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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.”

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.

The law of equity, trusty and restitution (along with their companion land law) is every law student’s nightmare. It is complicated, archaic, and convoluted. It is heavy in pure legal theory, and has more rules and intricate legal principles than buying a house.

The cases are very technical (Vandervell v IRC, Grey v IRC, Mascall v Mascall, Cain v Moon, inter alia), and the judges never seem to make things easy in their judgments. Equity has long been the bane of every law student; excepting those who actually find equity interesting, and enjoy the mental challenge surrounding the details of presumed resulting trusts, Quistclose trusts, and Anton Pillar orders.

However, sometimes equity does have its moments. Sometimes, an equity case comes along that makes all legal minds (regardless of their opinions of the subject) smile, laugh or shake their heads. A current proceeding at the High Court in London is one of those cases.

In the High Court, the plaintiff (or claimant, in this post- Woolf Reform legal world) is one Mrs. Nora Al- Daher, a self-confessed gambling addict. She is suing the Ritz Hotel in London for allowing her gamble (and lose) £2 million in one evening at their casino. Her lawsuit is in response to the Ritz’s legal claims against her for £1m that she still owed the Ritz.

Her case, according to the press reports, is that she had already lost money gambling in other casinos that day in April 2012 before arriving at the Ritz. Upon arrival, she had informed the staff that she was a gambling addict, had lost money gambling earlier, and did not want to gamble further that evening. As the evening progressed, however, she reached her credit limit. Instead of stopping her credit, the staff apparently encouraged her, and increased her credit limit. Mrs Al- Daher further claims that the Ritz staff took advantage of her, and should have stopped her from playing.

Appearing for the Ritz, Clive Freedman QC has been ably rebutting those claims. In defence, Mr Freedman has stated that Mrs Al- Daher has been paying her debt for nine months after her losses without any complaint. Further, she still owes the Ritz £1m, as several of her cheques have not been honoured. Indeed, according to Ritz Hotel Chief Executive Roger Maris, it is usual for some high stakes gamblers to be granted extensions on thier credit limits. Additionally, Mrs Al- Daher’s track record of paying her gambling debts had been very good; consequently, the Ritz staff were happy to extend her credit limit. At this time, the case in the High Court is still on-going.

Keen students of equity will at once recall a similar case; that of Lipkin Gorman v Karpnale. In that leading and ground breaking case, the House of Lords heard how Mr Norman Barry Cass, a solicitor at Lipkin Gorman, drew £220,000 from the firm’s accounts, and gambled it at the Playboy Club. Owned at the time by Karpnale Ltd, the Playboy Club gained over £150,000 (which Mr Cass lost) indirectly from Lipkin Gorman. Mr Cass (after fleeing to Israel) was brought back and imprisoned. Lipkin Gorman subsequently sued the Playboy Club for the return of the stolen money. It must be noted that at that time gambling contracts (being contrary to public policy) were considered void under the Gaming Act (1845). The case was a headache for the equity lawyers involved- and for subsequent generations of law students.

Lipkin Gorman v Karpnale was a significant and leading judgment in the area of restitution and unjust enrichment. Quoting from a legal dictionary, restitution is essentially the legal principle that, if a person gains at the expense of someone else, and there are no legal grounds for them to do so, then that person has been unjustly enriched. Consequently, restitution must be made.

Legal academics and judges have been debating, altering and discussing theories of unjust enrichment for centuries, with various degrees of complication. It was Lord Robert Goff in Lipkin Gorman v Karpnale who boldly advanced the UK principles of restitution with his “change of position” theory. As much as the writer would like to (equity and unjust enrichment being of academic interest to the writer) comment on that leading case further, there is neither scope nor word limit to so.

The House of Lords ruled that the Playboy Club had to return the money to the solicitors- less the amount they had paid out to Mr Cass in winnings. Restitution (repaying the money) had to be made: but by paying out winnings to Mr Cass, the club’s position had been changed, reducing their liability.

As was stated at the beginning, equity is complicated and not every law student’s favourite subject. Some of the cases are very technical and dull- but some can be quite entertaining to read. What the judges actually thought of the parties involved in such cases luckily does not make it into the law reports.

Returning to the gambling Omani (Mrs Al- Daher is the wife of the Foreign Minister of Oman, to make the matter more embarrassing for her), a large part of her case will probably be determined by similar principles of unjust enrichment. The fact which will give the lawyers an equity related headache is that she already owes the Ritz money. As such, her case is not a straightforward case of unjust enrichment; not that there ever is a straightforward case of unjust enrichment.

At the centre of both cases, though, is a gambling addict. Both cases serve to highlight the fact that, to serve an addiction, ordinary people, or those with a great sense of morality, will commit all and every act to fuel and service their addiction. The addiction can be to alcohol, prescription medication, drugs, cigarettes- or, as here, gambling. Whatever the addiction, it is very difficult to overcome, and requires not only great strength of character, but a lot of support, from family, friends, and medical professionals. Without great care and treatment, an addiction can spiral out of control, and make people act in a way that they never would normally. Such out of character behaviour can often land them in great legal trouble, as in both cases cited. With the correct approach and treatment, such cases can be avoided. It is a great shame that such people are often more stigmatised and derided, rather than treated, sympathised with, and looked after.

Whatever the legal lessons learned from the cases of Mr Cass and Mrs Al- Daher, it is more the moral and human lessons that should be learned.

A crucial concept of law is that justice should be open, and seen to be open. That concept has been in existence for over a thousand years in the UK, and has been jealousy protected over the centuries. That is why the media can report on court cases, and there are public galleries. That is also partly why transcripts of court proceedings are made. In a democratic society, it is vital that justice is seen to be handed out, and that the court system is accessible, available and understandable to all.

There is, however, a counter argument. Many cases and episodes over the centuries have challenged that. Indeed, with the terrorist threat the last few decades, recent related court cases and legislation (Prevention of Terrorism Act [2005], for example) challenge that. Also, human rights issues, such as the right to privacy, and right to a home and family life amongst others, similarly challenge that concept. There are some occasions where a truly open hearing might be prejudicial to the parties concerned, or to national security Hearing those cases (or parts of those cases) in secret, while contrary to legal principle, is sadly necessary In the interests of national security, or personal privacy, or a whole variety of reasons, court proceedings can be closed, or (to use the Latin) heard sub rosa.

That principle is well established. The Bank Mellat case (2013) established the legal precedent that a CMP (closed material proceeding) can be heard by the Supreme Court. In the last decade, it is a well known secret that some terrorist trials have taken place in secret. Not only does this deny the suspects a public voice, and their day in a public court (which is often what they want), but it allows classified intelligence to be used as evidence, it allows covert sources to be identified or used in court (without putting them or other agents or sources in danger), and intelligence methods to be revealed in a confines of a secret court. Justice is done- and national security is well served.

Such legal and democratic theory is about to be put to the test by the Court of Appeal. The Crown Prosecution Service (CPS) has claimed that an upcoming case, whilst a criminal proceeding, is actually a terrorist case. Arrested in “high profile circumstances” the defendants (under current reporting restrictions, they are only being identified as AB and CD) are accused of offences related to preparing terrorist acts, and possessing information relating to bomb making. As such, the CPS is citing national security, and has court orders banning the media from reporting the case, and banning access to the case.

The orders of Mr Justice Nicol were challenged by the media, and the matter submitted to the Court of Appeal (CA). The media were further banned from revealing the existence of the court orders until the CA proceedings. At time of writing, the court was reviewing Mr Justice Nicol’s orders, (sic) the media could report on the whole matter- although under restrictions, pending the outcome of the appeal.

The media response to the initial court order was predictable- and absolutely right and proper. In a democracy, a free and impartial press is necessary to bring to public attention such matters, and to hold to account and scrutiny the workings of the state- amidst reporting on Justin Beiber’s latest faux pas, the results of the World Cup, and the latest recipe for tarte tatin. In being outraged, and seeking a review of the court orders, the media is acting as any citizen would want them to in a democracy.

Of course, there are limits to that need to report the innermost workings of the state, and to expose everything, as the media learned the hard way in the Levenson Enquiry; with such a duty comes responsibility. That, however, is for another post.

The courts’ response was equally predictable. Although agreeing with the open justice concept, the judges admitted that there are times where secrecy can be best. The case of AB & CD, the CPS claims, is based on exceptional circumstances, and as such it is necessary for the case to be heard secretly.

Quoting from a BBC report, most strangely, the CA: “Heard that the head of the Crown Prosecution Service’s counter-terrorism team had claimed that if a decision was taken to hold the trial in open court, and to identify the defendants, it might have to abandon the prosecution.”

Without knowing the facts of the case, such a bizarre CPS statement by has to accepted at face value.

In reviewing Mr Justic Nicol’s existing order, the three judge panel on the CA has to debate the fine line between open justice, and national interest. To an extent, though, the matter has already been decided. There is legal precedent which allows for cases to be heard in secret if necessary. Such restrictions are only imposed when there is an urgent and pressing national security issue at stake- which the CPS claims there is here.

The case of R v AB & CD is not about the balancing open justice and national interest. The matter is not one of ‘secret courts’ and ‘a denial of open justice’ as the newspapers are stridently claiming. It is merely a case of whether the Court of Appeal has the strength to do the right thing legally, to apply the law as it stands, without emotion. Will they have the legal conviction to do what is legally the only decision to make? If they do not, and fail to apply the law as it stands, then they have failed the British people, and the criminal justice system.

Admittedly, though, if the three judges do the right thing by the law, they do the wrong thing morally and democratically- and vice versa. Law and morality are rarely one and the same thing, as the case of R v AB & CD shows.

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.