Weekly Notes: legal news from ICLR – 22 July 2016

Posted on 23rd Jul 2016 in Weekly Notes

This week’s roundup of legal news and commentary includes the swearing in of the first female Lord Chancellor, the commencement of litigation over Brexit, the risks of prosecuting historic sexual offences, human rights in Yemen and the state of emergency in Turkey. We can’t promise to be cheerful, but we’ll try to be interesting.

 

Politics

New Lord Chancellor sworn in

LizChancellorThe Lord Chief Justice, Lord Thomas of Cwmgiedd was among those endorsing the appointment of Liz Truss MP as the new Lord Chancellor, in spite of widespread criticism that she was not up to the job. “It is readily apparent that you have had a most distinguished career which has demonstrated your great skills and experience,” he was quoted by The Times as saying: see Truss sworn in despite opposition from peers (£)

Like the Times, the Guardian made much of the fact that Truss is the first female Lord Chancellor (her appointment, it said earlier, “breaks 800-year run of male lord chancellors”), though in truth the post which she inhabits (a semi-judicial one uneasily grafted onto the cabinet ministerial post of Secretary of State for Justice) is 21st Century hybrid dating from the Blair government’s enthusiasm for constitutional tinkering.

The Attorney General, Jeremy Wright QC MP observed, at the swearing-in ceremony, that “the oldest office in the land finally has its first female incumbent, at least in modern times”. He said she would be a “passionate advocate, who will relish working with the passionate advocates up and down the land who populate our justice system”. You can read his speech here.

And you can read hers in reply here. It says all the right things. The question really is not whether she means them but whether, if she does, she can deliver on them.

Her appointment has been criticised by a number of Tory lawyers, including Lord Faulks QC  (who has resigned his ministerial position in her department) and Bob Neill MP (on whose justice committee she once served) as well as by Lord Falconer, a former Labour (hybrid) Lord Chancellor. She also inherits a department which has been shaken up by the loss of other ministers following Theresa May’s reshuffle on becoming Prime Minister last week, such as Shailesh Vara MP, who could always be relied upon to spout the well-worn mantra about legal aid being too expensive, and Dominic Raab MP, who was a leading light in the British Bill of Rights movement (which seems to have gone nowhere … very slowly) – an indication, perhaps, that that particular project has been downgraded to near-zero significance.

The Guardian’s assertion that

“Truss will not be styled “lady chancellor”. To make the change would involve rewriting potentially thousands of statutes…”

demonstrates a shaky grasp of how statutory amendment actually works, but it’s true that the title remains, somewhat ludicrously, “Lord”. Lord Thomas alluded to that fact that part of the role (Keeper of the Great Seal – which sounds like a job in a zoo) was previously exercised by a woman, namely Henry III’s queen, Eleanor of Provence, in 1253.

Claims that criticism of Liz Truss is not up to the job simply “because she’s not a lawyer” would appear to be unfair, given that her two predecessors, Christopher Grayling MP and Michael Gove MP, were also eminently (even egregiously) non-lawyers. Both were certainly criticised for not understanding their role for that reason, but there is an additional suggestion in some of the criticism that Truss is also a bit lightweight and underpowered for such a major role, lacking the previous ministerial experience that both Grayling and Gove may have had, and the ministerial heft or clout to defend the Justice patch against Treasury depredations. Even so, to suggest that the barrage of criticism stems from “misogyny” is absurd. What is more worrying, is that anyone (particularly from her supporters) should be making such a cheap-shot suggestion.

For a more in-depth discussion of these issues, see The Secret Barrister blog, Criticisms of Liz Truss have nothing to do with lawyers’ sexism.

Another commentator, barrister Nicholas Diable, in his blog The Defence Brief, has written an Open Letter to the Lord Chancellor, urging her to take seriously the problems in the justice system.

He is not the only one. Penelop Gibbs on her Transform Justice blog, as also written a A letter to the new Lord Chancellor.

Meanwhile, let’s agree with the Criminal Bar Association, which is waiting for evidence to displace the prejudice, and at least give her the benefit of the doubt.

Brexit Law

Brexitigation: the battle commences

This week saw the start of a legal process designed to clarify, if not the effect of the Brexit vote, at least the correct (parliamentary / legislative) procedure for its implementation. There are in fact a number of such claims being brought, but on Tuesday, in the Queen’s Bench Divisional Court, Lord Leveson and Mr Justice Cranston sat on a preliminary hearing to determining the shape and timetable of those claims. As with other types of class action (similar claims brought by a large number of people), the “lead claims” were identified, with a view to minimising the duplication of time and effort on hearing legal argument.

The main hearing will be in October, when it will be heard by the Lord Chief Justice, Lord Thomas of Cwmgiedd, sitting with two other judges. An appeal will go straight to the Supreme Court, “leapfrogging” the Court of Appeal. In the meantime, the government (represented as a party in court by the newly-appointed Secretary of State for Exiting the European Union, David Davis) has agreed not to trigger article 50 of the Treaty on European Union.

Among those attending the preliminary hearing was the artist, best known for her work depicting hearings in the Supreme Court, Isobel Williams, whose blog post on the hearing (Article 50 in a heatwave) we published here earlier this week.

For Full Fact’s answers to some FAQs on this litigation, see Ask Full Fact: Brexit in court

See also: CNN, 5 Legal Cases That Challenge Brexit

Although many on the Leave side regard the litigation as a time-wasting delaying tactic, there are those who go further, contending that it is wholly improper and “dangerous” for the court even to entertain a review of what should be a prerogative act. See, for example, this article by Professor Richard Ekins, on Brexit and Judicial Power (PDF)

Quite apart from the litigation which will delay the starting pistol, once the pistol has been fired the bullet can be sucked back into the pistol! This may be politically unacceptable, but is legally possible – apparently – according to UK Business Insider, It is time to accept the fact that Brexit may never actually happen – and one of the reasons why is that Triggering Article 50 is reversible! (There’s a loophole in Article 50 that lets Britain back into the EU whenever we want).

I am not sure David Allen Green would agree – in his recent set of FAQ answers in the Financial Times, Britain and EU consult divorce manual, he says: 

Can the UK withdraw from the exit process once Article 50 notification is made?
Nobody knows, and Article 50 is silent. If there was unanimity, then there would not be a problem. But it would be a risky tactic, and may not work.

A lot of the misunderstandings about Brexit stem from the assumption that it is a single, binary decision, rather than the start of a process. The legal proceedings are designed to ensure that this process is legally and constitutionally correct, as well as in accordance with the democratic mandate on which it is supposed to rest. One of the problems of the present political situation is that the effective scrutiny which one ought to be able to expect from Her Majesty’s opposition has simply not been forthcoming, because the Labour Party is engaged in its own form of civil war.

This short clear note from Alex Andreou, tweeting as @sturdyAlex, sums it up rather well: 

 

Crime

Historic sexual abuse claims

The recent collapse of the Exaro News website (as reported in The Guardianand the implosion of the police’s Operation Midland largely based on the horrific but poorly substantiated allegations of historic sexual abuse and worse to which Exaro News gave attention (among other things), as well as the withdrawal of sexual abuse accusations against a number of prominent people, such as the late Lord Brittan, Lord Bramall, Harvey Proctor and Sir Cliff Richard, has drawn attention to the difficulty of the police ever successfully prosecuting such cases, even if they are genuine (though there have been a few) and the risk of miscarriage of justice when they are not (as has recently come to light in the case of firefighter David Bryant).

Penelope Gibbs has drawn attention to these issues in a recent post on her Transform Justice blog, Are convictions in historic sex abuse cases reliable?

Which in turn links to posts by Matthew Scott, @barristerblog, The shocking case of David Bryant reveals the fallacy that we can always spot a liar

and Nicholas Diable, @Defencebrief, on Historic sexual offences

See also Ceri Thomas, editor of Panorama, in The Times, The harm done will last years (£). 

 

Law (and injustice) around the world

Turkey

Failed coup results in draconian purge

Having last weekend averted what looked like a serious attempt at a military coup, President Erdogan of Turkey has now imposed a state of emergency, as he goes about the business (and a bloody business it seems to be) of purging those he deems liable for having supported the coup attempt. Given that these include judges, teachers and civil servants who just happen coincidentally to be less than wholly enthusiastic supporters of his increasingly intolerant regime, it may not be far-fetched to assume that he is taking advantage of the international goodwill and indulgence his near-miss last weekend may be thought to have earned him, and getting some dirty work done under the radar. At any rate, the situation is deterioriating, as Human Rights Watch reports.

According to HRW, 979 judges and prosecutors were detained, about 632 jailed and another 2,745 judges suspended. Parliamentary scrutiny has been largely abandoned as laws are imposed by decree, and any possibility of review by the Constitutional Court is curbed.

The fact that he has also indicated that he wants to suspend adherence to the European Convention on Human Rights is another nail in the coffin of democracy and the rule of law in Turkey. (See Independent, Turkey suspends European Convention on Human Rights in wake of attempted coup.)

It is unclear whether the current situation meets the “threat to the life of the nation” criteria for derogation, but even if it does, the prohibition on torture and other key rights in the ECHR will remain in effect, and the UN treaties like the International Covenant on Civil and Political Rights will still apply, say HRW. The UN Secretary General has urged the Turkish authorities to “to do their utmost to ensure that the constitutional order and international human rights law are fully respected”. The Bar Human Rights Committee has expressed grave concerns over arrest of Turkish judges and prosecutors (PDF). 

See also: Matthew Scott, Barristerblogger, This is no time for rejoicing: Erdogan is pulling Turkey towards despotism. He says: 

The evidence suggests, however, that the rule of law, on which freedom depends, is about to be superseded by the rule of revenge and vendetta.

He points to the fact that popular support is being whipped up for the use of the death penalty against the coup plotters, and there may be a risk of Turkey actually reintroducing a penalty it abolished over a decade ago, just for that purpose.

 

Yemen / Saudi Arabia

MPs given misleading human rights assurances

In a ministerial statement issued by  Tobias Ellwood on behalf of the Foreign and Commonwealth Office on 21 July 2016, the last day of parliamentary sittings before the recess, the government retracted four written answers given to MPs and deleted from the official record two speeches by ministers in the Commons, incorrectly stating that Britain had satisfied itself that Saudi Arabia had not breached international human rights law in the conflict in Yemen.  Ellwood admitted the Government had in fact not assessed whether international humanitarian law had been violated nor whether civilians have been targeted. The admissions prompted a demand by former shadow foreign secretary Hilary Benn for an explanation as to why “inaccurate” claims had been made. He also said:

The Government is failing to live up to its moral responsibilities on this issue and I urge Boris Johnson as the new Foreign Secretary to ensure that the Government does what you originally said it was doing and immediately assess whether IHL has been breached.
A continued failure to undertake such an assessment would be an abdication of responsibility and will serve to further undermine Britain’s standing in the world.”

A report issued by the FCO: Human Rights Priority Country update report: January to June 2016 shows how widespread the human rights infringements in Yemen have been during the recent conflict.

For more on this, see

 

And finally, to lighten the mood a bit…

Pokémon Go in war-torn Syria 

 

 

That’s it for now. Our thanks to all who flagged up stories, via their blogs (which we always try to acknowledge) and via Twitter (where useful tweets are retweeted).

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.

 

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