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.......




Sunday, 22 March 2015

Pre Referendum but Post Election Scottish Devolution Madness

You will recall that there are some Vows re Scottish Devolution to be made good.  They were made by the Unionist parties in a desperate attempt to avoid referendum defeat.  The HoC Political and Constitutional Reform Committee has rightly criticised some proposed clauses for amendment to the Scotland Act which are said to be the means of implementing some of the vows. They are in legal and constitutional terms utterly vacuous and frankly a bit bonkers:

For example a new sub-section 1A to be added section 1 of the Scotland Act:

(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom's constitutional arrangements.
Recognised by who?  Does not actually say it is permanent because one Parliament cannot bind another.  The Scottish Parliament is no more permanent than anything else declared to exist by a Act of Parliament; it can be repealed at any time by simple majority.  What makes the Scottish Parliament permanent is politics not law.  Even if the Scottish Parliament was entrenched in a Federal UK Constitution, it would still not be permanent, because even constitutions can be amended and overthrown.

& then it gets worse - the Sewel Convention says that the UK Parliament will not legislate on a devolved matter except with the agreement of the Scottish Parliament - that can only be a convention, because again, the supreme sovereignty of the UK Parliament cannot be fettered by any such rule.  So then we get this proposed as a clause:

"(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."

What does normally mean?  What does "will" mean when the said Parliament can repeal this sub-section in the blink of an eye?

Bonkers, meaningless and of no legal effect.  

This is all politics, not law.


Thursday, 19 March 2015

Scottish Judicial Reform..no more automatic right of appeal in civil cases to UKSC....

Never quite got my head around the Scottish Legal System, never had to.  But have noticed that the Scottish Parliament has passed an Act to reform it recently.  As far as I can tell (which may be not very far at all) there is to be a new Sheriff Appeal Court to sit between the first instance criminal and civil Sheriff and Justice of the Peace Courts and the Court of Session/High Court of Justiciary which will become a second tier of appeal in such cases.  One other major reform is to abolish the automatic right of appeal from the Court of Session to the UK Supreme Court in civil cases (you cant' appeal in criminal cases - the High Court of Justiciary in Edinburgh is your last stop bar Europe).  Currently if two Advocates sign a Notice of Appeal then the UK Supreme Court have to hear the case, no need for permission from the Court below or above; which is very much not how the Supreme Court works re the rest of the UK.  Section 117 Courts Reform (Scotland) Act 2014 is going to put an end to that historical asymmetry:

Appeals to the Supreme Court (1) An appeal may be taken to the Supreme Court against a decision of the Inner House mentioned in subsection (2), but only— (a) with the permission of the Inner House, or (b) if the Inner House has refused permission, with the permission of the Supreme Court. 

Don't know whether this is an attempt by the SNP to keep more appeals in Scotland, but we'll see......





Saturday, 14 March 2015

Now that's how to end a judgment... with a beer and some latin....



This is how Justice Neville Owen ended his 2614 page judgment in Bell Group v Westpac [2008] WASC 239 - Australia’s longest running corporate insolvency case (404 days of hearing over a 5 year period at legal costs of over $300M and involving 80,000 documents.)

You have to feel for the chap




The trial: a final reflection

9759 I am not so naïve as to believe that the handing down of these reasons will mark the end of the litigation. But stranger things have happened. It is still not too late for the parties to put an end to this saga by a negotiated settlement, guided (perhaps) by the findings I have made. If formal judgment is never entered, or of there is a consent judgment on negotiated terms (whether or not they accord with what is contained in these reasons) I will be the last person to complain.

9760 Whatever the parties decide to do from here, my role in the litigation will come to an end in the near future. Selfish though it may seem, for me that is the primary concern. I will try to engender sympathy for those who come after me: but I make no promises.

9761 From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.

9762 For the moment, in the words of Ovid (with an embellishment from the old Latin Mass): Iamque opus exegi, Deo gratias.

Sunday, 15 February 2015

That's the spirit....

The Prosecution have to prove that you did it....not enough that you actually did it...


Tuesday, 3 February 2015

Robust but unfair case managment

One for the files, to be dragged when the local circuit judge is having a bad day and is being robust but unfair.  Judgment here.

A Circuit Judge (His Honour Judge Dodds) sitting in the Fam Ct in Liverpool thought he would cut through the red tape by making a final care order at the first case management hearing - here is a flavour:


All the parties crumbled under the judge's caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews). At one stage the judge referred to the mother as looking "upset and bewildered". It is hard to see how she could have looked otherwise given the course the proceedings were taking.  The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children.

The Judge thought he was on safe ground because MacFarlane LJ had refused permission to appeal a similar approach in an earlier case, but on this occasion he gave permission.  Robust, but not fair, said the Court of Appeal.

In the same week the Court of Appeal dealt with another case concerning this judge.  This is taken from the Lawtel summary (RE A (CHILDREN) (2015) CA (Civ Div) (Aikens LJ, Black LJ, King LJ) 29/01/2015):

The judge's unrestrained and immoderate language had to be deplored. The appeal would be allowed and the application remitted. It was to be hoped that the judge would read the transcript of the hearing and be embarrassed. Appointment as a judge was not a licence to be gratuitously rude to those appearing before him. It was to be emphasised that the instant comments related only to the instant matter.

Further I found this from 2014 about the same judge: T (A Child) [2014] EWCA Civ 929

 I conclude that the judge failed on this occasion to grapple with and engage upon a proper analysis of the issues here. He did not help himself by failing to have regard to the statutory structure.

Looks like there is a local problem which needs to be sorted out...............

In the instant case, Lewison LJ has some fine things to say which are worth keeping up your sleeve for deployment from time to time:


It has long been a fundamental principle of English law that justice must not only be done, but must be seen to be done. Where a judge has apparently made up his mind before hearing argument or evidence that principle has undoubtedly been breached. A closed mind is incompatible with the administration of justice. But in such cases it is always possible that justice itself has not been done either. As Lord Neuberger MR recently put it in Labrouche v Frey [2012] EWCA Civ 881 at [24]:


"Any experienced judge worthy of his office will have had the experience of coming into court with a view, sometimes a strongly held view, as to the likely outcome of the hearing, only to find himself of a very different view once he has heard oral argument."
Longer ago in John v Rees [1970] Ch 345, 402 Megarry J said:


"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
Moreover where parties arrive at court expecting to participate in a hearing that is to deal only with procedural aspects of progressing a case towards a final hearing, it is quite wrong for the court, on its own initiative and without prior notice to the parties – let alone any invitation from any of them – to treat the procedural hearing as if it were the final hearing and to make such a drastic order as the judge made in the present case. Had a party invited the judge to make the order that he in fact made without notice to the other parties one would have described it as "an ambush". The fact that it came from the court makes it worse, not better.


Parties are also entitled to know why judges make the decisions that they do. This necessarily entails giving reasons for decision, not merely announcing conclusions. The reasons may be brief but they must be explanatory. Justice will not be done if it is not apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16].


In both civil and family cases the Court of Appeal has said on more than one occasion that it will uphold robust but fair case management decisions by first instance judges: Cherney v Deripaska [2012] EWCA Civ 1235 at [17], [30]; Re TG (a child) (care proceedings: biomechanical engineering evidence) [2013] EWCA Civ 5, [2013] 1 FCR 229 at [35], [36]. Both adjectives are important. Robustness cannot trump fairness.


Family cases, however inquisitorial and streamlined they may be, are not exempt from these basic principles. As the President put it in Re TG at [37]:


"The task of the case-management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention)."
It was for these reasons, as well as those given by the President and Eleanor King LJ, that I joined in the decision to allow the appeal.