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A law professor has gone viral on social media after discovering how his students pass time during his seminars.

Matthew Steilen, a constitutional law specialist at the University of Buffalo, New York, posted an image to Twitter of a bingo card produced by some of his more creatively-minded students.

The game, “Professor Matthew Steilen’s Brain Intellect New Growth Operator”, features a coloured headshot of the man himself surrounded by 24 words and phrases.

Discovered the students had a bingo card for my seminar and I've never been more pleased pic.twitter.com/PVo6FHr1rG

— Matt Steilen (@MJSteilen) November 29, 2021

Examples include the legalisms “Habeas Corpus” and “Confrontation Clause” as well as some more colourful entries such as “Shit” and “Holy. Fuck.”. And who says constitutional law is boring?

The winner, according to the rules, is the student who completes a row, diagonal or column, and shouts “bingo” when Steilen calls on them to answer a question.

The prof’s post has gone down well on Twitter, racking up over 5,500 retweets and nearly 100,000 likes.

It went down well with Steilen too. “Discovered the students had a bingo card for my seminar,” he wrote. “I’ve never been more pleased.”

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The Guardian is on a warpath looking to expose any outdated practices that the monarchy happens to retain. They have recently struck gold after discovering the impact of an archaic convention known as Queen’s consent.

This convention is not a well-known element of the constitution, brushed off as a formality on the Crown’s website. Its significance has been well and severely understated; it has potentially major effects on the way in which the law is passed, and indeed The Guardian discovered that it did shape the law.

In this article we will consider the nature of conventions and then proceed to explore the most pressing question of the month (other than who is Jackie Weaver? And where is Handforth?), this is the question of what is Queen’s consent, and why should we care?

To start off your intellectual meal, a little bit on conventions. Conventions have a major role to play within the UK’s constitutional structure, and have been a longstanding source of our uncodified constitution. Despite this, unlike other sources of our constitution such as ‘constitutional’ Acts of Parliament, a lot of conventions are unwritten. Now, naturally a lot of people, especially outsiders to the UK’s unique constitutional arrangements, would gasp at the thought of having constitutional sources that are entirely unwritten, or at least sources that were originally unwritten. After all, the majority of the world’s legal jurisdictions have codified constitutions. This neatly separates constitutional principles from principles that are less so.

Further, it allows for transparency of the law, which is a key principle of the Rule of Law in that the law should be accessible to all (which is rather important when dealing with constitutional issues). Currently, due to their nature, not everyone is aware of every convention. Such was the case with the Queen’s consent (which is not even covered in public law modules). This convention is described as “a different constitutional beast” by David Allen Green in his blog. He further suggests that it was “hiding in plain sight”. As we shall see in the course of this article, it really is a constitutional beast and should be abolished.

The Queen’s consent is an entirely different form of convention to royal assent, they function entirely independently of each other. Whilst assent is granted after the bill has passed parliament, the Queen’s consent is actually obtained whilst the ‘law’ is still in its early stages, whilst it is still a bill. Essentially, Queen’s consent is the mechanism by which the monarch grants ‘permission’ to parliament to debate the bill. According to the guide published by the Office of the Parliamentary Counsel it seems that the process of obtaining Queen’s consent is relatively simple and straightforward. All that is required is a simple nod by a Privy Counsellor in the House of Commons. In the House of Lords, it’s the same process but the Privy Counsellor actually does it orally. An insignificant procedural difference.

What is significant, however, is the difference between royal assent and consent. Royal assent is always granted (by convention) and it would be unthinkable for any self-respecting monarch to withhold assent — it would create a major constitutional crisis (and probably lead to some sort of revolt). According to the parliament website, the last time assent was withheld was in 1707 by Queen Anne. Clearly, royal assent has no actual power other than being completely ceremonial. Further, royal assent is very rarely given in-person by the Queen, in almost all cases the Speaker of the House of Commons or Lords would declare that royal assent had been granted.

Queen’s consent on the other hand is an entirely different story: it has actual power to influence legislation (however minor or major), as The Guardian pointed out in several of their investigative reports. This convention was used by the Royal Family to their advantage on several occasions; by the Queen in the 1980s to exempt her from certain disclosure legislation in terms of shareholdings, and by Prince Charles, who has used his power of consent over many years, starting in 1967, and most recently in 2002 with the Prince’s consent on the Commonhold and Leasehold Reform Act 2002.

More interestingly so is the difference between the source of power of royal assent and the Queen’s consent. Royal assent is derived from prerogative powers which is an ancient power attributed to the monarch. In the 21st century it is entirely ceremonial (as mentioned above) and given on the advice of the Prime Minister. Contrarily, and note this is a stark difference, Queen’s consent has no source of authority. There is no legal authority for consent. It is not based on prorogative powers. Queen’s consent has thus become a convention without having any sort of legal standing whatsoever, it is simply accepted by people to be part of the legislative process.

It is unfathomable that in the 21st century the Queen and the Prince of Wales hold such great power all whilst the UK is branded a constitutional monarchy. It may well be a constitutional monarchy in theory, but it seems that the monarchy has a lot more power than previously thought. Long gone is the time when the monarch could claim the throne ‘by the grace of God’. The population accepts the monarch as the head of state, but not as the head of state installed on the throne by God through a supernatural power. In essence this is a private individual that has the power to influence any and all legislation relating to the properties of the Crown and anything to do with the Crown’s powers.

It would be outrageous if we decided one day that the average family, for example the ‘Smith family’, held the power to shape legislation to protect their private interests through an exemption whilst everyone else in the country has to abide by the law. Clearly, this convention of Queen’s consent is something which is contrary to the rule of law, where the law applies equally to all. We are no longer living in the middle ages where the King or Queen may make up (or in this case shape) the law as they please. In this case of course, the law would still apply to the monarch but for any exemptions that they forced into the legislation through their powers under consent. It must also be noted that this does not look good with respect to the separation of powers, where the monarchy has influence over the executive in their policy planning (asking for exemptions) and the legislature with their requirement to obtain ‘permission’ to debate a certain bill.

Evidently, reform is drastically needed in order to prevent such blatant disregard towards equality under the law. Thankfully, given that this convention does not have any legal source of authority it can easily be removed and it would be good for the Crown if this convention was indeed removed in order to avoid further scandals in the future. Could this be another annus horribilis for the Crown?

Michal Smigla is a first-year law student at the Institute of Law, Jersey. He’s interested in contract and criminal law, and aspires to qualify as a barrister or Jersey advocate.

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During the course of her reign, HRH Queen Elizabeth II has been given the power of consent over 1,000 laws, it emerged this week.

An archaic constitutional rule has meant that parliament has referred draft bills covering all sorts of areas such as charity law, tenancy law or pensions law, to the Queen who then gave her consent to them.

Not to be confused with the ‘Royal Assent’ that all bills get before they become law, a purely rubber stamping exercise (but perhaps also in need of reform?), the Queen’s consent is a power that has been in place since the 1700s and relates to specific bills that might impact on her private interests.

The Guardian published a database of the laws that have been subject to the bizarre consent procedure. They cover a very wide range of subject areas (including data protection– lucky her…).

There are also reports that the Queen was allegedly able to lobby behind the scenes for changes in a few of the bills that parliament had sent to her: the most startling example is evidence that appears to suggest that the Queen used the procedure to make changes to a 1970s law in order to prevent some of her private wealth becoming public knowledge.

The extent to which the monarch could — and can — lobby for substantive changes remains unclear.

Speaking to Legal Cheek, Paul Evans, a member of University College, London’s Constitution Unit, and author of a report on constitutional vetoes on the executive, says:

“The Queen’s Consent is not a veto: it would not be possible for her to actually prevent legislation coming in but the Guardian investigation does appear to show that, on certain occasions, there may have been some influence. It is extremely hard to say how deep that influence goes. Would it be any more or less than the major party donors that lobby ministers?”

Thus far, Buckingham Palace has sought to downplay the role of the Queen’s consent, stating that the role of the sovereign is “purely formal”, and that “consent is always granted by the monarch where requested by the government”. Ditto the Cabinet Office referring to the “longstanding convention”.

Others are calling for a change to this procedure. Senior constitutional law lecturer at the University of Liverpool, Adam Tucker, writing in the Guardian, argued that: “there is no place for this process in the working of a 21st century democracy.”

The Queen’s Consent was reviewed in 2013 by the House of Commons Political and Constitutional Reform Committee and, ironically, a bill was put forward to abolish the power but, in the end, such action was considered unnecessary because, says Evans: “Parliament’s most senior officials told the committee that it could just drop the consent at any time and it was parliament that chose to put this requirement for consent in place and so could simply change its mind”.

One outcome of the 2013 examination of the Queen’s Consent is that there were slight changes to the power, explains Evans. Prior to that date, “if a sovereign’s interests or prerogatives went to the heart of a bill, there could, potentially, be a block on the bill even being debated so that you wouldn’t know if the Queen had expressed any views on it. But since then, the power only becomes ‘live’ immediately before the third reading: withholding consent at that stage would be a very public action.”

David Allen Green, solicitor and well-known legal commentator, is arguing for the power to be abolished. He had this to say:

“There is no good reason why the head of any state should have the privilege of the protection and promotion of their private interests by their private lawyer as a formal part of the law-making process.”

As Evans puts it: “If the process of seeking Queen’s consent relating to her private interests (as opposed to her royal prerogatives which is an entirely separate issue and, I would argue, needs more urgent attention) gives the impression of undue influence — and that is not good for the Royal Family’s public image — why not get rid of it altogether? Parliament should finish what it started back in 2013.”

It appears the battle for control of parliament continues: last year it was whether or not the government could prorogue parliament, this time it’s the Queen’s powers over parliament. Whatever next?

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Pop star Halsey has revealed she’s studying law with the view to sit the California bar exam.

In an Instagram post last week, the American singer-songwriter shared a montage of photos with her 20 million followers depicting how she’s spending her time in isolation during the coronavirus lockdown.

Among the seven snaps she shared there was a close-up of Erwin Chemerinsky’s ‘Constitutional Law’. Halsey, whose real name is Ashley Frangipane, captioned the photo series: “Law is fun but hard.”

“Why are you studying constitution law? Any reason in particular or general curiosity?” one user commented, to which Halsey, who is perhaps best known for her duet with duo The Chainsmokers in hit 2016 summer soundtrack Closer, revealed she intends to sit the California bar exam.

Other fans praised the pop star for her new endeavour. “You’re doing great things even outside of music,” wrote one, while another said, “I think it’s really cool you have another interest and career to take if you ever decide you’re done with performing. Good on you.” The 25-year-old songstress is vocal about political and social issues on her social media channels.

Halsey isn’t the only celeb to hit the law books. Last year, reality TV star and socialite Kim Kardashian revealed she is studying to become a lawyer.

Kardashian enrolled on a four-year legal apprenticeship with a San Francisco law firm in the summer of 2018, with a view to sitting the California bar exam in 2022. Despite not holding an undergraduate degree, the 39-year-old has been able to make a foray into law as California is one of a number of US states that allow wannabe lawyers to enter the profession via a period of on-the-job learning.

Halsey’s fans think she could be studying for the Cali bar exam “the Kim K way”. One user commented: “In the state of California, you don’t have to go to law school in order to take the bar exam. You just have to find a legal apprenticeship, pass the first-year law student’s examination and then pass the bar. Also, California has the hardest bar exam with only a 54.3% pass rate. Good luck, girl.”

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Law to its students can be dry and faceless. But on 13 October 2016, “the law became alive.”

As polarising fund manager Gina Miller entered the High Court for round one of her so-called ‘Brexit case’ (“we were very, very careful that the case had to be about the black and white letter of the law — it was not about Brexit”), she’d already been subjected to every threat, racist slur and sexist jibe under the sun.

But in a spectacular example of picking through the weeds to find a flower, Miller tells me:

What was amazing was how much publicity we were getting. It’s a positive — people were talking about the law, the constitution, they were googling it, finding out more. A professor told me: ‘Gina, constitutional lawyers are usually sat in the corner, but you made them sexy.’

Miller — an EU supporter, Labour Party member, history geek and adrenaline junkie — knew that legally her case was watertight. A big fan of the Tudor period, Miller was “quite familiar” with the history of the “simple” prerogative powers on which she was relying. Her confidence was further cemented by the faith she had in her lawyer, Lord Pannick QC.

The Blackstone Chambers barrister and constitutional law guru is, she says, one of the two “greatest minds” in the British legal system. The other is controversial Supreme Court justice Lord Sumption, who, thankfully for fangirl Miller, ruled with the majority in her case. “Obviously Sumption is a judge so we couldn’t approach him [to act in the challenge], but Pannick we hoped we could and he was straight away interested in the case,” she recalls. “Whether that was luck or timing, it was a fantastic outcome.”

Like most the country Miller was enchanted by Pannick’s fierce advocacy skills and powers of persuasion.

Well if that's a tight rope walk over a constitutional trap, I'd say Pannick is tap dancing on it! Go Pannick go go go!

— Lucy Series (@TheSmallPlaces) December 6, 2016

But for her it was more than that. “Sitting in court with Lord Pannick, it was very emotional on so many levels,” she recalls. “But on a very personal level, it brought back memories of me sitting in court [in Guyana] watching my father.”

Miller is the daughter of a top QC and the former Attorney General of Guyana, Doodnauth Singh, with whom she credits for her lust for justice. She explains:

My father had a very strong view of justice and social justice in its widest form, and I’ve always been like that too. I’ve always had that as a very strong influence and personality trait as well. The two together has meant that I have always been very interested in the place that the law has in our society.

A combination of Pannick’s sharp wit and the case’s constitutional law grounding led to a roaring claimant victory in both the High Court and the Supreme Court, despite the febrile environment in which it was conducted. Now, in a strange twist of fate, University of East London law school dropout Miller will feature on law student syllabuses for years to come. She continues:

One university professor sent me a paper he’d written that has the case and my name in it. He said: ‘you might not have finished [your law studies], but your name is now set in stone in our legal system and will be taught.’ That really brought tears to my eyes — I felt so proud to have been able to have contributed something.

Cementing her law student fame further, Miller says: “I did a talk at the Cambridge Union, and one of the students printed out the case and asked me to sign it! It’s quite an extraordinary thing.”

Gina Miller and her legal team leaving the RCJ to applause, tells press 'this is about process, not politics' pic.twitter.com/0fcGXerTQY

— Legal Cheek (@legalcheek) November 3, 2016

Having scaled the rocky terrains of the legal history mountain, Miller is enjoying surveying the view. But the next peak is in sight. She explains:

If this government misuses Henry VIII powers [ancient prerogative powers that give the executive sweeping powers] to bypass parliament, I will go to the courts again and seek to uphold the judgment in my case against the government. I am keeping a very close eye on what happens throughout the exit process. If the government does overstep its legal boundaries, I will go back to court.

Sleeping for a crazy four hours a night, Miller is what I can only rightly describe as a workaholic. “Absolutely,” she agrees, “I’m very fortunate in that I’ve never needed a lot of sleep, which means I get a lot done.”

A lot indeed. Holding the government to account is perhaps a natural extension for marketing graduate Miller, who since the financial crash has been campaigning fiercely to end erroneous practice in the financial world and to encourage super-rich City success stories to give back.

“It’s only right in my view that corporations and individuals who are successful should give back to the society that has afforded their success,” Miller says. She’s particularly into pro bono, because: “We could have a government of any colour and they would not have enough money to pay for all our public services.”

But for all her love and appreciation for the legal system, Miller knows corporate law, like corporate financial services, isn’t perfect. Unconscious bias still operates in the City, and it can be a hostile environment for female lawyers.

Want to whinge about it? Don’t, a hard-headed Miller tells me:

I’ve never fought against that; I have accepted it as a reality. You have to work hard and you sometimes have to do more work than you think you have to do. I don’t see the point in complaining — you have to prove your worth and then you have to walk the path so other people can follow.

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A silk has told a panel of judges and politicians that Lord Chancellor Liz Truss may not be so unpopular if she was an old, white man.

Nathalie Lieven QC, a public law and human rights specialist at Landmark Chambers, made her comments at a recent panel event at King’s College London. The panel was made up of former Attorney General Dominic Grieve QC, Supreme Court justice Lord Clarke, former Supreme Court justice Lord Phillips, former Lord Chancellor Lord Falconer and hosted by Maajid Nawaz of LBC Radio, making Lieven the lone woman. She said:

I have to say, I’m obviously here as the token woman, I’m obviously here with the diversity hat on. I do very much wonder whether if Liz Truss had been an elderly, white male, he would have got quite the level of fury Liz Truss got.

Tension between the profession and the right-wing media hit fever pitch last year when the tabloids referred to the Lord Chief Justice, Sir Terence Etherton and Lord Justice Sales as “enemies of the people” for ruling against the government in the Article 50 Miller case. The Justice Secretary got a fair amount of stick for failing to defend High Court judges against these press attacks, with some going as far as to suggest she broke the law.

But was this fair? David Blunkett, Lieven recalls, used to routinely attack judges while he was Home Secretary, and there was not quite the same level of outrage.

Lieven’s remarks followed those made by Falconer, an unashamed Truss sceptic. Speaking at last week’s Europa Law debate — which raised money for the Stroke Association — he said that even though judicial independence is “very, very engrained” in society, judges will begin to become pressured if the state itself begins to support attacks on judges. He added:

[B]e under no illusions, if you can attack judges in the way the President of the United States of America attacked the judges that held, after a judicial hearing, that his executive immigration orders were flawed legally, if you end up being abused like that… the idea that this is not going to affect the body of judges over time is absolutely nonsense.

Lieven “completely disagreed” — judges are not going to be intimidated by comments they read in the Daily Mail (the newspaper famous for that ‘ENEMIES OF THE PEOPLE’ headline). “They aren’t the judges I know,” she noted.

This wasn’t the last mention of the right-wing tabloid. Falconer — after stressing that it’s not the Daily Mail he’s concerned about, but the state for seemingly supporting these press attacks — quipped he reads articles about him that are, in his view, “absolutely libellous”, and will then turn the page to read about someone else and thinks “oh god, they sound awful.”

Moving away from the Truss versus judges fiasco, moderator Nawaz went on to ask the panel whether they believe Supreme Court judges are more transparent than their House of Lords predecessors. Perhaps an uncontroversial question, but it prompted this unusual response from current bencher Clarke:

I don’t quite understand what you mean by transparency, what have I got to be transparent about? The colour of my bathing costume?

Um, ok.

An audio recording of the Europa event can be accessed here. Legal Cheek has been informed a video recording will be available in due course.

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Some of the country’s leading lawyers gathered in Middle Temple yesterday evening to consider whether now is the time for the United Kingdom to adopt a written constitution.

Chaired by Supreme Court justice Lord Mance (who did not give his views in the debate but did make notes and yawn quite a lot too), the panel was made up of four constitutional law practitioners and academics. While some thought the UK should stick by its constitution — fundamental principles which lay down how a state is to be governed — others thought now was the time for an update.

One debater, Sir Jeffrey Jowell QC, was particularly pro-UK written constitution. A public law specialist at Blackstone Chambers, Jowell opened his case by admitting:

Some believe our unwritten constitution is not worth the paper it’s not written on, but it has served us rather well.

Despite this acknowledgement, Jowell thinks we should follow the norm and adopt a “simply-worded” codified constitution, and to do it now.

Sir Jeffrey Jowell QC (@BlackstoneChbrs) on the poss of a written UK constitution: "every other nation has succeeded so what's the deal?" ?

— Legal Cheek (@legalcheek) May 4, 2017

Why the urgency? “The EU referendum has shown that we have deep divisions — deeper than I’ve ever known,” he said. Given the public’s increasing distrust of those that represent us, we must ask ourselves whether we are sufficiently happy that minority rights and devolution agreements will be protected by majoritarian rule. “Nothing is permanent when parliament reigns supreme,” he reminded us.

Oxford professor Alison Young, sitting beside Jowell, disagreed with him, and used the public’s distrust of parliament to argue that it’s “certainly not the right time” for the UK to write a constitution.

Speaking yesterday at The European Circuit event, Young said the disconnect between the public and the “elites” will only be exasperated by a written constitution, which may well be viewed as just another example of the elites telling the public what to do. Now is such a divisive time set against a backdrop of political issues; it can be difficult to step away from this and think more widely about what should be in our constitution.

At @middletemple this evening for a European Circuit panel debate chaired by Lord Mance – look at that grin! ? pic.twitter.com/nyviULGJ5W

— Katie King (@legalcheek_kk) May 4, 2017

The two other panellists weren’t quite so forthcoming in nailing their ‘should there be a written constitution in the UK?’ colours to the mast, but did offer an insight into countries that have already benefited from such codification.

Professor Stefan Vogenauer, a German legal scholar and former Oxford professor, was of the view that if you ask the average “man on the Düsseldorf omnibus” whether having a codified constitution is a good thing, they’d say it was. But it’s not a panacea: Germany had a written constitution in the 1930s but that didn’t stop Hitler’s ascent into power. The country’s 1949 adoption of a more developed constitution “was a no-brainer”, but is now the UK’s “constitutional moment”? “I’m not so sure.”

University College Dublin’s Eoin Carolan was on hand to offer his audience of mostly barristers an insight into the Irish constitution.

Like Vogenauer, associate professor Carolan said codified laws have many advantages — accessibility and clarity, for example — but at a time where many are sceptical of experts and politicians, would it be right to introduce a constitution written by experts and politicians?

We’ve muddled along without the pressing need for a written constitution until now, he said; if the union was to break down, however, that could well prove catalytic.

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An NHS doctor turned future University of Aberdeen masters student has written to Theresa May to tell her that her Article 50 notification is “unlawful”.

Andrew Watt, a radiologist from Glasgow who is planning to start his LLM this year, told Legal Cheek he has “major concerns” about Brexit and wants to stop it “completely”.

In his quest to do so, Watt — who is particularly interested in researching Brexit and the UK constitution — told us he sent the Prime Minister a letter in which he says:

Stated bluntly, I believe [the Article 50 notification] is unlawful… To mitigate the potential huge damage to UK businesses, academic institutions and other entities I believe that the United Kingdom’s unlawful attempt at exiting the European Union must be terminated forthwith.

Relying on a series of complex constitutional law arguments, which can be read in full below, Watt concludes May’s triggering of Article 50 may amount to misconduct in public office, a criminal offence. Speaking to Legal Cheek this morning, Watt continued:

Until UK and European courts examine the arguments I put to the Prime Minister it seems to me to be at least questionable whether Brexit can be carried to completion.

However, May calling a general election has proved a bit of a bump in the road for Watt. For starters, he’s concerned the meeting he scheduled with his MP, Stuart Donaldson, to discuss the letter may now have to be cancelled. He continued:

Since I wrote to her, the Prime Minister has called a general election with the intention of removing uncertainty regarding how Brexit is carried forward. My view is that the Prime Minister’s aim is doomed to fail due to the purported Article 50 notification being unlawful.

You can read the letter in full here:

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Thanks to a decision by eight of the eleven Supreme Court justices, the government had to consult parliament on triggering Article 50 and beginning the formal process of leaving the European Union.

Not that, given how torrid a time the government’s lawyers had at the hands of Lord Pannick QC and his associates, there was ever any doubt as to the outcome. Even Theresa May accepted that, having already held a vote in which parliament overwhelmingly ratified the vote to leave the EU in the weeks before Christmas, as well as happily declaring that parliament would be given a vote on the final terms.

The real point of this case then was for no greater purpose than affirming it would be constitutional business as usual, with the supremacy of the Westminster parliament over not just the executive, but also the devolved administrations in Scotland, Wales and Northern Ireland being reaffirmed. The judgment will be most of interest to law students and their teachers (though God help any law student expected to wade through the near century of pages that make up this judgment), but at a cost that may be of interest to taxpayers.

That said, there will still be plenty for constitutional scholars to get their teeth into. With a judgment that covers everything from the Case of Proclamations to Alternative Voting Provisions by way of De Keyser’s Royal Hotel, the judgment is a whirlwind tour through British constitutional history — but it is hardly the great victory for the constitution that Gina Miller made it out to be.

For one thing the case had already been superseded by, first, the vote effectively ratifying Brexit, and second, by May’s promise to give parliament a vote on the final terms of negotiations between the UK and the EU. This not to mention that the second paragraph of the brevity-inspired Withdrawal from the European Union Bill states that none of the provisions in the European Communities Act 1972 (ECA) are applicable in any way shape or form.

So far from being a great victory for the constitution, this case has demonstrated that if the government can’t leap over a constitutional hurdle, it can just pass legislation to remove it from existence. Additionally, it is the government, and not the opposition, that is reaping a political dividend from the aftermath of this case, given that Labour’s shadow cabinet looks set to return to its favourite game of who can resign first.

Indeed, apart from the argument I made in my original article on this case (that there was no point in this case being brought since parliament was always going to get a vote on leaving the EU), in form of repealing the ECA, there are only two other aspects of this case that are worthy of note.

One is that the main irony here is that Lord Reed, Lord Carnwath and Lord Hughes, who dissented from the majority judgment, were also the ones holding the door of hope open to those who want the UK to stay in the EU.

Lord Hughes in particular discussed an interesting possibility. According to his judgment, the ECA did not need to be repealed, merely suspended, since its operation depended on the UK’s accession to the various EU treaties. Since the UK would be entering into formal negotiations to leave the EU, it would no longer accede to those treaties, and the ECA would be reduced to a state of de facto obsolescence. It would however, still be on the statute books. So if the UK ever decided to rejoin the EU, the legal framework would already be in place for it to do so, making a reversal of the decision to leave that much simpler.

By requiring a vote in parliament however, the ECA is now much more likely to be repealed, and so the efforts of claimants Mrs Miller and Mr Dos Santos will be to ensure a more complete divorce from the EU now takes place.

Two, and again this is going back to an argument I made in my original article on this case, the constitution of this country is long overdue a reckoning.

When Supreme Court justices are calling upon cases that are well over four hundred years old for arguments over whether or not monarchs can simply create new powers for themselves (even though Her Majesty has wisely steered clear of the philosophical and political morass that constituted the debates over Brexit), intermingled with questions over whether or not the Bill of Rights can be of any clarity, then what is really being said is that the constitution needs an overhaul. Badly.

In any event, the legalistic farce that this case started is set to continue.

Jolyon Maugham QC, a tax barrister from London, is set to move the stage from the Supreme Court to the Irish High Court in Dublin, where he plans to bring a case against the Irish state over the fact that the UK has been illegally excluded from various EU meetings since shortly after the Brexit vote. Mr Maugham hopes that this case will be referred by the Irish courts to the European Court of Justice (ECJ), given it is really a case against the whole of the EU rather than the Irish. Since it can take up to two years for the ECJ to give a ruling on matters referred to it by the national courts don’t be surprised if the UK has left the EU by then, rendering any judgment of the ECJ rather moot.

Gareth Wood is a graduate in European Politics Society and Culture from Lancaster University. He is now studying the GDL at the University of Law.

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A new would-be Brexit legal challenge hoping to emulate the recent Supreme Court success of Gina Miller reached the High Court today. It lost.

The case was about the United Kingdom’s membership of the single market, a free trade area between the European Union’s 28 member states plus Norway, Iceland and Liechtenstein. Article 127 is the legal mechanism for withdrawal from this. It reads:

Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties. Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.

Campaigners and claimants Peter Wilding and Adrian Yalland said the government has “no mandate” to pull us out of the European Economic Area (EEA) (after all, there was no mention of leaving the EEA on the 23 June ballot paper). The claimants argued it could not do so without parliamentary approval, much in the same way as Article 50 cannot be triggered without the same.

The case was heard in private in December, and the claimants were initially refused permission. However, the applicants renewed their application in open court today.

PM Theresa May has said she intends to withdraw from the EEA and seek a separate free trade agreement with the EU. The claimants said in court that this announcement was amenable to court review. However, the government argued that the challenge was “premature” because ministers haven’t ironed out all the details on how we’ll be Brexit-ing.

After hearing submissions from both Monckton Chambers’ George Peretz QC, for the lead claimants, and Blackstone Chambers’ James Eadie QC, for the government, the court today refused permission. Lord Justice Lloyd Jones and Mr Justice Lewis are yet to give reasons for this.

Speaking to Sky News, legal commentator Joshua Rozenberg said:

The judge was saying to the claimants, really, you’ve come here too soon. Your argument is premature — the government hasn’t made its decisions. If it hasn’t made up its mind, there really is nothing we, the High Court, can do to help you.

Today’s decision is not to be confused with ‘the Dublin case’, a Brexit judicial review challenge scheduled to be heard in the Irish High Court in the spring. This case, championed by Devereux Chambers’ Jolyon Maugham QC, seeks to find out whether notification under Article 50 is reversible. Don’t worry if you got the two confused; one tweeter has already made that mistake.

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The post Brexit: High Court REFUSES to hear single market challenge appeared first on Legal Cheek.

The House of Lords’ Constitutional Committee, which includes Article 50 hero Lord Pannick QC, heard from three Oxbridge law professors this week on the challenges faced in bringing in the Great Repeal Bill, aka the legislation which will realise Brexit.

Professors Paul Craig (Oxford), John Bell (Cambridge) and Alison Young (Oxford) appeared unanimous in their view that in terms of a legislative process, Brexit is “a massive problem”. Professor Craig — who spoke to Legal Cheek about the aftermath of the Brexit vote — told the committee that it was a question of scale: “size matters here…. no one has ever attempted this kind of manoeuvre before.”

From a legislative point of view, the bill has to grapple with how to translate Acquis Communautaire (which, as all EU law students know, means accumulated legislation, legal acts, and court decisions which constitute the body of European law) into UK law in the next two years, the committee heard.

Professor Craig speculated (though didn’t believe it likely) that it could be a short bill which would be a “window through which the entirety of Acquis Communautaire is brought into UK law with the detail to be worked out afterwards.”

There was also bemusement on what should be parliament’s response if the government proposes to use wide-ranging Henry VIII clauses (which gives it the power to amend, repeal or improve legislation without oversight or scrutiny from parliament) to convert EU law into UK law, which it is likely to have to do given “the massive problem” it faces in purely practical terms.

Meanwhile, over in the House of Commons in a Justice Select Committee meeting, top lawyers were giving evidence on a related issue: the impact of Brexit on the legal services industry.

This MP-based committee heard that without freedom of movement of workers and with the UK’s exit from the single market, the industry could be in tatters. “Nothing else of much importance is going to be salvaged,” was Andrew Langdon QC, chair of the Bar Council’s, dramatic prediction.

Alongside Langdon, three others bemoaned the fate of the legal services industry, which generated £25.7 billion for the UK economy in 2015 and contributed £3.6 billion in net export value to the balance of payments. These were Simon Gleeson, financial services guru and partner at Clifford Chance, Alison Hook, co-founder of Hook Tangaza, and Law Society top dog Robert Bourns.

The Lord Chancellor Liz Truss has, however, been keen to be seen to be active in defending the sector. In a City-based lunch recently she spoke of a “bold and bright future” for legal services and stated:

We are already working to make sure we get the best possible deal for the profession.

The jury is out on this one: though legal services was highlighted as an example of a “highly competitive” sector by Prime Minister Theresa May in the government’s new industrial strategy green paper, it is not one of the five sectors which will receive special government support. (The lucky winners of that are: life sciences, electric cars, industrial digitalisation, the creative and nuclear industries.)

For all the latest commercial awareness info, and advance notification of Legal Cheek’s careers events, sign up to the Legal Cheek Hub here.

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Baroness Helena Kennedy QC is one of the most inspirational, experienced lawyers in the profession today.

Having started out as a criminal lawyer, she is now a leading human rights barrister at Doughty Street Chambers and a member of the House of Lords. She has more than thirty honorary doctorates to her name, has acted in some of the most prominent cases of a generation (the Guildford Four appeal, for example) and is widely regarded as a trailblazer for women in the profession.

Now she chairs the EU Justice Sub-Committee, which scrutinises the law coming out of Europe and, more recently, reviews how lives might be impacted by Brexit.

With such a rich tapestry of experience, Kennedy seemed the perfect person to go to for some perspective about Brexit and its potential impact on the legal profession.

For commercial lawyers, and those wanting to be commercial lawyers, there’s not an awful lot to worry about. Though law firms tend not to expand in periods of uncertainty, there will be great opportunities in the corporate world thrown up by businesses’ need for advice. But, she continues:

I’m a human rights lawyer, and we’re about to see the Court of Justice (ECJ) be sidelined. Yes, our senior courts will still look at ECJ judgments, but no more so than, for example, Australian judgments. The big concern is rights, like paternity/maternity rights and employment rights, will be diluted in the long-term.

The committee hopes to alleviate this concern by examining carefully which EU laws should be protected. But it can be difficult to get the message across that a lot of good law does come out of Europe, especially when you have the pro-Brexit media to contend with. The Gray’s Inn bencher continues:

One thing that’s a complete myth peddled by the media is that a flood of law comes from the EU and is in some way done to us. The fact is that Britain is very good at law, and we play a very active role in the law that comes out of Europe.

Press coverage pre and post the 23 June referendum has shaped the Brexit rhetoric, and law of terrorism specialist Kennedy doesn’t think this has been for the best.

“We’re living in an ugly period”, Kennedy tells us, before slamming the Daily Mail and that headline about the High Court judges that ruled in favour of Gina Miller and her Article 50 claim (pictured above). On this, she says:

We’ve seen attacks on our judiciary for doing their jobs, accused of bias because one of them once sat on a European committee — that doesn’t mean he can’t make an unbiased decision.

She continues:

For those of us who care about the rule of law, it was really shocking to see right-wing press round on judges like this. Attacks on the independence of the profession are terrible. Forget what it’s going to do to us as professionals; it’s terrible for ordinary citizens.

But the shocking headlines don’t begin and end with Brexit. “People who are very hawkish in their dislike of the EU tend to also not like the European Convention on Human Rights (ECHR)”, she says.

Baroness Helena Kennedy QC = glasses goals pic.twitter.com/3pusVZ1A0Z

— Legal Cheek (@legalcheek) January 10, 2017

Having been at the forefront of the Convention’s implementation into domestic law, it’s unsurprising Kennedy thinks it’s “regrettable” Theresa May and co are considering withdrawal. After reminding us that it was UK lawyers, and Conservative lawyers at that, who drafted the ECHR, she tells us:

I think people have begun to recognise that majoritarianism can be pretty detrimental to the lives of the minority. Even though withdrawal from the ECHR has been put on the backburner for now, I’m still worried about it.

This isn’t the only thing Kennedy is worried about. The virtual abolition of legal aid in certain areas, the “growing horror” of secret courts, remnants of old-style gender discrimination lurking behind firms’ and chambers’ doors, the inadequacy of rape laws: the profession has an awful lot to contend with nowadays.

Against this backdrop of discontent, an aspiring lawyer would be forgiven for jacking it in and pursuing a career elsewhere. But that’s not what Kennedy wants to put across. Her message is this:

We need people with good hearts and high standards of ethics to come into the law because we are going to need people to champion cases, to hold big corporates and the government to account.

Interested? Here’s Kennedy’s advice: be bloody minded. Have interesting experiences you can call upon at interviews, and not just a work placement at a fancy law firm that your uncle got you. Those driven by money alone need not apply.

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The post We spoke to Baroness Helena Kennedy QC about Brexit appeared first on Legal Cheek.

This day last year, we posted our first ever Legal Cheek Journal piece.

A chance for students and young lawyers to submit legal affairs-oriented content to us, the Journal has grown from strength to strength in the past 12 months. We’ve had contributions on Julian Assange, kinky sex, Magna Carta and transgender rights. Top journalist and honorary QC Joshua Rozenberg now has a regular writing slot, and Legal Cheek looks forward to reading even more of your articles throughout 2017.

To celebrate the Journal’s first birthday, the team scoured the past year’s contributions to find the very best of the best. In no particular order and based on a number of factors — including site traffic and social media shares — here are the top ten Legal Cheek Journal articles so far.

1. Do our gun laws leave us open to a US style shooting?

In the midst of recent Europe-wide terror attacks, personal safety is high in the public conscience. Here, LPC student Tom English considers whether the United Kingdom’s gun laws stand up to scrutiny, or whether a ‘US-style’ shooting is likely.

Read the full article here.

2. How law touches on every area of sport

Aside from receiving some of the nicest comments on any Legal Cheek article ever, Ali Farooq’s whistlestop tour of this little known practice area has proven an invaluable resource for budding sports lawyers.

Read the full article here.

3. Could new EU legislation spell the end for vaping?

Swapping cigs for vaping devices was all the rage in 2016, but by the spring users were becoming concerned EU legislation was set to rain on their parade. John-Mark Tawadrous, a solicitor and self-confessed vape user, was on hand to explain.

Read the full article here.

4. Assisted dying — a right not a request

Alex Bedford’s sensitive and persuasive article on assisted dying put forward the case for its legalisation. Drawing on his own experiences, student author Bedford told readers there’s no excuse: now is the time to fight for legislative reform.

Read the full article here.

5. Brexit: who can pull the Article 50 trigger?

It takes guts to stand up to authority, and that’s exactly what London School of Economics student Kristyna Muhlfeitova did when she challenged David Cameron and Theresa May’s Brexit stance.

Read the full article here.

6. Why I think you should be able to buy illegal drugs from licensed shops

One of the more contentious articles of the year came from Peter Baker, an aspiring solicitor who thinks licensed charities should be able to produce and sell drugs to users over the age of 18. His piece certainly divided opinion in our comments section.

Read the full article here.

7. What would happen if the Queen went on a crime spree?

Cambridge law student Alex Shattock had readers giggling with his eclectic constitutional law piece about Elizabeth II hypothetically committing an armed robbery. The legal barriers in place to stop authorities prosecuting the monarch are pretty intense.

Read the full article here.

8. The Article 50 Brexit challenge needs to be successful, here’s why

The first of a number of pieces written for us by incoming trainee Michael Walker. The Cambridge law graduate put his stake in the ground and said exactly why he thought Gina Miller was right to bring her now famous judicial review challenge.

Read the full article here.

9. Are the courts too soft on contract breakers?

Law student Dalia Damanhouri got us all thinking when she questioned whether the judiciary is simply too lax when it comes to contract law disputes.

Read the full article here.

10. What do Spider-Man and Superman teach us about criminal justice?

Last summer, Exeter University student Joel Wish unearthed some of the interesting legal lessons tucked away in the pages of comic books. Who reckons they can sneak Batman and Superman references into their criminal law exam papers?

Read the full article here.

The winner of the Legal Cheek ‘Best Journal Contribution’ gong will be selected by an independent judging panel and announced at the Legal Cheek Awards on the evening of Thursday 16 March. You can view the full collection of shortlists published so far here.

The post Happy birthday to the Legal Cheek Journal! appeared first on Legal Cheek.

The lead claimant in the Brexit legal challenge has revealed the horrifying impact bringing the judicial review has had on her and her family’s lives.

Fifty-one-year-old investment manager Gina Miller spearheaded the legal challenge against the government’s assertion it would trigger Article 50 without parliamentary approval.

Though the Supreme Court ruled by a majority of eight to three in the claimants’ favour last week, Miller’s involvement in the case has thrust her into the media spotlight, sometimes unfavourably.

Brexit legal challenge: the Supreme Court has ruled IN FAVOUR of the claimants Gina Miller by majority of 8 to 3 ??

— Legal Cheek (@legalcheek) January 24, 2017

Take the Daily Mail, which has long pedalled a staunch anti-Miller, pro-Brexit stance. Last week, the site ran an article describing her as a “shameless self-publicist” who allegedly made “false claims” about having a law degree.

On the law degree issue, the Daily Mail claimed a statement on the website of Miller’s firm SCM50 said “Gina has three degrees in marketing, human resource management and law.” There are neither screenshots of this in the article nor any record of this in the Google cache. But, the newspaper continues:

In truth, Gina Miller does not have a law degree. She did study for one at the University of East London, but left before sitting her final exams…When asked about the discrepancy, her lawyers told the Mail she was unaware of the false claim prominently displayed on the website and said the responsibility for the mistake lay with a freelance copywriter.

Alongside questions about her education, Miller has been left at the mercy of angry Brexiteers who resent her for bringing the legal battle. Death threats, rape threats and racist abuse against Miller have been an unfortunate feature of the Brexit legal challenge journey. At every stage of the case, the judges involved warned the court against it, but it’s persisted.

Two people have been arrested, eight cease and desist letters have been issued through the Met Police and at least 12 other inquiries are ongoing, so it’s unsurprising this ordeal has had an impact on the businesswoman. Now, in an interview with The Mirror, Miller has revealed just how detrimental this impact has been.

Admitting she is “frightened”, “fearful” and always looking over her shoulder, the mother of two young children said:

We’ve had graphic letters where they’ve taken the time to cut and paste images of me being shot, beheaded, gang raped. They send very long messages on email or through LinkedIn. One person put a £5,000 bounty on my head for me to be run over.

She also recalls receiving a warning that she will be the “next Jo Cox”. A former Labour Party politician, Cox — who regularly campaigned on issues relating to the Syrian civil war — was murdered in June 2016. Clearly concerned by the comparison, Miller continued:

These are genuine threats. These are people who know where my office is and can see me walk in in the morning.

She also told the newspaper that she has installed panic buttons in her home, that she no longer uses public transport and that her children are very concerned about their mother’s safety.

Guyanese-born Miller has lived in the United Kingdom since she was ten and considers it her home. Breaking down in tears during the interview, she confessed the abuse has made her contemplate leaving the country. She said:

That’s the thing that upsets me most, the idea my security could be so at risk that I would have to leave the UK. I don’t want to leave my home, my friends, my family… I don’t want to leave the UK. But the choice would have to be Britain, or my children and my family’s safety.

Miller’s candid interview comes just days before the government is set to debate the Article 50 bill brought about by her legal challenge victory. Just a few lines long, the draft European Union (Notification of Withdrawal) Act 2017 will get its first spell on the House of Commons floor tomorrow.

Read the full bill here:

UPDATE: 1:12pm Monday 30 January

Thanks to an anonymous commenter, we now have a screenshot of Gina Miller’s website law degree claims, thanks to internet archive tool Wayback Machine.

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The post Gina Miller warned she’ll be the ‘next Jo Cox’ as she admits she doesn’t use public transport and has panic buttons in her home appeared first on Legal Cheek.

I’ve been in court at every stage of the Brexit legal challenge, from the case management hearing at the Royal Courts of Justice in July 2016 to the Supreme Court’s judgment hand down this week. History was made with the Miller judgment, and I’m glad I got to experience it.

The importance of the case has always weighed heavy on the court’s shoulders. Things got serious really quickly: anti-EU protesters picketed claimant Gina Miller’s solicitors firm, Mishcon de Reya, in early July. The case hadn’t even reached the courtroom by this point, nor had Miller been named as the lead claimant.

Judge Sir Brian Leveson used the case’s first spell on the courtroom floor as an opportunity to condemn this abuse, but it persisted. A 55-year-old man was later arrested for sending her racist threats online, with judges at every stage — Leveson, Lord Thomas and Lord Neuberger — forced to remind their audiences that abuse like this will not be tolerated by the justice system.

Consistent and widespread, the abuse highlighted how highly-charged and emotive the Brexit legal challenge was. Though very pantomime-esque, the wig and gown-donning protesters outside the High Court on day one of the first instance hearing, 13 October, brought this mood to life.

Inside the courtroom, things were a little more humdrum, yet the first hearing still managed to feel like a legal profession red carpet event. Lord Pannick QC, Lord Thomas, Sir Terence Etherton, Jeremy Wright QC — if you hung around in the corridor long enough you were bound to bump into someone. Even University Challenge legend Ted Loveday was watching from the wings!

With big events comes big interest, and rafts of people flocked to the RCJ to watch the show. At the preliminary case management hearing, the whole courtroom was bulging at the seams. It was vacated and everyone shifted over to Court 4 just minutes before the judges took their seats. At the hearing itself, the High Court was more prepared, so set up cinema-style screening rooms (‘overflow courts’) to help meet the demand.

Unfortunately, the camera angles left a lot to be desired and the audio was scratchy. The courtroom was the place to be, certainly when the High Court’s much-anticipated judgment was handed down.

The fear in the courtroom was palpable: it’s worth remembering that up until days before, almost no one believed Miller and co had a chance of success. Legal affairs journalist Joshua Rozenberg, Oxford EU law academic Paul Craig and others went on record to this effect. And then this happened:

BREAKING: the CLAIMANTS have WON the Brexit judicial review challenge

— Legal Cheek (@legalcheek) November 3, 2016

The mood in court that day was certainly upbeat, probably because there were so many claimants in attendance. I had the awkward experience of bumping into Charlie Mullins, millionaire plumber and Miller claim backer, outside the RCJ toilets and not realising who he was until the BBC’s Laura Kuenssberg jumped on him as he left the building. Miller herself was there at every stage too. Often flanked by bodyguards and/or her legal team, she looked nothing but steely and focused.

Mullins and Miller were of course thrilled with the result, but in and among the joy there was a lot of disappointment and the occasional unjustified scathe. The right-wing press’s reaction to the judgment hand down shocked even the most seasoned lawyer.

With the profession busy rounding on the right-wing media and later Justice Secretary Liz Truss for failing to defend the judiciary from the right-wing media, the government filed its leapfrog appeal with little fuss.

But by the time the case reached the Supreme Court, the press had been churning out accusations of judicial bias for weeks. Tensions were at fever pitch when all eleven justices convened to hear the case on 5 December.

These accusations clearly had an impact: Neuberger admitted the judges had taken the very unusual step of asking the parties whether they wanted any justices to recuse. Watching from the media suite on that day, journalists couldn’t believe what they’d just seen. I felt a similar way when I found out how expensive a Supreme Court meal deal is.

You heard it here first: a meal deal from the Supreme Court is £7

A photo posted by Legal Cheek (@legalcheek) on Dec 7, 2016 at 5:55am PST

A bigger bugbear for me was the lack of meaningful protest outside the court. There were a few eccentrics — a man Irish dancing with no trousers on, for example — but as for an organised, group effort, zilch. I got the impression the court was expecting some: the security/police presence was intense (I felt very nervous to pap my meal deal pic), but perhaps not necessary.

Ultimately — regardless of the media interest, the case’s importance and Pannick’s dreamy advocacy — a four-day hearing about the constitutional law intricacies of prerogative powers can only be so interesting. Journalists and other courtroom-goers looked noticeably pained when Dominic Chambers QC began his submissions on the history of the royal prerogative, while James Eadie QC, for the appellant government, also induced some yawns.

That’s why we were grateful for the occasional lighter moments. The now famous tomato/tomato, De Keyser/De Keyser exchange provided some light relief, as did Lord Sumption’s colourful tie collection. Wearing a Team GB tie on day three of the hearing, then ruling in Miller’s favour? Sumption is officially the biggest tease on the Supreme Court bench.

Otherwise, the ruling went mostly as people expected. The court dismissed the government’s appeal eight to three, which means MPs will now vote on whether to trigger Article 50. Will parliament decide to block Brexit? Weirder things have happened.

The post The story of the Brexit legal challenge, by somebody who went to every hearing appeared first on Legal Cheek.

Richard Susskind has told the House of Lords he advocates an “entirely new” legislative process that embraces technology.

Giving evidence this morning to the Constitution Committee, futurologist Susskind told his captivated audience to “take a step back” and consider doing things differently — but not too differently.

Academic, author and speaker Susskind made clear he didn’t promote giving lawmaking powers to robots, and quipped “I’m not as radical as you might think”. He said:

I’m absolutely not here today to say you take the discretion, the judgement, the creativity and the constitutional responsibility and the legislative responsibility away from human beings and give it to machines.

Susskind — who thinks law schools should change their teaching strategies to reflect technological developments — continued:

I’m saying we can probably adopt a rather different view of how it is we make the law available and how we change and update it.

He specifically advocated a “legislative information system”. This organisation-wide integrated workflow system would acknowledge the huge amounts of documents lawmakers contend with and “overcome inefficiencies of paper-based systems”. Later on in his evidence giving, Susskind discussed the introduction of rules that “automatically update themselves” when events happen.

Red alert: someone just made a "computer says no" joke at the Constitution Committee's evidence-giving session into technology and the law

— Legal Cheek (@legalcheek) January 11, 2017

University of Glasgow graduate Susskind did, however, note that there are a number of barriers to adopting such a tech-heavy system.

Unless you have strong leadership, he argued, automation and innovation “never happen”. He also noted that lawyers and legislatures — given their deference to precedent — tend to be more conservative than their commercial counterparts and therefore more resistant to change. Though the fear of the unknown is in some ways legitimate, the least likely outcome in our world is that nothing is going to change, so legislatures need to be pro-active in embracing this change.

You can listen to Susskind’s evidence in full here.

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The post Richard Susskind champions ‘entirely new’ lawmaking process, then tells Lords ‘I’m not as radical as you might think’ appeared first on Legal Cheek.

The doors into the library of the Supreme Court of the United Kingdom are engraved with a facsimile of the Magna Carta, signed by King John of Runnymede in 1215. One of its two most important clauses has been picked out: “To no man shall we sell, or deny, or delay right or justice” (article 40).

However, this famous quotation from Magna Carta seems to be gradually losing its effect, given the increasingly widespread unaffordability of legal advice and representation. The effect of court closures, particularly magistrates’ courts, means an increased travel cost for court users, and the severance of magistrates’ links with their local communities.

The reasons for this are not far-fetched.

The Ministry of Justice and senior judiciary recently put forward plans for reforms, representing a profound change in how justice may be done in England and Wales in the future. The purpose of this article is to consider the effects of these reform proposals, particularly with regards to the desire to close supposedly under-used magistrate courts. This follows the argument that these proposals signal an end to the prominence of magistrate courts in England and Wales.

Magistrates’ courts date back around 650 years. Their official birth came in 1285, during the reign of Edward I, when ‘good and lawful men’ were commissioned to keep the King’s peace. From that point, and continuing today, Justices of the Peace, now magistrates, have undertaken the majority of the judicial work carried out in England and Wales (about 95% of criminal cases are dealt with by magistrates).

The importance of magistrates, and indeed magistrates’ courts, cannot be overemphasised.

It is assumed that the diversity and humanness that magistrates bring to the court gives the public confidence in the judicial system. Lord Irvine, while he was Lord Chancellor in 1999, reiterated this point when launching the campaign for more diversity in magistracy:

Magistrates come from a wide range of backgrounds and occupations. We have magistrates who are dinner-ladies and scientists, bus drivers and teachers, plumbers and housewives. They have different faiths and come from different ethnic backgrounds, some have disabilities. All are serving their communities, ensuring that local justice is dispensed by local people. The magistracy should reflect the diversity of the community it serves.

Nevertheless, the magistracy has had its own share of criticism.

In a report in 2014, Transform Justice, a charity group that campaigns for a fairer justice system, found that the number of magistrates has freefalled, with a 28% decline noted since 2007. On a similar note, it was reported that magistrates are “considerably older, whiter and more middle class” than the general population and less diverse than they were in 2000; spurring up concerns that the magistracy’s constantly shrinking and facing an existential crisis.

However, the institution is set to face its most difficult challenges to date in the near future, challenges that perhaps threaten its existence.

In a consultation paper presented to the UK parliament and released in September 2016, the Ministry of Justice and senior judges jointly made proposals for what could be tagged ‘swift and certain justice in a modern justice system’ — a principle among which is a closure of underused magistrates’ courts for a more technological and faster online justice system.

The desire to close rural courts, justified by the clichéd government argument of ‘swift justice’ and ‘cost-efficacy’, has sparked a lot of fears about the government’s commitment to access to justice, especially for the poor and vulnerable members of the society. The decision to sell buildings to fund modernisation may not be so ridiculous, but reports showing that some may have sold for as little as £1 says a lot about the effect of these reforms.

There are many who share similar resentments for these proposals, but perhaps these reforms are inevitable in a modern world. Since the spending review commitment of £700 million for court technology last year by the HM Treasury, details of what reform really means — beyond new iPads in court and a war on paper files — have been much anticipated. The reforms are expected to deliver savings of approximately £200 million a year from 2019-20 onwards.

This raises the question whether access to justice could be sacrificed under the guise of saving money. Despite campaigns launched by local court users, only five of the 91 targeted for closure — nearly a fifth of all courts and tribunals in England and Wales — were reprieved. The closures were justified on the grounds that, on average, the 86 courts closing were only used for just over a third of their available hearing time. More than 97% of citizens would still be able to reach their required court within an hour ”by car”.

Nonetheless, the grave implications of these reforms cannot be over-emphasised. As director of the Centre for Justice Innovation Phil Bowen noted, if more cases are heard online, and if more court buildings are shut, are these reforms pulling apart the case for continuing to have a lay magistracy in England and Wales?

In his words:

But there is, of course, something deeper about the connection between court closures and the future of the magistracy — it unpicks the thread that has tied magistrates to their communities for so long. It is a direct assault on perhaps the magistracy’s most cogent argument for existence: that magistrates know their patch and know what matters to their communities.

Perhaps it’s time to accept our lay magistrates have now out-lived their purpose.

Omotayo Akorede is a final year law student at Bangor University.

The post Are we about to see the end of the magistrates’ court? appeared first on Legal Cheek.

It’s the start of 2017, and us law lovers over at Legal Cheek are already looking forward to a jam-packed year of legal affairs goodness.

Here are some of the biggest of the big landmark legal affairs stories set to hit press in the next 12 months.

The impending demise of King & Wood Mallesons

It looks almost inevitable now that once well-respected City outfit King & Wood Mallesons will enter administration at the beginning of this year. The firm is no longer paying all its staff and has notified its intention to appoint administrators.

A glimmer of hope: a number of magic circle firms and other top corporate players have agreed to take on the stricken giant’s trainees. As for future trainees, it looks like they’ll be given priority over other candidates when it comes to filling training contract vacancies.

Judgment due in the Brexit Supreme Court challenge

After four days of fierce advocacy, intense constitutional law arguments and a series of wacky ties, the eleven justices are expected to give their Miller judgment this month. The press will be all over this one.

Expect more law student syllabus-changing Supreme Court rulings

Let’s not get totally swept away in the Brexit bonanza. There’s a ton of other interesting appeal judgments likely to be released in the new year.

There’s the case of MM, which concerns potentially discriminatory immigration rules — coined the “anti-love law” — which impose financial restrictions on non-EEA spouses and family members wanting to join their loved ones in the United Kingdom.

Eagle eyed readers may also remember the A and B case, the claimants in which argued health secretary (and pantomime villain) Jeremy Hunt had breached his legal duty by not providing Northern Irish women abortions in the UK on the NHS. There are also some interesting human rights issues in this case, so expect a thought-provoking ruling.

Though there’s a whole host of other Supreme Court rulings due, the fourth and final Legal Cheek would like to point out is Paulley. This case can aptly be described as the ‘wheelchair vs pram’ case, and concerns which takes priority when bus space is limited. We’re really interested to see which way this will go.

Changes to legal education

On 9 January, a Solicitors Regulation Authority consultation into major changes to legal education ends. It looks like the LLB -> LPC -> TC route to qualification could be turned on its head and replaced, at least in part, by the Solicitors Qualification Exam (SQE). The big hope is that this will make qualification cheaper, but at what cost?

The bar is also considering a similar transformation to its educational structure. Extending its consultation to the end January, one radical new idea — backed by the Bar Council — involves splitting the Bar Professional Training Course (BPTC) into two parts, with law school attendance compulsory for only the second half.

Merger mania

Last year was a good year for merger stories, and the fun continues into 2017. On 1 February, new transatlantic tie-up Eversheds Sutherland (Eversheds and US firm Sutherland Asbill & Brennan) will go live. Then it’ll be CMS Cameron McKenna, Nabarro and Olswang’s turn to solidify their status. This merger will go live 1 May.

Introduction of the apprentice levy

Big companies — that means big law firms — will be forced to pay an apprentice levy of 0.5%. This is all part of the government’s plan to create three million new apprenticeships by 2020, and it comes into force on 6 April.

Aspiring barrister-friendly pupillage gateway to debut

As of 2017, the pupillage gateway dates have been moved so students will know if they have secured a training placement before committing to the costly Bar Professional Training Course (BPTC). Instead of April/May, bar hopefuls will now make their applications in January. Best of luck!

New judicial stars

Come December, the Supreme Court bench will look pretty different to how it does now. For one, president Lord Neuberger will be retiring this summer, as too will Lord Clarke. With a whole host of statutory retirement dates coming up in 2018, other judges might soon be announcing their intention to step down sooner. Keep your eyes peeled.

Law firm gender pay gap naming and shaming

From 6 April, all employers with at least 250 employees will have to publish gender pay gap figures. With law firms quick to profess their love for diversity, it’ll be interesting to see whether the figures match up.

The Great Repeal Bill

The legal twitterati will be all over this one, we can just feel it. A draft bill repealing the European Communities Act 1972 is expected in the spring of this year. This will end the supremacy of EU law over domestic law, something which will no doubt thrill Brexiters. But it’s likely to be a constitutional law minefield, so hang tight.

It looks like it’s going to be a busy 2017!

The post Dates for your diary: The big legal affairs stories to look out for in 2017 appeared first on Legal Cheek.

Legal affairs geeks are counting down the days until the Supreme Court gives its much-awaited Brexit ruling, and the bookies are already pretty sure it’ll be a win for the respondents (the claimants).

According to Betfair.com, the odds are 1.23 (or 2/9) that the High Court’s ruling will be upheld and that the government will lose its appeal. That said, “MPs are 1.15 (2/13) to vote for Article 50 to be triggered”, making it likely the Supreme Court’s judgment will not ‘block Brexit’ as many tabloids are making out.

This seems to loosely correlate with the views of the experts. Joshua Rozenberg QC for one has described the High Court judgment as “appeal-proof”. Writing for Legal Cheek on the Miller saga — specifically about the difference between the claimant’s and the government’s arguments — he said:

Pannick’s arguments strike me as much more grounded in the real world. So too are the arguments put by Dominic Chambers QC for the second respondent, Deir Dos Santos.

Other eagle-eyed commentators, like Cloisters lawyer Schona Jolly, have shared similar sentiments.

I have now read the #Art50 judgment in full. It is a comprehensive victory for the claimants. I cannot see the Supreme Court undoing this.

— Schona Jolly (@WomaninHavana) November 3, 2016

Of course if one has learnt anything from 2016, it’s that betting odds should not be taken as gospel. Even in the context of this case, at the early stages the country was sure Miller and the other claimants didn’t stand a chance. Even Oxford professor Paul Craig — who student readers may recognise as one half of EU law bible authors Craig and de Búrca — told Legal Cheek:

The legal arguments here are very complex and contestable. My own view is parliament definitely has the power to demand a parliamentary vote before Article 50 is triggered. The issue is that parliament doesn’t show any inclination to do this at the moment. So the question is this: is there a duty enforceable through the courts for parliament to debate and vote before Article 50 is triggered? On this point, my view is no, but that’s what the courts will have to decide.

It was only in the days, even the hours, before the Lord Chief Justice sat down in the Royal Courts of Justice to give his judgment that opinion began to shift slightly the other way. People started to wonder whether the claimants actually had a chance. And then, of course, this happened:

BREAKING: the CLAIMANTS have WON the Brexit judicial review challenge

— Legal Cheek (@legalcheek) November 3, 2016

In the context of the Supreme Court’s ruling, these anti-popular opinion murmurs have already started, asking ‘is it really inevitable Jeremy Wright QC and friends’ appeal will be dismissed?’ Some believe Lord Pannick QC, acting for the lead claimant, came under a surprisingly intense shower of fire from Lord Neuberger and the other justices, which may imply the bench took issue with some of his arguments.

Lord Pannick getting a grilling from Lord Neuberger on binding force of 2015 act, members of court nodding along as Pannick gives response

— Legal Cheek (@legalcheek) December 7, 2016

Others have pointed out that, while the judiciary is a politically neutral body, it does not operate in a bubble. The wider implications of this decision will be weighing heavy on the justices’ shoulders — will this influence their decision? Rozenberg is quick to say it will not, but we’ll have to wait until the new year to learn the government’s fate.

The post The bookies’ odds: Will the Supreme Court overturn the High Court’s Brexit ruling? appeared first on Legal Cheek.

To some, it was no OJ Simpson. But, overall, I think the Brexit Supreme Court case has been pretty fun.

There was that time Lord Sumption used an incredulous raising of his eyebrows to wither a QC; there was that moment the Daily Mail did a shocking expose on how ‘judges know people who publicly supported Remain and have worked at organisations where other employees within those organisations have criticised Brexit!’ (eye-opening stuff); or when people noticed that Lord Pannick sounds like ‘panic’ and hilarity ensued.

But there have also been some moments of deathly seriousness.

The fact Lord Neuberger had to begin the case by noting death threats had been made against parties within the action really did unmask the current aching cracks at the heart of the United Kingdom’s constitutional order. Parties arriving flanked by bodyguards reminds us of the very real price that people like Gina Miller are having to pay for legitimately taking this action — and it goes far deeper than the £60,000 she has needed to pay to protect her life.

Edging away from these more sinister elements of the case, let’s plunge ourselves full-faced into the excitement of it all.

The main protagonists

Stepping up to the mound to bat against the first pitch of the World Series, a member of the local softball team.

It’s fair to say the justices reacted with an underarm throw to attorney general Jeremy Wright QC, who, having been cruelly called a “a third-rate conveyancing lawyer”, genuinely did a decent job.

It was notable that he went unquestioned by the justices. Only when the government’s slugger stepped up to the plate did the curve balls start flying and James Eadie QC was really pushed by Lord Sumption eyebrow-acrobatics. *Extended baseball metaphor over*

Now, for an admitted legal pipsqueak like myself, it is completely ridiculously for me to make criticisms of what are incredibly qualified and accomplished lawyers, to who I couldn’t hold a candle. And yet, here I go again.

The attorney general of Northern Ireland is called John Larkin, and by all accounts he had a disaster. It couldn’t have happened to a better man (see his attempt to invalidate all equalities legislation in Northern Ireland because it didn’t allow Christian bakers to discriminate against a gay-marriage-supporting customer). At the Supreme Court, Larkin was doggy paddling in an Olympic pool, causing me to laugh heartily and obnoxiously in his general direction.

Then Lord Pannick, for the claimant, began to speak. The words whirled around him, like light reflecting off the water — a thing of beauty, disguising its inherent, captivating power. The gentle rise and fall of his voice lulled you back to laying upon a lilo in a Spanish villa’s pool.

In other words, he did law real good.

The government’s arguments

Wright began by saying that “parliament can look after itself”. This is unbelievably bizarre, and akin to arguing that a tough guy shouldn’t have the protection of the criminal justice system. But the law does not apply differently depending on the strength or otherwise of the victim. Equally, constitutional law principles apply regardless of how powerful the beneficiary of those principles is.

Another of their arguments was that the foreign policy prerogative can be used to change domestic rights because there are already examples of this happening. Eadie and Wright pointed to how UK ministers within the Council of the European Union, for instance, can alter EU laws and rights by acting within the prerogative on the international plane.

But this is nonsense.

Firstly, it is an extreme simplification of how rights are adapted through the Council; it isn’t a matter of a UK minister acting alone, in fact they could vote against or for a change and be overruled. Saying that a minster contributing to a collective decision making process on the international plane is analogous to a Secretary of State using the prerogative to take the UK out of the EU on his own isn’t sustainable.

As well as being very different vehicles, they’re proposing to do two very different things. As Lord Mance puts it, there’s a “huge difference” between changing the rules of the club and deciding to leave the club. For the former, the domestic impact that stems from that collective decision also travels through a path which is parliament-endorsed — the ‘time to time’ provision within the European Communities Act 1972. In contrast, Article 50 notification’s domestic impact would not be travelling down a parliament-endorsed path; no statute has endorsed such an action having domestic impact.

To simplify this, it’s like saying a path is travelable by everyone if it is travelable by anyone — a jogger can run down a motorway because a car can. Well, no, not only are the vehicles of travel entirely different, but the car’s passage on that path is explicitly legally permitted whilst the passage of the jogger on the motorway is not. The jogger can’t justify his action by pointing to the actions of a car.

The claimants’ arguments

In terms of the long list of counsel involved, outside of my disappointment that the Scottish Lord Advocate did not turn up in full brave heart regalia and face paint and begin his submissions with a guttural cry of ‘FREEDOM’, there is the performance of Helen Mountfield QC for the People’s Challenge which crystallised the complex issues and expertly spread bountiful amounts of scorn upon the government’s case.

Immediately after came Manjit Gill QC. Gill’s voice electrified the courtroom air, as it thrust a genuine anger at the government’s argument into the proceedings. A strong start it was to stare straight in the eyes of the justices and declare with beautiful theatre that “hard cases make bad law — but this is not a hard case!” It was a massively different approach, and his role appeared to be to highlight the impact of the government’s intended actions on vulnerable people. He injected his argument with emotion, ensuring the very real consequences for European Economic Area (EEA) children living in the UK was at the forefront of everyone’s mind — a captivating image when set against a backdrop of complex, legal fencing:

Be ready to pack your bags and go — it is that stark…we are going to use you as a bargaining chip.

He exquisitely painted the bleak reality at the heart of an astute legal point: leaving the EU exposes EEA-born children living here to criminal liability and expulsion as soon as the withdrawal occurs which, according to the government, could legally happen without any substantive parliamentary input. Making something a criminal offence which previously was not without reference to parliament is an obscene breach of parliamentary sovereignty, and putting it in these terms urgently and persuasively increased the gravity of the consideration the justices must make. Lord Neuberger seemed to enjoy this submission, with its energy and force of emotional importance; he would interject with supportive clarifications and couldn’t have been quicker to grant Gill a few extra minutes to develop his argument.

Overall, my coveted ‘Favourite Supreme Court Advocate of the Miller Case’ gong goes to Manjit Gill QC, who paired his legal ripping apart of the government’s case with genuine and convincing exasperation at the weakness of what they were arguing, picking up what Eadie has said and discarding it with disgust — “just a complete nonsense!”

His final words deafened those of Eadie and will continue to reverberate within the justices’ heads, long after the week of the hearing:

This is no time to turn a flexible constitution into a slippery one.

What we learned

Outside of the fact that Lord Sumption really ought to sell his own range of ties?

Well, what has been clear is the diversity problem at the bar and judiciary. It is one thing knowing the facts (only 13% of QCs are women; only 5.9% of all judges are BME; only 6% of all barristers are from a working class background), but when you see a high profile case such as this being livestreamed and almost everyone is white, the vast majority of those in the first stream of rows are male, and nearly every one of the advocates and Supreme Court justices sound like a Downton Abbey extra, it hits home in a very visceral way. It’s not something capable of being dealt with in this article, but it’s worth noting.

We were also reminded that this was a case which, on the law, the government really shouldn’t have appealed. The difference in the amount of questions asked of Pannick and Eadie must not be construed as Supreme Court bias — it’s reflective of the gaping holes in the government argument, which were exposed by the High Court judgment and were incapable of being plugged before the appeal.

By the time Eadie was making his final reply on the last day of the hearing, the justices had begun playfully batting his argument around like a bear would do with its food — a justice casually turned to Eadie and asked him “isn’t that just a Jury Point (‘one that had no logically persuasive force but might influence a jury which is not too much concerned with logic’)?” Eadie looked back in horrified amazement, and frantically assured them it was nothing of the sort. “Now, there’s nothing wrong with a jury point if it’s a good one” gleefully contributed another justice. The bench erupted with laughter; Hale chimed in by noting that “well, we’re the size of a jury”, which was both accurate and hilarious. They chuckled while Eadie grimaced, the laughter splitting through the seriousness of his argument like a hot gavel through butter. His argument evaporated into the ether, like the government’s chances had, long before.

‘Law but a poor player’

Overall, nothing across the four days has shaken my belief that the government will lose this appeal and I am happy to stand by my prediction that it could be unanimous.

I think on the devolved issues there will be a split, and it will be fascinating — I’m particularly in love with the argument about the Good Friday Agreement (see Joshua Rozenberg’s Legal Cheek article). But the reaction of The Telegraph, the Daily Mail and gutter politicians like IDS and Farage is equally as predictable.

With that in mind, I’ll quickly note that this is the latest instalment in a series of articles I’ve written on Article 50 for Legal Cheek. I ended up commandeering a famous Shakespeare quote for each, but for this article, and for this topic, it was more difficult. I have found the whole legal battle fascinating but the reaction to it has been a fever pitch of nastiness; a crescendo of vitriol. As such, I will end on the only Shakespeare quote, slightly adapted, that I felt spoke to this fall out:

[The law is] but a walking shadow, a poor player, that struts and frets his hour upon the stage, and then is heard no more; it is a tale told by an idiot, full of sound and fury, signifying nothing.

Michael Walker is a law graduate from the University of Cambridge. He has been offered a training contract.

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