Unambiguous opinions in lawfare land

I have written previously on lawfare: the process by which barrister’s opinions are published to support one side or other in a dispute, especially one involving politics and law. The rules on barristers opining in public, including on litigation they may be instructed in, have been liberalised. Barristers may now give opinions publicly as long as they do not compromise their other professional obligations: including, it being in the best interests of the client; and, the barrister not bringing the profession into disrepute, acting with independence and integrity, and not knowingly or recklessly misleading anyone.  It seems to me almost inevitable that such opinions blur advocacy and opinion giving in discomforting ways.

The barrister, Gordon Exall, has a very interesting post on Advising on risk in litigation about the giving of advice on the merits and the construction of documents. He points out that, when advising on the merits of a case, and in particular on the construction of documents, the courts have opined that as well as lawyers giving their view of the correct construction they ought also to give their view on the possibility and risk of their construction being wrong.  In Hermann v Withers LLP [2012] PNLR 28, advice on a “somewhat arcane point of property law”, which included the construction of a document, held the solicitors, “should have advised, that the correct legal answer was open to significant argument. They should not have advised in unequivocal terms but should have warned of the existence of the contrary arguments.” And in, Levicom International Holdings BV v Linklaters [2010] PNLR 29 Burnton LJ held that, “the solicitors could not sensibly have advised that the meaning of the document was “clear” and they ought to have given a balanced view of the rival arguments particularly in the context of potential arbitration proceedings.”

With that in mind, I re-read Michael Mansfield QCs opinion (the Huffington post claims this is the full opinion) on the Labour Party election with added interest. It begins with these words:

1.We are instructed by the General Secretary of Unite the Union to advise on whether the incumbent leader of the Labour Party should be automatically on the ballot paper in the event that there is a challenge to his leadership resulting in an election

It ends with these words :

The rules by which the Labour Party is governed are unambiguous; the leader does not require any signatures to be nominated in a leadership election where there is a potential challenger to the leadership.

There is some consideration of alternative constructions of the rules in the body of the opinion itself, albeit rather quickly dismissed.  By way of contrast, for a longer more thoughtful take on the arguments for alternative constructions, see this post by Carl Gardner.  Interestingly, Carl also argues how the rules can lawfully be varied to keep Mr Corbyn off the ballot. Variation is not an argument contemplated in the Mansfield advice. Perhaps this is because the question was narrower, “should” Mr Corbyn be kept of the ballot, not “could” he lawfully be kept of the ballot; perhaps Mr Mansfield did not think of the argument or thought it so fanciful it did not merit consideration; or perhaps it is because any legal position is usually more ambiguous than lawfare suggests it is.


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