Jonathan Goldsmith

Jonathan Goldsmith

The American Bar Association’s (ABA) Legal Fact Check website sets out to clarify the law in cases of political controversy. I have written before that such a site would be useful here, and I still believe so. 

The ABA website’s most recent post was on the legal background to President Trump’s decision to call a national emergency, and so divert funds to build his wall on the Mexican border. The note on this particular issue, after reciting powers and precedents, ends:

‘The Constitution gives Congress the power of the purse. So, the central question centers on whether the president can legally re-direct appropriated funds to finish the border wall under an emergency declaration. Congressional efforts to block the president could be difficult because of the possibility of a presidential veto. More likely, the matter will be decided following a court challenge.’

There has been a range of complex legal matters consuming general public interest in the UK recently. Imagine if the Law Society hosted a go-to website, with information written by experts in each of the fields concerned, to lay out the background law.

The most obvious current area arises from the interviews given by Shamima Begum, the schoolgirl who ran away from home to live with ISIS, and is now living in a Syrian refugee camp with her newborn baby. Ms Begum wants to come home, and there is understandable controversy surrounding her wish.

In this case, some of the legal questions are: Is she entitled to return home as a British citizen? Under what circumstances can the British government strip her of her citizenship? What citizenship does her baby hold? For which possible offences might she be investigated if she were to return? And under what kind of supervision regime is the government entitled to put her?

Journalists, politicians and members of the public could consult the website for reliable answers. It would do the reputation of solicitors a power of good, given that one of the principal aims of the Law Society on behalf of the profession is to encourage those with legal problems to go to a solicitor to resolve them. A topic like this has become particularly timely in view of President Trump’s threat over the weekend to release imprisoned ISIS fighters from Europe unless their governments agree to take them back.

Then there is Sir Philip Green, obviously a very different matter. His case raises the same question of the use of non-disclosure agreements (NDAs) as had already been raised in the Harvey Weinstein scandal. The difference with this area is that solicitors, our work and our reputation, are involved. We have been caught up in the condemnation of the use of NDAs.

For instance, the House of Commons Women and Equalities Committee said in its 2018 report on Sexual Harassment in the Workplace, principally in response to the Weinstein saga: ‘We have been particularly concerned by the evidence we have heard about members of the legal profession facilitating the unethical use of NDAs.’

The Law Society has put out a very useful practice note addressed to the profession on NDAs. But that is not the same as a background note on the law relating to NDAs for the public, pointing out not only the law, but some of the ethical issues concerned, such as client confidentiality, the importance of following clients’ instructions, and of not being identified with the clients’ cause. It could also make the same point as it made on the launch of the practice note: ‘There are often legitimate reasons why parties want to enter into confidentiality arrangements.’ Such a note would contribute to public understanding.

I have tried to avoid the use of Brexit as an example – indeed, I would be happy never to discuss the issue again – but it has also raised legal issues of complexity and importance. For instance, in the recent wrangles over parliamentary procedures, with amendable and non-amendable motions, the power of the Speaker to choose amendments, and the Speaker’s own disputed interventions, it would be good to have a place where the background rules and law were laid out clearly and objectively.

And on the topic of Brexit, it would also be good to have a summary in one place of all the Brexit-related law cases. There are some going through British and other national courts, and others through the Court of Justice of the European Union. What are these cases, and when will they be heard? What impact will they have? Which ones have already been heard, and what was their outcome?

These are just three examples of the use of such a site for the public, and the benefit to the Law Society, and more importantly the solicitors’ profession, of being seen as a source of impartial and useful advice in complex legal matters.