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The United States Supreme Court recently lost a legal colossus in Associate Justice Antonin ‘Tony’ Scalia.

A colourful, dogmatic and outspoken veteran of the Supreme Court, Justice Scalia, 79, was found dead in his Texas ranch in February. Nominated by President Ronald Reagan, he was very much a believer in the ‘originalism’ of the Constitution as the fundamental basis of US law and legal policy. Tony Scalia was as famous for his stubbornly held views as well as his sharp legal intellect and reasoning. Sparing in his agreement or praise, he had many critics who still admired him.

Associate Justice Antonin Scalia is seen during the group portrait, Friday, Oct. 8, 2010, at the Supreme Court in Washington. (AP Photo/Pablo Martinez Monsivais)

Associate Justice Antonin Scalia is seen during the group portrait, Friday, Oct. 8, 2010, at the Supreme Court in Washington. (AP Photo/Pablo Martinez Monsivais)

His death is a sad loss to the Supreme Court – and a great loss to the American legal sector. Even his critics (of which he had many) admit that he was a man of principle, who never budged from those principles, and worked tirelessly to uphold the principles of the American legal system and the Constitution. Although his verdicts were unpopular with many – he was respected and revered as a great legal intellect. Outspoken and brash, woe before any unprepared attorney who appeared before him. Even the best prepared, and soundest, legal arguments often fell foul of his biting wit, and withering put downs in open court if he disagreed.

As tragic as it is, the business of the Supreme Court has to carry on as normal; the Court still has a full docket of cases to decide upon. As such, whilst the eight Justices led by Chief Justice John D Roberts Jnr are resuming hearing cases – a ninth Supreme Court Judge needs to be sworn in as soon as is conveniently possible.

The additional issue here is that American politics, and the Executive, Congress, Senate and the legal and administrative systems are currently rather preoccupied. The circus that is the American Presidential cycle had started – and shows no signs of ceasing until the last vote is cast in November. At this time, any nominee for a high office (such as Supreme Court Judge) is fraught with political risk, implications, and a knock on impact upon the election cycle.

The major furore such a vacancy causes at this time is whether it should indeed be filled now. When announcing his firm intention to fill the vacant seat now, President Obama (probably relieved not to be taking part in the Election circus this time) came under great criticism.

According to members of the Executive, Republican and even some Democrat politicians and policymakers, Mr Obama should not be nominating another (his third) Justice to the Supreme bench, but should rather leave that to his successor, whoever it is. This viewpoint has a lot of supporters.

In filling a vacancy on the federal Supreme Court, it is essentially an opportunity for a President to leave his mark on the American legal system, and to shape the Supreme Court. With Mr Obama about to hand over the White House, this is an early opportunity for a new President to have a lasting impact on the laws of the nation. As such, a nomination should be delayed.

Although protocol in this demands a new Judge be appointed with all speed – at this particular time, maybe less speed would be more appropriate, and better for the new President.

A further point is the nature of the eight Justices. Chief Justice Roberts is considered to be very Conservative in his legal outlook and judgements – similar to his British counterpart Lord David Neuberger. Ruth Bader Ginsberg, one of the longest serving Justices, is often considered to be the most liberal – similar to the British Deputy President, Lady Brenda Hale. Aside from Justice Roberts and the late Justice Scalia, Justice Clarence Thomas is considered  conservative in his legal opinions – when he gives them. Justices Elana Kagan and Sonia Sotomayor are very liberal, by contrast – in parallel to Lord Johnathan Mance and Lord Brian Kerr (the Irish Judge in the Court). Justice Stephen G Meyer is considered by many to be a moderate, with Justice Anthony M Kennedy usually providing the crucial swing vote.

Consequently, the US Supreme Court is currently fairly divided between conservative and liberal legal viewpoints, and has that crucial swung vote. When hearing cases, such a balanced Court is actually ideal, as the opposing legal viewpoints of the Justices act to balance out each other. Any replacement to the Court has to be considered with that in mind: most nominees might actually swing the balance of the Court one way or the other.

President Obama is well known for his liberal form of Democrat policies. As  evidence, both of his previous nominees to the Supreme Court have been liberal. Both supporters and critics are concerned that he might again appoint a liberal Justice – and upset the balance of the Court. Another reason, it is claimed, for him not to appoint a new Justice, but to let his successor choose a nominee to reflect his (or indeed her) own political style and policies.

Unfortunately, Mr Obama did not see fit to go along with that eminently sensible line. After a suitable time, he announced his nominee for the vacant seat: Chief Judge of the Court of Appeals Merrick Garland. Judge Garland is a veteran Judge, who has been passed over for the Supreme Court  previously. He is a moderate, who enjoys cross party support. Of Jewish background, Judge Garland started as a prosecutor.

Given the nature of Mr Obama’s (surprise) nominee, some Republicans and those against any nomination are starting to come round to another Obama Associate Justice. Many, though, are still saying that this is a choice he should not have made. Further, many are threatening to stall the nomination process, or to reject his nominee in favour of waiting for the new President. Judge Garland has to be approved by Senate confirmation hearings, as amongst other parts of a lengthy process. The Senate is currently controlled by Republicans, whose leader, Mitch McConnell, has previously announced his determination to block or delay any nominee of Mr Obama’s.

Time will tell as to how the nomination process will progress. President Obama had a very rough ride in Congress over Medicare – and will have a rough ride over Judge Garland’s nomination as he leaves office. This could be his last legacy to America, and the American legal system – and it is a poisoned chalice.

In the UK, the nomination process is much simpler. A Committee us convened – and a name given to the Lord Chancellor for their approval. If approved, the nominee will be formally approved by the Queen.

In America, the process is more complicated, involving Senate confirmation hearings – and a great deal of politics. This time, there will be even more politics involved than usual – and even some controversy and heated disagreement, regardless of who takes up that vacant seat in the Supreme Court.

Doubtless Justice Tony Scalia would absolutely approve of such controversy.

 

“I love to argue. I’ve always loved to argue. And I love to point out the weaknesses of the opposing arguments. It may well be that I’m something of a shin kicker. It may well be that I’m something of a contrarian.”

Associate Justice Antonin Scalia (1936 – 2016)

The New Year saw old problems for the government regarding public healthcare.

It was not the annual ‘winter crisis’ in the NHS, it was not the white elephant of endless NHS funding and spending, and not even the increased row over the creeping privatisation of the NHS. The matter that returned like an unwanted Christmas gift was the row over the new proposed Junior Doctor contracts.

Proposed last year, the British Medical Association (BMA) considered many of the new terms and conditions (particularly over unsociable hours and pay) to be detrimental to new doctors and have been actively fighting against the new contracts. That has ended in industrial action being taken by doctors.  There has been great deal of public and media support and sympathy for doctors as the row has escalated throughout 2015. Making the decision to strike was not easy for the BMA, despite 98% of BMA members approving the strike action last November. It is contrary to what doctors believe in, and hold dear. Doctors want to be there for their patients, and to be caring for those who need medical attention – not out on strike seeking media attention.

January saw the talks between the BMA and the Department of Health finally break down. Although ACAS has been invited in to facilitate further talks, currently the strike actions will unfortunately go ahead. As talks continue- it is to be hoped that a consensus will be reached soon, to avoid further strikes, or similar industrial action.

As unfortunate as it is for patients, and for the political hopes and future of the beleaguered Health Secretary Jeremy Hunt MP (Con- South West Surrey), in a democracy, workers have the right to form and join unions, and for the relevant unions to lobby and act on their behalf. Further, British law absolutely entitles and sets out out the right of all workers to take industrial action, or to strike, if appropriate. Any attempts to contravene that, or to prevent that, are illegal and immoral. Of course, there are situations and times where that right to strike and form a union can be suspended (for example, in the British military, any industrial action is legally considered as a mutiny, and those involved are treated as mutineers) , or worked around- but those are extremely few and far between.

That right to unionise and strike was seen in the celebrated case of Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL6.

Prior to 1983, the British Government did not even acknowledge the existence of Government Communication HQ (GCHQ, the signals and electronic interception intelligence agency). Following a 1983 espionage scandal, the agency came into the public spotlight. It was subsequently decided that employees of the intelligence agency would not be allowed to join a trade union for national security reasons.

Inevitably, this attracted even more unwelcome attention. Many trade unions were outraged at this, including various Civil Service unions. Despite various campaigns, the government did not reverse its decision.

The Minister for the Civil Service (an ex offiico honororary role held by the Prime Minister) enacted this decision through an Order in Council, and thus exercised the Royal Prerogative. Indeed, it was the Prime Minister and a select few advisers who has made the decision, and enacted it, as opposed to a discussion with the full Cabinet. The Royal Prerogative is essentially a body of independent power and authority that the Sovereign has accumulated over the centuries. These days, Royal Prerogative powers are exercised by the Prime Minister and Executive on behalf of the Sovereign.

To challenge this decision, the Council of Civil Service Unions brought a judicial review against the government. Prior to the GCHQ Case, judges were extremely reluctant on legal grounds to hear judicial review cases against the state, despite acknowledging that the legal right and process existed. As such, it was unsurprising that the initial hearings were unsatisfactory to both sides – and that the Court of Appeal held that judicial review could not be used to challenge the exercise of the Royal Prerogative. The Court of Appeal also felt that national security was a clear function of the Executive, and as such it was inappropriate for the courts to intervene in this matter.

The surprise for both the Civil Service unions and the government came in the House of Lords. In his key judgment, which set the framework and groundwork for modern, 21st century judicial review, the three judges found that there was a case for judicial review.

Lord Diplock, in a notable speech that is still very relevant concerning judicial review, found that the Royal Prerogative can actually be challenged by a judicial review. This was a grave departure form previous legal precedent. However, the House of Lords was at pains to stress that not all exercise of Royal Prerogative could be challenged by judicial review; it was very much on a case by cases basis. Further, national security was still considered to be a political, rather than a legal, issue. As such, any use of the Royal Prerogative concerning national security cannot be challenged by a judicial review.

The GCHQ case is still significant today. Essentially, the House of Lords admitted that more of the government’s actions could be called to account via a judicial review, and that that area of law was still emerging and developing. There was a clear distinction made between the source of the government’s power (in this case, use of Royal Prerogative) and the nature of that power (in this case, a political power concerning national security).

Royal Prerogative powers can be challenged via a judicial review on the grounds of ‘illegality’, ‘irrationality’, or ‘procedural impropriety.’ New contracts for doctors needs no judicial review to be challenged on similar grounds, as the BMA and the medical profession seem to be demonstrating quite clearly.

Often not studied by the law student, but only encountered in niche areas of professional legal practice, Public International Law (PIL) can actually be very interesting.

Essentially, PIL concerns international law, diplomatic treaties, and all matters of legal matters that can arise between nations or across borders. The PIL expert has to deal with matters of international relations, and diplomatic conundrums.

On the plus side, PIL and related diplomacy often avoids conflict, and peacefully (and legally) soothes ruffled diplomatic feathers with a mass of legal jargon and legal issues. Such diplomacy, talks, agreements and application of PIL can reap great success; for example, August saw diplomatic relations and missions established between Cuba and the United States, and between Iran and the United Kingdom.

On the other hand, however, the niceties and finer details of PIL can be a headache for governments long after they have left office. Also, many nations can be accidentally dragged into a particular diplomatic mess by the application of the finer points of PIL.

The on-going saga of Australian Julian Assange is one such matter.

1Whilst giving a lecture in Stockholm in 2010, Wikileaks co- founder Julian Assange was accused of sexual assault. The Åklagarmyndigheten (Sweden’s Office of Public Prosecutions) issued an arrest warrant, and has sought to question him prior to any further legal action being taken ever since.

Later that year, Mr Assange and his co- conspirators at Wikileaks released classified US diplomatic cables and other sensitive documents. The release was a sensation, with many governments still feeling the fallout. Ever since, there have been greater calls for government transparency, particularly regarding the intelligence and diplomatic services.

Mr Assange was not so fortunate. Hailed by some as a hero, and by others as a traitor, 2010 saw him tied up in legal and diplomatic proceedings as Sweden sought his extradition. Although surrendering himself to police initially in London, he has long protested that his extradition to Sweden could result in his further extradition to the US on much more serious charges.

2012 saw the end of the battles in the UK courts, with the Supreme Court ruling against him. Mr Assange sought refuge in the Ecuadorian Embassy. He was later granted diplomatic asylum in Ecuador on human rights grounds; ironic given Ecuador’s rocky and tenuous relations with human rights and rule of law domestically. However, the UK refused to grant him safe passage to Ecuador. He has remained in the Embassy premises for the last three years, guarded by the Metropolitan Police in a round the clock operation that has cost the UK taxpayer nearly £12m to date.

It must be noted that Australia over the years has had very little, if any, comment to make. Canberra has not been overly keen to rush to the assistance or to provide consular aid to one of their citizens.

As of August 2015, that problem shows no sign of going away. Or does it?

The Swedish statute of limitations has now come into play. The charges of sexual molestation, and an additional accusation of unlawful coercion, have now been dropped against Mr Assange. The Åklagarmyndigheten was given until August 18 2015 to question him under the statute of limitations; that time has now passed. Further charges (including rape) against Mr Assange still remain, which will expire in 2020.

Further, the UK government has issued a formal protest to Ecuador about the impasse in Kensington. In a supplementary statement, FCO Minister Hugo Swire said of the leadership in Quito that it “must recognise that its decision to harbour Mr Assange more than three years ago has prevented the proper course of justice… It is completely unacceptable that the British taxpayer has had to foot the bill for this abuse of diplomatic relations.” Abuse of diplomatic relations it may be, but diplomatic and political asylum has a long (if unwelcome) history, and is a key principle of PIL.

Throughout, Mr Assange has always protested his innocence, and stated that the charges are politically motivated. He has offered to be formally interviewed by Swedish prosecutors in Ecuadorian territory. However, Sweden has insisted that this Swedish legal matter, that these Swedish criminal interviews and investigations are carried out in Sweden. However, under pressure to advance the investigations, Swedish prosecutors earlier this year agreed to interview Mr Assange in London, in Ecuadorian territory. Despite that, there has been a breakdown between Ecuador and Sweden regarding questioning Mr Assange. Both sides blame the other for the diplomatic impasse.

According to Swedish law, Mr Assange has yet to be formally charged. Under Swedish law, a suspect has to be questioned prior to any charges being paid against them. In this case, though, due to the demands of diplomacy, and PIL, getting access to their suspect is a barrier.

Despite this diplomatic merry go round, diplomatic relations between the three nations remain cordial and friendly. History has shown, however, that some such issues can result in long term ill will between nations. The last two centuries has seen a great deal of ill will in Latin America over what was often perceived as heavy handed interference from the United States, for example- particularly in Cuba.

The matter has been on-going for three years. When Mr Assange first sought diplomatic asylum in Ecuador, David Cameron led a Coalition government, with Nick Clegg as his Deputy, and William Hague was the unfortunate Foreign Secretary the matter was referred to. 2015 sees Mr Cameron still as Prime Minister (without the baggage of a Coalition), and the matter passed on to the new Foreign Secretary, Philip Hammond. Swedish Minister for Foreign Affairs Carl Bildt was probably relieved to hand over the Assange affair in 2014 to the current Foreign Minister, Margot Wallstrom. Similarly, outgoing Prime Minister Fredrik Reinfeldt was probably glad to leave this diplomatic issue in 2014 to his sucessor, Stefan Lofven. By contrast, Ecuador’s President has remained unchanged since 2005, being Rafael Correa, with Foreign Minister Ricardo Patino similarly still looking after the matter in Quito.

Governments come and go – but the situations and issues raised by the niceties of Public International Law will often outlast them, and be an unwelcome gift for new leaders.

Magna Carta at 800

June 18th, 2015 | Posted by admin in Law & Politics | News - (0 Comments)

Recently, Runnymede in Surrey saw the political and ruling elite of Britain descend upon its tranquil countryside yet again. They were there to commemorate and mark 800 years since another group of ruling elite had curbed the power of a monarch, and in doing so set out certain rights due to all the people.

The Queen was also in attendance- at the same place where her ancestor had signed a peace treaty with his nobles so long ago, and had altered the relations between ruler and ruled. Also in attendance was Dr Justin Welby, the Archbishop of Canterbury: it was a previous Archbishop of Canterbury, Stephen Langton, that had been instrumental in drawing up the document they were commemorating.

Magna Carta in itself is a remarkable document. Taken in the context of the medieval time that it was signed in, it is quite revolutionary and very much ahead of its time. In a stratified, hierarchical society, dominated by an Anglo –French elite, with the feudal system linking land ownership, duty and loyalty, and all layers society together, the very rights that it presupposes are enormous. The rights and freedoms we take for granted today are indeed often set out in Magna Carta or subsequently, and would have been unheard of by our medieval ancestors.

Although many of its 63 clauses have either been repealed, or become irrelevant over time, several clauses still remain significant today. Notably and famously, Clauses 39 and 40:

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

40. To no one will we sell, to no one will we refuse or delay, right or justice.

Much of the charter is essentially a peace agreement between the King and his barons. Provisions are also made for those affected or disposed by the fighting, and redress and restoration made. The Church also received protections under its terms- and justice and the rule of law is championed and upheld:

38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes.

45. We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well.

63. Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the art of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent.

Even 800 years on, such is its impact that Magna Carta is still very much relevant today. The freedoms it sets out, its efforts to uphold the law, and the charter’s essential sense of democracy are as relevant today as they were back in 1215.

In 1215, a council of barons had presented the document to King John to sign. In 2015, the Prime Minister merely delivered a speech. In his speech, Prime Minister David Cameron expressed his praise for Magna Carta- and his hopes for the future. That future- following on from the Queen’s Speech- involves the new government (now with a majority, and not sharing office space with another party) consulting upon a British Bill of rights. The Conservative plan is to eventually supersede the current Human Rights Act with a British Bill of Rights. The government points out the Human Rights Act (which they often pointed mention was introduced by Labour), based as it is on the European Convention on Human Rights, although worthy and effective in upholding human rights, has resulted in some interesting results.

Not only have the European courts called the UK to account over human rights issues previously, but many say that those European courts have strayed into areas of UK law that are best left to the UK courts to decide- such as prisoner voting. Further, strict application of the Human Rights Act has led to some legal verdicts and decisions that rights and proper under law- but morally and ethically questionable. In court, human rights arguments are regularly use by both sides, and on appeal. At law, lawyers regularly use and abuse human rights provisions to advance their client’s case, clearly oblivious to the deeper meaning of the legal clauses that they use so freely.

It is of course a typical British irony that the same Queen’s Speech that set out plans for consultations of a Bill of Rights also set out plans to debate a new laws (such as an Extremism Bill, inter alia) that would in some situations curb civic rights, and allow the state to eavesdrop and conduct surveillance upon the British people.

Further to that, the Queen’s Speech set out plans to debate such Bills– bit only referenced a consultation on a Bill of Rights. This reflects the fact that there is opposition (even amidst the Conservative back benches) to such a Bill, particularly amongst what is left of the Labour and Liberal Democrat benches. Many civil rights campaigners are even more vocal at any efforts to repeal the Human Rights Act in favour of such a Bill. The Prime Minister knows that consulting, debating and then pushing through such a Bill will prove to be an uphill struggle over the next few years. Indeed, he would probably find more consensus, and make better progress, with Chancellor Angel Merkel and President Francois Hollande concerning the UK’s exit from the EU, than with his own government and opposition concerning a UK Bill of Rights.

With that in mind, the Prime Minister would do well rot recall that we actually have a Bill of Rights, dating from 1689. This came into being following the Restoration of the Stuart monarchs, and sought to address King James II’s actions. The Bill called for free and open elections, sought to uphold the supremacy of the rule of law, amidst other provisions.

If the Prime Minister’s memory does not stretch that far, then maybe he should look back at one of his own speeches (quoted from above). He should recalls that we already have a system of rights in place, a system which has been referred to, and copied around the world. It has ben called the ‘cornerstone of liberty,’ and sets out the freedoms and rights of citizens.

The Prime Minister should save himself the trouble he will face with a Bill of Rights, and look to Magna Carta instead. Although the parchments it was written on are faded, tattered and torn 800 years on- it still looks good for its age.

2010 saw the rise of the Liberal Democrats. The run up to the General Election saw Nick Clegg become very popular: as a result, the Liberal Democrats were rewarded with a surge in voters, and Parliamentary seats. Three party politics had arrived in Westminster.

During the last few years, Lib Dem support has dwindled. Mr Clegg and the Lib Dems lost credibility during that time, particularly in the furore over university top up fees. All of a sudden, from being a credible third political party, the middle way, and the voice of the liberal 21st century, the Lib Dems over the last Parliament once again returned to their status as a small political party, and very much a junior member of the Coalition. That in itself is a shame, what with the great promise that Mr Clegg and his reinvigorated party showed.

However, the Lib Dems did leave a powerful legacy on the landscape of British politics. Three party politics, and coalition rule, is here to stay in the British Isles. Although the Lib Dems themselves are trailing at the polls, other smaller parties have come to prominence over recent months.  Although the Lib Dems have 57 seats currently, UKIP (with 4 MEP’s and 2 MP’s) has had a more vocal election campaign than the embattled Lib Dems. Admittedly, though, most of the UKIP publicity has arisen due to gaffes or the antics of its candidates, as opposed to proper politics.

As regards the traditional major parties, 2015 sees Labour and the Conservatives having effectively lost their dominance and control of the House of Commons. Although the polls, pundits and commentators may disagree in some areas, one matter upon which all sources agree upon is that the result of the May elections will see (once again) a hung Parliament, with neither Labour nor Conservatives able to secure the seats necessary to form a government.

Amidst the spectre of one of the two major parties coming cap in hand to the leaders of Plaid Cymru (Plaid; 1 MEP, and 3MP’s out of 40 Welsh seats in Westminster) or the Scottish National Party (SNP; six Westminster  seats currently), the Green Party,  or even UKIP, are the squabbles between the respective leaders. In scenes reminiscent of the playground, the various party leaders are refusing to do deals with each other following the election results, or are calling upon other party leaders to work with them to lock out one or other of the two major parties from Downing Street. In a complex series of statements, agreements and disagreements that makes the European alliances prior to World War I look easy, the only consensus between the various parties is in tackling or criticising Nigel Farage and UKIP. However, it is highly likely that whatever Parliament, hung or otherwise, is seen on May 8th, all of the various small parties will be only too eager to negotiate with the party (or parties) who will end up with the most Parliamentary seats, in efforts to secure support and power.

What was started in 2010 is set to continue; coalition politics, in one way or form, are here to stay. In the US, it is either the Republicans or Democrats who end up victorious in any of their plethora of elections. Their northern neighbours, by contrast, as regards their politics have followed the Canadian trend of being half English and half American. Three parties dominate the Canadian political landscape; their differences mean that coalition governments are very rare. However, Ottawa has a system of majority /minority government, where the majority party still has no clear Parliamentary majority, but is still in power. In the UK, that would be a hung Parliament, and efforts would be made to rectify the situation, as happened in 2010. However, in Canada, such a situation is (relatively) normal; the current Conservative government led by the unpopular Stephen Harper has been in minority/majority status since 2006, despite various elections.

In such situations, coalitions are rare. That is also the case for democracies like France, and formerly the UK. With the political upheavals since 2010, the UK is likely copy our Irish neighbours in accidentally adopting a Coalition government of sorts. That is also in line with countries like Japan and Israel.

Despite the practical issues with any coalition, such as the efforts needed to successfully pass legislation, or getting parliamentary consensus, or two differing political ideologies having to compromise on their ideals to achieve government decisions and policies, there are benefits to such a situation. Many academics and theorists consider that most democracies should adopt a coalition, and that a coalition is the most effective form of democracy. That is essentially because the voice of the people has clearly spoken- even if it is unsatisfactory in forming a government. No parliamentary majority, or the need for two or more political parties (or Belgium, where up to six parties gave formed a government) to combine, shows a great level of voter engagement to create such a political mess. The need to form a coalition shows, amongst others, that the people are not merely voting for the larger political parties, but are considering and choosing smaller regional parties (Plaid Cymru) or other political interests (Green Party) to represent them instead. As such, many theorists agree that a coalition is the purest form of democracy

Admittedly this flies on the face of the democracy championed by ancient Athens, in which every man had a say on every public matter, and matters were resolved by a simple majority vote or opinion. Over the millennia, democracy has clearly evolved away from that ideal, towards the ideal of proportional representation instead, as manifested by a coalition or majority/minority rule, so often seen in many democracies today.

With that evolution of democracy in mind, along with the clamour of the regions for more power, and 64 million people in the British Isles fed up with the current political system and leadership, British democracy itself will probably see great change over the next five years.

The first change being that it is unlikey, given public opinion and the polling data, that David Cameron will be driven to Buckingham Palace on the morning of May 8th to ask permission to form a government. The occupant of that car is currently unknown- but it is the choice of all of the people of the United Kingdom. Let us hope that collectively we choose wisely.

When considering lawyers, and the legal profession, people often forget about the Chartered Institute of Legal Executives (CILEx), and legal executives per se.

Qualified Legal Executives, or (as designated by the Institute) Chartered Legal Executives (CLE), are getting more and more. From their origins as legal secretaries, they became lawyers in their own rights over the last 100 years. Further, 2014/15 has seen them getting practice rights- currently in immigration, probate, litigation and conveyancing, more practice rights are expected. Indeed, there are now two CLE judges- Ian Ashley Smith, and Simon Lindsey (as of 2013 the Deputy District Judge on the South Eastern circuit). Further, more and more CLE’s are achieving partner or even senior partner status, in firms ranging from niche to large and nationwide.

More recognition is coming to CILEx. CLE’s are becoming more established and emerging from the shadows of being the little brother of solicitors and barristers. CLE’s are being brought into line as the equals of other lawyers, in a slow but steady change.

The training for CILEx is different. It enables the individual to work and study simultaneously, over several years part time and distance learning. The final hurdle is two years working as a trainee legal executive. It is cheaper in addition, and trainee places are easier to find than pupillage and training contracts. As such, it is an avenue to achieving the status and recognition of ‘qualified lawyer’ that many law students should (and indeed increasingly are) considering.

It is great to see such a change. Much credit must be given to CILEx’s recently retired CEO, Diane Burleigh OBE, and former President Nick Hanning, who have seen such a lot of change for Legal Executives. Mrs Burleigh particularly has been the architect behind the great recent successes of CILEx, along with other reformers.

As is so often the way, it is a combination of people, times and places, and the collective that creates change. History has shown that again and again. Wars are won by generals such as Wellington, Marlborough, Eisenhower and MacArthur- and equally by their soldiers, tactics, and equipment available at the time. The student revolution in 1963 Paris was as significant in changing modern France as Charles de Gaulle’s personality and uncompromising style of leadership. It was amidst the backdrop of a shattered and war weary Germany and Eastern Europe that the USSR was able to effectively partition the whole of Europe by the Iron Curtain. The underground drinking under prohibition, and the birth of the jazz era had as much impact on 20th Century America as great leaders and reformers such as FDR, Rev Martin Luther King and Senator Harvey Milk. General Franco and Dr Salazar had as great a social, political and cultural impact on their native Spain and Portugal with their autocratic style of ruling their authoritarian regimes in the 20th Century as did domestic and international politics and economic and social changes.

Great leaders- the people- and times and places. All three work together in bringing change and reform, sometimes slowly (the EU), sometimes rapidly (9/11). Such change is either necessary and beneficial- or to the detriment of many. However, change is brought about.

The only area where that is not the case is law. The law can only be changed by passing Acts of Parliament, and the ruling of judges. Most judges try to avoid drastic change; there are exceptions, such as Lord Denning and Lord Diplock, who were bold in their judgements, and consciously introduced legal changes. Other such judicial reformers are Lady Hale and Sir James Munby; both of them are more liberal in their verdicts, and seek to be empathetic in their application of the law. Judges such as the latter two acknowledge that times and society has changed (for example, Lady Hale as regards cohabiting couples), and often endeavour to hand down verdicts reflecting that. Law is, essentially, judge made, due to the time worn custom of following prior decided case law and legal precedence.

There is another element to this. Judges have to hand down verdicts in line with the law. Judges have to apply and interpret law in line with Acts of Parliament. As all students of constitutional law know, law is made by Parliament, debated by lawyers, and applied by judges. As such, it very much the collective (MP’s, as returned to Parliament by the electorate) who creates law and implements changes. Indeed, those Acts of Parliament, and repeals or amendments, of Acts of Parliament, are a reflection of current, modern and relevant social, cultural, political and economic concerns.

As such, despite appearances to the contrary, law is also a reflection of leaders (judges), the collective (MP’s) and times.

Indeed, so are other legal changes aside from application of the law- such as CILEx. Diane Burleigh, et al, as well as Legal Executives and supporters, have all done amazing work in raising the recognition of CILEx. Further, modern times, and evolutions as regards legal jobs and job descriptions, has also greatly aided the rise and increased recognition of CILEx. Tougher times for law graduates has also made more consider CILEx.

Effective change often takes time. CILEx has seen great and dynamic changes in only a few decades. There is clearly a great future for CILEx and Legal Executives. As to the exact nature of these future developments- nobody can tell. Similarly, no one can tell what the changes to the constantly evolving legal sector will be over the next few decades.

New Year- Old Traditions.

January 12th, 2015 | Posted by admin in Legal reflections - (0 Comments)

As the world warmly and enthusiastically welcomed in 2015, and the start of a new year, with new hopes and challenges, some had a more dramatic start to 2015 than others: namely, over in Russia, opposition blogger and Kremlin critic Alexey Navalny. Mr Navalny and his brother Oleg Navalny had previously been found guilty in for embezzling and misappropriating nearly $500,000 of state owned timber a few years earlier- in what Mr Navalny and his supporters claim were fabricated charges. A long-time critic of President Putin and the Russian government, Mr Navalny has in previous years been the architect of anti-Kremlin street protests, and has long campaigned (quite vocally) against government corruption. The beginning of January saw the Navalny brothers being sentenced for the corruption charges. Both were fined heavily, with Alexey Navalny being given a three and half years suspended sentence- and Oleg Navalny been given a three and half years jail term.

Some supporters gathered shortly after, to protest against the severity of the politically motivated sentences (with many also considering that the severity of Oleg Navalny’s sentence was merely a ploy to get to Alexey Navalny). They were joined by a surprise visitor; Alexey Navalny himself. After being returned home, Mr Navalny had promptly and very openly returned to central Moscow to protest against his own sentence. He was equally promptly arrested, and returned home under house arrest. Many fear that the protest in Manezhnaya Square is in itself illegal, as the organisers did not have the time to apply for permission to hold the rally- necessary under Russian law. Once again, President Putin and the Kremlin are seemingly (and very overtly) seeking to crush all form of opposition.

In contrast to Russia, political parties and politicians in the United Kingdom welcome opposition. A vocal opposition is as important as the government of the day. Protesters, opposition group leaders, pressure groups, and similar are very much part of the British political landscape- and are welcomed. Indeed, in an open democracy, such opposition is absolutely necessary. All points of view need to have a voice; critics of the government need to be heard, and their message (even if distasteful) needs to be put out- in an open democracy.

To that end, the complicated and often archaic system and traditions that make up the British legal system safeguard and protect that voice of protest, that opposing point of view. Quite often those in power do not heed that voice of protest, or often turn a blind eye to the will of the people (such as the opposition to the Iraq war); however, that voice of protest is expressed. That voice of protest is not repressed, and those who oppose the government are not arrested on trumped up charges, and sentenced after show trials (such as in the former USSR, or modern China).

The law protects that voice of opposition. The rule of law also serves to protect and uphold certain freedoms- such as the freedom of speech, and expression, and a free and independent press. As tragic as the recent shootings in France at the offices of Charlie Hebdo were, that attack just shows how important that freedom of expression is. Similarly to the voice of opposition, the law serves to protect and uphold such freedoms and rights.

That voice of opposition, the opinions voiced so vocally, often comes, surprisingly and most vocally, from the judges themselves. Over in Russia, many activists have been arrested, and tried. In most cases, their trials have been not fully open or impartial. Quite often, there is some suspicion that the Russian judges might have been influenced by more than the mere facts of the case and the code of Russian law. In the UK, by contrast, the judiciary has always been fiercely independent of Parliament.

For many centuries, the British judiciary has fought to preserve their independence, and their right to call the government to account- and indeed to criticise the government, or to expose and deal with failings of the government. Students of constitutional law will be able to reel off many cases where judges have called Parliament to account, and brought Parliament within the rule of law. Lord Diplock and other exponents of judicial review, Lady Hale’s often subtle criticisms, the much loved Lord Denning, and very recently Sir James Munby’s wrath at the state of the Family Division are but some examples of this fine legal tradition.

The judges often end up examining the actions of government, and calling ministers and MP’s to account. Quite often, the judges have to bring Parliament back into the rule of law, an advise government that their actions- or proposed Acts of Parliament- are illegal. Senior judges have the unenviable task of ensuring that legislation, regulations and Ministerial policies are within the law, either UK law, EU law, or international law (such as UN resolutions and conventions).

Under the Russian constitution and legal code, it is similar for the Russian judiciary. However, it is evident that the Russian judiciary might not be as impartial and independent as they should be; either that, or their application of the law in some cases (such as regarding opponents to the Kremlin) is overly harsh. As regards calling the Kremlin and the Duma (Russian parliament) to account- once again, it seems as if there might be limitations on that particular responsibility, given recent events.

Alternatively, perhaps the Duma and the Kremlin are simply not listening to the judges informing them as regards the rule of law. After all, it is not as if the British government is a paragon of virtue in that regard either. Quite often, the considered legal opinion of senior British judges has similarly fallen on deaf ears in Westminster (once again, the Iraq war serves as a good example).

Be it 1215, or 2015, be it Moscow or London- democratic governments, although held to account by the judiciary and the rule of law, often seem to have proud tradition of acting contrary to the very laws and rules that they themselves create and enact.

In politics and international relations, some matters can be long and on-going, and can rumble on for years. Former Chief Whip Andrew Mitchell MP was initially quizzed over the plebgate scandal in 2012; the matter was still going through the courts in 2014. Sometimes, over time the matter can fade out of public and political sight; what of Julian Assange, Bradley (now Chelsea) Manning and Edward Snowden? Their revelations were explosive, creating tensions in international relations, and attracted criticism for the governments exposed. However- where are they now? Their names and deeds have largely faded out of public perception- but their legacy has not.

As regards their legacy, 2014 saw the three agencies of British Intelligence under public and governmental scrutiny as never before, as a result of the allegations of 2013. Indeed, the Chiefs of MI5, SIS and GCHQ were grilled relentlessly (and publicly) before the Parliamentary Intelligence and Security Committee in November. The spymasters defended themselves robustly, stating clearly that their actions helped protect and safeguard the UK and democracy. A closed court, however, cleared and vindicated the intelligence agencies over the matters deriving from the whistleblowers of previous years in early December. As such, the matter of intrusive intelligence gathering and electronic interceptions can hopefully be laid to rest, and the intelligence services allowed to retreat again into the shadows where they operate so successfully.

That was before, allegations and court cases over British involvement in, or knowledge of, torture was brought up- and a US Senate report exposed CIA torture. The report also pointed to a degree of British involvement in the torture or apprehension of terror suspects. As such, 2015 will once again see the three British Intelligence agencies on the defensive, and before the spotlight they hate, and before the government oversight which is so vital. Given that 2015 sees and election in the UK, and the beginning of the US Presidential election cycle, doubtless many political hopefuls will be seeking to wring political capital out of the scandal.

However, some matters in politics and international relations have a nasty habit of not going away. Rather, some matters can escalate. Alternatively, as the matter develops, the initial matter can fade, as new twists emerge, or new elements become significant. As such, diplomats and commentators can still be dealing with the same matter several years later.

The writer well remembers writing about an uprising in Ukraine in December 2013. The people of Ukraine were peacefully protesting to their leaders about a decision whether a trade agreement should be signed with the EU, at the risk of angering their former Russian overlords and masters. As Christmas 2013 passed, instead of fading away, the matter became more serious. The embattled President was forced to step down and flee. 2014 saw matters develop to such an extent that Russia was able to annex the Crimea region of Ukraine. Although this attracted great international condemnation, and a chorus of indignation from commentators, diplomats and the UN, no decisive action was taken against Moscow for that act. This was in keeping with a similar lack of action in recent years against leaders such as President al Assad in Syria, and Kim Jong- un in North Korea.

As Russia looked ever westwards, with fighting flaring up in various eastern European regions next to Russia, and military over flights and increased naval activity across Europe and indeed Canada and the Arctic, the West, and the UN, resorted to diplomacy and sanctions. Although President Putin received the cold shoulder and was vilified (politely) at the G20 in Brisbane in November, little firm action was taken. However, it became apparent that some troubles in Russia’s economy are now emerging as 2014 draws to an end. Some put that down to sanctions finally having an effect; others are less sure that sanctions would actually do much to affect the seventh largest global economy, worth an estimated $2.113 trillion in 2013.

What was an internal uprising in December 2013 is now a matter of global security concern in December 2014. What will 2015 bring as regards Ukraine, Crimea, and the surrounding region? What twists and turns will be seen on the international stage?

Despite many educated guesses, it is hard to tell. Other international matters (such as IS in Syria and Iraq) will also need to be tackled head on in 2015, as those matters also escalate further, with no sign of ceasing. Lessons from previous aggressors, and lessons learnt from fighting similar extremists and insurgents need to be applied, not forgotten, if IS is to be successfully dealt with.

2014 was also a significant matter for internal British politics. After the historic independence referendum in Scotland, it is quite clear that great governmental and constitutional reform and change will be coming to the British Isles over the life of the next parliament (regardless of whatever party or parties is in power). Along with a reduction in public spending set to make the precious spending cuts look like a drop in the ocean, local government will become more powerful.

However, those matters of internal UK politics are also for 2015. Before the politicians and civil servants start planning and discussing such matters, let alone implementing the necessary changes, 2014 still has a few more weeks left to run.

During that time, the writer would like to wish everyone every joy and happiness over the Christmas season, and all peace and prosperity for 2015- whatever the New Year might bring.

Across the Atlantic, aside from the long drawn out ritual and circus that is the US Presidential election, throughout the US political calendar there are always elections- so it seems to the politically apathetic British. If not for state governor, then congressmen seem to have to face their electors on a regular basis. Even the Senate seems to be plagued with re-elections. As such, it is amazing that the US political machine ever gets anything done.

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Guy Fawkes Night over here in the UK was marked in the traditional way, with fireworks. Across the Atlantic, the only fireworks seen was at the ballot box as America voted in the mid- term elections. 2014’s mid- terms saw many (by but no means all) congressmen and senators up for re- election. Indeed, several state governors also were voted on – if anything, the most crucial one; the state governor is more relevant to the lives of ordinary Americans than the Presidency.

As the results filtered in, and were pounced upon by political analysts, media and commentators with the fervour usually displayed by predators pouncing on their prey, one thing was evident. For the US politicly scene, it was business as usual; there were no great changes, or surprises. By and large, the US voted according to predictable voter trends. It was also similar to the last midterms, in 2010, when the Democrats suffered a humiliating defeat, Again, that was predictable; usually, the party in power does lose support during the mid terms. The point of note, both in 2010 and now again in 2014, was the severity of the Democrat defeat.

As 2012 was revisited, Guy Fawkes Night saw the Democrats delivered an even greater electoral defeat. The Republicans took control of the Senate, with 52 senators to 45. In the House of Representatives, of 435 seats, the Republicans ended the night with 243 seats, to 179 for the Democrats. With such control of Congress, the Republicans can now make the last two tears of his term in office very painful for President Obama- even without the opinionated, uncompromising John A Boehmer.

As per usual in US politics, the mid terms have to be studied in the context of the upcoming race for the White House- which seemingly begins in mid 2015, so just around the corner. Once again, a voter trend was seen. The mid terms can potentially be seen as the American public rejecting Obama as they rejected Bush six years ago. After two presidents the opposite end of the political spectrum, what is next for the Executive branch? Ultimately, a middle of the road candidate would would be preferable. Someone who is both a realist, and an idealist- but definitely someone who can reach out across the aisle, and engage in bi-partisan politics.

The mid terms showed the American political way- an inherently complicated system which delivers true democracy via a series of perpetual elections for Governors, Senators, Congressmen, and President. Although delivering truly a ‘government of the people, by the people, for the people,’ such a system does give rise to little change in politics, policies, or procedures. Before policies and procedures can take any effect, it is time for the next round of elections. As such, leaders will rarely (but by no means never) back anything controversial, as they ultimately want re-election. This is especially so given the balance of power between Executive and Congress, and which party has control of the various institutions of state. By contrast, the British Houses of Parliament, Supreme Court, Crown and Executive (government of the day) form an intricate and careful separation of power between the various institutions of state. It is an intricate system of mutual checks and balances formed over a millennia.

For America, it is the same. Although not so developed and advanced, Congress, the Presidency, the Supreme Court, and the state Governors keep a similar check on each other. At all times, it is the US Constitution that is firmly in the background, a guiding beacon for each aspect of US government.

Although cumbersome and election heavy, that is what the Americans have. By having to vote constantly, there is great voter engagement- more so than in the UK. It is that constant voting which allows for continuity and constancy, for things to keep on in the same way and manner. This is by contrast to the UK, where a newly elected government can (by and large) enact any policy, and carry in out for five years- only for the next government to alter or overturn such policy. The result of the latter is to cause governmental gridlock, as nothing gets gone- the result of the former is to ensure movement and continuity.

Both systems, however, are based around the people- the voters who put the politicians in office. As the UK celebrates Guy Fawkes night every November 5th, they celebrate victory over a plot to overthrow that very same principle of democratic representation.

 

America, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it

 (Abraham Lincoln)

“A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”

Since Woodrow Wilson set out the 14 Points at the Paris Peace Conferences in 1919, self determination has been an ideal throughout the 20th century. The right and ability of a people or a nation to determine their own fate, and to decide their own identity, has been championed throughout the last turbulent century.

1Indeed, as the map of Europe was redrawn several times throughout the twentieth century, such a matter has become increasingly important. As the Austro Hungarian Empire collapsed, and the regions inside it forged their own national identity free from that of their former rulers, many hoped that their own nationalistic dreams would be realised and achieved. Two Worlds Wars, and the subsequent divisions throughout Europe proved those dreams to be wrong.

Since the Berlin Wall fell in 1989, such a hope returned to Europe. The previous centuries of (often despotic) foreign rule came to an end, to be replaced with strong nationalistic sentiments, and a sense of freedom and optimism. The last two decades have only served to strengthen and support such hopes and dreams- born out of fear and uncertainty all those years ago. Europe is now a thriving collective of individual nation states, all of them celebrating and championing their own unique culture, language and heritage. Whatever the political, economic and social impart of the European Union, Europe is united (although very disharmoniously in a troubled and often flawed political and economic union) in a through the disunity of all these disparate, and separate nation states.

The fall of the USSR led to the creation of the modern Europe, with a remarkable degree of success. As a fulfilment of his dream of national self determination, President Woodrow Wilson would be proud. He himself was from a nation that rejected their own imperial overlords, and over the centuries became their own distinctive nation, founded on an ideal of freedom and independence as opposed to a national identity.

It is not just in Europe; such an ideal is global. Just off the tip of South America lies a rocky, windswept chain of islands, known as Las Malvinas to Argentina, and the Falklands to the UK. For several centuries their ownership has been disputed. However, 2013 saw a landmark referendum held on the Islands (population 2932- and several thousand penguins and sheep), in which 99.8% voted to remain British. After centuries of disputed ownership, both London and Buenos Aires could not get a more clear signal than that as regards how the Islander self identify, and as to their nationalist sentiments. They have exercised their right to self determination. Of course, the matter of the Falklands is not as straightforward as that- and neither will it be resolved as easily.

As the USSR collapsed, several of its regions (such as Chechnya, Moldova, South Ossetia, and Donetsk) expressed such nationalistic sentiments. The intervening decades have seen great political posturing, military conflicts, and social upheaval as those and surrounding regions have attempted (with varying degrees of success) to achieve that dream of a nation state, backed with a distinct national identity.

The collapse of the British Empire similarly saw regions seeking their own independence and aspiring to self determination. In the Far East, the foundation of Malaysia following World War II had it roots in the amalgamation by the UN of the former British colonies of North Borneo and Sarawak- with their consent to unite and to form a nation together. It must be noted that this was arranged at a political level, without the people being consulted directly via a referendum, but with great popular support.

Self determination, though, can turn very ugly. The breakup of Yugoslavia, and the subsequent civil wars in the various regions along ethnic lines, goes to show just how far people will go to establish and defend their own culture and national identity. Self determination is a wonderful ideal- but the route to achieving it can be bloody and painful.

Aside from the human rights upheld by the European Convention on Human Rights, and similar legislation, the right to self determination is often the most missed or overlooked right. That right of citizens to choose their own national identity, to follow and uphold their own national traditions and heritage freely, openly and without fear is extremely important. As a collective right, it is crucial

In making that choice, many factors come into play. Some may be straightforward, others less so. Some factors might be cultural, or a matter of tradition. Language plays a part – as does economic matters. Some such matters will be linked to a neighbouring state, or to past colonisers- some factors unique to that region.

Although an issue that has very much been a part of international politics and relations for centuries until it is was clearly articulated by President Wilson, self determination has been a key theme throughout the 20th century, particularly in Europe. Indeed, the recent vote in Scotland, and nationalistic mutters in areas as diverse as Bavaria and Catalonia, shows that self determination is still as important today as it was when set out at Versailles in 1919.

Always an emotive issue, self determination does have the great advantage that it gives the people the right to have their say, and to make their own collective decision as regards their national identity. Admittedly, though, self determination can cause more problems than it solves- for example, the divisions in Northern Ireland. Rarely, will the result of such a collective decision result in everyone and all parties being happy with the outcome.

However (with apologies to Abraham Lincoln), to (mis)quote another United States President, “You can [please] all the people some of the time, and some of the people all the time, but you cannot [please] all the people all the time.”