The verdict is in. The Supreme Court has unanimously held that Boris Johnson’s advice to the Queen to prorogue Parliament until October 14 was ‘unlawful, void and of no effect’, since it had the effect of frustrating Parliament. As such, the prorogation was itself void.
In Episode 93, Emma-Louise Fenelon speaks to Isabel McArdle about the ways in which taxation and human rights overlap, with a particular focus on how this has arisen domestically in relation to the licensing of wholesale alcohol trading.
Flags flutter outside Parliament. Credit: The Guardian.
Very few weeks have given the function of the legal system and the role of the courts as much prominence, nor exposed them to as much scrutiny, as the last week. The decision of the Prime Minster to prorogue Parliament, followed by the granting of royal assent to legislation which would require him to seek an extension to the Article 50 process for exiting the European Union, has launched into the public consciousness areas of constitutional law previously the domain only of law students cramming for exams, public law lawyers and academics in tweed blazers. In what at times made Newsnight look like an hour-long revision seminar for Graduate Diploma in Law students, unfashionable concepts such as justiciability, judicial review and the rule of law took centre stage, framed by the context of Brexit.
The High Court has dismissed an application for judicial review regarding the use of Automated Facial Recognition Technology (AFR) and its implications for privacy rights and data protection.
Haddon-Cave LJ and Swift J decided that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilised society. The Court also held that South Wales Police’s (SWP) use to date of AFR by has been consistent with the requirements of the Human Rights Act 1998 (HRA) and data protection legislation.
Nonetheless, periodic review is likely to be necessary. This was the first time any court in the world had considered AFR. This article analyses the judgement and explores possible avenues for appeal.
The Scottish Court of Session (Inner House) today ruled that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful. The High Court of England and Wales today handed down its judgment on the same issue – and came to the opposite conclusion.
How can these two conflicting judgments be resolved? They
can’t, so it’s off to the Supreme Court on 17 September.
Before we delve into the decisions of both courts, a
reminder of some of the key issues:
Prorogation: The act of discontinuing a parliamentary session, until the State Opening of Parliament which commences the next session. It is unlike recess, which is a break in the parliamentary session when parliamentary business is merely suspended, and MPs can be more easily recalled if required. It is also unlike dissolution, which occurs before an election and mean that every MP must re-stand for election.
When Parliament is prorogued, all business comes to an end. Bills which remain in progress (i.e which have not become law) lapse and must be restarted when Parliament is re-opened.
The Prime Minister decided on 28 August 2019 to advise the
Queen to prorogue Parliament. An Order in Council was made that day by the
Queen, effecting the Prorogation. Parliament was prorogued on 9 September 2019,
and – as it stands – will not sit again until 14 October 2019.
Justiciability: The concept of a matter being susceptible to, and capable of, review by the courts. ‘Non-justiciability’ encompasses a number of principles. In Shergill v Khaira,  UKSC 33 the Supreme Court has distinguished two categories of non-justiciability, (1) issues with no basis in domestic law and (2) issues in respect of which judicial restraint will be exercised, due to the separation of powers and judicial competence. The latter is in issue in these cases. Political questions, and certain matters involving the exercise of the Royal Prerogative, are often argued (and held) to be beyond the reach of judicial review. Recent decisions show that the concept is not absolute, even with regard to prerogative powers.
The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.
As we inch towards October, the £100m
government campaign to ‘Get Ready for Brexit’ has been launched. But to all intents
and purposes, the government are jumping the gun. By the time businesses have managed
to get themselves ready for Brexit (again), Boris Johnson will probably have
been required to request an extension to Article 50 under the anti-no deal bill
proposed by Hillary Benn, which today was given royal assent and passed into
Depending on the content of the warnings about medicines, Ms Thornberry may be right. An argument that a deceased’s death has been caused or contributed to by neglect is usually levelled against a local police force that fails to provide basic medical attention to a detainee in need, or a hospital that does not act to counter a life-threatening illness in a patient. It is not commonly deployed against central government on the basis of a decision said to have denied basic medical attention to whole sections of the population.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
Last week, Boris Johnson decided to ask the Queen to prorogue (suspend) Parliament. The decision means that Parliament will be closed for 23 working days, reducing the amount of time MPs will have to pass legislation about Brexit.
Supporters of PM Johnson pointed out that Parliament has already been sitting for around two years. They have also suggested that proroguing Parliament is entirely proper because it is simply an exercise of a prerogative power. Finally, they argue that it will allow the government to hold a Queen’s Speech and outline its plans.
A number of figures spoke against the move:
Tom Watson (Labour) stated proroguing Parliament was an “utterly scandalous affront to our democracy”.
Nicola Sturgeon (SNP) has asked that MPs work together to stop Mr Johnson, or “today will go down in history as a dark one indeed for UK democracy”.
Dominic Grieve (Conservative) described it as “an outrageous act”.
Anna Soubry (Independent Group for Change) tweet that it was “outrageous that Parliament will be shut down at a moment of crisis as we face crashing out of the EU with no deal & for which there is no mandate”.
Ruth Davidson, who had been the leader of the Conservative Party in Scotland, quit. She said her decision was driven by political reasons and personal ones (she recently had a baby). The government whip, Lord Young, also resigned.
Demonstrations took place over the weekend. A judicial review, led by Gina Miller and her legal team, is also being launched.
Following the summer recess, MPs will return to Parliament on the 8th October.
Public order cases involving protests have always sparked controversy, with the collision between the state’s responsibility to ensure the smooth running of civil society and the individual citizen’s right to draw attention to what they regard as a pressing moral concern.
The optics on this are tricky. Protesters giving up their time and energy to raise attention; police moving them on. Which do we support, freedom of physical movement or free expression of thoughts?
There is a welter of debate and criminal legislation behind public protest action and this or that provision that authorises arrest. With the recent case of Dulgheriu & otrs v Ealing Council  EWCA Civ 1490, I want to focus attention on what exactly triggers a prohibition of public protest under Section 59 of the Anti-social Behaviour, Crime and Policing Act of 2014. This provision allows councils to local authorities to issue a “Public Service Protection Order (“PSPO”) to prohibit public protests if they are satisfied that these are “detrimental” to the quality of life of “those in the locality”. Anyone who fails to comply with the requirements of a PSPO or to violate any prohibition contained in the order is liable to a fine of £1000.
The Court of Appeal dismissed a challenge to one of these PSPOs prohibiting anti-abortion protests in the immediate vicinity of Marie Stopes’ UK West London Centre. The Court concluded that the judge below had been correct to find that the pro-life activists’ activities had a detrimental effect within the meaning of s.59 of the 2014 Act. The Article 8 rights of the women wanting to access the clinic’s abortion procedures had been engaged and outweighed the pro-life activists’ rights under Articles 9, 10 and 11.
On Newsnight (see 31 mins, 20 seconds into this episode), former Supreme Court Justice Lord Sumption said that whilst he considered what Boris Johnson has done to be politically “shocking”, he did not expect the courts to block the move, saying that
I think that it’s a very very long shot. This is such an unusual situation that nobody can stand here and say what the answer is definitely going to be, but there are huge difficulties in the way of an application like that … the relations between the Crown and Parliament are governed by conventions … [which are] binding only in the sense that it would be politically costly to disregard them … the courts are not there to decide what are good political reasons and what are bad political reasons, they are there to decide what’s lawful.
The UK Government’s vow to leave the European Union “whatever the circumstances” on the 31st October has left the UK hurtling towards a no-deal Brexit this Halloween, but what does this mean for the rights of people subject to future extradition between the UK and the EU?
For the last 15 years, extradition between EU states has functioned under the European Arrest Warrant (EAW). The EAW is a fast track extradition measure that works on the basis of mutual recognition — the principle that the decision of a court in one Member State is carried out by the courts in another Member State.
Despite appearances in the negotiations, this is one area where the UK and the EU seem to agree on the need for continued close cooperation that largely mirrors current arrangements — the Political Declaration agreed by the UK and the EU envisaged ‘efficient and expeditious’ extradition arrangements.
Lasham Gliding Society Ltd, R (on the application of) v. the Civil Aviation Authority and TAG Farnborough Airport Limited – read judgment
The Claimant, the Lasham Gliding Society, challenged a decision by the Civil Aviation Authority, the statutory regulator of UK airspace, to permit the introduction of air traffic controls in airspace around Farnborough Airport, which is presently largely uncontrolled. Lasham Gliding Society (“LGS”) is one of the largest gliding clubs in the world. Its concern was that one of the effects of the CAA’s decision would be to increase the risk of a mid-air collision between its gliders and those aircraft which divert away from any newly controlled airspace around Farnborough Airport into the adjacent uncontrolled zone over Lasham where its gliders fly.
To put it in more detail, LGS argued that as a result of the CAA’s decision, light powered aircraft would be unable to enter their proposed controlled airspace which would compress them into the limited channel of non-controlled airspace near Lasham, thus creating “bottlenecks” that would increase the risk of mid-air collisions (referred to in the judgment as the “Lasham bottleneck” or “Lasham Gap”
LGS challenged the CAA’s decision on the basis that the CAA had misconstrued the Transport Act 2000; was in breach of its duties under the Act and had acted irrationally. The relevant provision is Section 70 which provides, broadly, that “the CAA must exercise its air navigation functions so as to maintain a high standard of safety in the provision of air traffic services, and that duty is to have priority over [the CAA’s obligation to secure the most efficient and expeditious flow of aircraft, to satisfy the requirements of owners of all classes of aircraft and to take account of environmental objectives, national security interests, etc.].”
Rumours of a coming parliamentary coup to avoid a no-deal outcome rumble on, prompting the usual range of responses.
Speaking at the G7 summit in Biarritz on Sunday, Boris Johnson stated that Britain can ‘easily cope’ with a no-deal Brexit. The Prime Minister ascribed sole responsibility for whether or not Britain crashed out of the European Union on 31 October to ‘our EU friends and partners’, while Brussels officials asserted that it was ‘squarely and firmly’ up to Britain to find a solution to the Irish border issue. His comments come after a week in which Angela Merkel and Emmanuel Macron indicated their unwillingness to countenance reopening the withdrawal agreement, while Donald Trump promised a ‘very big trade deal’ between the United Kingdom and the United States once the country had freed itself from the ‘anchor’ of the EU.
Writing in the Times, Cambridge historian Robert Tombs argues that those who consider parliamentary resistance a legitimate expression of its sovereignty would ‘do untold damage to the institution they claim to defend’ by preventing the government from ‘[carrying] out a policy approved by the electorate’. In the Guardian, Heather Stewart and Rowena Mason covered the opposing view, outlining the key points in the six-page document prepared for Jeremy Corbyn by the shadow attorney general, Shami Chakrabarti. The advice includes an assertion that Boris Johnson would be committing the ‘gravest abuse of power and attack on UK constitutional principle in living memory’ if he shuts down parliament to help force through a no-deal Brexit.
Earlier this week, the archbishop of Canterbury sparked criticism by Brexiteers, including former Conservative party leader Iain Duncan Smith, for reportedly meeting MPs with a view to chairing citizens’ assemblies to stop a no-deal departure from the EU. Today, Jeremy Corbyn met with the leaders of the SNP, the Liberal Democrats, Plaid Cymru, the Green party and the Independent Group for Change and issued a joint statement agreeing to work together to avoid ‘a disastrous no-deal exit’.
Assuming that from now on you will always have to budget your costs? Maybe, but not necessarily…
Generally speaking, we lawyers dislike procedural change. While we may well understand that a particular change is necessary and we will certainly recognise that we need to adapt to it when it comes, such changes nonetheless tend to make us feel ignorant and highly uncomfortable. We have to treat any new procedural regime as a known unknown, which presents pitfalls for the unwary, at least until we become familiar with it. And in the meantime, a culture of half-knowledge develops, an uncertain and dangerous combination of a little learning, anecdote, and false assumptions. This very often leads to negative over-simplification.
The typical common lawyer’s attitude to costs budgeting is a good example of this. There will be many litigators who are fully familiar with the new regime, who, maybe on a weekly basis, have to provide their own draft budgets (and to try to agree those set by their opponents), and therefore know their way around and navigate it quite happily. However, for many of the rest of us, the budgeting regime still, even now, feels like an inflexible and inscrutable monolith for which we have to relearn all we know every time we approach it.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.