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.

Summer Storms

August 16 2019

In An Italian Education, Tim Parks describes the wonderfully languorous routine of an Italian summer: the shutting down of all but essential services in hot, humid cities, leaving them to tourists, the departure for the coast, the gathering of the extended family, the early mornings to enjoy an espresso outside when the day is cool, the encampment at the same spot on the beach amongst the ombrelloni, neatly and beautifully laid out, the careful attention to one’s toilette, la bella figura being quite as important when little is worn as at every other time, lunch followed by siesta, the late afternoon passeggiata before the evening’s entertainment. Day in, day out, the rythym is much the same, punctuated by religious festivals: Sant’ Andrea in Amalfi in late June, for instance, or Ferragosto everywhere. Then the gentle return home in September, with weekend visits to the coast for those lucky enough to live nearby. It is a time to breathe, relax, close off the pressing problems of life, which can – for now – wait.

Yet summer has often been when horrible crises and unexpected events have impolitely intruded into this idyll. Often these have been financial ones. Consider:-

  1. 1992: 16 September – Black Wednesday – strictly not the summer but the short-selling of currencies with the ERM, not just sterling but also the lira, had been happening in the months leading up to the day when, despite interest rates being raised briefly to 15%, sterling was forced out of the ERM, with losses of ca. £3.3. billion. How humiliating for this to happen when Britain held the Presidency of the EU and not long after its Prime Minister had, somewhat hubristically, suggested in a TV interview that the pound would one day be as strong as the Deutschmark and might replace it as the ERM’s anchor currency. Oh dear.
  2. 1997: the Asian financial crisis – starting in July with capital flight as the Thai currency was floated, spreading to other Asian countries and Japan and resulting in IMF support to the troubled region. A portent of trouble ahead.
  3. 1998: a Russian financial crisis – in August when Russia devalued its currency and defaulted on its debt. One of the high-profile victims was Long-Term Capital Management, a hedge fund set up by ex-Salomon Brothers traders and boasting two Economics Nobel prize winners on its Board. Their claim to fame was having devised a brilliant new way of valuing derivatives. Despite such brainpower, LCTM managed to lose $4.6 billion in less than 4 months that summer, was bailed out by the Federal Reserve and closed 18 months later. Alas, the two obvious lessons to be learnt: (1) when clever people talk about “a new paradigm” in finance, it is time to put your money under the mattress; and (2) there is a sort of stupidity that only clever people are capable of – was not learnt by anyone important at the time. Hence…..
  4. 2007: the financial crisis – starting with a French bank, in August, blocking withdrawals from two of its funds because it no longer knew what they were worth (a sign they were probably worthless) and leading, via increasing worries amongst policymakers, central banks, regulators and others about the state of the financial system, to the UK’s first bank run in over a century as Northern Rock depositors decided the mattress was indeed safer. The signs had been there for some time but had been ignored. In July, Citigroup’s CEO, a lawyer-turned-banker, gave his own inimitable account of the Greater Fool theory – not realising the fool was him – when he said: “When the music stops, in terms of liquidity, things will be complicated. But as long as the music is playing, you’ve got to get up and dance. We’re still dancing.” Whoever thought that putting lawyers in charge of a bank would be a good idea? They turned out to be every bit as bad as bankers at running them. The crisis went on and on and on. We are now in the interregnum between that one and the next.
  5. 2010-2012: the European sovereign debt crisis – this was a summer perennial at one point and, indeed, seemed to pop up on a regular basis during these years. In May 2010 it was Greece’s turn to dismay the markets with its request for  a €110 billion loan, the austerity package put together to justify this dismaying Greek voters even more and leading to protests, riots, social unrest and Parliamentary shenanigans over the summer and into late autumn.  A bailout was agreed but in June 2012 the crisis erupted once more with the possibility of a forced Grexit from the euro. Yet another bailout-cum-austerity package was eventually agreed. It was not the last the world would hear of Greece, though. Ireland too went through some pain, though this was – as are most matters Irish – related to land and the colossal sums Irish banks lost when the property boom went bust. Money had to be borrowed to keep the banks afloat; the costs became too painful; a bailout was obtained in August 2010 and in July 2011 the interest rate payable on this was reduced by the IMF. The European Commission announced a reduction in the interest rate on its loan to Ireland on 14 September 2011. The cognoscenti may remember that also on that day a Swiss bank announced that one of its traders had managed to lose $2.3 billion in a fraudulent and catastrophic misreading of the markets that summer. The following summer in 2012 (while that trader prepared for his trial) Spain, too, became a concern eventually obtaining a €100 billion bailout following banking losses caused by their unsustainable property boom.
  6. June – August 2015: Greece and the Euro – Yes. Again. A charismatic politician comes to power vowing to renegotiate terms with the EU, to end his country’s humiliation and even gets his electorate to support his showdown. It is all of no avail. He is forced to back down. His party is split. Terms are agreed – or rather dictated by the powerful neighbour. There is no more talk of boldness. The politician hangs onto power being finally ejected four years later by someone promising boring economic competence. Perhaps Greece, having provided a template for democracy , is providing another one.
  7. Summer 2019: Britain – our PM tells the EU, which has said for months that negotiations for Britain’s withdrawal for the EU (27 years after its eviction from the ERM – was that when the journey to Brexit started?) are at an end, that he will not negotiate with them unless they give him what he asks for first. The EU is now trying to understand what sort of a threat it is to say that you will not do something which the other party has also said they do not want to do. Meanwhile, the pound has declined against a basket of currencies at just the moment when holidaymakers are buying their foreign currency, English summer weather proving as unreliable as ever.

It is now mid-August. Perhaps this year it will be a quiet calm summer. Financially speaking anyway. Not long to find out.


Photo by Nellia Kurme on Unsplash