Monthly Archives: September 2019
They’ll be the judge of that.
September 29 2019
It is generally a good idea, when losing a case before a court or regulatory tribunal, to concede with as much good grace as possible and to keep your immediate thoughts about the idiocy of the judges to yourself. No good will come of it and you will look like a sore loser. No-one sensible will pay any attention to what you say, your complaints falling into the “Well they would say that, wouldn’t they” category. Even worse than being thought a sore loser is being thought of as your case’s Mandy Rice-Davies.
You may think that the tribunal or court may well have erred in law or fact or failed to take coherent and well-argued arguments into account or not given them the weight they deserved. But it will be for others to make the considered analysis that any decision, particularly any important or controversial decision, needs.
There has recently been such a decision in relation to Britain’s constitutional arrangements, an area of law which does not normally make it to the front pages of anything. Despite this, the Supreme Court’s decision on what prorogation of Parliament means and how such a power should be used by the executive is very well worth reading.
Reflections on it, those missing documents relating to how the government reached its decision – still to be provided to Parliament, despite its request – and the legal advice the Government received can be found here.
A companion piece to the Supreme Court’s judgment is this year’s Reith Lectures, a series of five lectures by a former Supreme Court judge, Lord Sumption, on the relationship between law and politics. For all the fuss raised by over-excitable commentators (and even some apparently parti pris lawyers-turned-politicians) about the former straying into the latter, this is an argument which is as old as time itself. Those in power have always chafed when any sort of restraint is placed on their power, whether it came from the Church or law or Parliament or even the pesky people. And now those troublesome – and independent – judges are the latest to remind rulers that they too are subject to the law.
Judicial independence is there to protect the judges from over-mighty politicians. But much more importantly – and this is usually forgotten, it – and the rule of law – are there to protect us.
Let the last word go to a former Lord Chancellor, Thomas More (as imagined by the playwright Robert Bolt in A Man For All Seasons):-
“And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
The Case of the Missing Documents
September 17 2019
My very first case as a junior solicitor with Slaughter and May was the litigation around the International Tin Council, a long-since forgotten entity set up by various countries via international treaty to control the price of tin. Its attempts to manipulate the price of tin were unsuccessful and it went bust owing a number of banks and commodity brokers large amounts of money. They sought to recover their losses from the countries which had set it up. Ultimately the Lords (as it then was) ruled that they could not do so, the entity being legally separate from the countries behind it.
One of the many issues explored at length in the case was whether the matter was justiciable at all. Justiciability seemed a strange – if fascinating – concept which provided hours of interest in the Court of Appeal and then the Lords. And then never came up again in any of the cases I worked on. It seemed to be one of those esoteric pieces of knowledge, of interest only to a few.
Until now – when it is all over the news in relation to the prorogation of Parliament.
But in all the fuss about whether the courts can review the government’s decision, one of the issues which has not perhaps had the attention it should has been Parliament’s request for documentation relating to the decision to prorogue, a request which has been denied by the government. That request arose out of a belief – however well-founded or misguided we don’t yet know and may never find out – that there was something iffy about the decision, that it may have been done for improper motives or in a questionable manner. The government’s refusal to comply with Parliament’s request and to provide any sworn evidence at all in support of its case to the courts has not allayed those fears. And yet those missing documents might well turn out to be highly relevant, given the inferences which were drawn by the Court of Sessions from the absence of any sworn evidence from the government in support of its position.
Why this might be so and why how a decision is arrived at is as important as what the decision is are explored further in this article.
Whatever the outcome of the Supreme Court’s decision, trust is essential to the good functioning of any organisation, especially government. It should not need a court case to establish that.