Weekly Notes: legal news from ICLR – 7 November 2016
Posted on 7th Nov 2016 in Weekly Notes
This week’s roundup of legal news and comment includes the High Court’s ruling on the sovereignty of Parliament in the Brexit process, a raspberry from the press, a report from the Lord Chief Justice, a speech on prison reform (and a lamentable lack of speech on judicial independence) by the Lord Chancellor, and a consultation on press regulation.
Brexit means Brexitigation
… and lots of Brexitology
The government’s stated intention of initiating the article 50 exit notification process early next year without first putting it to a parliamentary vote was blocked by the High Court, in a decision on 3 November that was widely misreported and misunderstood, leading in turn to a wholly irrational anti-judicial backlash. Put briefly, according to The Brief:
High Court rules MPs must approve Brexit trigger
Ministers are to appeal a High Court ruling that the government must seek parliament’s approval to trigger the process of taking Britain out of the EU. In one of the most important constitutional cases in generations, three senior judges ruled that the prime minister did not have power to trigger Article 50 of the Lisbon Treaty to start the two-year process of negotiating Brexit without the prior authority of parliament.”
You can read the judgment itself via BAILII: Regina (Miller and another) v Secretary of State for Exiting the European Union (Birnie and others intervening)  EWHC 2768 (Admin).
You can read the law reporter’s case summary (in effect a draft headnote) here  WLR (D) 564.
There’s also, on the Judiciary website, a press summary.
(Image: Ms Jane Campbell / Shutterstock.com)
The decision was not greeted with universal approval. Indeed, large sections of the press and some MPs were soon complaining as much about the judges as about the decision they had made. The Daily Mail produced an online front page which seemed to combine some of its particular obsessions:
:-O. This really is on the front page of the Daily Mail website: pic.twitter.com/uIoGzYWqw5
— Sean Jones (@seanjonesqc) November 3, 2016
After a fairly vigorous Twitter campaign, largely driven by JK Rowling, the front page was changed to exclude the bit about the “openly gay ex-Olympic fencer” (though not before a cafe in Soho had started advertising “Openly gay ex-Olympic fencers served here”). By next morning, the Mail had changed its front page to call the three judges “Enemies of the People” and spoke of “fury over ‘out of touch’ judges” who defied popular will. The Sun went with “Who do you think EU are?” while the Telegraph headlined their front page “The judges versus the people”. The Express, meanwhile, compared the crisis to the darkest days of World War II, as though the judiciary were fifth columnists bent on sabotaging the war effort.
The papers and many others who didn’t bother to read what the judges actually said, seemed to be labouring under the misapprehension that the court had “blocked” Brexit, which was nonsense. Its judgment merely pointed out that, if the article 50 notification were to be given, it should be given by, or after a vote by, Parliament, not simply by the government acting on the royal prerogative. So they were explaining the proper procedure, not saying it couldn’t be done. And the reasons for that were explained in the judgment.
The attacks on the judiciary were widely condemned. The former Attorney General, Dominic Grieve, said:
There is something smacking of the fascist state about them. It shows either a total misunderstanding of the UK constitution, which such critics periodically extol — or a deliberate attempt to destroy it.
Lord Macdonald QC, a former Director of Public Prosecutions, described the attacks as “crude, ignorant and dangerous”, saying
The High Court has done no more than to reaffirm the sovereignty of parliament and the rule of law — its most important role in a democratic society. If you want judges who lie down before political power, move to China.”
A large number of commentators wrote about the judgment, some pro, some anti, including:
David Allen Green, on his FT blog, The High Court ruling undermines Theresa May’s Brexit approach
Jolyon Maugham, in Prospect Magazine: What does the High Court ruling on Article 50 mean?
UK Human Rights Blog, Parliament Prevails
Carl Gardner, Why the High Court got the law wrong about Brexit
David Burrows, on his dbfamilylaw blog, Rights and the Miller Brexit case
Greg Callus, on his A Typo in the Constitution blog, After the Miller judgment
Spinning Hugo, How the Government Lost
Lawyers for Britain, Article 50 case
The Judicial Power Project collected a variety of reactions, some pro and some anti, in Miller: Expert Reactions
Mark Elliott and Hayley J. Hooper (UK Constitutional Law Association ): Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union
Others wrote about the subsequent reaction and the attacks on the judiciary:
Lucy Reed on her Pink Tape blog, Enemies of the Truth
Spinning Hugo, The Daily Mail and the Rule of Law
Nigel Pascoe’s Blog, If you love Democracy, take care..
Caoilfhionn Gallagher, on the Doughty Street Chambers blog, The Daily Mail’s latest insult: a Supreme Court Justice who is “a feminist” and was instrumental in the crafting of the Children Act 1989
The attacks on the judiciary provoked many to wonder when the Lord Chancellor, Liz Truss, was going to speak up in their defence, in accordance with her recent oath of office “to respect the rule of law [and] to defend the independence of the judiciary…” Answer, for a long time, came there none. Huge numbers of lawyers and others raised the matter of her silence using the hashtag #WheresLizTruss, which briefly trended as high as No 3 in the Twitter charts.
The Bar Council, which met on Saturday, passed a resolution condemning the attacks and calling on the Lord Chancellor, Liz Truss, to make a statement.
Eventually, she did make a tiny statement, published on the Ministry of Justice’s Twitter account (but not her own), saying:
The independence of the judiciary is the foundation upon which our rule of law is built and our judiciary is rightly respected the world over for its independence and impartiality. In relation to the case heard in the High Court the Government has made it clear it will appeal to the Supreme Court. Legal process must be followed.”
The utterance had something of the air of a statement made by someone taken hostage – by the legal profession as a whole, perhaps — and read out in a monotone for the benefit of a ransom video. It was described by Lord Judge, a former Lord Chief Justice, as “A little too late and a lot too little”. It was certainly too late to prevent calls for her resignation, including this one on the Secret Barrister’s blog: Liz Truss is unfit for office and should resign.
- A View from the North blog, Trussed Up, in which the author offers Truss some prefab copy which she could have used in place of the feeble tweet she emitted (above).
- The Rule of Law: an open letter to Liz Truss, by the son of the late Lord Bingham, who, er, wrote the book on this.
Lord Chief Justice’s annual report
In his annual report to Parliament, Lord Thomas of Cwmgiedd CJ, having sketched the constitutional and legal professional changes over the last decade, made the following observation, which has proved rather poignantly relevant (and overlooked in some quarters) this week:
Amidst these changes, constitutional and structural, one thing has remained constant: the renown, calibre and independence of the judiciary. It should not be forgotten that our judges are the real asset of the judicial system, which is, rightly, the envy of the world. It must also be better understood that the judiciary, as guardian of the rule of law, is central to the proper functioning of our democracy. Therefore, the judiciary and its independence must neither be taken for granted nor in any way diminished. “
Introducing his report, Lord Thomas listed five areas of concern:
- The primacy of the Common Law must be preserved (not least “so that the United Kingdom remains a, if not the, leading forum for international dispute resolution”.)
- The stature of the judiciary must be maintained (and we need to boost recruitment and tackle low judicial morale)
- The role of the judiciary and the centrality of justice to society must be better recognised (well, yes – as events this week have demonstrated. Even MPs seem to lack basic constitutional knowledge.)
- A proper balance between State funding for the justice system and fees must be struck (in other words, stop squeezing out justice by overcharging litigants)
- Judicial diversity must be strengthened (including “ initiatives to encourage applications for judicial office from under-represented backgrounds”).
He also highlighed the increasing workload, decreasing resources, and the need all the while to reform and streamline processes and build the long promised new digital courts for which funding has been provided.
You can read the full report here.
See also, by John Hyde in the Gazette, Overworked judges facing ‘unprecedented difficulties’ – LCJ
Justice Secretary’s plans for reform
When Liz Truss made her first appearance before the Commons justice select committee two months ago, she surprised everyone by refusing to guarantee the continuation of the major prison reforms initiated by her predecessor as Secretary of State for Justice, Michael Gove. (See Guardian, Liz Truss puts prison reform bill on hold). But on Thursday, she gave a big speech on prison reform, as her department introduced a White Paper on Prison Safety and Reform.
In her speech she said:
I believe that creating prisons that are centres of reform is the logical choice for anyone determined to build a safer society and deliver more efficient public services.
Whatever else can be said of our prisons at the moment, it cannot be said that they deliver a good deal to the taxpayer or do all they can to make society safer.”
This is pretty much business as usual when it comes to GovSpeak – pious aspiration and a rueful reflection that More Could Be Done. The question is whether money will be put where the minister’s mouth is. But it’s not just money that’s needed. It’s also a sustained commitment. That does now seem to be on offer, because towards the end of her speech Truss said:
The Prisons Safety and Reform White Paper is the first in a series of wider plans that will embed the same [reform] philosophy across the entire estate.”
Earlier she explained what was new about it:
today’s White Paper for the first time establishes a clear vision and framework for our prison system and mechanisms by which the people responsible for delivering it can be held to account.”
One of those who can be held to account is the minister herself:
For the first time, they make the Secretary of State accountable for the reform of offenders – not just providing them with prison places.
For the first time, there will be a formal trigger for the Secretary of State to intervene when a prison is failing. For the first time, publicly available performance standards, spanning a three-year cycle, will be set for each prison.”
Among the other ideas floated are SATS for prisoners as they enter and leave the prison estate, like a school; league tables for prisons (again, like schools); and – oh, that is actually the whole point:
At present prisons are rather like schools were in the 1970s and 1980s before the advent of the National Curriculum, Ofsted and league tables.”
So can we expect Grammar Prisons, or Free Prisons, or at the very least Academy Prisons? It makes you wonder whether perhaps Toby Young was consulted on this; or whether, indeed, Liz Truss was taken by surprise when appointed to the Justice Ministry, having been expecting Education? (Recalling that Gove came from education: maybe he was the one who set the “prisons = schools” hare racing? Answers on a tweet, please.)
Meanwhile, the Prison Reform Trust, anticipating the announcement (but not its content), put out an announcement that morning saying Government must tackle rising prison numbers to make reform plans work.
Ahead of today’s government announcement on prison reform, Peter Dawson, Director of the Prison Reform Trust, said:
‘The time for aspirational rhetoric on prisons is over. We expect a White Paper that promises concrete standards, approved by Parliament, against which the Government must deliver, and a boost in resources to make that possible. All of that will be welcome. But the legacy is twenty five years of political failure to grip prison inflation and chronic overcrowding. Liz Truss will have to overturn that inheritance, and urgently reduce the demand for prison places, to make her plan work.'”
The PRT has yet to respond to the White Paper.
Author’s note. My weekend video this weekend was, by sheer coincidence, The Shawshank Redemption (1994), starring Tim Robbins and Morgan Freeman and based on a novel by Stephen King about a banker wrongly imprisoned for a double murder, his induction and survival and eventual thriving in a grim New England prison in the 1950s and 60s, and (spoiler alert) his eventual self-liberation and vengeance on the corrupt system. I’m sure Liz Truss had more relevant source materials for her white paper, but it does grippingly illustrate her quotation from the 19th century social reformer Elizabeth Fry’s observation that prisons are “nurseries of crime”.
New consultation announced
On 1 November the Secretary of State for Culture Media and Sport, Karen Bradley MP announced that there would now be consultation on Part 2 of the Leveson Inquiry and the commencement of section 40 of the Crime and Courts Act 2013.
This announcement has been prompted by two things.
- by the decision of the Court of Appeal in R v France (Anthony)  EWCA Crim 1588;  WLR (D) 566 which concludes the plethora of prosecutions which arose out of the press misconduct of the various types (not just phonehacking) investigated in the main Leveson Inquiry (now known as Leveson I).
- by the recent decision (reported in last Weekly Notes – 31 October 2016) of the Press Recognition Panel (PRP) to recognise, as a fully Leveson-compliant regulator, IMPRESS. This triggers the condition in s 40(6) of the 2013 Act, but there needs to be secondary legislation to bring s 40 into effect. (We explained its effect in the earlier post.)
Regarding Leveson 2, Bradley explains:
Part 2 was intended to examine wrongdoing in the press and the police, including the failure of the first police investigations, corporate governance issues and implications for police and press relations. Given it has been five years since the Inquiry was established and since the scope of Part 2 was set, this Government considers that a public consultation is needed before a decision is made on whether proceeding with Part 2 of the Inquiry is still appropriate, proportionate and in the public interest, and if so what it should cover and in what form.
See also, Inforrm’s blog, Culture Secretary announces consultation on Leveson 2 and Section 40.
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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