January 5th 2020
Sir Ivan Rogers left the Foreign Office three years ago. Fortunately, his skills have come in very useful in his new career at the criminal bar. …
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Ah good morning Mr Bruiser, very good to meet you.
Fuck that, name’s Duncan. Are you my brief?
Yes indeed. Let’s see if we can find a free interview room for a chat.
Why do we need to chat? Haven’t you read the papers?
I have, Mr Duncan-Bruiser, sorry, I mean Duncan, but there’s one or two things which it would be very helpful to discuss with you before the trial starts. I see it’s already 10 past 10 and we have to be ready to start at 10.30. The interview rooms are all full up I’m afraid. Never mind, if you squeeze in there and keep your voice down, then I can sit on this little table here. Excellent. Cosy even. Continue reading “What Sir Ivan Rogers did next: he was called to the criminal bar”
The Deputy President of the Supreme Court, Baroness Hale of Richmond, has come under fire from a number of Brexiteers, including Iain Duncan Smith, Jacob Rees-Mogg and Dominic Raab, over a speech that she gave to Malaysian law students last week. They have suggested that the speech indicated bias against the Government’s case.
Lady Hale told the Solicitors Journal earlier this week that she will “absolutely not” step down (or “recuse” herself) from sitting on the Article 50 appeal next month.
Most of the now controversial speech amounted to a canter through the short history of the UK Supreme Court. It was doubtless of considerable interest to the students, particularly as it was delivered in Lady Hale’s clear and attractive style. She devoted just one relatively short section of the speech to a discussion of the Article 50 case. She did so partly because, as she put it, it would have been “discourteous” to her hosts not to explain what the case was all about. She summarised both sides’ arguments pithily. Had she stopped at that, she probably would have escaped any adverse comment. Continue reading “Lady Hale is a great judge but she made a mistake in Malaysia”
In the wake of the dramatic Article 50 judgment various Brexiteers have been venting their feelings.
On the front page of today’s Telegraph Nigel Farage fulminates against “unelected judges” and the “rich elite” that took the Article 50 case to court. Ian Duncan Smith accuses the judges of an “enormity” which “takes judicial activism to a new level.” Jacob Rees-Mogg says they have caused an “unnecessary constitutional clash.” Daniel Hannan compares Remainers to Western Communists who backed the Molotov-Ribbentrop pact: “they have gone from deriding parliamentary supremacy as a Victorian hang-up to posing as its defenders.” In a thundering editorial the Telegraph declared:
“The Court cannot simply pretend that the referendum has not happened. It should have taken account of the fact that the constitutional process has been complicated by the vote …..”
And these contributions have been mild compared to others. “Enemies of the people!” screamed the front page of the Daily Mail, an absurd and inflammatory headline that could have graced a 1923 Izvestia story about social parasites and Menshevik counter-revolutionaries in Leninist Russia; while Suzanne Evans, supposedly the more moderate of the UKIP leadership candidates appeared to call for the dismissal of the Lord Chief Justice. Continue reading “Attacks on the Article 50 judges are a disgrace”
Cases in the Administrative Court are often a bit like the Radio 4 programme You and Yours: of limited general interest. Whilst often very important for the development of the law, and for those immediately concerned, they lack the sort of immediate news value of – for the sake of argument – a rape trial involving an international footballer. Typically they will be about planning, or immigration or benefits.
This was different. It was about a question that has occasionally convulsed the nation since at least the seventeenth century: who rules Britain, Parliament or the Queen? In fact nobody contends that the Queen does so in person, but Her Government argued that the Prime Minister can do so by the use of Her prerogative. It was in fact a modern version of the Civil War, albeit conducted – in court at least – with courtesy and law reports rather than muskets and cannon balls.
No wonder the www.judiciary.gov.uk website was creaking under the strain this morning as it dealt with an unprecedented demand to download the Brexit judgment. Continue reading “Some rushed and barely coherent thoughts on today’s Article 50 judgment”
The legal battle over whether Article 50 should be triggered by the Prime Minister wielding the Royal Prerogative (as the Government wants), or by an Act of Parliament (as the Remainer litigants contend is necessary) is proving to be a much tougher fight than many had predicted. The Government won a victory in Northern Ireland last week when the High Court ruled in its favour. Mr Justice Maguire ruled that Article 50 Notification would not breach the Good Friday Agreement. He tactfully declined to express any opinion on the English litigation which raises different issues. It is by no means certain that it will go the same way,
The Lord Chief Justice and his two colleagues will deliver judgment shortly, although it is virtually certain that the case will then go to the Supreme Court which has pencilled in a date in December. The outcome is unpredictable, and there is even talk that the case could be referred to the European Court of Justice to answer the potentially critical question of whether notification given under Article 50 is revocable. Although the demeanour of the judges has given little away, there is a feeling amongst some lawyers that a Government defeat is a real possibility. Continue reading “Conservatives should support the Article 50 litigants”
It is seldom a pleasure to hear the droning, humourless and untrustworthy voice of the Transport Minister Chris Grayling, and never less so than when he interrupts preparations for Sunday lunch.
Unfortunately I wasn’t able to get to the off button quite in time, so I caught Mr Grayling being interviewed by Mark Mardell on The World This Weekend. Yesterday was of course the day when Theresa May announced her Great Repeal Bill, and this was the subject of Mr Grayling’s interview. Before I pulled the plug on him I heard this exchange:
Q: I imagine there are lots of laws in your area of transport both in aviation & road transport that are affected by EU legislation. Any you want to get rid of?
A: Well let’s get back to some practical examples, there are EU laws around the running of railways about the height of platforms, for example. Our rail system, apart from HS1, is not in any way linked to the continental rail network, so there is actually no reason for us to have European platform heights, so that’s one area of regulation that could certainly change.
For some reason this immediately brought to mind lines from the Wilfred Owen poem “Futility,” written about a very different subject matter:
“Was it for this the clay grew tall?
—O what made fatuous sunbeams toil
To break earth’s sleep at all?”
All the sound and fury of the referendum battle, all the political blood that has been spilt, all the poisonous, dishonest and occasionally racist rhetoric: what has it achieved?
It has given us back the freedom to set our own platform heights. Continue reading “Mr Grayling is wrong about the Brexit dividend to station platforms”
I am very grateful to Philip Sinclair, Head of Maidstone Chambers, for this guest post which came about in this way:
You may have caught an interesting piece by David Allen Green in yesterday’s Financial Times. If you haven’t, it’s worth a few minutes of your time, but in essence his argument was that the Government is totally unprepared for the Brexit negotiations, not only does it not have a plan, it doesn’t even know what it should be planning for.
I tweeted my approval of the thrust of the piece, and Philip replied that he couldn’t have disagreed with it more. Someone suggested that he write a reply, which to his credit he has done overnight, seemingly while driving through France. He has very generously agreed to let me publish it below.
In the days after the Brexit vote, many Remainers were in shock and denial. Some remain in denial still. Continue reading “Don’t Worry, Be Happy About Brexit. Every Little Thing’s Gonna Be Alright.”
The law firm Mishcon de Reya is bringing an action to force the Prime Minister, whoever she (or just conceivably he) may be, to obtain Parliamentary approval before issuing that all-important Article 50 notification.
The question in issue is a deceptively simple one but it has divided lawyers. Can the Prime Minister invoke Article 50 as an act of Royal Prerogative; or will she need to persuade Parliament to pass legislation before doing so? Continue reading “Don’t abuse the Brexit litigants: their action shows that we live in a free country”
Forget about the online petition. We do not have government by petition, particularly not when we don’t know how many of the online signatories are even British, or are duplicates, or computerised bots or in some other way bogus. No matter how many signatures the petition garners it will not result in a re-run of the referendum, and nor should it.
Forget too about Members of the Scottish Parliament metaphorically flooding down from the Cheviots, sgian-dubhs flashing in the pale northern sunlight, rushing to save the Sassenachs from the consequences of their folly. The argument – publicised and explained here by the ever-lucid Jolyon Maugham – is rather complex and explained better by him than by me but essentially it’s this: Continue reading “The Referendum now poses a serious threat to Parliamentary Democracy”
The time for agnosticism about the EU referendum is over. Those of us who have been sitting on the fence now need to decide which way to vote.
A few weeks ago I was still an agnostic. Not any longer. The weight of Barristerblogger is very modest – but for what it is worth it is now firmly behind the Remain campaign.
I have great personal respect for many, though not all, of the Leave campaigners but I think they have lost every important argument. Continue reading “We must remain in the EU for peace and prosperity.”