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Freedom of information (FOI) appears to have declined under the current Boris Johnson government, and it’s a serious issue. In April, more than 110 MPs, journalists and campaigners frustrated by escalating government secrecy signed an open letter to the Information Commissioner calling for the government to stop breaching the Freedom of Information 2000 Act (the 2000 Act). They complained of ‘increases in late responses, stonewalling, public-interest-test delays, repeated misuse of exemptions, as well as opaque and inconsistent monitoring and enforcement’.

Under section 10 of the 2000 Act, public authorities must respond “promptly and in any event not later than the twentieth working day following the date of receipt”, however the government’s figures show the Cabinet Office answered 64% of freedom of information requests on time in April-June 2020, a staggering reduction from 2017’s figure of 95%, as reported by the Independent newspaper on 25 September 2020.

Perhaps this could be explained by the government’s exploitation of an exemption to section 10: authorities may extend the response period where more time is needed to consider the public interest. For example, in early 2020, openDemocracy requested information from the Ministry of Defence in relation to its officials and Andrew Sabisky, a former advisor to the prime minister. A response was not received until 196 days later.

A key part of the problem appears to be a unit in the Cabinet Office: the Clearing House. Its role is to advise departments on how to respond to FOI requests. However, Judge Hughes in the 2021 tribunal decision of Cabinet Office v Information Commissioner and Jenna Corderoy held there was a “profound lack of transparency about the operation of the Cabinet Office” in relation to the Clearing House. Further, he observed “there has been a lacuna in public information” about how the Clearing House co-ordinates requests; the Clearing House had been encouraging departments to dismiss information requests.

While the current government may pose a threat to FOI, previous incumbents are far from blameless. Britain has never really embraced the idea of open government, even after the introduction of the 2000 Act. To make this point, I shall first recount the FOI regime in the 20th century, as well as the difficult early years of the 2000 Act. I will next briefly point out two landmark cases that showed real progress. In my final remarks, I will tentatively suggest reform proposals for the troubled regime.

Piecemeal developments in the 20th century

Relative to its democratic friends and partners, the British government was extremely secretive in the early 20th century. Across the pond, President Lyndon B Johnson signed into federal law the Freedom of Information Act in 1966, and Australia enacted a statute of the same name in 1982. Yet, until 1989, the Official Secrets Act 1911 meant it was a criminal offence to disclose government information.

However, it would be unfair to say that no progress was made. Piecemeal developments started with the Wilson administration in the 1960s and accelerated during the 1970s. In fact, but for the 1979 election, Clement Freud’s Official Information Bill could have become law. While the appointment of Mrs Thatcher, who famously opposed freedom of information in principle, slowed down the speed of reform, developments were still made. For example, the Data Protection Act 1984 granted individuals the right to access their personal information. Des Wilson’s Campaign for Freedom of Information also helped to propel four private member’s bills into the statute book.

There was also encouragement in the case law at the time. In the 1993 case of R v Secretary of State for the Home Department, ex p Doody, Lord Mustill observed that there has been a trend towards an insistence on greater openness in the making of administrative decision-making. Similarly, it was held in R v Secretary of State for the Home Department, ex p Fayed [1996] that a duty of fairness required the Secretary of State to inform the naturalisation applicant “of the nature of any matters weighing against him and give him the opportunity to address such matters”, notwithstanding section 44(2) of the British Nationality Act 1991.

John Major’s 1994 Code of Practice on Access to Government Information was another step in the right direction, which assumed that “information should be released except where disclosure would not be in the public interest”. However, it was non-statutory and “inadequate”, which prompted Tony Blair to propose legislation that will “signal a culture change that would make a dramatic difference to the way that Britain is governed”.

The anaemic 2000 Act

Enter the 2000 Act. Although hailed by Lord Sumption in Kennedy v Charity Commission [2014] as “a landmark enactment of great constitutional significance”, it was doomed from the start. Indeed, its passage through parliament was uneasy: commentators noted the Bill was significantly amended to comfort senior civil servants and some ministers. In addition, the implementation of the 2000 Act was disjointed: preparations were stop-start, which resulted in the legislation becoming operational five years late.

There have also been attempts to dilute the 2000 Act since 2005. Perhaps the most significant effort happened less than two years later, when the Labour government announced its proposals to restrict the amount of information that could be accessed under the statute on cost grounds. The then-Secretary of State for Justice attempted to include the “cost of the time reading the information, consulting others about it and deciding whether it should be released”, as well as proposing that costs of unrelated requests made by the same entity to an authority could be aggregated and refused if their costs exceeded the limits. It is likely these suggestions would have made it easier to refuse complex requests and requests from campaigning organisations who are likely to make multiple applications. While Gordon Brown later dropped these proposals, they are just one of several attempts to frustrate FOI.

Judicial salvation

While the birth of the 2000 Act was anaemic, the Supreme Court injected much-needed nutrients into the regime. In Kennedy, the common law doctrine of open government was established: it was presumed unless “outweighed by any countervailing arguments”. Lord Carnwath observed that this was a “significant extension”. Those who read the case could make the argument that the Justices were compensating for their rejection of European rights-based jurisprudence. Whatever its rationale, Kennedy shows judicial support for open government, a principle which was subsequently followed by the Administrative Court in 2013, in R (Privacy International) v HMRC Commissioner.

Similarly, R (Evans) v Attorney General, in 2015, highlighted progress. The decision was about section 53(2) of the 2000 Act, which permits the Attorney General to issue a certificate which vetoes an order to disclose information. In Evans, after the Upper Tribunal ordered the disclosure of letters written by Prince Charles, the Attorney General issued a section 53(2) certificate. Lord Neuberger, for the majority, held that such an unrestricted override “cut across two constitutional principles”: 1) “a decision of a court is binding…and cannot be ignored or set aside by anyone”, and 2) the decisions of the executive are reviewable by the court on behalf of citizens. Evans therefore limits the power of Cabinet ministers and is a victory for FOI advocates.

Final remarks

Perhaps I am being reductionist, but in my view, the above issues can be attributed to two core reasons: first, the executive lacks the will to uphold information rights, and second, Whitehall lacks the ability to adequately carry out the demands of the 2000 Act. It therefore makes sense to divorce the executive from the Information Commissioner’s Office (ICO) completely: some commentators suggest that the body that deals with FOI requests should be independent and funded by parliament. I would go even further. Even with funding and autonomy, the ICO may still not be able to effectively carry out its designated functions. Accountability to parliament is insufficient. Loopholes to delay or even prevent the disclosure of information need to be closed statutorily (the common law is not equipped to deliver wholesale change) or more strongly deterred.

In this article, we have discussed how open government has never been fully accepted in Britain. FOI developments seem to be stuttered: always two steps forwards and one step back, regardless of who is in charge. Under Boris Johnson, one could even say that there have been no steps forward. The reform proposals are no silver bullets and most certainly will be sternly resisted by the executive and Whitehall. Nevertheless, campaigning for FOI must continue and this article is merely playing its part to prevent further regression. In the 25 February 1980 episode of the satirical political sitcom, Yes Minister, the following exchange took place:

“What’s wrong with open government… why shouldn’t the public know more about what’s going on?” asked Bernard Woolley, principal private secretary.

“My dear boy, it’s a contradiction in terms — you can be open or you can have government!” replied Sir Arnold Robinson, cabinet secretary.

Without reform, the British FOI regime may well be overseen by Sir Arnold and become what Yes Minister is: a comedy show.

Nhan Pham-Thanh is a second-year undergraduate law student at the London School of Economics and Political Science. He is interested in the law of obligations, media law and international arbitration.

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The Guardian is on a warpath looking to expose any outdated practices that the monarchy happens to retain. They have recently struck gold after discovering the impact of an archaic convention known as Queen’s consent.

This convention is not a well-known element of the constitution, brushed off as a formality on the Crown’s website. Its significance has been well and severely understated; it has potentially major effects on the way in which the law is passed, and indeed The Guardian discovered that it did shape the law.

In this article we will consider the nature of conventions and then proceed to explore the most pressing question of the month (other than who is Jackie Weaver? And where is Handforth?), this is the question of what is Queen’s consent, and why should we care?

To start off your intellectual meal, a little bit on conventions. Conventions have a major role to play within the UK’s constitutional structure, and have been a longstanding source of our uncodified constitution. Despite this, unlike other sources of our constitution such as ‘constitutional’ Acts of Parliament, a lot of conventions are unwritten. Now, naturally a lot of people, especially outsiders to the UK’s unique constitutional arrangements, would gasp at the thought of having constitutional sources that are entirely unwritten, or at least sources that were originally unwritten. After all, the majority of the world’s legal jurisdictions have codified constitutions. This neatly separates constitutional principles from principles that are less so.

Further, it allows for transparency of the law, which is a key principle of the Rule of Law in that the law should be accessible to all (which is rather important when dealing with constitutional issues). Currently, due to their nature, not everyone is aware of every convention. Such was the case with the Queen’s consent (which is not even covered in public law modules). This convention is described as “a different constitutional beast” by David Allen Green in his blog. He further suggests that it was “hiding in plain sight”. As we shall see in the course of this article, it really is a constitutional beast and should be abolished.

The Queen’s consent is an entirely different form of convention to royal assent, they function entirely independently of each other. Whilst assent is granted after the bill has passed parliament, the Queen’s consent is actually obtained whilst the ‘law’ is still in its early stages, whilst it is still a bill. Essentially, Queen’s consent is the mechanism by which the monarch grants ‘permission’ to parliament to debate the bill. According to the guide published by the Office of the Parliamentary Counsel it seems that the process of obtaining Queen’s consent is relatively simple and straightforward. All that is required is a simple nod by a Privy Counsellor in the House of Commons. In the House of Lords, it’s the same process but the Privy Counsellor actually does it orally. An insignificant procedural difference.

What is significant, however, is the difference between royal assent and consent. Royal assent is always granted (by convention) and it would be unthinkable for any self-respecting monarch to withhold assent — it would create a major constitutional crisis (and probably lead to some sort of revolt). According to the parliament website, the last time assent was withheld was in 1707 by Queen Anne. Clearly, royal assent has no actual power other than being completely ceremonial. Further, royal assent is very rarely given in-person by the Queen, in almost all cases the Speaker of the House of Commons or Lords would declare that royal assent had been granted.

Queen’s consent on the other hand is an entirely different story: it has actual power to influence legislation (however minor or major), as The Guardian pointed out in several of their investigative reports. This convention was used by the Royal Family to their advantage on several occasions; by the Queen in the 1980s to exempt her from certain disclosure legislation in terms of shareholdings, and by Prince Charles, who has used his power of consent over many years, starting in 1967, and most recently in 2002 with the Prince’s consent on the Commonhold and Leasehold Reform Act 2002.

More interestingly so is the difference between the source of power of royal assent and the Queen’s consent. Royal assent is derived from prerogative powers which is an ancient power attributed to the monarch. In the 21st century it is entirely ceremonial (as mentioned above) and given on the advice of the Prime Minister. Contrarily, and note this is a stark difference, Queen’s consent has no source of authority. There is no legal authority for consent. It is not based on prorogative powers. Queen’s consent has thus become a convention without having any sort of legal standing whatsoever, it is simply accepted by people to be part of the legislative process.

It is unfathomable that in the 21st century the Queen and the Prince of Wales hold such great power all whilst the UK is branded a constitutional monarchy. It may well be a constitutional monarchy in theory, but it seems that the monarchy has a lot more power than previously thought. Long gone is the time when the monarch could claim the throne ‘by the grace of God’. The population accepts the monarch as the head of state, but not as the head of state installed on the throne by God through a supernatural power. In essence this is a private individual that has the power to influence any and all legislation relating to the properties of the Crown and anything to do with the Crown’s powers.

It would be outrageous if we decided one day that the average family, for example the ‘Smith family’, held the power to shape legislation to protect their private interests through an exemption whilst everyone else in the country has to abide by the law. Clearly, this convention of Queen’s consent is something which is contrary to the rule of law, where the law applies equally to all. We are no longer living in the middle ages where the King or Queen may make up (or in this case shape) the law as they please. In this case of course, the law would still apply to the monarch but for any exemptions that they forced into the legislation through their powers under consent. It must also be noted that this does not look good with respect to the separation of powers, where the monarchy has influence over the executive in their policy planning (asking for exemptions) and the legislature with their requirement to obtain ‘permission’ to debate a certain bill.

Evidently, reform is drastically needed in order to prevent such blatant disregard towards equality under the law. Thankfully, given that this convention does not have any legal source of authority it can easily be removed and it would be good for the Crown if this convention was indeed removed in order to avoid further scandals in the future. Could this be another annus horribilis for the Crown?

Michal Smigla is a first-year law student at the Institute of Law, Jersey. He’s interested in contract and criminal law, and aspires to qualify as a barrister or Jersey advocate.

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Welcome to the third and final article in a mini-series assessing the extent to which the United Kingdom government’s legal response to the coronavirus pandemic complies with the rule of law.

The first article introduced Joseph Raz’s eight-point conception of the rule of law, outlined key coronavirus-related legislation, and described coronavirus laws’ opacity. The second found that coronavirus laws, while themselves ephemeral, are guided by open, stable and clear general rules. It also found that, while the judiciary remain independent and capacious to review implementation of other principles, principles of natural justice seem to have been violated in coronavirus-related prosecutions in Westminster Magistrates’ Court.

This article considers the final two criteria in Raz’s eight-point conception of the rule of law. First, we consider whether courts have been easily accessible during the pandemic. Second, we discuss whether the discretion of crime preventing agencies has been allowed to pervert the law.

Criterion 7. ‘Courts should be easily accessible’

This criterion may have been violated during the pandemic. We will focus here on criminal courts, as their accessibility poses the greatest problem for rule of law purposes. Even before the pandemic, a decade of austerity had caused large backlogs of criminal cases, meaning that one would have to wait for several months (or years) before one’s case could be heard. The problem has only worsened.

Today, the number of cases awaiting trial in the magistrates’ court is the highest it has ever been (517,782 cases) — a growth of 31% since early March. In the same period, the backlog in criminal courts (46,467) has grown 16%. While some of this increase was attributable to the more-or-less inevitable closure of courts in March, practising barristers have attributed the scale of the problem to a sluggish and insufficiently ambitious governmental approach to re-opening court centres.

Joanna Hardy, for example, observed that “Primark had plexiglass screens long before jury boxes did… [and t]he Nightingale courts that arrived with great fanfare were needed months earlier and in greater numbers”. Bernard Richmond suggested that English theatres, cinemas and arts venues could have been used as Nightingale courts, staffed by recorders, so as to deal with “all the short cases which are clogging up the system”.

If we have a month lockdown but jury trials at continuing, how about we put some money into the theatres and cinemas and arts venues & use lots of recorders desperate to work by setting up nightingale courts and doing all the short cases which are clogging up the system

— Bernard Richmond (@phatsilk_qc) October 31, 2020

To their credit the government, evidencing an intention to increase court effectiveness, in July pledged £80 million “for criminal courts to recover from [the] pandemic”, promised to recruit 1,600 new staff and to establish eight more Nightingale Courts. However, it’s unclear whether these measures will be sufficient to effectively remedy the inaccessibility issue. Raynor J of Woolwich Crown Court, in a judgment handed down on 8 September 2020, commented that “£80 million does not, given the scale of the problem, amount to highly significant expenditure” and asserted that, in responding to the pandemic, “the state has failed in its duty to organise its legal systems”.

In sum, the existing practical difficulties associated with accessing criminal courts suggest non-compliance with the rule of law. The government’s willingness to make amends, while commendable, does not itself remedy the issue.

Criterion 8. ‘The discretion of crime preventing agencies may not pervert the law’

There may have been violation of this rule of law criterion. By ‘perversion’, Raz explains that “the prosecution should not be allowed, for example, to decide not to prosecute for commission of certain crimes, or for crimes committed by certain classes of offenders”. Are there instances of the police failing to investigate arguable criminal offences during the coronavirus pandemic? There are.

Dominic Cummings is a political strategist who served as chief adviser to Prime Minister Boris Johnson until 13 November 2020. Between March and April 2020, there were (at least) three occasions in which Cummings arguably broke criminal law. The police’s failure to prosecute, if these are arguable cases of illegality, could be interpreted as a breach of the instant criterion of the rule of law.

First, on the evening of 27 March, Cummings left 10 Downing Street with his family and drove to his parents’ house in Durham. At this time, the law in force was S.I. 2020/350, which criminally proscribed people leaving their place of residence without ‘reasonable excuse’. Did Cummings have a ‘reasonable excuse’? His explanation, given on 25 May, related to childcare. Cummings feared that he and his wife would imminently be weakened by coronavirus, and so drove to his parents’ house to avoid his four-year-old son being without capable adult supervision.

Second, on 12 April (having remained in Durham for two weeks), Cummings drove 25 miles from his parents’ house to Barnard Castle. The relevant criminal law for our purpose was, again, S.I. 2020/350. Did Cummings have a ‘reasonable excuse’ for leaving his parents’ house? Cummings’ explanation was that he drove to test his eyesight. Having recently been experiencing problems with his vision, Cummings said that he drove the short distance to Barnard Castle to test his capabilities before undertaking the far longer journey back to work in London.

The third instance also concerns the Barnard Castle incident. A road traffic law is now in issue. Road Traffic Act 1988, section 96, criminally proscribes driving a motor vehicle on a road with defective eyesight. There is no room to justify transgression of this standard. Driving with poor eyesight is a criminal offence.

Did Cummings break the law on any of these occasions? The first two instances, which can be taken together, do not admit of a clear answer. Cummings needed to have ‘reasonable excuse’ to leave his residence, but ‘reasonable excuse’ is nowhere defined in the Regulations. The thirteen examples of decidedly reasonable excuses provided at reg 6(2) (e.g. “to obtain basic necessities”, “to seek medical assistance” etc.) are non-exhaustive. That is, a court may find someone had a ‘reasonable excuse’ even if their behaviour falls outside the given list. However, it was suggested by Durham Police on 28 May that Cummings might have been without reasonable excuse when driving to Barnard Castle; that the trip “might have been a minor breach of the regulations that would have warranted police intervention”. Impunity, in these circumstances, may suggest non-conformity with the rule of law.

The third instance is yet more suggestive of a criminal offence. Sir Peter Fahy, former Chief Constable of Manchester Police, stated that the drive to Barnard Castle “certainly appears to be a breach of the Highway Code” and that “it’s not the way to test your eyesight… [to] put, potentially, other people in danger”. Similarly, John Apter, Chair of the Police Federation for England and Wales, advised that “[i]t’s not a wise move” to test your eyesight by driving. “If you’re feeling unwell and your eyesight may be impaired, do not drive your vehicle”.

Folks, I say this in all sincerity and as an important road safety issue. If you’re feeling unwell and your eyesight may be impaired do not drive your vehicle to test your ability to drive. It’s not a wise move.

— John Apter (@PFEW_Chair) May 25, 2020

These statements impliedly treat as established facts that Cummings’ vision was impaired, and that he drove a motor vehicle on the road. Those are the only ingredients for the section 96 offence, and they are here treated as being fulfilled.

It appears, then, that Cummings broke criminal laws in March and/or April earlier this year. The police’s failure to prosecute Cummings can be interpreted as non-conformity with this criterion of the rule of law.

Conclusion

The coronavirus pandemic has presented, and continues to present, immense legal challenges. This mini-series of articles has found that, in meeting these challenges, the government’s response has deviated from Joseph Raz’s formal understanding of the rule of law in several respects.

The coronavirus laws are unclear, long, vague, fast-changing and unhelpfully blur into legally ineffective government guidance. The government’s response to coronavirus failed to ameliorate (or, have contributed to) the inaccessibility of criminal courts. Principles of natural justice have been violated through the prosecution of Londoners behind closed-doors under the Single Justice Procedure. Finally, the police failed to prosecute a senior political adviser, notwithstanding that he may well have broken coronavirus-related and ordinary criminal laws.

Pointing toward compliance with the rule of law, however, it was observed that the coronavirus laws are prospective, suitably empowered by an enabling statute and are subject to review by the courts. Furthermore, the independence of the courts throughout the pandemic has remained unshaken.

Importantly, the findings against the government do not, by themselves, constitute material criticism. Even Raz recognised that the rule of law has “prima facie force” only — that it may be appropriate to deviate from strict adherence to the rule of law, if that is necessary to vindicate some other more important aim. One might argue, for example, that to create a legal response to coronavirus that effectively protects public health, it is quite necessary to ride as roughly over the rule of law as the government have been found to have done. I leave that final assessment to the reader.

Jordan Briggs graduated in law from the University of Oxford and began an LLM at the LSE in September. He is an aspiring barrister.

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This is the second article in a three-part mini-series assessing the extent to which the United Kingdom government’s legal response to the coronavirus pandemic complies with the rule of law. The first article in this series introduced Joseph Raz’s eight-point conception of the rule of law, outlined key coronavirus-related legislation, and began analysis by discussing coronavirus laws’ opacity.

This article considers five further rule of law criteria. We begin with the relative stability of coronavirus laws. Next, we question whether their creation was guided by open, stable and clear general rules. Then, we assess the independence of the judiciary. Afterward, we consider whether principles of natural justice are being observed. Finally, we examine courts’ review powers over implementation of rule of law principles.

Criterion 2. ‘Laws should be relatively stable’

Coronavirus laws can be described as ‘unstable’ because they change often. Consider the history of the Coronavirus Act 2020.

The Act came into force on 25 March 2020. The next day (26 March), the Act was amended to criminally proscribe leaving one’s residence without ‘reasonable excuse’ and to affect widespread business closures (S.I. 2020/684). Twenty-six days later (22 April) the foregoing was altered to proscribe simply being outdoors without a ‘reasonable excuse’ (S.I. 2020/447). Twenty days afterward (13 May), amendment expanded the list of example ‘reasonable excuses’ and increased the monetary fine attaching to first breaches of the Regulations (S.I. 2020/500). Nineteen days later (1 June), the general prohibition against leaving home was removed, replaced by a ban on overnighting elsewhere than one’s own residence (S.I. 2020/558).

Note that the above relates only to business closure and personal movement. It says nothing of the numerous contemporaneous changes to other areas of law (e.g. tax credits (S.I. 2020/534), child adoption (S.I. 2020/445) and misuse of drugs (S.I. 2020/468)).

Nor was this a uniquely unstable period in the history of coronavirus law. S.I. 2020/684, a key piece of secondary legislation, was changed six times in the two-and-a-half months after its introduction. Similarly short-lived was the three-tier system (S.I. 2020/1103-5), which existed only for two weeks before giving way.

So, coronavirus laws appear ‘unstable’. What is added by the comparator ‘relatively’ in this context? For Raz, even unstable laws should remain capable of guiding individuals’ behaviour: if laws are too short-lived, ‘people will find it difficult to find out what the law is at any given moment’, and unhappily won’t be able to be ‘guided by law in their long-term decisions’.

Arguably, coronavirus laws are too unstable to allow individuals to plan lawful conduct. Day-to-day planning is complicated by the ephemerality of the (voluminous and complicated) law. Long-term planning is similarly problematic: it is difficult to predict what the law will be in a month from now, as the history of the Coronavirus Act 2020 illustrates. For these reasons, coronavirus laws appear less stable than the standard associated with the rule of law.

Criterion 3. ‘The making of particular legal orders should be guided by open, stable and clear general rules’

Here, Raz means that ‘particular… laws… [should be] enacted only within a framework set by general laws which are more durable’. There are two types of general law; ‘those which confer the necessary powers for making valid orders’, and ‘those which impose duties instructing the power-holders how to exercise their powers’. Gladly, coronavirus laws comply with these requirements.

First, consider the Act ‘confer[ring] the necessary powers for making valid orders’. Public Health (Control of Disease) Act 1984 empowers the Secretary of State for Health to issue statutory instruments aimed at controlling infections or contaminations in England and Wales (section 45C). Under the emergency procedure in section 45R, the Secretary may issue Regulations with immediate legal effect, without having to lay any draft before parliament. Coronavirus-related secondary legislation usually cite these empowering provisions in their ‘introductory texts’.

Second, note the ‘duties instructing the power-holders how to exercise their powers’. Section 45D of the 1984 Act provides that Regulations may only be created if the Secretary considers creation a ‘proportionate’ way of responding to a ‘serious and imminent threat to public health’. Section 45R provides that the emergency procedure may be used only if the Secretary is of the opinion that ‘by reason of urgency’ it is ‘necessary to make the order’ without laying a draft before parliament. Judicial review controls also apply: regulations (and their making) may be challenged on grounds of rationality, respect for the rules of natural justice, vires and, when the Human Rights Act 1998 is engaged, proportionality.

The instant criterion of the rule of law is satisfied, then, because coronavirus laws owe their existence to empowering legislation, and are created subject to (statutory and common law) restrictions.

Criterion 4. ‘Independence of the judiciary should be guaranteed’

Happily, little need be said here. The coronavirus pandemic has not affected a change in the selection or training of judges. The separation of powers has not been reconfigured. There is no evidence that judges’ adjudicatory practices are being influenced by external (political or other) pressures.

There is no detectable divergence from this rule of law criterion.

Criterion 5. ‘The principles of natural justice should be observed’

Emergent news reports suggest violation of this criterion. By ‘principles of natural justice’, Raz is referring to ‘open and fair hearings, absence of bias and the like’. What’s in issue, for our purposes, are ‘open and fair hearings’.

Tristan Kirk is the courts correspondent for the Evening Standard. Kirk attests that, behind closed doors in Westminster Magistrates’ Court, there have been trials of almost 300 Londoners accused of violating coronavirus-related laws. The cases, relating to alleged breaches between March and May, are heard by a single magistrate and legal advisor sitting in private under the Single Justice Procedure. That procedure, exercisable exclusively for summary-only, non-imprisonable offences, is most commonly used in road traffic cases. The accused needn’t be present, and can instead enter a plea in response to a ‘Single Justice Procedure Notice’ sent to them by post.

Kirk reports that, in coronavirus-related prosecutions, the Single Justice Procedure affected “convictions for offences [people] weren’t prosecuted for”, “hefty fines handed out which may exceed the legal maximum” with “police being allowed to [prosecute a defendant twice], when [the original] paperwork is botched”.

Curious goings-on at Westminster magistrates in prosecutions for breaking the first coronavirus lockdown:

– Convictions for offences ppl weren't prosecuted for
– Hefty fines handed out which may exceed the legal maximum
– Police allowed to try again when paperwork is botched

— Tristan Kirk (@kirkkorner) November 11, 2020

On some days, an average of “just two-and-a-half minutes” was allocated to dispense with each case, sometimes on the basis of only “very thin” evidence. That “[v]ital open justice safeguards [have been] ignored and forgotten” is objectionable then, both on its own terms, and because in consequence “obviously flawed prosecutions [have been] going through unchallenged”.

These departures from “open justice” violate the instant rule of law criterion.

Criterion 6. ‘Courts should have review powers over the implementation of other principles’

There is no violation of this rule of law principle because courts remain competent to review secondary legislation and executive exercises of power. To confirm that ordinary courts’ judicial review practices are continuing, one need only visit judiciary.uk and look at the judgments that are being handed down every day.

Courts also have review powers over the new coronavirus laws. The High Court has twice refused to condemn the principal coronavirus-related statutory legislation.

First, in May 2020, the High Court heard R (Hussain) v Secretary of State for Health and Social Care. The applicant challenged the (then) regulations, whose effect prohibited him from attending mosque for Friday prayers. Swift J, dismissing the challenge, found that the regulations did not unlawfully discriminate (contra Article 14 ECHR), nor did they disproportionately interfere with the applicant’s rights to practise a religion (contra Article 9).

Second, in July 2020, was R (Dolan) v Secretary of State for Health and Social Care and Secretary of State for Education. The applicant challenged the government’s approach to the pandemic, drawing attention to the damage sustained by the economy, the impact on education and difficulties associated with treating patients for non-coronavirus related medical conditions. Dismissing the challenge, Lewis J held inter alia, that the regulations were intra vires the 1984 empowering Act, that the Secretary had not followed an unlawful decision-making process in making the regulations, and that the regulations did not unlawfully interfere with Articles 5, 8 or 11 ECHR.

There has been only one successful challenge to coronavirus-related secondary legislation. On 24 November 2020, the Court of Appeal handed down judgment in R (Article 39) v Secretary of State for Education. The Court unanimously held that the Secretary of State had acted unlawfully in failing to consult the Children’s Commissioner for England before removing legal safeguards applicable to 78,000 children in the English care system. While accepting that the regulations were made under pressure, Baker LJ held that “the urgency was not so great as to preclude at least a short informal consultation” and that the Secretary’s failure to consult was “conspicuously unfair”. The remedy was a declaration of unlawfulness, given that the regulations were no longer in force.

As courts remain competent to review ordinary and coronavirus-related secondary legislation, there is no violation of this rule of law principle.

Interim conclusion

What have we covered so far? In the first article, we observed that coronavirus laws, while prospective and open, might be so unclear as to disempower people from planning their lives in accordance with the law. In this, the second article, we found that coronavirus laws’ instability could produce a similar plan-obfuscating effect. We also discussed Westminster Magistrates’ Court’s supposed deviations from principles of natural justice.

However, three matters pointed toward compliance with the rule of law. Coronavirus laws are guided by open, stable and clear general rules. The independence of the judiciary remains. Courts remain capacious to review implementation of other principles.

In the third and final article in this mini-series, we will consider whether courts have been easily accessible during the coronavirus pandemic, and whether the discretion of crime preventing agencies has been allowed to pervert the law. I look forward to seeing you there.

Jordan Briggs graduated in law from the University of Oxford and began an LLM at the LSE in September. He is an aspiring barrister.

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This is the first of three articles in a mini-series. It will assess the extent to which the United Kingdom government’s legal response to the coronavirus pandemic complies with the rule of law. This article will explain what is meant by the ‘rule of law’ for our purposes, present a concise history of key coronavirus legislation, and begin the assessment itself.

What is the ‘rule of law’?

The meaning and content of rule of law is disputed. Some theorists adopt ‘formal’ conceptions, while others take ‘substantive’ views. On a ‘formal’ view, the rule of law is associated only with certain qualities about how the law is made, administered and adjudicated. So understood, the rule of law implies nothing about human rights, justice or equality.

‘Substantive’ conceptions go further. In addition to requiring the aforementioned formal qualities, the rule of law is understood to require observance of normatively desirable standards. As Tom Bingham memorably put it, “a state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law” (2010, The Rule of Law).

We lack space to invoke both ‘formal’ and ‘substantive’ conceptions to assess the United Kingdom government’s legal response to coronavirus. We must pick one.

We will use the ‘formal’ lens. This is for two reasons. First, the formal lens helpfully separates appraisal of laws’ formal qualities from questions about substantive merit. We already have procedures to assess a law’s substantive merit: ethical or moral inquiry. The rule of law, by contrast, is the only analytic tool which looks to formal qualities. The rule of law is more useful as a bespoke inquiry into laws’ formal qualities, than it is as a catch-all term for the normative desirability of particular legal orders. Second, formal conceptions tend to helpfully disaggregate the rule of law into discrete criteria. Thus, the formal conception allows us to methodically assess the government’s response against each criterion in turn, and absolves us from thereafter having to proceed into the swamps of substantive morality.

There are many formal accounts. I will use that set out by Joseph Raz in Chapter 11 of The Authority of Law (1979). This is because it captures the majority of formal touchstones popularly associated with the rule of law. There are eight touchstones:

(1) All laws should be prospective, open and clear;
(2) Laws should be relatively stable;
(3) The making of particular legal orders should be guided by open, stable and clear general rules;
(4) Independence of the judiciary should be guaranteed;
(5) The principles of natural justice should be observed;
(6) Courts should have review powers over the implementation of other principles;
(7) Courts should be easily accessible, and;
(8) The discretion of crime preventing agencies may not pervert the law.

The forthcoming analysis will analyse the facts of the government’s legal response to coronavirus against each criterion in turn.

Overview of coronavirus legislation

To prepare ourselves for that analysis, we should now familiarise ourselves with key coronavirus-related legislation. All were introduced or affected by the office of the present Secretary of State for Health and Social Care, Matt Hancock. Note that, in the main body of the article(s), to save space I refer to coronavirus-related statutory instruments by their abbreviations only.

• Coronavirus Act 2020. Took effect on 25 March 2020. Affected legislative and regulatory changes to support the United Kingdom’s pandemic response. Conferred broad discretionary powers on the government inter alia to restrict public gatherings, to take measures to assist the economy, to temporarily detain people suspected as being infectious (etc.)

• The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (S.I. 2020/684). Took effect on 26 March 2020. Affected business closures. Restricted interpersonal ‘gatherings’ (i.e. two or more people coming together in order to engage in social interaction or to undertake an activity with each other, unless, inter alia, those individuals are members of the same household). Limited persons’ free movement (i.e. no person could leave their residence without ‘reasonable excuse’).

• The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (S.I. 2020/750). Took effect on 4 July 2020. Replaced and relaxed S.I. 2020/684, above. Empowered Secretary of State for Health and Social Care to make legally-effective ‘declarations’ immediately restricting access to public outdoor places.

• The Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020 (S.I. 2020/1103) [and equivalent provisions for ‘High’ (S.I. 2020/1004) and ‘Very High’ areas (S.I. 2020/1005)]. Took effect on 12 October 2020. Affected three different versions of restrictions throughout England, from Medium (least restrictive) to Very High (most restrictive). Restrictions related principally to multi-personal gatherings and business closures.

• The Health Protection (Coronavirus, Restrictions) (No. 4) (England) Regulations 2020 (S.I. 2020/1200). Took effect on 5 November 2020. Revoked the three-tier system. Affected a second nationwide lockdown in England. Affected reclosure of many businesses. Provided that no person may leave or be outside their residence without ‘reasonable excuse’. Re-enacted prohibitions on gatherings.

Duly prepared, we may now assess the extent to which the United Kingdom government’s legal response to coronavirus complies with the rule of law.

Criterion 1. ‘All laws should be prospective, open and clear’

The three elements of this criterion exist to guide us toward a society, protective of individual liberty, in which people can find out what the law is and plan their actions in accordance with it. The contrary situation – in which legal sanctions are imposed in respect of retroactive, opaque or secret laws — is repugnant.

As regards prospectivity, coronavirus laws have been so. That is, the laws regulate future acts only (i.e. do not impose liability in respect of past acts that were perfectly lawful when performed). By ‘openness’, Raz means that laws should be ‘adequately publicised’. Coronavirus laws are ‘open’ — they can be read for free at legislation.gov.uk.

Sadly, however, coronavirus laws are not ‘clear’. Four matters point towards this conclusion.

First, coronavirus laws are very long. The Coronavirus Act 2020 runs to 348 pages, has 102 sections and 29 schedules. The ‘three-tier’ system of lockdown comprised some 30,000 words, spread over three statutory instruments. Simply reading all this information is a challenge, to say nothing of understanding it.

Second, coronavirus laws are very numerous. At the time of writing, legislation.gov.uk yields 551 laws with the word ‘coronavirus’ in the title. Indeed, many statutory instruments exist simply to amend other, non-coronavirus-related secondary legislation on topics from income tax (S.I. 2020/524) to apprenticeships (S.I. 2020/1120) to offshore chemicals (S.I. 2020/855). One must now sift through a large volume of legal materials, if one is to discern the law to which one is subject.

Third, coronavirus laws contain vague language. Take, for example, ‘mingling’. ‘Mingling’ in a group of more than six people was prohibited (outside certain exempted situations) by S.I. 2020/986. This was the first proscription of interpersonal ‘mingling’, and the meaning of the word wasn’t clear. On 15 September 2020, Priti Patel (Secretary of State for the Home Department) asserted that the proscription disallowed two families of four people from stopping to chat while walking to a park. A contrary view was expressed by Adam Wagner (the human rights barrister and Specialist Advisor to the Joint Committee on Human Rights’ COVID-19 Inquiry) who tweeted that, to ‘mingle’, people must have met ‘in order’ to socially engage, which the park-goers will not have done. A law is not particularly ‘clear’ if specialists disagree about what it means.

Fourth, coronavirus laws can become confused with legally inconsequential government guidance. On 23 March 2020, Prime Minister Boris Johnson gave a televised address to the United Kingdom. Johnson instructed that “you must stay at home”, and presented “the only reasons you should leave your home” as a closed list (e.g. shopping for basic necessities; one form of exercise per day; medical need; travelling to and from work). At the time, none of this was law. Three days later, though, S.I. 2020/684 entered into force. Strikingly, the instrument provided that people could leave homes if they had a ‘reasonable excuse’ (the non-exhaustiveness of which differed from Johnson’s four given examples). Laws are not ‘clear’ if, owing to additional government guidance on the relevant issue, people are liable to become confused about the strict legal position. Particularly so when that additional guidance is communicated directly to the populace, in imperative terms, by the Prime Minister.

Notwithstanding their prospectivity and openness, coronavirus laws’ lack of clarity (associated with their length, volume, opacity and potential for conflation with mere guidance) disrupts individuals’ abilities to plan their lives in accordance with what is lawful. To that extent, the government’s response appears to deviate from what is required by the first criterion of Raz’s conception of rule of law.

Interim conclusion

This article has covered a lot of ground. We have discussed different understandings of the ‘rule of law’, and have selected Joseph Raz’s account for our purposes. We have surveyed key coronavirus legislation, and have begun analysing the extent to which the government’s legal response to coronavirus complies with the rule of law, drawing particular attention to the laws’ opacity. That’s quite enough for one day.

In the second instalment in this miniseries, we discuss five further criteria against which the government’s legal response may be judged. I hope to see you there.

Jordan Briggs graduated in law from the University of Oxford and began an LLM at the LSE in September. He is an aspiring barrister.

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On 31 July 2020, the Ministry of Justice (MoJ) announced that a panel of experts would undertake a review of administrative law and consider whether there was a need to reform the judicial review process.

The first part of this article explains the aims of and political background to this review of administrative law. The second provides detail on the six individuals who comprise the panel.

1. Review of administrative law: aims and political background

The MoJ’s press announcement states that the review “delivers on a manifesto commitment to ensure the judicial review process is not open to abuse and delay”. The relevant ‘commitment’ is found on page 48 of the Conservative Party’s 2019 manifesto. “After Brexit”, the passage reads, a Conservative government would “look at the broader aspects of our constitution: the relationship between the government, parliament and the courts”, including “the functioning of the Royal Prerogative” and “access to justice for ordinary people”. Several lines later, a commitment is made to “update the Human Rights Act and administrative law”, and to “ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or create needless delays”.

And so, legitimised by these manifesto promises, the MoJ has asked the panel to consider “whether the right balance is being struck between the rights of citizens to challenge executive decisions, and the need for effective and efficient government”. Four specific issues will be addressed:

1. “Whether the terms of judicial review should be written into law.”
2. “Whether certain executive decisions should be decided on by judges.”
3. “Which grounds and remedies should be available in claims brought against the government.”
4. “Any further procedural reforms to judicial review, such as timings and the appeal process.”

We move now to the individuals who will consider these matters.

2. Panel members

There is significant diversity in the panel members’ backgrounds and fields of specialism. In the interests of brevity, our focus will be on members’ experience in and publications on administrative law, in so far as they exist in each case.

Lord Edward Faulks QC — Panel chair

Lord Faulks QC is a barrister at 1 Chancery Lane who took silk in 1996. According to his chambers profile, Lord Faulks’ practice areas include medical law, personal injury, police law, professional liability and public sector and human rights. From 2005-6, Lord Faulks QC was a special adviser to the Department for Constitutional Affairs on compensation culture. Between January 2014 and July 2016, he served as a minister at the MoJ under Chris Grayling.

Lord Faulks QC has written publicly on administrative law. Two articles are of particular interest. The first, entitled “The Supreme Court’s prorogation judgment unbalanced our constitution. MPs should make a correction”, was published by conservativehome.com on February 7 2020. Lord Faulks QC criticised the Supreme Court for finding against the government in Miller (No. 2), writing that “the decision to prorogue parliament, however questionable it might have been, was the exercise of a clear prerogative power, the merits of which are the stuff of politics not law”. Lord Faulks QC invited parliamentary legislative intervention “to settle authoritatively the non-justiciability of the prerogative power to prorogue… and perhaps also to impose further limits on the scope of that power”. Such legislation, he continued “may be the only way to limit the courts’ incursion into the political territory”.

The second article, entitled “The opportunity to repeal the Human Rights Act, quit the ECHR and bring justice home may not come again”, was published on April 26 2017 by the same website. Lord Faulks QC wrote that, having worked with the Human Rights Act, he had “never [become] convinced that it added significantly to the protection of human rights”, and that he “could not see why human rights could not be protected perfectly well through the [domestic] common law”. Problems with the Human Rights Act, he continued, included “those extreme difficulties with getting rid of terrorists”. These problems might be solved, Lord Faulks QC felt, either by introducing a British Bill of Rights, or repealing the Human Rights Act and leaving the Council of Europe. The “braver and cleaner option”, however, would be to “leave the Council of Europe altogether, repeal the Human Rights Act and allow our own courts and parliament to protect human rights”.

Dinah Rose QC, addressing this appointment on Twitter, stated that while “Lord Faulks QC is a courteous and intelligent man”, comments such as those above illustrate that “[h]e’s already made his mind up on the issue to be examined by the ‘independent’ review of administrative law that he’s chairing”.

Here's Lord Faulks in February, urging legislation to "limit the courts’ incursion into political territory". He's already made up his mind on the issue to be examined by the "independent" review of administrative law that he's chairing.https://t.co/yNH1wt1d12

— Dinah Rose (@DinahRoseQC) July 31, 2020

Professor Carol Harlow QC

Professor Harlow is an emeritus professor of law at the London School of Economics, where she has taught since 1978. Professor Harlow became an honorary QC in 1996, was enrolled into the British Academy in 1999 and became a bencher of Middle Temple in 2009. She has written extensively on administrative law and the law of the European Union (including, notably on procedural changes, automation, executive accountability and pluralism).

Whilst it would be reductive to summarise the tone of these works in a single stroke, attention may be drawn to an article entitled “Public law and Popular Justice”, published by the Modern Law Review in 2002. Professor Harlow criticised the involvement of ‘campaign groups’ in litigation, and warned against the politicisation of the judicial process. Campaign groups’ involvement, the argument ran, might undermine qualities of certainty, finality and independence for which the legal system is esteemed, and thereby undesirably undercut its legitimacy. Professor Harlow’s conclusion was that the great majority of campaign groups should not be granted permission when seeking judicial review.

Vikram Sachdeva QC

Vikram Sachdeva QC is a barrister at 39 Essex Chambers who took silk in 2015. He has taught administrative and constitutional law at Cambridge University and was appointed chair of the Constitutional and Administrative Law Bar Association in September 2019.

Sachdeva has appeared in a large number of judicial review and human rights cases, with considerable experience in the Supreme Court and Court of Appeal. His specialisms include medical law, media law and disputes relating to student loans (as well as matters outside public law altogether, such as commercial and tax law). In NHS Trust v Y, for example, the question was whether Article 2 of the European Convention of Human Rights was breached by clinicians’ failure to seek permission from courts before withdrawing clinically assisted nutrition and hydration from a patient in a prolonged disorder of consciousness. R (Tigere) v Secretary of State for Business, Immigration & Skills concerned whether it was a breach of Articles 2 and 14 (of the same Convention) to deny the claimant a student loan.

Sachdeva is clearly well-acquainted with the protection that judicial review and human rights law affords vulnerable claimants.

Professor Alan Page

Professor Page has been the professor of public law at Dundee University since 1985. He teaches constitutional, administrative and EU law at undergraduate level, and supervises postgraduate students on constitutional work. Professor Page has served in an advisory capacity many times. Among other appointments, he has acted as a specialist adviser to the Scottish parliament’s Scotland Bill Committee, to the European and External Relations Committee, and to Europe’s Office for Democratic Institutions and Human Rights.

Professor Page has written extensively on the Scottish constitution, and on the importance of focusing squarely on the operation of government when studying public law. His 1999 book entitled “The Executive in the Constitution: Structure, Autonomy and Internal Control” detailed the inner workings of executive government in Scotland, from the civil service to the institutions, allocation and monitoring of government finance. In so doing, Professor Page argued that the executive’s inner machinations (i.e. co-ordinating and controlling itself) are just as important in the constitutional order as its democratic and legal accountability.

Celina Colquhoun

Celina Colquhoun is a barrister at 39 Essex Chambers. Her specialisms, as listed on her chambers Profile, include “all aspects of planning and environmental law” and “licensing manners”. The same source states that Colquhoun “regularly appears as an advocate in the higher courts… in public law cases”, which is borne out by the list of cases in which she has appeared. These cluster around infrastructure, development certificates, housing and environmental law. Colquhoun’s book entitled “A Practical Guide To The Community Infrastructure Levy” will be released in October 2020.

Nick McBride

Nick McBride is a fellow of Pembroke College, Cambridge. He was formerly a fellow of All Souls College, Oxford. He has written extensively on legal philosophy and the law of obligations (overwhelmingly on tort) and produces guidebooks to help new law students acclimatise to the subject.

An example of McBride’s fusion of philosophy and positive law can be found in his 2018 book entitled “The Humanity of Private Law”. It is argued therein that the law of obligations is concerned with the flourishing of its subjects and, radically, not with wealth-maximisation or preserving relationships of mutual interdependence.

3. Conclusion

These are the members of the panel that will consider whether there is a need to reform the judicial review process. Lord Falconer, the Labour peer and Shadow Attorney General, stated on Twitter that the Prime Minister expects a response from the committee within five months.

PM just appointed his judicial review limiting committee, chaired by lawyer who wrote after prorogation case courts’ JR powers should be curbed. PM expects response within 5 months from committee. Once it’s rubber stamped curbing courts’ powers another check and balance lost.

— Charlie Falconer (@LordCFalconer) July 31, 2020

Jordan Briggs graduated in law from the University of Oxford. He plans to commence a LLM at the LSE from September. Jordan is an aspiring barrister.

The post Meet the experts who will consider reforming judicial review appeared first on Legal Cheek.

In the 2002 case Thoburn v Sunderland City Council, (Sir John) Laws LJ introduced the idea of constitutional statutes. He said: “We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes.” He gave some examples of constitutional statutes, including: Magna Carta 1297, the Bill of Rights 1688, the Human Rights Act 1998, and the European Communities Act 1972. He also said that we could identify constitutional statutes on a principled basis:

“In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.”

Significantly, he argued that, while ordinary statutes could be impliedly repealed, constitutional statutes could not. He said that the repeal or amendment of a constitutional statute could be achieved only through express language in a subsequent Act of Parliament or where the intention of parliament to alter or repeal earlier legislation is indisputable.

To explain, it has traditionally been considered that parliament may alter or repeal all Acts of Parliament in two ways: expressly or impliedly. By expressly, we mean that a clause in a later Act explicitly states that an earlier Act, or provisions of it, are repealed. So, to take a random (and constitutionally insignificant) example, paragraph 1 of part 1 of the Schedule to Haulage Permits and Trailer Registration Act 2018 simply states: “The International Road Haulage Permits Act 1975 is repealed”.

Implied repeal occurs where a later Act of Parliament conflicts with an earlier one. When that happens, the earlier Act is taken to be impliedly repealed by the later one to the extent necessary to resolve any inconsistency between them. As Scrutton LJ said in Ellen St Estates v Minister of Health, the “constitutional position” is that parliament may alter an earlier statute simply “by enacting a provision which is clearly inconsistent with the previous Act”.

Sir John’s statement that constitutional statutes cannot be impliedly repealed — that they may only be expressly repealed — was novel. It also represented a significant departure from what we might call the traditional, orthodox view of parliamentary sovereignty: that there is no hierarchy among Acts of Parliament, that there is no legal distinction between constitutional statutes and other statutes, and that each Act of Parliament may be altered or repealed as easily as any other, expressly or impliedly. This traditional view may be found in Dicey’s claim:

“These … are the … traits of parliamentary sovereignty … first, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws …”

Yet, while Laws LJ’s claim was novel, it did not come out of the blue. It coincided with the way the courts had acted with regard to European Union (EU) law: that they would disapply Acts of Parliament which conflicted with EU law. This was the basis of the famous Factortame case where the House of Lords set aside provisions of the Merchant Shipping Act 1988 because they conflicted with EU law. EU law is incorporated into UK law by the European Communities Act 1972 (in Miller the majority in the Supreme Court adopted Professor John Finnis’ metaphor that the 1972 Act represented the “conduit pipe” through which EU law was introduced into UK law). The traditional view of implied repeal would require that the 1988 Act should have impliedly repealed the 1972 Act; however, in Factortame the House of Lords gave priority to EU law, incorporated via the 1972 Act, over the 1988 Act.

But, as Lord Denning made clear in the earlier case of Macarthys v Smith, if parliament states in “express terms” that an Act of Parliament should take priority over EU law — curtailing the primacy given to EU law by the European Communities Act 1972 — then “it would be the duty of our courts to follow the statute of our parliament”. That is, the courts would allow the provisions of the European Communities Act 1972, giving precedence to EU law over any other conflicting law, to be amended or repealed expressly but not impliedly.

Similarly, the courts have stated that they will not permit constitutional fundamentals to be amended except by clear words in an Act of Parliament. Lord Hoffmann has stated: “Fundamental rights cannot be overridden by general or ambiguous words”. Examples of constitutional fundamentals include: that access to the courts is not to be denied; that justice should be administered publicly in the courts; and, indeed, that fundamental values of the rule of law are upheld.

So, the protection from implied repeal that Laws LJ argues is afforded to constitutional statutes is similar to that given to the European Communities Act 1972 (identified by Sir John as a constitutional statute) and to constitutional fundamentals. In fact, Laws LJ makes the connection among these himself. In Thoburn, he says that the protection from implicit amendment given to constitutional fundamentals leads to the “insight” that constitutional statutes should be similarly protected. And, writing extra-judicially, he states that his comments in Thoburn were an attempt to rationalise the decision in Factortame where, as noted above, the House of Lords gave precedence to the European Communities Act 1972 over the Merchant Shipping Act 1988.

Since the Thoburn judgment in 2002, the idea of constitutional statutes has received support from other courts, including the High Court of England and Wales (R (on the application of Brynmawr Foundation School Governors) v Welsh Ministers), the Court of Session (Outer House) in Scotland (AXA General Insurance v Lord Advocate) and the High Court in Northern Ireland (Re Northern Ireland Commissioner for Children and Young People’s Application for Judicial Review).

More importantly, the idea has received support from the Supreme Court. In H v Lord Advocate, Lord Hope states that the Scotland Act 1998 could not be repealed by implication because of “the fundamental constitutional nature of the settlement” that the Act achieved which “render[s] it incapable of being altered otherwise than by an express enactment”. In R (HS2 Action Alliance Ltd) v Secretary of State for Transport, Lords Neuberger and Mance state that there are “constitutional instruments” and that Laws LJ’s judgment in Thoburn provides “[i]mportant insights into potential issues in this area …” (though, in this case, Neuberger and Mance do not directly express approval for the proposition that constitutional instruments may only be expressly repealed). In Miller, the majority in the Supreme Court note the “constitutional character” of the European Communities Act 1972 and that EU law is protected from implied repeal because of the Act. And in the Privacy International case, Lord Carnworth (with whom Lady Hale and Lord Kerr agreed) said: “This court has recognised the special status of such ‘constitutional statutes’, in particular their immunity from ‘implied repeal’.”

Moreover, in a recent article, Dr Samantha Spence and I note that the principle of constitutional statutes has been recognised, not only by the courts, but also by the legislative and executive branches of government. We argue that this acceptance by the three branches of government — the executive, the legislature and the judiciary — means that the idea of constitutional statutes, that they are protected from implied repeal, has moved from being novel proposition to accepted orthodoxy.

In summary, then, Sir John’s assertion in Thoburn introduced a new concept into UK constitutional law — that there is a legal distinction between ordinary statutes and constitutional statutes and that while the former may be impliedly repealed, the latter may not. While this idea is novel, it appears to have its roots in the protection from implied repeal afforded to the European Communities Act 1972 and to constitutional fundamentals. Moreover, the principle of constitutional statutes has received judicial support at the highest levels and, as Dr Spence and I note, from both the executive and the legislature.

Dr John McGarry is an associate lecturer at the University of Bolton.

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On Monday 9 September, on BBC Radio 4’s Today programme, the distinguished historian and visiting professor at King’s College London, Andrew Roberts, engaged in a discussion about the government’s obligations under the European Union (Withdrawal) (No 2) Act 2019.

The Act attempts to ensure that the UK does not leave the European Union without a deal unless this is agreed to by parliament. The participants to the discussion considered whether the Act may be challenged in the courts. Roberts stated:

“… another area that might be challenged is over whether it was constitutional at all to have a Bill passed as a result of the Speaker [of the House of Commons, John Bercow] ripping up constitutional conventions and whether, if the Speaker can be shown not to be impartial, that [the enactment of the Bill] would ever have happened. So the Supreme Court could look at that, and how the Bill came about, and whether, using Standing Order 24 to take over the government’s timetable was legal …”

The ongoing situation over Brexit has exposed some of the uncertainties and vagueness of the UK constitution. I can, though, confidently predict that the courts would not entertain a challenge to any act of parliament on the ground articulated by Roberts.

Parliament is sovereign. Traditionally, this has meant that it may enact any law whatsoever and that no court may overrule, set aside or make a ruling that runs contrary to an act of parliament. This traditional approach has been qualified by membership of the European Union. As first demonstrated by the Appellate Committee of the House of Lords in the Factortame [1990] case, the courts may disapply legislation if it conflicts with European Union law.

In non-EU cases, the courts will not overrule an act for any reason. They will not rule against an act on substantive grounds — say because the act infringes some moral or constitutional standard. This was made clear by Lord Reid in Madzimbamuto v Lardner-Burke [1968]:

“It is often said that it would be unconstitutional for the United Kingdom parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if parliament did these things. But that does not mean that it is beyond the power of parliament to do such things. If parliament chose to do any of them the courts could not hold the act of parliament invalid.”

More pertinently for this article, if an act has been passed by the three constituent parts of parliament, the two Houses and the Monarch, the courts will not rule it to be invalid on the grounds that, for instance, some procedural step was not followed. This is sometimes known as the enrolled Bill rule and was stated by Lord Campbell in Wauchope v Edinburgh and Dalkeith Railway Co [1842] in response to an argument that a statute was invalid because the rules of the House of Commons were not followed during its enactment:

“All that a Court of Justice can do is to look to the parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into parliament, nor into what was done previous to its introduction, or what passed in parliament during its progress in its various stages.”

That is, if the official version of an act demonstrates it has been passed by the House of Commons, the House of Lords and received Royal assent, the courts will not strike it down on the ground that something improper occurred during its enactment.

When examining the official version of an act of parliament, the courts will look to the enacting formula, which heads each statute. This reads:

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows:—

This confirms that the Act has been enacted by the House of Lords (the Lords Spiritual and Temporal), the House of Commons and received Royal assent (enacted by the Queen’s most Excellent Majesty).

Where a statute has been enacted using the procedure under the Parliament Acts 1911 and 1949 — without the consent of the House of Lords — the enacting formula will reflect this:

Be it enacted by The Queen’s most Excellent Majesty, by and with the advice and consent of the Commons in this present parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows:—

This rule, that the courts will not enquire into the manner in which a statute was enacted — so long as the enacting formula demonstrates that it has been passed by the Commons, Lords and received Royal assent or, under the Parliament Acts 1911 and 1949, that it has been enacted by the Commons and received Assent — has been confirmed by the courts at all levels numerous times.

Indeed, the courts have said that, even if it can be demonstrated that an act was obtained fraudulently, by somehow misleading parliament, the courts will not rule it to be unlawful. In Lee v Bude and Torrington Junction Railway Co [1870-71], Sir John Willes said: “If an act of parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it.”

It is for these reasons that I can confidently say Roberts is not correct. That, even if it could be demonstrated that the Speaker of the House of Commons has acted improperly or unconstitutionally (and I make no comment on this), the courts would not rule the European Union (Withdrawal) (No 2) Act 2019 to be invalid as long as the enacting formula demonstrates that it was passed by the House of Commons, the House of Lords and that Royal assent was obtained.

Dr John McGarry is an associate lecturer at the University of Bolton.

The post Challenging the EU Withdrawal Act appeared first on Legal Cheek.

Every law student knows that judicial review is not about challenging the merits of a public decision. The judges don’t try to put themselves in the shoes of a decision-maker and work out what they would have decided if it had been up to them; instead they look at whether a decision was unlawful because it was made by someone who used unfair procedures, behaved unreasonably, acted disproportionately or exceeded powers granted by parliament.

Or, at least, that’s what they say. The grounds for granting judicial review of an administrative decision change from time to time. But the judges always insist that they cannot interfere with a decision just because they don’t like it.

This month, the courts will consider two decisions that have upset a lot of people — including, we may speculate, some of the judges themselves. But will they find themselves able to overturn those decisions simply because of how they were made?

The first case involves John Worboys, the former London taxi driver who is thought to have committed well over 100 rapes and sexual assaults in his black cab between 2002 and 2008. Worboys, who has since changed his surname to Radford, was convicted in 2009 on one charge of rape and 18 offences of sexual assault and drugging, involving 12 women. He received an indeterminate sentence with a minimum of eight years and has now served ten years in prison — the equivalent of a 20-year fixed sentence.

On 26 December last year, the parole board decided that it was no longer necessary for Worboys to be detained in custody in order to protect the public. It, therefore, ordered his release on licence.

That decision has been challenged by two of his victims, referred to as DSD and NBV in court papers. The same two women brought successful claims against Scotland Yard for its failure to conduct effective investigations into the attacks carried out by Worboys. An appeal by the police was dismissed by the Supreme Court on 21 February.

BREAKING: @UKSupremeCourt has unanimously dismissed the police's appeal in the #Worboys case this morning pic.twitter.com/T9dqJOdy9W

— Legal Cheek (@legalcheek) February 21, 2018

The parole board’s decision to order Worboys’ release has also been challenged by the Mayor of London, Sadiq Khan. And all three claimants have challenged the parole board’s decision not to publish its reasons. A separate challenge to the non-publication decision has been brought by the publishers of The Sun newspaper.

Let’s begin with that. Rule 25 of the Parole Board Rules 2016 says that “information about proceedings under these rules and the names of persons concerned in the proceedings must not be made public”. Those rules were made by a minister under powers contained in section 239(5) of the Criminal Justice Act 2003.

That seems pretty conclusive. But Gavin Millar QC, from Matrix Chambers and for The Sun, says the minister had no power to make those rules: they were ultra vires. The rules are also incompatible with the newspaper’s rights under the human rights convention and at common law.

Millar’s starting-point is what he refers to as the open justice principle (OJP): that courts must hear cases and deliver judgments in public. There are exceptions, of course, but these must be justified. And the parole board, for these purposes, is a court.

The OJP, he argues, is a fundamental constitutional principle that cannot be overridden by general or ambiguous words in legislation. And yet rule 25 is a complete abrogation of the OJP. So rule 25 must be beyond the powers in the 2003 act and “the decision [that Worboys should be released] taken pursuant to this rule is therefore unlawful”.

Next, Millar identifies a common law right to information, based on Kennedy v Charity Commission. Finally, somewhat ironically given his client’s very public antipathy to the Human Rights Act, he argues that non-publication breaches the newspaper’s right to receive and impart information under article 10 of the human rights convention.

Not so, says David Gauke, the Justice Secretary. In pre-litigation correspondence, his lawyers argue that the OJP applies only to proceedings that form part of the public administration of justice. Parole board proceedings do not come within this definition because their purpose is protection of the public rather than punishment of offenders. Gauke’s lawyers also question whether the board is a court for these purposes.

Next, the Justice Secretary argues that the non-publication rule is one that ministers had power to make. When parliament passed the Criminal Justice Act 2003, it would have known that ministers had used previous legislation to make rules in 1997 that hearings were to be in private — although the chairman was empowered to decide otherwise. Parole board hearings had been private since the board’s creation in 1967 — although it was originally only an advisory body.

Thirdly, says Gauke, there are good reasons for the non-publication rule. They encourage those taking part in hearings to be completely candid.

Finally, says the Justice Secretary, a challenge to rule 25 is unnecessary because he is currently reviewing it. He is considering whether parole board rulings should be published and hopes to conclude his review by Easter.

In written arguments filed for the permission hearing on 7 February, 11KBW‘s Clive Sheldon QC, for the Justice Secretary, rejects the suggestion made by DSD and NBV — and by The Sun — that if rule 25 is unlawful then the release decision must inevitably be unlawful. “Parole board decisions are never published,” Sheldon points out. “So if the victims’ argument is correct it would mean that most or all parole board decisions have been unlawful.” What’s more, he says, the release decision would not have been any different even if it had been published.

The Sun argues that its challenge to rule 25 should be heard as quickly as possible: “News is a perishable commodity.” But that argument is harder for the other claimants to maintain because they have now been shown the board’s reasons and the dossier of supporting evidence — on the condition that they do not publish them more widely.

My own view is that the blanket ban on publicity is unsustainable. But, given that rule 25 is being reviewed, Sir Brian Leveson and Mr Justice Garnham may not regard its lawfulness as a priority when the case returns to court on 13 and 14 March.

Instead, they will concentrate on the parole board’s reasons. The court will have seen them and so will lawyers for the two victims and the mayor. Since the hearing is expected to be in public and others in court will not be allowed to see the reasons or the dossier in support, we can expect copious references to unnamed experts and random paragraph numbers that will mean nothing to most of those present.

Before seeing the board’s reasons, Matrix’s Phillippa Kaufmann QC for DSD and NBV argued that the decision to release Worboys was irrational, and therefore unlawful, on the information already in the public domain. I understand she will now be arguing that the parole board did not have all the information it needed to make its decision and that it failed to make proper risk assessments. But it would be very helpful if she could prepare a redacted version of her arguments that could be released to everyone in court.

In the meantime, let us turn briefly to the other high-profile challenge lined up for this month. The claimant, Adath Yisroel Burial Society, is a charity that arranges funerals for members of the orthodox Jewish community in areas including the London boroughs of Camden, Islington, Hackney and Tower Hamlets. Deaths in these four boroughs come under the jurisdiction of the coroner for inner North London, Mary Hassell. The local population includes large numbers of Jews and Muslims.

Sam Grodzinski QC and Khawar Qureshi QC, for the burial society, are challenging Hassell’s decision, taken last October, that her office will not prioritise the release of a body for burial to meet the religious needs of the deceased or the deceased’s family — even when doing so would cause no material disadvantage to others.

Among the general population, the average time between death and burial is said to be around 15 days. Some have to wait very much longer. By contrast, Grodzinski and Qureshi explain in papers filed at court, it is “an important tenet of Jewish and Muslim faiths that burials should not be delayed overnight”. Even when this is not possible, every effort should be made to keep delay to a minimum.

In inner North London, though, every burial reported to the coroner must take its turn. Hassell has adopted what she calls a “cab-rank rule” — though it is unclear whether that operates according to the time of death or the time at which the death is reported to her office.

The claim has attracted support from local politicians who recognise that Hassell’s decision has caused what the two QCs called “significant and widespread anguish and consternation”. But there has also been opposition from individuals who regard religion as merely superstition and who object to what they see as queue-jumping.

In a shrewd move, the case has been allocated to one of the rising stars of the judiciary. Lord Justice Singh, 53, is the most visible member of a religious minority in the senior courts who is neither a Jew nor a Muslim. He has ordered an expedited hearing on 27 and 28 March.

This case raises a simple but profound issue: should you treat everyone equally or should you treat people according to their needs? Until a few decades ago, public buildings and transport systems were designed with no thought for wheelchair-users or others with disabilities. They were open to all in theory but not in practice. Now the law requires ramps and lifts to be installed where possible. True equality means treating people according to their needs.

But, say the objectors, a religion is not a physical constraint in the same way as a disability. Nobody is required to obey religious laws. The answer, of course, is that those who observe those laws would find it very painful to break them. And, if their observance causes no harm to others, why should they need to?

Grodzinski, from Blackstone Chambers, and Qureshi, from Serle Court, have put forward four main legal arguments:

1. Early burial of a loved one is a manifestation of a person’s religion or belief that is protected by article 9 of the human rights convention. Freedom to manifest one’s religion is subject only to those limitations that are necessary. It is not necessary to make all Jews and Muslims wait several days for release of a body: other coroners manage early burials without difficulty.

2. Article 14 of the human rights convention requires convention rights — such as the right to manifest one’s religion — to be secured without discrimination. A general policy or measure that causes greater hardship to a particular group may be discriminatory even if it is not specifically aimed at that group.

3. Section 19 of the Equality Act 2010 prohibits indirect discrimination. That means putting people who share a characteristic such as religion or belief at a disadvantage compared with people who do not share that disadvantage.

4. Section 149 of the Equality Act 2010 imposes an equality duty on public authorities. The coroner was under a duty to “take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it”.

Update

After this piece first appeared, I was shown the detailed responses filed by Hassell and also by the chief coroner, Judge Lucraft QC. He was made an interested party at an earlier directions hearing.

In an attempt to protect local taxpayers (of whom I am one) from having to pay legal costs, Hassell has chosen not to defend the action by counsel or in person. She asserted that she had taken account of articles 8, 9 and 14 of the human rights convention, as well as the Equality Act 2010. However, she offered no reasoned arguments in support of those assertions.

Lucraft’s response, drafted by Jonathan Hough QC of 4 New Square, was damning.

“The chief coroner considers that the policy as formulated by [Hassell] is not lawful, even though it may have been produced in a sincere desire to be fair to all in her area.”

“First, the policy is over-rigid and effectively fetters the discretion of a coroner to decide the order in which he/she handles tasks with due regard to the circumstances and interests of particular families.
Secondly, the policy when seen in context is not capable of rational justification.
Thirdly, the policy if applied strictly would have the effect of infringing article 9 rights or would be discriminatory in article 14 terms.”

“The chief coroner is not persuaded that the policy involves indirect discrimination under the Equality Act 2010 or a breach of the public sector equality duty… But the point may be academic in light of his other views.”

Lucraft develops these arguments later in his written submissions. He sums up his views by saying that “a coroner may properly address a reported death with greater urgency… on the ground that the bereaved family have a strong and sincere desire for the body to be released quickly, founded on religious belief”.

It’s important to remember that although Lucraft sits as a circuit judge he is a litigant for the purposes of this litigation. But his views, based on specialist legal advice, must carry huge weight.

This case might have been avoided if Lucraft had taken advice sooner. In a piece published on 22 January, I said:

“The chief coroner should tell Hassell whether he thinks her protocol is lawful, even if that stops him hearing the forthcoming challenge.”

Hassell may now be inclined to throw in the towel, take Lucraft’s advice and devise a new policy. Now that the case has got this far, though, the best outcome of all would be a clear ruling from the High Court.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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Sacking bad judges has been a tricky thing to do for more than 300 years. Under the Act of Settlement 1701 (article III, clause 7), the judges’ commissions were held quamdiu se bene gesserint — as long as they behaved themselves well. But, the statute continued, “upon the address of both Houses of Parliament it may be lawful to remove them”.

The current law, in section 11(3) of the Senior Courts Act 1981, is to the same effect and not a lot clearer. It applies to judges of the High Court and the Court of Appeal; there are similar provisions for justices of the Supreme Court.

Because they cannot be sacked without the involvement of parliament, senior judges have substantial security of tenure. Several have stayed in post even when their closest colleagues have repeatedly advised them to stand down. No English judge has ever been dismissed on a parliamentary address although Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland, was removed with great difficulty in 1830 for helping himself to money that suitors had paid into court.

It’s for the Lord Chancellor to set in train the parliamentary procedures for removing a judge. But there’s no parliamentary involvement in a decision by the Lord Chancellor to sack a circuit judge for “misbehaviour” — although the agreement of the Lord Chief Justice is now needed. That process was used to dismiss Judge Bruce Campbell in 1983 after he was caught smuggling whisky and cigarettes into Britain in his yacht.

Similar powers apply lower down the hierarchy. In 2009, a district judge was sacked for being rude in court. And in 2015 a district judge, an immigration judge and a deputy district judge were dismissed for viewing inappropriate material on court-issued computers.

There are, of course, disciplinary powers that fall short of sacking. These range from formal advice through warnings to reprimands. Judges may also be suspended from office. In a subtle difference from dismissal powers, reprimands and lesser warning are issued by the Lord Chief Justice with the agreement of the Lord Chancellor.

But before any judge can be disciplined there has to be an investigation. Arranging investigations is the responsibility of a team of around 15 officials, known collectively as the Judicial Conduct Investigations Office (JCIO). Its joint heads, Stephanie Hack and Joanna Otterburn, currently run the JCIO on a job-share.

As officials working within the Judicial Office at the Royal Courts of Justice in London (pictured above), JCIO staff have no power to make findings of misconduct or impose disciplinary sanctions. A great deal of their time is taken up telling people that the JCIO cannot deal with complaints about the outcome of a case: it deals only with allegations of misconduct.

What, then, is misconduct? As far as I can see, the term is not defined in law. The JCIO says “the definition of personal conduct covers a wide range of behaviour and circumstances both inside, and outside of, the court environment”. But the JCIO does provide some examples. It says it can investigate:

• The use of racist, sexist or offensive language
• Falling asleep in court
• General rudeness
• Misusing judicial status for personal gain or advantage
• Criminal convictions
• Failure to declare a potential conflict of interest

But the JCIO says it cannot investigate:

• A judgment, verdict or order
• Sentencing decisions
• Whether evidence should have been considered
• The award of costs and damages
• Attendance at, and participation in, hearings
• Whether a judge should have stood down
• Allegations of perverting the course of justice

Anyone can make a complaint — including, it seems, the senior judiciary. Of 2,078 complaints finalised during the year 2016/17, a total of 42 were upheld. Those 42 judicial office-holders represent around 0.2% of the 26,000 or so in England and Wales.

Most of the 42 received formal advice, warnings or reprimands. But 19 were removed from office: 15 magistrates, one tribunal judge and three part-time members of the judiciary. Ten of those 19 sackings were dealt with under a summary process covering criminal convictions, bankruptcy, failure to disclose relevant information and failure to meet sitting requirements.

It’s the job of the JCIO to sift incoming complaints. Any that do not relate to misconduct by an individual office-holder are dismissed at the outset. Of those that pass the initial sift, many can be dealt with under the summary process.

The remainder are referred to a nominated judge, who must be no lower in rank than the office-holder under investigation. The nominated judge has the job of establishing the facts, deciding whether they amount to misconduct and advising what disciplinary action, if any, should be taken against the judicial office-holder.

If a complaint is regarded as sufficiently serious or complex, the nominated judge may refer it to an investigating judge — who must be of a higher rank than the office-holder. The investigating judge may hold a private hearing. Nominated and investigating judges may be serving or retired. If no longer sitting, they are ranked according to their previous status.

If a nominated judge recommends suspension or removal from office, the judicial office-holder may ask for the complaint to be considered by a disciplinary panel. The panel has four members: a judge more senior in rank than the office-holder, a judge of the same rank and two lay people. Again, the judges may be retired.

It’s the panel’s job to advise the Lord Chancellor and the Lord Chief Justice on whether removal or suspension is justified. Before that can happen, though, the panel must send a draft of its report to the office-holder concerned and “have regard to” any comments received in response.

All this is bound to take months. If the office-holder seeks an adjournment, perhaps on grounds of ill-health, it may take years before a final recommendation reaches the Lord Chancellor and the Lord Chief Justice. If that recommendation was for the removal of a senior judge, the parliamentary processes would presumably take several months more. The judge is paid as normal throughout this period, even if suspended.

We can see how long all this can take from the case of Sir Peter Smith (pictured below), which I wrote about most recently in October and for Legal Cheek in April. It was well over a year before complaints against the former senior Chancery judge even reached the stage of a disciplinary panel hearing.

Two days before that hearing was due to open, Smith retired from the bench. We do not know on what terms. Regulations say that consideration of the complaint against him had to cease as soon as he retired — leaving complainants and the wider public almost completely in the dark. An investigation can be reopened, but only if the judicial appointments and conduct ombudsman makes a finding of maladministration.

But the worst aspect of the way Smith’s case was handled was the refusal of the then Lord Chief Justice and Lord Chancellor to keep the public informed. Individual complainants were told the dates of scheduled hearings but the JCIO refused to provide even this basic information to reporters or the public.

The fault was not theirs. Under the regulations, “the Lord Chancellor and the Lord Chief Justice may agree to the publication of information about disciplinary proceedings or the taking of disciplinary action”.

It is they who should have told us what was going on. Although section 139 of the Constitutional Reform Act 2005 provides for confidentiality, subsection (6) says the section “does not prevent the disclosure with the agreement of the Lord Chancellor and the Lord Chief Justice of information as to disciplinary action taken in accordance with the relevant provision”.

In yet another of my articles on the subject last month, I disclosed that “an unlisted tribunal is planning to sit at an undisclosed location” where “its four unnamed members… will consider allegations that have not been published and make findings of fact that will not be revealed”.

I can now reveal that the BBC news legal team responded to that article by writing a nine-page letter to the Lord Chief Justice and Lord Chancellor. In it, the BBC pointed out that “open justice is a constitutional principle that stretches back to the fall of the Stuart dynasty”. There was, the broadcaster said, “a strong presumption of publicity in every other disciplinary regime involving public servants” — for example barristers, solicitors, police officers, teachers, doctors, opticians, dentists, nurses, midwives, pharmacists, osteopaths and chiropractors.

“Any presumption of privacy in disciplinary proceedings against judges would be an unjustified anomaly,” the BBC argued. “There is no rational justification for providing greater privacy protection to the judiciary than to any other professional. The public interest in transparency is, if anything, greater in respect of the judiciary than it is in respect of other legal professionals.”

In its letter of 17 October, the BBC asked for the charges against Smith to be disclosed, for the disciplinary hearing to be opened to accredited journalists and for the panel’s draft report to be disclosed.

The BBC’s letter was promptly acknowledged but received no substantive response. Lord Burnett of Maldon can be excused for not dealing with this adequately in his first months as Lord Chief Justice. But he should now order a review of the entire process.

A blanket of secrecy covers judicial disciplinary hearings, creating the impression that the rules and regulations I have outlined in this piece are designed to protect the judges rather than the public they serve. Some measure of insulation from aggrieved litigants-in-person and other dissatisfied parties is certainly justified. But the judicial complaints system has shown itself entirely incapable of handling immensely serious complaints in a transparent and effective way.

If the personal failings alleged against Smith in 2016 — and upheld in 2008 — lead to an effective reform of the judicial complaints process, his 15 years on the bench may be remembered for more than a steady stream of embarrassing misjudgments.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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Not enough people want to become judges. Or, at least, there are not enough people coming forward who are good enough to join the High Court.

There were precisely 100 High Court judges in post this month at the start of the legal year. With a complement of 108, the court is eight judges short — or nine given that Mr Justice Peter Smith has, in effect, been suspended on full pay for more than a year. Contrary to my prediction at the time, Smith failed to stand down in the spring and a disciplinary panel is preparing to consider complaints against him at the end of this month.

The High Court has been running below full strength for some time now. Last year, there were 14 vacancies and six posts were left unfilled. In his latest annual report, the outgoing Lord Chief Justice said that he and his senior colleagues continued to be immensely concerned about the “serious loss of morale across the judiciary and continuing dissatisfaction over working conditions, the volume of work, and pay and pensions”. Lord Thomas of Cwmgiedd added that any failure to address the problems of pay and pensions would have a serious impact on morale and on recruitment.

So, will the High Court ever be fully staffed?

“It is not uncommon for there to be a time lag before newly appointed judges take up office,” I was told by the Judicial Appointments Commission (JAC). “There will be more announcements in the coming months.”

But how many? The word on the street is that 19 appointments were approved after the JAC advertised “up to 25” vacancies earlier this year (screenshot below). Only 13 names were announced during the summer, with 12 of those judges joining the High Court on 2 October (the beginning of the legal year).

And the JAC has already established another High Court selection exercise, with applications to be lodged by the middle of November. Again, there will be “up to 25 vacancies” across all three divisions of the High Court.

This is the second time the JAC has announced that no part-time judging experience will be needed. But, as it adds from what must be bitter experience, any solicitor or barrister who is only now thinking of putting in an application before the deadline next month has probably left it too late to demonstrate transferable skills.

In fact, pretty much all 13 new High Court judges appointed in August and September have some judicial experience. Four were promoted from the lower ranks: Julian Goose QC, who was a senior circuit judge specialising in crime; Clare Moulder, a former Linklaters partner who sat in commercial, immigration and criminal cases; Gwynneth Knowles QC, who was a judge of the upper tribunal; and Peter Lane, a former tribunal judge who has now been appointed president of the Upper Tribunal (Immigration and Asylum Chamber).

Some of those who have come straight from the bar are strikingly young: Matthew Nicklin QC, former joint head of chambers at the media set 5RB, is 46. Julian Knowles QC, formerly an extradition and public law expert at Matrix Chambers, is 48. So is Sara Cockerill QC, a shipping specialist. And some are significantly older: Martin Spencer QC, who was at Hailsham Chambers, is 61. Jonathan Cohen QC is 66 but hardly a new boy, having sat part-time in the family division since 2005.

While Cohen has a distinguished judicial ancestor, several new judges are state-educated and were the first in their families to study at university. Akhlaq Choudhury QC was born in England to parents from Bangladesh and educated at a comprehensive near Glasgow. David Williams QC went to a comprehensive school in Leighton Buzzard. Simon Bryan QC’s education in Blackpool was state-funded.

Others demonstrate that there is more to life than being a lawyer: Amanda Yip QC, from Liverpool, had three children before she was 30 and is a strong supporter of flexible working at the bar.

So: nine men, four women; nine practitioners, four full-time judges (including, for the first time, tribunal judges); 11 barristers, two solicitors; one person of Asian descent. All things considered, quite a diverse group?

More broadly, Lady Hale is now president of the Supreme Court and Lady Black of Derwent has joined her on the bench, along with the first Welsh-speaking justice, Lord Lloyd-Jones. Lord Justice Singh is now in the Court of Appeal. Time for the JAC to rest on its laurels?

Not according to Graham Gee, a professor of public law at the University of Sheffield and Erika Rackley, a professor of law at the University of Birmingham. The two academics have recently edited a series of essays called Debating Judicial Appointments in an Age of Diversity, based on a conference they arranged.

Some of the contributors to their book speak from a position of great authority.

Sir Tom Legg was permanent secretary to the Lord Chancellor from 1989 to 1998 and, in his day, was effectively a one-man JAC. He has some interesting reflections on merit although I’m not persuaded by his suggestion that we should restore a political element in the appointments process. That still exists, as we saw when Liz Truss, as Lord Chancellor, excluded the judges’ favourite for appointment as Lord Chief Justice this year. There is speculation that Truss was doing the Prime Minister’s bidding.

Other contributions are alarmingly bland.

Christopher Stephens CBE, who chaired the JAC from 2011 to 2016, writes mainly about competency frameworks and ad hoc selection panels, about appraisals and performance metrics. Stephens admits he “would like to have seen greater numbers of diverse, non-traditional candidates joining the judiciary, particularly at more senior levels — not only from its four key target groups but also from other pools of talent such as academia, the employed bar, chartered legal executives and government lawyers”. But he does not seem to have found a way of recruiting them.

Are there any? Gee and Rackley certainly think so; and they have summarised their proposals in a freely-available post. In summary, they say:

• The JAC must do more to ensure that the judiciary is not merely paying lip-service to diversity but actually pursues policies that will lead to faster change.
• The JAC should take more “ownership” of the selection process for senior appointments rather than simply endorsing the judges’ favoured candidates.
• The JAC should continue to scrutinise and improve its own processes.
• Overall, the JAC should supply more forceful leadership on diversity. It should have greater confidence in its ability to contest the preoccupations of ministers, a self-interested legal profession and an embattled judiciary.

But what does that mean in practice? Surely merit is the only criterion for appointment?

According to Gee and Rackley, some judges still cling to a traditional understanding of merit that places a premium on advocacy skills, experience at the bar and experience in a part-time fee-paid judicial role. The authors want more appointments to be made on the basis of potential.

Judicial skills, they say, are not limited to the technical legal and advocacy abilities associated with excellence at the bar. They include communication, management and leadership skills that are needed for a successful career as a solicitor. The JAC should therefore resist the judiciary’s insistence on part-time judicial experience. This not only favours long-serving barristers, they argue. It also reinforces traditional understandings of merit.

On this basis, we can see the JAC’s “no judicial experience necessary” boast as a sign of strength rather than of desperation. And its warning that solicitors have probably left it too late to join the judiciary next year now reads more like a counsel of despair.

In their book, Gee and Rackley chart the tensions between Stephens, as chair of the JAC, and Thomas, as Lord Chief Justice.

“Inside the JAC,” they write, “it was felt that the Lord Chief Justice was second-guessing many of its decisions… For their part, some senior judges felt that the JAC lacked an effective strategy for encouraging judicial diversity while others complained that its selection processes made too many onerous demands of the senior judiciary.”

Gee and Rackley are quite right to say that the JAC should do more to publicise the improvements it has introduced already. Like other underfunded arms-length public bodies, the JAC has compromised its independence by outsourcing its media relations to the Ministry of Justice press office. When I first asked, the press office told me there were not 100 High Court judges holding office on 2 October but 100.5.

100.5? Did the reference to 0.5 of a judge mean that one judge was working for 50% of the normal working hours? If so, who was it?

We can’t tell you, said the MoJ press office. “On both counts this is personal information agreed between the individual and their head of division, and therefore it would be inappropriate to share this.”

That’s absurd. I can see that a judge working half-time for medical reasons — perhaps while recovering from illness — might want that fact to be kept confidential. But the fact that a judge was permitted to work part-time — if that is what this means — is something the judiciary should be proud of.

It also increased the headcount by half a judge. Or it did until a correction arrived. It seems there were two half-judges in the High Court last year. One has recently retired and the other has now reverted to full-time working.

The failure to recruit enough permanent judges means that the High Court will continue to rely on lawyers sitting part-time. Some of those may be practitioners of the highest calibre who don’t want to give up the day job. Others may be among the 100 applicants for the High Court bench who didn’t make the grade this time (or, no doubt, in previous years).

But there is one thing about this I find reassuring. If the JAC’s standards had been lower, it would have been perfectly possible to appoint another eight judges from those applicants. Had diversity had been the sole criterion for appointment, I imagine it would have been possible to make an even more diverse selection than the 13 whose names have so far been announced. Rightly, the JAC was unwilling to recommend candidates who did not merit appointment.

Merit must never be diluted in order to meet diversity targets. We just need to search more widely for the best judges.

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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Following the triggering of Article 50 by Prime Minister Theresa May, one may wonder whether treaties of other international organisations also provide for (similar) withdrawal mechanisms. One of such organisations is the United Nations (UN).

The League of Nations

The League of Nations (League) was the forerunner to the UN. It came into existence in January 1920 under Part I of the Treaty of Versailles, called the Covenant of the League of Nations (Covenant). The League ceased to exist in April 1946. The Covenant provided for the possibility of withdrawal from the Geneva-based organisation. Article 1(3) of the Covenant read as follows:

Any Member of the League may, after two years’ notice of its intention so to do, withdraw from the League, provided that all its international obligations and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal.

The United Nations

Unlike the Covenant, the Charter of the United Nations (Charter) does not include a withdrawal clause.

However, the Charter provides for the suspension (article 5) of a member of the UN from the exercise of its rights and privileges, as well as for the expulsion (article 6) of the member of the UN who has persistently infringed the principles enshrined in the Charter.

Although the Charter does not contain a withdrawal provision, the key question — from the perspective of the members of the UN as well as the UN itself — is whether a right to withdraw exists at all. In order to answer that question, one must conduct an analysis of the text of the Charter and of the provisions of the 1969 Vienna Convention on the Law of Treaties (VCLT).

The text of the Charter

As far as the text of the Charter is concerned, there is no express provision that would permit or deny a right to withdraw. As a consequence, one may pose the following question: did the parties to the Charter intend to permit or deny such a right to withdraw?

The issue of the right to withdraw was discussed in great detail at the 1945 San Francisco Conference. After weighing up the arguments, the Committee dealing with the issue of withdrawal from the UN concluded that a member has the right to withdraw if exceptional circumstances arise.

The member of the UN can depart from it if, for example, one of the following conditions is satisfied:

1. the UN has failed to maintain international peace and security;
2. the rights and obligations of the member of the UN have been altered by an amendment to the Charter and consequently that member of the UN finds itself unable to accept it;
3. the amendment to the Charter has not been ratified by the necessary number of the members of the UN.

This shows the parties to the Charter did not intend to make withdrawal from the UN legally impossible. The existence of the right to withdraw is inferred from the context of the Report of the Committee dealing with the issue of withdrawal at the 1945 San Francisco Conference: that the member of the UN can exercise the right to withdraw only in exceptional circumstances.

With regard to the first example of exceptional circumstances, any member of the UN has the power to decide whether the UN has failed to maintain international peace and security. The next example of exceptional circumstances — namely the member of the UN finds itself unable to accept an amendment to the Charter that has altered its rights and obligations — is in conflict with article 108 of the Charter.

According to this provision, all the members of the UN are bound by the amendment to the Charter adopted by a vote of two thirds of the members of the General Assembly and ratified pursuant to their respective constitutional processes by two thirds of the members of the UN, including all the permanent members of the Security Council. That means that the member of the UN that does not accept the amendment to the Charter does not have a ‘better’ right to withdraw.

The last example of exceptional circumstances, i.e. failure to secure the ratification necessary to bring the amendment to the Charter into effect, is controversial as well.

If the amendment does not come into force, a legal situation remains unchanged. The member of the UN that has voted in favour of the amendment may wish to depart from the UN if the amendment has failed to secure the ratification necessary to bring it into force. However, the right to withdraw is not restricted to the members of the UN that have voted in favour of the amendment. Any member of the UN can exercise the right to withdraw if the amendment to the Charter has not been ratified by two thirds of the members of the UN.

The Vienna Convention

Pursuant to article 5 of the Vienna Convention, VCLT applies to a treaty which amounts to a constituent instrument of an international organisation or which was adopted within the international organisation, without prejudice to any relevant rules on which the international organisation is based.

A withdrawal of a party may, in accordance with article 54 of VCLT, take place: (i) in conformity with the provisions of the treaty; or (ii) by consent of all the parties after consultation with the other contracting states. It is clear that VCLT is relevant only if the treaty of the international organisation does not include a withdrawal clause. However, as far as the UN is concerned, article 54 does not seem to apply to an act of voluntary withdrawal. Unlike the latter, article 56 of VCLT applies to the act of voluntary withdrawal.

Section 1 of article 56 reads as follows:

A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) A right of denunciation or withdrawal may be implied by the nature of the treaty.

A right to withdraw cannot be implied by the nature of the Charter. However, the parties to the Charter intended to admit the possibility of withdrawal. As a result, VCLT does apply to the issue of withdrawal from the UN.

Indonesia’s purported withdrawal

The first and only test case was Indonesia’s purported withdrawal from the UN.

In January 1965, the Secretary General was notified that the Indonesian Government had taken a decision to withdraw from the UN. The decision was made in protest against Malaysia’s election as a non-permanent member of the Security Council. The question was whether the rationale behind the decision of the Indonesian government amounted to an exceptional circumstance.

However, in September 1966, the Secretary General was notified that the Indonesian government had decided to begin full cooperation with the UN, as well as to resume participation in the General Assembly. In other words, the aim of that decision was to resume Indonesia’s seat in the General Assembly without the necessity of instigating the re-admission procedure under article 4 of the charter. That means that, in January 1965, Indonesia did not de jure withdraw from the UN.

So, although the Charter does not provide for a withdrawal provision, a member of the UN has the right to withdraw from the New York-headquartered institution, which is dependent on exceptional circumstances that may or may not happen. However, taking into consideration the impulsiveness and shallowness of some UK politicians, the UK could end its relationship with the UN regardless of the existence of so-called exceptional circumstances or without invoking article 56 of the Vienna Convention. Such a decision would not be politically and diplomatically smart.

Bartlomiej Kulpa is a University of Westminster law graduate and a PhD candidate at VU Amsterdam. He is also a paralegal.

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Dear David,

I hope you won’t mind me addressing you by your first name. You may not remember but we were last in touch 30 years ago, when I was covering home affairs for BBC radio news and you were special adviser to the reforming Home Secretary Douglas Hurd.

I’m a bit older than you and I have known all your predecessors since Lord Hailsham of St Marylebone, whose sacking in 1987 I also covered. So I hope you will not be too offended if I offer you a word or two of friendly advice.

This afternoon you will take your judicial seat in the Lord Chief Justice’s court and swear your oath of office. You will be familiar with men in tights from your 11 months as leader of the House of Commons and Lord President of the Privy Council. But this ceremony is rather different. You are sitting there today because Elizabeth Truss, your predecessor, failed to understand its true significance when she was sworn in as Lord Chancellor less than a year ago.

After you have taken the bible in your hand, you will swear to “respect the rule of law, defend the independence of the judiciary and… ensure the provision of resources for the efficient and effective support of the courts”. If you are in any doubt as to what these oaths mean you should have a word with the Lord Chief Justice, who will be sitting alongside you. Lord Thomas has been the most senior judge in England and Wales for less than four years but you will be the fourth Lord Chancellor he has worked with.

Last Thursday, Lord Thomas delivered the second of two major lectures on the governance of the judiciary and its relationship with the executive. In it, he said that you, as Lord Chancellor, were “not simply a Secretary of State with a separate title resonant of our long history”, such as the Chancellor of the Exchequer. Your job is “manifestly different from that of any other minister”.

Explaining your statutory duty to defend the independence of the judiciary, he referred to the Daily Mail headline last November that described him and two of his senior judicial colleagues as “enemies of the people” (pictured below). This, he said, was “language used most commonly by totalitarian dictators”. The Lord Chancellor had been “under an obligation to speak out firmly” against such abuse, he said, because judges like Lord Thomas himself “were not able to do so”.

And why hadn’t Liz Truss spoken out? Lord Thomas offered two thoughts. First, the Lord Chancellor needed to be a person of special quality and ability. And, secondly, the Lord Chancellor needed to be the sort of person who could stand up to the Prime Minister. He seemed to be suggesting that she had failed on both counts.

Parliament has not tried to specify the qualities required of a Lord Chancellor. All it has said is that a candidate for appointment must appear to the Prime Minister to be qualified by experience. The Constitutional Reform Act 2005 adds that the Prime Minister may take into account a candidate’s experience as a minster or as an MP. Surely all your predecessors since 2005 have satisfied that requirement?

Not according to Lord Thomas. He implied that David Cameron had treated the need for experience as “ineffective” in 2012 when he appointed Chris Grayling, who had not previously held Cabinet office.

And what about Liz Truss? Lord Thomas was more circumspect about her last week than he has been in the past. It’s widely believed her response to the Daily Mail headline last year was too little and too late because she had not received clearance from Downing Street to say anything. We are now told that communications from Cabinet ministers to the Prime Minister were filtered through — and sometimes blocked by — her chiefs of staff, Nick Timothy and Fiona Hill, who resigned after the election result this month.

But you are in a much stronger position than Liz Truss — and not just because Theresa May is so much weaker than she was before the election. You have been an MP for 25 years. Before becoming leader of the Commons, you managed to clock up six years as Minister of State for Europe. So you should have no trouble following the blueprint set out for you by Lord Thomas last week.

The Lord Chancellor’s duties “may require the holder of the office to act against the wishes of other members of the Cabinet or the Prime Minister,” he said. “The duties are an essential part of the proper interdependence inherent in the operation of our constitution and an essential safeguard to the independence of the judiciary which is fundamental to the maintenance of the rule of law, our democracy and the prosperity and good order of our state.”

And what in particular do those duties demand of you? First, you might like to have a word with your fellow MPs. Lord Thomas disclosed that some of your colleagues have been writing to judges on behalf of constituents involved in proceedings. “There has been a suggestion, no doubt inadvertent, that the letters should or could be taken account of by the judge dealing with the proceedings,” he said. It must have been inadvertent, he said with studied irony, because he was “sure that no member of parliament would deliberately seek to influence a judicial decision”.

Secondly, you might remind your ministerial colleagues that judges cannot give them legal advice. In particular, they cannot tell ministers in advance whether particular proposals (such as planned counter-terrorism measures) would be consistent with human rights. Charles Clarke, Labour Home Secretary from 2004 to 2006, could never understand this.

But what the judges can do is give ministers practical and technical advice. “A current example of this is the advice being given in relation to the technical issues that will arise in relation to legislation consequent on Brexit,” Lord Thomas disclosed. But political choices remain firmly with the government and parliament.

Even senior judges sometimes find it difficult to draw the line, though. There had been some recent occasions when judges had overstepped the mark and entered the realm of political comment, he observed. Unsurprisingly, the Lord Chief Justice didn’t name names.

As Justice Secretary you will face many other challenges. I hope you have been given Cabinet authority to reintroduce the Prisons and Courts Bill, which lapsed at the election. Most of the bill is regarded as uncontroversial although lawyers fear — wrongly, I believe — that it will take the bread out of their mouths.

The bill sets out, for the first time, what prison is for. But do not make the mistake of thinking it will make prisons easier to run. For that, you will have to persuade colleagues that the prison population should be reduced. You will find that the bill also paves the way for so-called online courts. Again, though, the legislation will do little by itself. Provided you can maintain the existing Treasury funding for court modernisation, though, you will begin to reap the benefits and discover that courts can be run much more efficiently and effectively than they have been in the past.

But your biggest challenge is to win over the judiciary. They can see that you’re quite a brainy fellow, which is an excellent starting point when dealing with a group of people who set great store by intellect. What they will be waiting to see now is whether you have the sort of empathy that your boss so clearly lacks.

Nobody is expecting you to put your arms round the judges you will be meeting this afternoon — at least, not literally. But what they do expect you to understand is how undervalued they feel and how worried they are that you will not be able to fill some 25 vacancies in the High Court, leading to a dangerous drop in standards.

It’s not just that Chris Grayling cut the judges’ benefits to the point at which, for some new recruits, judicial pensions were effectively worthless. It is not just that judges sitting in crime face an unremitting diet of child abuse and sexual assault. It is not just that in an increasingly egalitarian age the honours and distinctions that arrive with the rations seem less attractive than they once were. And it is not just the lack of resources — seen just as much in the shortage of court ushers as in the demand from Lord Thomas last month that the judiciary should have a “clear and effective governance structure”. It is all of the above.

In just over two weeks’ time you will have to address senior judges at their annual work outing: a dinner at Mansion House hosted by the City of London. You will find the judges courteous, anxious — and disappointed to find that you are another non-lawyer.

I don’t suggest you shatter their illusions by telling them that the Lord Chancellor is not — and never was — their champion in Cabinet. But you have ten minutes or so to win them over, to demonstrate your commitment to the rule of law and to the independence of the judiciary, to persuade them that you understand your responsibilities and will do your best for them.

You will be judged by your words, your tone and your credibility — that, after all, is what judges do for a living. They will be listening carefully, hoping that you will be able to rescue and revive the judiciary of England and Wales, along with the entire system of justice that depends on it.

So do we all.

Yours ever,

Joshua

Joshua Rozenberg is Britain’s best-known commentator on the law. He is the only full-time journalist to have been appointed as Queen’s Counsel honoris causa. You can read his previous Legal Cheek articles here.

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Due process is a legal term that is often thrown around in American television and media, but few know that it is a right originating in English law that we can still rely upon today.

Essentially meaning that individuals have a right by law to be treated fairly by the state, due process can be traced in English law back to the Magna Carta. The concept was given further clarification by King Edward in a statute enacted in 1354, which stated that no man should be punished in the manners previously mentioned, unless this was determined “by due process of law”. The Bill of Rights 1615 developed due process further.

However, come 1791 the principle of due process in the United States clearly diverged from its roots in English law.

The Fifth Amendment to the Constitution of the United States is as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This incorporated the definition established in English law into the US Constitution and also expanded it. The definition of due process includes a separate procedure for those serving in the military, the prevention of “double jeopardy” meaning a person cannot be prosecuted twice for the same offence, and the right for an individual to refrain from incriminating himself was also introduced. The 14th Amendment also contains a due process clause, ensuring that all persons have the protection of the law no matter their race.

From this point in history onwards, there is a clear divide between the definition and application of due process in England and in the US.

The US Supreme Court has held that there are two categories of due process.

The first is procedural process. This ensures that individuals have their rights protected by a fair and impartial procedure. The second is substantive due process. This is the doctrine that gives the court the ability to strike down any legislation that is determined to be unconstitutional.

This is one of the fundamental differences in the organisation of the state of the US and the UK. The courts in the US are not restrained by legislation that does not comply with principles of the constitution, whereas in the UK the courts are bound to follow the statutes of parliament. If the UK courts set aside primary legislation, this would breach the fundamental constitutional principle of parliamentary sovereignty.

However, this does not mean UK individuals cannot challenge the state.

Procedural fairness is a right that has been established by the courts as being protected by the common law. To maintain procedural fairness, the judicial review procedure allows the courts to examine the decisions of public bodies and ensure that the correct procedure was followed in the decision-making process. This means that individuals can apply to the courts for a determination on whether a public body has acted lawfully, allowing individuals to challenge the decisions of public bodies. This was the procedure used by Gina Miller, who challenged the government’s assertion that Article 50 can be triggered by prerogative power.

There is also a right to a fair procedure given by the European Convention on Human Rights. Article 6(1) states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

However, it’s worth noting article 6(1) cannot be relied upon in areas of pure public law, only in situations where the decisions of public bodies interfere with the civil rights of an individual.

There are very few British people who know about these rights, their rights, in the way that Americans seem to. In fact, many of the population seem almost entirely unaware of their rights (which may explain some of the reaction to the recent Brexit Supreme Court judgment).

But even those who claim to know their rights likely could not specifically name them when asked, or would name rights accorded in the US that they have learned from the media. Perhaps this could partially be explained by the Americanisation of our culture.

One other explanation for this discrepancy is the differing levels of education on due process in the two countries. In the US, due process has become a constitutional right that citizens were informed about and could rely upon. The US constitution accords rights to its citizens very clearly. In many states, the constitution is taught in schools, so people are given a greater understanding of their rights at an early age.

Perhaps if constitutional principles were taught in British schools, Brits would have better general knowledge about the rights individuals could rely upon. However, this would be a difficult thing to achieve as the education system is overstretched, and our unwritten constitution is complex and would be more difficult to explain than the more explicit US constitution.

It could also be suggested that there is an underlying difference in social attitudes towards constitutional rights in the UK and across the pond. When I asked an American friend why everyone in the US seemed to know about their rights, she did not attribute it to education, but to the fact that historically those civil rights were fought for, as was their independence. She suggested that Americans know their rights because they are proud of them, and believe that they should be fought for and protected.

There does seem to be a rising attitude in the UK that we should be able to rely upon our rights more. However, until those who cry “I know my rights” fully understand which rights they can rely upon, they will not be able to exercise their rights effectively.

Isabella Evans is a final year law student at Edge Hill University.

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Thanks to a decision by eight of the eleven Supreme Court justices, the government had to consult parliament on triggering Article 50 and beginning the formal process of leaving the European Union.

Not that, given how torrid a time the government’s lawyers had at the hands of Lord Pannick QC and his associates, there was ever any doubt as to the outcome. Even Theresa May accepted that, having already held a vote in which parliament overwhelmingly ratified the vote to leave the EU in the weeks before Christmas, as well as happily declaring that parliament would be given a vote on the final terms.

The real point of this case then was for no greater purpose than affirming it would be constitutional business as usual, with the supremacy of the Westminster parliament over not just the executive, but also the devolved administrations in Scotland, Wales and Northern Ireland being reaffirmed. The judgment will be most of interest to law students and their teachers (though God help any law student expected to wade through the near century of pages that make up this judgment), but at a cost that may be of interest to taxpayers.

That said, there will still be plenty for constitutional scholars to get their teeth into. With a judgment that covers everything from the Case of Proclamations to Alternative Voting Provisions by way of De Keyser’s Royal Hotel, the judgment is a whirlwind tour through British constitutional history — but it is hardly the great victory for the constitution that Gina Miller made it out to be.

For one thing the case had already been superseded by, first, the vote effectively ratifying Brexit, and second, by May’s promise to give parliament a vote on the final terms of negotiations between the UK and the EU. This not to mention that the second paragraph of the brevity-inspired Withdrawal from the European Union Bill states that none of the provisions in the European Communities Act 1972 (ECA) are applicable in any way shape or form.

So far from being a great victory for the constitution, this case has demonstrated that if the government can’t leap over a constitutional hurdle, it can just pass legislation to remove it from existence. Additionally, it is the government, and not the opposition, that is reaping a political dividend from the aftermath of this case, given that Labour’s shadow cabinet looks set to return to its favourite game of who can resign first.

Indeed, apart from the argument I made in my original article on this case (that there was no point in this case being brought since parliament was always going to get a vote on leaving the EU), in form of repealing the ECA, there are only two other aspects of this case that are worthy of note.

One is that the main irony here is that Lord Reed, Lord Carnwath and Lord Hughes, who dissented from the majority judgment, were also the ones holding the door of hope open to those who want the UK to stay in the EU.

Lord Hughes in particular discussed an interesting possibility. According to his judgment, the ECA did not need to be repealed, merely suspended, since its operation depended on the UK’s accession to the various EU treaties. Since the UK would be entering into formal negotiations to leave the EU, it would no longer accede to those treaties, and the ECA would be reduced to a state of de facto obsolescence. It would however, still be on the statute books. So if the UK ever decided to rejoin the EU, the legal framework would already be in place for it to do so, making a reversal of the decision to leave that much simpler.

By requiring a vote in parliament however, the ECA is now much more likely to be repealed, and so the efforts of claimants Mrs Miller and Mr Dos Santos will be to ensure a more complete divorce from the EU now takes place.

Two, and again this is going back to an argument I made in my original article on this case, the constitution of this country is long overdue a reckoning.

When Supreme Court justices are calling upon cases that are well over four hundred years old for arguments over whether or not monarchs can simply create new powers for themselves (even though Her Majesty has wisely steered clear of the philosophical and political morass that constituted the debates over Brexit), intermingled with questions over whether or not the Bill of Rights can be of any clarity, then what is really being said is that the constitution needs an overhaul. Badly.

In any event, the legalistic farce that this case started is set to continue.

Jolyon Maugham QC, a tax barrister from London, is set to move the stage from the Supreme Court to the Irish High Court in Dublin, where he plans to bring a case against the Irish state over the fact that the UK has been illegally excluded from various EU meetings since shortly after the Brexit vote. Mr Maugham hopes that this case will be referred by the Irish courts to the European Court of Justice (ECJ), given it is really a case against the whole of the EU rather than the Irish. Since it can take up to two years for the ECJ to give a ruling on matters referred to it by the national courts don’t be surprised if the UK has left the EU by then, rendering any judgment of the ECJ rather moot.

Gareth Wood is a graduate in European Politics Society and Culture from Lancaster University. He is now studying the GDL at the University of Law.

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Brexit means Brexit, apparently, but it’s still extremely difficult to discern what a ‘good’ Brexit looks like.

The factors leading up to the EU referendum and those that contributed to its result are diverse. However, it takes little more than a cursory glance at the Leave campaign and to listen to various interviews with people who voted to leave to identify a key issue as immigration. There are supposedly too many people coming to the United Kingdom to work, so it follows that reducing immigration is a necessary component of a ‘successful’ Brexit.

One of the more concerning potential effects of Brexit is that British businesses will struggle: exports will fall and the United Kingdom will be unable to strike trade deals with countries outside the EU. So, a successful Brexit must see the UK export its goods to third countries. The UK may be good at a great many things but the quality of the goods it exports aren’t at the top of the list, so the country will need to remain attractive in other ways.

We have identified two key features, then, for a successful Brexit. The government must make the country unattractive to people who wish to go there to work but make their goods attractive to export. Is there any way these two birds could both be slain with a carefully thrown stone?

Theresa May and the Brexit department have received an abundance of criticism for the uncertain way that Brexit has been discussed, ‘Brexit means Brexit’, and ‘Red, white and blue Brexit’ to name but two of the emphatic sounding — but factually vacuous — statements made so far. The lack of certainty about a potential Brexit deal has seen the pound plummet to a 31-year low against the dollar. While May’s recent speech strongly hinted we would leave the Single Market, the government seems to continue to generate uncertainty. Is this because they don’t have a clue themselves?

Possibly. But maybe there’s another reason.

A weaker currency does not necessarily spell doom and gloom. It’s true things may start to seem more expensive at home, but in real terms it’s likely that they won’t have budged that much. The real benefit comes on the international place. The significantly weaker pound means that British goods are significantly cheaper to export, making them significantly more attractive to international buyers (everyone loves a sale, right?)

So as the divorced, single and ready to mingle UK emerges onto the international plane, it has already removed a substantial barrier to any trade deals: price. Selling to nations with a stronger currency will improve demand for British goods and reinvigorate its market right when it needs it the most, and the weaker the currency becomes the more stronger currencies there are to play with. Of course, it can go too far the other way, but barring a major catastrophe the UK will still be some way off using stacks of money for children’s toys.

Well that’s one potential downfall of Brexit out of the way. British goods are now more attractive to other buyers. The next point to consider is how to appease the large number of people that saw immigration as a key reason for leaving the EU. One way would of course be to introduce strict border controls and this may very well work. But even with strict laws in place you will have a large number of people who want to immigrate here.

What if there was a way to make people not want to come to the UK, instead of simply telling people they can’t come in? I’m talking about economic immigrants, not asylum seekers, here as it’s axiomatic that asylum seekers do not come seeking their fortunes but come seeking safety.

The UK is a popular destination for economic migrants because of the strength of the pound. People can come, work and get paid in sterling and send money home where it will be worth more than doing the same job in that country.

But what if the pound was no longer such a strong currency? What if it was only marginally stronger or even weaker? A crucial benefit of coming to the UK to work would be lost. It would follow that by allowing the pound to fall to dramatically low levels against currencies such as the Euro, the attraction of coming to the UK to work has been lessened. Of course, once the UK has left the EU it will be able to control its borders but if the demand has decreased then the measures will surely need to be less draconian.

These are both perfectly realistic propositions and the falling pound has put the UK in just the position it needs to be in before commencing negotiations into trade agreements with the rest of the world. So, it wouldn’t be going too far to suggest that the government has been running this scheme all along. Not to mention that the Prime Minister has already shown she is a master of the waiting game, it’s what won her the job in the first place.

In doing this, the Prime Minister is giving us an excellent demonstration on how to negotiate — a valuable skill in the legal profession.

Exiting the EU is going to be one long negotiation, with various parties and a host of demands and concessions. In any negotiation, the top line, best possible result must be clear. In this context, this is — to quote May — to get “the best possible deal for UK companies to trade into the EU”. So, that’s what we’re aiming for.

But of course, the EU wants what’s best for itself, so it may not all be plain sailing. Another crucial part of negotiating is to know your best possible alternative to a beneficial outcome. In this case, the best possible alternative to negotiating a beneficial trade deal for the UK is to export somewhere else. A relatively strong currency makes this a tall order. The Brexit negotiations are currently at the ‘preparation’ phase. What the government has done in its reticence is drive our currency down and therefore increase the likelihood of us being able to trade with third countries. Suddenly, our bargaining position with the EU looks much stronger as our best alternative to exporting to it is now much more realistic.

Say what you will about this strategy, it may be frustrating, it may be confusing and it may not yield immediate results but it is certainly not stupid.

Perhaps Brexit really does mean Brexit. Or perhaps there’s a little more to it than that. Only time will tell. Until then we can rest assured that things might not be as out of control as they seem.

Luke Baxter is a chemistry graduate from the University of East Anglia who is currently studying the GDL.

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The doors into the library of the Supreme Court of the United Kingdom are engraved with a facsimile of the Magna Carta, signed by King John of Runnymede in 1215. One of its two most important clauses has been picked out: “To no man shall we sell, or deny, or delay right or justice” (article 40).

However, this famous quotation from Magna Carta seems to be gradually losing its effect, given the increasingly widespread unaffordability of legal advice and representation. The effect of court closures, particularly magistrates’ courts, means an increased travel cost for court users, and the severance of magistrates’ links with their local communities.

The reasons for this are not far-fetched.

The Ministry of Justice and senior judiciary recently put forward plans for reforms, representing a profound change in how justice may be done in England and Wales in the future. The purpose of this article is to consider the effects of these reform proposals, particularly with regards to the desire to close supposedly under-used magistrate courts. This follows the argument that these proposals signal an end to the prominence of magistrate courts in England and Wales.

Magistrates’ courts date back around 650 years. Their official birth came in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace. From that point, and continuing today, Justices of the Peace, now magistrates, have undertaken the majority of the judicial work carried out in England and Wales (about 95% of criminal cases are dealt with by magistrates).

The importance of magistrates, and indeed magistrates’ courts, cannot be overemphasised.

It is assumed that the diversity and humanness that magistrates bring to the court gives the public confidence in the judicial system. Lord Irvine, while he was Lord Chancellor in 1999, reiterated this point when launching the campaign for more diversity in magistracy:

Magistrates come from a wide range of backgrounds and occupations. We have magistrates who are dinner-ladies and scientists, bus drivers and teachers, plumbers and housewives. They have different faiths and come from different ethnic backgrounds, some have disabilities. All are serving their communities, ensuring that local justice is dispensed by local people. The magistracy should reflect the diversity of the community it serves.

Nevertheless, the magistracy has had its own share of criticism.

In a report in 2014, Transform Justice, a charity group that campaigns for a fairer justice system, found that the number of magistrates has freefalled, with a 28% decline noted since 2007. On a similar note, it was reported that magistrates are “considerably older, whiter and more middle class” than the general population and less diverse than they were in 2000; spurring up concerns that the magistracy’s constantly shrinking and facing an existential crisis.

However, the institution is set to face its most difficult challenges to date in the near future, challenges that perhaps threaten its existence.

In a consultation paper presented to the UK parliament and released in September 2016, the Ministry of Justice and senior judges jointly made proposals for what could be tagged ‘swift and certain justice in a modern justice system’ — a principle among which is a closure of underused magistrates’ courts for a more technological and faster online justice system.

The desire to close rural courts, justified by the clichéd government argument of ‘swift justice’ and ‘cost-efficacy’, has sparked a lot of fears about the government’s commitment to access to justice, especially for the poor and vulnerable members of the society. The decision to sell buildings to fund modernisation may not be so ridiculous, but reports showing that some may have sold for as little as £1 says a lot about the effect of these reforms.

There are many who share similar resentments for these proposals, but perhaps these reforms are inevitable in a modern world. Since the spending review commitment of £700 million for court technology last year by the HM Treasury, details of what reform really means — beyond new iPads in court and a war on paper files — have been much anticipated. The reforms are expected to deliver savings of approximately £200 million a year from 2019-20 onwards.

This raises the question whether access to justice could be sacrificed under the guise of saving money. Despite campaigns launched by local court users, only five of the 91 targeted for closure — nearly a fifth of all courts and tribunals in England and Wales — were reprieved. The closures were justified on the grounds that, on average, the 86 courts closing were only used for just over a third of their available hearing time. More than 97% of citizens would still be able to reach their required court within an hour ”by car”.

Nonetheless, the grave implications of these reforms cannot be over-emphasised. As director of the Centre for Justice Innovation Phil Bowen noted, if more cases are heard online, and if more court buildings are shut, are these reforms pulling apart the case for continuing to have a lay magistracy in England and Wales?

In his words:

But there is, of course, something deeper about the connection between court closures and the future of the magistracy — it unpicks the thread that has tied magistrates to their communities for so long. It is a direct assault on perhaps the magistracy’s most cogent argument for existence: that magistrates know their patch and know what matters to their communities.

Perhaps it’s time to accept our lay magistrates have now out-lived their purpose.

Omotayo Akorede is a final year law student at Bangor University.

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To some, it was no OJ Simpson. But, overall, I think the Brexit Supreme Court case has been pretty fun.

There was that time Lord Sumption used an incredulous raising of his eyebrows to wither a QC; there was that moment the Daily Mail did a shocking expose on how ‘judges know people who publicly supported Remain and have worked at organisations where other employees within those organisations have criticised Brexit!’ (eye-opening stuff); or when people noticed that Lord Pannick sounds like ‘panic’ and hilarity ensued.

But there have also been some moments of deathly seriousness.

The fact Lord Neuberger had to begin the case by noting death threats had been made against parties within the action really did unmask the current aching cracks at the heart of the United Kingdom’s constitutional order. Parties arriving flanked by bodyguards reminds us of the very real price that people like Gina Miller are having to pay for legitimately taking this action — and it goes far deeper than the £60,000 she has needed to pay to protect her life.

Edging away from these more sinister elements of the case, let’s plunge ourselves full-faced into the excitement of it all.

The main protagonists

Stepping up to the mound to bat against the first pitch of the World Series, a member of the local softball team.

It’s fair to say the justices reacted with an underarm throw to attorney general Jeremy Wright QC, who, having been cruelly called a “a third-rate conveyancing lawyer”, genuinely did a decent job.

It was notable that he went unquestioned by the justices. Only when the government’s slugger stepped up to the plate did the curve balls start flying and James Eadie QC was really pushed by Lord Sumption eyebrow-acrobatics. *Extended baseball metaphor over*

Now, for an admitted legal pipsqueak like myself, it is completely ridiculously for me to make criticisms of what are incredibly qualified and accomplished lawyers, to who I couldn’t hold a candle. And yet, here I go again.

The attorney general of Northern Ireland is called John Larkin, and by all accounts he had a disaster. It couldn’t have happened to a better man (see his attempt to invalidate all equalities legislation in Northern Ireland because it didn’t allow Christian bakers to discriminate against a gay-marriage-supporting customer). At the Supreme Court, Larkin was doggy paddling in an Olympic pool, causing me to laugh heartily and obnoxiously in his general direction.

Then Lord Pannick, for the claimant, began to speak. The words whirled around him, like light reflecting off the water — a thing of beauty, disguising its inherent, captivating power. The gentle rise and fall of his voice lulled you back to laying upon a lilo in a Spanish villa’s pool.

In other words, he did law real good.

The government’s arguments

Wright began by saying that “parliament can look after itself”. This is unbelievably bizarre, and akin to arguing that a tough guy shouldn’t have the protection of the criminal justice system. But the law does not apply differently depending on the strength or otherwise of the victim. Equally, constitutional law principles apply regardless of how powerful the beneficiary of those principles is.

Another of their arguments was that the foreign policy prerogative can be used to change domestic rights because there are already examples of this happening. Eadie and Wright pointed to how UK ministers within the Council of the European Union, for instance, can alter EU laws and rights by acting within the prerogative on the international plane.

But this is nonsense.

Firstly, it is an extreme simplification of how rights are adapted through the Council; it isn’t a matter of a UK minister acting alone, in fact they could vote against or for a change and be overruled. Saying that a minster contributing to a collective decision making process on the international plane is analogous to a Secretary of State using the prerogative to take the UK out of the EU on his own isn’t sustainable.

As well as being very different vehicles, they’re proposing to do two very different things. As Lord Mance puts it, there’s a “huge difference” between changing the rules of the club and deciding to leave the club. For the former, the domestic impact that stems from that collective decision also travels through a path which is parliament-endorsed — the ‘time to time’ provision within the European Communities Act 1972. In contrast, Article 50 notification’s domestic impact would not be travelling down a parliament-endorsed path; no statute has endorsed such an action having domestic impact.

To simplify this, it’s like saying a path is travelable by everyone if it is travelable by anyone — a jogger can run down a motorway because a car can. Well, no, not only are the vehicles of travel entirely different, but the car’s passage on that path is explicitly legally permitted whilst the passage of the jogger on the motorway is not. The jogger can’t justify his action by pointing to the actions of a car.

The claimants’ arguments

In terms of the long list of counsel involved, outside of my disappointment that the Scottish Lord Advocate did not turn up in full brave heart regalia and face paint and begin his submissions with a guttural cry of ‘FREEDOM’, there is the performance of Helen Mountfield QC for the People’s Challenge which crystallised the complex issues and expertly spread bountiful amounts of scorn upon the government’s case.

Immediately after came Manjit Gill QC. Gill’s voice electrified the courtroom air, as it thrust a genuine anger at the government’s argument into the proceedings. A strong start it was to stare straight in the eyes of the justices and declare with beautiful theatre that “hard cases make bad law — but this is not a hard case!” It was a massively different approach, and his role appeared to be to highlight the impact of the government’s intended actions on vulnerable people. He injected his argument with emotion, ensuring the very real consequences for European Economic Area (EEA) children living in the UK was at the forefront of everyone’s mind — a captivating image when set against a backdrop of complex, legal fencing:

Be ready to pack your bags and go — it is that stark…we are going to use you as a bargaining chip.

He exquisitely painted the bleak reality at the heart of an astute legal point: leaving the EU exposes EEA-born children living here to criminal liability and expulsion as soon as the withdrawal occurs which, according to the government, could legally happen without any substantive parliamentary input. Making something a criminal offence which previously was not without reference to parliament is an obscene breach of parliamentary sovereignty, and putting it in these terms urgently and persuasively increased the gravity of the consideration the justices must make. Lord Neuberger seemed to enjoy this submission, with its energy and force of emotional importance; he would interject with supportive clarifications and couldn’t have been quicker to grant Gill a few extra minutes to develop his argument.

Overall, my coveted ‘Favourite Supreme Court Advocate of the Miller Case’ gong goes to Manjit Gill QC, who paired his legal ripping apart of the government’s case with genuine and convincing exasperation at the weakness of what they were arguing, picking up what Eadie has said and discarding it with disgust — “just a complete nonsense!”

His final words deafened those of Eadie and will continue to reverberate within the justices’ heads, long after the week of the hearing:

This is no time to turn a flexible constitution into a slippery one.

What we learned

Outside of the fact that Lord Sumption really ought to sell his own range of ties?

Well, what has been clear is the diversity problem at the bar and judiciary. It is one thing knowing the facts (only 13% of QCs are women; only 5.9% of all judges are BME; only 6% of all barristers are from a working class background), but when you see a high profile case such as this being livestreamed and almost everyone is white, the vast majority of those in the first stream of rows are male, and nearly every one of the advocates and Supreme Court justices sound like a Downton Abbey extra, it hits home in a very visceral way. It’s not something capable of being dealt with in this article, but it’s worth noting.

We were also reminded that this was a case which, on the law, the government really shouldn’t have appealed. The difference in the amount of questions asked of Pannick and Eadie must not be construed as Supreme Court bias — it’s reflective of the gaping holes in the government argument, which were exposed by the High Court judgment and were incapable of being plugged before the appeal.

By the time Eadie was making his final reply on the last day of the hearing, the justices had begun playfully batting his argument around like a bear would do with its food — a justice casually turned to Eadie and asked him “isn’t that just a Jury Point (‘one that had no logically persuasive force but might influence a jury which is not too much concerned with logic’)?” Eadie looked back in horrified amazement, and frantically assured them it was nothing of the sort. “Now, there’s nothing wrong with a jury point if it’s a good one” gleefully contributed another justice. The bench erupted with laughter; Hale chimed in by noting that “well, we’re the size of a jury”, which was both accurate and hilarious. They chuckled while Eadie grimaced, the laughter splitting through the seriousness of his argument like a hot gavel through butter. His argument evaporated into the ether, like the government’s chances had, long before.

‘Law but a poor player’

Overall, nothing across the four days has shaken my belief that the government will lose this appeal and I am happy to stand by my prediction that it could be unanimous.

I think on the devolved issues there will be a split, and it will be fascinating — I’m particularly in love with the argument about the Good Friday Agreement (see Joshua Rozenberg’s Legal Cheek article). But the reaction of The Telegraph, the Daily Mail and gutter politicians like IDS and Farage is equally as predictable.

With that in mind, I’ll quickly note that this is the latest instalment in a series of articles I’ve written on Article 50 for Legal Cheek. I ended up commandeering a famous Shakespeare quote for each, but for this article, and for this topic, it was more difficult. I have found the whole legal battle fascinating but the reaction to it has been a fever pitch of nastiness; a crescendo of vitriol. As such, I will end on the only Shakespeare quote, slightly adapted, that I felt spoke to this fall out:

[The law is] but a walking shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no more; it is a tale told by an idiot, full of sound and fury, signifying nothing.

Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.

The post Article 50 challenge: An autopsy of the Supreme Court livestream appeared first on Legal Cheek.

When Pandora opened the box she had been told never to open, she released all the evils inside upon the world. By his decision in the High Court on 3rd November, Lord Thomas of Cwmgiedd may well have done the same regarding what could be the British constitution’s impending implosion.

This is not the fault of Lord Thomas, or his two colleagues, who ruled on the legal challenge brought by claimant Gina Miller against the government’s intention to invoke Article 50 — which starts the formal process of leaving the European Union — without holding a vote in parliament.

Lord Thomas made the only decision he could. Article 50 describes the process of withdrawal as taking place by the normal constitutional arrangements of the member state in question. Ordinarily, since Article 50 is part of a treaty, the government could use powers of royal prerogative. As the treaty in question, the Treaty of Lisbon, is an EU treaty that means a vote in parliament, even if parliament would have got its vote anyway when it came to repealing the European Communities Act 1972 — the act that means EU law is incorporated into, and supreme over, domestic law. A quick look at the European Union Act of 2011 will confirm this, with repeated mentions of how a vote in parliament must take place, even if no one at the time ever thought the UK would vote to leave the EU, something made clear by the fact that act deals with treaties concerning further integration.

The purpose of that act was to cover all changes to EU treaties, and as acts of parliament can only be undone by acts of parliament, parliament was going to get a vote anyway. You could argue that once Article 50 had been invoked parliament would only have been able to decide whether it was a soft Brexit or a hard Brexit. That is now immaterial, for not only will parliament get a say much sooner but Lord Thomas’s ruling will serve to expose the constitutional fault lines in a way they may not be able to withstand.

Central to this is the question of just how supreme parliament actually is. By passing the European Communities Act, parliament effectively fettered itself, subject to a kind of curious mirage coming into play. In theory all EU law was being enacted into UK law by acts of parliament, so parliament could still appear sovereign. As the Factortame case proved in the early 1990s though, the EU could, through the European Court of Justice, strike down UK laws whenever they weren’t compatible with European rulings. This happened when the Merchant Shipping Act infringed the rights of Spanish fishermen to form a shell company to fish in UK waters and beat quotas.

So parliament is still supreme, except before the European courts. This issue justifiably agitated Leave campaigners who wanted to make parliament truly sovereign again. That parliament may now be in the position to reaffirm the fetters that come from Europe by exercising its sovereignty to do so is an irony that already has die hard Remainers foaming at the mouth. Unfortunately for them there remains the fact that parliament is also bound by the will of the people who elected it, to follow their decisions.

This is why judicial review allows the courts to challenge the executive but not parliament. Because judges are not elected and aren’t accountable to the people in the same way that MPs are, their power to challenge decisions is limited to reviewing the processes used to reach those decisions rather than the decision itself. So the government’s intention not to hold a vote in parliament before invoking Article 50 was a flawed process rather than a flawed decision. Should the Supreme Court affirm Lord Thomas’s decision — and given the correct nature of his decision in a strictly legal sense, it’s hard to see how they won’t — then the extent to which parliament truly is supreme will be tested.

There are two reasons for this, the first legal, the second political, both of them constitutional.

On the first issue, any decision by the Supreme Court to uphold the need for parliament to have a vote will lead to further judicial challenge if parliament votes against invoking Article 50, even if only at the present time. As those who voted to leave will see it — and I should declare here that I voted leave and still very much believe in that decision — there was a legitimate expectation that the outcome of the vote in the referendum would be honoured. The government of David Cameron said so, and he duly fell on his sword when he lost. Theresa May’s succeeding administration has since said ‘Brexit means Brexit’ — a statement of clear meaning, if not particularly detailed.

The second issue is far more extensive. If, or rather when, parliament gets its vote, it will be a de facto vote of confidence in or against the government; if the government loses there will be almost irresistible pressure to hold a general election next year rather than in 2020. This would then bring the Fixed-term Parliaments Act 2011 into play, as to dissolve parliament and call an early election there needs to be either an explicit vote of no confidence in the government and no replacement government formed within two weeks, or else the government would need a hundred more or so MPs than it has to vote to dissolve parliament and hold an early election.

Neither is particularly desirable. On the first, who would form a credible replacement government? Labour wouldn’t be able to form a majority administration even with the SNP and the Liberal Democrats backing it, a development that wouldn’t inspire confidence from either the country or the markets. If there was an early election, the Tories would win, and Theresa May would have an actual mandate for Brexit.

On the second, May’s government will not get those hundred or so opposition MPs, since none of the opposition parties have anything to gain but humiliation from an early election (Ruth Davidson’s Scottish Tories might win some seats from the SNP, while Labour would simply be skewered on its own divisions). That would leave a millstone hanging around the government’s neck as the Fixed-term Parliaments Act comes to look like a piece of short term political expediency. More to the point, the evolutionary nature of the British constitution would be revealed for being as much its weakness as its strength. Evolution doesn’t always produce the strongest of the fittest, and the constitution is too vulnerable to opportunism on the part of governments more concerned with advantage in the present than considering what the repercussions might be in the future.

The result is that the country risks heading into a vicious constitutional loop where the executive and the legislature come to be at permanent loggerheads, resolved only when the 2020 election finally comes around. The courts will be powerless to do anything but rule on technicalities and all the while the people, who should not be required to accept legal technicalities given their expectation that ‘Brexit means Brexit’, will lose faith in both their elected representatives and in democracy itself.

With any luck of course this won’t happen. Parliament will respect the will of the electorate — who voted by a clear majority to leave the EU — by voting in favour of triggering Article 50, with parliament free to thrash out the issue of repealing the European Communities Act at a later date. The fault lines in the constitution though have already been exposed for all to see, and constitutional experts will have much to debate in the coming years, especially on the issue of parliamentary supremacy.

For in truth parliament is not supreme. It has abrogated certain responsibilities and authorities, first to Europe, then to the devolved administrations around the UK.

More to the point, it has always been subject to the will of the people. That’s where it draws its legitimacy from, and in that it understands that when the people express their will, they expect it to be acted upon. So parties that lose elections don’t form governments. Prime Ministers who lose referendums of constitutional importance resign, and parliament acknowledges that the people have a legitimate expectation that their desire to leave the EU will be acknowledged and acted upon.

Gareth Wood is a Lancaster University graduate. He is now a GDL student at the University of Law.

The post The Brexit High Court challenge: why the Lord Chief Justice has opened Pandora’s box appeared first on Legal Cheek.

Imagine if, one day, Her Majesty went on a crime spree.

We don’t need to worry about why she did it. Maybe it was a final, infuriating comment from Phillip. Maybe she started seeing her own face everywhere, on stamps, currency, and just snapped. Maybe it was simply old age.

But just imagine if, one frosty autumn morning, the Queen decided to walk into her nearest Barclays branch, hunting rifle under her arm, and demand that the cashier fill a bin bag with everything behind the counter marked Elizabeth R.

For the sake of argument, let’s say no one was killed in the ensuing police chase, but that our monarch left behind a trail of destruction: giving the police ample evidence of robbery, dangerous driving, damage to property, assault, arson, and impersonating a police constable.

Imagine now that you’re DCI Smith, Royal Deeside branch, and you have all this evidence before you. Your suspect has even confessed: she had a jolly great time. How, legally speaking, could you begin to prosecute our head of state?

Most people know that as a general rule, the Queen can’t be prosecuted. While this may rile republicans, it is actually the norm for heads of state to enjoy this substantial legal privilege, at least while they’re in office. You would have a hard time bringing a case against any sitting head of state under domestic criminal law, because they enjoy a number of customary immunities, both at home and abroad. There are sensible practical reasons for this, not least of which is preserving the dignity of the office. It would be very embarrassing for the nation if, for instance, it came out in court that our head of state had illegally downloaded Burial’s back catalogue.

If you’ve studied public international law before, you’ll know that immunities of government officials are a standard part of the syllabus, and a difficult part at that.

Immunity has the rare distinction among international law subjects of being both tricky and occasionally relevant to the real world. Great news for international law researchers like me, because it means that we occasionally get asked about immunities by real lawyers. Such queries are a welcome distraction from the endless river of funding applications, article rejections and passive-aggressive blog posts dissing other researchers’ theories (though if you are reading this, John, I maintain that your assertion on ‘EJIL: Talk!’, namely that the Responsibility to Protect has attained legally binding customary status by virtue of recent state practice in the Middle East, is questionable at best. See my own blog post on the same subject, ‘A Rejoinder to John’s Interesting New R2P Theory: Two Thoughts on Methodology in IL Research,’ forthcoming.)

But I digress. There are many kinds of immunity in public international law, and the overlapping relationship between them baffles LLB students and judges alike: see, for example, Pinochet no 2 (1999), in which Lord Browne-Wilkinson was so out of his depth the judgment reads like a transcript from a Liz Truss select committee appearance.

In our Queen-on-a-rampage scenario, however, all the alleged crimes have been committed at home. Therefore, while international law might still help us later, our starting point is a related legal principle in domestic law, sovereign immunity.

Sovereign immunity is a customary principle, under which the Queen and the criminal law simply don’t mix. It was last tested in court in 1911, when King George V was accused of bigamy: the Lord Chief Justice decided that the King could not be ordered to give evidence, and that was the end of that.

It isn’t just immunity from criminal prosecution the Queen enjoys under this principle: no questioning as part of a criminal investigation, no police interviews, and certainly no cross-examination. Basically, the only way the Queen can get near a courtroom is if she’s opening it. As for the other royals, while they don’t enjoy the Queen’s final boss-level immunity, it is notable that criminal proceedings with even a whiff of royalty tend to follow the same pattern: they stagger along under the weight of heavy media restrictions before collapsing completely, never to be spoken of again.

Are there any ways to get through the Queen’s seemingly-impenetrable immunity from prosecution?

One option might be parliament. Parliament can legislate as it pleases, so it could always change a customary rule, even one as old as sovereign immunity. However, it might be hard to persuade the Queen to give royal assent to a bill allowing herself to be prosecuted.

This is where international law might be able to help. In particular, international criminal law has no qualms about prosecuting heads of state, both former and sitting. The current Kenyan President Uhuru Kenyatta spent much of spring 2016 hopping between his presidential duties in Kenya and his trial in the Hague for crimes against humanity, which must have made for some interesting day itineraries.

If we went down the international route for prosecuting the Queen, one option is the ready-made International Criminal Court (ICC) in the Hague, which has the benefits of a shiny new building and a simple requirement of a government referral to start an investigation. Alternatively, we could set up a bespoke international tribunal, like the one that prosecuted former Yugoslavian President Slobodan Milošević in 2002, also in the Hague.

Milošević’s trial is a particularly interesting precedent, because he refused to accept the authority of the tribunal from the outset. I used to work in a secure prison before going into research, and on the wings a common tattoo read ‘only God can judge me.’ A nice thought, but it didn’t do much for the prisoners in question, and the same attitude didn’t help Milošević. His trial proceeded anyway, though he did die of a heart attack before its conclusion (make of that what you will).

However, even if the government felt like sending the Queen on a Dutch holiday, in our scenario none of her alleged crimes reach the threshold for an international crime. Under the ICC statute, the court can only prosecute someone for genocide, crimes against humanity, war crimes, and aggression. Worth knowing, but doesn’t fit our scenario here. As for other international courts and tribunals, it’s true that they aren’t always squeamish about ruling on domestic legal issues, as anyone working in international arbitration will tell you. But there does, generally speaking, have to be some ‘international’ element to justify international legal proceedings.

So no act of parliament, and no international mechanism that fits. Is DCI Smith stuffed?

Perhaps not, if he can summon the spirit of ’49. 1649, that is, which is our only precedent for the criminal prosecution of a British head of state.

Following a lengthy civil war, Oliver Cromwell and friends set up a court in 1649 to try and execute Charles I. In my measured academic opinion, Charles was basically asking for it, but the legal authority of the tribunal was a sticky issue at the time, because Charles kept to the 17th century equivalent of “only God can judge me” (legality aside, he was at least wrong about that on a very practical level).

Was the 1649 trial legal? It was certainly permissible under international law, and would be permissible under international law today. It was, in effect, an act of political revolution, which international law has no opinion on as long as you don’t commit international crimes in the process.

Domestically, the rule for political revolutions is as follows: they are usually unlawful at the time, but if you can win your revolutionary war and keep hold of the country (tick for Cromwell), you eventually become the government (tick again), and once that happens, you can legislate to legalise whatever you want, even retrospectively (tick again). Therefore, putting the Queen on trial would be possible in UK domestic law, as long as you control the government, and can legitimise the trial before or after the fact.

That’s my conclusion, then: lawfully prosecuting the Queen would be difficult for the reasons set out above, but not necessarily impossible. In order to do it legally, you first need to successfully complete a comprehensive political revolution, after which you can go to town. So good luck with that, my republican friends.

A word of warning, though, to any would-be revolutionaries in the comments section. It is certainly true that he who writes history gets a glowing review in it, to paraphrase a much-loved British racist. And as in history, so in law. But both history and law are only kind to revolutionaries for as long as they can continue to write it. Following the restoration of the monarchy in 1660, Charles II passed his own retrospective law, the aptly titled Indemnity and Oblivion Act. This annulled the former government and effectively condemned the remaining regicides to death. Cromwell’s embalmed body was dug up and dismembered, his severed head put on a spike, Joffrey-style.

So if DCI Smith did put the Queen on trial, he might not sleep easy the following evening. He’d surely worry that one day, a future government might strip his actions of legality, and give him a nice view of London Bridge’s underside for good measure.

Alex Shattock is a final year PhD student at the University of Cambridge.

The post What would happen if the Queen went on a crime spree? appeared first on Legal Cheek.