Weekly Notes: Legal News and Comment from ICLR — 5 December 2016

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 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.

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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

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).


Further commentary now available on the the forthcoming hearing:

Watching the hearing

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”.


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?

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.

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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.


Richmond Park reversal

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 result. One 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:


Annual review of terror legislation

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.)


Motion of censure defeated

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

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


Trump supreme

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.)


Novelist detained

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 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).

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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