All posts by Conor Gearty

I am Professor of Human Rights Law at LSE, and a Member of Matrix Chambers where I practice law as a barrister.

The Case of Dinah Rose, Magdalen and the Bar

Dinah Rose appears to have survived. In the rush of current affairs in the noisy internet age it seems hard to believe that it was only a couple of weeks or so ago that the position of this leading QC as President of Magdalen College Oxford appeared precarious. Rose has now appeared in a case before the Judicial Committee of the Privy Council in defence of the Cayman government’s determination to persist in its prohibition of gay marriage. Rose is reported to have been supported by her College’s student representative body, and the Bar has closed ranks behind her, pointing to the ‘cab rank rule’ under which it is said that barristers have to take the cases that come before them as long as they are available, and there is no conflict of interest.

If it is indeed all over, it should not be. I have met Dinah Rose perhaps once or twice and corresponded with her from time to time. I have long been a fan (from afar) of her brilliant advocacy on behalf of her clients, a compelling articulacy that flows out of a fine intellect and is further buoyed by her fearlessness and (never to be underestimated at the Bar) her sheer resilience. But the problem with her taking this case has nothing to do with the Bar; whether or not it flouts or follows the supposed cab rank is neither here nor there. (And what meaning can that supposed rule have in any event when you can always set a fee to make yourself unavailable whenever offered work is unfancied?) No: the issue here is Dinah Rose’s presidency of her college.

I am an academic as well as a barrister so in a tiny way my position resembles that of Dinah Rose. I say ‘tiny’ because I am only a small cog in my university’s machine, teaching students, marking essays and all the rest of it. My main concern has been with making sure my appearances in court do not come at the expense of the time I can give to my day job. We had a head of department a few years ago who was also a barrister and who defended the government’s work in Iraq however nasty the other side claimed it to have been; certainly this made a few colleagues queasy. But neither he nor I were even close to Rose’s position in her College. She is its president, its public epitome. For good or ill, what she does, she does as president. No ‘Chinese wall’ can divide her up, marking this bit of her as the Magdalen bit and the rest of her as the feisty lawyer who will do what it takes to win for whoever is lucky enough to get her on their side. As the President of Magdalen, and particularly in light of the College’s explicit equality policy, she had a duty to the LGBTQ + students in her care and an obligation to provide a safe and secure environment for them.

The college commits to upholding the Equality Act and specifically mentions a commitment to eliminating discrimination and harassment on grounds, inter alia, of sexual orientation. This equality duty is surely incompatible with its President accepting a brief in a cause that can be widely seen (and not unreasonably seen) as homophobic. Assuming she is not doing the case for nothing (which strikes me as unlikely) Dinah Rose has been faced with a choice which she exercised in favour of accepting this, presumably lucrative, brief. As the executive committee of Oxford’s LGBTQ+ society put it: ‘The minute Dinah Rose accepted the position of President, the duties of her new role became pre-eminent.’ The Oxford African and Caribbean Society has issued a strongly worded critical statement, declaring with venomous clarity that ‘Dinah Rose cannot in good faith help to set back LGBT laws in a Caribbean island and simultaneously claim to support LGBTQ+ and BAME students in Magdalen.’

There is a wider question here, too, about the many barristers who have achieved headships of Oxford and Cambridge colleges – a recent trend which looks if anything to be gathering pace. I am not surprised by this: good lawyers are terrific chairs of meetings and the best of them personable too, no doubt as good with students as they are with clients and instructing solicitors. But these are real jobs, not pastimes for the ethical part of themselves.

The Glory of the Hamlyns

How a little-known benefactor established an academic series of immeasurable value

 

(as published in Prospect)

Emma Warburton Hamlyn was born on Guy Fawkes Day 1860 in Torquay. Her father was a law clerk and after a while started work as a solicitor, a successful one of sorts, becoming a commissioner for oaths, doing a little bit of work from time to time for the province of Nova Scotia and eventually making it onto the magistrates’ bench. Emma was an only child, with her mother mainly at home but helping out in the local schools and generally doing her bit for the Methodist faith which she shared with her husband. The family lived in Torquay pretty well all their lives, Emma never seems to have budged after her parents’ death: the most assiduous of searches have revealed membership of nothing, visits to nowhere, relationships with no one. She died in 1941, aged 80, in the house in which she had spent most of her life.

Anonymous in life, Emma Hamlyn has been immensely celebrated in death. Generations of lawyers recall her name with affection. In the decades since her apparently lonely demise, the greatest jurists of their day have grabbed the chance of her imprimatur to reach global audiences in the tens of thousands. Lucky law students have the chance to attend a “Hamlyn” lecture if their enterprising professors have managed to secure one for their university; many more study the lecture texts published annually as a book under her name. How can all this have happened?

Against legal advice and out of the blue, Emma Hamlyn chose to leave the residue of her considerable estate for the “furtherance by lectures or otherwise among the Common People of this Country of the knowledge of the Comparative Jurisprudence and the Ethnology of the Chief European countries including our own.” Her express intent was that, as a result, “the Common People of our Country may realise the privileges which in law and custom they enjoy in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them.” Legal action in the Chancery Division was needed (as Miss Hamlyn had been warned) before the show—a set of annual lectures was the agreed format—could be got properly on the road, with (what is now) the University of Exeter leading in their organisation and the universities of London, Leeds, Belfast and Wales helping out with trustees.

The first lecture, Freedom under the Law, was delivered at the University of London’s Senate House in 1948 by Lord Denning and set the standard for the subsequent lectures. He wasn’t Lord Denning then of course, just plain Sir Alfred Denning, new to the Court of Appeal. But what a booking, a bit like getting the Rolling Stones to launch a series of concerts before anyone knew who they were. Denning went on to become a legal rock star, lived long, wrote much and in that era before mandatory retirement hung on as a judge Ruth Bader Ginsburg-style until the early 1980s (when a recklessly unchecked book did for him). Reviews of this first set of Hamlyn lectures stressed the beauty of Denning’s writing and the ability he had to reach both the “common people” and the legal glitterati. The course of the Hamlyn lectures was set. In the 1950s, Lord Devlin lectured—famously—on juries as “the lamp that shows that freedom lives” and the legendary legal polymath Glanville Williams on “the proof of guilt.” The 1960s saw the first woman (Baroness Wooton, on crime, bursting the format with a book in two parts) and moves into foreign jurisdictions: maybe the organisers thought — heretically! — that those abroad might have the occasional good idea. Reflecting the times as well was a new interest in welfare law, a sign of the innovative instincts of the trustees. Perhaps the most famous Hamlyns of all are those of Lord Scarman in 1974—English Law – the New Dimension—talking about human rights before anyone really knew what they were. Constitutional Fundamentals by Professor William Wade in 1980 nearly launched a recherché legal revolution to impose those self-same human rights, with a wonderfully bonkers argument about how all it took to achieve a revolution was a few swear words from judges. (“Changing the judicial oath” was how this old-school but wildly fresh thinker put it.) Another early booking, Denning-style, was Brenda Hale, 1995, a newbie in the High Court’s Family Division. Cambridge University Press took the lectures over in 2005 and they now have a glossy website, lovely photos and an energetic publicity drive behind them. Eleanor Sharpston QC gives the first of her three—remotely, of course but notionally from Edinburgh—on 29th October, on the European Union and the rule of law: as a senior advocate within the European Court of Justice until Brexit there will be much of topical as well as academic interest for sure.

Of course you cannot have a lecture series with mega stars every year. We jobbing professors get a look in too, from time to time. I gave the Hamlyns in 2005, on the catchy title (for which I had one of the organisers to thank) Can Human Rights Survive? It is still easily my best-selling book (not a difficult achievement admittedly). I started mine at LSE (where I work) and then went to Durham (where some of my friends who violently disagreed with me worked and who were gagging to have a go at me) and from there to Belfast. (Dublin was ruled out: a bit too foreign for Miss Hamlyn it was decided.) The bequest paid my way, rewarded the attendees with a drink afterwards and laid on a lovely dinner at each venue. (My mother drove across the border for the Belfast one, got herself into the dinner of course even though she was unexpected, and then mortifyingly made an after-dinner speech about what a good little boy I had been; in memory, though, this has grown into the highlight of my academic career.) The Hamlyns do that—bring people together (and not just relations), and when done well focus attendees’ thoughts on a legal issue which has been rendered accessible by a speaker who knows both their stuff and the nature of the audience, and who can do it all with panache.

Covid-19 has pinched all our lives even if it has not destroyed them, and this year’s distinguished speaker will have to make do without the canapés and conviviality. In giving the lectures at a time when over 800 lawyers have felt compelled to sign a letter to the Prime Minister and Home Secretary calling on both to desist from using hostile language against those in the law profession, Sharpston will surely be choosing to reassert the importance of the rule of law. I used to be pretty scathing about judges and lawyers and the Inns of Court and all their paraphernalia of privilege—one of my Hamlyns went on and on about this (hence my Durham friendly enemies finding lots to attack on the night). But now I am not so sure. I guess my hostility was all the wilder for what I had for so long taken for granted about the United Kingdom—that the government would respect the law; that separation of powers would not be regarded as dispensable; that the executive would not exploit the vagueness of the UK constitution to hoard power without regard to the consequences. It is thought that Emma Hamlyn founded her trust in memory of her father, though she never said so. I like to think that the magistrate would have been pleased with what his daughter has set in train, and that there will be many in the (remote) audience nodding in agreement, and many Emma Hamlyn’s too—decent, quiet observers of the UK who know something has gone decidedly rotten.

 

The Overseas Operations Bill: a license for atrocity

The Overseas Operations (Service Personnel and Veterans) Bill is what happens when the pub bore takes over British defence policy and there is no one left to prevent his cranky anger being turned into law. A rambling hostility to Johnny foreigner combines with a maudlin concern for the stresses faced by British troops on duty abroad to produce a measure which is almost as embarrassing to good governance as it is to those who care about contemporary British values.

The plan outlined in the bill is to compel prosecutors to let soldiers off the hook for crimes committed overseas as long as five years has elapsed since their alleged occurrence. We still say we have independent prosecutors and the rule of law in this country so a sweeping indemnity bill was out of the question. Instead the circumstances have to be “exceptional” for such proceedings to continue, with “particular weight” being given to factors that “reduce… culpability” such as the “adverse effect (or likely adverse effect)” of a suspect soldier’s “experiences and responsibilities (for example, being exposed to unexpected or continuous threats, being in command of others who were so exposed, or being deployed alongside others who were killed or severely wounded in action).” This “adverse effect” might relate to a soldier’s “mental health” or even “their capacity to make sound judgements or exercise self control.” Just in case your accused soldier is left exposed for his or her crimes while more vulnerable criminal colleagues walk free, the prosecutor is also required (emphasis added) to “have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.” (Yes, all these quotations are directly from the bill, not a ministerial speech, or a letter to the Telegraph.) And just in case things go wrong, there is a long-stop guarantee against inappropriate prosecutions in the shape of a requirement for the consent of the attorney general. That office is held at the present time by Suella Braverman.

The protections afforded these criminal suspects among the armed forces are explicitly extended to cover those accused of a range of domestic criminal law as well as the great majority of even the most serious international crimes (genocide; crimes against humanity; war crimes). They do not apply if the victim is a Brit rather than a foreigner. Other provisions aim to curb the capacity of human rights law to reach military actions overseas, and then—revealingly—anticipate departures from human rights law? in relation to future “significant … overseas operations,” retaking Calais perhaps, or laying siege to Brussels. The UK the promoters of this bill have in mind is one that has recovered its imperial greatness and the wonderful impunity that comes with being the international hegemon. Oh happy days!

Why has the government done this? Many senior figures in the armed forces are certain to be unhappy at this unravelling of their brand as modern, rule-based, civilised and so on. The International Criminal Court is bound to see it as a direct challenge to its authority.


The bill is part retaliation, part provocation.

So far as the first of these is concerned, since the invasion of Iraq the courts have been robust in their pursuit of the armed forces in relation to a series of alleged violations abroad of ordinary and international criminal law. In a recent article included on this site (TORTURE THEN AND NOW: THE ROLE OF THE JUDGES) I have detailed the extent to which the judges have had to overcome high levels of hostility, obstruction and deliberate obfuscation from the authorities in cases of this nature. Nor has it only been the judges: on one occasion even the government’s lawyers went so far as to consider sending in the Metropolitan Police to try to find relevant materials within the Ministry of Defence. This is all a far cry from the good old days when, in the analogous context of Northern Ireland, judges like Lord Widgery, Lord Denning and Lord Diplock went out of their way to protect the forces of law and order from close scrutiny. The government has not liked the result, and nor have many parliamentarians. A Defence Select Committee report in 2017 attacked the use of the law in this context and then the exposure of one solicitor’s wrongdoings in the field of evidence-gathering gave the antagonists of what they call “lawfare” their chance. This bill is the result.

Then there is the provocation. The government appears desperate to get the leader of the opposition Keir Starmer off Covid-19 and onto “elite metropolitan issues” like the rule of law, human rights and the prosecution of patriotic soldiers for “doing their job.” It was the same in the mid-1990s when a then-rampant shadow home secretary Tony Blair was constantly being forced to defend his party’s hostility to UK anti-terrorism laws—to his intense embarrassment. Starmer has not yet risen to the bait. So far as this bill is concerned that has been hugely disappointing. It can surely not be doubted that the British public know the difference between doing your duty and murdering and torturing innocent people. This was a conversation Starmer could have afforded to have, and where he might well have been persuasive. Next up will be the Human Rights Act. Labour will have a big decision to make then about whether to defend it or let it go. That will tell us a great deal about how they will govern: compromises of this serious a nature may be made in opposition but their moral contamination is hard afterwards to shake off.

With this bill we have further evidence of what the UK does not stand for: human rights, an ethical military and the rule of law. With Brexit we know it rejects regional co-operation too. What’s left? Trade deals with the Old (aka White) Commonwealth? The display of imperial power? You cannot govern a country on the basis of nostalgia however loud you shout.


The Government defies international law

Before getting to the remarkable turn the UK government is inviting parliament to make with regard to what we can I suppose still call Brexit, it is worth recalling some background.

The European Union (Withdrawal Agreement) Act 2020 declared itself a measure ‘to implement, and make other provision in connection with, the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU’. It received Royal Assent on 23 January.

The Agreement to which it refers was finalised on 19 October 2019. It contains a Protocol on ‘Ireland/Northern Ireland’. Under the terms of this Protocol (Article 10(1)), a range of EU laws (set out in Annex 5 to the Protocol) ‘shall apply to the United Kingdom, including with regard to measures supporting the production of and trade in agricultural products in Northern Ireland, in respect of measures which affect that trade between Northern Ireland and the Union which is subject to this Protocol.’ There are exceptions to this requirement (Article 10(2)) which are to be determined by the ‘procedures set out in Annex 6’ of the Protocol. These procedures entail the setting of the detailed rules by an EU and UK ‘Joint Committee’ (established under Article 164 of the main treaty) which then has the power to vary them. But if ‘the Joint Committee fails to determine the initial level of support and percentage in accordance with [this Annex], or fails to adjust the level of support and percentage in accordance with [it], by the end of the transition period or within 1 year of the entry into force of a future Multiannual Financial Framework, as the case may be, application of Article 10(2) shall be suspended until the Joint Committee has determined or adjusted the level of support and percentage’: in other words, all favourable treatment will be out the window.  The institutions of the European Union, and in particular the European Court of Justice, are specifically given a role with regard to the interpretation of, among other provisions, Article 10: Article 12(4).

All of this clearly constituted a huge range of concessions by the UK to the ongoing application of EU law within the state. Anything with a whiff of Northern Ireland to it becomes exposed to EU restrictions even if the investment under scrutiny is not based in Northern Ireland or not primarily aimed at that part of the United Kingdom. But the agreement of the 19th October is a Treaty and the Protocol is part of it: no one doubts that.  Nor is there any dispute that the treaty forms part of international law by which the UK has agreed to be bound. Distasteful in retrospect perhaps, not understood at the time by those who signed it, but so what?  Countries often sign treaties they dislike and want to get out of later. But they are generally stuck with them. The example of Germany under Chancellor Hitler did not end well, despite the short term domestic popularity of his rejection of the Treaty of Versailles. And unlike that German leader, the United Kingdom constantly protests its support for international law, calling for its better enforcement and excoriating those countries (like China in relation to Hong Kong) that it says breaches its terms.  Even when the UK has waged controversial wars (such as with regard to Iraq) it has gone to endless trouble to establish an international law explanation, however flimsy others might regard it.

The UK government has now published a bill which promises (or threatens) to depart from this decades-long approach to international law.  If enacted, the United Kingdom Internal Markets Bill as currently drafted purports to authorise domestic public authorities to seize the powers of the Joint Committee unto itself: clause 40. This might be to implement the Protocol (clause 40(2)(a)(i)) but it does not have to be: clause 40(2)(a)(ii).  Clause 42 envisages ministers having the exclusive power to manage the movement of goods between Northern Ireland and Great Britain. A power of unilateral interpretation of Article 10 of the Protocol is likewise asserted: clause 43. And then, just in case all this was thought to be some mistake or administrative aberration, clause 45(1) asserts that both clauses 42 and 43 and their related regulations shall have effect ‘notwithstanding any relevant international or domestic law with which they may be incompatible or inconsistent.’  This is specifically said to include the Ireland/Northern Ireland Protocol: clause 45(4)(a).

What is going on?  It is obvious why a senior government lawyer resigned: it was his job to ensure that bills respected the law, and this one manifestly does not. Maybe the government intends to withdraw the clauses but if it does humiliation cannot be avoided: these are such bald claims that they cannot be finessed by a qualifying word here or there. Maybe it hopes that the measure will fail in Parliament and so it will have demonstrated its determination without openly flouting what the country has long claimed to be a central principle. Again it is hard to see this happening without an embarrassing insistence on its own defeat: such is the strength of both its control over the lower house and its capacity to override the Lords. Will the courts strike the clauses down?  Again very unlikely as the Bill is unequivocal and recent case-law (not least the Miller decision on the prerogative) has emphasised parliamentary sovereignty rather than wider ethical claims of human rights and the rule of law (as one or two earlier cases did). Maybe the powers being discretionary there is no intention ever to deploy them, but if this is the plan then why bother going to all this trouble for nothing? Perhaps it is a cunning plan to lure the EU into ending all talks and so guarantee a ‘no-deal’ Brexit for which it hopes the EU will get the blame, but the provocation is so egregious this outcome seems unlikely, and anyway why turn guaranteed national decline into immediate suicide?

Of course there may well be international and European legal proceedings.  In the short term though this deliberate use of Ireland to raise the stakes with regard to the EU puts a hard border in Ireland back on the agenda, and closer now than it has ever been: the EU simply has to have territorial boundaries to maintain the integrity of its single market and this will have to be in Ireland if it is not in the sea between Northern Ireland and Great Britain. Anyone with any knowledge of Britain’s conduct in Ireland should not be in the least surprised by this. A former Secretary of State’s claim that Britain has no ‘selfish, strategic or economic interest’ in Northern Ireland may have been true in 1990 when it was uttered but it is manifestly not the case today.

The greatest damage, though, will be to the United Kingdom’s sense of self. It runs no empire anymore; indeed it can barely hold itself together.  Its government hates human rights and tries to abandon them when it can. Regional co-operation is out.  True the government says it is committed to British values, but that can’t be true any longer as these are said to include ‘the rule of law’. The freedom Brexit seeks to achieve has no content.

10 September 2020

In Quarantine

An anonymous academic borrows my blog post to describe how LOCK-DOWN is playing out for them.

So what can I say?

I have a salary, access to plenty of shops, my health, a garden and a family (with all of whom I get on). Sure I have to do a Zoom meeting now and again, do other worky stuff, and generally stay on top of things. The kids are little and there is neither school nor a child minder. The kitchen needs to be cleaned, the bathroom too, and I need to remember where the hoover is.

Difficult it is not; relaxing it (almost) is.

The experience is so different from that of so many that I hesitate to write anything here: I am the definition of privilege.

And yet what’s new?  I have been for years, so affluent that I can flaunt socialist leanings, so educated that I can afford (in every sense) to look with more interest than horror on the world as the decline warned against for so long finally kicks in. And wow has it come upon us fast: extreme weather, pandemics, flooding and months-long fires screaming at us ever more loudly that our game is up. This virus no doubt will pass, just as the Australian bush gradually stopped burning (did it?), but they and they rest will be back.

We will survive as a species but as humans we are changing.

Our masks and our socially distancing will be as common place as clothes, and as hugs and handshakes used to be. Will it be worse even than that? Behind its veneer of empathetic bonhomie, privilege is a dangerous enemy, especially when cornered. Is the future also one of gated communities, paramilitary police and selective access to our no-longer-so-natural resources?

It does not have to be.

There might survive through the present times a flicker of a memory of what it is like to live in a fair society. Social democracy got a decent wind after the Second World War because capital power (privilege) feared something worse, true revolution. Might the prospect of dystopian chaos do today what the fear of communism did in the late 1940s: concentrate the minds of the powerful, to concede to survive? We need political leadership though, and who goes into (proper) (ordinary) democratic politics today?

A wandering mind is another creature of privilege, only made possible by the satisfaction of basic needs, and the time quarantine gives to think. Part of me wants to die before the road to the end is where we all have to be. But mainly I want to watch the unravelling and fight as best I can, using what few tools I have, to help restitch the world as the social democratic community that is its only escape to a kind of safe space.

 

A metropolitan professor

The People versus Social Sciences

 

A Memoir, looking back on and celebrating a night at LSE on 10 March 2020 when social sciences research was put on trial, by the judge who presided.

 

I think, looking back, that the highlight of my judicial career came early, not long after I had been appointed to the High Court bench but before my promotion to the Court of Appeal.  It was just on the verge of the onset of the great cultural freeze that marked the start of what we now call the Corvid 19 era (or ‘the 19’ as many simply refer to it). On 10 March 2020 we had over 300 present, bunched together, sharing the pleasure of the trial with friends and colleagues alike. Ah what happy, innocent days! When to be alive was, to paraphrase the poet, bliss and to meet more than one person the very heaven.

 

I digress: solitude turns even a mind as separated from feeling as my own in on itself. The hearing was one of the first at which an idea was put on trial before a jury made up of an audience of all those both physically present and watching the event remotely.  Of course the format has since become a staple of populist entertainment during the 19, but the living audience present at our event gave it a tangible sense of energy and purpose, a dramatic power that added greatly to the enjoyment of all.

 

Now it is a matter of public record that the format was subject to some criticism on appeal (albeit the verdict – more on this later – was left undisturbed), but I still think my clerk and I and our team had devised the best possible way of getting the arguments for and against social sciences before our large jury.  Readers will of course recall that each side had its own legal team, the prosecution of social sciences led by Mr Paul Kirby supported by junior counsel Rachel Middlemass, with the defence team composed of Professor Julia Black and Dr Muthukrishna.  Each side had three witnesses to present their case, with each cross-examined by the other side to expose weaknesses in their argument. The prosecution paraded Professor Bandiera, Professor Travers and in a surprise late development Dr David Halpern who has left academia and runs the ‘nudge unit’ at the centre of government, no 10 Downing Street (whose purpose I recall misunderstanding at trial – such are the risks attendant on not reading daily news as of course we judges do not).  On the other side, the social sciences were defended by Professor Richard Blundell (UCL), Mr Hetan Shah from the British Academy and Dr Rachel Glennerster. As a judge I have long believed in brevity as a route to truth and my savage time limitation of ten minutes on each witness (for both examination-in-chief and cross-examination) was on the whole cheerfully accepted.

 

The evening produced so many highlights, and not only because, as fate would have it, it was to be the last of my trials before the onset of the 19: Professor Bandiera attempting to explain that the only thing wrong with wonderful social sciences research was that it did not communicate its findings well enough; Dr Halpern magnificent in his assertiveness while being verbally assaulted by Dr Muthukrishna whose spontaneous flowering as an advocate of aggressive distinction was one of the most dramatic moments of the whole occasion; Professor Blundell unstoppable in his final impassioned peroration on behalf of the Institute of Fiscal Studies of which he is such a vital part; Professor Travers dependably laconic and devastating in his knowledge despite giving the impression that he had wandered on stage by accident having taken a wrong turning after class; Hetan Shah imploring us to take social sciences seriously as he starts work running a key social sciences institute; Dr Glennerster passionately asking us to look at how important research in this arena is to international development. Of course none of it would have been possible without the labours and the eloquence of counsel, not only Muthukrishna but the authoritative Black, the eloquent Middlemass and the Periclean Kirby as well (master of the abusive peroration). I caught sight on occasion too of the busy student-lawyers who had done so much to make the work of counsel so impressive. I had my clerk find out who they were afterwards: Laure Barbe, Chong Bu, Valentinia Canepa, Cora Drozd,  Deepali Masirkar, Luciné Mehrabyan, Victoria Suarez-Rubio and Khurshid Zafari: I salute you all – you made your bosses appear better than they were, the role of trainee lawyers the world over.

 

It would be churlish of me at this juncture not to acknowledge as well the excellence of my Clerk Mr Sullivan: ours was not an easy clerking relationship – I remember a particularly difficult trial before this one and I own to having a short temper – but as (now, finally and perhaps deservedly) senior clerk he did a first class job.  So too did the jury-managers, the wonderful Lubala Chibwe and Molly Rhead, and the many ushers on the night. Though I often think otherwise, my trials are never only about me.

 

And what of the result? The jury found social sciences not guilty of having failed society by a substantial margin, I think (though memory must serve; the records were lost in the great 19 isolation) by about two-thirds to one-third.  This was despite my having lightened the burden of proof from ‘beyond reasonable doubt’ to ‘on the balance of probabilities’.  (The appellate court’s stinging criticism of this decision by me was, in my opinion, quite unwarranted.)  That may be, another digression from a solitary man winding down his life, but as now back as promised to the outcome: it was surely both right and wrong. Right because where would we be without the ability to put ourselves in context, to take ourselves away from both beauty and the past (the humanities) and the soulless microscope (the physical sciences) and instead to turn the gaze in on ourselves as living social animals? Wrong because in our effort to do this we do not apply our own social critique to ourselves to see how the constitution of our world – our social construction of it – tempts us always into obscurity, irrelevance and the worship of the false Gods of the past, people with foreign names and unreadable supposed accounts of the way things are.  Somehow we muddle through, like the supply chain in those golden pre-19 days, understanding the causes of things ‘just in time’.

 

 

 

Conor Gearty is a professor at LSE and a Barrister.  He is not a judge though he continues to hope against hope…..

 

 

My initial thoughts on Miller/Cherry

In March 1954, that distinguished forerunner of today’s politics, senator Joe McCarthy of Wisconsin, was directly challenged by the famed American journalist Ed Murrow about his virulent attacks on what his equivalents today call the ‘enemies of the people’. The courts had earlier given McCarthyism a blank cheque but the media (or at least Murrow) was not so complaint. The programme didn’t bring McCarthy down by itself but it punctured his balloon of self-righteous fury, as it turned out for good.

It is hard to tell at the moment of its occurrence whether any given populist bubble is being conclusively burst. But the chances are the Supreme Court has just done a Murrow.

Without question this is the finest moment in the annals of the UK’s judicial history. Building on the work of their Scottish colleagues, the Supreme Court has unanimously – all eleven of them! – found the prime minister to have exceeded the limits of the prerogative power to prorogue parliament when he advised the Queen to do just that at the end of last month. These prerogative powers have been around for a bit, having served as the attack dogs of despotism in monarchical times gone past.

Slowly but surely in the democratic era they have been brought under the umbrella of the law, leaving just a few whose use was thought to be so clear and obvious as to not need legal enforcement. Her Majesty could be left in a pretend world of power while democracy eddied around her and prime ministers did the right thing. The prorogue power was thought to be one of those. Not any more; Boris Johnson has seen to that. Baroness Hale went further than anyone imagined in not only declaring his advice to Her Majesty unlawful but in quashing the resultant Order-in-Council, even asserting (on behalf of the Court) that she wasn’t sure whether he had any role in the reconvening of Parliament that followed inexorably once you accepted that it had never actually gone away (para 70).

Why did the court do it? The constitutional reason – an entirely good one – is that the Court has deduced from the fundamental principles of representative democracy and accountable government a set of constraints on power that flow from these principles and which must as a result adhere to all exercises of public power including those of the most senior political figures in the land (paras 41 and 46 of the judgment).

The deeper truth lying behind how these principles were deployed in this case leads us to something that was once a commonplace but these days is a glory rarely to be found in the shrill word of Brexit politics. In law, reason still matters. Facts are relevant. Nonsense doesn’t work. How can you justify the Prime Minister’s power by saying he is accountable to Parliament when you have just dispensed with Parliament? Why on earth do you need to cancel Parliament for weeks to do a Queen’s speech? Deceitful or deliberately obtuse replies to these basic questions might get you through a three-minute media interview or a noisy prime minister’s question time, but they can’t survive the forensic attentions of independently minded lawyers with time to draw the non sequiturs, the contradictions and the lies to the surface.

This case is not about the judges seizing the policy agenda whatever the critics of the outcome might say. It is concerned with process not substance, with how things get done rather than what is done. Strongly hostile to democracy in days gone by, the judiciary have now embraced its fundamental tenets, taking to heart what we all say matters to us. In this decision the judges are oiling the democratic machine, not telling it what to produce.

And then, undeniably, there is the Johnson factor. Finding this kind of thing open to judicial scrutiny (‘justiciable’ as it is called) is a very big deal indeed – three very senior judges in the original English proceedings had thought it obvious that the courts should not interfere as had the first Scottish judge to look at the matter. Many of the eleven Justices have history as supporters in broad terms of executive power. But Boris Johnson made the case about something even larger than the prerogative. He seems intent on ignoring the Act of Parliament that orders him to seek an extension to the Article 50 process if matters are not resolved by mid-October. He didn’t bother to supply the Supreme Court with what basic decency and tactical acumen would have suggested was essential – a statement of his own side of the story. While asserting the prorogation had nothing to do with Brexit he at the same time treated that very same prorogation as a vital part of his Brexit strategy. During the case it was not even clear he would obey whatever ruling the Court came up with, or that at very best he would seek to circumvent it using any loophole that residual judicial deference might have left open to him.

This Prime Minister’s behaviour made the case not only about the integrity of our whole system of representative democracy but also, and crucially, about the very existence of the rule of law. Even executive-minded members of the judiciary draw the line at that. And unanimity also meant that the attack dogs of populism have eleven reputations to rubbish, not six or seven. Solidarity would not seem to be a value which the prime minister recognises, but the judges have just shown they do understand its importance.

This Supreme Court decision is a telling illustration of why all populist authoritarians need to dismantle the independent judiciary. If Johnson were given the election he wants his rabble-rousing might well deliver a majority as it has in the past for the likes of Putin, Erdogan and Orbán. But they all have needed to destroy the courts and on his current form Johnson would have followed that path had he had the chance to score a populist victory at the polls. In one of the odder quirks in this unfolding drama, representative democracy and the rule of law may owe their survival to the inflexibility of the Fixed-terms Parliament Act, preventing the PM from playing the populist card.

Richard Nixon suffered a defeat in the US Supreme Court, on 24 July 1974. His was ‘only’ 8-0. He responded defiantly for a little while, declaring the case itself to be unconstitutional. Just over two weeks later he had resigned.