Barristerblogger is normally risk averse when it comes to commenting on great questions of constitutional law. I have always thought it is something best left to the experts: academics like Professors Paul Craig or Mark Elliott, for example, or former Government lawyers like Carl Gardner or David Allen Green who know how these things work from the inside. However, since everyone else has been putting their two pennyworth into the Prorogation cases, including “Britain’s rudest man” David Starkey, perhaps I can throw in the contribution of a polite criminal hack.
1. The Supreme Court will be criticised whatever it does
If the Court upholds the Scottish Court of Session decision that the Prorogation of Parliament was unlawful it will be criticised for making a political decision.
If it upholds the English Divisional Court it will give a gift to Scottish Nationalists who will denounce a court made up largely of English judges for over-ruling the unanimous judgment of the highest Scottish court.
Incidentally, the decision to increase the number of judges hearing the case from 9 to 11 has increased the English majority from 5 – 4 to 7 – 4. (The “non-English” judges are Lords Reed and Hodge from Scotland, Lord Kerr who is from Northern Ireland and Lord Lloyd-Jones who is Welsh). Continue reading “The Government should be careful what it wishes for from the Supreme Court”
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”
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”