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The long awaited case of R (on the Application of Miller & Dos Santos) vs Secretary of State for Exiting the European Union, as with most significant Supreme Court cases and matters, is in reality not about its subject matter – but rather a different legal matter. This case is not necessarily about Brexit – it is more about the finer niceties of Constitutional Law.

It is less about the pros and cons of Brexit – but rather about the delineation of the power of the Executive and the Government. The Government was relying on ancient Royal Prerogative powers to push through legislation concerning Brexit – such as giving Notice under Article 50.1 – 50.3 of the Treaty on the European Union (1993) – and leaving any relevant EU treaties. However, the counter argument advanced was that leaving the various treaties would be so significant, and remove existing domestic rights under secondary EU and UK legislation from British citizens, that giving Notice effectively lay beyond the scope of the use of any such royal prerogative powers.

It was readily agreed in Court that the Government has the right to make and unmake international treaties, using such powers, without recourse to Parliament. This has been proved categorically and legally previously. Quoting from the verdict:

(34) The Secretary of State’s case is based on the existence of the well-established  prerogative powers of the Crown to enter into and to withdraw from treaties. He contends that ministers are entitled to exercise this power in relation to the EU Treaties, and therefore to give Notice without the need for any prior legislation. Following the giving of Notice by the end of March 2017, ministers intend that a “Great Repeal Bill” will be laid before Parliament. This will repeal the 1972 Act [of Accession into the EU] and, wherever practical, it will convert existing EU law into domestic law at least for a transitional period. Under article 50, withdrawal will occur not more than two years after the Notice is given (unless that period is extended by unanimous agreement among the other member states), and it is intended that the Great Repeal Bill will come into force at that point.

 

(36) [Mrs Miller’s] case in that connection is that when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. In particular, he said, some of the legal rights which the applicants enjoy under EU law will come to an end. This, he submitted, means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law.

In the joint verdict of eight of the 11 Justices (Lord Reed, Lord Carnwath and Lord Hughes disagreed, giving a dissenting judgement), Lord Neuberger early on unintentionally sets out the Supreme Court position on this case. Seemingly quite repetitively, he covers similar legal grounds until his conclusion. What the Court emphasises is that Government has the absolute right to make and unmake treaties and similar by use of Royal Prerogative, Government has no right to alter domestic legislation except without reference to Parliament, the law makers. Such ground was established at the High Court hearings, and was seemingly re-usef and re-presented here. Inevitably, Lord Neuberger quotes Lord Oliver’s famous line from the Tin Council case on Royal Prerogative powers; “As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making  of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of  Parliament”

Equally inevitably, Sir Edward Coke’s CJ famous line from the Case of Proclamations (1610) is also referred to:

(44) “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”. Although this statement may have been controversial at the time, it had become firmly established by the end of that century. In England and Wales, the Bill of Rights 1688 confirmed that “the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall” and that “the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall”.

Following that, the eventual conclusion was fairly inevitable. It was established that the European Communities Act (1972) was an Act of Parliament, and not necessarily an international treaty – and consequently cannot be repealed without Parliamentary consent. Similarly, the rights – under EU and domestic law- conferred cannot be disposed off without Parliamentary consent.

Although the case was eagerly anticipated, and seen as the key case in modern times concerning lonstitutional law – the reality is that it was not overly significant. No new areas of law or legal policy were set out – merely a confirmation of exisiting legal principles and theories regarding constitutional law and practice. However, once again the courts have seen fit to encroach further upon royal prerogative powers, and to effectively limit the scope of such powers in a subtle but continuing theme over the last several hundred years.

Following the unsurprising and slightly uninspiring verdict, where does this leave Brexit?

Following the verdict, the Government now needs to debate an exit from the EU prior to the intended filing of Notice at the end of March. This will be an absolute Parliamentary nightmare.  Both Government and Opposition need to come up with a party line and policy points regarding Brexit. For the sake of stability, and sending a message of cohesiveness to the EU , and foreign allies and potential future trading partners, that line needs to be kept by all MP’s. Being realistic, the Referendum has exposed massive party divides on the very EU matter; indeed, Jeremy Corbyn has still yet to instill either party unity or devise an EU policy. As such, the necessary unity will be very hard to find. The debate will only serve to expose greater divides in both parties, and will probably see more internal squabbling and than cross party debate.

Further, it is only to be expected that the Scottish Nationalist Party (SNP) will fight the matter of Brexit at every possible stage. Under the fiery leadership of Nicola Sturgeon, Scotland will only oppose any moves towards Brexit. Given the vocal nature of the SNP voice in Westminster, that will only foster more delay, and more division. At this time, delay is counter productive to any Brexit negotitations; delay will only serve to give the whole matter greater political and economic uncertainty.

In any event, the Article 50 case is now settled legally. In the end, the case was down to a few existing and proven points of constitutional law. Article 50 is now a political matter. As the upcoming Parliamentary debate will indirectly start the withdrawal from the EU Treaties, that debate will ultimately be of much more constitutional and democratic significance than this case was.

The last word goes to Lord David Neuberger, who in his preamble to delivering today’s verdict said that the “referendum is of great political significance, but the Act of Parliament which established it did not say what should happen as a result.”

As a lawyer there is sometimes a clash between what the lawyer wants to achieve and between what the client wants to achieve – and the methods or ways involved. Quite often, it is mainly a matter of the different knowledge and perspectives of lawyer and client.

Sonetimes it can be quite the juggling act, both acting in the client’s best interests at law (which can manifest itself in a strange way to the layman) and taking their instructions, and carrying out what the client has asked the lawyer to deliver on. For the lawyer, in some cases that can be a complete contradiction. However, clever trickery and linking disparate concepts and ideas can actually achieve both. With a labyrinthine and serpentine logic, it is possible to link, connect and achieve both.

A good example here could be a blog writer wanting to write about the recent shock election of Donald Trump as President of the United States – but being instructed by an editor to write about accident at work law. How to link those two together?

To take the President Elect first – much has already been written and said about Mr Trump. After eight years of Democratic rule under President Obama, January will see a new version of Republican rule enter the White House. After all the advances in issues such as international relations (re-opening Embassies in Iran and Cuba for example), withdrawing from Afghanistan, tackling (admittedly with mixed success) domestic issues such as race relations, poverty, and a stagnant economy, the fear for many is that Mr Trump will belligerently pursue an agenda which will take America backwards under the guise of taking America forward.

However, since the shock election he has been noticeably less vocal; it is as if the reality that he will soon be President is fully sinking in. Instead of a brash, loud buffoon Mr Trump is not being as characteristically outspoken as he appoints his top team; his appointments in themselves are worthy of more mention, but word length will not permit such a digression. Maybe the slightly subdued President Elect is what will be seen in the White House.

indexWith control over Senate and the Representatives, and a Supreme Court Justice to appoint, Mr Trump will be in an enviable position, unlike many other Presidents before him, to push legislation through, and to accomplish things without gridlock in Congress. Elected on a mandate to effect change, and to move away from the traditional politics of Washington DC, it is unlikely that he will actually effect the change the voters wanted, given vested political interests, and the power of the lobbyists in Washington DC. What dramatic change he might effect will probably only serve to divide America further, and in seeking to pursue economic protectionism he will probably only succeed in the long term in causing more economic and social issues in an increasingly isolationist America. Given the spectre of a rising China and a formidable Russia, the world will be devoid of American leadership just at a time when it is needed the most to counter those two growing super powers.

What US media and commentators have also picked up on is the sheer scale of Mr Trump’s business interests and holdings globally. As President, how will this impact upon his foreign and economic policies? Mr Trump himself has only responded by contradictory statements, and seeking to avoid the matter, hoping it will go away of its own accord. Putting his businesses into blind trusts administered by his family is an option he has so far mostly declined to do – despite many Presidents before him doing just that. Legally and otherwise unaware of how their assets and businesses are being run and organised, such an arrangement avoids (for the most part) conflicts of interest between the Oval Office and private business concerns. There are other measures, such as stepping down from his companies for the duration of his Presidency, which could also avoid any embarrassment.

The intriguing thing here is that Mr Trump will also still be considered legally as an employer unless he divests himself of his businesses. As such, he will have liabilities and responsibilities, just like every other employer. He will be held accountable under law for providing a workplace free from discrimination and harassment, adequate training of staff – and a workplace that is safe to work in. Mr Trump, and the management of his various companies, will be held responsible under law for taking all reasonable measures to ensure a workplace that is safe to work in. Any accident at work is often held to be due to the negligence of the management, with that management being held liable, and often having to admit their negligence and pay out compensation for any accidents at work. It would be more than slightly embarrassing if the Oval Office was implicated in any workplace accident compensation claims.

Admittedly it is highly unlikely for any such compensation claim to extend as far up as Mr Trump personally – it is not impossible legally. It is also not impossible for a political adversary to use such workplace issues or claims at one of the President’s many businesses to score a political point.

In British law, an employee can claim compensation for injuries they received in an accident at work that occurred within the last three years that was not their fault. Additional criteria would include the traditional personal injury criteria under tort law, such as duty of care (often implied under Employer Liability), breach, causation (always complicated), remoteness (The Wagon Mound), and so on. American law is different for personal injury – as is personal injury law in other jurisdictions. It would be so easy for the Trump holding companies based in the US to be tangled in employment related litigation in a foreign jurisdiction. If the President were to take certain “unrelated” diplomatic actions in relation to that country – then his impartiality would be more than called into question.

For those and many other reasons Mr Trump needs to divest himself of his business interests, just for the next few tears. Such a necessity is well known to those officials who have actually held any elected public office in the US. A failure to do so could probably result in impeachment hearings in the Senate for conflicts of interests: as if Mr Trump’s existing and predicted actions are not probably going to lead to impeachment already.

What this further demonstrates – is that it is perfectly possible by clever rhetoric and argument to link two disparate ideas and concepts. As such, the lawyer can fulfil both their professional duties, and their duties to their client, which are not always one and the same.

It is often said that a week is a long time in politics. This last week, starting from June 23, must seem like an eternity for some in Westminster. Indeed, the unfolding dramas continue in a manner more akin to a soap opera than national politics.

As the morning of June 24th unfolded, the results were as predicted. The economy was under threat, and the pound fell dramatically in value. Shockwaves were felt as far afield as Asia on the financial markets.

It was further expected that Prime Minister David Cameron‘s position might become untenable. As the voting swung towards Leave, questions about his future were already being asked. What was unexpected was the nature of his departure from No 10. In a clearly emotive speech, he announced his intention to resign in the autumn, and to allow a new leadership to carry on the the task started. In a dignified manner, Mr Cameron had never acted in more Prime Ministerial manner as he announced his resignation.

Furthermore, with the eyes of the world upon him, seeking reassurance in a time of uncertainty – he delivered. Although he merely promised more uncertainty by delaying invoking Article 50, and by delaying his own departure, it was the reassurance that was needed. The certainty of the uncertainty had a calming effect on politicians and the financial markets alike. By delaying making any decision, by delaying showing firm leadership at a tense time – ironically Mr Cameron showed himself to be a great British leader and Prime Minister. His calm approach at a time of uncertainty has earned him a place in the history books. It was a fine example of one of those times when the finest form of leadership – is to do nothing.

His opposite number in Her Majesty’s Loyal Opposition was not so fortunate. Whereas Mr Cameron resigned as Prime Minister with great dignity and on his own terms – Jeremy Corbyn had to endure a slow whispering campaign against him. As evening fell on June 24, that had turned into a vote of no confidence that was to be tabled against him. Depite insisting on, and enforcing, Labour party discipline in recent months, a lack of firm, clear leadership and direction in the Referendum campaigning left him open to criticism from his own party. By departing, Mr Cameron secured the support of his party; by remaining and not confronting opposition, Mr Corbyn will be replaced in a leadership coup that is usually seen in the Conservative party.

Always keen to try and show Labour as united, Mr Corbyn’s big mistake was to dismiss the greatly respected Hilary Benn as Shadow Foreign Secretary. Resignations followed at such pace that even the ever watchful political media could hardly keep up. At time of writing, Angela Eagle, former Shadow Secretary for Business Innovation & Skills, seems likely to replace him in an ongoing leadership challenge.The question has to be asked concerning the formidable Tom Watson, and why he has not stepped forward at this time. Despite record unpopularity amidst his MP’s, Mr Corbyn refuses to leave, clinging on to the leadership like a shipwrecked sailor clinging to wreckage. Despite having plenty of opportunity to leave with dignity and a legacy, now Mr Corbyn’s only legacy will be that he will be pushed out of office in a hasty, undignified manner. Mr Cameron, by contrast, leaves with dignity and grace after willing stepping down. Of course, Mr Cameron is only too painfully aware of Conservative party history regarding toppling party leaders.

The question now remains as to who will lead the Conservative party – and the nation. Already the race had begun, with some expected names throwing their hats into the ring. What was unexpected was Boris Johnson’s surprise that he himself would not run. The question arising from that is – what will be do next? A political heavyweight like Mr Johnson will not be out of the public eye long, and will need to fill a significantly important role given his experience, stature and status. But what role?

The other noticeable absence from the spotlight has been the much criticised Chancellor of the Exchequer, George Osborne. Aside from hastily ruling himself out of any leadership battle, he had been remarkably quiet, emerging only to reassure jittery financial markets – with great effect, it must be noted. Similar to Mr Johnson, a question also hangs over Mr Osborne. A guess would be that he is seeking to remain as Chancellor in the next administration, and as such is keeping quiet. It would indeed be sensible for the Chancellor of the Exchequer to remain unchanged at a time of economic uncertainty.

Meanwhile, the other Opposition party seems more united and stronger than ever. Under the leadership of Nicola Sturgeon (the only Westminster leader to still be in power after the vote), from Brussels to Edinburgh the SNP had made its voice heard loud and clear. Firmly against Brexit, it is quite clear that the SNP will block or delay any efforts in that regard. Of the major political parties nationwide, it is the SNP who seems the most on point, on message and in control; quite clearly a contender to be officially called the real Opposition party in Parliament.

Another unexpected matter arising was the time frame the Prime Minister set out. He (and many others) were at pains to stress that it is business as normal currently; everything remains exactly the same for now. It is in the autumn that things will start to happen, and a negotiation team will start the long process surrounding leaving the EU. That time frame, although vague and perhaps undesirable, is very welcome. Although uncertain, it provides the certainty and framework that many on the Continent and domestically wanted. That vague timeframe was of great reassurance to both the people and the economy. Further, the delay in any proceedings gives everyone a chance. It gives the financial markets a chance to recover from the initial shock of the news. It give companies big and small, local and international, a chance to consider how to react to the news. It gives politicians and diplomats both in the UK and the EU, and in other relevant and concerned nations, to consider their positions. Indeed, the intervening months will be a perfect opportunity for secret and behind closed door talks to take place, so that initial agreements can be made, and disagreements discussed. When the actual formalities actually begin in October – the impact will not be so dramatic. Time is a great healer; although a Leave vote can never be healed, the delay will help in the proceedings. Once again, by effectively doing nothing, the current Conservative government is showing great leadership and ownership of the outcome – despite being effectively leaderless.

Although the Leave vote threw up a lot of unknown issues and factors – there were a lot of matters thrown up that were inevitable and expected. The greatest known thrown up by the Leave result is quite obvious; every aspect of Britain leaving the European Union is absolutely unknown. Whatever can be predicted or guessed, the only certainty now is that the whole matter is unknown. Another outcome is that domestic politics has been turned on its head, with both major political parties effectively leaderless at this time.

The only other known is that this is a moment in time; this is one of those moments in history. What is unknown is the next chapter as set out in the history books of the future. That will be written in the months and years to come.

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)

Royal Prerogative: From GCHQ to the NHS

January 20th, 2016 | Posted by admin in Law & Politics - (0 Comments)

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.