Weekly Notes: legal news from ICLR – 5 December 2016

Posted on 4th Dec 2016 in Weekly Notes

This week’s catalogue of controversy includes renewed jousting over Brexit in the Supreme Court lists, a set-back for Zac in the deer park, attempts to review terror and war from a parliamentary perspective, a novelist detained, a woman shamed, and an Australian look at the US Supreme Court. So enjoy your coffee and brace yourself for the latest legal news.

 

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European Union

Brexitigation in the Supreme Court

The case of R (Miller & anr) v Secretary of State for Exiting the European Union — which concerns the need (or not) for a parliamentary vote before the UK can trigger notice under art 50 of the EU Lisbon Treaty of its intention to leave the European Union — reaches the UK Supreme Court this coming week. Contrary to popular misconceptions, this is not an attempt to prevent Brexit, nor can it have that effect, though it may put back the timetable, or provide an opportunity for some sort of filibuster.

The case was argued pretty fully in the High Court, but has been even more fully put to paper in the Supreme Court, where the “bundles” of documents and authorities number some 33,840 pages, according to a tweet from Jolyon Maugham QC.

bundles

That’s a lot of paper – for a supposedly paperless court! According to the Supreme Court’s own practice direction 14:

Format of electronic documents for the hearing

14.5.1 Electronic documents for use at the hearing must be prepared in accordance with the following provisions and the parties are encouraged to co-operate in their preparation. The electronic document (which must be identical to the hard copy) should be contained in a single pdf and must be numbered in ascending order throughout. Pagination should begin with the first page of the first document and should be continued throughout the entire series of documents.

See also the Supreme Court’s Electronic Bundle Guidelines 

About the case

There is a good summary of what the case is about, by Mark Elliott on his Public Law for Everyone blog, Explainer | The Miller case in the Supreme Court: The key arguments

In a series of posts, Obiter J has been linking to information about, and commenting on, these proceedings and surrounding controversies: The Brexit appeal – the scene is set

Together with the Miller case, in which there are now a number of interested parties and interveners, two references from Northern Ireland are being heard in the same sessions:

  • Reference by the Attorney General for Northern Ireland – In the matter of an application by Agnew and others for Judicial Review
  • Reference by the Court of Appeal (Northern Ireland) – In the matter of an application by Raymond McCord for Judicial Review

There is a very convenient list (with links) of all the different parties’ written arguments, plus a timetable for the hearings this week and information on how best to follow them, on the Supreme Court’s own website.

And although he has retired, Lord Millett has decided to comment on what he thinks is the real issue in the case: Prerogative power and article 50 of the Lisbon Treat (UK Supreme Court Yearbook, pp 190–194).

 

UPDATE

Further commentary now available on the the forthcoming hearing:

 

 

Watching the hearing

You are strongly advised to watch the live television coverage rather than trying to physically attend court, as seating is limited, a lot of journalists have already applied for accreditation and bagged those spaces, and even the 2 overflow “relay rooms” where people can sit and watch via a live TV link will probably be packed. For more information and a link to the live TV feed, see the court’s website page: Access to the Supreme Court building.

Among those not attending will be the 1,000 strong march of UKIP supporters promised by former party leader Nigel Farage MEP, whose intention was to impress upon the Supreme Court Justices that their function as members of an independent judiciary was to obey the “will of the people” as expressed in the answer to a single referendum question — rather than, say, to consider complex issues of law of national importance for which the court was ideally suited and which was its obvious purpose.

According to the Independent, the march was “cancelled amid claims it might be hijacked by far right groups”.

The demonstration, proposed for the day the court’s judges will consider a crucial Brexit case, was dropped with it never having gone past early planning stages, the [UKIP] source said. But reports also emerged claiming the event, organised by the Brexit campaign group Leave.EU, was cancelled due to fears that it could be hijacked by far right groups like the EDL and BNP.

This seems somewhat, shall we say, ironic? (Leaving aside any questions of pots, kettles and the colour black.)

While we’re on the topic of outside influence, the Daily Mail (which labelled the High Court judges in the hearing below “enemies of the people”) has got its retaliation in early this time, accusing several of the Supreme Court Justices of having “links to Europe”. Following a complaint by human rights lawyer Shoaib M Khan, the pro-Brexit anti-migrant newspaper has had to publish a correction:

This has not been the end of it. The applicant at the heart of the case, Gina Miller, told the Guardian that she thinks the Supreme Court justices “have been disgracefully vilified” in the press. Moreover, she herself has been the target of newspaper coverage that “has incited violence against her and prevented her leading normal life”.

 

UPDATE

Recording of first day’s hearing (morning session)

Recording of first day’s hearing (afternoon session)

Transcript of the first day’s hearing (searchable PDF with index)

 

What could happen?

There are basically three realistic outcomes when the Supreme Court gives judgment.

First, the UKSC could reverse the decision of the High Court, either unanimously or by a majority of anything down to 6:5.

Second, it could affirm the decision below, again by anything down to a 6:5 majority.

Or (by a similar majority) it could refer the case to the European Court of Justice, on one or more issues of EU law, effectively kicking the case into longish grass for the next year or two.

consids
These are the colours used in ICLR Online to indicate the status of cases which may have been affected by later hearings. There’s also a blue colour, for neutral considerations. (see Judicial consideration: a reporter’s guide to good law.)

A fourth possibility is that one or more of the appellants decide to pull out at the last minute, or during the course of the hearing, though I think that option (which has been discussed) would have been exercised by now.

Politics

Richmond Park reversal

Richmond Park is known for its deer, who have occupied the land since the time of Henry VIII. An enduring symbol of autumn is the sight of deer locking horns in the mist, as the males battles each other for supremacy. Meanwhile, you were wondering when I was going to get to the point. (Don’t you just love a cheesy metaphor?)

A different sort of duel was fought this week in the Richmond Park parliamentary constituency, where a by-election was held following the resignation of the sitting MP, Zac Goldsmith, in protest over the government’s plan to proceed with a third runway at Heathrow Airport. Goldsmith is pro-Brexit, so his potentially laudable but also a teeny bit vainglorious attempt to turn the necessary by-election into a massive anti-Heathrow-extension vote, thus establishing him as a principled environmentalist, backfired when his anti-Brexit constituents put aside all their other differences and allegiances and voted in favour of the most credible candidate on an explicit anti-Brexit (or at any rate anti-hard-Brexit) mandate, namely the Liberal Democrat, Sarah Olney.

Andrew Sparrow in the Guardian has10 lessons from the Richmond Park by-election resultOne of the isn’t that a chastened government will listen to the will of the people and go for soft Brexit or indeed no Brexit at all (though its own muddled uncertainty seems calculated to achieve that anyway).

2016 has seen some surprising results and reversals, but few can match Zac Goldsmith’s double whammy of losing both the London mayoral election (to Sadiq Khan) and now, albeit through keeping a promise made in rashness and no doubt rued, his otherwise extremely safe Conservative seat in Parliament. The result confirms the increasing redundancy as an electoral force of the Labour Party, whose candidate Christian Wolmar (a transport expert – used to write for the Independent when I was a law reporter there – also stood and lost in the London mayoral election) received so few votes that he lost his deposit. Indeed, he even got fewer votes than there are members of the Labour party in that constituency, which means some Labour party members tactically voted Lib Dem or, conceivably, voted for Zac G (of the independent “tantrum” party, as one fellow candidate put it).

Other reports and commentary:

Terrorism

Annual review of terror legislation

This week the Independent Reviewer of Terrorism Legislation (David Anderson QC ) laid before Parliament the sixth of his annual reports into the operation of the Terrorism Acts.

Annual review of the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 is required by section 36 of the 2006 Act. Reviews cover the calendar year and reports are normally published in June or July of the following year. There is a full list on his website.
Reports cover:

  • Definition of terrorism
  • Proscribed organisations
  • Terrorist property
  • Terrorist investigations
  • Arrest and detention
  • Stop and search
  • Port and border controls
  • Terrorist offences

The latest report, whose publication has been delayed by various factors, is entitled The Terrorism Acts in 2015 (December 2016) and can be found on his website, where you can also download a PDF version.
For a good summary of this year’s report see The Register: Still too much discretion when it comes to that ‘terrorism’ stuff, repeats David Anderson QC

Anderson (who is due to retire from this role, having served his six-year stint) was the subject of an extensive interview by Joshua Rozenberg on BBC Radio 4’s Law in Action, in an episode entitled Terrorism, Extremism and the Law. (You can also get it as a podcast via iTunes and elsewhere.)

 

War

Motion of censure defeated

A motion tabled by the Scottish National Party’s foreign affairs spokesman, Alex Salmond, calling for Tony Blair to be held to account for allegedly misleading parliament over the Iraq war when he was Prime Minister, was defeated this week in the House of Commons by 439 votes to 70, according to the Guardian. ( MPs reject move to investigate Tony Blair over Iraq by 369 votes )

Salmond, who was supported by MPs from six other parties, said the Chilcot inquiry

provided substantial evidence of misleading information being presented by the then prime minister and others on the development of the then government’s policy towards the invasion of Iraq”.

But even the Labour party under Jeremy Corbyn’s leadership seemed uninterested in this opportunity to castigate the Blairites whom they are happy enough to demonise at other times. One Labour MP described the motion s “opportunistic” and they were probably not alone in thinking that. The Conservative MP Ken Clarke said the debate should not centre on one individual:

If we turn these post-Chilcot debates just into attempts to pursue and hound Tony Blair, the whole thing just turns into a party political argument with Labour members of parliament trying to defend the position of their government,” he said.

Parish notices

BSB Consultation on the Future of Training for the Bar

On 1 December the Bar Standards Board issued an addendum to its consultation paper “The Future of Training for the Bar: Future Routes to Authorisation”, which it had launched on 3 October, outlining three possible approaches towards the future of Bar training.

As part of that consultation, the BSB is now publishing the proposal from the Council of the Inns of Court (COIC), which also carries the support of the Bar Council. Their paper, which they have offered in the form of an addendum to the BSB’s consultation paper, includes further detail of the proposal which Master Derek Wood presented at the BSB’s seminar on 7 July this year. A copy of Master Wood’s proposal can be found here.

In order to ensure that everyone has a chance to offer the BSB their views on the COIC/Bar Council proposal fully, along with the other options, the BSB have extended the deadline for comments on the consultation until 17:00 on Tuesday 31 January 2017.

Link to original consultation (PDF).

 

Law (and injustice) from around the world

America

Trump supreme

What does a Trump presidency mean for the US Supreme Court? We’ve covered this a little bit already in Weekly Notes – 14 November 2016 but that was before a really superb edition of the Australian podcast, the Law Report on 15 November, in which presenter Damien Carrick interviewed Professor David Cole, Professor of Constitutional Law at Georgetown University in Washington DC and National Legal Director with the American Civil Liberties Union.

The wide ranging interview underlines the importance of the selection of justices of the US Supreme Court, who are appointed for life; explains their constitutional role and the balance that is not always preserved between the more conservative justices and their more liberal counterparts.

There is a full transcript of the programme here.

The issue is a critical one says Carrick:

According to the exit polls conducted by both ABC News and NBC News, one in five American voters said the most important factor in determining their vote was choosing a president that would make the best appointments to the Supreme Court.

And, as Cole explains, the Supreme Court

decides many of the most controversial issues of the day, issues like the right to abortion, the right to free speech, the right of gay and lesbian couples to marry, the validity of Obamacare. These are all decided by our Supreme Court. The validity of affirmative action. So it does play a big role, and in particular on a lot of hot-button issues that people cared deeply about and that tend to get fought out through the lens of constitutional rights. On economic matters I think Congress and the state legislatures play a much bigger role. But on the social and cultural issues the court plays a big role.

You can download the podcast here. Or (like me) you can get it from iTunes. (I strongly recommend subscribing. It’s a superb series.)

 

Egypt

Novelist detained

Novelist and journalist Ahmed Naji is currently serving a two-year prison sentence for ‘violating public modesty’. The charge relates to the publication of excerpts from his 2014 novel Istikhdam al-Hayat (The Use of Life) in Akhbar al-Adab magazine, also in 2014.

The Use of Life, produced in collaboration with the artist Ayman Zorkanim, is a subtle exploration of the ennui of life in a dystopian city and shows a tremendous knowledge of the history and architecture of Cairo. It is also clearly rooted in classical Arabic literary idiom, including the classics’ straightforward descriptions of body parts and their uses, according to Ahdaf Soueif writing in the Guardian back in May this year.

This week PEN, the international writers’ rights charity, was running a campaign to draw attention to his plight and persuade the Egyptian authorities to release him.  Their Thunderclap appeal “Free Ahmed Naji” states:

Three motions for a stay of implementation of Naji’s sentence filed by his lawyers have been rejected. A successful stay would have allowed Naji to be free pending his appeal. After more than nine months in prison, Naji’s appeal date has finally been set for this Sunday, 4 December. In the meantime, we’re calling on the Egyptian authorities to release him immediately and unconditionally.

 

Saudi Arabia

Death threats for woman over revealing garb

A woman who dared not to wear a hijab, let alone a burqa or niqab, and who appeared thus in photographs posted on social media, was then the target of calls for her to be killed. Some social media users reacted with outrage after the emergence of the image taken in capital city Riyadh, with one man demanding: “Kill her and throw her corpse to the dogs” according to the Independent.

A hashtag which translates into English as “we demand the imprisonment of the rebel Angel Al Shehri” subsequently went viral. However, a large number of Twitter users also came out in support of the woman.

Meanwhile, a member of the somewhat bafflingly numerous royal family has proposed that women in Saudi Arabia should be allowed to drive a motor car in the street – something considered anathema to the rest of the somewhat conservative and decidedly undemocratic ruling elite. And you can forget about bicycles.

 

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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