Sebastian

At the beginning of The Lion, The Witch and the Wardrobe it is always winter and never Christmas.

In the United States at the moment, as well as in some other places, it seems that it is always a carnival and never Lent.

Here ‘carnival’ is meant as a period where usual norms and rules are disregarded, a time for ‘anything goes’ – which, in US law and policy terms, means anything the federal government can get away with.

And it is not any old carnival, but one where the federal government is be as cruel as possible to those to whom it can be cruel.

It is thereby a carnival – a carnival of cruelty.

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There is a quaint view that human beings need some reason to be cruel.

This is the view associated generally with, say, discussion of the Milgram experiment or the ongoing historiographical debates over the actions of the German reserve police battalion 101, where there is discussion over the motives of those who are cruel – and whether they are being merely obedient to authority.

But human beings often do not need a pretext or a reason, still less a justification, to be cruel to other human beings.

They just need an opportunity.

Some of the commentary about the approach of the Trump presidency emphasises the cruelty:

If this is the case – and the impression conveyed by what is being reported by the news indicates this is the case – then where does that leave law and policy?

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In a modern liberal democracy one fundamental – indeed, absolute – value is that cruelty is wrong.

In the words of Judith Shklar, cruelty is the worst thing we can do.

(Shklar, like Hannah Arendt, is a political philosopher whose work is now more relevant than one would like.)

A liberal democracy thereby often proceeds on the happy assumptions that creulty can be banned and that, left to themselves, those with political or coercive power will not be cruel – and if they are, there will be legal protections for those facing the cruelty.

But what if those with political and coercive power do not care anymore about being cruel – or even being seen as cruel?

And what if those who are supposed to check and balance those with political and coercive power – the legislature or the judiciary – nod-along with the cruelty, and even clap and cheer?

One by one, each of the hallowed constitutional principles of a liberal democracy have been found to be an empty slogan.

A codified constitution has offered no protection – when there is no constitutionalism.

The seperation of powers offers no protection – when those powers are aligned against the individual.

The rule of law offers no protection – when the courts uphold unlawful decrees, and stay or deny all challenges.

The carnival of cruelty continues, and continues – and nothing intrinsic to the polity can bring it to an end.

No polite, uniformed grown-up is going to suddenly turn up on the beach (from their own warship) and bring an end to this lordship of the flies:

This is a two-minute hate which lasts rather longer:

As Adam Serwer set out first in a remarkable essay and then in a book, the cruelty is the point.

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Until and unless there are any elections that mean that the policy will change, there is little that can be done to face this down completely.

But there are things: litigation is still being brought, pressure is still being placed on legislators, and the media are still reporting things (else we would not be aware of various abuses) – and there is still the prospect of elections (though some rightly fear about whether those elections will be free and fair).

The carnival of cruelty has not consumed everyone, and one can still see it from the outside, and there are still parts of the town as yet untouched.

One day the carnival of cruelty may come to an end.

But this is not a good time for law and policy in the United States (and elsewhere).

The institutions and constitutional principles that were there to protect individuals from an illiberal, cruel state have been tested, and they have failed.

And if – if – liberals and progressives are ever back in power, considerable thought needs to be applied to how such a total law and policy failure can be avoided next time.

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There is the machine of the Crown, and – from a legal perspective – what comes out are various legal instruments enforceable and/or recognised at law: proclamations, decrees, royal charters, royal warrants, privy council regulations, and so on.

Each instrument following a certain form and even ceremony, with certain ‘abracadabra’ magical wording, and the document exists at law.

And because that document is capable of making things happen, it is called an instrument.

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There is then the machine of Parliament, and – again from a legal perspective, what comes out are Acts of Parliament.

In a technical way these are a subset of documents from the Crown machine, as an Act of Parliament is not enforceable and/or recognised at law unless it has Royal Assent. It is in this way just another legal instrument signed by the Crown.

But Acts of Parliament can have general, even universal effect, and so are in a category of their own.

Note that other things done by Parliament – such as passing motions and resolutions – do not normally have effect outside of the Palace of Westminster (if at all).

And so when one talks of the sovereignty (or more correctly the supremacy) of Parliament, one usually means the sovereignty (or supremacy) of Parliamentary legislation.

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And then there is the judiciary machine.

To an onlooker (and indeed many lawyers) the outputs of the judiciary machine are the judgments and sentencing remarks. And indeed the reports of judgments and remarks are central to understanding laws and legal systems around the world.

But.

The main outputs of the judiciary machine are not judgments or sentencing remarks: they are at one or two steps removed.

The main outputs of the judiciary machine are Orders.

(There are other judicial outputs such as writs and summons and warrants.)

It is the Orders that have legal effect, that are enforceable and/or recognised at law.

Judgments and sentencing remarks are all very interesting and informative, but it is the Order that is the thing.

A judgment should explain why the court made one Order instead of another, why a case was disposed of in one way rather than another.

As such, judgments can be integral to understand what has gone with a case, but it is still the resultant Order that is the thing.

Orders are thereby for courts, what Acts are for Parliament, and charters and so on are for the Crown.

They are the things which come out of the judiciary machine, at least from a legal perspective.

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Orders can take many forms, but the form of Order which comes up most often in the news is the injunction.

An injunction is – very generally – a court Order which tells a person to do a thing or not do a thing, on pain of it being punishable as a contempt of court.

The classic historical-legal theory is that an injunction is there so as to ensure a person acts in accordance with their conscience: to do or not do a thing they ought or ought not to do.

Injunctions usually are either ‘final’ or ‘interim’/’temporary’. The latter are often used by courts to ‘hold the ring’ until a legal matter can be finally disposed of by the court: to keep things in a virtual legal state of suspended animation for the time being.

The normal position is that an injunction can be imposed on a party to litigation.

Here [A] is suing [B] for say breach of contract or an intellectual property infringement, and [A] wants to stop [B] for causing any further damage until the trial.

(Sometimes it may turn out that [B] has been injuncted when [A]’s case does not succeed at trial, and in those situations [A] must make good the damage and costs caused to [B] complying with the injunction. As such injunctions can be double-edged legal weapons. In legal practice, injunctions are the sort of things you ‘don’t try at home’ and should be left to the professionals. Injunctions can cut in unexpected and painful ways.)

Sometimes a party will want a permanent, final injunction – but generally (at least in England) injunctions are a means to an end and the final remedy at court will usually be damages.

A party breaching the injunction faces punishment (and there is a legal debate whether such punishments are criminal as such) which can include imprisonment.

A person guilty of contempt will then be expected – to use a quite lovely legal word – to ‘purge’ their contempt.

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Injunctions, however, may not only be against a party to legal case.

They can also be granted against third parties.

In England such injunctions are not at all unusual – and the courts have developed all sorts of freezing orders and search orders where third parties caught up in a situation can be obliged to comply with court orders.

Sometimes such injunctions can be made against persons unknown (for example trespassers) or even ‘contra mundum’ (against the world).

Obviously there is practical difficulty in showing a person is aware of such an order, and the normal position is that a person is not bound by an Order unless they have (or should be expected to have) notice of the Order.

That is why injunction notices are tied to fences or emailed to legal departments of newspapers, and so on.

The injunction in the recent Afghan case was applied by the government to be ‘contra mundum’ order:

As a subsequent judgment in the same case described:

If a person has notice of a contra mundum notice then they are as bound by it as any party to the litigation.

An affected third party can have protections built in to the Order – and can also apply to the court to have the Order amended or discharged. But in practical terms the third party has little choice but to comply.

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There is a further way to super-charge an injunction, by giving it is a special super power (though this is rare for contra mundum injunctions).

A court can turn an injunction into…

…a super-injunction.

In a super-injunction it is a term of the Order that the existence of the Order itself cannot be disclosed.

In the recent Afghan data breach case, there was a super-injunction. A judge in the case described it as follows:

Originally the super-injunction in that case was not published with the raft of documents released last week.

But following a request from this blog, the Order was published.

The “super” element of the Order is at paragraphs 4(b) and (c):

A non “super” version would have 4(a) and no mention of 4(b) in the final sub-paragraph.

If you go to front page of that Order you will see the penal notice, to warn those of the dire consequences of any breach:

Such an Order is thereby not to be taken lightly, and they are not taken lightly by any responsible person.

Super-injunctions were briefly common about 2010 as a means of protecting the claimant when they were suing for the then new tort of misuse of private information, but media and political controversy meant that the courts moved away from granting them.

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The Afghan data breach case injunction was both a contra mundum injunction *and* a super-injunction.

As such it was an exotic legal creature, the sort which are sometimes speculated about, but rarely spotted in reality.

But even if they are exceptional the components are straightforward:

(1) it was an interim injunction that

(2) was addressed to anyone who had notice of it which

(3) had as one of its terms that the injunction should not be revealed beyond those who had notice of it.

Such injunctions can exist – and some would say that they have their place in exceptional situations.

But one question is whether it was appropriately granted in this situation – and, if so, whether its terms should have been discharged or varied sooner.

And another question is whether in this situation such an injunction stymied legitimate public knowledge and political/media scrutiny of the government by parliament.

For sometimes even the judiciary machine fails to function properly.

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Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.