The Supreme Court’s Judgment on Prorogation

My prediction that the Supreme Court would decide that Government’s prorogation of Parliament was entirely wrong. I do not understand the reasoning of the decision.

In this case several features stand out.

  1. The eleven justices all made a single judgment; there was no dissenting opinion, which is odd considering that equally senior judges including the Lord Chief Justice, the President of the Queen’s Bench Division and the Master of the Rolls already made a decision which was precisely the opposite of that of the Supreme Court decided. It may be that the Supreme Court judges decided that because of the constitutional importance they had better put dissent to one side an publish a single decision even though some of them may have disagreed with it.
  2. The judges stressed that the case was not about Brexit. They were wrong. The case was entirely about Brexit. Those opposing the prorogation did so not because they were genuinely opposed to a five week prorogation during the party conference season, but because they wanted to hinder the government’s efforts to improve the deal negotiated by Mrs May and/or to prevent Brexit at all. Their best means of hindrance was to keep the Parliament open so that the sound bites of those opposing Brexit would continue to criticise the government and that criticism would receive all due publicity. It was not about Parliamentary scrutiny – the intended prorogation had left sufficient time for that – it was about preventing Brexit and/or embarrassing the government who cannot now govern at all because of the way in which the House of Commons will continue to prevent the government from doing virtually anything.
  3. The judgment recognises the principle that parliament is sovereign over the government but reduces the government’s powers to prorogue which most constitutional lawyers believed that the government had to prorogue Parliament for short periods in times of crisis.
  4. The judgment fails to recognise that the people are sovereign over Parliament.
  5. The judgment did not fairly reflect that this was a new area of law upon which there had been little precedent and therefor different opinions about the law were not only possible but to be expected. The words of Lady Hale gave the impression that the government had knowingly acted unlawfully. This was unfair, especially as she had described the case as “a one off”.
  6. The heart of the decision of the supreme Court is, in my opinion, contained in these words Prorogation “will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course. 51. That standard is one that can be applied in practice.
  7. The court, having set the standard (for the first time) measured what it knew about the government’s decision and measure it against that standard. It found the government wanting. This inevitably means that any future government of any hue will find the exercise of any prerogative power being examined in court at the behest of their political opponents. It is not a consummation that we would find helpful, democratically or politically especially when the meaning of “without reasonable justification” is ligated time and time again, as it will be in future.

Parliament re-opened today in accordance with the ruling of the Supreme Court. As far as I can see no time was spent on scrutinising legislation but on hurling insults and criticism across the chamber. I expect this to continue for weeks to come.

I’ll see you in court, but where is the court?

Bringing justice (or at least law) to the people has always been one of the prime duties of any government. Governments can only function on the basis that the law will mostly be obeyed and that the rule of law will prevail and that the rule of law is without exceptions; it applies to the ordinary citizen and to the government. If the people cannot have their cases promptly and efficiently heard, or if the hearing of those cases is too expensive for people to pay, then the rule of law is damaged, badly.

At one time governments organised the dispensing of justice to try those accused of crime and to settle disputes by arranging for a group of justices (with counsel and other legal people, to tour sections of the country on assizes. Continue reading

Nobody Knows

The Brexit nonsense drags on. There is now an argument in which some claim that the government should disclose the detailed legal advice it has received about the legal effect of the proposed future basis of the UK’s relationship with the UK. The demands for such disclosure are being made most strongly by politicians who implacably oppose the “deal” so there seems little point in disclosing the advice.

Nevertheless, we must bear in mind another point. The whole of law is founded on the principle that nobody knows; Continue reading

The first thing we do, let’s kill all the lawyers

When Jack Cade in Shakespeare’s Henry VI part 2 is offering his credentials as a King  to urge a rebellion against the King the policies Cade offers are very modest. Seven halfpenny loaves of bread will only cost a penny under his regime a three hooped pot (used for measuring how much each drinker should drink out of a common vessel) shall have ten hoops; it will be a felony to drink small beer, money will be abolished (so buying bread for a halfpenny would not be possible) and everyone will dress in one livery. Dick the Butcher one of Cade’s violent henchmen) offers that the first thing to be done is to kill all the lawyers, and Cade responds that he means to do that.

Cade never achieved power and every politician, whether democratically elected or whether a tyrant or autocrat has never killed all the lawyers but used them in exactly the same way that all people use lawyers – to further their own ends be it for good or for bad.

 

Civil Litigation

We need justice and people need to think that the legal system provides justice, more or less.

Last year at was assisting in a trial in Nuremberg in Germany. It was a strange experience for a lawyer you has for the past forty five years been practicing in a common law jurisdiction. Continue reading

Honesty and Integrity

When I applied for admission to the roll of solicitors in 1974 it was a requirement that applicants be interviewed by a panel of the Law Society. At my interview I was asked what the two most important qualities were of a solicitor. I replied that I thought honesty and integrity were the most important qualities. The panel asked me what was the difference between honesty and integrity. Continue reading

The Crime of Assisting in Evasion of Foreign Tax

Hundreds of volumes of our laws are written to ensure that the government may successfully collect taxes. A large amount of people are employed in collecting those taxes. Whole industries have been created about the collection of taxes and about the avoidance of taxes.

Under new laws that came into force on 30 September 2017 two new criminal offences have been created, dealing respectively with facilitating the evasion of UK tax or the evasion of foreign tax. These offences can be committed by those working in these tax industries. Continue reading

Problem Solving

Many people like puzzles. They become expert in crosswords or sudoku or similar recreations, which can be a pleasant way to spend time, but real life legal puzzles are not an entertainment; for those clients caught in the midst of a legal puzzle they endure great stress. Most people who find themselves being sued or having to sue never, when they started on a course of business or a relationship, envisaged that it would end in tears. They suddenly, and these things often happen suddenly, discover that their life’s work is at risk, and the stress of many thousands of hours being wasted. Continue reading

Making Too Many laws

In ancient times people started with custom, a way of doing things, which morphed into law. As people developed, so law developed. In some places custom became precedent, and frequently whole bodies of precedent were turned into codified laws. Continue reading

Are Social Media Platforms Publishers?

We all have something to say and social media provides a platform from which we can speak. Platforms amplify speech. Social media platforms allow individuals to publish whatever they choose, generally without censorship, or editorial interference. They are a useful and cheap way to communicate to the world at large. They are also an environmentally friendly way to communicate.

There is a long tradition of people wanting to communicate; centuries ago some published pamphlets; others wrote books. These communications could only reach a mass audience because of the invention of the printing press. Today even the President of the United States of America frequently communicates through twitter.

Most nations have laws which prevent, or seek to prevent, the dissemination of material which is defamatory or severely pornographic or which induces hatred or which espouses violence in some form or other. If such material were printed in a newspaper or in a book the publisher would face the same legal sanctions as the author. However, if such material is communicated on a social media platform the social media company faces no legal sanction. It may, if the material is drawn to its attention, take it off the platform, but the internet is a complex beast and once something is published on it, the material usually stays on it, somewhere or other.

Governments are now looking to see how such material can be regulated on the internet. One way is to make the platform liable in the same way that traditional publishers are responsible for their publications equally with the author. However the sheer volume of material put on to social media is a problem. Perhaps social media companies could spend much more of their vast resources policing their own platforms, but they are loathe to do this voluntarily. Germany has enacted laws which require a stringent policing by social media companies, so I am sure that this could be done in other jurisdictions.

We do not want to get to a state where platforms are censoring what people put on social media. There are many opinions which I personally find extremely offensive and disgraceful, but I do not want to prevent people expressing their ideas. The expression of an idea is the right of everyone in the world; free speech, however, is limited to the expression of ideas: hatred, propaganda (now fashionably called fake news) instructions to build bombs and encouragement to violence are not ideas.