Scottish courts and the ‘Benn Act’

There was a further round of litigation in the Scottish courts by Joanna Cherry QC and Jolyon Maugham QC, joining businessman and environmentalist Dale Vince in seeking an “Order for Specific Performance by the Prime Minister of his Statutory Duties under the European Union (Withdrawal) (No 2) Act 2019 and interdict”. The point of that was basically to get the court to make an order compelling the Prime Minister and government to comply with the terms of what’s generally known as the “Benn Act” (intended to prevent a “no-deal” Brexit) in the face of widely publicised statements intimating that the government would not seek any further extension of the Article 50 notice period before withdrawal from the European Union.

The petition was refused refused by the Outer House of the Court of Session (equivalent to the High Court in England and Wales) on the basis of averments offered on behalf of the government, to the effect that the Prime Minister would comply with his obligations, notwithstanding anything said to the contrary; and that formal undertakings to that effect, let alone an interdict (injunction), were not required. The Lord Ordinary, Lord Pentland determined (Vince, Maugham and Cherry v Johnson and Lord Keen of Elie [2019] CSOH 77 at para [44]) that:

“…the extra-judicial statements on which the petitioners rely must be understood in the political context in which they were made; that is as expressions of the government’s political policy. They were clearly not intended to be taken as conclusive statements of the government’s understanding of its legal obligations.”

The petitioners took the matter further, up to the Inner House (equivalent to the Court of Appeal in England and Wales). But that court, while noting that the “situation remains fluid” and that circumstances would change, observed that,

“The political debate requires to be played out in the appropriate forum. The court may only interfere in that debate if there is demonstrable unlawfulness which it requires to address and to correct. At present there has been no such unlawfulness.”

The Lord President, Lord Carloway therefore gave brief reasons (Petition of Vince & ors v Advocate General [2019] CSIH 51) for basically adjourning its consideration of the reclaiming motion (appeal from the Outer House) and the petition to the nobile officium (a separate proceeding, invoking the court’s equitable jurisdiction) until Monday, 21 October, “by which time the position ought to be significantly clearer”. In other words, the Benn Act deadline (midnight on 19 October) would have come and gone with, or without, compliance by the PM.

There’s an explanation of the proceedings from the petitioner’s point of view on the Good Law Project website: The rule of law is not a thing to be grifted — not even by the Prime Minister.

For observations on the significance of the two rulings, see David Allen Green in the FT: Scottish courts have put Boris Johnson in a bind — or, as he rather elegantly puts it, created “a legal ‘sword of Damocles’ which will hang over the government, so as to ensure that it complies with its legal obligations”.

So what happens next?

“The legal choreography for the run-up to October 31 is now as follows: the European Council meeting takes place on October 17–18; parliament is sitting on October 19, which is also the deadline for a request under the Benn Act; and the Scottish appeal court reconvenes on October 21 to reconsider its next move, if any.”

Human Rights

Torture inquiry claim

David Davis MP, Dan Jarvis MP and the human rights charity Reprieve are jointly bringing a claim against the government over its refusal to hold an independent, judge-led inquiry into the UK’s involvement in torture since 9/11, contrary to UN recommendations. The government (under David Cameron) previously promised to hold such an inquiry. According to Reprieve,

“The British Government has never delivered on promises to hold a fully independent, judge-led inquiry into UK complicity in US torture and extraordinary rendition of individuals as part of the so-called ‘war on terror’. Today’s legal action claims that the Government’s refusal to hold an inquiry is irrational, contrary to Article 3 of the European Convention on Human Rights (under which there is an obligation to fully investigate credible allegations of torture), and violates the common law prohibition of torture. The Government must respond within 21 days.”

For more on this, see
RightsInfo, Torture Inquiry: MP David Davis Takes Legal Action Against Government

Reprieve, MPs and Reprieve take Government to court over refusal to hold torture inquiry


Climate justice and the law

Extinction Rebellion are in town again. They have mounted protests in Trafalgar Square and Westminster and occupied some London bridges last week, and on Wednesday 9th October they were outside the Royal Courts of Justice. They also attempted, unsuccessfully, to gain entry to the Temple, which was in lock-down mode (all entrances closed except for two), in order to present a Lawyers’ Declaration of Rebellion. According to the leaflet being handed out, under the banner All Rise for Climate Justice, this would

“declare the climate and ecological emergency which compels those in the law to rise up in their fields of expertise. They invite all in the law to come and join them to sow the seeds for change in the legal system.”

Middle Temple has today sent out emails reminding members wishing to gain access to the Inn that gates may need to be barred, and to carry membership ID with them in order to gain access (as I did) to use the library or hall or just to return to their own chambers. It is probably not the Declaration they are worried about, but the possibility of a swarm of protesters bivouacking in the grounds of the Temple, or spoiling the historic settings familiar from so many recent films (Mary Poppins’ Return, for example).

Stung by criticism of their leniency towards earlier such protests, the police have apparently been more active this time in arresting generally peaceable protesters, even nonegenerian ones, which at a time of dwindling police resources, closed courts and an overburdened justice system, seems a bit pointless. Nor is it much of a deterrent since that is exactly what the protesters expect and hope to gain publicity from.

This week’s protests are said to be focussed on the banking system in the City of London. As it happens, however, the Bank of England has been praised in one recent judicial speech for being “particularly prominent in seeking to lead a change in the attitude of commercial entities” to climate change. This was Lord Sales JSC, speaking over the summer at the Anglo-Australian Law Society in Sydney, on the topic of Directors’ duties and climate change: Keeping pace with environmental challenges. “The Bank of England,” he said, “has remained consistent in highlighting the need for serious action.”

The main purpose of Lord Sales’s talk was to compare statutory and regulatory obligations on companies in the UK (under s 172(1)(d) of the Companies Act 2006 – “impact of the company’s operations on the community and the environment”) with those in Australia (under s 180(1) of the Australian Corporations Act 2001 – “care and diligence”), and to speculate on their likely effect in changing directorial policy. However, he also noted in a more general way that:

“the willingness of a company to take steps to protect the environment can turn to a significant degree on the ethical disposition of directors and shareholders. Combating climate change is therefore a matter for consciousness raising in civil society as well as for action by the state. Hence, the leadership provided by institutions such as the Bank of England and through the initiatives in which it is involved may be as important, if not more important, than state activity in the form of imposing duties on companies and directors.”

While Extinction Rebellion may share this scepticism about the potential for section 172(1)(d) of the Companies Act to bring about a drastic decarbonisation of our economy, it can surely take comfort from the Supreme Court Justice’s endorsement of the role of “consciousness raising in civil society”. I doubt we’ll see Lord Sales gluing his hand to the pavement any time soon, but my guess is that ER have more support among the respectable silent majority than their grumpy critics imagine.

In another recent judicial speech, Lord Carnwath, speaking at the Justice Human Rights Conference in London in October 2018, considered the state obligations in relation to the environment under human rights instruments such as the El Salvador Protocol (1989) to the American Convention on Human Rights (1969). In Human Rights and the Environment, he discusses a number of cases from jurisdictions around the world in which claimants have relied on such rights to complain about harm caused by the failure of governments to implement environmental policies.


Guides for criminal defendants

The Ministry of Justice has issued some guides, written in extra specially simple English, for defendants in criminal courts. The announcement asserts that “Clear guidance will make the court process understandable for defendants” and that “the Guide cuts through legal jargon and simplifies the court process”. There are four guides in all:

However, on closer inspection, the guides do look rather inadequate in a number of ways. Depending in what order you read the guides, the information is not presented in a sequential way. In the first guide, under “Legal advice”, it says

“If you want help with your case talk to a lawyer. Do not wait until you come to court to talk to a lawyer. A solicitor is a lawyer. They can argue your case for you in court.”

Well, yes. But so can a barrister, of which there is no mention in this guide. Later on, explaining “What is a Crown Court?” the same guide explains that “Trials in the Crown Court are heard by a judge and a jury.” There is no definition of a “jury” in this guide, so if you were unfamiliar with the term it might leave you a bit puzzled.

The second guide, “Understanding the Legal Terms used in Court” ought to be able to help, though. Here we find the first mention of a barrister:

“A barrister is a lawyer. They are specialist court lawyers. If you have a solicitor, they may ‘instruct’ a barrister to advise you and represent you at court. They will help you with your case.”

Nothing about the funny wig and gown they might be wearing. (Or not, in the magistrates’ court.) Here, too, we find out what a jury is:

“A jury is made up of 12 people who are randomly selected from the community. They sit on trials in Crown Court cases and decide whether the defendant is guilty or not.”

In another of the guides, the one called “Being a defendant in the Crown Court”, there is a different definition:

“The jury is made up of 12 people. They are chosen at random. Make sure you are respectful and show that you are taking your case seriously. The jury will weigh up the evidence and decide if you are guilty or not. This is called the verdict.”

That third sentence looks as though it wandered into the wrong section, perhaps from the one underneath entitled “How should I behave in the courtroom?” (Just a hunch.)

It would probably be good practice to include basic definitions of all terms at the point where they are first used, and to explain the whole process sequentially from the moment of arrest onwards. But this is not a textbook or even a newspaper article. The writing veers between addressing the reader as “you”, ie the defendant, and offering a more generalised definition of things. The definition of Evidence seems inadequate in a number of ways:

“Evidence is used in a case. Witnesses may be able to give evidence through video links, by written statements, or in the court room. Sometimes there is forensic evidence (like DNA, blood), or physical evidence (CCTV footage), or medical evidence.”

There is no separate definition of “witnesses”. The explanation seems confusing and jumbled to me, a lawyer, so I am not sure how the lay person of limited literacy skills for whom the guides are designed will understand it. It appears to have been written with a view to using only simple language, but not to making the meaning of it simple to understand. There is a difference.

PSU rebranded

The Personal Support Unit will in the future be known as Support Through Court, following an extensive rebrand. The new name, launched on 10th October at the charity’s 18th birthday party, is designed to convey more effectively the service it offers, which is increasingly vital in a climate where few litigants qualify for legal aid.

Support Through Court supports litigants in person by helping them sort through paperwork and organise case notes, giving them the confidence to represent themselves in court. They are in effect McKenzie Friends, who cannot give legal advice or represent clients, but in other ways help those attempting to represent themselves.

The organisation relies on the work of dedicated volunteers across the country and financial support from corporate and individual donors. In July this year, Baroness Hale of Richmond, President of the Supreme Court and Patron of the PSU, led a BBC Radio 4 fundraising appeal to support its work.

You can read the charity’s latest newsletter here.

Legal information

Report urges commitment to open justice

A report written by Dr Judith Townend and published jointly by the Open Government Network and Spotlight on Corruption, outlines steps the UK government, in partnership with civil society groups, the judiciary, and other legal experts, could take to ensure that open justice is more effectively and fairly embedded in the UK court system. It considers the type of data that is created during court proceedings and how that data is currently made public. The report was developed with input from a group of experts at a roundtable convened in May 2019. It points out that:

“Considerable resource challenges in the court system and the different jurisdictional cultures within the courts in England and Wales, as well as the need to meet data protection standards and to ensure the rehabilitation of offenders, pose significant challenges to the application of universal open justice principles. On the other hand, the current modernisation of the court system, and the creation of a new economic crime court, create real opportunities for improving the application of these principles in practice.”

In a guest post on the Open Government Network blog, Why we need a national commitment to open justice data, Dr Townend notes that

“Justice ‘data’ — that is the information that arises from the process and administration of justice — is perhaps one of the most fundamentally important administrative data categories in public life. Much of it is supposed to be publicly accessible under the common law principle of open justice…”

But “the provision of justice data is partial, inconsistent and not subject to any common standard or approach.” Hence the need to take steps to ensure that any commitment to open justice data is as fully realised in practice as possible.

You can download the report here: Docx | pdf


Pupillage Award winner

Congratulations to Tamasin Graham, fourth winner of the ICLR Annual Pupillage Award. Tamasin has just commenced pupillage at Lamb Building, a common law set of chambers, and wins an award of £12,000 in direct financial assistance. The award was made by Mr Justice Roth at a reception held at the Competition Appeal Tribunal on 10 October.

Our picture shows, from L to R: Daniel Wand (last year’s winner), Brendan Wright (Editor elect), Clive Scowen (current Editor), winner Tamasin Graham, and Mr Justice Roth.

Dates and Deadlines

Settlement: is the future with the judges?

Brick Court chambers : 6pm, 26 November 2019

Talk by HH Nicholas Chambers QC on the role of the judge in various types of conciliation, and why it should be an integral part of case handling (as it is in some jurisdictions). For more detail, see this guest post

Tweet of the Week

offers a glimpse of future treats, via Chris Daw QC:

That’s it for this week. Thanks for reading, and thanks for all the tweets and blogs and the links to content from which this post was derived.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.