#WithoutPrejudice 14: A-G speech – Assange judgment – LASPO – Brodie Clark v Home Secretary – Legal Aid cuts

In this Without Prejudice ‘Special’ I talk with Carl Gardner about a range of quite important topical issues:

The recent speech by the Attorney-General Dominic Grieve on Human Rights, The European Court of Justice and the principle of subsidiarity

The impact of the Assange judgment on European Arrest Warrants

Lord Chancellor Ken Clarke’s new sentencing proposals on mandatory life sentences and knife crime

The Brodie Clark v Home Secretary spat:  In particular we consider the potential problem of Absolute Parliamentary Privilege being invoked on Theresa May’s statements in Parliament and the potential for an unfair trial should it be an issue.

Legal Aid cuts and the rise in DIY lawyers

All in all a spirited and lively discussion which we hope you will enjoy.  It is about an hour long – so you may wish to take it in ‘bites’.

The picture above showing my absurd tache is for my ‘Movember’ support of prostate cancer charities.  Having suffered from prostate issues – caught early, fortunately, I am more than aware of the value of screening and speedy treatment.  I also happen to enjoy absurd taches.

Listen to the podcast

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Brodie Clark’s tribunal claim – and Parliamentary privilege

Carl Gardner analyses – in great detail – the Parliamentary privilege point we discussed in the podcast – a good read.

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In association with The Lawyer

I’d like to thank Lawtel, WestlawCassons For Counsel, City University Law School David Phillips & Partners Solicitors, Inksters SolicitorsIken, LBC Wise Counsel, Carrs Solicitors,  JMW Solicitors – Manchester, Pannone and Cellmark for sponsoring the podcast  – and the free student materials on Insite Law – appreciated.

5 thoughts on “#WithoutPrejudice 14: A-G speech – Assange judgment – LASPO – Brodie Clark v Home Secretary – Legal Aid cuts

  1. I’m struggling to see how Pepper v Hart applies to the facts of the Clarke case – as it is authority for the the Courts to take into account statements made in Parliament in construing legislation.

    Article 9 of the Bill of Rights states:

    `freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’

    Art 9 affords legal immunity to MPs for what they say or do in Parliamentary proceedings.

    If Mr Clark brings an unfair dismissal case, Theresa May is unlikely to be the Respondent.

    Further, even though she enjoys immunity, that IMHO, would not prevent the Employment Tribunal from having her words used as evidence. Surely Mr Clarke could say in a witness statement, “I was watching TV and saw the Home Secretary blame me for going rogue and causing a shambles etc, etc…I therefor considered my position untenable…

    I have no doubt Carl is correct that a canny Government lawyer will attempt to run the absolute privilege point – but I can’t see it getting them very far.

    And speaking of Government lawyers, I wonder if their fees are being commensurately cut with legal aid expenditure? When I worked for Government, we were quite happy to pay commercial rates for top barristers to get the job done.

    Given many litigants in person will be in court – not by choice – but because the Executive has a problem with them – that hardly seems to satisfy the requirement for equality of arms.

  2. Kudos to Carl and Charon for inspiring me to dust off Hilaire Barnett.

    The more I read, the less certain I am – of any position.

    In Buchanan v Jennings (2004) which is a Privy Council NZ case, defamatory statements were made during the course of a debate in the NZ House of Representatives – and those comments were absolutely privileged.

    But – the Member went on to “not resile” from the comments made in the House outside of the House and was held liable for defamation. Barnett says, “nothing in the law of privilege prevented the plaintiff from relying on the record of what was said in parliament as evidence to support an action against the Member based on what he had said outside of the House”.

    So, the question remains, what if Theresa never breathed a word about it outside of Parilament?

    I think I now need to get a life!

    I’ll leave you in peace :-)

  3. I’m not sure she’s said anything outside the Commons, has she? The courts have been getting gradually more relaxed about “looking” at Hansard as part of the background to policies being challenged on judicial review, for instance (partly, as Lord Rodger said in a speech a few years ago, so as simply to avoid spending inordinate time on legal arguments about whether they can take account of it – they simply “look and ignore”, he seemed to be implying).

    But the difference here is that what’s being impugned as in breach of contract is what May said in Parliament – nothing else. That really is “impeaching” or “questioning” what she said. If that evidence can be given, you really have to wonder what’s left of privilege.

    I don’t know about fees, but the impression I’m getting is that it’s tougher than ever now for government lawyers to get permission to instruct silks. I think they’re being held as far as possible to the panels, which I think have defined fee structures.

  4. I await Mr Clark’s next move, and Government lawyer’s response, with interest.

    As for the Executive’s use of silky ponies, I am a litigant in person re a FOI request which has gone to the Information Tribunal – and note that the relevant Authority instructed not just *a* QC – but *the* top QC to plead its case.

    While flattered – I’m not dumb enough to think I can out wit an expert in the field – or to forget that the Tribunal will find leading counsel highly persuasive.

    Take me out of the frame and consider a council tenant in person against a fresh out of the box junior (which we tended not to instruct in my day as we wanted senior juniors who were a safe pair of hands). They will be at a huge disadvantage.

    As for the “fee structure”, local government does agree fees with chambers – and you will find they are no where near rock bottom legal aid rates. And local authorities, unlike the LSC, tend to pay in full and on time.

  5. kris, i think i see the logical extension of your point re hmg instructing ‘sensibly-remunerated senior counsel’ – and i like it!

    their own suggestions on the alternatives available to the formerly-legally aided include being LiP or simply not going to court at all. we should now have ministers representing themselves (an excellent development of their job skills) or the cheapest option of simply agreeing the case against them and paying whatever damages anyone seeks. simples.

    i hope they pay us a consultancy fee. not at silk rates, natch.

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