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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.

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)

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.

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.

As the Winter Olympics in Sochi slowly draw to a close, it certainly had been quite a spectacle of sporting excellence.

Despite the issues surrounding the not quite completed co0mplex (and a malfunctioning snowflake in the opening ceremony), there have been some notable moments. In the ice hockey, for example, the hosts have been eliminated; as such, there will be no repeat of the infamous 1980 ‘Miracle on Ice’ match at Lake Placid. However, team USA will square off against old rivals Canada in the semi-finals, no doubt seeking a rematch after their defeat at Vancouver 2012.

Indeed, it has been a brilliant Winter Olympics for Canada- and Norway, who Canada beat at the ice hockey in the first few days. One of the outstanding Canadian athletes has, once again, proved to be formidable skater Charles Hamelin. Hamelin emerged victorious from Vancouver 2010, and once again from Sochi 2014, until a crash on the ice ended further Olympic aspirations (and raised questions as to the safety of the track itself).

Fresh from their success on home territory, Team GB has also ended up with several Olympic medals (skeleton and curling) – remarkable for a nation not famous for its winter sports, and whose people end up skiing once or twice a year in France or other snowy European destinations. Our European neighbours, more at ease on (and off) the piste, have unsurprisingly walked away with much silverware for skiing disciplines; alpine skiing gold going mostly to Austria and Switzerland. More free spirited Canada and America put on a good showing on the piste, though, winning freestyle skiing and snowboarding respectively.

One surprise of these winter Games was a rather more musical one. This is not a reference to the beatings the Cossacks gave to opposition band Pussy Riot- but rather to Vanessa Mae. Swapping the violin and her celebrated musical style, Vanessa Mae was a surprise competitor in the Sochi Games. Entering under her father’s name, she was skiing slalom for her father’s Thailand. Ranked 2,253rd in the world, she just about became eligible to compete at the Games. Finishing 27 seconds behind the leader, and amongst the last to finish, it is evident that her slalom skiing is not as good as her violin playing.

However, for Mae it was the fulfillment of a lifelong dream. Immersed in classical music since a young girl, and multimillion record selling violinist, her dream was always to compete in the Winter Games. At the age of 35 (old for an Olympian) – she achieved that dream. Although one of the last to finish- for sheer spirit, courage, and determination, she deserves gold. But then again, so do all the athletes there, who exhibit sporting excellence in pursuit of that elusive gold medal. After pushing themselves so hard physically and mentally, after all the sacrifices, after all they endure, event to make it to the starting blocks of an Olympic race is an incredible achievement.

Training for those athletes is long and tough. Throughout, those set on competing at the Olympic Games (Winter or Summer) are inspired and motivated by the five rings, the Olympic flame- and the medals. After dreaming about it for so long- the reality of making it to an Olympic village, and preparing to compete in the Games itself, can be overwhelming. After the endless practicing and training, the theory, and in imagining what it will be like at the Games- the reality can bite hard. Many Olympians agree that the realities of actually competing at the Olympics are both amazing- and different from the endless practicing and rehearsing in their local clubs, or with national teams.

Law is similar. After studying the theory, the cases, the rules, legal principles, after dissecting and solving countless legal problems and scenarios in theory in the classroom, after examining mock up legal documents in law school, perhaps even taking part in mock trials or mock legal conferences, the reality of actually practicing law is (similarly) awe inspiring- and very different from the endless theory and practice.

To practice law, it is not necessary to be a qualified lawyer. Trainee solicitors, pupils, paralegals, even legal interns get exposed right from the outset to legal issues and cases. These are not paper exercises set be a tutor, or matters where you can look up the answer. These are real cases, with real people, with real consequences.  Although daunting to tackle at first, it is wonderful to put into practice what was studied for so long, and took for ever to master and understand. With practice- it gets easier.

Even being a humble legal intern, some very complicated but fascinating cases can pass you way, for you to get involved with. Although your work is checked, the opportunity to handle a real case is amazing. After studying the theory-putting that into practice is amazing.

The difference from theory in a textbook and a real case is very marked, though. As different as athletes practicing in the secure environment of their well-known training centre, to competing for real in the Olympics, with countless thousands cheering them on.

At time of writing, Sochi 2014 has a few days left to run. Most of the events have run their course, with only the all important finals left to come in the major events. The writer wishes all the remaining athletes all the very best these last few days; but, just to get that far, they are all winners.

Next month the opening ceremony of the Sochi Winter Olympics will herald the start of two weeks of sporting excellence. For two weeks, athletes will push themselves to their limits in pursuit of that elusive Olympic gold, in disciplines as varied as modern biathalon to ice skating. Undoubtedly,  the USA is eagerly awaiting a rematch with Canada in ice hockey after their 3-4 defeat at Vancouver 2012. Team GB is hoping to repeat their success at London 2012- but full in the knowledge that winter sports is not an area the UK is famous for. Traditionally,  we do better at cricket (unless we’re facing Australia), football and rugby than sports such as snowboarding and curling and bobsleging.

In pursuit of sporting excellence, it is unfortunately likely that some of the competitors will get injured. After all, sports such as the luge and skiing lend themselves to injuries, some very serious. An example of just how serious is F1 champion driver Michael Schumacher is still in a medically induced coma in hospital as a result of skiing accident earlier this year. Regardless of the nature of severity of any sporting injuries received whilst taking part,  many are surprised to find that there is little remedy at law, or recompense for any injuries received. Under tort law, it is hard to make a claim over injuries received, or accidents directly resulting from,  participating in (legally perceived) dangerous activities such as some winter sports. Indeed, the legal concept of volentia non fit injuria legally prevent such claims from being made. Under that legal concept, agreement to participate in a dangerous activity or most sports implies that the participants accepts the risk of potentially serious injury. With that prior, voluntary and implied consent to potentially being injured, the sporting organisers are effectively absolved from liability  if any injuries do occur. Consequently, tort law ends up halting most such claims resulting from a sporting injury. When organisers say of a sport that you ‘take part at your own risk’- they really mean it.

1Serious sporting injuries, though, are relatively and comparatively  rare. Put this into the context of car accidents, for example. A very large number of injuries and fatalities occur as a result of traveling by car. According to Department of Transport figures for 2012, 170, 591 road accidents were logged by the police. These accidents resulted in 10, 711 serious injuries, and 1, 257 killed. It must be noted that the actual figures are often higher, as not all accidents are reported to the police.

Evidence suggests that speed is a very common cause or factor in car accidents, either misjudging speed- or driving at high speeds. Despite the obvious dangers of, and the legal restrictions on, driving at high speeds, certain drivers are allowed to drive at speed. Legally, several government agencies can speed. Police, fire, ambulance, bomb disposal and similar can all speed, and for very good reason. After all, they are in the pursuit of  saving lives and preserving the peace.

Those categories of drivers could potentially be expanded. Proposals under discussion following a Department of Transport consultation could see the categories   of speeding exemptions expanded to included those engaged in “the protection of life and limb or national security”. Under the proposals, even spies would be allowed to speed if it was vital for national security, and the had the relevant training.

It is a great irony that in the attempts to save lives, the police, ambulance services, and (potentially) spies can make conditions on the road dangerous for other drivers by speeding.

However, under tort law people can still sue for personal injuries resulting from car and road accidents. Indeed, many such cases are brought to court every year, using personal injury specialists such as the Accident Claim Co. In another legal irony, claims for personal injury cannot be made arising from sometimes dangerous sports- but personal injury claims can be made if injured on the roads by people creating a dangerous situation trying to save lives. James Bond had better take care in those Aston Martins- in case he be sued for personal injury.

As the Winter Olympics are about to descend on Sochi, it is to be hoped that there are no injuries amongst the athletes- only sporting excellence as they all strive to win Olympic gold in their chosen sports.