Supreme Court Brexit showdown

All 11 Supreme Court justices will hear the government’s appeal against the High Court’s Art 50 ruling.

The judgment that the government requires parliamentary approval before triggering Art 50, the formal mechanism to leave the EU, prompted outrage among some sections of the press and politicians.

The judges – the Lord Chief Justice, Lord Thomas of Cwmgiedd, the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales – were accused by some of attempting to subvert the result of the July referendum and branded ‘Enemies of the People’ (The Daily Mail).

In the wake of the media storm and personal abuse of members of the court, the Lord Chancellor, Liz Truss, came in for strong criticism from the legal profession for failing to speak up to defend the independence of the judiciary and the rule of the law, as she is statutorily obliged to do.

A Bar Council resolution called on her to condemn the ‘serious and unjustified attacks’ on the judiciary.

On her behalf, the Ministry of Justice issued a statement saying: ‘The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality.’

Former Lord Chief Justice, Lord Judge told the BBC’s Newsnight programme the statement was ‘too little and not a lot’. Labour’s former Lord Chancellor, Lord Falconer called on Truss to resign and Justice Committee chair, Bob Neill condemned the attacks on the judiciary.

Sixteen Silks from One Crown Office Row – including former Bar leaders Guy Mansfield QC and Robert Seabrook QC – wrote an open letter to Truss saying they were ‘dismayed’ by her ‘inadequate defence’ of the judges. Other sets may do likewise.

In a speech at the Law Society the Attorney General, Jeremy Wright QC, who represented the government, backed judicial independence and press freedom.

Contrary to reports that Number 10 had briefed against him following the judgment, he insisted he had the Prime Minister’s support and that he would represent the government in the Supreme Court.

He dismissed suggestions that the government had been advised that it will lose its appeal, but said if it did, the government would ‘respect’ the judgment. ‘The rule of law matters more than however big and important an issue may be,’ he said.

The appeal has been listed for four days from 5-8 December. The judgment will be reserved, most likely until the new year.

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Westminster Watch

Rule of law and judicial independence are critical to the maintenance of a healthy body politic as we face some of the greatest challenges of our time, writes Mark Hatcher

Earlier this year Donald Trump claimed that US District Judge Gonzalo Curiel of San Diego was unfit to hear two lawsuits against the now-defunct Trump University because ‘he’s a Mexican’. 

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Great Repeal Bill and Brexit challenge ahead

The Prime Minister announced that a Great Reform Bill will be included in next year’s Queen’s Speech to repeal the European Communities Act 1972.

On the first day of the Conservative party conference in Birmingham, Theresa May said the UK will begin the formal Brexit negotiation process by the end of March 2017, which could mean that the UK will leave the EU by summer 2019.

The former Attorney General, Dominic Grieve QC, described the proposed Bill as ‘little more than a bit of froth’ that would have little practical effect. He told The Brief that it would not be legally viable for the UK to bring into force a repeal of the 1972 legislation until after it has formally left the EU.

Meanwhile, the High Court ordered that the government disclose its argument as to why it is relying on the use of the prerogative powers to trigger Art 50, the mechanism by which the UK will formally leave the European Union.

The ruling was hailed as a preliminary victory for the so-called People’s Challenge, which is arguing that Parliament must vote on the issue.

The government argues that it is ‘constitutionally impermissible’ for Parliament to be given the authority to make the decision rather than the Prime Minister

The Attorney General, Jeremy Wright QC, led the government’s case, which took place as Counsel went to press, along with James Eadie QC and Jason Coppel QC.

Meanwhile, the Bar Chairman, Chantal-Aimée Doerries QC,backed a call from the Lord Chancellor, Liz Truss, at the party conference to boost diversity in the legal profession and judiciary.

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Unclogging the court

Brexit provides new context for the UK’s role in the Council of Bar and Law Societies of Europe – particularly its scrutiny of the European Court of Human Rights’ excessive caseload, as Piers Gardner explains

Recognised as the voice of the European legal profession, the Council of Bar and Law Societies of Europe (CCBE) represents, through its members, more than one million European lawyers. 

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Westminster Watch

Mark Hatcher on the Great Repeal Bill, legal black holes and bonfires of red tape that will dominate Whitehall and Westminster for the foreseeable future

The Foreign Office document published at the beginning of the year which outlined the process for withdrawing from the European Union (Cm 9216) was unequivocal.

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Brexit public access boost

Statistics from a sample of more than 9,000 individual searches made between 1 January and 1 August this year revealed that EU law was one of the most popular searches on the Bar Council’s Direct Access Portal. The 20 common search terms also included civil, property, employment and professional negligence. ‘We can only assume that the reason EU law is so high up the rankings (fourth) is because of the uncertainty of Brexit,’ said Bar Chairman, Chantal-Aimée Doerries QC.

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Westminster Watch

Westminster village begins to recover its equilibrium after the EU vote, grappling with the machinery of change and arrangements to scrutinise Brexit policy

In 1886 the Liberal politician, Joseph Chamberlain is reported to have said: ‘In politics, there is no use in looking beyond the next fortnight.’ 

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EU law could be ‘50-year blip’ on life of common law: Neuberger

The European Convention on Human Rights (ECHR) has had a ‘beneficial’ effect on UK judges, but Brexit could render it a ‘bliplet’ on the common law, the President of the Supreme Court said.

Addressing the Faculty of Law at the University of Singapore over the summer, Lord Neuberger considered whether, since the UK’s accession to the European Union and the bringing into UK law of the ECHR through the Human Rights Act 1998, England and Wales could still properly claim to be common law jurisdictions.

His speech, Has the identity of the English common law been eroded by EU laws and the European Convention on Human Rights?, determined that the common law was alive and well, although he said judges had at first been ‘so excited about the new toy [of the ECHR] that they left the old one [the common law] ‘in the cupboard’.

After the UK voted in the Referendum to leave the EU, he said: ‘Quite where this will lead remains to be seen, but it may well mean that the influence of EU law will be a 50-year blip on the near thousand years of the life of the common law’.

And, he said, the Government’s proposals to repeal and replace the 1998 Act ‘could result in the European Convention influence being no more than a 20-year bliplet on the life of the common law’.

As a serving judge, he declined to comment on whether the developments are good or bad.

Neuberger stated that the ‘direct influence of EU law has been significantly less than the direct influence of Convention law’.

He said: ‘The EU law cases which come to the UK courts involve the interpretation of EU Treaties, Directives and Regulations and of UK statutes intended to give effect to EU Directives. So the issues are essentially interpretational in nature.’

By contrast: ‘The extent of the reach of the Convention, through the medium of the 1998 Act, has been of such width and of such novelty it has had a significant (and I believe a generally beneficial) effect on the approach of UK judges when deciding cases.’

But he warned judges to ensure that in applying any principles from Strasbourg, they do not ‘undermine the essential characteristics of our constitutional system, based on the common law and parliamentary sovereignty’.

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Justice in the digital age

A bold ‘hi-tech’ vision for the future of HMCTS shouldn’t ignore that access to justice is being steadily eroded by ‘enhanced’ court fees and the radical cuts to legal aid

Every barrister will be affected in some way by the shared £1bn vision for the future of HM Courts & Tribunals Service (HMCTS) set out in the recent joint statement, Transforming our Justice System, issued by the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals. 

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Raising the bar

‘Innovation and global opportunity’ – this year’s Bar Conference theme – should prompt barristers in every field to reassess the way they work, explains Gerard McDermott QC

When asked by the Chairman of the Bar, Chantal-Aimée Doerries QC, to chair this year’s Bar and Young Bar Conference I enquired whether I could make at least part of it international in flavour. 

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