Tuesday 18 November 2014

David Holgate QC appointed High Court Judge...Goldring LJ retires but will carry on hearing Hillsborough Inquest

Joint Head of Landmark Chambers and oft sitting Deputy High Court Judge, David Holgate QC has been helped into the red judicial dressing gown....as they used to say.  He is to replace Ramsey J, although I would suspect not in the TCC, but in the Admin or Planning Court where he is more at home, although you never know......

Taking off the black and gold space suit is Goldring LJ who has retired from the C of A but not from being Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) for the purposes of the Hillsborough Inquest

The Queen has been pleased to approve the appointment of David John Holgate Esq QC to be a Justice of the High Court with effect from 1 December 2014 on the retirement of Mr Justice Ramsey.
The Lord Chief Justice will assign Mr Holgate to the Queen’s Bench Division.
Notes for editors
Mr Holgate, 58, was called to the Bar (M) in 1978 and took Silk in 1997. He was appointed a Recorder in 2002 and is approved to sit as a deputy High Court Judge.
Mr Justice Ramsey was called to the Bar (M) in 1979 and took Silk in 1992. He was appointed an Assistant Recorder in 1998, a Recorder in 2000 and a judge of the Queen’s Bench Division of the High Court in 2005.
Lord Justice Goldring retires as Lord Justice of Appeal with effect from 10 November 2014. His appointment as Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) will continue until the completion of the inquests into those who died as a result of the Hillsborough disaster.

Sunday 16 November 2014

Lord Sumption gets into his groove....

The Home Sec, with Foreign Off advice, keeps excluding a leader of the Iranian Opposition (Mrs Maryam Rajavi) living in France, from our shores, on the Royal Prerogative grounds of her presence not being conducive to the public good.  Some peers wanted to meet her in the UK and thus engaged their freedom of expression rights under art 10 ECHR by way of a JR of the decision to exclude: Which brought into question the old question of when Judges should question the Executive's superior and more constitutionally appropriate opinion on what is and what is not conducive to the public good,although with a new twist re how the old law applies when convention rights are engaged......

In direct contrast to Lord Kerr for the minority (of one), Lord Sumption encapsulates the traditional and in my view, correct if not only possible (if the current constitutional peace is to be kept and respected) response to such issues.

Neuberger P and Hale and Clarke JJSC follow him in the result, although Hale and Clarke in particularly make it clear that they morally support Kerr but feel forced on the law to follow Neuberger and Sumption.

This is just a flavour of an exceptionally sharp and well crafted judgment:

This gives rise to what is surely the central issue on this appeal. How is the court to determine where the balance lies if (i) it has no means of independently assessing the seriousness of the risks or the gravity of the consequences were they to materialise, and (ii) the Secretary of State is not shown to have committed any error of principle in her own assessment of them. For that is indeed the position in which the court finds itself. We are not in point of law bound to accept the factual assessment of the Foreign Office about the impact on our relations with Iran of admitting Mrs Rajavi to the United Kingdom. But if we reject it we must have a proper basis for doing so. In this case, there is none. There is no challenge to the primary facts. We have absolutely no evidential basis and no expertise with which to substitute our assessment of the risks to national security, public safety and the rights of others for that of the Foreign Office. We have only the material and the expertise to assess whether the Home Secretary has set about her task rationally, by reference to relevant matters and on the correct legal principle. Beyond that, in a case like this one, we would be substituting our own decision for that of the constitutional decision-maker without any proper ground for rejecting what she had done. All the recent jurisprudence of this court has rejected that as an inappropriate exercise for a court of review, even where Convention rights are engaged. Yet that appears to be where Lord Kerr’s analysis leads. “We do not ask whether the Secretary of State’s view is tenable”, he says (para 158), “but whether it is right.” Notwithstanding the respect which in earlier parts of his judgment Lord Kerr has acknowledged is due to the executive’s assessment of questions of
national security, this is in fact nothing less than a transfer to the courts of the constitutional function of the Home Secretary, in circumstances where the court is wholly incapable of performing it.

Friday 24 October 2014

New Senior Master of the Queen's Bench and Queen's Remebrancer

Barbara Janet Fontaine,  solicitor admitted in 1978 ( now aged 60) and the first ever female Master in the High Court (Deputy in 1997 and full time appointment in 2003) has been appointed Senior Master and Queen's Remembrancer.  Primarily the lead interlocutory judge of the Queen's Bench, but also the Central Authority for the civil proceedings liaison we conduct with other jurisdictions, Senior Master Fontaine will also hold the oldest judicial office in England and Wales ( now that the L Ch no longer sits judicially) first appointed in 1154, the Queen's Remembrancer is the last remaining Judge of the Court of Exchequer, abolished as a full time Court in 1882, but from time to time reconstituted to receive some ancient rents which the City of London render to the Crown for various bits of land, including the Manor of Southwark.  She will also preside over a trial of the coinage of the realm
to make sure it is being made to standard and will also appoint the Commissioners of the Forest of Dean.  She is the keeper of Mr Osborne's seal held as Chancellor of the Exchequer.  She will be responsible for the pricking of the non-Duchy of Lancaster/Cornwall sheriffs and will also present the City Sheriffs with their writs of approbation from the monarch as well as presenting the city dignitaries to the LCJ and other senior judges at the end of the Lord Mayor's Show.

Perhaps more realistically, she will set the tone and tempo for the administration of civil justice at the highest level and will have case management responsibility for the biggest QB cases each year, as well as responsibility for deciding applications for Group Litigation Orders sought in the QB.

Most of the Masters have a foible of two, the last Senior Master had some sort of wind organ in his room.  Eastman has a helicopter, Eyre had a keen interest in grammar and Leslie a very loud clock. Senior Master Turner was always taking phone calls in the midst of an advocate's submissions.I look forward to the new Senior Master's touch of individuality.  I note she has already installed herself in the famous room E101 (used to be where you went to see a High Court Judge in chambers in an emergency or to get bail, but now the room of the Senior Master) although today she is on official business:



Friday 24th October 2014

At Half Past 10

Official Business - Sitting
(Master Eastman sitting on behalf of Master Fontaine in Room E116)

At 2 o’clock

Official Business - Sitting
(Deputy Master Trent sitting on behalf of Master Fontaine in Room E106)

No doubt she may also make sure that her brethren and sister (Master McCloud) keep their diaries in order given the untimely demise of her immediate predecessor.

She also gets to wear this as modelled by her predecessor but one:

Sunday 21 September 2014

Former Chairman of the Bar replaces Field J

Maura McGowan QC of 2 Bedford Row and Lincoln House, criminal silk and former 2013 Chairman of the Bar Council has followed the well worn path from that representative office to the High Court Bench, QBD, replacing Field J.

Her closing speeches are a work of art according to the Legal 500 so let's hope the judgments follow suit.


Friday 19 September 2014



Not only have you saved the Union, but you have given us an historic opportunity to draft a new Written Constitution for the whole of the Union and its constituent parts.  The Prime Minister's speech this morning heralds too quick a process; we need to slow down, convene a Convention and work out a lasting and final settlement, in a written federal constitution, to lay down a fair mode of collective, rights, obligations and governance for the future.  Nothing less will do and nothing less will respect the feelings of the large numbers of people in Scotland and the rest of the Union who are now, but so rarely, politically engaged on these issues.  There are lots of things to think about, from the tinkering with the Westminster Parliament considered by the Mckay Comission to the full blow written Constitution as proposed by Richard Gordon QC and others.  I have written on this subject before.

We need to do some serious thinking, not least on what do about England, with her large population, economic dominance (at least in her South-Eastern regions) and inherent majority in the Westminster House of Commons.

But for now, we can sigh relief in abundance and rejoice that Article I of the Union of Scotland Act 1706 shall remain in force:

That the two Kingdoms of England and Scotland shall upon the First day of May which shall be in the year One thousand seven hundred and seven and for ever after be united into one Kingdom by the name of Great Britain..... 

Thursday 18 September 2014

That the two Kingdoms of England and Scotland shall ...and for ever after be united into one Kingdom ....

That the two Kingdoms of England and Scotland shall upon the First day of May which shall be in the year One thousand seven hundred and seven and for ever after be united into one Kingdom by the name of Great Britain And that the Ensigns Armorial of the said United Kingdom be such as Her Majesty shall appoint and the Crosses of St. George and St. Andrew be conjoyned in such manner as Her Majesty shall think fit and used in all Flags Banners Standards and Ensigns both at Sea and Land. 

Article 1 of the Union of Scotland Act 1706.

'For ever after', they said, and for ever after it should be.

Thursday 11 September 2014

New Judges for New Legal Year...

It's goodbye to Moses LJ, Rimer LJ, Goldring LJ and Maurice Kay LJ (VP of Civil Division)

and hello King LJ from the Fam D, Sales LJ from Ch D, and Bean and Burnett LJJ from the QBD.

and replacing them in the HIGH COURT, we welcome

commercial silk, leading pro bono champion and former COMBAR Chair from South Sq Chambers -  Robin Knowles CBE QC replacing Bean J and

Ian Dove QC replacing King J (although going to the QBD and not Fam D, which is right as he is a public law and planning specialist)

and we wait to see who will replace Sales and Burnett JJ.

plus we say goodbye to Royce J and Field J in the QBD,

Plus down the ranks: Her Honour Judge Sybil Milwyn Thomas has been appointed DFJ in Birmingham (where Katherine Tucker is also to be a new CJ), Jonathan Fuller QC to be CJ in Bournemouth, Peter Crabtree OBE is going to Southampton to be a CJ, and likewise Jessica Pemberton to Hull.

Tuesday 9 September 2014

Been to Scotland - made me think....

Had a hearing in Scotland recently - one of those statutory tribunals where anybody can appear (including even an English Barrister) and which has UK wide jurisdiction (law the same in every constituent of the currently United Kingdom).  

The Tribunal hears appeals from the grant and administration of a UK wide entitlement.  

The body that hands them out is partially based in Glasgow. 

If Scotland becomes independent, who the hell is going to:

(a) pay these benefits
(b) administer them
(c) decide the appeals - according to what law?

This is just one of the many different intertwining tentacles holding Scotland firmly to the rest of the UK's breast.

How is an independent Scotland going to survive without these life lines?

& then there is the small issue of where to put all those missiles:  


 A yes vote will merely be followed by years if not decades of negotiating, arguing and re-organising - it will probably cost billions and it is hard to see why the English, Welsh and N Irish tax payer should pay for what only a majority of the resident Scottish electorate (not of Scots, given that so many live outside of Caledonia) want.

Come on, stay in the Union, it is not that bad, but if you leave, it will be...............

Thursday 31 July 2014

Phone hacking silk appointed High Court Judge.........in place of retiring Litvinenko Inquiry Chair

The retirement of Owen J will see Andrew Edis QC appointed to the High Court bench on 1st October.  He was the prosecution lead in the phone hacking trial as well as in the Huhn and Pryce case.  Sounds like he deserves it.......

Sir Robert Owen meanwhile will spend the first part of his retirement inquiring into Litvinenko's death given the Home Secretary's recently well timed volte face and he made the following opening statement today:

which included this which will be of interest to the Russian Govt:

Because of the sensitivity of the HMG evidence, it is inevitable that at least some of my final report
will also have to remain secret. But I make it clear now that I intend to make public my final conclusion on the issue of Russian State responsibility, together with as much as possible of my reasoning in that regard.  I should add that HM Government has made a restriction notice under section 19 of the 2005 Act, the effect of which will be to require that specified sensitive material is considered in closed session, and may make further restriction notices. I intend to make the open  parts of such notices available on the inquiry website.

The Queen has been pleased to approve the appointment of Andrew Jeremy Coulter Edis QC, to be a Justice of the High Court with effect from 1 October 2014 on the retirement of Mr. Justice Owen on 19 July.

The Lord Chief Justice will assign Mr Edis to the Queen’s Bench Division.

Notes for editors

Mr Edis, 55, was called to the Bar (M) in 1980 and took Silk in 1997. He was appointed a Recorder in 1999 and is approved to sit as a deputy High Court Judge.

Mr. Justice Owen was called to the Bar (I) in 1968 and took Silk in 1988. He was appointed a Recorder in 1987 and a judge of the Queen’s Bench Division of the High Court in 2001.

Saturday 19 July 2014

Most successful Govt policy ever

Went to an Employment Tribunal yesterday where I have been appearing for over 15 years.  Used to queue out the door and on CMD/PHR days EJs would have multiple cases listed in front of them leading to a long wait in the Respondent's waiting room (which is where I usually find myself).  Cases took years to be listed and if you did get a listing you would be floating for days on end.....

Yesterday with fees, enforced conciliation and the unfair dismissal 2 year rule fully kicked in - there was literally nobody there.  My case was the only one listed. The Judge looked surprised that he/she had a real case to deal with; took longer than he/she needed to hearing the case and when it came to listing it for final hearing could offer any day we wanted in the next 6 months........

Turns out this BBC story is true:

There were 5,619 cases between January and March this year compared with 13,739 in the same period in 2013.
Thats a Govt policy which has worked - employment claims have been well and truly stifled.  Well Done!  Business now free to do what is wants and employees left with little access to justice.

Excellent.  Now all they need to do is starting consulting the Judges and Tribunal staff over their redundancy rights.......

Better find myself another area to specialise in..........

Tuesday 8 July 2014

Once again, it is lawyers to the rescue......

Got a serious problem which you can't deal with in-house?  Don't worry civil servant, get a former/ judge/top QC in to sort it?

The Home Office is appointing Rt Hon the Baroness Butler-Sloss of March Green GBE, former President of the Fam D to lead its independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse - but which will not have any powers of compulsion to have evidence given or delivered to it (curiously in order to avoid prejudicing criminal proceedings?) - although if that becomes an issue:  if the inquiry panel chairman deems it necessary – the government is prepared to convert it into a full public inquiry in line with the Inquiries Act. Lady Butler-Sloss was the Diana Coroner until she stepped down, is 5 years over the long stop judicial retirement age and now has a lot on her hands.  Good luck to Her Ladyship.....

Turns out she may not be the right choice after all...... http://lawyerwatch.wordpress.com/2014/07/09/a-few-thoughts-on-the-butler-sloss-controversy/

It is also appointing Richard Whittam QC, First Senior Treasury Counsel at the Central Criminal Court (HMG's top prosecutor at the Bailey) to review its own review into
where certain 114 files have gone missing.....let's hope he can find them or a convincing reason for their disappearance..........

Sunday 1 June 2014

The Mayor's and City of London Court, now renamed: the County Court sitting at Mayor’s and City of London Court

Wanted to know what had happened following the introduction of the National County Court, to the Mayor's and City Court:

Thank you for your email of 18th April 2014, in which you asked for the following information from the Ministry of Justice (MoJ):

I note that the Crime and Courts Act 2013 repeals the following provision:

(2) For the purpose of establishing a court to exercise so much of the jurisdiction previously exercised by the Mayor's and City of London Court as is appropriate to a county court and for exercising any other jurisdiction which may hereafter be conferred on a county court, the City of London shall, by virtue of this section, become a county court district and accordingly the enactments relating to county courts shall apply in relation to the county court for the City of London as they apply in relation to a county court for any other county court district.

(3) Without prejudice to subsection (1) above, the county court for the district constituted by subsection (2) above shall be known as the Mayor's and City of London Court and the Circuit judge assigned to that district under section 20(1) of this Act shall be known as the judge of the Mayor's and City of London Court.

But curiously not this provision:

The courthouse and accommodation which up to the appointed day have been respectively known as the Central Criminal Court and the Mayor's and City of London Court shall continue to be known by those names, and it shall be the duty of the Common Council of the City of London (in this section referred to as “the Common Council”) to continue to make the said premises available for use for the sittings and business of those courts respectively.

What information do you hold about the effect which the creation of the New National County Court will have on the existence, jurisdiction and name of the Mayor's and City Court in the City of London?

Your request has been handled under the Freedom of Information Act 2000 (FOIA).

I can confirm that the department holds information that you have asked for, and I am pleased to provide this to you.

In response to your question, following the introduction of the (single) County Court on the 22 April 2014 the Mayor’s and City Court continued to exist and retained its current jurisdiction (in terms of the types of cases it can hear). The introduction of the single County Court invested the powers and jurisdiction that was conferred on the 173 individual county courts, in the County Court, with modifications.  Therefore individual county court geographical boundaries no longer exist and claimants are no longer limited to issue particular claims in the county court that had jurisdiction for a particular area.

Under the single County Court, Mayor’s and City of London Court will now be known as the County Court sitting at Mayor’s and City of London Court, as the venue has retained its name.  The County Court will continue to sit at the Mayor's and City of London Court, as it will continue to sit at the other hearing venues that were previously called county courts. 

Monday 19 May 2014

If Scotland Leaves, what happens to the rest of us?

The House of Lords Constitution Committee has been asking some big and important questions about what happens if Scotland decides to up sticks and leave the United Kingdom of Great Britain and Northern Ireland (although polling this week-end confidently seems to predict that this will not happen, not least because of the large numbers of English referendum voters resident in Scotland).  The Committee's Report is one of the best analyses of the potential constitutional crisis which may follow; asking questions such as - will E, W and NI be a new successor state (i.e. with a need to apply to rejoin the EU?) or the same State just without Scotland (which is the predominant view of everybody save for the Scottish Government....).  Another important question is what will happen with the Scottish MPs at Westminster (particularly during that weird time between yes vote and actual independence) and what happens on Scottish independence day if they leave their seats but consequently bring down HMG's majority?  Who should negotiate the terms of independence and what happens to all of the UK's assets North of the Border (particularly of the nuclear military variety) and will the MOD move them all S just prior to the Big Day?

The potential for political (if not worse) strife if Scotland votes yes and all the shared assets have to be negotiated over is obvious and we just have to cross everything that this historic union has a little more life in it yet.........

Saturday 17 May 2014

Central London County Court - now at the RCJ?

The Court Hearing Centre in Central London belonging to the new national County Court will no longer be in its splendid (from the outside, not inside) Regency (think Bath) style crescent in Regent's Park, but has gone to a new home in the Thomas Moore Building (last home of the Chancery Division, now residing in the Rolls Building) within the RCJ estate on the Strand to be known as the Central London Hearing Centre of the new national County Court.  Just a little example of how a Court which looked after Westminster and Camden is being moved under the new non-local arrangement - all to save money and resources.  No doubt the Crown Estate will be able to re-let the incumbent Court at great profit! The CLCC has for many years been effectively an overflow for the Chan D of the High Court and its location in the Chan D's old home is no coincidence because it is going to get more of its work, with a newly widened Chan, bankruptcy and winding up jurisdiction to take the pressure off the Rolls Buildings Registrars (a process which started in 2011)........ The Supreme Court Costs Office and the Costs Judges and Masters will continue to occupy the TMB for the meantime....

So goodbye this

And hello this little beauty:


Sunday 27 April 2014

New High Court Judge

The Queen has been pleased to approve the appointment of Miss Elisabeth Mary Caroline Laing, Q.C., to be a Justice of the High Court with effect from 29 April 2014 on the retirement of Mr. Justice Keith on 14 April 2014.

Public lawyer from 11KBW of great repute, had a career break to look after her children and recently acted for Lewisham LBC in quashing DH's big ideas about closing down some of the useful bits of Lewisham Hospital unlawfully - although HMG is just changing the law to get round the problem....

Useful addition to the Admin Court, in which she has sat as a Deputy since 2010.

Monday 21 April 2014

Don't really like the idea of positive discrimination

because the best person should get the job -

but then you read the statistics and realise that there are 5 BME High Court Judges out of 108 and no more at a higher position.  15 BME of 654 Circuit Judges and 27 BME Civil DJs of 446 in total.  The judicial trainees are where it gets even more worrying -  68 BME Recorders out of 1196 and 39 of 764 DDJs (Civil) or in other words there is no hope of the full time judicial numbers getting much better in the near future.  4.8% BME of the total judiciary!  13 of the 100 new QCs are BME (of the 225 applicants, 32 were BME).  Only 10% of practising Bar is BME.

Time for positive discrimination? Time for quotas? Check out this bewildering Belgian example....

Don't like it, instinctively think it is unfair to the non-protected characteristic candidates?  But then something must be done.............Perhaps if two candidates are equal in merit, the BME gets the role?

What's the answer?

Sunday 13 April 2014

& so as foreshadowed in this blog it came to pass, county courts RIP

The CPR is to be amended, probably from 21st April, to reflect the abolition of the county courts and replacement by one single national County Court.

4. In the Rules and in CCR Order 27—

(a)unless amended elsewhere in these rules —

(i)for “a county court”, in each place it occurs, substitute “the County Court”;

(ii)for “county court”, in each place it occurs, substitute “County Court”;

(iii)for “county courts”, in each place it occurs, substitute “the County Court”; and

(iv)for “district judge”, in each place it occurs, substitute “District Judge”;

What we used to call and attend as county courts - i.e. the buildings will now be called County Court Hearing Centres.  Another small innovation is that district and circuit judges are being capitalised in the new legislative arrangements:

1) Subject to paragraph 2), in each practice direction— 
a) for “a county court”, in each place it occurs, substitute “the County Court”; 
b) for “any county court”, in each place it occurs, substitute “the County Court”;  5
c) for “county court”, in each place it occurs, substitute “County Court”;
d) for “county courts”, in each place it occurs, substitute “the County Court”; 
e) for “circuit judge”, in each place it occurs, substitute “Circuit Judge”; 
f) for “Circuit judge”, in each place it occurs, substitute “Circuit Judge”; 
g) for “designated civil judge”, in each place it occurs, substitute “Designated 
Civil Judge”; 
h) for “district judge”, in each place it occurs, substitute “District Judge”; 
i) for “master”, in each place it occurs, substitute “Master”; and 
j) for “the county courts”, in each place it occurs, substitute “the County Court”. 

Well bye bye county courts........and in particular my favourite and the oldest civil court in the world, the Crime and Courts Act 2013 repeals the following:

(2) For the purpose of establishing a court to exercise so much of the jurisdiction previously exercised by the Mayor's and City of London Court as is appropriate to a county court and for exercising any other jurisdiction which may hereafter be conferred on a county court, the City of London shall, by virtue of this section, become a county court district and accordingly the enactments relating to county courts shall apply in relation to the county court for the City of London as they apply in relation to a county court for any other county court district.

(3) Without prejudice to subsection (1) above, the county court for the district constituted by subsection (2) above shall be known as the Mayor's and City of London Court and the Circuit judge assigned to that district under section 20(1) of this Act shall be known as the judge of the Mayor's and City of London Court.

But curiously not this:

The courthouse and accommodation which up to the appointed day have been respectively known as the Central Criminal Court and the Mayor's and City of London Court shall continue to be known by those names, and it shall be the duty of the Common Council of the City of London (in this section referred to as “the Common Council”) to continue to make the said premises available for use for the sittings and business of those courts respectively.

Not sure what all that means?

Saturday 15 March 2014

Read and weep Lord High Chancellor

"The Prisoner comes to the Bar as an innocent man and is to be regarded as an innocent man.  He is entitled not only to every right but to every privilege which is granted to every other person in Court.  When your Lordship comes into Court we all stand up because your Lordship represents the Majesty of the King , and when your Lordship sits down we are all allowed, by that courtesy to resume our seats in such ease as enables us to perform our respective duties,and I submit that that courtesy should be extended as much to an unconvicted prisoners as to anybody in Court.

I am extremely sorry that I should make a demand which is unpleasant to your Lordship, but there is something which all Counsel must do, and that is that they should have courage in defending the rights and in defending the liberties of their clients and the constitution of this country has never been more jealous than in pruning all relics of harsh and cruel treatment of prisoners.  For these reason I submit that as a matter of right the prisoner, unless there is danger of his escape, should be allowed to be seated."

So submitted Maurice Healy of Counsel to Mr Justice Horridge at Derby Assizes in 1922 and his client was allowed to sit and thereafter all Defendants were and are usually invited to sit after being arraigned.

Ought to bring a tear to Grayling's eye - because it's that advocacy, that sentiment, that essential bulwark of oral argument standing in the way of the prosecuting state and the unfair tribunal, that guarantee of all that is right and good in our country's devotion to the Rule of Law, that he's out to degrade and demolish in pursuit of something less costly but also less good.  

Read and weep Lord High Chancellor.

Derby Assizes:

Tuesday 18 February 2014

Come on Home Secretary you know you've got to.....order a Litvinenko Public Inquiry

Sir Robert Owen, otherwise High Court Judge with great experience, but for these purposes the Assistant Coroner for Inner North London, wanted to include within his Inquest into the death of Mr Litvinenko, the question of whether the Russian Federation Government was culpable in his homicide.  A review of the documents by his legal team elicited a positive prima facie case.  But HMG PII'd many of those docs making an Inquest (which is outside of JSD - see posts passim) impossible.  So Sir Robert, in pursuit of justice, asked to be made the Chairman of a Public Inquiry so that he could hold secret hearings, but at least he could look at the question of who killed Mr Litvinenko - i.e. work out whether or not the agents of a foreign government murdered someone under the Queen's Peace (or within the procedural jurisdiction of article 2 ECHR as we now call it).  HMG does not want an inquiry for various reasons including our foreign post-Snowden intelligence partners not understanding how a Judge gets to have a look a loads of sensitive evidence, even in private.  Plus bizarrely:

Fifth, an inquiry is almost certain to be more costly of time, money and resources than an inquest. Since the whole point of an inquiry would be to enable the chairman to consider material additional to that which the inquest would consider, the inquiry would be very likely to take considerably longer to complete, in circumstances where there is justifiable public concern to see this matter brought to a proper conclusion. The effect of acceding to your request would be that the consideration of closed material, which can never be revealed publicly, would delay the publication of conclusions that can be drawn from the open material. Furthermore, even allowing for your helpful offer to act as Chairman and to adapt the existing administrative arrangements to fit an inquiry, it is the Government's assessment that the exercise would be substantially more expensive than an inquest. In times when the public pursue is under real strain and the whole of Government is required to exercise restraint in incurring additional expenditure, this is a factor of real substance which must be taken into account.

Seriously?  The question of whether or not something pretty serious happened on English soil can't be investigated in a proper manner because the public purse won't run to it.  

Well the Admin Court (Stephen Richard LJ in the lead) quashed the decision (although of course it could not address the costs issues - better to stick with the black letter stuff) and has sent it back to the Home Secretary to have another go at either coming up with lawful reasons to refuse an Inquiry or to jolly well get on with setting up a public inquiry as to how some foreign chaps might have got some highly radioactive elements into central London and inside Mr Litvinenko.  Why would the public have interest in having that investigated by a Judge.  Let's get on with it?  I'm sure Owen J will respect and protect the sensitivities of our intelligence partners and will keep the PII material out of the public domain; but will at least give us some sort of publicly exposable gist of what happened and how we might prevent, what might have been a dangerous incursion into our sovereignty, from happening again.......  

Monday 27 January 2014

The HS2 judgment: European Law not supreme? Some statutes might be immune from it? Who says?

You'll recall section 2(1) European Communities Act 1972?

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [“enforceable EU right”] and similar expressions shall be read as referring to one to which this subsection applies.

Which means that EU law trumps the law of England and Wales whenever the two collide.  As the ECJ instructed the House of Lords in Factortame:

20. The court has also held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law (see theSimmenthal case Case 106/77 [1978] ECR 629 at 644 at (paras 22–23)).

To which Lord Bridge replied:

If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. 

But apparently it may not always be the duty of the UK Court to override all such rules of national law in conflict with EU Law:  The Supreme Court was asked in the HS2 appeals to consider whether the hybrid bill procedure (which is in use to bring the high speed line to legislative fruition) is sufficient for the purposes of several EU Directives and other provisions which require minimum public consultation and involvement safeguards before a high speed rail line is driven through the back gardens of middle England.  The Sup Ct, but not the parties, spotted the massive constitutional hazard on the line which prevents the Court considering the efficacy of parliamentary procedure: Article 9 of the Bill of Rights no less:

In the case of the United Kingdom, the approach suggested by the two Advocates General would raise a particular issue of a kind which article 1(4) (formerly 1(5)) was no doubt intended to avoid. It is, we recognise, one that may be specific to the United Kingdom. Article 9 of the Bills of Rights, one of the pillars of constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament. Article 9 was described by Lord Browne-Wilkinson in the House of Lords in Pepper v Hart [1993] AC 593, 638, as "a provision of the highest constitutional importance" which "should not be narrowly construed". More recently, in the Supreme Court case of R v Chaytor and others [2011] 1 AC 684, para 110, Lord Rodger of Earlsferry said this:

"[I]n his Commentaries on the Laws of England, 17th ed (1814), vol 1, Bk 1, chap 2, p 175, under reference to Coke's Institutes, Blackstone says that the whole of the law and custom of Parliament has its original from this one maxim: 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.'"

Some laws are more important than others, and some laws might not apparently, be subject to the Factorame treatment:

Under the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law: R v Secretary of State, Ex p Factortame Ltd (No 2) [1991] 1 AC 603. That was a significant development, recognising the special status of the 1972 Act and of European law and the importance attaching to the United Kingdom and its courts fulfilling the commitment to give loyal effect to European law. But it is difficult to see how an English court could fully comply with the approach suggested by the two Advocates General without addressing its apparent conflict with other principles hitherto also regarded as fundamental and enshrined in the Bill of Rights. Scrutiny of the workings of Parliament and whether they satisfy externally imposed criteria clearly involves questioning and potentially impeaching (i.e. condemning) Parliament's internal proceedings, and would go a considerable step further than any United Kingdom court has ever gone.

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

We are not expressing any view on whether or how far article 9 of the Bill of Rights would count among these, but the point is too important to pass without mention. We would wish to hear full argument upon it before expressing any concluded view. It is not a point upon which the parties before us proposed to make any submissions until it was raised by the Court. We were then told that the attention of the Parliamentary authorities (and we deliberately use a vague expression) had been drawn to this appeal, and they elected not to be represented. If and when the point does fall to be considered, the Parliamentary authorities may wish to reconsider whether they should be represented, and, particularly if they still regard that course as inappropriate, it may well be the sort of point on which the Attorney General should appear or be represented. Important insights into potential issues in this area are to be found in their penetrating discussion by Laws LJ in the Divisional Court in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, (The Metric Martyrs case), especially paras 58-70, although the focus there was the possibility of conflict between an earlier "constitutional" and later "ordinary" statute, rather than, as here, between two constitutional instruments, which raises yet further considerations.

Laws LJ in the above named case said this:

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.

Which can only lead me to ask What is a Constitutional Statute/instrument? How is it defined? Who defined it? What democratic legitimacy did they have when they defined it? and What has any of this go to do with the Judges who apply and do not make (save for the odd increment to the common law) the law?

The absence of a written constitution does not mean that we should let the Judges write one for us.  The Supreme Court is wrong and Laws LJ was wrong - unless or until some constitutional revolution takes place and some higher norm is enacted by the common consent of the people, then it remains the constitutional position that all statutes, enacted by Parliament, are equal.  They are all subject to EU Law (so long as the 1972 Act stays on the books), are all are subject to implied or express repeal by a majority in Parliament and none are entrenched.  If the Bill of Rights needs to be overridden by virtue of section 2(1) of the 1972 Act, then the Supreme Court better get on with it according to the judicial oaths they swore to apply the law.  That is what Parliament has told them to do.  It is not for them to refuse.  It is not for them to decide that Parliament did not actually intend them to set aside the Bill of Rights or the like when it enacted the 1972 Act -  how do they derive that from its words or from Hansard?  If Parliament were to amend section 2(1) to protect some category of constitutional statute/instrument from its purview, then that would be a different matter, albeit likely a breach of EU law which would be chastised by the ECJ. 

Stop pretending otherwise in obiter dicta that nobody elected you to declare!  When the Ct says that it cannot go further because it did not hear argument on the point - that is the least of my concerns-   it is has not heard the democratic process on the point either!

I support constitutional reform in this country, i.e. the enactment of a higher norm, probably a written constitution, by common consent, so that these questions can be debated, voted upon and enacted. Some higher norms, rights and duties should be entrenched so as to be protected from the simple political majorities of governments. 

But these questions are not for Judges (nor lawyers), but for people, i.e. the people.  

Meanwhile, the Sup Ct, should leave well alone.    

Sunday 12 January 2014

French perspective on our profession & and how cuts to criminal legal aid will affect it........

Was in France over New Year when Le Figaro reported that some maverick French avocat had used the fact that some holiday stand in magistrat didn't know what he was doing in order to get  a novel order of disclosure from the flics of papers justifying the continued custody of his client.  Apparently a EU Directive comes into force 2nd June 2014 which requires the State to give sufficient disclosure to a person in criminal custody pending trial so as to be in a position to challenge the lawfulness of that custody.  Think we call it primary disclosure.  Such disclosure is not given in France as yet.  Interestingly the article reported that the Police did not want to give French lawyers disclosure because unlike in England where les avocats ango-saxon are responsible and professional, the French avocats would just supply all of the sensitive information about victims to their clients who would then have them intimidated or worse.

That's our international reputation for professionalism which we risk sending to Hell in a handcart once the only way to make a living at the criminal bar is to seek out rich criminals, who will only hand out their dirty money in return for assistance in likely breach of our Code of Conduct.