Extracts from our Reply to the Government's Summary Grounds of Defence

Extracts from our Reply to Summary Grounds of Defence

 

“It is not..contrary to first principles of constitutional law to challenge the making of an Act, as Lord Justice Laws observed in the Thoburn case, a later Act does not override a Constitutional Act.  The key Constitutional Acts which are being overridden are the Human Rights Act and still more importantly the 1689 Bill of Rights, which as it was putting into effect the new Constitution agreed in the Constitution and Convention of 1689, known as the Declaration of Right, it cannot properly be overridden by any subsequent Act without a Constitutional Convention or equivalent process, such as a referendum.  The Scottish Laws long held that there is a limit to the constitutional remit of legislation and that there is in effect an over-arching constitutional structure and the Supreme Court, in the Prorogation of Parliament case, followed the Scottish decision, finding that even a Royal Prerogative decision, such as Proroguing Parliament, must be consistent with the over-arching constitutional framework.  And in so far as the Coronavirus Act is not in conformity with the Human Rights Act or the Bill of Rights and Declaration of Rights 1689, it is respectfully submitted that is unconstitutional and illegal, so far as it is in breach of the English Constitution and should be null and void, but in so far as it is in breach of the Human Convention of European Rights then under the Human Rights Act the remedy is as indicated a Declaration of Incompatibility. 

 

So far as the Regulations are concerned and there is an on-going tsunami of Regulations, most being made not under emergency legislation, but instead under the 1984 Act which does not even purport to grant powers to Ministers to override basic constitutional freedoms and liberties.  The Regulations and continuing amendments should be set aside and, whereas the specific regulations have been overtaken, the legal principles remain relevant as the Government is continuing to issue a torrent of Regulations purportedly under the 1984 Act which are constitutionally improper.  It is noted of course that the response to the Claimant’s case rests heavily on the decision of Mr Justice Swift in the Dolan case, for which Permission to Appeal has been granted by Lord Justice Hickinbottom, albeit the hearing before the Court of Appeal has been postponed.  The fact that Permission to Appeal has been granted, it is respectfully submitted, shows that the Mr Justice Swift’s decision is challengeable and is not yet through the process of precedent an inherent part of the law. 

 

So far as Guidance is concerned, the Government has repeatedly issued Guidance which is not an accurate or fair reflection of the Regulations that they have produced and again in the interests of constitutional propriety, the fact that they have now changed the Guidance, that was the target initially of criticism of these proceedings, does not make it a moot point, when the Government is continuing to behave in such a way.”

 

I have also looked again at Lord Justice Law’s Judgment on Thoburn.  I thought that paragraphs 62, 63 and 69 were exceptionally well worth considering and I accordingly copy and quote them in full as follows:-

Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (18 February 2002)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/195.html
Cite as: [2002] EWHC 195 (Admin), [2002] 3 WLR 247, [2003] QB 151

 

62. Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.

 

63.Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

 

69. (2) The ECA is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom's relationship with the EU rests with the domestic, not the European, legal powers. In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case.”

 

 

 

JUDGES VERSUS MINISTERS AND BOTH AGAINST THE PEOPLE

 

JUDGES VERSUS MINISTERS AND BOTH AGAINST THE PEOPLE

The article which I have reproduced below caught my eye.  You can see that the well-known legal commentator, Joshua Rozenberg,  is not happy that the Lord Chief Justice of England has not stuck up for the judiciary in the “debate” over whether judges are taking decisions which are ever more political and are therefore encroaching on the jurisdictions of Ministers and of MPs and of other politicians.  

 

From my point of view the interesting thing is that there is a complete failure on all sides to recognise that both Judges and Ministers and MPs have been busy encroaching on the proper rights of the People. 

 

So far as Judges are concerned, the representatives of the People that they have been encroaching upon over the last 50 years in various “reforms” to legal practice (in particular Civil Litigation), is on the rights of the People assembled as a Jury. 

 

Just as still in most cases in America that appear before the courts, the Juries decide what the outcome will be whether it is a criminal or a civil matter, so also from “time immemorial”, until recently, have Juries decided on cases in England. 

 

In times past, Juries would typically be the sort of people who would have had the vote in the days of the property qualification.  To some extent, that approach lasted up until the late 1960s when only rate payers could be called up for Jury Service. 

 

But it is worth remembering that it was juries which exercised a very important brake on the growth of State power and of misbehaviour by politicians and State employees and the judiciary itself.  They also exercised a brake on how overcomplicated the law could become. 

 

The besetting vice of Lawyers and of Judges is making the law and procedure ever more complicated. 

 

Now it is impractical for anyone, who is not prepared to spend an awful lot of time and effort on understanding all sorts of rules and regulations and civil procedural requirements, to actually bring a case, let alone to understand what the argument is going to be about when it gets to court. 

 

Before the Second World War most civil cases were dealt with by a Judge and Jury, with the Judge deciding legal points and the Jury deciding all the findings of fact and often deciding the damages to be awarded as well.  This meant that the law couldn’t get beyond the point of complexity that a Jury could sensibly understand what was at stake.  It also meant that Judges and, for that matter Barristers, had to be much better at explaining their arguments, otherwise the Jury would not necessarily understand what was being spoken about. 

 

Criticism (by Lawyers) is that Juries are unpredictable and that they tend to decide which of the parties to a case they like and that they focus on that rather than on dry legal points.

 

It is however a myth to imagine that Judges are very much more predictable than Juries.  Judges are rather more inclined to think that they know what is going on, but that means that they are quite likely to leap to conclusions, rather than to listen carefully to what comes before them.  Also, in particular, Judges over complicate the decision making process.  Once upon a time there might only have been two or three points of principle to consider.  Now there might be a dozen or more in a typical case.  So it is very difficult to predict, even for a lawyer in any complicated case, which of the points of principle the Judge will decide is decisive.  Therefore it is often just as hard to predict the outcome of a case before a Judge, as it would have been with a Jury. 

 

The law has been becoming ever more difficult to understand.  The original idea of the Rule of Law (which is that citizens can know where they stand, viz a viz State and each other) gets ever more lost sight of in a fog of complexity and bureaucratic rule making.  Add to that mix a toxic brew of political interference and faddist “reforms” and a legislature that thinks it is okay to produce in excess of 20,000 pages of new legislation every year!  No wonder nobody now knows what the law is, without spending time looking it up!  Often quite a lot of time!

 

The other point that is lost with the decline of the position of the Jury is keeping the Law in line with common sense. 

 

You do not qualify as a Judge or as Lawyer on the basis of common sense.  Legal exams are about academic ability and much of being an advocate is about being intelligent, quick on the uptake, rather than necessarily being somebody who is a person of good plain honest English common sense.

 

The lack of legal common sense has become more of a problem as the Judicial Appointments Commission was created by the Blair Government, in effect, more or less specifically, to exclude as potential Judges and Magistrates people who were just qualified by their common sense.  Instead the qualification has become a commitment to multi-culturalism (with the need to demonstrate a “life time’s commitment to Equality and Diversity).

 

The other point that occurs when you get rid of Juries, is that you get State employees, such as Judges, deciding cases, rather than ordinary people applying common sense. 

 

It is worth remembering that it was the Juries over the centuries that maintained English Liberty.  It wasn’t Judges, who were often willing and well paid instruments of tyranny. 

 

The most famous example of this was Judge Jeffries who actually sent a jury to prison for refusing to convict as he had directed! 

 

After the Glorious Revolution such judicial Jury tampering was made illegal.  For hundreds of years after that both Judges and politicians were restricted as to what they could enforce through the courts, to only what they could persuade the Jury to convict for.  The courts and politicians were also restricted as to how they could change civil law as whatever they wanted to do had to be something that Juries would find for. 

 

It was this common sense of Juries which was much more responsible for the maintenance of English Liberty than Judges. 

 

Looking outside of England it is worth noting that Law is often not the friend of Liberty.  A perhaps extreme, but nevertheless true example of that is that most things that Hitler did as Führer were legal!  Whether he could have got an English jury to have upheld his actions is worth a moments reflection.

 

It is worth remembering that the reason why the law on having a breathe test for alcohol on your breath when driving a vehicle (i.e. expressly not necessarily drunk driving) is a charge that is brought before the magistrates (who now are usually paid State employees, as “District Judges”, rather than the traditional upstanding citizen volunteer magistrate) is because English Juries had too much common sense to convict people of drunk driving who hadn’t caused any accident.  If people had, perhaps, had “one more for the road” than perhaps they should have done, but got pulled up by what many English people would have described as an over officious plod, then English Juries were often sympathetic. 

 

That is why the police no longer have to prove that you are drunk, merely that you failed a chemical test.  It is also why the decision was taken away from the Jury and given to magistrates - who will do what they are told! 

 

On reflection you will also notice that most of the more questionable offences which buttress multi-culturalism are magistrates only offences – that is not an accident!  If you are up before a District Judge there will be no application of common sense or of justice just of State Law!

 

Rather than tinkering with a legal rule here or there I would say what we really need is a massive reinjection of Juries into legal practice, but with the proviso that those eligible to sit on juries needs some serious pruning. 

 

The reform and re-imbedding of the English jury system needs to be an important part of any attempt to “get our England back” from Multi-culturalists and Internationalists and from the Globalist Liberal Elite!

 

Back to the article, when you read it you will hopefully reflect that the actions of both Judges and Politicians over the last 50 years or so have stripped away so much of English Liberty!  Here is the article:-

 

“Setting the boundaries of judicial review

By Joshua Rozenberg 1 June 2020

 

Why does the lord chief justice appear so relaxed about government plans to limit the scope of judicial review? Judging by his comments in parliament last month, Lord Burnett of Maldon (pictured) seems to support moves by ministers to shift the balance of power in their favour.

 

Our starting point must be the Conservatives’ election manifesto last year, which announced a ‘constitution, democracy and rights commission’ that would examine the relationship between the government, parliament and the courts and come up with ‘proposals to restore trust in our institutions’. The Conservatives promised to make sure that ‘judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays’.

 

Many judges would regard that as an accurate description of how they currently handle challenges to public decision-making. But the lord chief justice insists that his colleagues have nothing to fear from a reassessment of judicial review.

He first made the point in oral evidence to the House of Lords constitution committee on 13 May. Lord Hennessy, the historian, asked him a broad question about constitutional reform, mentioning the government’s planned commission but not referring specifically to judicial review.

 

Why does Burnett appear to be siding with Sumption in saying the courts have gone too far?

 

In what could have been a reference to Gina Miller’s Brexit-related challenges in 2016 and 2019, Burnett said quite a few people had become ‘aerated’ about what had been going on over the past two or three years.

 

‘One wants to be very careful about people who are aerated,’ he continued, ‘but what we do need to recognise is that the business of judicial review has grown substantially in the course of my professional career.’ It was now ‘a completely different beast’ from what it had been when he was called to the bar in 1980, Burnett explained.

 

But judicial review was a ‘construct of the common law’, entirely judge-made. Everyone familiar with public law could identify one or two steps that it would have been better if the courts had not taken. Yet parliament had never intervened to regulate its substantive rules.

 

‘And so measured and scholarly debate about the boundaries of judicial review is something which, in my view, is proper when looking at constitutional arrangements,’ the chief justice said. ‘It’s not something which the judges or the lawyers, with respect, should be frightened of.’ Indeed, they should welcome it, he thought, provided the rule of law and the independence of the judiciary were respected.

 

Burnett stressed the importance of these twin principles in evidence to the Commons justice committee on 22 May. They were ‘irreducible non-negotiable features’, he said. His point, presumably, was that it must always be for the judges to interpret and apply any legislation limiting their powers.

 

In the Lords, he was asked by Lord Howell of Guildford what he made of Lord Sumption’s claims that the judges were expanding their empire and becoming more activist. ‘Lord Sumption undoubtedly identified a serious and significant direction of travel that the judiciary had been engaged in, in recent years,’ Burnett replied. Because the Human Rights Act could be used in so many areas of litigation, the courts were being propelled into making the sort of value judgments that were alien to the ordinary judicial review process.

 

Asked the same question in the Commons by John Howell MP, Burnett expressed concern that people were confusing judicial review, which was judge-made, with human rights challenges, where judges were required by parliament to take account of the developing jurisprudence of the Strasbourg court. Don’t blame us, he seemed to be saying.

 

Occasionally, Burnett added, he would be updated on the government’s thinking on its manifesto promises by Robert Buckland. ‘No doubt the lord chancellor will be in a position to say something before long, perhaps,’ Burnett said cautiously. Plans for a royal commission on the criminal justice process, another manifesto commitment, were ‘much less well developed’.

 

What are we to make of this? Clearly, there must be limits to judicial activism: assisted dying and transgender recognition were examples Burnett gave of contentious issues he thought best left to parliament. We can also see that Burnett may be less willing to allow judicial review than some of his colleagues. In the prorogation challenge last September, his court refused to interfere with what he regarded as an ‘inherently political’ decision by the prime minister. Less than two weeks later, Lady Hale’s Supreme Court found the issue justiciable, overturned his decision and granted judicial review.

 

But why does Burnett appear to be siding with Sumption in saying the courts have gone too far? Is this a subtle move to blunt the lord chancellor’s knife? Or is he trying to protect his judges from public opprobrium by pulling them back from the precipice? Watch this space."

 

The original can be found here >>>https://www.lawgazette.co.uk/commentary-and-opinion/setting-the-boundaries-of-judicial-review/5104445.article

 

LADY HALE, PRESIDENT OF THE SUPREME COURT AND FEMINIST ACTIVIST

LADY HALE, PRESIDENT OF THE SUPREME COURT AND FEMINIST ACTIVIST

Many lawyers and constitutional commentators have pointed out that Lady Hale, the President of the Supreme Court, who delivered the Judgment in the proroguing of Parliament case, and her colleagues in the Supreme Court, invented a completely new basis on which “Proceedings in Parliament” would be dealt with by the courts.  They completely ignored the legally and constitutionally correctly traditional Judgment of the High Court.  

I thought however that it was worth highlighting Lady Hale’s comments that were reported approvingly in the Sunday Times on September 29^th under the headline of “Take the right partner to be supreme at law” by Nicholas Hellen.  He writes about Lady Hale and her political views from a speech that she made at the launch of “Cambridge Women in Law” in which he says that she “spent an hour dispensing her thoughts on how women can succeed in the male dominated world of the judiciary”. 

The article reports Lady Hale as saying:- “When I came to Cambridge, I knew it was a privilege.  I bet every woman in this room knew it was a privilege to be here.  But I was surrounded by men who thought they were entitled to be here.  And that is one of the things that we still have to go on fighting against.  The male sense of entitlement.”

She spoke of loosening the grip of the “quadrangle-to-quadrangle-to-quadrangle boys”.  A reference to a man who goes from a public school to Oxbridge and then to the Inns of Court “we haven’t got the history of people of our sex doing the job for generation after generation”, she told the audience. 

Hale said:- “Feminism is believing in equality, equality for women and the validity of women’s experiences.  That is how I define feminism. 

Men can be feminists too and there are lots of them and there are loads of women who aren’t.  Those are probably the people that we most have to contend with rather than men because they are in many ways the real problem rather than men.”

She also spoke of sometimes lacking in confidence, and talked of how Gina Miller, the businesswoman and campaigner who brought the case to the Supreme Court, dressed to help give her the confidence to fend off “people’s bigoted assumptions”. 

Hale suggested that this was a metaphor, “throwing light on this problem that women generally lack confidence”. 

The article finishes by saying that Lady Hale has asked Mary Arden, who has joined the Supreme Court:- “I have asked her please, please when I retire, would she keep up the good work”. 

Whatever you think of Lady Hale’s views, the one certainty it seems to me is that she is demonstrating yet again where on the spectrum her political values come from.  So she is vividly demonstrating that the Blairite creation of the Supreme Court has worked well from its creator’s point of view in entrenching Blairism into the Constitution.  It also vividly demonstrates the general effectiveness of the Left’s “Long March through the Institutions”. 

What do you think?