Sunday 26 February 2012

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

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.

Thursday 16 February 2012

Sedley v Sumption

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

Sunday 12 February 2012

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

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:


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!

Friday 10 February 2012

Police and Crime Commissioners?

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.

Tuesday 7 February 2012

Bar drops bombshell...

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.

Sunday 5 February 2012

The Royal Borough of Greenwich

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!

Thursday 2 February 2012

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?

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.