Thursday, 28 May 2015

EU Referendum Madness begins.....

& so it begins: The question will be

“A ddylai’r Deyrnas Unedig ddal i fod yn aelod o’r Undeb Ewropeaidd?”


Should the United Kingdom remain a member of the European Union?

The franchise will be Parliamentary and Gibraltar is going to join in the fun....

No provision for separate majority consent in each part of the UK let's hope they all vote the same way.......

What joy!

The Bill is available on the UK Parliament website.....

Tuesday, 19 May 2015

Catching up on judicial appointments........

Just a few judicial appointments in case you had missed them:

To replace Sales LJ in the Chan D -  Richard Snowden QC formerly of Erskine Chambers.

His Honour Judge Mackie CBE QC who used to run the London Mercantile Court has retired.  He appears to have been replaced by HHJ Waksman QC -although it is unclear whether this is permanent or indeed whether HHJ Waksman QC has left his North-Easter Mercantile Court post (where he was very popular and effective).

I note that His Honour Judge Peter Thornton QC has had his term of office as Chief Coroner of England and Wales extended to 1.10.16 which is excellent as Coroners are still (in my experience) in need of a firm coordinating hand.

Eder J has retired from the QBD.  No news on his replacement which I have seen....

Rose J has been made President of the Upper Tribunal Tax and Chancery Chamber to replace Warren J.

& the old LCJ, Lord Judge has been made Chief Surveillance Commissioner to replace Rose LJ.

The role of the Commissioners is to provide oversight of the way in which all public authorities in the United Kingdom (with the exception of the Security Services) carry out covert surveillance. The covert surveillance techniques overseen by the Commissioners include property interference, directed and intrusive surveillance, the use of covert human intelligence sources and the investigation of encrypted data. These techniques are governed by Part III of the Police Act 1997 and Parts II and III of the Regulation of Investigatory Powers Act 2000.

Sunday, 10 May 2015



Do you recall when there was no Human Rights Act 1998 but yet Judges applied the ECHR to English Law because it was our international obligation to do so?  If the HRA is repealed - will there be any real difference from what obtained before?  Unless, of course, we are going to withdraw from the Council of Europe?  Really?  Winston would be turning in his grave.  & what of the EU Charter of Fundamental Rights - that will still be binding right - oh wait,....there's going to be that EU Referendum we have been promised............GULP.....


English Parliament?  English Grand Committee of the UK Parliament?  More devolution?  Federation?  Empowered English Mayors and super local authorities?  Time for a Constitutional Convention to sort the lot out?


Boundary change could cement a Tory majority in England forever.  Proportional Representation would do the opposite?  Yikes!  Check out the boundary changes proposed last time by the Tories:  HERE


Gove as Lord Chancellor!

Apparently he wrote a book once in which he said:

'The problems we face are compounded by the dogged refusal of too many in the legal establishment to put the defence of our civilisation ahead of the defence of the traditions with which their profession has grown comfortable.'

Right to a fair trial?  Right to competent representation?  Right to remain silent?  Right to plead Not Guilty without worrying about Court Fees?  Right not to have safeguard your children or fight for your share of the matrimonial money pot without a lawyer?  Which of these old fashioned traditions should we grow less comfortable with?  Which one of these traditions should we stop defending?  Which one of them does not define our civilisation which Gove wants to defend in any event?  Cart before the horse - it is only by defending these "traditions" that we maintain our claim to be the very civilisation which Gove wants to defend............... Still he'll look lovely in the Chancellarian tights.....

Might be time to build and man those metaphorical barricades.........You'll be missing the breaking effect of those lovely Lib Dems you voted out....Bless 'em, you're going to miss 'em..........

Sunday, 3 May 2015

Happy and Glorious...and also without gender discrimination

Welcome to the first member of our ruling house to take advantage of section 1 , Succession to the Crown Act 2013, which the Lord President of the Council (or Nick Clegg for short) signed into law on 26.3.15 as one of his last executive acts in that Government (or ever?) He actually signed the Succession to the Crown Act 2013 (Commencement) Order 2015 bringing section 1 into force as of 26.3.15.

Succession to the Crown not to depend on gender

In determining the succession to the Crown, the gender of a person born after 28 October 2011 does not give that person, or that person's descendants, precedence over any other person (whenever born).

Which means that the new Princess of Cambridge (not the first, check out the Grand Duchess of Mecklenburg-Strelitz - can't find a Princess Charlotte of Cambridge - but did find one of Wales, which is what she will become if she does not marry before her father becomes Prince of Wales  - she would have come Queen Regnant instead of Victoria, but died aged 21) will be 4th in line to all 16 thrones inhabited by the UK Sovereign regardless of the gender of any further Cambridges:

The action of bringing the change into force was repeated around the 16 realms on 26.3.15 - e.g. Australia:

Succession to the Crown Commencement Proclamation 2015
I, General the Honourable Sir Peter Cosgrove AK MC (Ret’d), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under items 3 and 5 of the table in subsection 2(1) of the Succession to the Crown Act 2015, fix the beginning of 26 March 2015 by United Kingdom time as the time and day on which Parts 2, 3 and 4 of, and Schedule 1 to, that Act commence.
This instrument commences on the day, and at the time, it is registered.
Signed and sealed with the Great Seal of Australia on 24 March 2015
Peter Cosgrove
By His Excellency’s Command
Curiously Canada assented to our Bill rather than make their own, because they didn't think that they had any laws of succession of their own.....although I gather their is legal action....

 The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to.

Wednesday, 29 April 2015

Leave the Director of Public Prosecutions alone...

The DPP is a statutory office in which there is vested a duty to take over and conduct of any and most (but not quite all) public prosecutions, e.g. (re the Police), section 3(2) Prosecution of Offences Act 1985:

(2) It shall be the duty of the Director[, subject to any provisions contained in the Criminal Justice Act 1987]—

(a) to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force (whether by a member of that force or by any other person);

 & "conduct" includes bringing such proceedings to an end: section 15

(3) For the purposes of this Part, references to the conduct of any proceedings include references to the proceedings being discontinued and to the taking of any steps (including the bringing of appeals and making of representations in respect of applications for bail) which may be taken in relation to them.

We are lucky to have her and not a politician or an elected prosecutor or a supposedly French style independent investigating Magistrate.

She makes hard tough decisions on a daily basis, and no doubt gets it wrong from time to time, being human etc.

& as Lord Bingham made clear in R v Director of Public Prosecutions, ex p Manning [2001] 1 QB 330, once she has made her decision, she is answerable to the AG but save in exception circs giving rise to grounds of JR, nobody else:

“23.The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no- one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The Director and his officials (and senior Treasury counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”

We all have a right to express an opinion about her decisions, but not at the expenses of undermining the integrity with which this important office must be vested.  

Monday, 30 March 2015

Is this the first time that the Monarch has not dissolved Parliament?

Note to Nerds:

HMQ, like her forebears, used to dissolve Parliaments.  Not this time because section 3 Fixed Term Parliaments Act does that all on its own:

Dissolution of Parliament 
(1) The Parliament then in existence dissolves at the beginning of the 17th working day before the polling day for the next parliamentary general election as determined under section 1 or appointed under section 2(7). 
(2) Parliament cannot otherwise be dissolved. 
(3) Once Parliament dissolves, the Lord Chancellor and, in relation to Northern Ireland, the Secretary of State have the authority to have the writs for the election sealed and issued (see rule 3 in Schedule 1 to the Representation of the People Act 1983). 
(4) Once Parliament dissolves, Her Majesty may issue the proclamation summoning the new Parliament which may— (a) appoint the day for the first meeting of the new Parliament; (b) deal with any other matter which was normally dealt with before the passing of this Act by proclamations summoning new Parliaments (except a matter dealt with by subsection (1) or (3)). 

Don't worry, whilst she does not dissolve Parliament, HMQ can still summon the next under sub-section 4 which she will today after the PM has been to see her this morning.

This innovation did however lead to a much shorter Prorogation Ceremony on Thursday, because it left out the long reading of the Dissolution Proclamation which is no longer required:

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, it not being convenient for Her Majesty personally to be present here this day, she has been pleased to cause a Commission under the Great Seal to be prepared for proroguing this present Parliament.

When the Commons were present at the Bar, the Lord Privy Seal continued:

My Lords and Members of the House of Commons, Her Majesty, not thinking fit personally to be present here at this time, has been pleased to cause a Commission to be issued under the Great Seal, and thereby given Her Royal Assent to divers Acts, the Titles whereof are particularly mentioned, and by the said Commission has commanded us to declare and notify Her Royal Assent to the said several Acts, in the presence of you the Lords and Commons assembled for that purpose; and has also assigned to us and other Lords directed full power and authority in Her Majesty’s name to prorogue this present Parliament. Which commission you will now hear read.

A Commission for Royal Assent and Prorogation was read, after which the Lord Privy Seal continued:

My Lords, in obedience to Her Majesty’s Commands, and by virtue of the Commission which has now been read, We do declare and notify to you, the Lords Spiritual and Temporal and Commons in Parliament assembled, that Her Majesty has given Her Royal Assent to the several Acts in the Commission mentioned; and the Clerks are required to pass the same in the usual Form and Words..........

Members of the House of Commons, I thank you for the provisions which you have made for the work and dignity of the Crown and for the public services.

My Lords and Members of the House of Commons, I pray that the blessing of Almighty God may rest upon your counsels.

The Lord Privy Seal (Baroness Stowell of Beeston): My Lords and Members of the House of Commons, by virtue of Her Majesty’s Commission which has now been read, we do, in Her Majesty’s name, and in obedience to Her Majesty’s Commands, prorogue this Parliament to the 30th day of March, to be then here holden, and this Parliament is accordingly prorogued to Monday, the 30th day of March.

Parliament was prorogued at 5.30 pm.

I note in passing that the Lord Privy Seal looks like an interesting character who neutrally served the last Tory administration as a civil servant (and got an MBE for her trouble) and then served the Leader of the Tory Party, before entering Govt as a whip and then a Minister....

Political career

After entering the House of Lords in January 2011, Baroness Stowell was promoted to the front bench as a government whip in September 2011. In September the following year, she was promoted to Conservative Deputy Chief Whip and became government spokesman for women and equalities, as well as government spokesman for work and pensions. On 7 October 2013 Baroness Stowell was appointed Parliamentary Under Secretary of State for Communities and Local Government.
Career before Parliament

Baroness Stowell was a civil servant between 1986 and 1996, including at the Ministry of Defence, the British Embassy in Washington and 10 Downing Street. After leaving the civil service she worked in the private sector for a couple of years, mainly in the media sector. She also served as Deputy Chief of Staff to the Leader of the Conservative Party between 1998 and 2001. After working for the Conservative Party, she moved to the BBC and spent time in various roles, including as Head of Corporate Affairs between 2008 and 2010.

Saturday, 28 March 2015

The Prince of Wales's Spider Letters: Supreme Court nil v Parliament 1

I have literally no idea what Lord Neuberger PSC (and Lords Reed and Kerr who agreed with him) is talking about.   Lord Phillips Quondam PSC (with whom Lady Hale and Lord Kerr agreed) showed when he found (for the minority, thank goodness) in the Nuclear Test Veterans litigation SC judgment that time began to run for limitation purposes in a personal injury action after the issuing of the claim form that even those at the very apex of our judicial system can slip up sometimes.

If Parliament (that Supreme Constitutional Being which gets the final say in our unwritten constitution) gives the last laugh to the Govt on an issue of judgment as to what the public interest requires, then that is the way it is and the Supreme Court has to lump it.  Lord N agrees with me, but thinks that Parliament should have been clearer if that is what it meant:

Cue a quick look at section 53 FOIA  - that an Information Commissioner's notice to disclose documents

“shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to comply with section l(l)(a) or (b)]."
What's not clear - that section does what Parliament put on the tin - "shall cease to have effect"  - the Notice is as dead as a parrot - once the accountable person has issued a certificate (and so long as there are reasonable grounds etc which of course can be challenged by a JR in the Courts...).  Its contrary to the Rule of Law to deliberately misinterpret or re-write the words of a Statute.  Good old Lord Wilson (who thought Lord P in the NTV case had
strayed from the path of common sense) is spot on:

I would have allowed the appeal. How tempting it must have been for the Court of Appeal (indeed how tempting it has proved even for the majority in this court) to seek to maintain the supremacy of the astonishingly detailed, and inevitably unappealed, decision of the Upper Tribunal in favour of Page 64 disclosure of the Prince’s correspondence! But the Court of Appeal ought (as, with respect, ought this court) to have resisted the temptation. For, in reaching its decision, the Court of Appeal did not in my view interpret section 53 of FOIA. It re-wrote it. It invoked precious constitutional principles but among the most precious is that of parliamentary sovereignty, emblematic of our democracy.
He is also spot on when he distinguishes between the Court's supremacy over the Executive on what the law means, and its deference to the Executive in relation to what ought to be done in the public interest:

A power of executive override of determinations of the Commissioner, or of tribunals or courts in ensuing appeals, on issues of law would have been an unlawful encroachment upon the principle of separation of powers: see the classic judgment of Sir Edward Coke, Chief Justice, in Prohibitions del Roy [1607] EWHC KB J23, 77 ER 1342, upon the claim of King James 1 to determine issues of law. But issues relating to the evaluation of public interests are entirely different. In the words of Lord Hoffmann in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, at para 69, the principle is that “in a democratic country, decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them”. This was the principle reflected in the first version of the Bill. In the later version Parliament sanctioned departure from it but, in enacting section 53, it no doubt continued to have in mind that the evaluation of public interests was not an exercise in relation to which the Commissioner, the tribunals and the courts, could claim any monopoly of expertise. With respect to Lord Neuberger, I cannot agree with his observation at para 96 above that in this context it is hard to differentiate between the findings of fact and conclusions of law traditionally reached by tribunals and courts, on the one hand, and their occasional excursions into evaluating the potency of rival public interests on the other.

Lord N wants a clearer sign from the apparently Delphic Parliament at Westminster?  All that Lord N has done is create a ridiculous pyrrhic victory for the judiciary - because as sure as eggs is eggs the next incoming administration will amend section 53 to make it brutally clear to Lord N and any other Judge who is tempted to usurp the proper role of Parliament, that HMG will have the final say on what the public get to see under FOIA, not the judiciary.  Why?

Because there are just some things which only HMG and not the Courts can judge - there are just some things which we must entrust to our democratically elected representatives and not to the judges.   There are just some classes of information which only the Parliamentary accountable Executive can decide whether to release to the public or not.

That is the way it has to be and that is the way which it will be once Parliament gets round (it will probably have better things to do when it is re-summoned on 18 May 2015) to making that absolutely "crystal clear", to even Lord N's satisfaction, that section 53 means exactly what is says.......