Like many people at the sharp end of construction law, I have acted as lead lawyer in cases involving the Crown. Here, I have usually acted for the Crown, in relation to for example, the British Library and the Millennium Dome (now known as the O2). In those cases, my professional opponents – English lawyers – acted for parties (English contractors) making claims against the Crown – 10s of millions of pounds claimed for work done and alleged delay and disruption – and I would not for one moment criticise them for so doing. Internationally, I have occasionally acted for contractors in claims of similar amounts knowing, at the end of the day, that my success would and did end up with payments made out of the Exchequer.
But what about other cases? To take an extreme example, let us look at the case of Philippe Sands KC, who acted as counsel for Mauritius against the United Kingdom in the International Court of Justice blaming the Chagos Islands. As it happens, he was successful in that case, not so much I would suggest because of his skill as an advocate, but rather as a result of his skill in marshalling our enemies against us behind the scenes. More on this in a moment.
Mr Sands is this one of His Majesty’s Counsel, a KC (or QC as he was at that moment). This is what he said in his opening to the ICJ on behalf of Mauritius:
Let me say something about the judicial function. An advisory opinion is not for resolving a dispute between States. We know that, and Mauritius does not ask you, this Court, to resolve such a dispute. What Mauritius asks the Court to do is to honour its judicial function by assisting the General Assembly and all its Members to complete the decolonization of Mauritius.
As Professor Klein explained, with colonialism ended, the colonial Power’s claim that this is a mere bilateral territorial dispute simply evaporates.
- In overwhelming numbers, States expect the Court to give the advisory opinion requested. To decline to do so, whether for the reason invoked by Australia whose argument, one is bound to say, given its own historical experience as a former colony, could be said to resemble a form of abused child syndrome, in which the victim becomes the oppressor or as put forward by a tiny number of other States, would be a most unhappy first.
- As Professor Klein made clear, the decolonization of Mauritius is not, and cannot logically be, a bilateral dispute between Mauritius and the administering Power. Decolonization is not about title to territory. Decolonization transcends any bilateral relationship. The General Assembly has no role on matters of title to territory. It does have a central role in eradicating colonization.
In other words, he was acknowledging that that the court had no jurisdiction to resolve any dispute between the UK and Mauritius as to sovereignty over the Chagos Islands, but rather was saying that the United Nations had an overweening authority to transcend every treaty that we have made if it thinks that that is in the interests of “eradicating colonialization”. In other words, the Treaty of Utrecht (1713), by which the United Kingdom holds Gibraltar, is (he says) subject to the contrary whim of the United Nations. He would likewise say, we must suppose, that the UK has no right to the Falkland Islands.
So. In taking silk, Mr Sands had sworn the loyal oath. The Oath of Allegiance to the Crown. On any sensible analysis, Mr Sands was here advocating the exact opposite of allegiance to the Crown. This was not in any sense loyal to the Crown. This was much more loyal to the enemies of the Crown.
This post is not the place to get into the details of the reasoning behind the absurd decision of the ICJ that the UK did not follow international law in the way that it decolonised Mauritius. Suffice to say that it is bonkers, and driven in totally by anti colonial politics rather than any rationality at all. It seeks to apply modern woke politics retrospectively to a perfectly sensible and rational grant of independence to Mauritius in the 1960s. More to the point here, is how Mr Sands went about obtaining the necessary support for his maneuverings. This is what he has said in his book:
Clearly, it is not consistent with the loyal oath to conspire with foreign nations whose actions are antagonistic to the Crown. Remarkably, the Promissory Oaths Act 1868 does not prescribe a criminal sanction for people who take the loyal oath, and then promptly break it. Perhaps in those days, it was thought to be blindingly obvious that such people should be, if not hung drawn and quartered, just hung, failing which imprisoned for life.
Is Mr Sands apologetic about all of this? No. Not a bit of it. He thinks that he is to be celebrated for his betrayal of his oath. He has said it is a:
fantastic thing… when you’ve taken your own country to court, won, and humiliated them completely”, uniquely in Britain you are still celebrated.
He must live in a very small circle. For the vast majority of the population, I think the sentiment is that he should be punished, not celebrated. As I write this, it looks like the Chagos deal is now dead in the water, not least because it is in flagrant breach of Treaty 8737 between the UK and the United States, in which the UK promised that the Chagos Islands would remain under British sovereignty. But if the deal were to go through, it would cost the UK taxpayer, not just a few million, but somewhere north of £30 billion. I think the overwhelming majority of the British public would say “No no no” and that Mr Sands has not been loyal to the Crown.
It is open to the Bar in England to disbar Mr Sands for gross misconduct, and many would say that that is exactly what should happen, for breach of his loyal oath. Will that happen? I doubt it. The Bar Council is, it seems, these days packed with Fabians. Even if that were to happen, Mr Sands would still be entitled to call himself “KC”, and the removal of his letters patent would be a whole different process.
What has all of this to do with international construction law? Right now, probably not very much. But if the government of the United Kingdom were change to one of a much more right wing complexion (not unlikely, it seems), it is possible that Mr Sands might face criminal prosecution. Not perhaps for what he said in open court, but for his conspiring with Russia and China behind the scenes.
And then what of other people, particularly those who have sworn the loyal oath, who have acted contrary to the interests of the Crown in international construction disputes? They will probably be OK. But if I had any grannies left (that was a while ago) I would not bet their lives on it.