Stacking the Deck – Again!

Stacking the Deck -Again!

Clinical Negligence Litigation Cost

Marek Bednarczyk , Partner, Personal Injury and Clinical Negligence, at law firm Hart Brown, comments on the lack of action regarding litigation costs

Earlier this year I looked at how changes to the costs rules since April 2013 had benefitted Defendants at the expense of Claimants. I pointed out that many had commented that successive governments had been increasingly pro-Defendant in their reforms.

The announcement earlier in 2016 by the then Health Minister, Ben Gummer, seemed to be consistent with that view insofar as Mr Gummer had announced that the government intended to bring in fixed costs for all litigation cases worth £250,000 or less, including clinical negligence, and these reforms were to be introduced in October 2016.

Well, the long awaited consultation on fixed costs initially set for the end of 2015, then put back to early 2016, is still nowhere to be seen!

However, recent news reports seem to suggest that the government has reviewed the idea of fixed costs for clinical negligence cases and now intends to set the level for inclusion in the fixed costs regime for clinical negligence cases of £25,000 or less (not £250,000).

What will actually happen?

The consultation paper is still awaited and the government will need to review the outcome of the consultation before proceeding to introduce their reforms.

The national Law Society has welcomed news of some reversal of thinking by the government, but the Law Society has highlighted the difficulties in imposing fixed costs in clinical negligence cases where complex medical issues are involved. Such a regime should only apply to modest value claims of £25,000 or less where liability has been admitted.

Equality before the law is a fundamental principle behind our justice system. Fixed costs will save Defendants money at the expense of Claimants. In cases against the NHS, the State is ultimately responsible for paying successful Claimants and for paying for the defence in claims against NHS Trusts.

The State has deep pockets. Hence, the playing field is not equal now and creating further costs obstacles for Claimants will make the current lack of equality even worse.

Let us not forget that legal aid for clinical negligence cases was removed in April 2013, save for a small minority of cases. No legal aid and the introduction of fixed costs – do you now wonder why I title this commentary, “Stacking the Deck – Again!”

 

About Marek Bednarczyk

Marek is an acknowledged expert in personal injury and clinical negligence claims having been involved in a number of high profile and ground breaking cases.

Marek is an active member of the AvMA (Action against Medical Accidents), Clinical Negligence panel and separately of the Solicitors’ Regulation Authority (SRA) Clinical Negligence and Personal Injury panels.  He is a senior litigator member of APIL (the Association of Personal Injury Lawyers) as well as being a member  of the Funding Review Panel of the Legal Services Commission and a Committee member of the Surrey Law Society.

 

One Can only marvel… Corbyn weak leadership now driving voters to UKIP

The Mirror reports: “A Labour grandee has warned that Jeremy Corbyn ’s weak leadership may drive more voters to UKIP.

Former Chancellor Alistair Darling said without an effective party of opposition, the UK could suffer a Trump-style populist revolt, driven by people sick of austerity.

Lord Darling said a lot of people voted for Brexit because they were fed up, adding: “Where do they go politically?

“There is no alternative being offered and that worries me greatly.

“We’ve seen what happened across the Atlantic and my guess is where there is no effective opposition the alternatives are not the conventional ones.”

 

One can only marvel at Mr Corbyn.  I have voted Labour for 41 years. (I won;t be going to UKIP – much as Mr Farrago and his fellow political clowns are amusing.) Mr Darling always struck me as a sensible, measured, politician. I really cannot be bothered with Mr Corbyn’s leadership or his thoughts on politics. Fortunately, he will never be PM and is unlikely, hopefully, to survive as Labour Leader for much longer – a new year ‘Labour Putch’ ? I have nothing against Mr Corbyn on personal terms.  He is, I am sure, a conviction politician and a decent man.  I just don’t agree with his ‘take’ on Labour and the future of the Party. One can only hope for a ‘Putch’. There are quite a few ‘former Labour voters’ I have met  in Perth fed up with Mr Corbyn.  I suspect that this is true throughout the UK and not just in Scotland where Labour – for the moment – has been wiped out by the very capable Nicola Sturgeon and her SNP.

 

Rive Gauche: 2017 will bring a new Reich under President Trump

 

Tip du Jour: Go long on barbed wire and brick production companies.  There is no truth in the thought that Trump Tower will be used as a detention camp for anyone.

I recall that wonderful song in the film CabaretTomorrow belongs to me.

Although Mel Brooks’ Hitler Rap is probably closer to the mark?

Mind you:  “Springtime for Hitler’ from “The Producers” is also close to the mark for parody.

Scotland sees ‘significant increase’ in complaints about lawyers

There has been a “significant increase” in the number of complaints about lawyers made to the profession’s complaints body, particularly in relation to conveyancing and will writing, with the number of complaints having risen to 1,132 – up from last year’s figure of 1,009.

The Scottish Legal Complaints Commission (SLCC) has published its Annual Report which was laid before the Scottish Parliament, and covers the period from July 2015 to June 2016.  It reports on complaints made to the SLCC, Scotland’s gateway for complaints about lawyers.

SLCC Chairman Bill Brackenridge said: “There was a significant increase in the number of complaints made to the SLCC in the year (from 1009 to 1132).

“This may represent a small number considering there are now around 11,000 working lawyers in Scotland, but we know that these complaints have often arisen out of stressful times in people’s lives.

“I’m pleased that our Annual Report shows that we’re delivering effective redress – over £320,000 in compensation, refunds and fee reductions – when people have been provided an inadequate professional service by their lawyer.

“It demonstrates that the legal sector will put mistakes right, while the 13 per cent of complaints rejected as ‘frivolous, vexatious or totally without merit’ at our first stage shows that lawyers can be reassured that complaints with no substance won’t proceed against them.”

In addition to its role as a gateway for complaints, the SLCC’s work in the year included outreach and audit work to support improving complaint handling in the legal profession. There were also other achievements, including becoming a 50:50 by 2020 partner and gaining Living Wage accreditation.

Chief executive Neil Stevenson said: “We focus every day on the delivery of a fair, efficient and effective complaints service for consumers and lawyers.

“However, it is right we also look at how that work is sustained and improved in the future, and the publication of the four year strategy and our proposals for legislative reform are big steps we have taken in evolving our work.”

Angela Grahame QC, Vice-Dean of the Faculty of Advocates, said: “Complaints against advocates remain a tiny proportion of complaints to the SLCC. When one considers the number of advocates and the amount of work they do on a daily basis, it is heartening to find only two complaints were deemed eligible for consideration by the SLCC.

“Complacency can never be allowed, however, and the Faculty continues to work closely with the SLCC on improving our own procedures and assisting the SLCC where possible.

“We are committed to providing an extremely high level of service to the public and would wish to reassure them of our continuous efforts to maintain and improve standards. With this in mind, the Faculty has now introduced a quality assurance scheme for all members, which leads the way among lawyers in the UK.”

Lorna Jack, chief executive of the Law Society of Scotland, said: “Although there has been a rise in the number of complaints received, there has actually been a slight drop in those deemed eligible by the SLCC over the last year.

“We will be looking closely at this year’s report to understand the reasons behind the complaints and work to ensure that we provide the right  guidance and training for our members so that they can meet the high standards set by the Law Society and the needs of their clients.”

Who are the real innovators in the legal profession?

Who are the real innovators in the legal profession?

Nick Hodges, MD Oyez Professional Services

www.oyez.co.uk

Steve Jobs once said that innovation distinguishes the leaders from the followers, but in the legal market how many firms are true innovators, and how many are just following the pack. How many really understand the needs of their clients, and are prepared to innovate to meet those needs and offer a top class service? Nick Hodges, MD Oyez Professional Services, assesses who are the real innovators in the legal profession.

Clients require a high quality, value for money service from their law firm, with good communication across multiple channels. However, past research has shown a lack of understanding by the legal profession on the relative importance of the different forms of communications. Two-thirds of law firms thought their clients preferred on-line communication, but only one third of clients said this was their preferred way of keeping in touch. Clients wanted to be able to track the status of their cases on-line, and for routine communication to be electronic, but still placed great virtue on face to face interaction, something clearly not fully appreciated by many firms.

Regarding value for money, the cost of creating forms, documents, e-mails and correspondence is a necessary cost, but one with a real impact on efficiency and productivity.  It is hard for a firm to impress, and compete with the fixed price offerings of local, national and on-line competitors while using inefficient office systems that can take many times longer to complete a task than necessary.

Spotting valuable new ideas and implementing them quickly is vital for any successful business. However, one of the reasons that law firms fail is by not grasping the nettle quickly enough to make changes when needed. Most firms put a lot of time into creating and perfecting their business models, so when things get tough the natural reaction is to ‘wait and see’ rather than acting quickly and making changes.  There are many reasons why ideas don’t get off the starting block and many of these have to do with avoiding risk. Implementing new ideas in business is often thought to be risky; naturally many people do not wish to back taking risks that might make them look bad if they fail. This is especially true in law firms where the professionalism of the brand could be seen to be threatened.

Suppliers to the legal industry are aware of these trends, and the natural wariness of the profession to embrace change, and have been leading the way in supply side innovation and investment.  Data centric CRM (customer relationship management) systems are becoming widely available which allow staff in a firm to quickly access the information they need to ensure good quality communications with clients.  On the cost side speech recognition systems are generating a lot of interest, becoming part of our everyday lives, greatly reducing the time taken to produce letters and file notes, with a significant impact on costs. A wide assortment of documents can now be produced by fee earners by using only their voice. 

Digital dictation, one of the fast growing cloud services on offer, provides a service which was previously inaccessible to many firms due to the cost and complexity of deployment. Now dictation can be completed while authors are on the move and dictations are instantly accessible from any location. It’s a great solution for firms of all sizes because it is flexible, secure and completely scalable to match the size of the practice.

But how quickly has the legal industry been taking up these new technologies? The pace is quickening and those who have made the move to future-proof technologies report that they really are reaping the benefits of greater efficiency and savings. The process will accelerate as the economy continues to strengthen and more legal firms look for the new technologies that will allow them to move service and efficiency to the very centre of their approach.

 

Rive Gauche: The Great Trump – Farage ‘farrago’…

One can only marvel.  I suspect I will be marvelling quite a lot when President Trumpenstein ‘governs’ America before he manages to get himself impeached. .

What is Farage going to do now that UKIP is actually a ‘real irrelevance’ now?

Former Ambassador to the US sums it up rather well and accurately.

I seem to recall that there was a song “Send in The Clowns’…seems appropriate here?

The i-Newspaper notes: “Donald Trump’s Nigel Farage ambassador tweet is ‘not normal – ‘”Donald Trump’s tweet suggesting Nigel Farage as a candidate for Britain’s future ambassador to the US is “completely abnormal” according to an international relations expert. Dr Jacob Parakilas, the assistant head of the US and the Americas Programme at Chatham House, told i Mr Farage did not have the relevant experience and the mere suggestion could further complicate the relationship between Mr Trump’s administration and the UK Government.

President-elect Donald Trump tweeted that the interim Ukip leader would do a “great job” in the role earlier on Tuesday. Downing Street issued a blunt statement dismissing the prospect.

But that’s not the only thing that makes Mr Trump’s endorsement irregular. First, the US President does not pick foreign ambassadors. Second, Mr Farage does not have the traditional experience for the role.”

 

I think that is a fair assessment.

 

 

UK’s top judge unveils plan to make supreme court more diverse

Lord Neuberger, who retires in 2017, says flexible working will be offered for new appointees to white male-dominated bench

The Guardian: “The UK’s most senior judge, Lord Neuberger, has announced he will retire next summer and signalled the launch of a judicial appointments process that could – through offering flexible working practices – improve diversity on the supreme court bench.

Confirming his departure, Neuberger, the president of the court, who is now 68, said that six new justices would be appointed over the next 18 months.

There are normally 12 members of the supreme court. Only one, Lady Hale, the deputy president, is a woman. All are white. Only two of the present justices were not privately educated.

Criticism of the composition of the judiciary has been mounting due to the fact that there are still relatively few senior female judges and only five high court judges from ethnic minority backgrounds. The justice secretary, Liz Truss, has pledged to introduce measures to improve diversity on the benches.

In a speech to the Bar Council on Monday evening, Neuberger confirmed that he and Lord Clarke, another supreme court justice, would step down next summer. Lord Toulson retired in July but has not yet been replaced. Lords Hughes, Mance and Sumption will leave in 2018.

In an attempt to improve diversity, Neuberger said there would be half-day “insight sessions” offered to prospective candidates where they would be given a tour of the court, allowed to spend time observing proceedings, and offered a private meeting with a current supreme court justice….

Read the rest of the story here

Britain’s love-affair with mass surveillance began under the Labour government…

“Britain’s love-affair with mass surveillance began under the Labour government, but it was two successive Conservative governments (one in coalition with the Liberal Democrats, who are nominally pro-civil liberties) who took Tony Blair’s mass surveillance system and turned it into a vicious, all-powerful weapon. Now, their work is done.

The Snoopers Charter — AKA the “Investigatory Powers Act” — is the most extreme surveillance law in Europe, more extreme that America’s Patriot Act and associated presidential orders and secret rulings from the Foreign Intelligence courts. Snowden nailed it when he said it “goes further than many autocracies.”

The fact that these new spying powers — which conscript tech companies to do the collection and retention of materials for use by the government, usually in secret — comes even as the ruling Conservative Party is barely holding itself together after the Brexit vote and the rise of nativist, racist, pro-deportation/anti-migrant movements who are working their way into the halls of power. Needless to say, any project of mass roundups and expulsions will rely heavily on the legal and technical capabilities for surveillance that the British state has just claimed for itself.

Surveillance powers outlast the rulers who create them. We are one click away from totalitarianism.

Jim Killock, the executive director of Open Rights Group, said: “The UK now has a surveillance law that is more suited to a dictatorship than a democracy. The state has unprecedented powers to monitor and analyse UK citizens’ communications regardless of whether we are suspected of any criminal activity.”

Renate Samson, the chief executive of Big Brother Watch, said: “The passing of the investigatory powers bill has fundamentally changed the face of surveillance in this country. None of us online are now guaranteed the right to communicate privately and, most importantly, securely.”

Boing Boing Cory Doctorow

 

‘Extreme surveillance’ becomes UK law with barely a whimper [Ewen MacAskill/The Guardian]

(Image: Vladimir Putin and Theresa May, Kremlin.ru, CC-BY)

Boris (Foreign Secretary) has left the country in an imperilled and intolerable situation

The story in The GuardianBoris Johnson is many things: a narcissist, a liar , a thug and an impostor. But he isn’t a fool. When he said last week it was “bollocks” to think freedom of movement was one of the European Union’s fundamental principles (and how refreshing it is to have a foreign secretary with a classical education), serious people made the mistake of not taking the new right seriously. What a joke our foreign secretary is, they snorted. The over-promoted clown does not know the EU enshrined freedom of movement in the Treaty of Rome of 1957. He’s either an embarrassment or light entertainment, but he’s clearly too stupid to matter.

Writing before Donald Trump’s victory, the Russian-American journalist Masha Gessen warned that too many liberals lacked imagination. They could not imagine that Trump would win and threaten American democracy’s safeguards, even though authoritarian nationalists were winning across the world. The British elite could not imagine Brexit and only a handful of academics and journalists imagined Vladimir Putin would move to control Russia’s media, suppress opposition and invade his neighbours. Stuck in a familiar past, they do not believe change for the worse can happen, even when it is happening in front of them.

Our current imaginative failure lies in our inability to understand the secret fears and bottomless opportunism of our new masters. Demagogues who have fooled the electorate know better than their opponents that the public can turn on them. For no one is more frightened of a revolution devouring its own than the men who lead it on.

To close the possibility of going from today’s popular heroes to tomorrow’s enemies of the people, they must ensure that, whoever is held to account for Brexit turning rancid, it is not them. Everywhere you look on the right, you can see the politicians who ran the Leave campaign shuffling off responsibility, like actors casting off their costumes.

Unlike so many of their opponents, they can imagine the future. They can see the possibility of Britain in 2018 heading for hard Brexit. Instead of being involved in the easy break they promised, we will be at the start of exhausting trade negotiations with the EU and dozens of countries that will drag on into the 2020s. A Conservative government, committed to reducing the state, will have to employ tens of thousands of civil servants to undertake the most energy-sapping task since the Second World War. Real wages will be failing to keep up with inflation. Investors will be looking elsewhere.

The 17 million who voted Leave won’t remember every item of the false bill of goods Johnson, Michael Gove and Nigel Farage sold. But they will remember the vision of an economic future so bright the NHS would receive an extra £350m a week. As Brexit drags the public finances ever further into the red, it already looks a straight lie. By 2018, it could sound as false as Neville Chamberlain’s promise in 1938 that appeasement would bring “peace for our time” sounded as the bombs fell in 1940.

Our former allies were baffled by Boris Johnson’s assertion that it was “bollocks” for Europe to say Britain could not remain a member of the single market if we would not accept EU immigration. The Italian economic development minister replied: “No way” when Johnson told him: “I don’t want free movement of people but I want the single market.” The Dutch finance minister accused Johnson of “offering to the British people options that are really not available”.

So he is. But they failed to understand that Johnson was raising false hopes for the British to escape the blame he so richly deserves. Johnson knows the European treaties. It’s not just that he’s now foreign secretary. He was one of the founders of post-truth journalism during his time as a hack in the 1990s, when he was an unashamedly mendacious Brussels correspondent for the DailyTelegraph.

As a dismal decade of low growth drags on, the right wants to be able to say that we could have enjoyed the economic benefits of the single market, and had the immigration controls it had promised, if only vengeful Europeans had not intervened. As Johnson was speaking, Gove, a politician who can match him for intellectual dishonesty lie for lie, brushed aside the vast problems of rewriting 40 years of legislation and negotiating with half the world. We could have a “quickie divorce”, he maintained, if only the civil service were not preventing it.

Dominic Cummings, Gove’s former special adviser, at least had the grace to admitBrexit would be the “hardest job since beating Nazis”. I have just two caveats. Cummings never told the electorate about the vast complexities when he ran the Vote Leave campaign. For, if he had been honest, Leave would have lost. Then, like his master, he blamed the civil service for a mess that he and his friends had created. Conservatives are the first to tell the poor, the unlucky and the feckless that they must take responsibility. But “special snowflakes” that they are, they are also the first to embrace the “victim culture” and push the blame on to others when their failures find them out.

This is not the “usual rough and tumble of politics”. There are 3 million European Union migrants living in this country and 2 million British citizens living in the EU – the hostages of the Brexit negotiations. When Johnson and the Conservative press invent stories about Europe denying an entitled Britain a deal they know is impossible, they are consciously increasing the chances of reviving the attacks on EU migrants with which British goons “celebrated” our supposed declaration of independence.

Think on this, too. The promises of the Leave campaigners may have been unscrupulous, but their language was relatively restrained. Whatever complaints you had about posters of refugees and outright falsehoods about millions of Turks coming to Britain, they did not paint Hispanics as rapists and murderers and all Muslims as potential terrorists, as Trump did. They did not promise to deport millions of illegal immigrants, as Trump did. They did not justify assaulting women, as Trump did. They did not threaten journalists who crossed them with retribution, as Trump did. They did not use antisemitic imagery, as Trump did. Not one of them, not even Nigel Farage, was endorsed by the Ku Klux Klan, as Trump was.

If you can at last imagine how nasty the British right will turn as its failures mount, imagine how much more vicious the American right will become when Trump’s promises are revealed to be so many lies.

TRUMP AND HIS FREAK SHOW WILL MAKE AMERICA GRATE

Former Tory MP and currently practising as a barrister, Jerry Hayes, is a good friend of mine.  He helped me greatly some time back when I was in difficulty.  His blog is always worth reading.  His style of writing is direct and most amusing.

TRUMP AND HIS FREAK SHOW WILL MAKE AMERICA GRATE

“As a fully paid up member of the elite, Westminster bubble, liberal, Bremoaning scumocracy some of you might be surprised at my views of our EU leaders reaction to the Trump presidency. Incompetent, patronising, arrogant and a shining beacon to why most of them are unsuited to diplomacy. Any fool knows that Trump is hopelessly out of his depth, a bigot, a loudmouth and is to foreign affairs what a Black and Decker chainsaw does for circumcision. But it’s best not to remind him. Pious lectures about an EU that only exists in the Disneyland of the addled mind of Juncker is like poking a grisly bear with a sharp stick tipped with itching powder. And for God’s sake Merkel remember that grandpa Trump was a German called Drumpf. Fete the Donald, flatter him (he loves it) and then send him on Bunga Bunga party groaning with pneumatic Romanian girls with big tits. You will have made a friend and ally. Mercifully our Foreign Office got it right. Precisely the right tone and May was rewarded with a Thatcher analogy which is always a great headline in the Mail. And I suspect Trump would be fascinated to meet Bozo in the same was as anyone would like to stare at a dog in a tuto that does hand stands. Anyway, they have an awful lot in common. With a bit of luck he might adopt him as some sort of mini me pet.

In many ways grandpa Drumpf was even more of phenomenon than the new President. He made his money out of barbering, brothel keeping and the gold rush. He died at the age of forty nine leaving the equivalent of $600,000 Oh, and he married a woman named Christ. So Trump’s gene pool bubbles away like a witches caldron of testosterone, adrenaline and nitroglycerin.

After the initial horror of his election I am not quite so depressed, admittedly not a very high bar. His acceptance speech was gracious, magnanimous and on the cusp of being Presidential. He is not going to wreck Obamacare but tweak it. And he raises a fair point about NATO. It is quite wrong that America pays 75% of the cost. Our allies must pull their weight. But he has to make it clear to Putin that NATO does mean NATO. That we will protect any member who is attacked. Also encouraging is that he has promised to built up America’s armed forces so Putin won’t be under any delusions that Trump will be a walkover. In many ways their ruthless, narcissistic, megalomaniac similarities might make the world a marginally more safer place.

Heaven knows what he is going to do about Mexico and the Muslims. I wonder if he thinks that Muslims come from Mexico. Or that Sinai is just the plural of sinus. But his most important task is to try and heal a bitterly divided society. Banning abortion would not be a helpful start.

So much depends on his administration. Newt Gingrich really is an awful old man. Sarah Palin beyond despicable with a gene pool where nobody would fear drowning. These people will really make America Grate.”

Do bookmark Jerry Hayes’  blog – always good for a laugh and thoughtful political analysis.

 

Rive Gauche: There are hats….and then there are HATS!

I am now a pensioner officially – in Scotland at 63.5 years of age.  There are times I feel that I should not be allowed out without a ‘sensible person’ to keep an eye on me…especially when it comes to matters of HATS.  I picked up this fine specimen, complete with feathers, at a shop in Perth this morning.  Not expensive – probably the best purchase I have made in years.

Tuscany, Italy – memories of great holidays out there.

I have spent many holidays in Italy, mainly Tuscany.  I even managed to learn to speak Tourist standard Italian.  My passion for Italy  led to me buying a Ferrari 328 GTS and a Ducati 916 motorbike some years ago.

The only countries apart from Scotland that I would like to visit again are Italy, Zambia and the place of my birth 63 years ago – Ghana.

Here is a painting of a typical villa which I have just painted.  The rain was about to come down. It rains a lot in that part of Italy. Or did when I went on holiday there.

 

What will happen to your digital assets?

What will happen to your digital assets?

By James Hickman, Lexikin

In a recent survey PWC estimated that UK households have more than £25bn in digital assets.  

Hardly surprising when you consider that over the past 15 years your office at home is likely to have changed significantly. You will almost certainly have a laptop and a mobile phone gracing your desk. You probably won’t have pages and pages of bank statements piled up waiting to be filed. In fact almost everything you do in the office will be online. You are creating a huge amount of digital assets but does anyone else know about these assets if anything happened to you?

The term “Digital Assets” has emerged relatively recently and is still misunderstood by many.  Simply put a digital asset is content owned by any individual that is stored in digital form. All your digital assets combined make up your Digital Estate.

Digital assets encompass everything from iTunes to online bank account. For most people in the U.K and, in fact around the globe, a proportion of their estate is digital. Think about all the accounts that are available from Facebook and Twitter to email accounts such as Gmail and Hotmail.

The largest digital assets might be your iTunes library for music, Amazon for digital books, email accounts, shop accounts like ASOS.com and PlayStore, and online bank accounts. Many people also have their own domain name – this also has a value.

What happens to digital assets?  

Very few people make inventories of their digital property.  Traditionally people would leave items of value such as furniture, cars and such like in a Will. It would rarely change and in most cases people didn’t update them. Now in this ever-changing digital age how do we know that all our assets are being accounted for and will go to the people we want them to?

But first we have to understand if we even own them. The law around ownership and therefore the ability to bequeath digital assets is grey at the moment. It’s simply a case of the digital world moving at a faster pace than the law.

The truth is that, many of the things we would think of as “digital assets” are in fact “digital licenses.” This means that the items purchased through a particular site are not actually owned by you. You have merely purchased a license to use the media. Typically, these sorts of arrangements allow you to use the content or services but they are not transferable i.e. you can’t pass on them on when you die. For example, your iTunes account; when you purchase music from iTunes you are simply buying a license to listen to that music – you don’t actually own it. It means that this particular digital asset will not make up part of your estate and you will not be able to bequeath it. However, the law is changing, and will eventually catch-up with the issue of digital assets – so at some point you may be able to bequeath it, so it’s worth listing now to safeguard it for the future.  

So, look carefully at the terms and conditions before opening an account with any service provider, as it is the wording of these T&CS that determine whether or not you actually own the digital asset you are purchasing.

How to keep a Digital Inventory

The fact there are a number of tech start-ups entering the market looking to address these issues shows that a demand has already been created.

Lexikin, being one such company, has developed a platform that allows its customers to store securely all their important digital assets and memories so that they can leave them to whomever they wish should something happen.

Making a Living Will

We are a consumer driven society with an individual’s assets and possessions changing all the time. Technology is also changing and digital assets will become an ever more important part of an individual’s net worth in years to come. It therefore follows that without keeping a track on these they could potentially be lost in the cloud forever.

Any platform you consider using should have the ability to incorporate both digital and old world assets – effectively producing a living Will. A Living Will means that you can update your assets whenever you like and ensure that your asset register and Will are always current.

Missing Billions

Even in a world full of paper bank statements, share certificates and Premium Bonds, huge amounts of money lie left unclaimed because they were not found by a person’s executor or mentioned in a Will. The Financial Times reported  that a conservative estimate would be upwards of £77 billion.  Imagine how much more difficult it will be to track assets when they are digital. The value could increase to £100s of billions.  You want to be sure your assets aren’t among these missing billions.

Many solicitors subscribe to a service that does help track down some of these missing assets. It is available to anyone for a small charge www.uar.co.uk  

In the paperless world, where almost all financial business is conducted online, the problem of record keeping will become even harder. Most bank statements are now paperless, very few companies actually issue share certificates anymore, and even the good old NS&I do a very good job at keeping everything online.  Companies like Lexikin allow people to ensure that their financial affairs are left neat and tidy so that everything can be located easily.

Get prepared

It pays to be prepared, start considering about your digital assets now. Have a think about what you want to happen to them after you are gone. This means not only your bank account and pension but also your social media accounts, digital photos and anything else you own and store online. When you write your Will, or create a Living Will, you can request that your executor manages your wishes, however diverse and varied they may be, so that the whole of your estate is covered and not just the traditional parts.

About the Author

James Hickman is CEO, Lexikin – an innovative new online platform which creates a digital record of all your assets and wishes acting as a digital executor. It can be used for estate planning, creating and storing Wills and leaving a complete digital legacy for your family. It is a simple and secure way to make a digital record of all of your possessions ensuring they are better understood and dealt with.

The origin and meaning of the word Lexikin comes from ‘lex’ – Latin for law of the court & ‘kin’ – family and relations. Lexikin is an online legal journal, for you and your next of kin, in case of fire, theft or death – to confidentially record all your assets, wishes, memories and legacies.  

https://www.lexikin.com/

https://www.facebook.com/Lexikin-726570837362297/?fref=ts&ref=br_tf

https://www.youtube.com/c/lexikin

https://www.linkedin.com/company/lexikin

https://plus.google.com/+Lexikin

Lawyers drafting contracts have become ‘copy and paste monkeys –

“Lawyers drafting contracts have become ‘copy and paste monkeys’ without the time, authority or funds to revisit and check that what they are copying is correct.

That was the view of one lawyer during a panel discussion on contract drafting at University College London yesterday.

Ken Adams, a US-based lawyer and adjunct professor at Notre Dame Law School, in Indiana, said a universal style guide should be put in place for firms to use as ‘building blocks’ for drafting contracts.

He added that automated templates, created through questionnaire answers, should also be considered.

During the event, lawyers from magic circle firm Clifford Chance and telecommunications giant BT, as well as High Court judge Mr Justice Flaux, criticised a tendency to use overly complicated language but denied that a dramatic change in culture was needed.

Kristin McFetridge, chief counsel for BT, said the company had already ‘re-drafted’ its terms and conditions so that ‘customers understand exactly what they are buying’.

Clifford Chance partner Kate Gibbons said there is ‘no one size fits all’ template but that they should not be ‘slavishly followed’.

The session was chaired by UCL visiting professor Mark Anderson, chair of the Law Society’s IP law committee, who asked whether lawyers fully understood what they were writing and whether certain clauses could be left out of contracts to avoid litigation.

Flaux said provisions and interpretations that are ‘tried and tested’ should be left in. He added that one of the problems was that many people today ‘do not appear to understand grammar’.

‘Ensuring you properly understand the meaning of what you are writing is crucial, as incorrectly used grammar can change the meaning,’ he said.

‘I can’t accept the notion of “tried and tested”,’ countered Adams, who said 93% of interpretation clauses either state the obvious or are not feasible. He pointed to the jumping between ‘best endeavours’, ‘reasonable endeavours’ and ‘all reasonable endeavours’.

Anderson asked what tips junior lawyers could take on board to improve their drafting.

Gibbons suggested reading and studying poetry as it makes ‘you appreciate the importance of every word’.

McFetridge said learning a foreign language could also help gain an understanding of the ‘quirks of the English language’.

The talk ‘Dysfunction in Contract Drafting: Are the Courts, Law Firms, and Company Law Departments Stuck in a Rut?’ was hosted by UCL at the British Medical Association headquarters.

Law Society Gazette story

Remarkable: High Court judges launch unprecedented legal action against embattled Justice Secretary Liz Truss

High Court judges launch unprecedented legal action against embattled Justice Secretary Liz Truss

“Ms Truss is already under pressure over her failure to defend the judiciary in a row about a Brexit legal ruling

Six High Court judges are launching an unprecedented legal action against Justice Secretary Liz Truss.

The case marking a new low in relations between the Government and the judiciary will see the group accusing Ms Truss of unlawfully discriminating against them on grounds of their age.

Members of the group will also claim they have been discriminated against on grounds of sex and ethnic origin in the case, relating to a new judicial pension scheme.

It comes after Ms Truss faced heavy criticism for failing to defend three other High Court judges against attacks, following their decision to rule against the Government in a critical Brexit court case.

Under reforms introduced last year — before Ms Truss became Lord Chancellor — some serving judges are allowed to retain membership of an existing pension scheme, whereas others under a certain age, including the six bringing the case, were enrolled in a new scheme.

The claimants will argue they are being treated less favourably due to their age, while two members of the group will also say female judges and those from ethnic minorities are under-represented among those able to retain the more preferential pension terms.

Shah Qureshi, head of employment at Bindmans LLP, said: “We can confirm that we act for a small group of judges in relation to age, race and sex discrimination issues arising out of the new judicial pension scheme.

“As this matter is currently awaiting judicial determination we are unable to comment further.”

A two-week hearing, starting next week, has been arranged before a tribunal judge who is not affected by the new pension arrangements. There could then be further hearings before appeal judges.

The Independent contacted the Ministry of Justice which said it could not comment on ongoing litigation.

Last week the High Court ruled that Theresa May could not trigger Article 50 of the Lisbon Treaty, launching Brexit talks, without seeking Parliament’s approval. It lead to the three judges involved being attacked and branded “enemies of the people” in one newspaper.

Lord Chancellor Ms Truss was criticised for hesitating to leap to the judges’ defence, and then failing to address attacks strongly enough when she eventually issued a statement.

Story from The Independent

RightsInfo Is Recruiting Two Digital Content Creators

RightsInfo Is Recruiting Two Digital Content Creators

RightsInfo is the UK’s most exciting digital human rights media platform. We build support for human rights in the UK by producing engaging, accessible and beautifully presented online human rights content.

We are now looking for two talented individuals with skills in one or more of journalism, digital media or marketing, video creation, and graphic design to join our growing content creation team.

Key details

  • Salary: Dependent on experience and skills (approx £26k per annum pro rata)
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  • Location: Central London
  • Closing Date: Sunday 4 December, 10am

Click for full details and how to apply

A quick look back through some cartoons I drew

c

 

And finally…

Would you like to advertise on my blog? Image advert + link. £100 p.a. to include 2 guest posts where you may write about your firm, law, or anything that takes your fancy.

Send me an email

 

And really finally…

Would you like to buy this excellent steel dolphin bottle opener? Someone at the Auld Hoose pub in Perth said it was 1930s…no idea – but it opens bottles and looks great!  £10 + postage

 

 

Why the High Court got the law wrong about Brexit

Why the High Court got the law wrong about Brexit
by CARL GARDNER on NOVEMBER 4, 2016

Some reactions to the High Court’s judgment in the article 50 case, R (Miller) v Brexit Secretary, have been ugly, excessive and ridiculous. It’s excessive too to see the judgment as blocking Brexit, or as creating a constitutional crisis. It does neither thing. I’ve no doubt that if the judgment is upheld on appeal to the Supreme Court, the government will obtain the one-clause bill it’d need authorising it to give notice of Brexit under the famous article 50.

But the judgment is surprising (I expected it’d agree with my view), it’s problematic, and I think it’s wrongly decided. Here’s why. I’m afraid my explanation is long: but I think it needs to be.

THE BASIC FLAW

In broad terms, what’s happened is that two recently discovered or “upcycled” legal doctrines—the theory that there is a higher class of “constitutional” statutes and what’s called the “principle of legality”—have combined with, I think, confusion about the effect of the European Communities Act 1972, and created a heady and intoxicating legal brew. Deeps draughts of that stuff have impaired the bench’s judgement so much that they’ve thought constitutional principle required them to take and upside-down approach to statutory interpretation, and read the 1972 Act in a way Parliament can surely never have intended either in 1972 or since.

THE UNDERLYING PRINCIPLE

First, it’s important to be clear what legal principle the judges have tried to give effect to. It’s not that there’s anything really unusual about article 50 that means ministers can’t “trigger” it using prerogative powers, or even that doing so would deny people their rights. It’s a much broader constitutional principle that the court derives from the 1610 Case of Proclamations(paragraph 27 of yesterday’s judgment) that the executive by prerogative

cannot change any part of the common law, or statute law …

and from the Zamora case in 1916 (para. 29 of the judgment):

The idea that … the Executive, has power to prescribe or alter the law to be administered by Courts of law in this country is out of harmony with the principles of our Constitution.

That’s worth remembering: the High Court thinks triggering article 50 would change the law in this country, and that no change to the law of any kind can be made by doing so. The principle is much wider than, for instance, one that only protects fundamental constitutional or human rights. But almost immediately after explaining it, the court undermines it by accepting (para. 33) that

treaties can have certain indirect interpretive effects in relation to domestic law …

Which they certainly do. The courts presume Parliament to legislate in accordance with the UK’s international obligations which means, if you think about it, that merely entering into a treaty alters our law here to some extent. But, the court says (§33)

this does not affect the basic position that the Crown cannot through the use of its prerogative powers increase or diminish or dispense with the rights of individuals or companies conferred by common law or statute or change domestic law in any way without the intervention of Parliament.

But the exception surely does blow a hole through “the basic position” as outlined by the High Court. Judges themselves have said international obligations alter to some extent the law in this country.

EU LAW RIGHTS

Next, let me turn to what I think are the court’s misunderstandings about the EU rights, and the effect the 1972 Act had in bringing them in to our legal system. First, the court at §34 says

a direct link exists between, on the one hand, rights and obligations arising through action taken on the international plane – by entry into and continued membership of the … [EU] … and creation of EU law in the relevant Treaties and by law-making institutions of the European Union – and, on the other, the content of domestic law. This is the result of a combination of principles of EU law, including principles of direct effect of EU law in the national legal systems of Member States, and the terms of the ECA 1972 …

On its face this is unobjectionable; but I wonder whether underlying the judgment is an unspoken assumption that the EU law concept of direct effect makes these treaties and this legislation unique by giving EU law some independent status in our own law. That’s certainly not right: it’s only by artificial statutory domestication of the concept of direct effect through the ECA 1972 that EU law has effect here. The passage I’ve just quoted leaves some room for doubt about how clearly the High Court saw this, and my slight doubt are increased by §42 of the judgment where I think the court may not be quite right to imply EU law requires the concept of direct effect to be explicitly transposed into national legislation.

The judges go on to set out (§§57-66) three categories of “rights” they say are relevant. The first, “category (i)” are rights like equal pay or working time restrictions that can be replicated nationally. This is unproblematic. The second, “category (ii)”, are rights British citizens enjoy in other countries because of EU law, such as the right to take a job in France and not be discriminated against. It’s far less obvious why the court thought these rights—which cannot possibly exist in our domestic UK law—are relevant. The third “category (iii)” is what you might call pure institutional EU rights such as the right vote for MEPs or to ask a court to refer a point of interpretation to the European Court of Justice.

The High Court says article 50 notification would remove category (i) rights, but of course it would not: there might be a “soft Brexit” in which many of those rights are actually retained. It’s interesting that (§64) that the court needs to bolster its reasoning by referring to the ancillary loss of the category (i) right to ask for a reference to the ECJ.

But the reasoning of the court concerning category (ii) rights is very odd. These are plainly nothing to do with UK law or with Parliament: your or my free movement rights in France derive entirely from whatever effect the EU treaties have or are given in French law by French legislators and courts. And the High Court admits (§66) that

In a highly formalistic sense, this may be accurate

which is now my favourite euphemism for “it’s right but I reject it”. The High Court is quite correct (§66) to say

withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights

but what’s wrong, bearing in mind the constitutional principle underlying the judgment, is to think undoing category (ii) rights would change UK law in any way. It wouldn’t.

Only category (iii) rights actually fit unproblematically into the court’s analysis. They would undoubtedly and necessarily end at the moment (not of article 50 notification, but) of Brexit. So the court’s reasoning is actually based on the extinction of fewer rights, and the alteration of less UK law, than it seems. And it really only comes down to EU citizenship and the right to vote for MEPs or stand as one. The supposed right to ask for a reference to the ECJ is actually a power for courts to decide to make a reference. It’s not a substantive right at all, but just a procedural right to make an argument in a UK court.

AN INTRIGUING POINT, IN PASSING

It’s interesting at this point to look at §70, which mentions without judicial comment that the European Parliament became directly elected in 1979. One wonders, if the High Court is right, what legal power the government had in the 1970s to agree to the change before MPs passed the legislation. Remember, it’s not just prerogative action that (in the judges’ view) removes rights that they say’s unlawful; the idea is that it’s unlawful by prerogative to alter the law in any way.

The real meat of this judgment, though, and where it really goes astray, is in the discussion on statutory interpretation from §77 and especially from §82.

INTERPRETATION, AND THE TWO QUESTIONABLE PRINCIPLES

At para. 44 the court had mentioned the principle put forward by Lord Justice Laws in Thoburn that the ECA 1972 is a “constitutional statute”, with the technical legal consequence that it can only be amended or repealed explicitly. That’s always been an unconvincing theory, not much backed up by subsequent cases from higher courts. Frankly, it’s wrong. The way the ECA 1972 interacts with later statutes is (as seems to me obvious) because of its wording and what Parliament must have meant by it, rather than its status. But even if it’s right, Laws’s “constitutional statute” theory is limited to shielding the 1972 Act from accidental repeal.

In yesterday’s judgment, though, the thought seems to have grown into a wider proposition (that I detect underlying §§81-88 of the judgment) that a cross-cutting constitutional principle must implied into a “constitutional statute” that neither Parliament except by express words nor government can do anything that would on any view affect it in any way at all. It finds eventual expression in §88:

Since in enacting the ECA 1972 as a statute of major constitutional importance Parliament has indicated that it should be exempt from casual implied repeal by Parliament itself, still less can it be thought to be likely that Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers.

This is I think a vague and unjustified expansion of “constitutional statute” theory. Even if Laws LJ in Thoburn was right, his principle was about the way later legislation affects the 1972 Act. It has nothing to do with the prerogative.

This expansion of “constitutional statute” thinking has happened because the court has mixed it with the “principle of legality” that’s especially fashionable at the moment (in Evans in the Supreme Court, notably). According to that principle, which Lord Browne-Wilkinson traced in Pierson to academic writings and to a series of cases in the 1980s and 1990s, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention.

Extraordinarily, the High Court has now reversed the principle in such as way as to presume that Parliament in 1972 did change the common law (by curtailing prerogative powers) although there are no clear words in the 1972 Act doing so.

It’s clear, then, that the heart of the problem in the judgment is the “flip” the court makes in §84 onwards, when it rejects the argument that

language would need to be found in the ECA 1972 before it could be inferred that Parliament intended to remove the Crown’s prerogative power

and concludes the opposite, that clear language would need to be found preserving the prerogative. This is, in my view, the fundamental flaw in the High Court’s reasoning.

THE REES-MOGG CASE

At §§90-91 the High Court distinguishes the Rees-Mogg case that I think raises the same essential issue as article 50. It does so by saying Rees-Moggwas not a general ruling that prerogative powers had survived the 1972 Act, but held merely that ministers could ratify the Maastricht treaty by prerogative because the social protocol did not change UK law.

Frankly, this is an implausible and untenable reading of the Rees-Mogg case. It’s plain if you read the judgment that what the High Court calls the “nub” of the reasoning in Rees-Mogg was actually a back-up argument bolstering its primary legal conclusion, that

When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms … There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the E.E.C. Treaty.

Finally, paragraph 93 of yesterday’s judgment is odd. In it, the court identifies what it sees as textual support for its interpretative approach—but the points it makes are unpersuasive. Its point (3) in particular is very opaque. And what need, anyway, for textual support to bolster a reading that (according to the judges’ reasoning) follows implicitly from constitutional principle? Paragraph 93 reads, to me, like a suspiciously overdetermined and thin belt adding little to the courts’ already dodgy braces.

I WISH I THOUGHT THE SUPREME COURT WOULD REVERSE IT

If this judgment is correct, its consequences are, I think, radical and surprising. If in 1972 Parliament really did end the government’s power by prerogative to (as the court thinks) change UK law by doing anything that alters EU law, then surely every change to EU treaties agreed by Prime Ministers has been unlawful. Why, if this judgment stands, was it lawful for Mrs Thatcher to agree to the Single European Act? Why was it lawful for Mr Blair to sign up at Amsterdam to the Social Chapter? The High Court implies in its treatment of Rees-Mogg that he had no prerogative power to do so.

The list of worrying consequences goes on. What power have ministers ever had to agree in Brussels to EU measures such as Directives that (as the High Court sees it) change the law in this country when adopted? It seems to me at least arguable that, according to the High Court, all of this was unlawful—and that, to act lawfully now, we must all behave as if Britain were still in the European Community as it existed on 1 January 1973, before ministers by prerogative “unlawfully” made any changes. The solution to this conundrum can’t be that Parliament later “cured” ministerial unlawfulness by confirming the changes they’d agreed; if that were the answer, then the government’s planned “great repeal bill” could cure the supposed unlawfulness of article 50 notification.

I wish I thought the Supreme Court would reverse this—a judgment that’s tempered the twin edges of constitutional statute theory and the “principle of legality” and made of them a weapon that can be aimed at Parliament as it was, yesterday, at government. But the Supreme Court likes the principle of legality too much. We can hope for some dissent there, but I expect it to uphold this wrong turning in constitutional law.

 

IMPORTANT NOTE

Carl Gardner is a good friend of mine – which is why I have re-published his excellent article in full here.  If you want to comment on his article on his blog – please go here

Rive Gauche: More Brexit nonsense…World Class nonsense

Theresa May should stuff Parliament full of Brexit supporters to bypass scrutiny of triggering Article 50 by the House of Lords, a Tory MP has said.

Jacob Rees-Mogg, a supporter of Brexit, said Ms May should create 1,000 new peers in the Lords to make sure Brexit negotiations begin without delay.

Brexiteers fear that the Lords, which is thought to have a Remain majority, will reject any proposal to start EU negotiations, if Parliament is allowed to have a vote on the issue.

***

 

No idea what the Venerable Rees Mogg MP  is smoking – but if he could post some to me, I’d quite like to try it.  Classy? Class A?

Have a Spliffing evening all…  

Bar Council: Judiciary must ensure rule of law underpins our democracy

Bar Council: Judiciary must ensure rule of law underpins our democracy

Bar Council source

4 November 2016

Chairman of the Bar Council, Chantal-Aimée Doerries QC, has today highlighted the vital role of the judiciary in upholding the rule of law.

She said: “As the judges made very clear in the judgment, this case was not about the merits of leaving the EU. It was about the constitutional processes for triggering Article 50. It is the judiciary’s role to ensure the rule of law underpins our democratic system. Without it fulfilling this vital role, the people would have very limited scope to hold the Government in power to account.

“The judiciary of England & Wales is the envy of the world because it is independent of Government or any other influence. When we speak to lawyers in other jurisdictions, it is our judiciary that they particularly praise for its professionalism and independence.

“Publicly criticising individual members of the judiciary over a particular judgement or suggesting that they are motivated by their individual views, political or otherwise, is wrong, and serves only to undermine their vital role in the administration of justice. It also does no favours to our global reputation.

“None of the parties suggested that the Court did not have jurisdiction to decide the point at issue. They are simply doing their job – impartially ruling on a dispute between parties, one of whom happens to be the Government in this instance. The right to appeal is there to challenge the Court’s decision if a party feels they have grounds to do so. Whilst acknowledging that this question is one of potentially significant constitutional importance, the independent role of the Court should be respected, particularly by those who disagree with the outcome.”

The biggest supermoon in nearly 70 years will light up the night sky this month

supermoon

The biggest supermoon in nearly 70 years will light up the night sky this month

“Britain will soon bear witness to the biggest full moon in recent memory, when a record-breaking ‘supermoon’ appears in the sky this month. Supermoons are not particularly rare in themselves – the last three months of this year all boast one – but November’s will be the biggest for nearly 70 years. The last time one this big was seen was in 1948.

Read more at: 

Europe: A deeply troubling and wrong-headed decision

A deeply troubling and wrong-headed decision

When it comes to using the prerogative for “less Europe”, there are implied limitations which do not seem to exist for “more Europe”

On 3rd November 2016 the Divisional Court handed down its judgment in R (Miller) -V- Secretary of State for Exiting the European Union[2016] EWHC 2768 (Admin). The court has, to the surprise of most informed observers, decided that it is outside the prerogative powers of the Crown for notice to be given under Article 50 of the Treaty on European Union to withdraw from the European Union.

In reaching this decision, the judgment has overturned the accepted understanding about the respective power of the Crown on the international plane to accede to and withdraw from international treaties, and the powers of Parliament to alter the internal law of the United Kingdom.

The European Communities Act 1972 was a constitutional innovation for the United Kingdom. It linked international treaties directly to the internal law of the United Kingdom by giving the European Treaties and supranational legislation made under them so called “direct effect.” That means that they have force in UK internal law – and therefore alter the content of the law – without recourse to Parliament.

The judgment argues that this feature of the 1972 Act means that the Crown has no power to withdraw from the EU treaties, because doing so would have the effect of altering domestic law, which only Parliament can do.

This argument is illogical and does not hold water. There are many acts which the government can carry out on the international plane under the European treaties which have the effect of altering UK domestic law, and in doing so either confer rights on people or deprive them of rights.  Whenever the UK representative on the Council of Ministers joins in passing into law a directly applicable EU Regulation then the Crown in using the prerogative power to alter internal UK law without that alteration of the law going through Parliament.  This is simply a consequence of the direct effect machinery of the 1972 Act.

So why should it be OK to have “more Europe” through exercise of the prerogative power, but wrong to have “less Europe” as a result of Article 50 being invoked and the direct effect parts of EU law ceasing to apply within the UK?  Nothing in the wording of the 1972 Act supports such a distinction.

There is a further reason why this decision flies in the face of the obvious intention of Parliament. The Lisbon Treaty, which inserted Article 50 into the Treaty on European Union, was given effect in UK law by the European Union (Amendment) Act 2008. That Act therefore made the Article 50 power available for use by the Crown but did not specify that its exercise would need the approval of Parliament. That Act however explicitly provides for Parliamentary control over certain prerogative acts under the EU treaties, including Article 49 on Treaty revision. But notably, the statutory scheme of Parliamentary control of prerogative power does not extend to notifications under Article 50.

There has a been a long string of attempted challenges to the use of the prerogative power to extend EEC or EU powers, all of which have been rejected by the courts, sometimes in peremptory terms. However, when the prerogative is used to achieve “less Europe” in order to implement the decision of the British people which an Act of Parliament empowered them to take, it is suddenly found that there are implied limitations on the prerogative power which prevent it being used for this purpose.

We welcome the decision of the government to appeal from this judgment. We hope that the Supreme Court will apply the law in a more orthodox and logical way,  allowing the government to fulfil its promise to the British people to implement their clear decision.

Martin Howe QC
Thomas Sharpe QC
Clive Thorne
Francis Hoar

Website

The vicious assault on UK judges by the Brexit press is a threat to democracy | Charles Falconer

The vicious assault on UK judges by the Brexit press is a threat to democracy | Charles Falconer

The Guardian

The Brexit-supporting press has mounted a vicious assault on the three high court judges who ruled in the article 50 case. And it has undermined our constitution in the process. The government appears to be fuelling this attack. Sajid Javid, the local government secretary, described the judges as seeking to “thwart the will of the people”.

The judiciary is a pillar of our constitution. Allow faith in the judges to be eroded and that pillar is eroded at a huge cost to our freedoms.

The front page of the Daily Mail labelled the three judges “enemies of the people”. It described Sir Terence Etherton as the first “openly gay” judge, detailed Sir Philip Sales’ earnings when he was a barrister and worked for the government and captioned a photograph of the third judge “The Europhile: Lord Chief Justice Thomas”. The Sun and the Daily Telegraph stooped to spraying abuse with the same lack of concern for the constitutional place of the judiciary in our democracy.

Rive Gauche: A few good tweets du jour…

And this…

I’d better shoe horn a bit of law in…this being a ‘Law’ blog etc…

Brexit judgment is all about sovereignty of parliament

But that is quite enough Law for a Friday night…but, there again…

Brexit trigger campaigner gets death threats

Gina Miller targeted by online trolls over Brexit ruling

“The abuse follows the court ruling that the Government cannot proceed with Article 50, without approval by Parliament.

The woman behind the successful High Court challenge on triggering Brexit has been subjected to a torrent of online abuse, including rape and death threats.

Gina Miller, who was born in Guyana in South America, has also been the target of racist rants by internet trolls, who have called for her to be deported.

Despite the threats, the 51-year-old investment fund manager and philanthropist has insisted she would not let people “bring her down”.

And this…

Trump jitters see £76bn wiped off FTSE 100

And this from The Steve Cornforth blog…

The Brexit Judgment is all about the Supremacy of our elected Parliament

“It seems that the whole world is commenting on yesterday’s decision of the High Court in relation to Brexit. In fact some press reporting has verged on the hysterical.

We need to make one thing clear from the start. This is not a judgment on Brexit itself. It is a judgment on what powers the government has, to make decisions in relation to Article 50 without referring to Parliament. The Lord Chief Justice could not have made this any clearer –

‘It deserves emphasis at the outset that the court in these proceedings is only dealing with a pure question of law. Nothing we say has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union’ .

I think everybody has now heard of Article 50. This is the process that begins our exit from the EU. In very simplified terms the court decided yesterday that the process cannot be triggered by the Government. It has to be done by Parliament. It is a purely legal point. It has nothing to do with the pros and cons of Brexit.

The Government argued that it could start the process without going to Parliament because of ‘Royal Prerogative’. These are words that most Law Students forget shortly after finishing their degree. They rarely raise their head in real life. Royal Prerogative describes decisions which the monarch of the day could make without having to refer back to parliament. It is a concept that goes back to the 14th Century and the days of power struggles between the monarch and the barons.

 

Over time those powers have devolved to the government ministers. The powers are sometimes used in foreign affairs and might include the making of treaties with other nations. For those who are particularly interested there is a useful discussion in Wikipedia –

https://en.wikipedia.org/wiki/Royal_prerogative_in_the_United_Kingdom

This is important in relation to yesterday’s decision. When we entered the European Union in the 1970s Parliament enacted the European Communities Act 1972.  If we want to exit the Union that Act has to be repealed. The government’s case was that it must have been Parliament’s intention in 1972 to give any future government power, by way of royal prerogative, the power to cancel any treaties relating to our membership. This argument was very firmly rejected by the Court.

The overriding point is that Parliament is sovereign. The 1972 Act was passed by Parliament. There is nothing in that Act to say that a future government can cancel it. Only Parliament can repeal an Act that it has passed. The Lord Chief Justice said

‘The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the government of the day cannot by exercise of Royal Prerogative override legislation enacted by Parliament.’

The government argued that this case was different. It argued that it had the legal power to trigger Article 50 because this is all about foreign relations and therefore within the Prerogative. This again was rejected. It is self evident that laws enacted since we joined the EU have become part domestic law. So as soon as Article 50 is triggered, UK laws will be affected. This is not just about foreign affairs but will fundamentally change our laws. Those powers are for Parliament and not the government.

The case will now go to the Supreme Court – possibly before all 11 judges. I would be very surprised if their decision is any different. There is nothing in either the 1972 Act or even the Referendum Act of 2015 that gives Mrs May and her ministers powers to cancel an Act of Parliament. Many of us have been saying this since June –

http://thestevecornforthblog.blogspot.co.uk/2016/07/brexit-and-parliament-will-it-ever.html

This is not a battle between the courts and Parliament. In fact it confirms that nobody – neither judges nor the government can override the supremacy of Parliament. In fact it is part of our historical protections. The courts will not allow any government to act beyond its powers. If it wants to change the law it can legislate and to do that it has to go through the correct process.

So where does this leave Brexit?

I cannot imagine that Parliament will try and cancel the result of the referendum. A majority of voters chose Brexit. It would certainly trigger a major constitutional crisis if that outcome was blocked altogether. Indeed many MPs who supported Remain have said that they will respect the will of the people.

What it does mean is that the process will have to be carefully examined by Parliament. Brexit minister Davis Davies has acknowledged that this would mean a new Act of Parliament –

http://www.bbc.co.uk/news/uk-politics-37863544

This might slow the formal process but it will ensure that the elected members of parliament will have the final say on the detail of the exit.

It is easy to forget that this was something that was at the heart of the Leave campaign i.e. the recovery of the supremacy of our parliament.

The High Court has confirmed this.

 

Yesterday’s judgment should be welcomed by both sides of the debate itself. It is not a decision about the rights or wrongs of Brexit. It is a clear line in the sand about what powers Ministers have to disregard those elected by the people.”

 

 

Rive Gauche: The Drinking Forecast

panamahatphone4nov16Here I am on my new iLobsterphone 7.10 (PAYGO) trying to get through to a law firm, it being POETS Day (Piss off early tomorrow is Saturday) to pay their invoice for an advert – as I like to have some food at weekends to give me fuel for my 20 mile walks each weekend day.

No luck so far.
Here is The Drinking Forecast, based on the Radio 4 Shipping Forecast – no offers from Radio 4 to air it yet.  One can live in hope.

 

 

The Lord Chief Justice’s Report 2016

It is ten years since the Constitutional Reform Act 2005 came into force and vested responsibility for justice and the judiciary jointly in the Lord Chancellor and the Lord Chief Justice. That change was itself momentous and, ten years later, we reach another historic moment: the realisation of the courts and tribunals modernisation programme.1 This is much-needed and long overdue, and work is well and truly underway. The Lord Chancellor, Senior President of Tribunals and I have recently published our joint vision for the justice system: one that is just, proportionate and accessible – a system that builds on established strengths and continues to lead and inspire the world.2 Amidst these changes, constitutional and structural, one thing has remained constant: the renown, calibre and independence of the judiciary. It should not be forgotten that our judges are the real asset of the judicial system, which is, rightly, the envy of the world. It must also be better understood that the judiciary, as guardian of the rule of law, is central to the proper functioning of our democracy. Therefore, the judiciary and its independence must neither be taken for granted nor in any way diminished. There remain, then, a number of issues to be addressed: • The primacy of the Common Law must be preserved.

Read the report here

BREAKING: Government Loses Brexit Challenge

brexit3nov16

BREAKING: Government Loses Brexit Challenge

Adam Wagner, Barrister writes:

Huge news this morning as the High Court ruled that the Government can’t trigger formal Brexit negotiations (‘Article 50’) without getting Parliament’s approval first. And the judgment is all about fundamental rights – the rights of British citizens and who can (and who cannot) take them away.

Key points

1. Membership of the European Union has given many rights to British citizens, such as free movement across Europe and rights under the European Union Charter. See more here.

2. The key focus of the case was about the constitutional principle that the government can’t use its “prerogative powers” to overrule Parliament when to do so would mean taking away rights of British citizens which were granted by Parliament. Our constitutional system is finely balanced but generally, Parliament is supreme.

3. The court decided that the Government can’t exercise Article 50 (therefore triggering an almost inevitable exit from the EU) without getting Parliament’s approval first. This is because only Parliament could take away the rights that Parliament has granted to British citizens through decades of EU laws.

4. The judges emphasised that the 2016 EU Referendum was not and was never intended to be binding on Parliament. It did not overrule the fundamental principle of the ‘sovereignty of Parliament’. It was advisory only, as the Government itself explained to MPs at the time in a briefing paper.

5. The next step is likely to be an appeal to the Supreme Court, the UK’s highest court. The court has already said it will sit with its maximum of 11 justices, probably in early December.