Tag Archive | "lord neuberger"

The Supreme Court has ruled

Parliament must vote on whether the government can start the Brexit process, the Supreme Court has ruled. The judgement means Theresa May cannot begin talks with the EU until MPs and peers give their backing, although this is expected to happen in time for the government’s 31 March deadline.

Reading out the judgement, Supreme Court President Lord Neuberger said: “By a majority of eight to three, the Supreme Court today rules that the government cannot trigger Article 50 without an act of Parliament authorising it to do so.

“Withdrawal effects a fundamental change by cutting off the source of EU law, as well as changing legal rights. The UK’s constitutional arrangements require such changes to be clearly authorised by Parliament.”

Attorney General Jeremy Wright said the government was “disappointed” but would “comply” and do “all that is necessary” to implement the court’s judgement. The government had argued that, under the Royal Prerogative (powers handed to the government by the Crown), it could make this move without the need to consult Parliament.

The court also rejected, unanimously, arguments that the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly should get to vote on Article 50 before it is triggered.

Key points of the judgement include the fact that the 1972 Act that took the UK into the then EEC creates a process by which EU law becomes a source of UK law, and so long as that act remains in force, it means that EU law is an “independent and overriding source” of the UK’s legal system. Withdrawal from the EU makes a fundamental change to the UK’s constitutional arrangements because it will cut off the source of EU law. The UK constitution requires such changes can only be made by Parliament.

Dominic Casciani, BBC home affairs correspondent, writes: “”This momentous judgement is about one thing alone: the rule of law and how the UK, as a champion of that steady, calm form of government, gets on with the business of leaving the EU.

He added: “But what it also makes clear is that membership of the EU is messy in constitutional terms – so only Parliament has the right to pull us out. It can’t be done by the stroke of a minister’s pen.”

BBC Political Editor Laura Kuenssberg detected “sighs of relief” in Whitehall for two reasons. The verdict from the justices doesn’t take away from the reality that having to go to Parliament before triggering Article 50 is a political inconvenience that Theresa May very much wanted to avoid. But “the justices held back from insisting that the devolved administrations would have a vote or a say on the process. That was, as described by a member of Team May, the ‘nightmare scenario’.”

She said: “Second, the Supreme Court also held back from telling the government explicitly what it has to do next. The judgement is clear that it was not for the courts but for politicians to decide how to proceed next.” Explicit instructions from the court about the kind of legislation they had to introduce would have made ministers’ lives very difficult.

David Davis stated that the government supported the right of the judges to come to their conclusion, after the ‘Daily Mail’ argued: “Yet again, the elite show their contempt for Brexit voters.” There followed a statement from the justice secretary, Liz Truss, who faced criticism for not defending the appeal court justices denounced by sections of the media as “enemies of the people” after they ruled against the government.

Truss said: “Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our supreme court justices are people of integrity and impartiality.”

The shadow attorney general, Shami Chakrabarti, argued that it was not enough, and that the prime minister should also speak out.

Posted in Law UpdatesComments (0)

Legal aid residence test to be challenged

Today, the Supreme Court will begin hearing arguments in a case challenging the government’s Legal Aid residence test.

The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which is bringing the case, says that this is outside the government’s powers and also discriminatory under human rights laws.

The Ministry of Justice (MoJ) has argued that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed.

Seven justices will hear arguments in a case which insists that no minister has the power to impose such discriminatory regulations and that the residence test, which has yet to be implemented, is unlawful. The supreme court had originally planned to hear the case later this year, but it has been brought forward following justice secretary Michael Gove’s indication that he planned to begin applying the residence test from this summer.

The case has already been before the courts. In 2014, the high court struck down the regulation on the grounds that the then justice secretary, Chris Grayling, did not have the power to introduce it by means of secondary legislation. It also concluded that the residence test was excessively discriminatory.

In a unanimous decision, three senior judges declared the draft regulations then before parliament could not be enacted by means of secondary legislation. They also upheld a complaint on a second ground as part of the judicial review, that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money.

The judgment was a severe setback for the then justice secretary, Chris Grayling, and the way he was introducing wide-ranging changes without primary legislation.

However, last November the court of appeal overturned that judgment, concluding that the earlier ruling placed unjustifiable restraints on the government’s ability to control the legal aid budget. Exemptions to the residence test have had to be made for members of the armed forces serving overseas, children under one year old and asylum seekers.

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, is quoted in the ‘Guardian’ as saying: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents….The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.”

The ‘Guardian’ also reports that the children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society.

The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance.

Posted in Civil Liberties, Legal AidComments (0)

The vexed question of access to justice

In a wide ranging speech to the Northern Ireland Assembly’s justice committee last week, Lord Neuberger, President of the Supreme Court, addressed what he called “the vexed question of access to justice in an age of austerity.”

The increased cost and complexity of litigation coupled with the shrinking of legal aid means that access to justice is “very much at risk,” he said.

In his view “Challenges and difficulties are also opportunities. But we have to face the fact that we are in something of a perfect storm. Legal services are increasingly very expensive and increasingly unaffordable to ordinary people. At the same time, government money to support the courts and legal aid is in very short supply.”

“There are a number of reasons why legal services are expensive,” he said. “First, UK lawyers (like UK judges) are of outstanding quality in global terms, and quality and cost are closely connected. Secondly, in this electronic age, litigation and legal advice involve a great deal of potentially relevant documentation to be collated and considered, and there is a plethora of reported legal cases for legal advisers and judges to consider. Thirdly, reflecting society’s attitude more generally, we are increasingly concerned with due process, which means that the trial process is increasingly expensive.”

Steps are being taken in England and Wales in the form of streamlining and tightening up litigation procedures generally. This enables judges to control costs and hearing times more proactively, increasing the types and size of claims which can be heard in the small claims court and those where only fixed costs are recoverable from the loser. “I understand that the Bar of England and Wales are investigating the possibility of introducing a streamlined system of litigating smaller claims, which is also good news,” he said.

“At the same time, the Government is proposing to make available a large sum of money to overhaul both the physical and the electronic infrastructure of the courts. There will be fewer but larger and more modern court buildings throughout the UK, and the antiquated and fissiparous IT systems in the courts will be replaced by a modern system,” he added.

Neuberger’s speech, which ranged from IT strategy to the question of judicial activism, also defended his recent statement that the UK does not have a constitution. However he admitted that the Supreme Court had inevitably assumed a more visible constitutional role than its predecessor, the Appellate Committee of the House of Lords.

Comparing the UK and European style of common law judgments he said in the UK an appeal court is a number of judges “who happen to be sitting in the same tribunal: hence every judge is free to give a full judgment of their own. The European system only has one judgment to read in every case, but their judgments are not infrequently internally inconsistent, and occasionally evade the legal question actually raised in order to arrive at a mutually acceptable product.”

He concluded: “The multiplicity of judgments you can get in our system can be confusing and tedious, but, whatever else may be said about it, our system produces more entertaining and stylish judgments.”

A more forthright view of Lord Neuberger’s speech is contained in an anonymous contribution to the ‘Law Gazette’:

“I’m afraid m’lud that access to justice is not ‘very much at risk’. It has been utterly trashed. It is a dead parrot. We used to be something other societies looked up. Now our systems of justice are approaching Banana Republic status. The terrifying thing about it has been both the speed and comprehensive nature of its destruction across all areas of law.

And after all this we STILL have the zealots in the Government and MoJ who continue to issue guff about needing to make further savings.”

Posted in Civil LibertiesComments (0)

Lord Neuberger speaks out

In a speech last Tuesday to the Institute for Government, Lord Neuberger, president of the supreme court, warned that plans to cut £220m more from the legal aid budget could put at risk access to justice for all, particularly the poor, the vulnerable and the disadvantaged. Read the full story

Posted in Criminal Justice, Legal AidComments (0)

High Court injunctions and a constitutional battle

When Ryan Giggs and Imogen Thomas embarked on a brief relationship they could not have imagined that it would develop from kiss-and-tell to a legal battle and now into a constitutional crisis.

On 14 April Mr Justice Eady granting a privacy injunction to Ryan Giggs. When Giggs’s anonymity was Read the full story

Posted in Civil Law, Civil LibertiesComments (0)

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