British time, I have only just got round to reading Henry Porter’s excellent article in last Sunday’s Observer.

His call for a Bill of Rights with entrenched privacy laws may well be echoed strongly during the important Convention on Modern Liberty to be held next February and, hopefully, echoed with the rider that the protections we already have under the Human Rights Act should not be trimmed away.

Privilege and partisanship: a dangerous combination

John Jackson (London, Mishcon de Reya): Ahem!  Whilst I agree with most of what has been said about the Damian Green affair – particularly the activities of the police, there is an awkward aspect which is in danger of being stuffed under the carpet.

Parliamentary Privilege – a hugely important part of our unwritten constitution -  evolved well before political parties and their activities were a part of our landscape. It was, and is, an essential part of the way in which we, all of us, are protected from the abuse of power by those in control of the state. It is our protection and those who are elected by us to serve in Parliament, our MPs, have a duty to remember that in all their dealings. It is not just a rule of their playground!

Is parliamentary sovereignty still vital?

John Jackson (London, Mishcon de Reya): The texts of Nick Herbert's public speeches sometimes give the impression of having been drafted first by a well informed assistant, with a sound knowledge of our constitutional history, and then given a ‘going over’ by Herbert to provide a (Conservative Party) politically correct gloss. The result can read in an oddly disjointed – almost Palinist -  way. This is a pity: it diminishes the value of serious attempts to discuss serious questions in a serious way. The public lecture commenting on a decade of the Human Rights Act, sponsored by the British Institute of Human Rights and delivered by Herbert yesterday at the site of the British Library’s Taking Liberties exhibition is a striking example of this.

Despite the disjunctions, some good, and some bad,  points emerged clearly from  Herbert’s lecture.

He was right to:-

  • Warn against the dangers of judicial activism;
  • Emphasise that human rights cannot have meaning, or exist, without popular consent;
  • Say ‘ – in society we have responsibilities to one another.’ and ’- there is a danger that rights become not tools for protecting the individual within society, but advancing the individual against society.’

But wrong to:-

  • Argue that judicial activism has been accelerated by the Human Rights Act which has undermined parliamentary sovereignty and the separation of the powers;
  • Imply that popular consent can only be expressed through parliamentary representation;
  • Suggest that the best way for our society to ‘re-balance’ rights and responsibilities is via a British Bill of Rights and Responsibilities proposed by a (Conservative) government and, following debate, converted by a (Conservative) government dominated parliament into an Act ‘preventing judge-made law’ and restoring ‘the place of parliament’.

Where does the BAE case leave international law?

John Jackson (London, Mishcon de Reya): At the end of her judgement in the BAE case one of the law lords, Lady  Hale, said “- - I would wish that the world was a better place where honest and conscientious public servants were not put in impossible situations such as this - - -“. I would wish that too. I would also wish that people and nations did not seek to advance their interests by violence or the threat of violence. If that were so there would be no need of armaments industries and questions of national security could be dealt with in a more open and satisfactory way.

The impossible situation to which Lady Hale referred was the dilemma confronting the Director of the SFO in deciding, with incomplete information, whether, to quote Lord Bingham, “the public interest in pursuing an important investigation into alleged bribery was outweighed by the public interest in protecting the lives of British citizens”. The incompleteness of information available to the Director is the link to my second wish and my remark about how questions of national security are dealt with.

Lords were right to reject judicial activism on BAE

John Jackson (London, Mishcon de Reya ): Doubtless some, perhaps many, will be disappointed by the unanimous decision of five law lords to overturn the judgement delivered, and probably crafted, by Lord Justice Moses in the Serious Fraud Office’s BAE case. And those disappointed will include some who have convinced themselves that the Blair government acted cravenly to protect the commercial interests of BAE - a large employer and taxpayer - or even that this all fitted in with a longer term plan by Blair himself to grease his passage, post-premiership, to a position from which he could enjoy the trappings of international office and advance the interests of his friends in the United States in the maintenance of oil supplies from the Middle East.

Where there's a Wills there's a way

John Jackson (London, Unlock Democracy): Many political commentators are enjoying great sport by sniffing out and pursuing members of the presently besieged government who smell like attractive quarry. With increasing frequency the victims deserve this attention because of incaution, stupidity or breaking cover at the wrong time. It is rare for a minister to attract praise for doing something rather brave. One such should be Michael Wills at the Ministry of Justice responsible for the discussion paper "A national framework for greater citizen engagement" (pdf).

I have just reread Wills' paper "A New Agenda-Labour and Democracy" written when he was a backbencher and published by the Institute for Public Policy Research in June 2006. In the introduction he says "This essay argues for a programme of reform, that may have to be driven not by the political class who are seen as responsible for undermining faith in our constitutional arrangements but by the people themselves who are served by such arrangements. It suggests that the time may be coming for an elected, one-off, fixed term constitutional convention to heal the fracture in our politics".

It is easy to contrast that imaginative idea, set out in clear and refreshingly honest words, with the caution, correctness and need not to be too costly pervading the ideas outlined in the discussion paper and either damn Wills as a cowardly backslider with faint praise or dismiss him as someone of no consequence with caustic snidery. It would be wrong and unfair to do either.

42 days and the Constitution

John Jackson (London, Unlock Democracy): David Davis has spoken of the possibility that the Parliament Act will be used to force through the Government’s proposed “42 day” legislation, despite any objections made by the House of Lords. Theoretically this is possible.

I’ve been asked, what exactly is the Parliament Act? How does it allow the Lords to be over-ruled? And also, following a hint of David Davis, why might it be illegal in the case of 42 days if the government does attempt to use the Parliament Act?

Liberalise or die

John Jackson (London, Mischon de Reya): In the current issue of Prospect, Philip Collins and Richard Reeves assert that “Labour is failing to win-or even to grasp- the big political argument: how to ensure people are in control of their own lives.” From that starting point they take their readers on a journey that ends with the conclusion that Labour has a stark choice-it must abandon its liking for central-state diktat and either liberalise or die

They signpost the journey with, for example, references to the dangers of the Fabian brand of “mechanical socialism”, Labour being heir to another tradition too, "Radical liberals, seeking to provide the conditions for people to live flourishing lives of their own choosing, having driven many of the social advances of the 20th century” and "Unless there are strong arguments to the contrary, power should reside with individuals."

It is very striking that the article does not recognise that ordinary people are entitled to decide for themselves how they should take control of their own lives. In essence it is a discussion of what a political party should do to “give” ordinary people such control in pursuit of its own opinions and interests. That is something very different and is an affront to the notions of personal liberty and human rights.

This goes to the root of an increasingly serious problem. The political parties have acquired a large amount of unconstitutional and unaccountable power. Their grip on our electoral arrangements coupled with the whipping system and the payroll vote have destroyed our system of representative democracy (so that it is neither representative nor democratic) and reduced Parliament to a role largely junior to that of the Government.

Who gains from global warming?

It seems that the climate of our planet is reverting rapidly to that which has persisted for much of the last 300 million years. Average temperatures and sea levels were higher, there were no polar ice-caps and temperature differences between poles and the equator were lower. The rate of this reversion, certainly in so far as it is connected with greenhouse gases, is being accelerated by humans and their activities and to such an extent that their must be a risk of "overshoot" into a situation which is entirely new.

John Jackson chairs the law firm Mishcon de Reya, is a director of openDemocracy and History Today and is on the committee of Unlock Democracy

Among John Jackson's articles in openDemocracy:

"Write the constitution down!" (17 February 2005)

"A democracy in trouble" (1 March 2006)

"Alice Wheeldon and the attorney-general" (17 April 2007)

"From deliberative to determinative democracy" (15 October 2007)

Who makes the law in Britain?

One thing is certain: if we do eventually get a written constitution for our country it will not start with the words "We the judges".

This remark is made only partly in jest. As Lord Bingham, our senior Law Lord, has made clear recently there is, in his view, a serious problem which we cannot wish away and must not ignore. To put it starkly, it is the incompatibility between the rule of law and the sovereignty of parliament.

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