1 00:00:00,000 --> 00:00:13,240 Welcome to the Oxford University undergraduate Law Journal podcast, where we discuss the 2 00:00:13,240 --> 00:00:22,960 law and its relationships with our society and its implications on our everyday lives. 3 00:00:22,960 --> 00:00:30,400 I'm Chen, I'm Dorothea, and we are your podcast editors. 4 00:00:30,400 --> 00:00:40,560 Hello everyone, welcome to the second podcast episode of this term and indeed of this academic 5 00:00:40,560 --> 00:00:48,120 year. I hope that everyone is settling into the term and that you're enjoying your legal 6 00:00:48,120 --> 00:00:56,560 studies. And if you are a prospective student thinking about studying law, I hope that this 7 00:00:56,560 --> 00:01:04,800 podcast can actually give some exciting insight into the topics and flavour of what law might 8 00:01:04,800 --> 00:01:12,520 be like to study at degree level. Today we're very honoured to have Professor Ewan Smith 9 00:01:12,520 --> 00:01:21,520 with us. Ewan studied at our very own University of Oxford at Braesnorth College before completing 10 00:01:21,520 --> 00:01:29,320 postgraduate programmes at the universities of Harvard and Paris. He has practised as 11 00:01:29,320 --> 00:01:37,000 a lawyer in the US and he's worked at the UK Foreign and Commonwealth Office. He's 12 00:01:37,000 --> 00:01:46,480 taught and researched at the National University of Singapore and at Tsinghua, Renmin and Peking 13 00:01:46,480 --> 00:01:57,680 universities in China. He has been a fellow at Christchurch and at Jesus College in Oxford 14 00:01:57,680 --> 00:02:05,240 and he has been teaching constitutional law to undergraduates and masters students at 15 00:02:05,240 --> 00:02:13,760 Oxford. Now Ewan is an Associate Professor at University College London. Ewan, thank 16 00:02:13,760 --> 00:02:18,680 you so much for coming to speak to us about public law today. It really is a privilege 17 00:02:18,680 --> 00:02:24,720 for us. Thank you very much for having me, Chen. I'm looking forward to talking to you. 18 00:02:24,720 --> 00:02:31,760 If you're happy to, we will jump right into some questions about the law. Sure, fire away. 19 00:02:31,760 --> 00:02:39,320 Thanks very much. Going into your current research, your monograph about codified and 20 00:02:39,320 --> 00:02:48,720 uncodified constitutions, what does it mean to have a codified or uncodified constitution? 21 00:02:48,720 --> 00:02:54,080 That's a really good question and I notice that you've carefully distinguished between 22 00:02:54,080 --> 00:02:59,920 what some people call unwritten constitutions and what you're calling uncodified constitutions. 23 00:02:59,920 --> 00:03:07,720 I think it's a sensible move to make. There is an obvious sense in which the UK constitution 24 00:03:07,720 --> 00:03:12,440 is written down and indeed if it was unwritten it would probably cut down the workload of 25 00:03:12,440 --> 00:03:18,480 our first year law students. But as you suggest, the picture might not be as simple as this. 26 00:03:18,480 --> 00:03:23,040 So let's think about unwritten constitutions for a moment. There are supposed to be three 27 00:03:23,040 --> 00:03:29,280 states that have an unwritten constitution. The United Kingdom, New Zealand and Israel. 28 00:03:29,280 --> 00:03:35,200 I mean even Israel is a borderline example. But I think what's distinctive about these 29 00:03:35,200 --> 00:03:40,360 states is not that they have an unwritten constitution. It's that they don't have a 30 00:03:40,360 --> 00:03:47,280 written one. So take Britain for example. Britain only has an unwritten constitution. 31 00:03:47,280 --> 00:03:51,920 But all states have an unwritten constitution, including all of the states that have a written 32 00:03:51,920 --> 00:03:57,440 one. The reason they have an unwritten constitution is because you can only understand the written 33 00:03:57,440 --> 00:04:05,120 rules in light of the unwritten ones. Britain is the key example for this. So if we only 34 00:04:05,120 --> 00:04:10,040 look at the legal rules in the British constitution, then King Charles would have all of the powers 35 00:04:10,040 --> 00:04:15,280 that William the Conqueror had. But he doesn't because we only understand those legal rules 36 00:04:15,280 --> 00:04:19,800 in light of political ones. But we can make the same move in respect of states that do 37 00:04:19,800 --> 00:04:26,720 have a written constitution. So take the electoral college system in the United States for example. 38 00:04:26,720 --> 00:04:33,400 So after the 2016 election in which Donald Trump beat Hillary Clinton, 10 electors in 39 00:04:33,400 --> 00:04:38,000 the electoral college didn't vote for the candidate that the electorate within their 40 00:04:38,000 --> 00:04:43,200 region told them to vote for. There are some state laws that regulate that, but there's 41 00:04:43,200 --> 00:04:48,960 no federal constitutional right for your elector to vote democratically. You can't go to federal 42 00:04:48,960 --> 00:04:55,320 court and force them to do that. So what that means is the reason why America is a democracy 43 00:04:55,320 --> 00:05:00,000 isn't because of its written constitution, it's because of the interaction between its 44 00:05:00,000 --> 00:05:05,640 written and unwritten constitution. And this is where the word codified comes into it. 45 00:05:05,640 --> 00:05:09,520 When we think of codified constitutions, it suggests that we've managed to collate all 46 00:05:09,520 --> 00:05:14,120 of the written rules in one place. And if you just read that, you'll have a comprehensive 47 00:05:14,120 --> 00:05:19,280 understanding of how the constitution works. But even in states that do that, if you just 48 00:05:19,280 --> 00:05:23,680 read the written constitution, the codified constitution, you wouldn't just have a partial 49 00:05:23,680 --> 00:05:29,040 understanding of how the state is regulated. You'd have a wildly misleading understanding 50 00:05:29,040 --> 00:05:36,360 of how that worked. So I think it's misleading to think of a topology of written and unwritten 51 00:05:36,360 --> 00:05:41,240 constitutions, but it's also probably misleading to think of them as codified or uncodified. 52 00:05:41,240 --> 00:05:45,600 The really difficult question is how those two bits fit together. How do the written 53 00:05:45,600 --> 00:05:50,920 and unwritten constitutions interact? Now, I'll give you an example. So in China, which 54 00:05:50,920 --> 00:05:55,720 is one of the jurisdictions that I study alongside the UK, the US, there's a written rule in 55 00:05:55,720 --> 00:06:00,640 Article 9 of the constitution that says you have a right to education and a duty to receive 56 00:06:00,640 --> 00:06:07,160 education. Hear that clearly, Oxford students. But there is an unwritten rule that says you 57 00:06:07,160 --> 00:06:11,400 may not enforce that right in court. So if you don't receive an education, you can't 58 00:06:11,400 --> 00:06:17,440 go to court and vindicate your constitutional right because of an unwritten rule. The trouble 59 00:06:17,440 --> 00:06:22,600 this creates is that it turns a lot of conventional constitutional theory on its head. So let's 60 00:06:22,600 --> 00:06:28,600 say traditionally we think the written constitution binds us because we all come together as citizens. 61 00:06:28,600 --> 00:06:34,640 We make the rules together and then we follow them. But who writes the unwritten constitution? 62 00:06:34,640 --> 00:06:40,520 Is it all of us? Is it the elite? Likewise, we're comfortable thinking of codified constitutions 63 00:06:40,520 --> 00:06:46,000 as coherent documents whose provisions are a complete account of the rules that govern 64 00:06:46,000 --> 00:06:53,960 them. But where does the unwritten constitution end? And how do you map that? Similarly, there 65 00:06:53,960 --> 00:06:58,800 are some constitutional theorists like Yann Iverajnay, who argue that some sorts of amendments 66 00:06:58,800 --> 00:07:03,920 to constitutions are unconstitutional, a circumstance in which you can change the constitution in 67 00:07:03,920 --> 00:07:08,440 an unconstitutional way. And what they mean is basically that they're unconstitutional 68 00:07:08,440 --> 00:07:14,080 because they conflict with the written constitution. But again, we can pull that idea inside out. 69 00:07:14,080 --> 00:07:19,280 So maybe the written constitution only takes effect subject to a wider unwritten constitution. 70 00:07:19,280 --> 00:07:24,520 Maybe that wider unwritten constitution determines the meaning and scope of the written constitution. 71 00:07:24,520 --> 00:07:28,920 Maybe there's a national system or a political system that makes the written constitution 72 00:07:28,920 --> 00:07:33,320 work. And that's something that we all have to study, not only as political scientists, 73 00:07:33,320 --> 00:07:35,320 but as lawyers as well. 74 00:07:35,320 --> 00:07:44,360 Right, yes. So would you say, for example, some of the eternity clauses in the German 75 00:07:44,360 --> 00:07:51,360 constitution, which say you cannot repeal particular parts, in itself cannot be powerful 76 00:07:51,360 --> 00:07:58,800 enough to fatter the discretion and power of the government? There are also a lot of 77 00:07:58,800 --> 00:08:05,240 unspoken implied conventions, which are key in making sure there is accountability and 78 00:08:05,240 --> 00:08:07,640 making a democracy work. 79 00:08:07,640 --> 00:08:11,720 That's a really thoughtful example, Jim. I mean, I think you're probably a better expert 80 00:08:11,720 --> 00:08:16,000 in the German constitution than I am. I know you've been studying it recently. I think 81 00:08:16,000 --> 00:08:20,400 there might be a wider unwritten constitution of Germany that reflects the way in which 82 00:08:20,400 --> 00:08:25,560 the basic law came into force and reflects Germany's experience in the immediate aftermath 83 00:08:25,560 --> 00:08:30,640 of the Second World War. And I think the way we understand the basic law might be built 84 00:08:30,640 --> 00:08:35,400 on some of those unwritten rules. I would leave it to people who know more about the 85 00:08:35,400 --> 00:08:41,040 German constitution than I do to specify them. But we can think of constitutions that have 86 00:08:41,040 --> 00:08:46,240 eternity clauses that don't feature in the written constitution. Again, China is a good 87 00:08:46,240 --> 00:08:50,560 example. I'll be talking a little bit later about the way the Chinese constitution works, 88 00:08:50,560 --> 00:08:56,320 as we know. But the leadership of the Communist Party isn't something that you can delete 89 00:08:56,320 --> 00:08:59,920 by changing the state constitution. 90 00:08:59,920 --> 00:09:03,560 There is a provision now in Article 1 of the constitution that says the party leads the 91 00:09:03,560 --> 00:09:09,880 state. But that's a rule that transcends the written constitution. It's not a rule that 92 00:09:09,880 --> 00:09:13,760 is given effect because it's written down there. So you're right. There may be eternity 93 00:09:13,760 --> 00:09:17,000 clauses that might be more subtle than we think. They might not just be things that 94 00:09:17,000 --> 00:09:23,200 we write down. They could be things that predict and survive the constitutions that we write. 95 00:09:23,200 --> 00:09:29,680 It's really interesting. In particular, the way that unspoken conventions and rules can 96 00:09:29,680 --> 00:09:37,600 sometimes be really important, for example, in the UK context, for ensuring that it's 97 00:09:37,600 --> 00:09:44,480 not just the case everything parliament does is lawful. And yes, I guess it can sometimes 98 00:09:44,480 --> 00:09:50,840 work in a detrimental way if, for example, in a one-party state like China, there is 99 00:09:50,840 --> 00:09:58,960 an unspoken constitutional rule that there will be continuance of one-party rule. 100 00:09:58,960 --> 00:10:05,640 And you were building on this. What might fundamental rights look like and how are they 101 00:10:05,640 --> 00:10:13,080 protected under codified and uncodified constitutions respectively? 102 00:10:13,080 --> 00:10:17,960 That's also a good question. And let's maybe move back to the UK for a moment. So the UK 103 00:10:17,960 --> 00:10:23,760 is an interesting case study, not only because it has an unwritten constitution, and we've 104 00:10:23,760 --> 00:10:29,200 talked about what that might mean, but because it doesn't have a written one. So the UK, 105 00:10:29,200 --> 00:10:33,760 I think, does protect rights, especially fundamental common law rights like access to justice. 106 00:10:33,760 --> 00:10:40,200 We see that in cases like Privacy International. But it does so in spite of a constitution 107 00:10:40,200 --> 00:10:43,280 that arguably means it shouldn't be able to do that. 108 00:10:43,280 --> 00:10:49,640 Twenty years ago, when I was at law school, we were mired in an argument about what we 109 00:10:49,640 --> 00:10:55,600 called legal and political constitutions. And the key argument from advocates of a legal 110 00:10:55,600 --> 00:11:02,080 constitution was that political rules were not sufficient to secure government accountability, 111 00:11:02,080 --> 00:11:07,640 to vote safe the rights that we needed. I think some interesting things have happened 112 00:11:07,640 --> 00:11:15,160 since then. So I was really worried about the stability of the UK constitution a year 113 00:11:15,160 --> 00:11:21,080 ago. I'm marginally less worried now. Well, sorry, let me, I'm largely less worried about 114 00:11:21,080 --> 00:11:27,040 that. I'm worried about loads of other things. But that's one thing that I'm slightly relieved 115 00:11:27,040 --> 00:11:34,120 about. And the reason is because of what happened to the Johnson administration. So last week 116 00:11:34,120 --> 00:11:39,400 I asked my students in London who Owen Paterson was, and very few of them were engaged in 117 00:11:39,400 --> 00:11:43,640 the Owen Paterson story. But I think it's a really important story for the way that 118 00:11:43,640 --> 00:11:49,640 our political constitution, if you want to call it that, works. Now, what happened was 119 00:11:49,640 --> 00:11:55,960 an unusually powerful UK government tried to change the accountability rules in Parliament 120 00:11:55,960 --> 00:12:02,920 to shelter an MP who had basically taken a bribe. He'd taken money from a private company 121 00:12:02,920 --> 00:12:08,000 to represent their interests rather than those of his constituents. And the government tried 122 00:12:08,000 --> 00:12:14,280 to change the rules in order to protect him. That was the thing that started the fall of 123 00:12:14,280 --> 00:12:19,840 this government. Partygate drove the wedge. But the thing that initially destabilised 124 00:12:19,840 --> 00:12:24,320 Johnson was his attempt to do that. So I want to talk about that story for a wee while because 125 00:12:24,320 --> 00:12:27,160 I think it tells us a little bit about the way that accountability and constitutional 126 00:12:27,160 --> 00:12:32,240 controls work, even in a state that doesn't have the kind of constitution that guarantees 127 00:12:32,240 --> 00:12:40,080 accountability in that way. So Owen Paterson was a part time consultant for two companies 128 00:12:40,080 --> 00:12:45,560 he met in his capacity as Secretary of State for Northern Ireland. His salaries for this 129 00:12:45,560 --> 00:12:51,200 work were about three times larger than his MP's salary, which is already £82,000 for 130 00:12:51,200 --> 00:12:58,920 a few hours work a week. He didn't declare this interest consistently and he contacted 131 00:12:58,920 --> 00:13:04,800 the Minister who awarded contracts to the private sector during Covid as a representative 132 00:13:04,800 --> 00:13:10,760 of one of the companies, Randox, PLC. The government was later unable to find any minutes 133 00:13:10,760 --> 00:13:16,380 of that meeting. And in March and September of 2020, Randox, that company was awarded 134 00:13:16,380 --> 00:13:21,520 about half a billion pounds in government contracts without any other companies being 135 00:13:21,520 --> 00:13:27,220 able to bid. The House of Commons Committee on Standards found that Mr Paterson had used 136 00:13:27,220 --> 00:13:32,200 his position to promote the companies by whom he was paid. They found that he had breached 137 00:13:32,200 --> 00:13:37,200 one of the rules of the MP's code of conduct and it recommended that he be suspended from 138 00:13:37,200 --> 00:13:42,560 the service of the House for 30 days. Not sacked, not fined at that stage that I think 139 00:13:42,560 --> 00:13:48,920 he's been fined since, just suspended from sitting as an MP for 30 days. So the House 140 00:13:48,920 --> 00:13:52,960 of Commons had to vote on a motion to suspend him, but instead the government amended that 141 00:13:52,960 --> 00:13:58,880 motion. It argued that the suspension should itself be suspended and amended the resolution 142 00:13:58,880 --> 00:14:04,320 to appoint a new committee with a Conservative chair and a majority to give new recommendations 143 00:14:04,320 --> 00:14:09,680 on whether to reconsider that case. The government issued a three line whip to its MPs in the 144 00:14:09,680 --> 00:14:14,960 amendment which passed. Now right up until that point, I think we should be very worried 145 00:14:14,960 --> 00:14:19,480 about the capacity of a political constitution to hold the government accountable for behaviour 146 00:14:19,480 --> 00:14:24,000 that I hope everyone listening to this podcast would consider to be appalling. Yes, I think 147 00:14:24,000 --> 00:14:31,120 what happened in terms of that to individuals' decisions is in itself very shocking, but 148 00:14:31,120 --> 00:14:37,440 perhaps everybody is free to make their decisions and there's no way you can prevent that there, 149 00:14:37,440 --> 00:14:44,000 but the way that the government then responded is I think really shocking and unacceptable. 150 00:14:44,000 --> 00:14:49,600 It is, it is. And at that stage I think a lot of people were rightly worried about the 151 00:14:49,600 --> 00:14:54,320 political constitution for two reasons. One was that it would be inadequate to deal with 152 00:14:54,320 --> 00:14:59,000 this problem. The other was what direction is it headed in? What sort of controls can 153 00:14:59,000 --> 00:15:03,960 restrain the government under these circumstances and where are we going? But that wasn't the 154 00:15:03,960 --> 00:15:08,280 direction we headed in, thankfully. It's worth remembering that in a political constitution, 155 00:15:08,280 --> 00:15:14,280 in any constitution, in a democracy maybe, the key constitutional control is an election. 156 00:15:14,280 --> 00:15:17,880 The key constitutional control is not the convention of ministerial accountability, 157 00:15:17,880 --> 00:15:22,960 it's the election. That's very cool. There hasn't been an election since then, but it's 158 00:15:22,960 --> 00:15:28,440 still ultimately the threat of losing an election that underpins all of the steps that held 159 00:15:28,440 --> 00:15:32,840 the government accountable between then and now. So the government was criticised for 160 00:15:32,840 --> 00:15:38,040 the decision, it reversed its position really quickly. After a further debate, the House 161 00:15:38,040 --> 00:15:43,120 of Commons passed a motion accepting the findings of the original report. Owen Paterson resigned 162 00:15:43,120 --> 00:15:48,040 before he could be suspended and that led to a sequence of events where a government 163 00:15:48,040 --> 00:15:54,040 with a majority of I think then 71 lost essentially the confidence of its own party and the confidence 164 00:15:54,040 --> 00:15:58,760 of the wider parliament. It became accountable for something that it did, even with that 165 00:15:58,760 --> 00:16:03,280 strength in parliament and even with the audacity with which it dealt with the old Paterson 166 00:16:03,280 --> 00:16:09,760 case. Now here's I suppose the answer to your question, compare the US constitution. Compare 167 00:16:09,760 --> 00:16:13,200 a constitution with what we call strong form judicial review, the ability for judges to 168 00:16:13,200 --> 00:16:20,240 shoot down laws. Is that a better guarantee of accountability for the government than 169 00:16:20,240 --> 00:16:25,360 what we saw in the UK? Again, I'm not going to answer that. I'm not sure there's an easy 170 00:16:25,360 --> 00:16:30,920 answer to that question, but it's worth saying democracy isn't just voting. You need a constitutional 171 00:16:30,920 --> 00:16:35,160 order that's stable and representative and that sort of constitutional order is usually 172 00:16:35,160 --> 00:16:39,840 a function of various sorts of interacting controls. Some of them are political, some 173 00:16:39,840 --> 00:16:43,880 of them are legal, but I don't think that means a constitution like the one that we 174 00:16:43,880 --> 00:16:50,200 have is defective in some way, that it can't control situations like the one that we saw 175 00:16:50,200 --> 00:16:56,400 in 2021. I think actually elections still matter and our elections are one of the things 176 00:16:56,400 --> 00:17:03,920 that makes our government accountable. Right, yes, that's a very interesting angle to approach 177 00:17:03,920 --> 00:17:15,400 it. I think potentially also in the US a problematic part constitutionally is that government appoint 178 00:17:15,400 --> 00:17:23,560 Supreme Court judges and that is highly politicised in the individuals and belief systems which 179 00:17:23,560 --> 00:17:32,400 then become brought into the US Supreme Court. Definitely, if you care about constitutions, 180 00:17:32,400 --> 00:17:37,800 accountability, representativeness, democracy, these kind of things, don't just read the 181 00:17:37,800 --> 00:17:44,160 principle of legality. This isn't just a course about what judges do. What matters is the 182 00:17:44,160 --> 00:17:48,280 level of independence that officials have, how they hold other officials in check, how 183 00:17:48,280 --> 00:17:53,280 that contributes to structures like representativeness and accountability. As we discussed when we 184 00:17:53,280 --> 00:17:56,520 were talking about our first question, your reading has to be quite wide ranging on that. 185 00:17:56,520 --> 00:18:01,080 You have to care about it. That's not just about constitutional law, it's about constitution 186 00:18:01,080 --> 00:18:08,360 generally. Yes, and it's interesting too with the scandals that you discussed in the UK. 187 00:18:08,360 --> 00:18:15,040 The disintegration came from internal conservative party politics first. I think that's something 188 00:18:15,040 --> 00:18:22,880 that perhaps at least when we study constitutional law at undergraduate level, it's not something 189 00:18:22,880 --> 00:18:29,120 that we think about so much, but actually it can be very powerful. Now Ewan, I understand 190 00:18:29,120 --> 00:18:37,400 that you were one of the conveners of an Oxford conference on good faith. Can you tell us 191 00:18:37,400 --> 00:18:45,200 about why good faith is a really important doctrine? Sure. The conference is difficult 192 00:18:45,200 --> 00:18:49,120 because lots of people would argue that good faith doesn't exist in English law. So maybe 193 00:18:49,120 --> 00:18:53,760 you have to cover what good faith is and where it stands first. But I think it's not only 194 00:18:53,760 --> 00:18:59,440 essential to understanding quite large aspects of UK public law, but of growing importance 195 00:18:59,440 --> 00:19:05,080 because of the changing relationship between us as citizens and our government. So good 196 00:19:05,080 --> 00:19:11,480 faith is a principle of some legal systems. It describes a sense of loyalty to and respect 197 00:19:11,480 --> 00:19:17,600 for the law. It means the absence of fraud or dishonesty and the sincere belief that 198 00:19:17,600 --> 00:19:23,480 you're acting in accordance with the law. And English law has traditionally rejected 199 00:19:23,480 --> 00:19:29,040 good faith as a principle of private law. Oh yes, I think we saw that in our final honours 200 00:19:29,040 --> 00:19:36,040 school contract. That it seems to, at least on the surface, only have a negative meaning 201 00:19:36,040 --> 00:19:42,200 of what's not in contract law. Exactly. Whether they're describing contract law in good faith 202 00:19:42,200 --> 00:19:45,880 when they say there's no good faith is another question about good faith. So Tom Bingham 203 00:19:45,880 --> 00:19:51,320 describes this as a patchwork of good faith obligations as piecemeal solutions to problems 204 00:19:51,320 --> 00:19:55,400 of unfairness. And I think the way we take the point we take from that is that even though 205 00:19:55,400 --> 00:19:58,840 officially there's no organising principle of good faith, there might be good faith standards 206 00:19:58,840 --> 00:20:03,240 that we see through other language in contract law. The point of the conference was to explore 207 00:20:03,240 --> 00:20:09,920 that idea in public law, which is even harder than approaching it in contract law. I think 208 00:20:09,920 --> 00:20:15,160 it's more difficult to see it there. Now, I think one of the main reasons why good faith's 209 00:20:15,160 --> 00:20:19,600 not been a prominent form of administrative control is because we take it for granted 210 00:20:19,600 --> 00:20:27,080 that the state acts in good faith. So in contract cases, counterparties bully each other. They 211 00:20:27,080 --> 00:20:32,680 lawfully cheat each other. They tell each other lies. And we call that sharp practice. 212 00:20:32,680 --> 00:20:37,920 Most of that is lawful, but could be dealt with through good faith principles. So if 213 00:20:37,920 --> 00:20:43,240 you want to explore this, look at a case like say Yam Seng in contract law. But we struggle 214 00:20:43,240 --> 00:20:48,240 with the idea that the government can cheat you or break the law in good faith or that 215 00:20:48,240 --> 00:20:53,080 it would be dishonest or disingenuous because public law tends to build an idealised picture 216 00:20:53,080 --> 00:20:59,640 of the state. Those days, however, are past now. So last year, for example, the UK government 217 00:20:59,640 --> 00:21:04,040 said it would break the Northern Ireland Protocol, which is the key bit of the treaty that embodies 218 00:21:04,040 --> 00:21:08,560 Brexit on the island of Ireland in bad faith. And I don't just mean that it would break 219 00:21:08,560 --> 00:21:14,160 it, but that it knew that it would be breaking the law when it broke the law. And I think 220 00:21:14,160 --> 00:21:20,120 evolving doctrines of good faith in public law maybe need to account of, or maybe useful 221 00:21:20,120 --> 00:21:25,520 if you want to take account of the way that the state is changing. So if you're curious 222 00:21:25,520 --> 00:21:30,280 about whether English public law embodies a doctrine of good faith, then I mean, take 223 00:21:30,280 --> 00:21:34,760 it for granted that they're not going to say it does, but rereads the key cases that you 224 00:21:34,760 --> 00:21:39,080 would have covered in administrative law, maybe even constitutional law. Look at say 225 00:21:39,080 --> 00:21:45,760 Wainsbury or Anas Minnick, you know, kind of week one, day one revision, if you're coming 226 00:21:45,760 --> 00:21:53,440 to administrative law again. Read through the passages where Lord Green describes unreasonableness 227 00:21:53,440 --> 00:21:58,920 or where Lord Reed describes illegality. And you'll find bad faith is actually an explicit 228 00:21:58,920 --> 00:22:04,160 component of that idea in each of those paragraphs. It's one of the things that's doing the heavy 229 00:22:04,160 --> 00:22:08,440 work. If you want to work out from there, look at connected ideas like good administration 230 00:22:08,440 --> 00:22:12,920 or abuse of power, or the idea that public bodies have to keep their promises. I think 231 00:22:12,920 --> 00:22:17,520 those ideas underpin a doctrine of legitimate expectation, which may be better understood 232 00:22:17,520 --> 00:22:23,640 as a good faith principle than as a principle of quasi-contract or sort of promissory principle 233 00:22:23,640 --> 00:22:28,280 in administrative law. And there are loads of cases where the government acts disingenuously, 234 00:22:28,280 --> 00:22:31,040 where that's the key thing about the case, but where it's understood through a different 235 00:22:31,040 --> 00:22:36,560 public law doctrine. So in a case like the Crown on behalf of Lombard and the Secretary 236 00:22:36,560 --> 00:22:40,880 of State, the government has a secret policy. You know, it says its policy is to release 237 00:22:40,880 --> 00:22:44,400 asylum seekers at the end of the prison census, but actually that's the opposite to what its 238 00:22:44,400 --> 00:22:50,440 policy really is. Take a case, you know, maybe pre-eminently like Miller and Prime Minister. 239 00:22:50,440 --> 00:22:55,320 The government says the reason why it's proroguing parliament is to introduce a refreshed legislative 240 00:22:55,320 --> 00:22:59,320 programme. But of course, the real reason why it's doing that is to avoid scrutiny during 241 00:22:59,320 --> 00:23:06,520 Brexit. If that sort of dishonesty is dealt with by good faith in contract law, why shouldn't 242 00:23:06,520 --> 00:23:10,760 it be dealt with by good faith in public law? 243 00:23:10,760 --> 00:23:17,440 That's really interesting. There does seem to be a similarity with good faith and its 244 00:23:17,440 --> 00:23:25,480 role in English law here. It seems, again, it is there, but in some hidden forms or with 245 00:23:25,480 --> 00:23:32,600 other labels, really interesting. And how might the time when Lord Denning tried to 246 00:23:32,600 --> 00:23:40,760 introduce Istanbul into public law fit in here, if at all? 247 00:23:40,760 --> 00:23:51,280 Well, I mean, there are attempts to introduce an explicit principle of fair dealing or good 248 00:23:51,280 --> 00:23:56,000 administration in cases like, for example, I think Lord Justice Law has tried to do this 249 00:23:56,000 --> 00:24:04,760 in Nadirajah at roughly paragraph 72. We now know through more recent cases that that's 250 00:24:04,760 --> 00:24:09,320 not a standard of review in English law. But I don't think that's the argument I'm trying 251 00:24:09,320 --> 00:24:12,960 to make. I'm not saying that you can turn up in the High Court and say the government 252 00:24:12,960 --> 00:24:17,040 hasn't acted in good faith. That's not going to fly. But what we're arguing about here 253 00:24:17,040 --> 00:24:21,520 throughout is what's the best way to organise this stuff? What are the prisons that we can 254 00:24:21,520 --> 00:24:25,400 use that show us more about this law? And I think actually this is a way of looking at 255 00:24:25,400 --> 00:24:30,760 administrative law that connects things that we previously haven't connected. 256 00:24:30,760 --> 00:24:36,120 And I think there's an underlying thing to think about here. Perhaps it's good that now 257 00:24:36,120 --> 00:24:44,720 society is less deferential towards the government and realises that it's not so dissimilar to 258 00:24:44,720 --> 00:24:53,040 the adversarial nature of, for example, contracts in the way the states deals with individuals. 259 00:24:53,040 --> 00:25:02,420 For example, you only have to look at the Windrush scandal and the case decisions and 260 00:25:02,420 --> 00:25:13,320 policy making in this regard to see that governments are really not above knowingly breaking law 261 00:25:13,320 --> 00:25:20,680 and acting with less than benevolent or even legitimate intentions. 262 00:25:20,680 --> 00:25:24,240 I think you're right, Jen. If you're interested in exploring that issue, I wrote a blog on 263 00:25:24,240 --> 00:25:29,000 this a couple of years ago called British Laws for British Ministers where I complain 264 00:25:29,000 --> 00:25:34,600 vigorously about this. But yes, I would like to have a more idealistic picture of my government 265 00:25:34,600 --> 00:25:40,280 in public law. I don't think that's something that I can have right now. 266 00:25:40,280 --> 00:25:47,480 But Ewan, do you believe that the law can effectively fetter the ulterior motives and 267 00:25:47,480 --> 00:25:51,240 interests of politicians and governments? 268 00:25:51,240 --> 00:25:56,600 I absolutely do. And I think it does. I think fetter implies that there's something undesirable 269 00:25:56,600 --> 00:26:00,800 about this. I don't think it's a tie that binds so much as something that makes better 270 00:26:00,800 --> 00:26:07,080 policy, that catalyzes government rather than restrains it. Take the government legal advisers, 271 00:26:07,080 --> 00:26:11,800 for example. I think it's hugely important that government legal advisers provide advice 272 00:26:11,800 --> 00:26:15,600 on legality of government policy, especially in areas where it's really difficult to sue 273 00:26:15,600 --> 00:26:21,880 the government, such as foreign relations, national security. 274 00:26:21,880 --> 00:26:26,520 The bad faith case I wrote about, which is to do with the Northern Ireland Protocols, 275 00:26:26,520 --> 00:26:31,560 a case where Lord Keane and Jonathan Jones, two government legal advisers, resigned in 276 00:26:31,560 --> 00:26:36,040 protest after the government tried to get them to advise it that they could break the 277 00:26:36,040 --> 00:26:41,080 law in bad faith. They were allowed to do that. I think it's really important that you have 278 00:26:41,080 --> 00:26:46,240 that level of advice, because I think policymakers come up with better policy when they have 279 00:26:46,240 --> 00:26:52,160 to respect legality and the principles that the law embodies. So no, I don't quite see 280 00:26:52,160 --> 00:26:57,880 it as a fetter, but I do think legality is real within government. And I think government 281 00:26:57,880 --> 00:27:02,320 policymakers typically do take account of legal standards very closely. And I think 282 00:27:02,320 --> 00:27:06,200 that makes government better rather than worse, more effective rather than less effective, 283 00:27:06,200 --> 00:27:09,120 more efficient rather than less efficient. 284 00:27:09,120 --> 00:27:14,000 That's really insightful, thank you. I think when you think about it like this, it does 285 00:27:14,000 --> 00:27:21,840 seem that having a stronger approach of good faith could be really promising and make the 286 00:27:21,840 --> 00:27:25,760 future look less bleak in terms of accountability. 287 00:27:25,760 --> 00:27:34,480 Ewan, if we were to think about the future of the UK constitution, what could be gained 288 00:27:34,480 --> 00:27:42,640 and what might be lost if the UK did adopt a coded constitution? And do you think this 289 00:27:42,640 --> 00:27:43,640 is likely? 290 00:27:43,640 --> 00:27:50,640 Again, that's a really good question. There is a movement for Britain to codify its constitution, 291 00:27:50,640 --> 00:27:57,320 and a lot of the arguments for that I find really attractive. So my colleague, Jeff King, 292 00:27:57,320 --> 00:28:03,680 at UCL has presented, I think, maybe the most prominent recent argument, which she describes 293 00:28:03,680 --> 00:28:11,280 as the democratic case for a written constitution. I like the idea that as British citizens, 294 00:28:11,280 --> 00:28:17,560 we might be able to come together and come up with rules by which we live together. But 295 00:28:17,560 --> 00:28:22,200 I fear that that's not something that's available to us right now. So although I find Jeff's 296 00:28:22,200 --> 00:28:26,240 argument attractive, one of the things I find attractive about it is that it's very ambitious 297 00:28:26,240 --> 00:28:32,720 for our democracy, and it's really ambitious for us as citizens. And I'm not convinced 298 00:28:32,720 --> 00:28:39,560 that we have the sort of democracy and political culture right now that we'd sustain now. 299 00:28:39,560 --> 00:28:45,160 In particular, I think written constitutions usually require a rare moment of political 300 00:28:45,160 --> 00:28:52,520 solidarity in order to stick. So the last time we tried to create a sort of written 301 00:28:52,520 --> 00:28:56,760 constitution, I know your question implied that maybe there are written elements in our 302 00:28:56,760 --> 00:29:01,360 constitution. I think the last time we were able to do that was the Human Rights Act 1998, 303 00:29:01,360 --> 00:29:04,800 the evolution settlement that we enacted at that time. 304 00:29:04,800 --> 00:29:07,640 Yes, I think I was thinking about that in particular. 305 00:29:07,640 --> 00:29:11,000 Well, you're right. I mean, those are really good examples. But remember, the parliament 306 00:29:11,000 --> 00:29:18,320 that enacted those laws had the largest parliamentary majority in history. Now, of course, within 307 00:29:18,320 --> 00:29:19,320 the new Labour government. 308 00:29:19,320 --> 00:29:26,600 Exactly. So new Labour in 1997 came in with the largest parliamentary majority. And within 309 00:29:26,600 --> 00:29:33,920 three years, the Conservative manifesto proposed to repeal that legislation. And we're still 310 00:29:33,920 --> 00:29:38,040 arguing about whether we should repeal that legislation now. There was a bill introduced 311 00:29:38,040 --> 00:29:41,000 to parliament under the last administration that would have repealed important elements 312 00:29:41,000 --> 00:29:47,560 of it, but changed it in significant ways. How would we enact a written constitution 313 00:29:47,560 --> 00:29:54,400 right now? What would we agree on? So one of the issues that I find particularly intractable 314 00:29:54,400 --> 00:30:00,280 is what would our territorial constitution look like? So I come from Glasgow. I don't 315 00:30:00,280 --> 00:30:04,760 have a strong position, I should say, on the constitutional future of Scotland. I care 316 00:30:04,760 --> 00:30:08,920 about the way in which it's done. I don't live in Scotland, so I don't take a position 317 00:30:08,920 --> 00:30:14,560 in that debate. But I struggle to see how you could include the Scottish National Party, 318 00:30:14,560 --> 00:30:19,080 Sinn Fein, Plaid Cymru, in a conversation about what a written constitution should look 319 00:30:19,080 --> 00:30:24,120 like, because the key argument that those parties are presenting is that there shouldn't 320 00:30:24,120 --> 00:30:29,320 be a British written constitution. So you can either delete that argument from your written 321 00:30:29,320 --> 00:30:34,120 constitution or not put it to the constitutional convention that you're creating, in which 322 00:30:34,120 --> 00:30:39,800 case the party that currently roughly half of Scottish voters vote for isn't a participant 323 00:30:39,800 --> 00:30:45,920 in your convention. Or what else do you do? Do you hold a referendum? How often do you 324 00:30:45,920 --> 00:30:49,960 hold a referendum? How do you confront those issues? So first of all, I don't think we 325 00:30:49,960 --> 00:30:54,640 have the political solidarity to deal with this. Second of all, I struggle to see how 326 00:30:54,640 --> 00:31:01,920 these sorts of conventions could adequately deal with issues like secession. But I don't 327 00:31:01,920 --> 00:31:07,000 think we're unusual in that. So think about the way political solidarity works in the 328 00:31:07,000 --> 00:31:13,640 United States right now. America has a written constitution, but it's preposterous to think 329 00:31:13,640 --> 00:31:18,480 that America could currently conclude a new written constitution if they did a new Philadelphia 330 00:31:18,480 --> 00:31:24,880 convention in 2023. They'd openly be fighting in the aisles. Similarly, I think there are 331 00:31:24,880 --> 00:31:30,520 lots of other broadly functioning democracies. I'm not saying everything is perfect about 332 00:31:30,520 --> 00:31:34,360 the democracy. But say you take a state like India, I think it would be very difficult 333 00:31:34,360 --> 00:31:40,080 for India to conclude a written constitution right now. I don't think we're alone in this, 334 00:31:40,080 --> 00:31:46,080 but I think what's attractive about that argument is ambition. And what's troublesome about 335 00:31:46,080 --> 00:31:49,760 the argument is that same ambition. I think it's maybe too ambitious for us as citizens. 336 00:31:49,760 --> 00:31:54,600 It's maybe too ambitious for where we can be as a democracy right now. 337 00:31:54,600 --> 00:32:02,120 This is actually very eye opening. I think I can definitely see the impracticalities 338 00:32:02,120 --> 00:32:11,160 now. In particular, I think it could be said of the UK, the US and India that the political 339 00:32:11,160 --> 00:32:18,040 climate really is far from political solidarity right now. I think it's much more one of division 340 00:32:18,040 --> 00:32:26,280 and polarizing elements. We could definitely write a constitution that 341 00:32:26,280 --> 00:32:31,080 we would then revise in 10 minutes time. But the sort of constitutions that succeeded are 342 00:32:31,080 --> 00:32:34,440 constitutions like, say, the South African constitution, which came under huge pressure 343 00:32:34,440 --> 00:32:41,920 under Jacob Zuma's administration, say, but held up because of the unique political solidarity 344 00:32:41,920 --> 00:32:48,360 of the coalition that put that document together. Maybe budget time is the best way for people 345 00:32:48,360 --> 00:32:52,280 who are advocates of a written constitution in the UK. 346 00:32:52,280 --> 00:32:59,000 You have taught and researched in three of the most prestigious universities in China. 347 00:32:59,000 --> 00:33:06,200 I think if we were to talk about Oxbridge equivalents, I think really Tsinghua and Beijing 348 00:33:06,200 --> 00:33:11,160 and Ruoming would really rank up there if you were to talk about the Oxbridge equivalents 349 00:33:11,160 --> 00:33:18,280 but in China. There is a fairly well-known connection between German civil law and Chinese 350 00:33:18,280 --> 00:33:25,200 civil law. In particular, Chinese legislators did adopt much of the structure of the German 351 00:33:25,200 --> 00:33:32,120 civil code and even some of the doctrines in the German civil code. Could the same be 352 00:33:32,120 --> 00:33:40,320 said of Chinese constitutional law? And in which ways is the Chinese constitution actually 353 00:33:40,320 --> 00:33:42,080 quite unique? 354 00:33:42,080 --> 00:33:45,960 The short answer is not really. The Chinese constitution isn't really very much like the 355 00:33:45,960 --> 00:33:51,760 German constitution. But the reason that's the answer is because it depends on what we 356 00:33:51,760 --> 00:33:57,200 mean by constitution. So if you remember the first discussion we had about codified and 357 00:33:57,200 --> 00:34:03,560 uncodified constitutions tells us that sometimes the written, the unwritten constitutions say 358 00:34:03,560 --> 00:34:12,200 radically different things. In the late 19th, early 20th centuries, Chinese political reformers 359 00:34:12,200 --> 00:34:18,480 like Kangyue Wei thought constitutional development and national development were two sides of 360 00:34:18,480 --> 00:34:26,880 the same coin. Since, however, since the revolution, it's been hard to say that China's written 361 00:34:26,880 --> 00:34:32,920 constitutions have been anything like European constitutions. However much the text might 362 00:34:32,920 --> 00:34:42,280 superficially look alike. Now, Mao Zedong famously said shortly after the 1954 constitution 363 00:34:42,280 --> 00:34:46,360 of China was promulgated that he was one of the people who wrote the constitution, but 364 00:34:46,360 --> 00:34:52,480 even he couldn't remember what it said. And I think that maybe acts as a window into the 365 00:34:52,480 --> 00:34:58,540 relationship between the written and unwritten constitutions in China. So even though some 366 00:34:58,540 --> 00:35:05,200 of the constitutional texts bear some resemblance to European constitutional texts, they operate 367 00:35:05,200 --> 00:35:10,420 in very different ways. We talked earlier on about ways in which you can't enforce your 368 00:35:10,420 --> 00:35:14,880 right to education under Article 9 of the constitution in a court. But there have been 369 00:35:14,880 --> 00:35:21,460 periods in Chinese history where the gap between the constitutional text and the reality has 370 00:35:21,460 --> 00:35:31,960 been even broader. So for example, between 1957 and 1965, no legislation was passed in 371 00:35:31,960 --> 00:35:35,160 the National People's Congress, which is supposed to be the supreme constitutional 372 00:35:35,160 --> 00:35:44,400 organ. Between 1965 and 1974, it just stopped meeting. And similarly, the 1954 constitution 373 00:35:44,400 --> 00:35:51,400 created an office of chairman of the People's Republic of China. That office was abolished 374 00:35:51,400 --> 00:35:57,600 in the 1975 constitution because the National People's Congress didn't need to be chaired, 375 00:35:57,600 --> 00:36:06,240 stopped meeting. However, underlying that constitution is an idea called party leadership. 376 00:36:06,240 --> 00:36:12,040 That principle has been present at all stages in Chinese constitutional development since 377 00:36:12,040 --> 00:36:18,960 the revolution. But the point is that that basic structure both proceeds and survives 378 00:36:18,960 --> 00:36:23,680 these written constitutions, whether they look German, look French, look British, look 379 00:36:23,680 --> 00:36:29,000 Japanese. The party isn't the child of that constitution, it's not created by the constitution. 380 00:36:29,000 --> 00:36:35,080 It's the midwife for the birth of the constitution. So I think even though maybe superficially 381 00:36:35,080 --> 00:36:40,440 there are some textual overlaps between the Chinese constitution and the German constitution, 382 00:36:40,440 --> 00:36:49,520 for example, the key moving part is party leadership that isn't present in Germany. 383 00:36:49,520 --> 00:36:55,880 That's really insightful. I hadn't looked at it this way before, actually. And I think 384 00:36:55,880 --> 00:37:04,440 this goes back to the concept and way of thinking which you have been building for us, that 385 00:37:04,440 --> 00:37:12,680 constitutions are not just what is written down, even if there is, for example, a constitutional 386 00:37:12,680 --> 00:37:23,720 code. A constitution is actually how governments and administration works in practice, including 387 00:37:23,720 --> 00:37:33,240 implied rules and principles. You have also taught at the National University 388 00:37:33,240 --> 00:37:41,280 of Singapore. How is the Singaporean constitution structured? Is the common law influence very 389 00:37:41,280 --> 00:37:44,920 visible? Let me start by saying I'm very much a student 390 00:37:44,920 --> 00:37:49,080 of the Singaporean constitution rather than an expert on it. I spent some time studying 391 00:37:49,080 --> 00:37:53,000 it at the National University of Singapore, which I found fascinating, but this is still 392 00:37:53,000 --> 00:37:57,680 very much a work in progress for me. I tend to approach the Singaporean constitution through 393 00:37:57,680 --> 00:38:02,960 the constitutional orders that I do understand, particularly the United Kingdom, and as you 394 00:38:02,960 --> 00:38:06,880 say the common law influence is an important aspect to the way that we see the Singaporean 395 00:38:06,880 --> 00:38:12,120 constitution and also the constitution of China, because Singapore has a dominant party, 396 00:38:12,120 --> 00:38:18,120 the People's Action Party, and it's sometimes called a hybrid constitution, by which I think 397 00:38:18,120 --> 00:38:23,320 usually people who use that language mean it's not right but it's okay. It has a dominant 398 00:38:23,320 --> 00:38:28,480 party and there are some restrictions on political association, though nothing like as significant 399 00:38:28,480 --> 00:38:33,880 as in China, and Singapore enjoys a robust legality. If you want to bring a commercial 400 00:38:33,880 --> 00:38:38,040 dispute to Singapore then you're going to get your case dealt with in a satisfactory 401 00:38:38,040 --> 00:38:41,240 way. Okay, I heard it's increasingly the centre 402 00:38:41,240 --> 00:38:46,240 of commercial litigation and dispute resolution as well. 403 00:38:46,240 --> 00:38:52,520 That's right. I suppose we can ask how robust that legality is, so in particular how independent 404 00:38:52,520 --> 00:38:57,920 of Singaporean judges in political cases, and we certainly don't see in Singapore the 405 00:38:57,920 --> 00:39:01,960 sort of action that you would take if you tried to organise politically in the People's 406 00:39:01,960 --> 00:39:08,840 Republic of China. That's not possible. But criticism of the ruling elite in Singapore 407 00:39:08,840 --> 00:39:16,520 is still something that is a cause of concern for human rights observers there. Amnesty 408 00:39:16,520 --> 00:39:22,000 International for example observes defamation trials in Singapore and expresses concerns 409 00:39:22,000 --> 00:39:28,640 that they are politically motivated. One example that they lead would be a suit against a man 410 00:39:28,640 --> 00:39:34,200 called JB Jayaratnam by the former Prime Minister Goh Chok Tong in which the Prime Minister 411 00:39:34,200 --> 00:39:39,560 was awarded a hundred thousand Singaporean dollars plus full costs. I think that has 412 00:39:39,560 --> 00:39:46,560 a strong chilling effect on political speech in Singapore. There are other cases such as 413 00:39:46,560 --> 00:39:54,120 the Tang Liyang Hong case going back 25 years now, but of course it's the cases that don't 414 00:39:54,120 --> 00:39:59,800 come up now because of the monetary effect of those defamation cases that make it hard 415 00:39:59,800 --> 00:40:04,520 to criticise the ruling elite in Singapore. Now I mentioned these examples rather than 416 00:40:04,520 --> 00:40:09,160 other examples of the ways in which Singapore could be a hybrid constitution because they 417 00:40:09,160 --> 00:40:14,120 are to do with robust legality and there are cases in which both the defendant and other 418 00:40:14,120 --> 00:40:19,280 human rights observers read question marks about judicial independence in Singapore. 419 00:40:19,280 --> 00:40:25,440 That is still a life problem and I think when we use the common law as the key frame for 420 00:40:25,440 --> 00:40:30,680 how Singapore works constitutionally, the deficiencies of Singaporean common law I think 421 00:40:30,680 --> 00:40:36,760 might be one of the first places we want to start. This is really insightful, in particular 422 00:40:36,760 --> 00:40:44,080 how civil law can actually be relevant and used as a potentially dangerous tool, like 423 00:40:44,080 --> 00:40:51,840 you said, a chilling effect on free speech. A problematic part of Singapore's history 424 00:40:51,840 --> 00:41:00,160 since independence and arguably an ongoing problem is to do with perhaps democracy not 425 00:41:00,160 --> 00:41:07,840 being completely impartial. After independence there was detention and conviction of people 426 00:41:07,840 --> 00:41:16,400 without proper trial for having suspected links to communism and more recently there 427 00:41:16,400 --> 00:41:24,080 is the Foreign Interference Countermeasures Act which has been criticised as a major infringement 428 00:41:24,080 --> 00:41:33,840 on free speech as it allows censorship of content when the content is suspected to be 429 00:41:33,840 --> 00:41:41,400 foreign interference and also allows mandatory posting of government notices. Do you believe 430 00:41:41,400 --> 00:41:48,840 that this problem stems from any particular weaknesses in the Singaporean constitution 431 00:41:48,840 --> 00:41:54,080 or is it more of a political accountability problem? 432 00:41:54,080 --> 00:42:00,600 Again with your permission I'll glance off that question a little bit. I think influence, 433 00:42:00,600 --> 00:42:07,280 interference and intervention are global problems rather than Singaporean problems. I don't 434 00:42:07,280 --> 00:42:11,080 know enough about the Singaporean example to want to use that as the centre for this 435 00:42:11,080 --> 00:42:16,000 debate but I am doing some research on interference and how that works both for and against the 436 00:42:16,000 --> 00:42:22,680 Communist Party globally so I can maybe talk about that in general. We had a similar question 437 00:42:22,680 --> 00:42:30,640 asked in the United Kingdom last year where the security service said a Chinese agent 438 00:42:30,640 --> 00:42:36,640 had infiltrated the UK Parliament naming that agent as a woman called Christine Chin Kuei 439 00:42:36,640 --> 00:42:42,720 Lee. This prompted as you would expect a vigorous reaction from Chinese diplomatic representatives 440 00:42:42,720 --> 00:42:51,440 in the UK. It produced responses from the British Chinese community, from the mainland 441 00:42:51,440 --> 00:42:57,000 Chinese community in the UK and one challenge that poses I think it risks driving a wedge 442 00:42:57,000 --> 00:43:02,920 between citizens from different parts of the globe in the UK. I imagine that would also 443 00:43:02,920 --> 00:43:07,040 happen in Singapore though again I would leave it to Singaporeans to answer that question 444 00:43:07,040 --> 00:43:14,280 finally. I think influence is a problem globally. The key aspect to the problem is clandestine 445 00:43:14,280 --> 00:43:19,520 influence. I don't have a problem with influence generally I think it's what governments do. 446 00:43:19,520 --> 00:43:23,000 Before I came back to Oxford University I worked as a diplomat and of course what you're 447 00:43:23,000 --> 00:43:26,680 supposed to do if you're a diplomat working in a foreign country is try to influence what 448 00:43:26,680 --> 00:43:31,440 people think in that country. They wouldn't pay you otherwise. So I don't have a problem 449 00:43:31,440 --> 00:43:35,840 with people from other countries coming to the United Kingdom in order to try and shape 450 00:43:35,840 --> 00:43:39,440 our policy or our politics. I think that's part and parcel of what it is to live in a 451 00:43:39,440 --> 00:43:46,340 globalised world. The way I become concerned about that form of influence is where it appears 452 00:43:46,340 --> 00:43:52,880 that the influence is coming from a civil society group but actually that group is ventriloquised, 453 00:43:52,880 --> 00:43:57,960 is operated by a puppet master that isn't actually connected with that group. This is 454 00:43:57,960 --> 00:44:04,720 a particular problem in respect of large communist parties because those parties have a division 455 00:44:04,720 --> 00:44:09,440 usually called the United Front Work Department of the party whose job it is to liaise with 456 00:44:09,440 --> 00:44:14,800 overseas organisations who project public opinion in those states and the links between 457 00:44:14,800 --> 00:44:21,360 the United Front Work Department and institutions that have been accused of clandestine or inappropriate 458 00:44:21,360 --> 00:44:26,760 influence aren't always clear. There are, for example in Australia, there are some quite 459 00:44:26,760 --> 00:44:34,200 prominent examples of senators who have been forced out of office after taking money from 460 00:44:34,200 --> 00:44:39,560 communist party front organisations. So Senator Sam Dastaiyari for example stepped down about 461 00:44:39,560 --> 00:44:45,040 four or five years ago now. I expect that's a global problem. I expect it's a problem 462 00:44:45,040 --> 00:44:49,600 in Singapore. I expect it's a problem in the UK. Though again I think the key thing about 463 00:44:49,600 --> 00:44:54,320 that isn't that China is influencing us. I'm comfortable with that. I think the key problem 464 00:44:54,320 --> 00:45:01,040 is that the structures by which influence is being conducted are clandestine. I think 465 00:45:01,040 --> 00:45:05,880 transparency is important and that allows people to judge whether the person making 466 00:45:05,880 --> 00:45:10,840 the comment is, to put it in an online example, a Russian bot or a person that you know. I 467 00:45:10,840 --> 00:45:15,480 think that distinction is really important. The bit I'm writing about at the moment is 468 00:45:15,480 --> 00:45:21,200 actually to do with how this works in international law. International law as you may know has 469 00:45:21,200 --> 00:45:29,120 a principle called non-intervention, non-interference. There's a rule against being the puppet master 470 00:45:29,120 --> 00:45:36,520 over other countries. It's initially an anti-imperial, anti-colonial rule. But nowadays some states 471 00:45:36,520 --> 00:45:43,040 use it as a way of deflecting criticism of their human rights record. So when you criticise 472 00:45:43,040 --> 00:45:50,800 for example the way in which China has dealt with the Uyghur minority in Xinjiang, the 473 00:45:50,800 --> 00:45:54,920 response that you will get from the spokesperson of the Chinese foreign ministry is that you're 474 00:45:54,920 --> 00:46:01,160 engaging in a gross interference with China's internal affairs. I wonder how symmetrical 475 00:46:01,160 --> 00:46:05,560 these two problems are and I'm not sure they are. So I'm not sure the case of Christine 476 00:46:05,560 --> 00:46:10,000 Chin-Kuei-Lee is like the case where the British Foreign Secretary or the British Prime Minister 477 00:46:10,000 --> 00:46:13,320 says we don't think this is acceptable and we think you ought to change your policy and 478 00:46:13,320 --> 00:46:17,840 by the way we're the British government. So I think maybe the key hallmark of these cases 479 00:46:17,840 --> 00:46:25,720 is transparency and where national influence is conducted transparently that might be a 480 00:46:25,720 --> 00:46:30,480 way in which we can go forward. Whereas if it's not clear who's doing the talking that's 481 00:46:30,480 --> 00:46:34,920 a problem we all experience in the lives that we live online as well as something that we 482 00:46:34,920 --> 00:46:42,080 have to deal with in constitutional law. Thank you very much for this insight and how do 483 00:46:42,080 --> 00:46:50,760 you think in practice the very legitimate interest of not having interference which 484 00:46:50,760 --> 00:46:57,880 is not transparent and balancing that with the right to free speech, how do you think 485 00:46:57,880 --> 00:47:07,760 that should or might be done in practice? I think it depends on the forum in which you're 486 00:47:07,760 --> 00:47:13,640 speaking who the speaker is, what we say about the speaker. It depends hugely depending on 487 00:47:13,640 --> 00:47:20,600 what sort of speech we're engaged with. We've talked about the responsibility of say social 488 00:47:20,600 --> 00:47:25,880 media companies to check that people who appear to be speaking are actually people. That would 489 00:47:25,880 --> 00:47:30,760 be one way in which we could counter a particular sort of influence and that's been topical 490 00:47:30,760 --> 00:47:34,760 this week because we've been talking about influence on voters and a notional president, 491 00:47:34,760 --> 00:47:41,080 a prime ministerial selection in the UK. But look at something like Question Time or a 492 00:47:41,080 --> 00:47:47,760 panel show on a television station in the UK. If you represent the Taxpayers Alliance 493 00:47:47,760 --> 00:47:54,880 or some British civil society association should you be obliged to say and these are 494 00:47:54,880 --> 00:47:58,400 the people who fund me, just like I'm obliged to say that whenever I publish an article 495 00:47:58,400 --> 00:48:03,000 in a journal. Maybe that would be one step that we could take that would make it harder 496 00:48:03,000 --> 00:48:09,520 for clandestine individuals to influence us. These are little rules and small examples 497 00:48:09,520 --> 00:48:13,680 but maybe it's for some of those small things that allows us to preserve speech while making 498 00:48:13,680 --> 00:48:18,960 influence clear rather than some other arching rule that would deal with all cases in the 499 00:48:18,960 --> 00:48:26,760 same way. Ewan, it really has been a privilege and a pleasure to discuss the law with you 500 00:48:26,760 --> 00:48:33,760 and how these issues might play out in the future. Thank you so much for taking the time 501 00:48:33,760 --> 00:48:40,880 to share your experiences and your research with us. It really isn't every day that we 502 00:48:40,880 --> 00:48:48,440 have access to someone who has worked and researched in such a variety of countries 503 00:48:48,440 --> 00:48:55,820 and environments and also who's happy to talk to us about such a variety of topics. Thank 504 00:48:55,820 --> 00:49:00,380 you so much. Thank you, Chen. It's been a pleasure talking to you too. The only final 505 00:49:00,380 --> 00:49:05,320 thing I want to say is if you're listening to this podcast and if we've said anything 506 00:49:05,320 --> 00:49:09,920 that you find interesting and you'd like to follow up on, you can find my email online. 507 00:49:09,920 --> 00:49:14,040 I'm not going to say it out loud because it's easier to Google me I think sometime in the 508 00:49:14,040 --> 00:49:18,240 future than for me to say that now but please if you would like to follow up especially 509 00:49:18,240 --> 00:49:21,320 if you're a student I'd love to hear from you, please drop me a line and we'll continue 510 00:49:21,320 --> 00:49:29,160 the conversation. Thank you very much for that, Ewan. That's super generous. Ewan, goodbye 511 00:49:29,160 --> 00:49:36,840 for now and also goodbye to our lovely listeners. Thanks so much for listening. That was Professor 512 00:49:36,840 --> 00:49:47,160 Ewan Smith speaking to us about administrative, comparative and constitutional aspects of 513 00:49:47,160 --> 00:49:57,560 public law. As we touched upon, discussions on constitutions, on international law and 514 00:49:57,560 --> 00:50:05,960 on the role of governments is becoming increasingly controversial and very contentious and often 515 00:50:05,960 --> 00:50:15,960 heated to discuss. But I think what remains incredibly important is that there is dialogue 516 00:50:15,960 --> 00:50:24,920 and calm and insightful discussion and I hope that's in a small way today we have contributed 517 00:50:24,920 --> 00:50:36,520 to that. Dear listeners, thank you very much for listening to this episode of the Oxford 518 00:50:36,520 --> 00:50:44,840 Undergraduate Law Podcast. For more episodes and more information, please do go to the 519 00:50:44,840 --> 00:50:54,240 other episodes in our selection on Spotify, see about upcoming episodes and also look 520 00:50:54,240 --> 00:51:03,080 at our webpage on the Oxford Undergraduate Law Journal website. Thanks very much everyone. 521 00:51:03,080 --> 00:51:15,080 Goodbye for now.