MEMO TO COBRA

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,

(c)     homelessness,

(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

(c)     the Commissioners of Her Majesty's Treasury.

(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,

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

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

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

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

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

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.