OF INTEREST TO LAWYERS

Closed Material Procedures....a necessary evil

2012-03-04T17:36:00.000Z

I have blogged about this subject before - see here. I have now read lots of material from others on this subject including from the Special Advocates and Liberty. But nobody seems to be setting out an alternative to CMPs. Close Material Procedures (CMPs) are not good. They are contrary to justice and unfair. They are however, necessary. If we do not have CMPs in civil cases then there will be 2 outcomes worse than CMPs:
1) HMG applying to strike out meritorious claims as being too sensitive to try or 2) HMG settling unmeritorious cases. In 1) the wronged citizen goes uncompensated and in 2) the taxpayer pays out when nothing wrong has happened. Neither are tolerable.

PII is not the answer - that is a shield to keep sensitive evidence out of proceedings - it has nothing to do with permitting the admission of sensitive evidence to assist the claimant or HMG. In other countries lawyers are subject to security vetting and are permitted to see sensitive evidence; but must undertake on pain of jail not to show the evidence to anybody else, including their own client. Whilst CMPs do undoubtedly create the very difficult situation of one party being represented by 2 sets of lawyers, 1 set with whom they cannot communicate but who has seen the classified evidence and 1 set with whom they can communicate but who cannot see the evidence; but this must be preferable to being represented by lawyers who have seen the evidence and can communicate with their client on all topics save for the classified evidence. If some Special Advocates feel frustrated at being unable to seek instructions; imagine how frustrated they would be if they were also that person's only lawyer.

CMPs at least permit all the evidence to be aired before the Court and Tribunal, no matter how sensitive, meaning that the result is far more reliable and just than if the evidence had been withheld - true justice may not have been seen to have been done, and result may have been different if the Claimant's own lawyers had seen the evidence rather than the Special Advocates - but at least there was an attempt at justice; rather than an abdication of it by use of PII or stike outs.

I agree that there must be vigilance to ensure that CMPs are not used where there is an alternative (gisting etc) and where there is no any actual national security case (as highlighted here)....and I also think that Courts and Tribunals must decide when and where to impose CMPs (they must not be imposed by Ministers unilaterally as can currently happen in Tribunal cases) - although the Court/Tribunal must show some respect to HMG on national security matters.

CMPs are unpleasant, frustrating and I wish there was something else - but in the absence of anything else, we cannot continue to tolerate the regime of PII (which keeps evidence out of proceedings); strike outs of meritorious claims (which keeps good claims out of Court) and unjust settlements (which puts the taxpayer out of pocket for no reason)......if any of the critics of CMPs can come up with a viable alternative....let them tell us.......

Scottish Independence Referendum....People of Doncaster will not be able to vote

2012-02-26T17:07:00.001Z

The residents of Doncaster, South Yorkshire want to vote in the Scottish Independence Referendum.

The old county borough of Doncaster was in South Yorkshire (see those white roses on its corporate coat of arms - also check out the lion on the left who has the British Rail sign as a collar!) which was a county established by Local Government Act 1972 and therefore by Schedule 1, Interpretation Act 1978, Doncaster is in England and not Scotland, whatever the Treaty of Durham says....

the old Kingdom of Scotland was defined legally by the Treaty of York 1237 and that territory became part of Great Britain by article I Union with Scotland Act 1706.

Before they start getting excited - Berwick upon Tweed is also in England and not Scotland - see para 5, Schedule 2, Interpretation Act 1978 despite what their local Football and Rugby Union teams think.

The truth is that self-determination is a matter for those who live in the territory concerned, and not for others who used to live their, or whose forebears lived there. Therefore the referendum is for and is properly only for residents only.

Sedley v Sumption

2012-02-16T21:10:00.000Z

Obiter J has drawn attention to a very interesting article in the LRB by Sir Stephen Sedley in reply to Lord Sumption's lecture which I mentioned here.

Sir Stephen, quondam C of A, makes some very good points, and I prefer his honesty (that Judges do sometimes have to touch on politics when making judgments about the law) to Sumption's rather pompous cry that Judges should shy completely away from politics - when sometimes they cannot avoid it - as Sedley says:

"But one asks what the critics of such decisions want. That local authorities should be able to break the law without redress? That courts whose job it is to apply the law should abdicate? That councillors or officials should be allowed to dispense with the law if they think fit?"

Judges cannot just hang back and refuse to intervene in a legal question, just because it touches upon policy - they have to tread carefully and judge when they are trespassing on the Sovereign Parliament's toes - but they cannot just leave the whole social - legal field to politicians - because that field has some very complex statutory law in it, and HMG has to be kept within its vires set out therein.

There is one part of the essay which is very interesting:

Instead, there is a repeated insinuation that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen. I can recall in 1995 refusing to permit judicial review of a white paper on night flights at Heathrow which I had found to be ‘a farrago of equivocation’. I did so on the ground that its deviousness was a matter for political debate, not for adjudication. Robert Stevens in his book The English Judges comments that my decision did not endear me to ministers, but I doubt that allowing judicial review to proceed would have been more likely to earn their gratitude.

Judges who sit in the Administrative Court could give scores of other examples. Here is one from R (Wheeler) v. Office of the Prime Minister (2008):

Whether the differences are sufficiently significant to treat the Lisbon Treaty as falling outside the scope of an implied representation to hold a referendum in respect of a treaty ‘with equivalent effect’ must depend primarily, as it seems to us, on a political rather than a legal judgment. There are, as Mr Sumption submitted, no judicial standards by which the court can answer the question.

Sedley retired on 31.1.11, at 71 - he could have brought his politico-legal Admin Court Judge insight to the Supreme Court for 4 years.

Should it have been Lord Sedley as well as Lord Sumption?

Now that is an interesting debate.............

Bye bye county courts.......coroner on TV

2012-02-12T15:23:00.002Z

As foreshadowed here.....HMG has decided to abolish the county courts and replace them with one National County Court. The county courts were established as local civil courts with limited jurisdiction in 1846. This was a paternalistic innovation to give poor people access to justice, away from the Queen's Bench and the Assizes etc. The courts all had specific geographic jurisdictions and the title comes from the ancient courts in every county who would meet to deal with small value disputes (until Henry II when the Assizes took over).
The courts had until 1991, a limited financial non-Chancery jurisdiction as follows:

YEAR	COUNTY COURT MONETARY UPPER LIMIT
1888	£50
1903	£100
1938	£200
1955	£400
1966	£500
1970	£750
1974	£1,000
1977	£2,000
1984	£5,000
1991	UNLIMITED

Well now these local county courts (here they are in all their glory - see Schedule 3) are to be abolished and all amalgamated into one centralised National Court with local hearing centres. I suspect many of these courts will close and all administration will be done in large warehouse processing centres (as is already done for some money and possession claims which can be processed in bulk and online). Basically I suspect the National County Court will become an online judicial entity with hearings in local hearing centres (shared with the Tribunals I don't doubt) where Article 6 requires a hearing.

There has always been a Chancery litigation limit in the county court - bizarrely it has been £30,000 since 1981 - which has not made any sense for a long time and parties litigating above that limit have consented to county court proceedings for years - the National CC is to have a Chancery limit of £350k which is much more sensible.

Furthermore they have had since 1973 a special small claims procedure (limited to £75, £100 in 1974, to £200 in 1978, to £500 in 1981 and to £1,000 in 1991 - then the big increase in 1996 to £3,000 and then following to Woolf £5,000 in 1998. HMG now want to raise this limit to £10,000 and then £15,000. The big difference in small claims procedure to normal civil procedure is the irrecoverability of costs in the absence of bad behaviour. This usually means that unless your are very rich or insured, it is a lawyer free zone - in other words HMG want to triple the current lawyer free civil litigation zone from £5,000 to £15,000 - I am biased - but is that fair?

Well I shall miss the local county courts - I used to spend days at the old Shoreditch County Court (above left) which was once a technical college (now part of the Shoreditch and Clerkenwell County Court co-located with an overspill of the Fam D at the new swanky Palais de Justice at Gee Street (see right)):

I already miss Hitchin (closed last year - right), will never miss Lambeth, but always enjoyed Kingston. West London was always fun (the old Court in West Ken - pictured at the top of the blog). I will shed a tear for Brentford, but not for Bow. My favourite is the historic and fearsomely independent City of London Court - see here, which was recently reprieved - but for how long?

I look forward to litigating at the local hearing centres of the National County Court in due course, but it will not be the same.........

On a different subject - I was rude about Coroners here - but they are not all that bad - check out the West London Coroner on the BBC at the moment - on i-player - I have appeared before this Coroner several times - and she is one of the good ones - should be training the rest!

Police and Crime Commissioners?

2012-02-10T12:22:00.000Z

I have to confess that this major constitutional change to the way in which the Queen's Peace is kept completely passed me by. It seems that those lucky enough to live beyond the purview of The Boris (he is effectively also to be in charge of the Met through a new Office for Policing and Crime, the Metropolitan Police Authority apparently having been abolished at Christmas), are to be asked to elect somebody to run policing (and crime?) in your local police jurisdiction. These Commissioners are to replace Police Authorities which used to be an indirectly elected collection of local councilors and other appointed worthies (at least one Magistrate), which approved budgets and kept the Chief Constable in check. Like the new fad in elected Mayors, these new Commissioners are going to have lots of Executive authority concentrated in their single sets of hands, but overseen by a "Panel" (which will in fact be a Committee of the local authority (ies) with some worthies co-opted and will in fact be just like the old Police Authority).

In fact between the current arrangements of Chief Constable and the Authority (sorry, Panel) there now appears to be shoehorned a new layer of leadership constituted by a directly elected egomaniac....the most worrying development is that Baron Prescott, of Kingston upon Hull in the County of East Yorkshire is standing for election as a Commissioner.

This may encourage other clapped out ex-politicians to re-invigorate their careers via this dubious innovation. Poor Chief Constables, not only must they fight crime, they will now have face Prescott and his ilk...Bring back the Custos Rotulorum!

The Home Office explains it all beautifully:

Police and crime commissioners (PCCs) will aim to cut crime and deliver an effective and efficient police service within their force area.

To provide stronger and more transparent accountability of the police, PCCs will be elected by the public to hold chief constables and the force to account; effectively making the police answerable to the communities they serve.

PCCs will ensure community needs are met as effectively as possible, and will improve local relationships through building confidence and restoring trust. They will also work in partnership across a range of agencies at local and national level to ensure there is a unified approach to preventing and reducing crime.

PCCs will not be expected to run the police. The role of the PCC is to be the voice of the people and hold the police to account.

Bar drops bombshell...

2012-02-07T17:28:00.002Z

The Bar Council and the Bar Standards Board have clubbed together to commission some research, two conclusions of which are stellar in their novelty and insight:

Barristers who went to fee-paying schools,

who went to Oxbridge, who have better degree

classifications, and/or who have achieved QC

status, are notably more positive than others about

their pay and career progression – perhaps because

they tend to work in the better-remunerated areas of

the Bar.

QCs seem to be particularly satisfied, with 81

per cent saying that most days they are enthusiastic

about their work, compared to 67 per cent of those

who are not QCs.

The Royal Borough of Greenwich

2012-02-05T19:46:00.002Z

So it's official, move over RBKC, London has its third Royal Borough - Greenwich! (Kingston is the other)

We're all very proud...and there was fireworks!

The only downside is the adoption of the Tudor rose as the new corporate symbol which is a bit Lancastrian, which I don't like at all. Despite living in Greenwich, my heart is in the county of the White Rose! You can't have everything!

When will the Chief Coroner be appointed!!! Fred Shredded by letters patent (but Greenwich made a Royal Borough by the same happy means)...and what are the Supreme Court doing hearing the Assange appeal?

2012-02-02T08:34:00.000Z

Please please hurry up with the Chief Coroner......the Coronial system needs someone to take charge and keep all of these esoteric and eccentric Coroners in order....

Appointing your wife as your deputy when she does not comply with section 2 Coroners Act and letting her hear the Winehouse inquest?

Qualifications for appointment as coroner.

(1)No person shall be qualified to be appointed as coroner unless—

(a)he has a 5 year general qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990; or

(b) he is a legally qualified medical practitioner of not less than five years’ standing . . .

Plus this Deputy in West Yorkshire was allegedly disbelieved on her oath in a criminal case and remains in post....(according to this report).

Plus I see that Fred has been formally shredded by letters patent; what a way to go.....

Crown Office
House of Lords, London SW1A 0PW
1 February 2012
Letters Patent dated 1 February 2012 have passed the Great Seal of
the Realm cancelling and annulling the Knighthood conferred upon
Frederick Anderson Goodwin on the 25 November 2004 as a Knight

(although we are all looking forward to seeing the letters patent granting Royal status to the London Borough of Greenwich this week end - there will be celebrations galore...)

I cannot believe that the Supreme Court has given Assange's appeal the time of day given its complete lack of prospects of success; notwithstanding its elegant presentation by DRQC.

While the eyes of the world are on Assange and a clash of the titans.....a Scottish female judge boldly goes....

2012-01-31T21:36:00.000Z

The entire world is apparently going to be watching the Supreme Court decide the fate of Julian Assange (subject to Strasbourg having a go too) tomorrow. It will see a clash of the titans in Dinah Rose QC taking on Clare Montgomery QC. If two giants of advocacy collide - do they both disappear into a rhetorical black hole? We will find out tomorrow. BTW, I was once DRQC's mini-pupil.

More interestingly, there is a female Scottish judge sitting in the Privy Council, Lady Paton - as the second ever female Senator of the the College of Justice - is she the first female Scots judge to sit in the JCPC?

Banning Cash Payments for scrap metal....How is that going to be enforced?

2012-01-27T09:33:00.000Z

Talk about knee jerk legislation on the hoof and in vain....how will HMG police a criminal ban on cash being used in scrap yards?

The Secretary of State for the Home Department (Mrs Theresa May): I am announcing today our intention to lay a Government amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill to tackle metal theft.

The Government consider that legislation is the only sustainable, long-term solution to the growing menace of metal theft. There is an urgent need to make stealing metal less attractive to criminals, and tackling the stolen metal market will act as a significant deterrent.

That is why I can confirm that we will lay amendments to:

create a new criminal offence to prohibit cash payments to purchase scrap metal; and

significantly increase the fines for all offences under the existing Scrap Metal Dealers Act 1964 that regulates the scrap metal recycling industry.

26 Jan 2012 : Column 26WS

Cash transactions for scrap metal are often completed without any proof of personal identification or proof that the individual legitimately owns the metal being sold. This leads to anonymous, low-risk transactions for those individuals who steal metal. In addition, the widespread use of cash facilitates poor record keeping by the metal recycling industry and can support tax evasion activity.

Today’s announcement follows the commitment outlined in the national infrastructure plan published in November 2011 when the Government announced £5 million to establish a dedicated metal theft taskforce to enhance law enforcement activity in this area.

These amendments are part of our wider attempts to tackle all stages in the illegal trading of stolen scrap metal, and we shall bring forward further measures in due course.

The Legal Aid Debate....

2012-01-25T08:48:00.002Z

I have been following the Legal Aid debate in the Lords with interest. They are blessed with a bevy of QCs, Judges and other assorted sages in the law. I was particularly struck by a proposal to permit confiscated assets to be used to fund representation in criminal cases, rather than legal aid. QC after QC rose to tell of tales of representing fraudsters (and alleged fraudsters) in criminal trials being paid on legal aid, where part of their brief was to apply to unfreeze some of the restrained cash to pay school fees, but they could not actually get at that money to pay their own fees. They proposed that the Court would control the amount released from frozen cash to ensure that lawyers did not milk the funds; but all in all this method would clearly reduce the Legal Aid bill. Apparently the Treasury mandarins are worried that the lawyers would steal all the cash, which they would never see. But if the Treasury had to pay less in legal aid as a result and given that so much restrained cash goes un-forfeited (because of an acquittal or procedural mismanagement etc) it would seem that it is better if the Treasury saves on legal aid rather than the pipe dream of getting in lots of seized cash from criminals (£1.6 Billion is current un-recovered). HMG's pious Minister said that they were not comfortable with lawyers being paid with the suspected proceeds of crime - it seems it is far better for lawyers to be paid with the proceeds of hard earned tax instead - what utter nonsense! Let's hope some of the argument sticks and this change is made in the Commons.

Meanwhile the amendment which I flagged up here ended up as set out below (withdrawn to fight another day); it includes the flirtatious line about a distinguished QC, former wife of Sir Timothy Cassel QC (they had children called Bathsheba and Cosima) and born 1945. During her leadership of the Countryside Alliance against the fox hunting ban she said:
"I have had death threats. I stick them on the fridge. I think that's the best place for them."

Clinton-Davis is a solicitor born in 1928:

Lord Clinton-Davis: I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.

Amendment 82ZD (in substitution for Amendment 86)

Moved by Lord Thomas of Gresford

82ZD: Schedule 1, page 136, line 34, at end insert-

"Appeals where court or tribunal certifies complex point etc.

(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that-

(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),

(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or

(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).

(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph."

Lord Thomas of Gresford: My Lords, the amendment deals with appeals where a court or tribunal certifies a complex point of law. The Judges' Council, in response to the original consultation document, stressed the importance of continued funding for competent lawyers in meritorious cases. The problem is to identify which are the meritorious cases. Its response stated:

"Appeals before the Court of Appeal or the Supreme Court have to get through a demanding permission filter, frequently involve issues of difficulty and importance and may lead to the laying down of binding principles of broad application-a fortiori in the case of 'second' appeals to the Court of Appeal, which are subject to even stricter criteria requiring the appeal to raise an important point of principle or practice or that there is some other compelling reason why the appeal should be heard. References to the European Court of Justice relate to a difficult area of law and are made only where the answer is unclear. In appeals and references of this nature, the court ought to be given all possible assistance through professional advocacy. There should be no further cut-back in the availability of legal aid for such cases. The possibility of applying under the funding scheme for excluded cases is not a satisfactory answer, both because the scheme will be very limited in scope and because the very process of applying under the scheme is bound to be complicated and dissuasive".

24 Jan 2012 : Column 971

Appeals are not only about the individual case before the court or tribunal; they often change the law, and make new law and law that is binding on later cases. There is a powerful public interest that both sides of the case are properly argued. It is the court or tribunal itself that is best placed to decide whether to trigger the operation of an appeal by issuing a certificate. The concept of exceptional funding under Clause 9 is excessively narrow in its scope, and I will be returning to that later. This amendment ensures that such cases remain, where appropriate, within the scope of legal aid and would retain the possibility of legal aid when the appeal is on a matter of significant wider public interest or there is some other compelling reason why legal services are required. I beg to move.

6 pm

Lord Carlile of Berriew: My Lords, I too support the amendment. When my noble and learned friend responds to this debate, it would be helpful if he would explain the relationship between the types of issues covered in the amendment and Clause 9. If he and the Government believe that there is nothing in the amendment that is not in fact or in law covered by Clause 9, it would be helpful if he would say so. I respectfully suggest that it would be better for these very important decisions to be made by judges and that we should avoid a potentially unnecessary layer of satellite litigation through judicial review of decisions of the director of civil legal aid. I suggest to my noble and learned friend that it is better that judges rather than an official determine whether there should be legal aid.

I remind my noble and learned friend that the paradigm of the English claimant is the man on the Clapham omnibus, who may be coming to court with a very ordinary dispute. My noble and learned friend will recall, as a distinguished Scots lawyer, that one of the most important cases ever decided in the civil law in the United Kingdom related to a snail in a Scottish ginger beer bottle. Another of the most important cases in the common law arose from a carbolic smoke ball. One of the most important, if not the most important, cases in administrative law arose from the administrative arrangements for a cinema-a picture house-in Wednesbury in the Midlands. More recently, an extremely important case that led to a change in policy arose from a disabled person seeking guidance on her end-of-life care. That last one might have passed the test which I understand to be applied by Clause 9, but I believe that all four of those cases should in appropriate, means-tested circumstances be the recipients of legal aid and that the means test should be applied rather lightly if the outcome of the case has great importance in setting new precedent and our understanding of the law. In brief, I suggest to my noble and learned friend that the court is better placed than the director of civil legal aid to determine the importance of an issue in the panoply of precedent that the courts set.

Lord Pannick: My Lords, I, too, support the amendment for all the reasons set out by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. I add one further factor. The criteria set out

24 Jan 2012 : Column 972
in this amendment are so tightly defined that it is highly probable that in any case falling within those criteria, where one party is not legally represented, the tribunal or the court-particularly the Appeal Court-would consider it wholly inappropriate to determine the issue before it without requesting the Attorney-General to appoint what used to be known as an amicus curiae, now friend of the court, at public expense. It is much more desirable, with that public expense, for the individual to be represented rather than to have his or her case presented through a friend of the court. Again, the saving is entirely illusory.

Baroness Mallalieu: I also support the amendment. Who do the Government propose should prepare and conduct appeals that fall into the category of either complexity or public importance in the absence of legal aid, but which will not make the cut under Clause 9 exceptional?

Unless damages are involved, conditional fee agreements will not begin to kick in. If there are qualified solicitors or barristers who have the time, the inclination and the financial ability to take on pro bono cases of complexity, I suspect that they are pretty thin on the ground and, following on from what the noble and learned Lord, Lord Goldsmith, said in the previous debate, that they are likely to be even more scarce after the cuts kick in. I am afraid that the answer will be: either pay or do it yourself. Having been at the Bar for 40 years, I would not wish to prepare my own appeal, and certainly not if it was complex.

First, I would have to discover the relevant forms-whatever they are-which must be completed and filed with strict time limits. It may be necessary to obtain transcripts of the earlier proceedings, but from where, how and who will pay for them? Bundles of exhibits correctly paginated and in sufficient numbers would have to be prepared and lodged with the court and the other side. Written skeleton arguments would have to be prepared and exchanged, and a list of authorities-the reports of the earlier cases that will be relied on-will have to be compiled and given to the court and the other side as well.

How on earth is a lay man supposed to do all that without proper advice and legal assistance, let alone argue a legal case of complexity in court? An "exceptional case" must surely include consideration of the interests of justice. Proposed new sub-paragraph (1)(c) in the amendment, which permits legal services where the court or the tribunal certifies that there is some,

aid, brings in just that factor that is currently missing.

If the amendment or at the very least something like it does not go into the ultimate legislation, I fear that the result will be: if you cannot afford to pay, you cannot appeal. That undermines one of our essential constitutional principles of equality before the law, which I cannot believe the noble and learned Lord or the Government wish.

Lord Clinton-Davis: I have learned so much today. I did not know that the noble Baroness, Lady Mallalieu, had been at the Bar for 40 years. I always thought she was 40.

24 Jan 2012 : Column 973

The amendment is self-evidently sensible. I hope that the Government will realise that it is important for the public that the points made here are expressed. We are talking about,

I hope that the Minister will say that on reflection the amendment will be embodied in the provisions that the Government are prepared to make on Report or later. I thank the noble Lord for raising these important issues, which are critical not only for lawyers but for the public.

Lord Bach: My Lords, I will be very brief. We on the Front Bench support the amendment unreservedly. I will make three points. Given that these cases address complex or novel points of law, they are clearly beyond the ability of the average litigant in person-and, if she is to be believed, even of my noble friend Lady Mallalieu, although I am not sure about that.

Secondly, such cases are the lifeblood of our legal system. They give it its unique character and ensure that it is kept in line with evolving social mores and values, and with extranational jurisprudential developments. They are a crucial part of our legal system. Thirdly, a failure to guarantee that such cases can be heard would be a complete failure of any regime purporting to protect the needs of the average litigant.

Perhaps I may repeat the question asked by the noble Lord, Lord Carlile. Are these cases covered by the exceptional cases regime in Clause 9? If they are, under the terms of the amendment, I would be very grateful if the noble and learned Lord would say that on the record. I will go no further than to thank the noble Lord, Lord Thomas of Gresford, for the very thoughtfully crafted amendment that we commend to the House.

Lord Wallace of Tankerness: My Lords, I, too, thank my noble friend Lord Thomas of Gresford for tabling the amendment. It would bring into scope any appeal to the Upper Tribunal and appellate courts where a relevant court or tribunal has certified, for example, that the case raises a complex issue of law or is a matter of significant wider public interest. It is important to note that this would broaden the existing scope of civil legal aid, as well as bring into scope a range of cases that we intend no longer to fund. The amendment extends the legal aid scheme beyond its existing bounds by, for example, allowing legal aid-albeit subject to the relevant court certifying one of the matters listed in the amendment-for advocacy in the Upper Tribunal on welfare benefit matters, or on business cases before the Supreme Court.

Further, Clause 9 ensures that in any individual case where it would be a breach of Article 6 of the European Convention on Human Rights to withhold legal aid, funding will be provided. Both my noble friend Lord Carlile and the noble Lord, Lord Bach, asked whether the amendment merely replicated what was in Clause 9. I will put on the record that it does not, in specific respects that I will explain later. It is the case, however, that in deciding whether the withholding

24 Jan 2012 : Column 974
of legal aid would breach Article 6, the director of legal aid casework must consider the complexity of the issues and the importance of the matter at stake. This addresses the point made by the noble Baroness, Lady Mallalieu. The ability of the applicant to present their own case is a relevant factor, along with other relevant circumstances. Therefore, in cases where Article 6 is engaged, the exceptional funding scheme we have proposed will include taking into consideration the complexity of each individual case considered under Clause 9.

6.15 pm

As my noble friend Lord Carlile indicated, each case will depend on its own facts and circumstances. I remember my first ever tort lecture, when the lecturer suggested that the snail in the ginger beer bottle was perhaps one of the cleaner things in a Paisley café in 1929. As my noble and learned friend Lord Fraser of Carmyllie has just reminded me, it was never proved whether the snail ever existed. Cases of Wednesbury judicial review, as we discussed on numerous occasions today, fall within Schedule 1.

One area of distinction is that the amendment also seeks to bring into scope any case which is certified to be of "significant wider public interest". Under the current legal aid scheme there is a rule that allows any excluded case-other than a business case-to be brought back into scope if it is of significant wider public interest. It is not our intention to include such a rule in the future scheme created by the Bill. This is because we do not consider that the presence of this factor should constitute an automatic entitlement to publicly funded legal services, particularly where an area of law has been excluded because it is considered insufficiently important to merit public funding, because there are alternative sources of funding or because the procedure is simple enough that litigants can present their case without assistance.

Nevertheless, I reassure the Committee that funding for tribunals and appeals is not being withdrawn altogether. We have focused our limited resources on the highest priority cases in the Upper Tribunal and appellate courts, such as those concerning detained mental patients, special educational needs appeals, and discrimination. Where a case is in scope, it is our intention that the public interest will continue to be a relevant feature in the merits criteria created under Clause 10, thus allowing this to be taken into account in the funding decision.

I will combine that with my comments about the extent of Clause 9, which we will shortly debate. I have indicated that it does not cover everything, but clearly there is an overlap where the director of legal aid casework will be able to consider issues such as the complexity of a case and other factors. With that assurance, I hope that my noble friend will withdraw his amendment.

Lord Thomas of Gresford: My Lords, I do not intend to go into the complexities of proof in a Scottish court; it has always seemed something of a haar to me. I am grateful to all noble Lords who spoke in the debate. I will stress two points from the speeches

24 Jan 2012 : Column 975
that we heard. My noble friend Lord Carlile pointed out that under Clause 9 it is the director of legal aid who will determine whether, in exceptional cases, legal aid should be granted. I cannot imagine any director who would have in his mind the full scope of the issues that can arise in appeals against decisions from tribunals and courts. I would have thought that the Government would have welcomed, as a safeguard, the fact that civil legal services will not be provided unless there is a certificate expressly stating why legal aid should be granted in the case. That will be an advantage, rather than leaving it to the director of legal aid, whose decision may well be challenged by way of judicial review. Surely satellite litigation is the one thing that we want to avoid when we pass the Bill.

The other point that I will stress follows from what was said by the noble Baroness, Lady Mallalieu, who outlined all the steps that must be taken in every appeal: the complicated preparation of schedules, skeleton arguments and documents that some of us are familiar with. As she said, it would be quite impossible for any individual to conduct an appeal, given all the background work that has to be done. As the noble Lord, Lord Pannick, said, the amendment is tightly drawn. I am disappointed with the response of my noble and learned friend. I hope that I will be able to pursue the matter with him afterwards and come back to it at a later stage. I beg leave to withdraw the amendment.

Amendment 82ZD, in substitution for Amendment 86, withdrawn.

Amendments 82A to 82D not moved.

Amendments 83 to 86 had been retabled as Amendments 82ZA to 82ZD.

Amendments 87 to 89 not moved.

Major change to constitution.....who noticed? Who cared?

2012-01-24T21:16:00.002Z

I was wondering about the Fixed Term Parliaments Bill and have only just noticed that it received Royal Assent on 15th Sept last year....strange how nobody takes any notice of big changes to our constitution, which pass through Parliament unnoticed. I posted on this many moons ago here. Essentially the ancient power of the Crown to dissolve Parliament (usually de facto exercised by the PM) at will has been replaced by an automatic dissolution and general election every 5 years. Far more interesting than this however are the provisions pursuant to which HMG can be brought down and replaced on a general election. The convention was that HMG falls on a vote of no confidence by a simple majority of the House of Commons. Not any more - now should there be such a vote, the Act gives HMG 14 days in which to avoid a dissolution by obtaining a vote of confidence by simple majority. Alternatively a dissolution can be obtained by a vote for an early election securing 2/3rds of total votes of all MPSs. In other words the power to topple HMG by a simple majority vote in the H of C has been abolished and HMG has secured the protection of having to loose two votes of simple majority in a 2 week period or loose the confidence of 2/3rds of the Commons. Why does HMG need such protection? Because HMG cannot relly on a Commons majority vested in the party discipline of a single party. In other words this coalition Govt has protected itself with this Act. This is an exceptional example of our need for an entrenched constitution - the elected dictatorship has embedded itself with this Act without the need to bother itself with a constitutional amendment such as you might find in most liberal democracies. It always surprising me that such self-interested violence can be done to our constitutional arrangements without anybody really noticing or caring.......

An interesting idea....

2012-01-17T14:30:00.000Z

I see that these four fine Lords (Save for Phillips (a solicitor) they are Lib Dem QCs and Dep High Court Judges - Carlile is the HMG reviewer of terrorism legislation and MacDonald the former DPP and Helena Kennedy's first pupil and soon to be Warden of Wadham College, Oxford. Thomas is married to Baroness Walmsley) want to amend the Legal Aid Bill passing nosily through the House of Lords to effectively give the senior appellate courts and tribunals the power to force civil legal aid to be granted to a party to a complex issue of law or fact that is of significant wider public interest or where there is some other compelling reason why legal aid should be granted. Imagine the fun such judges would have granting legal aid in controversial cases against HMG where without it, the executive would not be properly challenged by competent lawyers....and for that reason alone, this does not have a cat in the proverbial's chance of success....still an excellent idea....

LORD THOMAS OF GRESFORD
LORD CARLILE OF BERRIEW
LORD PHILLIPS OF SUDBURY
LORD MACDONALD OF RIVER GLAVEN

[In substitution for Amendment 86]

82ZD

Page 136, line 34, at end insert—“Appeals where court or tribunal certifies complex point etc.

(1) Civil legal services provided in relation to an appeal to the Upper Tribunal, the Senior Courts or the Supreme Court where the relevant court or tribunal certifies that—

(a) the appeal raises a complex issue of law or an issue of fact of exceptional complexity (in which case the certificate must identify the issue),

(b) the matter is one of significant wider public interest (in which case the certificate must identify that interest), or

(c) there is some other compelling reason why the proper conduct of the appeal requires the provision of civil legal services (in which case the certificate must set out the reason).

(2) Rules of procedure applicable to the relevant court or tribunal may make provision about certificates under this paragraph.

New Doctors' disciplinary tribunal gets Chair

2012-01-16T19:59:00.000Z

Following Dame Janet's powerful Shipman Report, HMG removed the GMC's adjudicatory powers over Doctors and vested them in a new state Tribunal- The Office of the Health Professions Adjudicator (OHPA) was born but never got going; it was put to the flames in the bonfire of the quangos last year and the GMC had to fill the breach with a new in- house quango of its own - The Medical Professions Tribunal Service was created - MPTS - funded by Drs rather than tax payers.....well now it has a Chairman -HHJ David Pearl- an academic (Professor at UEA) rather than lawyer - he has led the Immigration Appeal Tribunal as we'll as the Care Standards Tribunal whilst moonlighting on the Judical Appointments Comission as well as the Judicial College. MPTS gets started this Summer with promises of smaller, shorter and more efficient Tribunals...which the GMC has been promising for decades....fingers crossed......Read about it all here.

Update on Chief Coroner...

2012-01-12T08:21:00.000Z

I think what Mr Djanogly meant to say was "I don't have a clue about when the Chief Coroner will be appointed, ask the Lord Chief Justice...." Still his answers don't appear to encourage the notion that we will have a CC any time soon......

Chief Coroner

Robert Flello: To ask the Secretary of State for Justice by what date he expects to appoint the Chief Coroner. [87471]

Mr Djanogly: The Lord Chief Justice is responsible for appointing the chief coroner under schedule 8 to the Coroners and Justice Act 2009. We are continuing to discuss the matter, including timescales, with the Lord Chief Justice.

Mr Jim Murphy: To ask the Secretary of State for Justice what recent discussions he has had with (a) his ministerial colleagues and (b) the senior judiciary on the appointment of a Chief Coroner. [87686]

Mr Djanogly: The Lord Chancellor and Secretary of State for Justice, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), and I have discussed the appointment of a Chief Coroner with the Lord Chief Justice in recent weeks. We have not, however, had any discussions with ministerial colleagues on this issue.

Mr Jim Murphy: To ask the Secretary of State for Justice (1) when he expects (a) to announce the appointment of a Chief Coroner and (b) the Chief Coroner to take-up his or her post; [87688]

(2) when he plans to announce who will be appointed as a Chief Coroner. [87764]

Mr Djanogly: The Lord Chief Justice is responsible for appointing the Chief Coroner under schedule 8 to the Coroners and Justice Act 2009. We are continuing to discuss this matter, including timescales, with the Lord Chief Justice.

20 Dec 2011 : Column 1128W

Mr Jim Murphy: To ask the Secretary of State for Justice whether he plans to meet bereavement organisations to discuss the appointment of a Chief Coroner; and when such meetings will take place. [87690]

Mr Djanogly: Ministry of Justice officials plan to meet bereavement organisations in the new year to discuss implementation of the coroner reforms in the Coroners and Justice Act 2009. However, under schedule 8 to the Act, the appointment of the Chief Coroner is a matter for the Lord Chief Justice, following consultation with the Lord Chancellor.

Mr Jim Murphy: To ask the Secretary of State for Justice whether he proposes that the Chief Coroner will be a High Court judge. [87767]

Mr Djanogly: Under Schedule 8 to the Coroners and Justice Act 2009 the Chief Coroner must be either a High Court judge or a Circuit judge. Appoin

You heard it here first on Scottish referendum.....and Lord Sumption hears his first case....Wales gets a seal and Greenwich a new coat of arms...

2012-01-10T09:02:00.000Z

I understand that HMG is to publish its legal advice on why only the Westminster Parliament can call or grant powers to call a referendum on Scottish independence....you read all about that here first....see my post on that question back in May

Plus Lord Sumption is going to hear his first case in the Supreme Court tomorrow - Petroleo Brasileiro S.A. (Respondent) v E.N.E. Kos 1 Limited (Appellant) which is something very boring about ships and charterparties. He sits with Phillips P, Walker, Mance and Clarke JJSC. Watch legal history (first direct appointee from the Bar to the UK's highest court since 1949) being made here from 10.30am . Lord Sumption was sworn into the SCUK on 11th January - http://www.supremecourt.gov.uk/docs/pr_1201.pdf.

Lord Sumption was appointed to the Privy Council (he will also sit in its Judicial Committee) at a m eeting on 14th December, when HMQ also handed over the new Welsh Seal to the First Minister of Wales so that he has something to seal new Acts of the National Assembly when Wales starts making its own primary legislation pursuant to Government of Wales Act 2006, a move which brings to an end the time honoured term - the law of England and Wales.

Plus the soon to be Royal Borough of Greenwich has got a new coat of arms.....will the excitement never end....

National Security and Civil Claims

2012-01-06T16:00:00.000Z

Lots of people are suing HMG alleging loss and damage at the hands of operatives who usually operate in conditions of total secrecy. HMG can only defend itself from such allegations by relying on evidence which cannot see the light of day. Public interest immunity is not the answer as that is a shield against permitting inspection of otherwise relevant evidence; it is not a means of permitting HMG to use classified evidence to protect itself (and all the tax payers who have to foot the damages bill). Following the Supreme Court judgment in Al Rawi, C(losed) M(aterial) P(rocedures) cannot be used in civil damages cases. CMPs are used in certain immigration and control order (now TPIM) cases to disclose secret evidence to Special Advocates (SAs) who represent HMG's opponents alongside their own representatives but without being able to take instructions once they have seen the sensitive material. The main role of the SA is to persuade the Court and HMG to disclose as much as possible of the sensitive material to HMG's opponent, usually by way of redaction and gisting. The SA can also test and challenge the closed material, but without the opponent's instructions or input. Such procedures have been held to be article 6 compliant ( A v United Kingdom (2009) 49 EHRR 29). Without them HMG only has the blunt instruments of being unable to defend itself and settling claims which may have no merit (not fair on tax payers) or applying to strike out claims on the basis that they involve issues which are so secret they are effectively non-justicable (not fair on claimants with real claims)(see Carnduff v Rock [2001] EWCA Civ 680, [2001] 1 WLR 1786). Closed Material Procedures are not ideal, but it is hard to see what the alternative is if greater injustice is to be avoided. One reform I would welcome is for SAs to be able to communicate with those who represent HMG's opponents, save for permitting them to disclose classified materials, the current total ban on communication seems a little too draconian (and indeed does not apply in Employment Tribunals). In the US and in some proceedings in the UK, the opponent's legal teams have been appropriately vetted, permitted access to secret material and have then then promised not to disclose it to their own clients. This puts them in an invidious position, but some think it better than having Special Advocates. HMG is consulting about all of this and the Special Advocates themselves have also responded in critical terms. The consultation closes today and we await the results....

Stop Press

2011-12-20T16:09:00.002Z

Joining Lord Sumption will also be Lord Reed to replace Lord Rodger and Lord Carnwarth to replace Lord Brown....it has been announced today...both of whom I tipped for appointment here...http://ofinteresttolwayers.blogspot.com/2011/08/have-been-busyin-supreme-court.html

Tuesday 20 December 2011

New Justices of the Supreme Court

The Queen has been pleased to approve the appointment of the Rt Hon Lord Reed as a Justice of the Supreme Court following the death of the Rt Hon Lord Rodger of Earlsferry with effect from a date to be agreed with the President of the Court.

The Queen has also been pleased to approve the appointment of The Rt Hon Lord Justice Carnwath CVO, Senior President of Tribunals as a Justice of the Supreme Court upon the retirement of The Rt Hon the Lord Brown of Eaton-under-Heywood in April 2012 with effect from a date to be agreed with the President of the Court.
Note for Editors

Biographical Notes

Lord Reed has been a senior judge in Scotland for 13 years being a Senator of the College of Justice since 1998. He was admitted to the Faculty of Advocates in July 1983 where he did a wide range of civil work. He was appointed to the Bench in 1998. He was promoted to the Inner House in January 2008. During 1999 he sat as an ad hoc judge of the European Court of Human Rights, and has sat in both the Judicial Committee of the Privy Council and, more recently, as an Acting Judge of the Supreme Court.

Lord Justice Carnwath has, since 2007 been the Senior President of Tribunals and has led the planning an implementation of the reforms of the tribunal system following the Leggatt report. He has sat as a Lord Justice in the Court of Appeal (Civil) since 2002, was a judge of the Chancery Division from 1994 to 2002 during which time (1998 to 2002) he was Chairman of the Law Commission.

Lord Sumption

2011-12-20T16:00:00.003Z

Have been busy with a Supreme Court case again and therefore not blogging.... Speaking of which, their latest member to be, Lord to be Sumption has been giving us an early insight into his views in a lecture he gave recently in the Inns of Court - seems he wants to judges to be honest about when they are being political, indeed seems to suggest that they should not be political at all. Wants to get back to good old fashioned black letter law......looks like his judicial career is going to be interesting...lecture here.

Merry Christmas!

CHIEF CORONER REPRIEVED...

2011-11-23T19:37:00.001Z

Of all the results of the bonfire of the quangos, the strangest abolition was to be that of the office of Chief Coroner, which had been created by statute, but had not been filled. The Royal British Legion has managed to persuade the Lord Chancellor to perform a partial volte face by restoring the office as a leader and standard setter for Coroners, but Mr Clarke will not bring into force the proposed role as court of appeal against decisions made by Coroners (judicial review and AG's fiat will remain the appeal route). Having appeared in front of a constellation of different Coroners, I can personally testify to the urgent need to introduce measures to standardise service and standards. At the moment it is a ridiculous post code lottery, with some Coroners investigating particular types of death, whilst others ignore whole swathes of deaths which need an inquest. Well done RBL!

A Riot of Sentencing Approved by CACD...

2011-10-18T19:52:00.004+01:00

The Criminal Division of the Court of Appeal (LCJ, Thomas P and Leveson LJ) has handed down a composite judgment on appeals from sentences handed down during the August Riots. In my view the LCJ has got this spot on. Law does not exist in a vacuum - it must respond to events as they unfold and guidelines and principles must be adapted to the needs of society - many find this notion unpalatable and say that it is rule by unelected judges who should sentence according to set formulae established by Parliament -but in a democracy these hard judgments in individual cases are vested in the independent judiciary -they are there to sentence on behalf of society and they have the hard task of working out what society requires by way of protection and deterrent in each individual case- it is not perfect but it is our tried and tested system and I have yet to hear of a viable alternative. This an excellent judgment which will stand the test of time:

"... The level of lawlessness was utterly shocking and wholly inexcusable...... the imposition of severe sentences, intended to provide both punishment and deterrence, must follow. It is very simple. Those who deliberately participate in disturbances of this magnitude, causing injury and damage and fear to even the most stout‐hearted of citizens, and who individually commit further crimes during the course of the riots are committing aggravated crimes. They must be punished accordingly, and the sentences should be designed to deter others from similar criminal activity....... the context hugely aggravates the seriousness of each individual offence. None of these crimes was committed in isolation. Eight of them were intrinsic to or arose from the widespread lawlessness and two more were intended to contribute to or aggravate it at a time when the disorders were at their most disruptive and alarming.... The reality is that the offenders were deriving support and comfort and encouragement from being together with other offenders, and offering comfort support and encouragement to the offenders around them. Perhaps, too, the sheer numbers involved may have led some of the offenders to believe that they were untouchable and would escape detection. That leads us to address the suggestion that perhaps this level of public disorder should be treated as "mindless" activity. It was undoubtedly stupid and irresponsible and dangerous. However none of these appeals involves children or young offenders (where different sentencing considerations arise) nor indeed offenders with significant mental health problems. None of the offenders before us was "mindless". The actions were deliberate, and each knew exactly what he (and in one case, she) was doing."

Did the Earth move?

2011-10-06T18:47:00.000+01:00

So apparently from today Waitrose can invest in my mean lean Barrister legal machine. Save that I am quite happy in independent practice offering my low overhead relatively cheap service to the public.....so actually I don't care. Alternative Business Structures (ABS) have arrived. I am looking forward to my first instructions from M&S or perhaps if I am lucky, even Fortnam and Masons, I suspect my Chief Clerk would not allow Tesco inside the building. ASDA and Lidl would not get inside the Temple Bar. Sainsburys might just be allowed to sit on the second best chairs in the waiting room. What we will certainly not being doing is shacking up with solicitors....over the collective dead bodies of the bewigged sister/brotherhood....bring on Ocado Law.....let the good times roll.....

Eviction grounds to be widened?

2011-09-19T20:20:00.002+01:00

Further to my post on obtaining possession of properties occupied by social tenants convicted of rioting offences - it would seem that the Government do not think the power wide or draconian enough (see extract from Lords Hansard below) - it appears the current ground which requires the conviction to relate to an offence committed in, or in the locality of, the dwelling-house - might be widened to include offences committed anywhere? This would seem far to wide and possibly contrary to article 8???

Public Disorder: Eviction from Social Housing

Question

11.16 am

Asked By Lord Dubs

To ask Her Majesty's Government what discussions they have had with local authorities about the eviction from social housing of families with members involved in rioting or looting.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, during and since the riots, a number of discussions have taken place between Ministers and local authorities, and eviction was one of many issues discussed. The Department for Communities and Local Government is currently consulting on proposals to extend the existing discretionary ground for possession for anti-social behaviour to include tenants or family members who have been convicted of the sort of criminality witnessed during the recent riots, wherever that criminality took place.

Pulling no punches

2011-09-08T20:53:00.001+01:00

Sir William Gage has pulled no punches re Baha Mousa - nor should he:

My judgment is that they constituted an appalling episode of serious, gratuitous violence on civilians, which resulted in the death of one man and injuries to others. They represented a very serious breach of discipline by a number of members of 1 QLR.

Evicting those convicted of Riot Crimes from social housing?

2011-08-11T16:38:00.000+01:00

If the landlord is a registered social landlord and the tenancy is assured - then its Ground 14, Schedule 2, Housing Act 1988. If the landlord is a local authority and the tenancy is secure - then its Ground 2, Schedule 2, Housing Act 1985 - both Grounds 2 and 14 say this -

The tenant or a person residing in or visiting the dwelling-house—

(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b)has been convicted of—

(i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)an [indictable] offence committed in, or in the locality of, the dwelling-house.

The Court then has to go on to consider whether it is reasonable to make a possession order and must take into account the following:

The court must consider, in particular—

(a)the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b)any continuing effect the nuisance or annoyance is likely to have on such persons;

(c)the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

If any public sector employees are convicted of Riot Crimes....

2011-08-11T09:27:00.000+01:00

Any public sector employee convicted of an offence arising out of the recent public disturbances should be considered for dismissal or some other disciplinary sanction (a fair procedure of investigation and disciplinary process must be followed - see the ACAS Code). Our teachers and youth workers are in loco parentis, medical professionals have duties to save our lives and civil servants have duties to uphold and enforce the law. Any of these convicted of offences of dishonesty or public order cannot be trusted in these important public positions of trust. Any convicted should face the prospect of potential penalties at work. Dismissal for misconduct can include dismissal for offences committed away from work: in Singh v London Country Bus Services Ltd [1976] IRLR 176 the EAT held that ‘conduct’ in this context: “does not have to be something which occurs in the course of the actual work, or at the actual place of work, or even be connected with the work, so long as in some respect or other it affects the employee, or could be thought to be likely to affect the employee, when he is doing his work”. Or the dismissal could be for for some other substantial reason - in the case of Harper v NCB [1980] IRLR 260 the EAT that confirmed that a reason is substantial if “the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and that he genuinely believed this to be fair” so long as the reason is not “whimsical or capricious…which no person of ordinary sense would entertain…” (para 8).

The raw end of the Rule of Law

2011-08-10T08:26:00.000+01:00

There is an very unfashionable philosophical school of jurisprudence which sees Law as merely the rhetorical expression of the power of the state. Law merely sets down in words the directives of the State, telling the citizens what to do and what not to do. Usually the words are enough - people comprehend them (or at least the basics) and obey them. Sometimes, like Monday night in London and last night in the West Midlands and North West, the words are not enough. There is required a physical manifestation of the words to enforce their meaning. We rely on the Police forces of this country to provide that physical manifestation - to enforce the law. Sometimes that physical manifestration has to get very physical - if people are smashing windows, stealing goods, setting fires and threatening and taking life then the Police have to appear, intervene and apprehend. If the perpetrators fight back and resist arrest, then the Police must move in and fight back. Many lawyers prefer to see Law as merely existing in the abstract (positivism is the posh name for this) and like to think that it has nothing to do with a police officer in riot gear banging a rioting teenager on the head in the lawful exercise of his power to remedy breaches of the peace. The events of this week (so far) are one of those thankfully rare reminders that at the end of the day, after all of the pontificating in the Supreme Court is over, the ultimate expression of the rule of law is its raw unmitigated enforcement, by force, when that rule is being flouted by so many and in such a flagrant way. The preservation of a democracy sometimes, thankfully rarely in this country, requires the use of force - the quaint historic expression in our tradition is the preservation of the Queen's peace. I should like to thank every one of the sworn Constables who kept the peace outside my front door last night and who protected my family from harm. That they should have to intervene with the use of force against citizens is regrettable, but essential - and notwithstanding that sometimes some their number fail us, they should receive our overwhelming support.

MEMO TO COBRA

2011-08-09T09:27:00.000+01:00

The Legal Authority to deploy troops on to the streets of London tonight..........

Civil Contingencies Act 2004 -

Section 19

(1) In this Part “emergency” means—

(a) an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region,

................

(2) For the purposes of subsection (1)(a) an event or situation threatens damage to human welfare only if it involves, causes or may cause—

(a) loss of human life,

(b) human illness or injury,

(d) damage to property,

(e) disruption of a supply of money, food, water, energy or fuel,

(f) disruption of a system of communication,

(g) disruption of facilities for transport, or

.....................

20 Power to make emergency regulations

(1) Her Majesty may by Order in Council make emergency regulations if satisfied that the conditions in section 21 are satisfied.

(2) A senior Minister of the Crown may make emergency regulations if satisfied—

(a) that the conditions in section 21 are satisfied, and

(b) that it would not be possible, without serious delay, to arrange for an Order in Council under subsection (1).

(3) In this Part “senior Minister of the Crown” means—

(a) the First Lord of the Treasury (the Prime Minister),

(b) any of Her Majesty's Principal Secretaries of State, and

(4) In this Part “serious delay” means a delay that might—

(a) cause serious damage, or

(b) seriously obstruct the prevention, control or mitigation of serious damage.

21 Conditions for making emergency regulations

(1) This section specifies the conditions mentioned in section 20.

(2) The first condition is that an emergency has occurred, is occurring or is about to occur.

(3) The second condition is that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency.

(4) The third condition is that the need for provision referred to in subsection (3) is urgent.

22 Scope of emergency regulations

(1) Emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made.

(2) In particular, emergency regulations may make any provision which the person making the regulations is satisfied is appropriate for the purpose of—

.............

(l) enable the Defence Council to authorise the deployment of Her Majesty's armed forces;

O! say can you see by the dawn’s early light,

2011-08-05T20:12:00.000+01:00

O, to live in a country with a constitution which permits this sort of farce...........

Yes, Congress Is in Session (for a Few Seconds, Anyway)

Judicial Merrygoround

2011-08-02T08:37:00.000+01:00

OK - are you sitting comfortably:

Sir Anthony May has retired and been replaced by Sir John Thomas as P of the QB (Hallett LJ to be his deputy). Lord Wilson has left the C of A to go to the Supreme Court. Smith LJ, Sedley LJ and Jacob LJ have all retired (all will be sadly missed). They have therefore been replaced in the C of A by Rafferty J (QB), McFarlane J (Fam D), Davis J (QB), Lewison J (Chan D) and Kitchen J (Chan D). In addition David Steele J has retired. Those vacancies have been filled by Andrew Popplewell QC, Robert Hildyard QC, Charles Haddon-Cave QC, HHJ Globe QC and Rabinder Singh QC - albeit there does not seem to be a replacement for McFarlane J in the Fam D (perhaps this will follow)......

Have been busy...in the Supreme Court

2011-08-01T16:55:00.000+01:00

Not been posting for a while - have been a little detained in the Supreme Court. Absolutely beautiful building with superb facilities -

Talking of which, I see that there are now two vacancies - a Scottish gap created by the untimely death of Lord Rodger and an anticipatory position vacant pending the retirement of Lord Brown.

I understand that Lord Reed, of the First Dvision of the Inner House of the Court of Session is tipped to fill the Scots slot (he has been sitting temporarily in the SC for Lord Roger - most particularly in the fascinating pleural plaques appeal -) and has replaced Lord Roger as Visitor of Balliol College, Oxford.

As to the Lord Brown vacancy - how about Lady Justice Arden - about time for another Lady and would produce the first husband (Lord Mance) and wife team in the SC (or H of L)? Or perhpas Mummery LJ (employment), Carnwarth LJ (as a reward for looking after Tribunals) or perhaps Moses LJ for a bit of public law experience?

Or will they go for another outsider - Lord Faulks QC?

LOTS OF LEGAL AID CHANGES ANNOUNCED TODAY

2011-06-21T17:19:00.000+01:00

There are lots of legal aid changes announced today:

http://www.justice.gov.uk/downloads/consultations/legal-aid-reform-government-response.pdf

Will review in detail at some later date -

The one which immediately struck me was this one:

Having considered the responses to the consultation questions on
alternative sources of funding, the Government has decided to introduce
a Supplementary Legal Aid Scheme, under which 25% of all damages
successfully claimed, other than damages for future care and loss, in
cases funded by legal aid will be recovered by the legal aid fund. This will
include cases funded through the exceptional funding mechanism.

So in essence the Legal Aid position will mirror the new Contingent Fee position (which was announced in March when HMG accepted Jackson LJ's proposals) - whereby instead of the Defendant paying the lawyers, then the lawyers will be paid out of damages - in both cases fixed at 25% - with a 10% rise in general damages to compensate.

So both Contingent fee funded and legally aided lawyers will have a vested interest in increasing the level of damages because damages will now equal profit for lawyers. How far we have fallen.......

Sentencing

2011-06-21T13:40:00.000+01:00

The current dilemma over sentencing does not seem to come to much if analysed calmly and away from the tabloids -

Plead guilty at the earliest opportunity at the moment and 10 years might become 6. Released after 1/2 time and 10 becomes 3. Change to a 50% discount and that 3 becomes 2.5. So not reforming means an extra 6 months in jail or circa £7,000 for the tax payer?

What's the big deal?

I agree with Sir Stephen Sedley

2011-06-14T21:25:00.000+01:00

I rarely agree with Sir Stephen Sedley (Sedley LJ retired and sadly will not grace the SCUK) but he is spot on in his recent essay in the LRB - available free here - he is writing on superinjunctions - I particularly liked his parting shot -

The naming of Goodwin and Giggs is on a different plane from ministerial briefings against judges, inappropriate as these are, because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit.

MP thinks that Judges legislate...

2011-06-08T08:27:00.001+01:00

I was listening last night to the Commons debate on the second reading of the Terrorism Prevention and Investigative Measures Bill which is set to replace Control Orders with TPIMS - which are in fact more or less just like Control Orders but with a different name.

During the debate the MP named below said the following which I quote from Hansard:

8.37 pm

Mr Dominic Raab (Esher and Walton) (Con)

Control orders are not just of dwindling relevance; they constitute a distraction from robust law enforcement and are actually a negative. That is why I welcome the Home Secretary's renewed focus on the Prevent strategy. I would welcome further still measures to strengthen our deportation capacity, which has been undermined by judicial legislation resulting from article 8 of the European convention on human rights, via the Human Rights Act 1998. The massively inflated rights to family life now allow the majority of deportation orders to be frustrated. That has nothing to do with article 3 torture grounds, which I would stand up for

Have relations between Parliament and the Judges become so poisoned that this chap thinks that there really is such a thing as 'judicial legislation' in the UK which Judges make in order to actively undermine the Government's implementation of a deportation regime set out in an Act of Parliament. At least he acknowledges that this 'judicial legislation' is 'via' the HRA 1998.

Mr Raab - what you actually meant is that Parliament in 1998 compelled judges to apply article 8 of the European Court of Human Rights to the law of England and Wales, including that bit of the law which sets out when we can deport terrorists.

The application of article 8 is not judicial legislation - it is merely what judges do - are compelled to do - applying the law as made by Parliament to the facts of a case.

I am also unaware of any case where a judge has refused to deport a terrorist on article 8 grounds - this is mainly because article 8 rights to a family life can be infringed where the infringement (the deportation) is proportionate to the legitimate aim of the security of the UK. So even if the Judges have been legislating - they have 'passed' no law which means that terrorists can hide behind article 8.

True it is that terrorists can hide behind article 3 - we cannot deport them back to countries which will torture them, but then article 3 is an absolute right - I am glad that Mr Raab finds it in himself to stand up for terrorists not being tortured......

But who is going to stand up for the judges and explain to the average MP, that they, MPs, make law in a Sovereign Parliament - and Judges just apply it - if Judges interpret Acts of Parliament or introduce common law rules which MPs don't like - they (with the House of Lords) can pass an Act which better expresses the democratic will (see the Compensation Act and its overturning of a Supreme Court judgment etc.).....Mr Raab, please read a constitutional textbook before you next malign HM Judges....

Scots get tartans in a twist about SCUK....

2011-06-01T09:37:00.000+01:00

The Scottish Government (as it now likes to call itself notwithstanding its statutory title) is getting all upset about the Supreme Court hearing human rights appeals in Scottish criminal cases. Article 19 of the Act of Union stated that after the Union the Scottish court system would be the same as before the Union. Before the Union in civil cases, the final court of appeal in Scotland was the independent Parliament of Scotland. There was no such right of appeal in criminal matters and the High Court of Justiciary was the final court in all Scottish criminal cases. In 1876, in the case of Mackintosh v. Lord Advocate (1876) 2 App. Cas. 41 the House of Lords (finally) decided that it did not have jurisdiction to hear a Scottish criminal appeal because whilst it had inherited the jurisdiction of the old pre-Union Scottish Parliament in civil matters, it had inherited nothing in respect of criminal matters. This has now been recognised in Westminster pre-devolution legislation which still applies - section 124(2) of the Criminal Procedure (Scotland) Act 1995.

The Scotland Act 1998 limited the legislative competence of the Scottish Parliament and the executive competence of the Scottish Ministers and the Lord Advocate in many ways, including to only legislating and acting in accordance with the Convention rights protected by HRA 1998. If complaint were made that the Parliament or the Executive had acted beyond their competence - a so called Devolution issue or minute - then the final court of appeal to determine such issues was the Judicial Committee of the Privy Council.

This body was chosen, instead of the House of Lords, precisely because it was recognised that one side wind of this new jurisdiction would be Scottish criminal cases being finally determined on human rights grounds in London. It would cause political difficulty and constitutional problems if the House of Lords were to be vested with the final constitutional power to arbitrate on devolutional issues in Scottish criminal cases where the Law Lords had hitherto had no jurisdiction. Plus the JCPC's flexible membership could be used to add Scottish Judges to the court to make it look less like English Judges deciding Scottish cases. The JCPC heard a succession of Scottish criminal human rights appeals in this manner until the foundation of the new Supreme Court.

At this stage some bright spark had the brilliant idea to transfer the JCPC's devolution jurisdiction to the Supreme Court. And this is where the error leading to the current complaints from Scotland occurred. We now have the position of a Court which inherited its jurisdiction from the House of Lords hearing cases which the House of Lords could not have heard - because of the historical and political sensitivity. The Schedule 6 devolution minute/issue jurisdiction should have remained with the JCPC in order to preserve the nicecities (and to have allowed more Scottish Judges to have sat on cases - see Lord Kirkwood sitting with Lords Hope and Clyde in the JCPC in 2000 in this case).

The JCPC and Supreme Court usually use the same judges - but the JCPC's position outside the hierarchy of the English Legal System, allows it to be presented as less of an affront to Scotland's ancient independent legal system. Such presentational issues matter and indeed the recent decision by the SCUK in Fraser has shown how upset the Scots can get when presentationally it looks like an English Court is usurping independence of the Scots judiciary (notwithstanding Lord Hope's and Lord Roger's (and indeed Lord Kerr's) presence on the Court which decided Fraser). The jurisdiction should have stayed with the JCPC, I suspect it is now too late to turn back the clock.....

The main point is that our current constitutional arrangements are an absolute historical and asymmetrical mess and the sooner we have a written and rational Constitution - the better....

SCOTTISH INDEPENDENCE IS NOT A MATTER FOR THE SCOTTISH PARLIAMENT

2011-05-10T10:23:00.000+01:00

Before Alex Salmond gets too excited he should recall that there are only two ways in which Scotland can obtain independence - UDI or an Act of the Westminster Parliament. The Union between England and Scotland is a reserved matter under the Scotland Act 1998 and the Scottish Parliament cannot pass an Act severing the Union (not least because the Union was created by an Act of the Westminster Parliament). Some might argue that a referendum of the whole UK population would be politically necessary before Westminster could pass such an Act.

Mr Salmond's referendum would only authorise him to open negotiations for such an Act to be passed by the UK Parliament (which would probably also be a Treaty between the two new states) and it would not automatically lead to independence (save for UDI, which would seem unlikely and would also breach international law and would probably lead to Scotland finding it difficult to join the EU, especially if Catalonia thought it could do likewise). Once such terms for independence were agreed with the UK Government, especially relating to how much they would loose in subsidy, defence, foreign affairs, exports, oil revenues, gold reserves etc. etc. etc. it may well be that independence would not look quite so rosy.......

Schedule 5, Scotland Act 1998

The following aspects of the constitution are reserved matters, that is—

(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,

(c)the Parliament of the United Kingdom,

(d)the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,

(e)the continued existence of the Court of Session as a civil court of first instance and of appeal

Should a Coroner's Jury be permitted to indict?

2011-05-05T22:29:00.000+01:00

A Coroner's Jury is the last remnant of the Grand Jury, the men of the County who used to report what crimes had been commited in the local area, since the last time the King's Justices visited on circuit. Still used widely in the USA, but abolished here in 1933 (1984 in Nova Scotia!) prosecutors would have to convince the Grand Jury that there was sufficient evidence to indict the proposed defendant, before a trial could take place (now replaced by committal proceeding or 'sending the case to the Crown Court'). In the case of a death, it was for the Coroner's Jury to decide whether or not someone should face an indictment (a true bill) for an unlawful killing. Coroner's Juries lost this power in 1977 and now they cannot frame their verdict so as to blame any named person for the death. Hence the Tomlinson Jury could not name PC Harwood. Frankly (and I have done many jury inquests) I have long thought that the whole system, even with the improvements since the introduction of the Article 2 Middleton style inquest, is a waste of time. The most which can result from an Inquest is (a) a critical report from the Coroner, which can be ignored (although must be responded to by the public bodies concerned) (b) the gathering of useful evidence for other proceedings and (c) some form of closure or catharsis for the family. The Coroner's inquest does not guarantee a prosecution being launched or civil compensation. I recognise that it is a form of investigation into a death and that positive things often come out of an inquest - but to what real tangible end?

In the Tomlinson case, a jury found beyond reasonable doubt that a Police Constable had unlawfully killed a citizen. They were directed by a Senior Old Bailey Criminal Judge. Usually when a jury, directed by an Old Bailey Judge, return a verdict that somebody has been killed, beyond reasonable doubt, the defendant usually goes to prison. It seems to me that to make Coroner's Inquests meaningful, in every case where an indictment might be on the cards, the Coroner should summon a jury and direct them to consider not only their verdict but also whether anybody should be indicted for the death - this could include corporate manslaughter or death by dangerous driving as well as the usual homicide offences. The CPS could subsequently drop the prosecution if not convinced by the indictment or if a witness dropped out (although they would have to tread carefully so as not to seem to be dismissive of the Jury's decision to indict) and the Coroner would be able to direct the jury not to consider an indictment where there is insufficient evidence, just as a Coroner can direct that certain verdicts are not available on the evidence. At least the Jury's hard work would be worthwhile, would result in something tangible and would give the family some hope that justice might be served in the future.

If the Police had already opened an criminal investigation - then I do not suggest that an inquest should supplant the usual criminal investigative and trial process - it should only be in cases where there has been no criminal investigation that the Jury has the power to indict. But then a full inquest following a criminal trial is very very rare. The Jury's power would only be useful where the CPS or Police had neglected to act or where the inquest had uncovered new evidence (happens more often than you might think where an alert and efficient Coroner is on the case). Often the HSE use inquests to flush out evidence to use in health and safety prosecutions - I suspect the jury's power to indict would be very useful to the HSE, likewise for the police in road traffic cases. If an indictment was open to the jury, I would permit the advocates to address the jury and the Coroner on the facts and on whether an indictment should be preferred (presently and bizarrely - advocates can only ask questions of witnesses (which must not imply guilt or blame) and address the Coroner on the form of verdict to leave to the jury - or if sitting without a jury, which he or she should consider).

Inquests were to be improved by the Coroners and Justice Act 2009, but the Coalition has shelved most of that - most tragically the new office of Chief Coroner is going to be burnt in the bonfire of the quangos (HHJ Thornton QC of the Tomlinson inquest was going to have the job) unless the House of Lords can force a re-think - it is high time that a centralising force gives some focus and consistency to Coronial work and lets hope that the Coalition changes its mind......

Tomorrow sees the 7/7 Inquest Verdict................

Announced - Sumption and Wilson to go to Supreme Court

2011-05-05T08:41:00.000+01:00

After months of speculation Downing Street has made the announcement. There has been unfair criticism of Sumption delaying his appointment until he has completed his professional commitments; barristers do not return cases (indeed cannot) to fit in with their judicial careers and Sumption is right to complete his professional commitments before he takes his appointment. His clients are entitled to their lawyer of choice and to hold Sumption to his professional duty. Note that Lord Collins is going to fill in in retirement whilst the Court waits for Lord Sumption (the first Barrister to straight go to the UK's highest court in 62 years - Viscount Radcliffe (as he ended his career) was the last.)

Wilson LJ's appointment is also to be welcomed - he has handed down many excellent judgments and not just in his core field of family law.

The Queen has been pleased to approve the appointment of the Right Honourable Sir Nicholas Allan Roy Wilson as a Justice of the Supreme Court with effect from 26 May 2011 following the retirement of The Right Honourable The Lord Saville of Newdigate in October 2010.

The Queen has also been pleased to approve the appointment of Jonathan Philip Chadwick Sumption OBE, QC as a Justice of the Supreme Court following the retirement of Lord Collins of Mapesbury in May 2011 with effect from a date to be agreed with the President of the Court.

Biographical Notes

Lord Justice Nicholas Allan Roy Wilson (65) was called to the Bar (Inner Temple) in 1967 and took Silk in 1987. He was appointed as a Recorder in 1987 and was made a Bencher in 1993. He was appointed to the High Court (Family Division) in 1993 and to the Court of Appeal in 2005.

Lord Justice Wilson was knighted in 1993.

Jonathan Philip Chadwick Sumption OBE, QC (62) was called to the Bar (Inner Temple) in 1975 and took Silk in 1986. He was appointed as a Deputy High Court Judge in 1992 and served as a Recorder between 1993 and 2001. He was then appointed as a Judge of the Courts of Appeal of Jersey and Guernsey in 1995.

Additional Note for Editors

Jonathan Sumption OBE, QC will take up the appointment as soon as his existing professional commitments are completed, on a date to be agreed with the President of the Supreme Court.

Following his retirement Lord Collins of Mapesbury will sit as an additional Judge of the Supreme Court.

THE CPS SHOULD HANG ITS HEAD IN SHAME

2011-05-03T16:07:00.001+01:00

The CPS should have charged PC Simon Harwood - see here.

& now they certainly should...... well done that jury....the lamp that shows that freedom lives....

Ian Tomlinson unlawfully killed, inquest finds

UPDATE - CPS to review their decision not to prosecute following jury's verdict - http://blog.cps.gov.uk/2011/05/cps-to-review-decision-on-charges-over-death-of-ian-tomlinson.html

Good, make it quick and make it just.....

I fully support this campaign...

2011-05-03T15:06:00.002+01:00

See here - http://www.no2av-yes2pr.org/

HAPPY EASTER

2011-04-21T14:06:00.001+01:00

One day, a Government will bring into force the Easter Act 1928 and make it a fixed rather than movable feast: Section 1 says:

1 Date of Easter-day

Easter-day shall, in the calendar year next but one after the commencement of this Act and in all subsequent years, be the first Sunday after the second Saturday in April, and section three of the Calendar (New Style) Act 1750, the new calendar, tables and rules annexed to that Act, and section two of theCalendar Act 1751 are hereby amended and shall be read and construed accordingly, and, in particular, theCalendar (New Style) Act 1750 shall, as respects such calendar years as aforesaid, have effect as if in the “Rules to know when Moveable Feasts and Holy Days begin” contained in that Act, for the words “is always the first Sunday after the full moon which happens upon or next after the twenty-first day of March and if the full moon happens upon a Sunday, Easter Day is the Sunday after”, there shall be substituted the words “is always the first Sunday after the second Saturday in April”.

Perhaps the problem is that the Christian Churches have to be consulted before the change can be made:

This Act shall commence and come into operation on such date as may be fixed by Order of His Majesty in Council, provided that, before any such Order in Council is made, a draft thereof shall be laid before both Houses of Parliament, and the Order shall not be made unless both Houses by resolution approve the draft either without modification or with modifications to which both Houses agree, but upon such approval being given the order may be made in the form in which it has been so approved: Provided further that, before making such draft order, regard shall be had to any opinion officially expressed by any Church or other Christian body.

A schedule to the 1750 Act mentioned above is still in force and provides as follows:

EASTER-DAY, on which the rest depend, is always the first Sunday, after the full moon which happens upon or next after the twenty-first day of March, and if the full moon happens upon a Sunday, Easter Day is the Sunday after.

Odd that we remain governed by a religious law now 261 years old, which in fact makes our lives governed by the moon. High time HMG brought into force an Act of Parliament, now 83 year old, so that we might have the modern certainty of a fixed calendar, rather than the mystical whim of the lunar progress......

VERY INTERESTING JUDGMENT FROM SCOTLAND

2011-04-13T08:50:00.000+01:00

This judgment has everything -

Can Judges strike down Acts of the UK Parliament [May be, in extreme circumstances]
Can Judges strike down Acts of the Scottish Parliament at common law on judicial review [Yes, but only in the same limited circumstances as the High Court in London will permit judicial review of secondary legislation which has been actively approved by Parliament]
Will Judges be able to strike down Acts of the New Welsh Assembly in the same way [May be not, because of the way the legislation is drawn]

This all came up in a challenge by some very big insurance companies to the Damages (Asbestos-related Conditions) (Scotland) Act 2009. I used to get lots of cash for claimants suffering from asymptomatic pleural plaques after industrial/occupational asbestos exposure. Then the House of Lords in Rothwell decided that there was no actionable damage and brought the right to compensation to an end. Rothwell was an English private law case and not binding in Scotland, Thompsons, however, solicitors, who have carriage of many of these actions were perturbed that their clients and their costs were about to become unpaid in Scotland as well as in the rest of England and Wales. The UK Government declined to legislate to reverse Rothwell, presumably the insurers won the lobbying competition with the Unions.

Well in Scotland, it would seem that the Unions won the lobbying battle and the Scottish Minsters decided to pre-empt Rothwell being imported into Scots Private Law and legislate to make clear that in Scottish Law, pleural plaques are recoverable damage. The extent to which the Scottish Ministers surrendered to Thompsons and the Unions is quite startling. The judgment gives away that Thompsons drafted and promoted the Bill. Indeed the judgment contains a letter from a Scottish Civil Servant which appears to show the Scottish Ministers firmly in league with the Unions against the insurers - see paragraph 22. The Unions won and the Bill was passed. The insurers are not happy.

So they started a legal challenge that wound up before the First Division of the Inner House of the Court of Session, before the Lord President (Lord Hamilton) and Lords Eassie and Hardie (think Court of Appeal in London, with LCJ and MR sitting). Lots of novel questions arose such as those set out above - plus interesting questions about whether the insurers were 'victims' for the purposes of a human rights challenge because theoretically it is their insureds (the employers) who have to pay damages and they just indemnify. It was held that they were victims. The Court also went on to hold that requiring a insurance company to so indemnify by reason of an Act of the Scottish Parliament was an interference with property rights which needed to be justified under Article 1, Protocol 1 ECHR. They did find the Act so justified and so, in the end, the challenge failed. A very very interesting judgment nonetheless and I would be surprised if it did not end up in the Supreme Court (of the United Kingdom).

This judgment also flashes up yet another example of the asymmetry of devolution - Scottish claimants can get damages for pleural plaques - English and Welsh (and probably also Northern Irish) claimants cannot. Quite what happens if your worked for a company and were exposed to asbestos in Scotland and England is beyond me......

VOTE NO TO AV

2011-04-08T17:05:00.001+01:00

I favour PR voting systems. But not AV. Voting means saying that you want Mr X to represent you. It does not mean saying that you think that Miss Y is second best and Mr Z third best, and may be if Mr X does not get enough votes, you would be more or less happy with your second or third choice. That is not voting - that is equivocation. I would prefer the AMS (Additional Member) system used in GLA elections - that way you keep your local member for your constituency but also have list members to make it proportional. I have never been impressed with the argument that you end up with 2 classes of MP - once they get to Westminster they would all blend in and the list and constituency MPs could share the constituency work. At least in that system you make one positive choice for your local representative and then one positive party-political choice for a list candidate - job done - no need to elect second and third best candidates. So I'll be voting NO on 5th May.

Bogdanor has some interesting things to say here.

Expert Immunity from Civil Suit (save for defamation) abolished

2011-04-02T19:55:00.000+01:00

As trailed here, the Supreme Court (5-2) has abolished the immunity enjoyed by expert witnesses from civil proceedings (save for defamation). This brings experts into line with advocates, who lost their immunity in 2002. Expert witnesses will now need insurance to cover them for negligence occurring during the course of their work as an expert. This is, despite the chilling effect, especially in the family courts which this might give rise to. I suspect the nature of the forensic process will still provide a high degree of protection to experts as it does to advocates, but the veil has been lifted and a new cause of mulplicity of actions and a further threat to the finality of ligation rears its ugly head.....so if you loose all your appeals and Europe can't help, you can now sue your expert as well as your lawyers..no end of fun...

Will Civil Justice ever be the same again?

2011-03-29T22:39:00.001+01:00

Gosh - it has been a big day for civil justice - Jackson comes to fruition?

Good bye success fee recoverability, will now be paid for by Claimants.
Hello contingency fees with an increase of 10% in general damages to fund them.
Good bye PI Claimants having to pay a successful defendant's costs and therefore good bye to ATE insurance and premiums.

[see here on the above]

Hello to an increase in the costs which can be recovered by Litigants in Person [long overdue!]
Good bye (probably) to the £5,000 small claim limit - which dramatically could be increased to £15,000? So very limited costs recovery in all cases up to £15,000 (so no recoverable expert evidence costs in those cases? Will not apply to PI and housing disrepair) [Bit uneasy about this - £15,000 seems a bit high for informal justice in the hands of a deputy district judge in a busy back to back list]
Hello to a new High Court lower limit of £100,000 [High Court is already short of work - but then it seems that High Court judges are going to sit in the county court to take up the slack? See below]
Hello to a new Chancery county court upper limit of £350,000 [This is very very long overdue - there is a comedy limit of £30,000 at present]
Good bye to the local county court - a national county court, merged with Tribunals? [Shame, but understandable]
Hello to more High Court Judges sitting in the County Court.[Presumably because the new limit will mean even less work for them? See above]
Hello to more enforced mediation [bad idea - see here]
Good bye to face to face small claims hearings - more paper and telephone hearings [I shudder at this, too Continental for my tastes]

Should expert witnesses be immune from suit?

2011-03-28T08:31:00.000+01:00

I don't think so - they do their work for reward and if they fail in their duties of reasonable care (primarily to the Court and secondarily to their instructing party (ies)) then they should pay for the consequences accordingly. Any fear which might put them off coming forward is countered by the fear which makes sure they do their best and comply with their duties. There was an interesting discussion of this when the Court of Appeal ruled that expert witnesses have no immunity from disciplinary action - see General Medical Council and Professor Sir Roy Meadow - the Supreme Court are set to answer the immunity from civil suit point on Wednesday (Jones v Kaney)....what this space...

JUDGES JUST DECIDE THINGS

2011-03-16T08:30:00.000Z

Another attempt to explain and rationalise the law of causation has been made by the Supreme Court. Sienkiewicz v Greif. I agree with Lady Hale: I pity the practitioners as well as the academics who have to make sense of our judgments in difficult cases.

I utterly applaud this further nail in the coffin of those trying to defend mesothelioma actions and hopefully they will now take Lord Brown's hint:

mesothelioma claims must now be considered from the defendant's standpoint a lost cause

There was also some interesting comment about how judges, sometimes, just have decide questions of fact, in very difficult circumstances and must just do their best, and find certainty in the swamp of scientific uncertainty. Sometimes they need to put their finger in the air, look to their consciences and just decide: (Lady Hale)

But as a fact finder, how can one ignore these statistical associations? Fact-finding judges are told that they must judge a conflict of oral evidence against "the overall probabilities" coupled with the objective facts and contemporaneous documentation: see, for example, Robert Goff LJ in Armagas Ltd v Mundogas SA (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, 57. Millions of pounds may depend upon their decision. Yet judges do not define what they mean by "the overall probabilities" other than their own particular hunches about human behaviour. Surely statistical associations are at least as valuable as hunches about human behaviour, especially when the judges are so unrepresentative of the population that their hunches may well be unreliable? Why should what a (always middle-aged and usually middle class and male) judge thinks probable in any given situation be thought more helpful than well-researched statistical associations in deciding where the overall probabilities lie? As it seems to me, both have a place. Finding facts is a difficult and under-studied exercise. But I would guess that it is not conducted on wholly scientific lines. Most judges will put everything into the mix before deciding which account is more likely than not. As long as they correctly direct themselves that statistical probabilities do not prove a case, any more than their own views about the overall probabilities will do so, their findings will be safe.

Judge Sues Newspaper for Defamation

2011-03-09T22:39:00.000Z

I find the idea that a Judge can sue for defamation in respect of a matter arising out of his office, to be very odd indeed (see here). Judges are properly immune from suit from such actions, and it would seem to me that they should not use a tort that cannot be used against them. If a newspaper defames a judge, then he should take it on the chin, it is part of being in the public eye -it is part of properly being subject to public scrutiny - if the defamation is credible, then the OJC will investigate and the judge can respond through the proper process and a successful outcome for the judge - the judge being cleared - will be announced publicly - I am not sure what more defamation proceedings can achieve - save for money? I can see how in an extreme case, an injunction might be necessary to protect the judge, but that would surely be on extreme facts, probably also amounting to contempt of court actionable and restrainable at the suit of the Attorney General. I am just not sure a judge should take matters into his own hands and sue at private law for his own benefit? Perhaps the LCJ will issue guidance.

Wow

2011-03-03T10:34:00.002Z

You may recall the Trafigura case. Allegations were made of exporting oil waste to Ivory Coast and causing personal injury to the local population. Leigh Day Solicitors sued on behalf of 29,614 claimants and Trafigura settled for £30M. MPs complained they were being gagged by the High Court etc.

Leigh Day then put in a costs bill - £104,707,772.72. That figure includes success fees for both solicitors and counsel of 100%, and an ATE premium of £9 million. Wow. Trafigura itself had spent a mere £14M.

The costs bill, surprisingly is being contested and the Senior Costs Judge has been answering some preliminary questions such as -

Do the Claimants' costs have the appearance of being disproportionate?

He has answered that one - Yes

We await a further assessment to see how much will be shaved off this historic and extradordinary bill?

Putting in a bill which is 3 1/2 times bigger than the sum recovered just about tells you all you need to know about success fees and ATE. And tells you why Jackson LJ is right. Roll on his reforms....

Comment in the Lawyer Magazine here.

MEDIATION

2011-02-27T19:10:00.000Z

Mediation cannot replace Court proceedings. It remains the bizarre policy of those who allocate Judges to Courts, to force all civil practitioners to first sit trying crime. In the case of a QC in my own Chambers, this involved him doing his first criminal case in 30 years in the Crown Court (trying it). On his first day of sitting at an East London Crown Court, as tradition requires, a senior member of his own Chambers and the most senior silk present that day at Court gave short speeches of introduction to the Bench. The criminal silk had read the new judge's barrister CV and assured him that there would be no place for his special skills as a mediator at this particular Crown Court. Sometimes mediation just does not and cannot help. Sometimes the State and/or private parties come into such fierce and direct conflict that only a jury's and/or judge's, binding determination can bring an end to the dispute. That is why we have courts and tribunals - to solve private disputes and to adjudicate between the State and the citizen. Mediation involves neither adjudication nor determination - it requires the parties to find their own resolution - with meditative assistance from a qualified practitioner. I have represented parties in commercial, employment, neighbours and matrimonial mediations. Some have worked and some have not. It is pretty clear which parties need a nudge on the path to settlement and which have dug themselves in so hard and deep that only a judge can sort them out and impose a solution. Compulsory mediation, such as the Government wishes to introduce into ancillary relief and employment disputes is a colossal mistake. Lots of cases obviously and utterly unsuitable to mediation will be forced and cajoled into the process - lots of time and money will be wasted. Many cases turn on legal arguments which cannot be resolved at mediation and many cases require extensive disclosure before mediation can be considered. I suspect that this will especially be the case with matrimonial financial matters because it is often the case that a Judge has to force the parties of the marriage to give full disclosure, before settlement takes place. Couples always hide assets - especially potential inheritances and foreign property to try and avoid these being taken into account in any settlement. Indeed insufficient disclosure can be ground for setting aside a settlement - I suspect many a premature but compulsory mediation settlement will be set aside on this ground if parties are forced to mediate before full disclosure is achieved. Then there are the mediations which all lawyers have been too - where everybody knows there is no prospect of settlement, but it is fun arguing about things for hours if not days at end - a new way of adding to the costs bill of inevitable litigation - in these circumstances, mediation actually inflates and not deflates lawyers' bills. My favourite is the vehement boundary dispute between neighbours - £100,000s of costs on both side - literally millimetres dividing the parties - lawyers and surveyors enjoying the whole futile exercise. Then someone suggests mediation and then very valuable time which could have been taken up with a Judge imposing a sensible solution, is taken up with both sides insulting each other in an crescendo which ends with them in separate rooms, unable to face each other. In other words, experience tells me that mediation is a good idea in many cases, but not all, and often it can be a litigation tactic to bleed the other side dry of costs and time, and should certainly not, ever, be compulsory.......

GOODBYE CLAMPING

2011-02-16T21:48:00.000Z

I was overjoyed over the announcement of the criminalisation of car-clamping. Now the operative clause is there for all to consider in the Public Reading of the Protection of Freedom Bill - clause 54. The public who have expressed their views to HMG so far have spotted the flaw in the Bill -

If you park beyond a barrier - raised or not- then you can still be clamped - so there'll be a boom in barrier sales then - at least the clause should require a big warning notice stuck on or about the barrier?

Still - it looks like this is going to become a reality at last - FREEDOM from clampers (where there is no barrier!)

WITHDRAWING FROM THE EUROPEAN CONVENTION ON HUMAN RIGHTS ALSO INVOLVES LEAVING THE EU

2011-02-10T14:03:00.001Z

We could withdraw from the Council of Europe and the European Convention on Human Rights, but it probably wouldn't do us much good because the EU itself is about to join the ECHR as a party - this was agreed as part of the Treaty of Lisbon (see below - now article 6 of what we used to call the Treaty of Rome): this will include a right to complain about ECJ judgments to the ECtHR and will fundamentally entrench the Convention into EU law, which is of course supreme in our legal system and which is a means by which Judges can ignore Acts of Parliament.

Human Rights as expressed in the European Convention and applied by the European Court of Human Rights are here to stay. The Govt lost the argument on prisoners' votes when it litigated it before the Court. The Court is not perfect and has some very inexperienced judges from jurisdictions without any domestic human rights code or incorporation of the Convention. It needs reform and it need proper resources. It also needs a greater respect of the 'margin of appreciation'. It does not however require abolition. We should work towards its improvement, rather than declaring war on its occasional good work.

Article 6

(ex Article 6 TEU)

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

Justice versus Cuts....More on Employment Tribunals

2011-01-28T09:27:00.000Z

Interestingly the press release I reviewed yesterday did not reveal the full story...there is more:

CIVIL PENALTIES - whenever a Tribunal awards compensation it will award 1/2 that sum again to be paid to the Treasury subject to a minimum of £100 and a Magistrates' Court maximum of £5,000. That is what we call a FINE - which usually is adjudged beyond reasonable doubt and with heightened procedural safeguards. The average award for unfair dismissal is apparently just short of £5,000 - now it will be £7,500, with £2,500 of that going to HMG. Why? These penalties will terrify business into settling - cheaper for the Tribunal Service who will not hear the claims plus to put it into the Consultation Paper's own words: "Penalties would be payable to the Exchequer, rather than the claimant, providing some element of recompense for the costs incurred to the system through the employer's failure to comply with their obligations....." It is so clearly all about saving money and little else, certainly not justice.... (What is actually quite amusing is that many loosing respondents before Employment Tribunals are public sector employers - so presumably this is just recycling money?)
Judicial power to strike out a claim without a hearing and of the Tribunal's own motion. This is going to be made article 6 compliant by permitting the disappointed claimant to apply to have the decision reviewed. Reference is made to the provision for this in the CPR - I would love to see how many District Judges have actually used this power - I think you would find that most District Judges think it is fairer to hold a hearing and give notice rather than to rely on the usually unrepresented claimant applying for a hearing after the event. But I suppose not having a hearing and not hearing both sides' oral submissions is cheaper.
The consultation paper tells us that the increase in the qualifying period for unfair dismissal will take 2.9 million employees out of the scope of the right and up to 4,700 claims out of the tribunal system. Cheaper but otherwise a travesty.
Removing lay members from the Employment Appeal Tribunal...I am in favour of this - I could never understand why there were lay members on a Tribunal solely concerned with errors of law.....

Good bye Employment Tribunals....as we knew them...

2011-01-27T16:14:00.000Z

The Govt today has announced a consultation on the following proposed reforms to employment law and Employment Tribunals:

Giving businesses greater confidence to hire new staff by increasing the qualifying period for employees to be able to bring a claim for unfair dismissal from one to two years - this will also ultimately reduce the number of disputes that go to Employment Tribunals; indeed it will - equally it will remove a large swathe of employees from this fundamental right -funny how they don't mention that....

Encouraging parties to resolve disputes between themselves as early as possible – requiring all claims to be lodged with Acas (Advisory, Conciliation and Arbitration Service) in the first instance to allow pre-claim conciliation to be offered. This also includes introducing settlement offers to encourage parties to make reasonable offers of settlement to avoid Tribunal hearings and encouraging parties to consider other forms of early dispute resolution such as mediation; Happy to hear that Part 36 is going to be imported into Tribunal proceedings - but please don't foist claims upon ACAS - they can hardly cope as it is and are largely useless.

Speeding up the tribunal process – extending the jurisdictions where judges would sit alone to include unfair dismissal, introducing the use of legal officers to deal with certain case management functions and taking witness statements as read. This will result in Employment Tribunal resources being used more efficiently and allow cases to be listed and heard more quickly, saving time and cost; and Good bye to the industrial jury - I am strongly against this - I did an unfair dismissal case last week which was won by the employee on the majority vote of the lay members against the judge (who was far too case hardened and unfriendly to the employee). Legal Officers rather than judges undertaking case management, that'll work, not.

Tackling weak and vexatious claims – providing the Employment Tribunals with a range of more flexible case management powers so that weaker cases can be dealt with in a way that does not mean disproportionate costs for employers.Summary judgment does not work in the Employment Tribunal save where it is obvious that a claim is misconceived (and Tribunals already strike out those claims) - claimants should entitled to argue their cases fully before lay members rather than having their claims summarily judged at a premature stage by a judge alone...

There is also a commitment for the Ministry of Justice to consult separately on introducing fees for Employment Tribunal cases and appeals, to ensure that users contribute towards the cost of running the system. But they'll have to be fee remission to comply with article 6 ECHR -and for former dismissed employees on JSA, that will mean no fees?

The consultation document also includes proposals to:

Increase the provision of information – aimed at reducing speculative claims, this would require more information on the nature of the claim being made and to include a statement of loss. It will help parties to decide whether to agree a settlement offer or proceed to a Tribunal hearing;So scrap the current user friendly claim forms and introduce formal court pleadings - in other words back to the state of affairs the tribunals were designed to avoid.

Withdraw the payment of expenses - encouraging parties to either settle earlier or reduce the number of witnesses they call; and, Agreed

Introduce financial penalties for employers found to have breached rights – aimed at encouraging greater compliance from employers and thus a reduction in the number of Tribunal cases.Err....add civil or criminal penalties to the causes of action before the Tribunal? That'll help businesses no end???

Some good points, but otherwise another bad day for justice....still some money might be saved, so that's OK then....

Chilling effect of CFAs contrary to article 10

2011-01-18T20:58:00.000Z

You may recall that it was Naomi Campbell suing the Daily Mirror which resulted in a new cause of action of 'breach of privacy' based on Article 8 ECHR being introduced into English Law. After pursing the matter to the House of Lords Naomi obtained, in 2004, the grand sum of £3,500 in damages.

Her solicitors (Schillings) then claimed costs of £1,086, 295.47. In other words damages were 0.3% of costs. One reason for this astonishing amount was that her lawyers' acted on a CFA in the House of Lords - meaning that they charged around £280,000 in fees and a 100% uplift on top.

This has all wound up in the European Court of Human Rights where the Mirror Group has claimed that the recovery of the success fee against them is contrary to their Newspaper's article 10 right to freedom of expression.

Interestingly enough the European Court of Human Rights has today agreed with the Mirror:

In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters.

..... Accordingly, the Court finds that there has been a violation of Article 10 of the Convention.

Basically CFAs and success fess cannot be a justified interference with article 10 because they are not confined to cases where impecunious claimants would not otherwise have access to justice. Indeed Campbell herself was hardly impecunious.

The Court's conclusion is hardly surprising given that the Government is seeking to reform the funding of defamation proceedings for the reasons identified by the Court- see review here

The only fly in the ointment for the Government is that the Mirror is asking the European Court to order the UK Government to pay it the success fee (circa £300k) in compensation . The Court is to consider that at a later date - shame that the UK taxpayer may refund the fees of Messrs Schillings, which they, of course, will keep.......

32 Months for Edward Woollard

2011-01-13T20:59:00.000Z

Chaytor steals from the public and gets 18 months - Wollard dropped a fire extinguisher from height and gets 32 months - not sure what I think about that comparison? Is Wollard's offence worth almost twice Chaytor's? Perhaps they could set this conundrum at the next JSB sentencing course? One to think about.

18 months for David Chaytor

2011-01-09T21:13:00.000Z

I think it is quite a moment in English Legal History when a Member of Her Majesty's High Court of Parliament receives 18 months in custody for acts and omissions arising out of his elected office. MPs from time to time might murder, insider deal or get caught speeding - but to be convicted of stealing from tax payers in relation to monies paid in compensation of being an MP - such acts of public corruption are little more Continental in flavour and rare in the UK. Let's hope that the current trend is short lived......

New Year Honours for Lawyers....

2010-12-31T19:50:00.000Z

Happy New Year to all...especially to those lawyers and others involved with justice honoured by HM Queen...

Sir Stephen Laws KCB, QC, First Parliamentary Counsel.

Mike Watson CBE, Area manager, Central London Tribunals Service.

Colin Gibbs OBE of the CPS Counter-Terrorism section.

Ms Melanie Field OBE, Head, Discrimination Law Review, Government Equalities Office, midwife to the Equality Act 2010.

Miss Kathleen Bailey MBE, Formerly Judges' Lodgings manager and Chef, HM Courts Service, West Midlands, Ministry of Justice

Stephen Burrows MBE, Head of Security, Royal Courts of Justice, HM Courts Service, Ministry of Justice

SEASONAL GREETINGS TO ALL....

2010-12-19T20:41:00.000Z

TWO WEEKS OFF FOR ME...

THIS BLOG IS NOW OFFICIALLY ONE YEAR OLD!

THANKS FOR ALL YOUR SUPPORT

BACK IN 2011.

Mr Assange is Innocent until proven guilty.....

2010-12-17T09:38:00.000Z

I entirely support Charon QC on the Assange case.

The charges against him are serious and need to be tested in the justice system of Sweden. He is innocent until proven guilty.

Instead of speculating about his innocence or guilt, we should be applauding our own justice system which has provided him with swift access to justice at first instance and appellate level and has procured him his qualified liberty whilst ensuring, in so far as is fair and reasonable, that he does not become a fugitive. Few other legal systems would have performed this quickly or this fairly. Whatever pressure the US Govt have put on foreign states to apprehend Assange (if any, who actually knows?) it is clear that the Senior District Judge of the Metropolis and the Honourable Mr Justice Ouseley are as robustly independent of anybody and everybody as their judicial duty requires.

Frankly I am quite proud of our performance so far..................

Hurrah!!! Mayor's & City is saved.........

2010-12-15T14:15:00.000Z

Mayor's and City Court has been saved. It was due for abolition as part of the Coalition's Court Closure programme, but it has been saved.

The civil court which has sat for the longest will sit some more.

After demanding on this blog that Sir John Dyson be made a Lord and that happening yesterday, I am feeling chuffed that I made a plea to save M and CC and it has been saved today.

Previous blog entry here.

Press statement here.

See here for M and CC's history taken from Hansard in 1920 when the Bill which formed the modern Court was being debated:

Note that FE Smith (as Lord Birkenhead LC) said this:

I trust also, in the revival of the ancient glories of the old and famous Courts of the City of London

Here Here!

ARISE LORD DYSON...

2010-12-13T17:41:00.000Z

I know there are bigger things to think about in this turbulent world....but I have blogged before about the silliness of having some Supreme Court Justices being Lords and Ladies and some being Sirs and Dames. Well it has been announced that HM Queen has decided to confer courtesy Lords and Ladyships on all new Justices of the Supreme Court so that all will be equal and all will be as it should have been all along.......

Press notice here.

Previous posts here and here and here.

Oh dear - there will be emergency legislation to deal with this loop hole...

2010-12-08T16:17:00.000Z

The Supreme Court has held today that HMG cannot reclaim monies paid in error to benefit recipients. £1.1 Billion is apparently paid in error every year. Statute provides that the Secretary of State can recover overpayments where the claimant has misled him or has not made full disclosure - but not where it is his own mistake. Apparently in 2007-8 the S of S did threaten claimants in receipt of overpayments in error with a common law restitutionary claim and without actually suing anybody and just by making that threat, recovered £4 Million (should HMG now give that money back for demanding it without any legal justification?).

Anyway given the £1.1 Billion lost per year and the widening hole in the benefits budget, I suspect there will be an emergency legislative amendment to reverse this judgment in the not too distant future.....

Have been very busy.....

2010-12-08T08:57:00.000Z

Apologies - but that occupational hazard for the blogging-barrister arose - actually having to do some real work...have actually been in Court etc....will return to blogging soon....

Victory for Dame Heather (Round 1 at least)

2010-11-22T22:22:00.000Z

It is being reported that the Home Secretary has lost her judicial review (rarely a Divisional Court of 2 Court of Appeal judges - Maurice Kay and Stanley Burnton LJJ) against the decision of Dame Heather Hallett not to exclude the interested parties from hearings of her 7/7 inquest when sensitive intelligence evidence is to be heard. More when the judgment is released & the Home Secretary could of course, appeal to the Court of Appeal...................

ERMINE FOR THE LAWYERS

2010-11-19T18:06:00.000Z

Fiona Shackleton, solicitor to Royals and Beatles and of the Mills soaking to be a Tory Baroness.

David Gold, formerly senior partner Herbert Smith to join her as a Baron with Jonathan Marks QC of the family Bar joining the Noble Liberal Democrat benches.

I am sure the House of Lords will be enriched by them all, until the Dep PM turns it into a dreary Senate.....

Can a jury undermine the rule of law?

2010-11-17T21:09:00.000Z

Just listening to Moral Maze - Radio 4 and Melanie Phillips has just said that the jury in the Hawk jet case undermined the rule of law when it acquitted 4 women of criminal damage after they had smashed up the jets believing them to be destined for supply to Indonesia, who they thought would use them to commit alleged genocide in East Timor.

Whatever you think of their verdict, the Jury were not undermining the rule of law; they were carrying it out.

The jury is the lamp which shows that freedom lives (Lord Devlin). It is the jewel in the crown of our liberal state is the jury which can ignore the prosecution, ignore the Judge, ignore the law and acquit where they see fit. The jury is independent and truly free. Since Bushel’s Case (1670) 124 E.R. 1006, even if it is directed by a Judge to convict or acquit (and few lawyers believe it can be directed to do the former), it has the right to do as it sees fit. It can even return no verdict and be discharged. If the jury acquitted then it used to be the final word. That right has been eroded; as has the right to always have a jury in a trial on indictment. Juries are expensive. They are to some extent at risk (see previous post). This is not the time to be accusing them of undermining the rule of law; this is the time to demanding their preservation in defence of the rule of law.

What Duchy for happy couple?

2010-11-17T09:37:00.000Z

The constitutional anoraks are out in force wondering at what Royal Duchy, Prince and Princess William of Wales will get upon marriage. There is little precedent. There has not been a male second in line to the throne in William's position since Prince Albert Victor of Wales was the eldest son of the Prince of Wales (future Edward VII) and was created Duke of Clarence and Avondale from 1890 until his early death in 1892 (his brother became George V, after being Duke of York).

There are other past Royal Dukedoms for consideration:

Albany
Albemarle
Bedford
Cambridge
Connaught
Cumberland
Hereford
Kendal
Ross
Sussex
Windsor

Albany and Cumberland are probably out because they could be revived on the application of heirs whose predecessors had their royal titles suspended in 1919 for being on the wrong side of World War I.

The Duchy of Cambridge is popular with the pundits and many thought that the Earl of Wessex would get this title, they have therefore deduced that he did not get it because it was being saved for William.

The last Duke of Cambridge was the eldest son of the 7th son of George III and he died in 1904. He was C in C of the Army for 39 years and you can find his august statue in Whitehall:

Lots of extra work for Judges

2010-11-16T22:10:00.000Z

Have you noticed that lots of judges/QCs are being Coroners or chairing Public Inquires at the moment?

Sir William Gage is dealing with the Baha Mousa Inquiry
Sir Peter Gibson is going to make a start on the Torture Inquiry.
Dame Heather Hallett is doing the 7/7 Inquest
Judge Peter Thornton QC is going to be Assistant Deputy Coroner for Ian Tomlinson's Inquest.
Judge Baker QC finished the Potters Bar Inquest just before the Summer vacation.
Robert Francis QC is doing the Mid Staffs hospital inquiry
Sir Michael Redfern QC's Inquiry into human tissue use in the Nuclear industry reported today

The only judge/QC free zone is the Chilcot Inquiry - but that is another story......

BIG CIVIL FUNDING CHANGES

2010-11-15T18:50:00.002Z

The Govt has published a Green Paper on reforming legal funding. On the civil side legal aid will no longer be available for:

General Tort actions
Clinical negligence (general personal injury is already out of scope)
Consumer and general contract
Welfare benefits
Criminal injuries compensation
Debt where home not at risk
Insolvency
Education
Employment Appeal Tribunal (Employment Tribunals were always out of scope)
Housing save where home at risk, or homelessness appeals or disrepair
Cash Forfeiture under POCA

Plus expert evidence legal fees are to be re-structured and cut.

In lieu of legal aid there will be more CFAs plus the Govt is consulting on seizing the interest on solicitors' client accounts in order to build up an alternative legal aid fund.

This paper also heralds accepting Sir Rupert Jackson's reform to abolish the recoverability of success fees in CFAs (the uplift on fees - usually 100% - which the losing litigant has to pay) and instead to allow lawyers to steal up to 25% of damages recovered by a client to pay their fees (coupled with a 10% increase in general damages). These are the contingent fees beloved of American Plaintiff Trial Attorneys and which we traditionally considered to be criminally abhorrent and deeply unprofessional. But times are hard and needs must and now a Court of Appeal judge thinks they are faute de mieux. The Govt have realised that if they implement that reform it would actually be better to be on legal aid - because then you get to keep all your damages. So they say that the Govt would also seize 25% of damages from a legally aided litigant and use this to fund other legally aided cases - the Supplementary Legal Aid Scheme (SLAS which would need some public money to start up - the privatised system which would use private start up money (and which is promoted by the Bar) is called CLAF which is also being considered).

Sir Rupert also wants to abolish After The Event Insurance (ATE) - insurance that CFA funded litigants take out to pay the other side's costs when they loose. The problem is that the other side has to pay enormous premiums (£3.5 Million in one group action alone - which was paid by a government defendant - if the Govt had given the claimants legal aid then the Govt's costs on losing would have been much lower!) if they lose - Sir Rupert would cure this by ending 2 way cost shifting - the Defendant would usually pay their own costs if they won (if they lost they would continue to pay their own and the other side's costs). Interestingly enough The Green Paper also pushes Before the Event (BTE) insurance -which lots of people have bolted on to their household and motoring insurance policies and which seems to be being promoted as the middle-class alternative to legal aid and CFAs.

The Govt will still provide legal aid in exceptional cases in order to maintain article 2 and 6 compliance:

Significant public interest will be required for representation at inquests.

It's all here to read in full.

AMENDMENT TO MY LAST POST

2010-11-14T17:30:00.000Z

Thanks to Obiter J (see his excellent blog here - http://obiterj.blogspot.com/) I have discovered article 50 of the Treaty of EU which was introduced by the Lisbon Treaty and which provides a mechanism by which a member state may withdraw from the Union. Therefore I was wrong to suggest that a new treaty would be necessary for the UK to leave the EU - instead agreement would be necessary pursuant to article 50(2):

Article 50

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.