Welcome to the Oxford University undergraduate Law Journal podcast, where we discuss the
law and its relationships with our society and its implications on our everyday lives.
I'm Chen, I'm Dorothea, and we are your podcast editors.
Hello everyone, welcome to the second podcast episode of this term and indeed of this academic
year. I hope that everyone is settling into the term and that you're enjoying your legal
studies. And if you are a prospective student thinking about studying law, I hope that this
podcast can actually give some exciting insight into the topics and flavour of what law might
be like to study at degree level. Today we're very honoured to have Professor Ewan Smith
with us. Ewan studied at our very own University of Oxford at Braesnorth College before completing
postgraduate programmes at the universities of Harvard and Paris. He has practised as
a lawyer in the US and he's worked at the UK Foreign and Commonwealth Office. He's
taught and researched at the National University of Singapore and at Tsinghua, Renmin and Peking
universities in China. He has been a fellow at Christchurch and at Jesus College in Oxford
and he has been teaching constitutional law to undergraduates and masters students at
Oxford. Now Ewan is an Associate Professor at University College London. Ewan, thank
you so much for coming to speak to us about public law today. It really is a privilege
for us. Thank you very much for having me, Chen. I'm looking forward to talking to you.
If you're happy to, we will jump right into some questions about the law. Sure, fire away.
Thanks very much. Going into your current research, your monograph about codified and
uncodified constitutions, what does it mean to have a codified or uncodified constitution?
That's a really good question and I notice that you've carefully distinguished between
what some people call unwritten constitutions and what you're calling uncodified constitutions.
I think it's a sensible move to make. There is an obvious sense in which the UK constitution
is written down and indeed if it was unwritten it would probably cut down the workload of
our first year law students. But as you suggest, the picture might not be as simple as this.
So let's think about unwritten constitutions for a moment. There are supposed to be three
states that have an unwritten constitution. The United Kingdom, New Zealand and Israel.
I mean even Israel is a borderline example. But I think what's distinctive about these
states is not that they have an unwritten constitution. It's that they don't have a
written one. So take Britain for example. Britain only has an unwritten constitution.
But all states have an unwritten constitution, including all of the states that have a written
one. The reason they have an unwritten constitution is because you can only understand the written
rules in light of the unwritten ones. Britain is the key example for this. So if we only
look at the legal rules in the British constitution, then King Charles would have all of the powers
that William the Conqueror had. But he doesn't because we only understand those legal rules
in light of political ones. But we can make the same move in respect of states that do
have a written constitution. So take the electoral college system in the United States for example.
So after the 2016 election in which Donald Trump beat Hillary Clinton, 10 electors in
the electoral college didn't vote for the candidate that the electorate within their
region told them to vote for. There are some state laws that regulate that, but there's
no federal constitutional right for your elector to vote democratically. You can't go to federal
court and force them to do that. So what that means is the reason why America is a democracy
isn't because of its written constitution, it's because of the interaction between its
written and unwritten constitution. And this is where the word codified comes into it.
When we think of codified constitutions, it suggests that we've managed to collate all
of the written rules in one place. And if you just read that, you'll have a comprehensive
understanding of how the constitution works. But even in states that do that, if you just
read the written constitution, the codified constitution, you wouldn't just have a partial
understanding of how the state is regulated. You'd have a wildly misleading understanding
of how that worked. So I think it's misleading to think of a topology of written and unwritten
constitutions, but it's also probably misleading to think of them as codified or uncodified.
The really difficult question is how those two bits fit together. How do the written
and unwritten constitutions interact? Now, I'll give you an example. So in China, which
is one of the jurisdictions that I study alongside the UK, the US, there's a written rule in
Article 9 of the constitution that says you have a right to education and a duty to receive
education. Hear that clearly, Oxford students. But there is an unwritten rule that says you
may not enforce that right in court. So if you don't receive an education, you can't
go to court and vindicate your constitutional right because of an unwritten rule. The trouble
this creates is that it turns a lot of conventional constitutional theory on its head. So let's
say traditionally we think the written constitution binds us because we all come together as citizens.
We make the rules together and then we follow them. But who writes the unwritten constitution?
Is it all of us? Is it the elite? Likewise, we're comfortable thinking of codified constitutions
as coherent documents whose provisions are a complete account of the rules that govern
them. But where does the unwritten constitution end? And how do you map that? Similarly, there
are some constitutional theorists like Yann Iverajnay, who argue that some sorts of amendments
to constitutions are unconstitutional, a circumstance in which you can change the constitution in
an unconstitutional way. And what they mean is basically that they're unconstitutional
because they conflict with the written constitution. But again, we can pull that idea inside out.
So maybe the written constitution only takes effect subject to a wider unwritten constitution.
Maybe that wider unwritten constitution determines the meaning and scope of the written constitution.
Maybe there's a national system or a political system that makes the written constitution
work. And that's something that we all have to study, not only as political scientists,
but as lawyers as well.
Right, yes. So would you say, for example, some of the eternity clauses in the German
constitution, which say you cannot repeal particular parts, in itself cannot be powerful
enough to fatter the discretion and power of the government? There are also a lot of
unspoken implied conventions, which are key in making sure there is accountability and
making a democracy work.
That's a really thoughtful example, Jim. I mean, I think you're probably a better expert
in the German constitution than I am. I know you've been studying it recently. I think
there might be a wider unwritten constitution of Germany that reflects the way in which
the basic law came into force and reflects Germany's experience in the immediate aftermath
of the Second World War. And I think the way we understand the basic law might be built
on some of those unwritten rules. I would leave it to people who know more about the
German constitution than I do to specify them. But we can think of constitutions that have
eternity clauses that don't feature in the written constitution. Again, China is a good
example. I'll be talking a little bit later about the way the Chinese constitution works,
as we know. But the leadership of the Communist Party isn't something that you can delete
by changing the state constitution.
There is a provision now in Article 1 of the constitution that says the party leads the
state. But that's a rule that transcends the written constitution. It's not a rule that
is given effect because it's written down there. So you're right. There may be eternity
clauses that might be more subtle than we think. They might not just be things that
we write down. They could be things that predict and survive the constitutions that we write.
It's really interesting. In particular, the way that unspoken conventions and rules can
sometimes be really important, for example, in the UK context, for ensuring that it's
not just the case everything parliament does is lawful. And yes, I guess it can sometimes
work in a detrimental way if, for example, in a one-party state like China, there is
an unspoken constitutional rule that there will be continuance of one-party rule.
And you were building on this. What might fundamental rights look like and how are they
protected under codified and uncodified constitutions respectively?
That's also a good question. And let's maybe move back to the UK for a moment. So the UK
is an interesting case study, not only because it has an unwritten constitution, and we've
talked about what that might mean, but because it doesn't have a written one. So the UK,
I think, does protect rights, especially fundamental common law rights like access to justice.
We see that in cases like Privacy International. But it does so in spite of a constitution
that arguably means it shouldn't be able to do that.
Twenty years ago, when I was at law school, we were mired in an argument about what we
called legal and political constitutions. And the key argument from advocates of a legal
constitution was that political rules were not sufficient to secure government accountability,
to vote safe the rights that we needed. I think some interesting things have happened
since then. So I was really worried about the stability of the UK constitution a year
ago. I'm marginally less worried now. Well, sorry, let me, I'm largely less worried about
that. I'm worried about loads of other things. But that's one thing that I'm slightly relieved
about. And the reason is because of what happened to the Johnson administration. So last week
I asked my students in London who Owen Paterson was, and very few of them were engaged in
the Owen Paterson story. But I think it's a really important story for the way that
our political constitution, if you want to call it that, works. Now, what happened was
an unusually powerful UK government tried to change the accountability rules in Parliament
to shelter an MP who had basically taken a bribe. He'd taken money from a private company
to represent their interests rather than those of his constituents. And the government tried
to change the rules in order to protect him. That was the thing that started the fall of
this government. Partygate drove the wedge. But the thing that initially destabilised
Johnson was his attempt to do that. So I want to talk about that story for a wee while because
I think it tells us a little bit about the way that accountability and constitutional
controls work, even in a state that doesn't have the kind of constitution that guarantees
accountability in that way. So Owen Paterson was a part time consultant for two companies
he met in his capacity as Secretary of State for Northern Ireland. His salaries for this
work were about three times larger than his MP's salary, which is already £82,000 for
a few hours work a week. He didn't declare this interest consistently and he contacted
the Minister who awarded contracts to the private sector during Covid as a representative
of one of the companies, Randox, PLC. The government was later unable to find any minutes
of that meeting. And in March and September of 2020, Randox, that company was awarded
about half a billion pounds in government contracts without any other companies being
able to bid. The House of Commons Committee on Standards found that Mr Paterson had used
his position to promote the companies by whom he was paid. They found that he had breached
one of the rules of the MP's code of conduct and it recommended that he be suspended from
the service of the House for 30 days. Not sacked, not fined at that stage that I think
he's been fined since, just suspended from sitting as an MP for 30 days. So the House
of Commons had to vote on a motion to suspend him, but instead the government amended that
motion. It argued that the suspension should itself be suspended and amended the resolution
to appoint a new committee with a Conservative chair and a majority to give new recommendations
on whether to reconsider that case. The government issued a three line whip to its MPs in the
amendment which passed. Now right up until that point, I think we should be very worried
about the capacity of a political constitution to hold the government accountable for behaviour
that I hope everyone listening to this podcast would consider to be appalling. Yes, I think
what happened in terms of that to individuals' decisions is in itself very shocking, but
perhaps everybody is free to make their decisions and there's no way you can prevent that there,
but the way that the government then responded is I think really shocking and unacceptable.
It is, it is. And at that stage I think a lot of people were rightly worried about the
political constitution for two reasons. One was that it would be inadequate to deal with
this problem. The other was what direction is it headed in? What sort of controls can
restrain the government under these circumstances and where are we going? But that wasn't the
direction we headed in, thankfully. It's worth remembering that in a political constitution,
in any constitution, in a democracy maybe, the key constitutional control is an election.
The key constitutional control is not the convention of ministerial accountability,
it's the election. That's very cool. There hasn't been an election since then, but it's
still ultimately the threat of losing an election that underpins all of the steps that held
the government accountable between then and now. So the government was criticised for
the decision, it reversed its position really quickly. After a further debate, the House
of Commons passed a motion accepting the findings of the original report. Owen Paterson resigned
before he could be suspended and that led to a sequence of events where a government
with a majority of I think then 71 lost essentially the confidence of its own party and the confidence
of the wider parliament. It became accountable for something that it did, even with that
strength in parliament and even with the audacity with which it dealt with the old Paterson
case. Now here's I suppose the answer to your question, compare the US constitution. Compare
a constitution with what we call strong form judicial review, the ability for judges to
shoot down laws. Is that a better guarantee of accountability for the government than
what we saw in the UK? Again, I'm not going to answer that. I'm not sure there's an easy
answer to that question, but it's worth saying democracy isn't just voting. You need a constitutional
order that's stable and representative and that sort of constitutional order is usually
a function of various sorts of interacting controls. Some of them are political, some
of them are legal, but I don't think that means a constitution like the one that we
have is defective in some way, that it can't control situations like the one that we saw
in 2021. I think actually elections still matter and our elections are one of the things
that makes our government accountable. Right, yes, that's a very interesting angle to approach
it. I think potentially also in the US a problematic part constitutionally is that government appoint
Supreme Court judges and that is highly politicised in the individuals and belief systems which
then become brought into the US Supreme Court. Definitely, if you care about constitutions,
accountability, representativeness, democracy, these kind of things, don't just read the
principle of legality. This isn't just a course about what judges do. What matters is the
level of independence that officials have, how they hold other officials in check, how
that contributes to structures like representativeness and accountability. As we discussed when we
were talking about our first question, your reading has to be quite wide ranging on that.
You have to care about it. That's not just about constitutional law, it's about constitution
generally. Yes, and it's interesting too with the scandals that you discussed in the UK.
The disintegration came from internal conservative party politics first. I think that's something
that perhaps at least when we study constitutional law at undergraduate level, it's not something
that we think about so much, but actually it can be very powerful. Now Ewan, I understand
that you were one of the conveners of an Oxford conference on good faith. Can you tell us
about why good faith is a really important doctrine? Sure. The conference is difficult
because lots of people would argue that good faith doesn't exist in English law. So maybe
you have to cover what good faith is and where it stands first. But I think it's not only
essential to understanding quite large aspects of UK public law, but of growing importance
because of the changing relationship between us as citizens and our government. So good
faith is a principle of some legal systems. It describes a sense of loyalty to and respect
for the law. It means the absence of fraud or dishonesty and the sincere belief that
you're acting in accordance with the law. And English law has traditionally rejected
good faith as a principle of private law. Oh yes, I think we saw that in our final honours
school contract. That it seems to, at least on the surface, only have a negative meaning
of what's not in contract law. Exactly. Whether they're describing contract law in good faith
when they say there's no good faith is another question about good faith. So Tom Bingham
describes this as a patchwork of good faith obligations as piecemeal solutions to problems
of unfairness. And I think the way we take the point we take from that is that even though
officially there's no organising principle of good faith, there might be good faith standards
that we see through other language in contract law. The point of the conference was to explore
that idea in public law, which is even harder than approaching it in contract law. I think
it's more difficult to see it there. Now, I think one of the main reasons why good faith's
not been a prominent form of administrative control is because we take it for granted
that the state acts in good faith. So in contract cases, counterparties bully each other. They
lawfully cheat each other. They tell each other lies. And we call that sharp practice.
Most of that is lawful, but could be dealt with through good faith principles. So if
you want to explore this, look at a case like say Yam Seng in contract law. But we struggle
with the idea that the government can cheat you or break the law in good faith or that
it would be dishonest or disingenuous because public law tends to build an idealised picture
of the state. Those days, however, are past now. So last year, for example, the UK government
said it would break the Northern Ireland Protocol, which is the key bit of the treaty that embodies
Brexit on the island of Ireland in bad faith. And I don't just mean that it would break
it, but that it knew that it would be breaking the law when it broke the law. And I think
evolving doctrines of good faith in public law maybe need to account of, or maybe useful
if you want to take account of the way that the state is changing. So if you're curious
about whether English public law embodies a doctrine of good faith, then I mean, take
it for granted that they're not going to say it does, but rereads the key cases that you
would have covered in administrative law, maybe even constitutional law. Look at say
Wainsbury or Anas Minnick, you know, kind of week one, day one revision, if you're coming
to administrative law again. Read through the passages where Lord Green describes unreasonableness
or where Lord Reed describes illegality. And you'll find bad faith is actually an explicit
component of that idea in each of those paragraphs. It's one of the things that's doing the heavy
work. If you want to work out from there, look at connected ideas like good administration
or abuse of power, or the idea that public bodies have to keep their promises. I think
those ideas underpin a doctrine of legitimate expectation, which may be better understood
as a good faith principle than as a principle of quasi-contract or sort of promissory principle
in administrative law. And there are loads of cases where the government acts disingenuously,
where that's the key thing about the case, but where it's understood through a different
public law doctrine. So in a case like the Crown on behalf of Lombard and the Secretary
of State, the government has a secret policy. You know, it says its policy is to release
asylum seekers at the end of the prison census, but actually that's the opposite to what its
policy really is. Take a case, you know, maybe pre-eminently like Miller and Prime Minister.
The government says the reason why it's proroguing parliament is to introduce a refreshed legislative
programme. But of course, the real reason why it's doing that is to avoid scrutiny during
Brexit. If that sort of dishonesty is dealt with by good faith in contract law, why shouldn't
it be dealt with by good faith in public law?
That's really interesting. There does seem to be a similarity with good faith and its
role in English law here. It seems, again, it is there, but in some hidden forms or with
other labels, really interesting. And how might the time when Lord Denning tried to
introduce Istanbul into public law fit in here, if at all?
Well, I mean, there are attempts to introduce an explicit principle of fair dealing or good
administration in cases like, for example, I think Lord Justice Law has tried to do this
in Nadirajah at roughly paragraph 72. We now know through more recent cases that that's
not a standard of review in English law. But I don't think that's the argument I'm trying
to make. I'm not saying that you can turn up in the High Court and say the government
hasn't acted in good faith. That's not going to fly. But what we're arguing about here
throughout is what's the best way to organise this stuff? What are the prisons that we can
use that show us more about this law? And I think actually this is a way of looking at
administrative law that connects things that we previously haven't connected.
And I think there's an underlying thing to think about here. Perhaps it's good that now
society is less deferential towards the government and realises that it's not so dissimilar to
the adversarial nature of, for example, contracts in the way the states deals with individuals.
For example, you only have to look at the Windrush scandal and the case decisions and
policy making in this regard to see that governments are really not above knowingly breaking law
and acting with less than benevolent or even legitimate intentions.
I think you're right, Jen. If you're interested in exploring that issue, I wrote a blog on
this a couple of years ago called British Laws for British Ministers where I complain
vigorously about this. But yes, I would like to have a more idealistic picture of my government
in public law. I don't think that's something that I can have right now.
But Ewan, do you believe that the law can effectively fetter the ulterior motives and
interests of politicians and governments?
I absolutely do. And I think it does. I think fetter implies that there's something undesirable
about this. I don't think it's a tie that binds so much as something that makes better
policy, that catalyzes government rather than restrains it. Take the government legal advisers,
for example. I think it's hugely important that government legal advisers provide advice
on legality of government policy, especially in areas where it's really difficult to sue
the government, such as foreign relations, national security.
The bad faith case I wrote about, which is to do with the Northern Ireland Protocols,
a case where Lord Keane and Jonathan Jones, two government legal advisers, resigned in
protest after the government tried to get them to advise it that they could break the
law in bad faith. They were allowed to do that. I think it's really important that you have
that level of advice, because I think policymakers come up with better policy when they have
to respect legality and the principles that the law embodies. So no, I don't quite see
it as a fetter, but I do think legality is real within government. And I think government
policymakers typically do take account of legal standards very closely. And I think
that makes government better rather than worse, more effective rather than less effective,
more efficient rather than less efficient.
That's really insightful, thank you. I think when you think about it like this, it does
seem that having a stronger approach of good faith could be really promising and make the
future look less bleak in terms of accountability.
Ewan, if we were to think about the future of the UK constitution, what could be gained
and what might be lost if the UK did adopt a coded constitution? And do you think this
is likely?
Again, that's a really good question. There is a movement for Britain to codify its constitution,
and a lot of the arguments for that I find really attractive. So my colleague, Jeff King,
at UCL has presented, I think, maybe the most prominent recent argument, which she describes
as the democratic case for a written constitution. I like the idea that as British citizens,
we might be able to come together and come up with rules by which we live together. But
I fear that that's not something that's available to us right now. So although I find Jeff's
argument attractive, one of the things I find attractive about it is that it's very ambitious
for our democracy, and it's really ambitious for us as citizens. And I'm not convinced
that we have the sort of democracy and political culture right now that we'd sustain now.
In particular, I think written constitutions usually require a rare moment of political
solidarity in order to stick. So the last time we tried to create a sort of written
constitution, I know your question implied that maybe there are written elements in our
constitution. I think the last time we were able to do that was the Human Rights Act 1998,
the evolution settlement that we enacted at that time.
Yes, I think I was thinking about that in particular.
Well, you're right. I mean, those are really good examples. But remember, the parliament
that enacted those laws had the largest parliamentary majority in history. Now, of course, within
the new Labour government.
Exactly. So new Labour in 1997 came in with the largest parliamentary majority. And within
three years, the Conservative manifesto proposed to repeal that legislation. And we're still
arguing about whether we should repeal that legislation now. There was a bill introduced
to parliament under the last administration that would have repealed important elements
of it, but changed it in significant ways. How would we enact a written constitution
right now? What would we agree on? So one of the issues that I find particularly intractable
is what would our territorial constitution look like? So I come from Glasgow. I don't
have a strong position, I should say, on the constitutional future of Scotland. I care
about the way in which it's done. I don't live in Scotland, so I don't take a position
in that debate. But I struggle to see how you could include the Scottish National Party,
Sinn Fein, Plaid Cymru, in a conversation about what a written constitution should look
like, because the key argument that those parties are presenting is that there shouldn't
be a British written constitution. So you can either delete that argument from your written
constitution or not put it to the constitutional convention that you're creating, in which
case the party that currently roughly half of Scottish voters vote for isn't a participant
in your convention. Or what else do you do? Do you hold a referendum? How often do you
hold a referendum? How do you confront those issues? So first of all, I don't think we
have the political solidarity to deal with this. Second of all, I struggle to see how
these sorts of conventions could adequately deal with issues like secession. But I don't
think we're unusual in that. So think about the way political solidarity works in the
United States right now. America has a written constitution, but it's preposterous to think
that America could currently conclude a new written constitution if they did a new Philadelphia
convention in 2023. They'd openly be fighting in the aisles. Similarly, I think there are
lots of other broadly functioning democracies. I'm not saying everything is perfect about
the democracy. But say you take a state like India, I think it would be very difficult
for India to conclude a written constitution right now. I don't think we're alone in this,
but I think what's attractive about that argument is ambition. And what's troublesome about
the argument is that same ambition. I think it's maybe too ambitious for us as citizens.
It's maybe too ambitious for where we can be as a democracy right now.
This is actually very eye opening. I think I can definitely see the impracticalities
now. In particular, I think it could be said of the UK, the US and India that the political
climate really is far from political solidarity right now. I think it's much more one of division
and polarizing elements. We could definitely write a constitution that
we would then revise in 10 minutes time. But the sort of constitutions that succeeded are
constitutions like, say, the South African constitution, which came under huge pressure
under Jacob Zuma's administration, say, but held up because of the unique political solidarity
of the coalition that put that document together. Maybe budget time is the best way for people
who are advocates of a written constitution in the UK.
You have taught and researched in three of the most prestigious universities in China.
I think if we were to talk about Oxbridge equivalents, I think really Tsinghua and Beijing
and Ruoming would really rank up there if you were to talk about the Oxbridge equivalents
but in China. There is a fairly well-known connection between German civil law and Chinese
civil law. In particular, Chinese legislators did adopt much of the structure of the German
civil code and even some of the doctrines in the German civil code. Could the same be
said of Chinese constitutional law? And in which ways is the Chinese constitution actually
quite unique?
The short answer is not really. The Chinese constitution isn't really very much like the
German constitution. But the reason that's the answer is because it depends on what we
mean by constitution. So if you remember the first discussion we had about codified and
uncodified constitutions tells us that sometimes the written, the unwritten constitutions say
radically different things. In the late 19th, early 20th centuries, Chinese political reformers
like Kangyue Wei thought constitutional development and national development were two sides of
the same coin. Since, however, since the revolution, it's been hard to say that China's written
constitutions have been anything like European constitutions. However much the text might
superficially look alike. Now, Mao Zedong famously said shortly after the 1954 constitution
of China was promulgated that he was one of the people who wrote the constitution, but
even he couldn't remember what it said. And I think that maybe acts as a window into the
relationship between the written and unwritten constitutions in China. So even though some
of the constitutional texts bear some resemblance to European constitutional texts, they operate
in very different ways. We talked earlier on about ways in which you can't enforce your
right to education under Article 9 of the constitution in a court. But there have been
periods in Chinese history where the gap between the constitutional text and the reality has
been even broader. So for example, between 1957 and 1965, no legislation was passed in
the National People's Congress, which is supposed to be the supreme constitutional
organ. Between 1965 and 1974, it just stopped meeting. And similarly, the 1954 constitution
created an office of chairman of the People's Republic of China. That office was abolished
in the 1975 constitution because the National People's Congress didn't need to be chaired,
stopped meeting. However, underlying that constitution is an idea called party leadership.
That principle has been present at all stages in Chinese constitutional development since
the revolution. But the point is that that basic structure both proceeds and survives
these written constitutions, whether they look German, look French, look British, look
Japanese. The party isn't the child of that constitution, it's not created by the constitution.
It's the midwife for the birth of the constitution. So I think even though maybe superficially
there are some textual overlaps between the Chinese constitution and the German constitution,
for example, the key moving part is party leadership that isn't present in Germany.
That's really insightful. I hadn't looked at it this way before, actually. And I think
this goes back to the concept and way of thinking which you have been building for us, that
constitutions are not just what is written down, even if there is, for example, a constitutional
code. A constitution is actually how governments and administration works in practice, including
implied rules and principles. You have also taught at the National University
of Singapore. How is the Singaporean constitution structured? Is the common law influence very
visible? Let me start by saying I'm very much a student
of the Singaporean constitution rather than an expert on it. I spent some time studying
it at the National University of Singapore, which I found fascinating, but this is still
very much a work in progress for me. I tend to approach the Singaporean constitution through
the constitutional orders that I do understand, particularly the United Kingdom, and as you
say the common law influence is an important aspect to the way that we see the Singaporean
constitution and also the constitution of China, because Singapore has a dominant party,
the People's Action Party, and it's sometimes called a hybrid constitution, by which I think
usually people who use that language mean it's not right but it's okay. It has a dominant
party and there are some restrictions on political association, though nothing like as significant
as in China, and Singapore enjoys a robust legality. If you want to bring a commercial
dispute to Singapore then you're going to get your case dealt with in a satisfactory
way. Okay, I heard it's increasingly the centre
of commercial litigation and dispute resolution as well.
That's right. I suppose we can ask how robust that legality is, so in particular how independent
of Singaporean judges in political cases, and we certainly don't see in Singapore the
sort of action that you would take if you tried to organise politically in the People's
Republic of China. That's not possible. But criticism of the ruling elite in Singapore
is still something that is a cause of concern for human rights observers there. Amnesty
International for example observes defamation trials in Singapore and expresses concerns
that they are politically motivated. One example that they lead would be a suit against a man
called JB Jayaratnam by the former Prime Minister Goh Chok Tong in which the Prime Minister
was awarded a hundred thousand Singaporean dollars plus full costs. I think that has
a strong chilling effect on political speech in Singapore. There are other cases such as
the Tang Liyang Hong case going back 25 years now, but of course it's the cases that don't
come up now because of the monetary effect of those defamation cases that make it hard
to criticise the ruling elite in Singapore. Now I mentioned these examples rather than
other examples of the ways in which Singapore could be a hybrid constitution because they
are to do with robust legality and there are cases in which both the defendant and other
human rights observers read question marks about judicial independence in Singapore.
That is still a life problem and I think when we use the common law as the key frame for
how Singapore works constitutionally, the deficiencies of Singaporean common law I think
might be one of the first places we want to start. This is really insightful, in particular
how civil law can actually be relevant and used as a potentially dangerous tool, like
you said, a chilling effect on free speech. A problematic part of Singapore's history
since independence and arguably an ongoing problem is to do with perhaps democracy not
being completely impartial. After independence there was detention and conviction of people
without proper trial for having suspected links to communism and more recently there
is the Foreign Interference Countermeasures Act which has been criticised as a major infringement
on free speech as it allows censorship of content when the content is suspected to be
foreign interference and also allows mandatory posting of government notices. Do you believe
that this problem stems from any particular weaknesses in the Singaporean constitution
or is it more of a political accountability problem?
Again with your permission I'll glance off that question a little bit. I think influence,
interference and intervention are global problems rather than Singaporean problems. I don't
know enough about the Singaporean example to want to use that as the centre for this
debate but I am doing some research on interference and how that works both for and against the
Communist Party globally so I can maybe talk about that in general. We had a similar question
asked in the United Kingdom last year where the security service said a Chinese agent
had infiltrated the UK Parliament naming that agent as a woman called Christine Chin Kuei
Lee. This prompted as you would expect a vigorous reaction from Chinese diplomatic representatives
in the UK. It produced responses from the British Chinese community, from the mainland
Chinese community in the UK and one challenge that poses I think it risks driving a wedge
between citizens from different parts of the globe in the UK. I imagine that would also
happen in Singapore though again I would leave it to Singaporeans to answer that question
finally. I think influence is a problem globally. The key aspect to the problem is clandestine
influence. I don't have a problem with influence generally I think it's what governments do.
Before I came back to Oxford University I worked as a diplomat and of course what you're
supposed to do if you're a diplomat working in a foreign country is try to influence what
people think in that country. They wouldn't pay you otherwise. So I don't have a problem
with people from other countries coming to the United Kingdom in order to try and shape
our policy or our politics. I think that's part and parcel of what it is to live in a
globalised world. The way I become concerned about that form of influence is where it appears
that the influence is coming from a civil society group but actually that group is ventriloquised,
is operated by a puppet master that isn't actually connected with that group. This is
a particular problem in respect of large communist parties because those parties have a division
usually called the United Front Work Department of the party whose job it is to liaise with
overseas organisations who project public opinion in those states and the links between
the United Front Work Department and institutions that have been accused of clandestine or inappropriate
influence aren't always clear. There are, for example in Australia, there are some quite
prominent examples of senators who have been forced out of office after taking money from
communist party front organisations. So Senator Sam Dastaiyari for example stepped down about
four or five years ago now. I expect that's a global problem. I expect it's a problem
in Singapore. I expect it's a problem in the UK. Though again I think the key thing about
that isn't that China is influencing us. I'm comfortable with that. I think the key problem
is that the structures by which influence is being conducted are clandestine. I think
transparency is important and that allows people to judge whether the person making
the comment is, to put it in an online example, a Russian bot or a person that you know. I
think that distinction is really important. The bit I'm writing about at the moment is
actually to do with how this works in international law. International law as you may know has
a principle called non-intervention, non-interference. There's a rule against being the puppet master
over other countries. It's initially an anti-imperial, anti-colonial rule. But nowadays some states
use it as a way of deflecting criticism of their human rights record. So when you criticise
for example the way in which China has dealt with the Uyghur minority in Xinjiang, the
response that you will get from the spokesperson of the Chinese foreign ministry is that you're
engaging in a gross interference with China's internal affairs. I wonder how symmetrical
these two problems are and I'm not sure they are. So I'm not sure the case of Christine
Chin-Kuei-Lee is like the case where the British Foreign Secretary or the British Prime Minister
says we don't think this is acceptable and we think you ought to change your policy and
by the way we're the British government. So I think maybe the key hallmark of these cases
is transparency and where national influence is conducted transparently that might be a
way in which we can go forward. Whereas if it's not clear who's doing the talking that's
a problem we all experience in the lives that we live online as well as something that we
have to deal with in constitutional law. Thank you very much for this insight and how do
you think in practice the very legitimate interest of not having interference which
is not transparent and balancing that with the right to free speech, how do you think
that should or might be done in practice? I think it depends on the forum in which you're
speaking who the speaker is, what we say about the speaker. It depends hugely depending on
what sort of speech we're engaged with. We've talked about the responsibility of say social
media companies to check that people who appear to be speaking are actually people. That would
be one way in which we could counter a particular sort of influence and that's been topical
this week because we've been talking about influence on voters and a notional president,
a prime ministerial selection in the UK. But look at something like Question Time or a
panel show on a television station in the UK. If you represent the Taxpayers Alliance
or some British civil society association should you be obliged to say and these are
the people who fund me, just like I'm obliged to say that whenever I publish an article
in a journal. Maybe that would be one step that we could take that would make it harder
for clandestine individuals to influence us. These are little rules and small examples
but maybe it's for some of those small things that allows us to preserve speech while making
influence clear rather than some other arching rule that would deal with all cases in the
same way. Ewan, it really has been a privilege and a pleasure to discuss the law with you
and how these issues might play out in the future. Thank you so much for taking the time
to share your experiences and your research with us. It really isn't every day that we
have access to someone who has worked and researched in such a variety of countries
and environments and also who's happy to talk to us about such a variety of topics. Thank
you so much. Thank you, Chen. It's been a pleasure talking to you too. The only final
thing I want to say is if you're listening to this podcast and if we've said anything
that you find interesting and you'd like to follow up on, you can find my email online.
I'm not going to say it out loud because it's easier to Google me I think sometime in the
future than for me to say that now but please if you would like to follow up especially
if you're a student I'd love to hear from you, please drop me a line and we'll continue
the conversation. Thank you very much for that, Ewan. That's super generous. Ewan, goodbye
for now and also goodbye to our lovely listeners. Thanks so much for listening. That was Professor
Ewan Smith speaking to us about administrative, comparative and constitutional aspects of
public law. As we touched upon, discussions on constitutions, on international law and
on the role of governments is becoming increasingly controversial and very contentious and often
heated to discuss. But I think what remains incredibly important is that there is dialogue
and calm and insightful discussion and I hope that's in a small way today we have contributed
to that. Dear listeners, thank you very much for listening to this episode of the Oxford
Undergraduate Law Podcast. For more episodes and more information, please do go to the
other episodes in our selection on Spotify, see about upcoming episodes and also look
at our webpage on the Oxford Undergraduate Law Journal website. Thanks very much everyone.
Goodbye for now.