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Pannick attack

I know some of my readers are not in the Chris Grayling fan club  (which is a shame, because you get a lovely badge and a code book that allows you to translate what he’s saying into something that resembles common sense   – hint, you just say the opposite of what he’s saying)

 

so you might enjoy Lord Pannick tearing him a new one, and giving everyone a route map to crush the new judicial review legislation into oblivion in the future

 

Lord Pannick (CB): My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.

The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.

In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,

“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[

Official Report

, Commons, 13/1/15; col. 812.]

I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.

21 Jan 2015 : Column 1345

In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,

“unless the court is of the opinion that there are exceptional circumstances”.

At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.

Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.

Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.

We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.

I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.

21 Jan 2015 : Column 1346

I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,

“severe doubts about whether secondary legislation should be subject to judicial review”.

These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.

Furthermore, judicial review is not, as the Lord Chancellor again suggested,

“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[

Official Report

, Commons, 13/1/15; cols. 819-20.]

Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.

4.45 pm

Your Lordships’ Constitution Committee said recently, in its excellent report on the office of Lord Chancellor, that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.

 

If you want to see the Hansard debate (the rest of it is not quite so amazing as this, which actually made me want to stand on my desk and say “captain, my captain”) it is here

 

http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/150121-0001.htm#15012189000542

 

Judicial review is a thorn in my side, as it is for anyone who works for a public body – there is little that ruins your month more than getting a judicial review claim letter, it is a miserable and painful experience. But that pain is part of the price you pay for having a State that can be properly held to account for behaving unreasonable, irrationally or unfairly in its dealings with people.  Many people like me learn to tolerate and even love the thorn, and its a shame that our Lord Chancellor can’t see it that way.

But then, if you can’t grasp that your actual role is to be a Check and Balance, you might not understand the importance of Checks and Balances.

Objection to gay adopters

This is an interesting news item from PinkNews  (rather than Pink Tape for once)

Allowing same sex couples to adopt was highly controversial and politicised – almost the entire Parliamentary debate about the 2002 Adoption and Children Act was taken up by this sole issue. We have even had a Children’s Minister within this Parliament who is staunchly opposed to it. But it has been law now for 13 years and same sex couples can legally adopt.

This news item relates to a Magistrate hearing a set of care proceedings, and remarking to his colleagues in the retiring room that he would prefer the child to go back to mum and dad than go to a gay adopter.

[Of course, any Magistrate hearing a family case ought to prefer that a child live with birth parents if possible, rather than adopters, but the sexuality of the adopters shouldn’t really be a factor]

The Magistrate was suspended and sent on various awareness courses – I think with mixed success, given what he has to say about the situation now

There is tremendous pressure to keep quiet and go along with what is seen to be politically correct.

“Everyone else seems to be allowed to stand up for their beliefs except for Christians.

“I think there is something about a man, a woman and a baby, that it’s natural and therefore the others are not. That is the comment that I made.

“Therefore, since my task as a magistrate is to do the best for the child, my feeling was, quite reasonably, that a man and a woman would be better.”

 

[Also the fact that he is getting advice from an anti-gay pressure group suggest to me that maybe his diversity training to re-educate him hasn’t completely worked]

http://www.pinknews.co.uk/2015/01/18/family-court-magistrate-suspended-after-objecting-to-gay-parents/

 

It clearly isn’t right for someone with such views to sit on a family case where the issue arises – but is it okay for him to do other cases but recuse himself from any case that involves same sex adopters, or indeed parents?  Or do attitudes of this kind end up colouring your approach on other matters?

For example, might someone with this sort of belief system also take an overly harsh view of a mother who has had an abortion, if the Magistrate holds the view that abortion (though legal) is morally wrong?

It will not be a massive surprise to readers that the comments section on this piece in Pink News reads rather differently to the comments section on the same basic story in the Mail.

I’ve never been in a position of having to give a judgment, and am never likely to be – though if by some clerical error I find myself in the Supreme Court I’m going to choose to be called Lord Vader. I imagine that you must bring something of yourself to the process – Judges aren’t robots – they have human experiences and thoughts of their own. The key is to be able to identify for yourself if you are putting too much weight on feelings rather than facts and evidence and legal principles.

Disney Character Rights Blog

There have been a lot of decisions recently by the Disney Court of Character Rights, sitting in Never-Never Land. Here is a round-up

Simba v Scar

In this case, Simba brought a case for breach of article 6, claiming that he was not given a fair trial against allegations of murdering his father Mustafa and that his uncle Scar in effect banished him from the Kingdom, thereafter seizing the throne.

The Court held that Scar was not in breach of Article 6, which does stipulate that in Act One, the antagonist is entitled to pass judgment and sentence on the protagonist on fairly superficial or even fabricated evidence and that the general population will go along with this PROVIDED that in Act Three there is the opportunity for redemption and forgiveness. The Court were persuaded by Scar’s evidence that prior to the death of King Mustafa, the Applicant Simba had been heard jauntily singing a song to the effect that he just couldn’t wait to be King (this being prima facie evidence of his desire for his father to die)

Fundamentally the Court felt that bringing this claim in Act One was premature and that Simba in the spirit of the Disney Character Rights Act ought to wait until Act Three to see if the injustice is remedied.

The Court found that Scar had given every reasonable opportunity for an Act Three turnaround – he had adopted a suspicious name (Scar), he had a suspicious British accent (see also Mowgli v Shere Khan) and he had properly followed the principles that Evil Antagonists Should Be Bad Rulers in somehow bringing hunger and misery to a previously thriving and colourful kingdom in a remarkably short period of time.

They did however feel that Scar’s actions in allocating two hyenas Rozencrantz and Guildenstern to be Simba’s comedy sidekicks, and the choice of song “Hasa Diga Ebowai” to be in breach of all regulation and guidance on inspirational comedy sidekicks (see also the Court’s previous decision in Ariel, where the antagonist’s choice of a rotting alcoholic squid for a comedy sidekick for the protagonist was quashed and replaced with a cheerful upbeat crab)

The Court therefore ordered that two more suitable comedy sidekicks be provided and they recommended that the song be more upbeat, suggesting “Hakuna Mutada”, which they explain means no worries for the rest of your days.

Advocates are asked to take note of the Court’s remarks in the judgment that “a little bit of Elton John may be considered acceptable, but two hours of it is a bit much”

Prince Hans of the Southern Isles v Anna

Prince Hans was claiming breach of Article 7, “Right of Princes to marry Princesses” in relation to Princess Anna’s decision to break off their engagement and marry Kristoff, a commoner ice-farmer instead.

The Court held that although Article 7 has widespread applicability, it was wrong for Prince Hans to assert that it gave him the right to marry a specific and identified princess rather than just a generic right that he would marry A princess.

In relation to the claim that Princess Anna marrying a commoner would inexorably lead to other Princesses marrying people who were not princes and thus lead to it being impossible for Article 7 to be satisfied, the Court felt that this had some force, but cited as precedent earlier decisions of the Disney Court of Character Rights in relation to Characters falling in love with people from a different social circle

[Lady and Tramp – in which the re-enactment of the spaghetti-eating sequence caused one Judge to state in his judgment that “It nearly broke my heart” and the later case of Thomas O’Malley (The Alley Cat) and his marriage to an cat who was so posh that she wore a necklace. ]

They determined that the inherent nature of Princesses to want to marry Princes was so strong that an occasional deviation such as this would not set a precedent. (One minority judgment held that once Kristoff married the Princess he would become a Prince anyway, thus satisfying Article 7)

The Court further held that in relation to Princess Anna breaking off the engagement to Prince Hans, his failure to be her One True Love and kiss her to break a curse was a material breach of his One True Love article 9 duties towards her, compounded by his later attempt to murder her, and her sister. Anna was therefore entitled to terminate the engagement.

Additionally, as the engagement had never been approved by the defacto Queen, Elsa, it was questionable whether there was in law, an engagement to break.

The Court determined that Prince Hans “had had it coming” and declined to give him the relief that he had sought. In short, they concluded that he should let it go. [The same minority judgment opined that “Princess Anna, is indisputably hot, but it is plain that she is also high-maintenance and pretty tiring and Hans might be best to consider it a lucky escape. I myself had had enough of her after about ten minutes”]

Mirror Mirror v Disney Court of Character Rights

This is satellite litigation arising from Snow White v Wicked Queen, where Snow White established that administration of a poisoned apple leading her to fall asleep was a breach of her article 5 right to liberty. (Who can ever forget Lady Hale’s moving song “A gilded cage is still a cage”? )

Within that, evidence was heard from the Wicked Queen’s mirror, particularly as to motivation and intent. The mirror was only able to answer questions that were put to it in rhyming couplets (the first of which should be related to the mirror’s geographical location)

That led to questions being put to the witness such as “Mirror Mirror on a kite – Did the Queen intend to detain Snow White?” and “Mirror Mirror on the quilty – do you say the Queen is guilty?” and from those representing the Wicked Queen – “Mirror Mirror resting on bacon – could you perhaps have been mistaken?” and “Mirror Mirror in a bath of acid – wouldn’t you say the Queen’s overall nature was placid?”

For such questions, the mirror was hoisted up on a kite, or laid on a quilt, or in the worst example, put in a bath of acid for the duration of the question.

The Mirror claimed that this amounted to inhuman and degrading treatment in breach of Article 3. Sadly, the Court were unable to explore this claim properly without the Mirror being hoisted up onto a kite or such again, with the very first question proposed

Mirror Mirror down the drain – how do you establish your claim” being in itself potentially a breach of article 3

The Court settled this claim by writing the Mirror a substantial cheque and asking it to go away.

 

Sleepy v  Doc and the Six men wearing shoes on their knees band

 

Litigation over the royalty rights to the original songs created by the Seven Dwarves  (Hi Ho, Hi Ho being the major hit of the original band) rages on. Of the original line-up, only Doc is left in the band, and he claims that he wrote all the original material and is entitled to perform it with the Seven Dwarves tribute band. As readers will know, Dopey signed away his rights for some magic beans, Sneezy is in his fifth year of rehab, Grumpy is now in a death-metal band, Happy proclaims himself content with the situation, and Bashful was too publicity shy to enter the litigation, leaving only Sleepy to litigate. Progress has been slow, due in part to narcolepsy in the witness box.

 

Buzz Lightyear v Carbolic Smoke Ball Company

Over in Pixar litigation, this case continues into its seventh year, with the Court hearing from expert witnesses as to whether “To Infinity and Beyond” was a contractual obligation to which Mr Lightyear could be forced to meet or rather a puff of advertising. Mr Potato-head remains in custody, having taken the stand as a character witness for Mr Lightyear and then having appeared again subsequently using facial pieces stolen from Mrs Potato-head to give evidence whilst pretending to be her.

Mr Lightyear’s request to call Andy, his owner, as a character witness was refused, on the basis of the application of the Uncanny Valley principle (in short that the real people in Pixar just give everyone the creeps because they just don’t look right)

 

 

In other news

The big money divorce of Perdita v Pongo has reached a conclusion. There was considerable consternation in Court when Perdita revealed that Pongo had been pressurising her into starting a second litter. The Puppy Maintenance payments ordered by the Court are believed to be the biggest on record, and the schedule of Puppy Arrangement Orders setting out when Pongo would spend time with each puppy ran to seven lever arch files.

Baloo’s cookery programme has been taken off air after several claims for food-poisoning due to viewers following his advice to “take a glance at the fancy ants, and maybe try a few” were settled out of Court. There are also allegations that Baloo had been moon-lighting as Little John, and his showbiz career appears to be in tatters.

The lower Courts have confirmed that in Backtrack v Mowgli that when King Louis stated baldy “Oh, Shooby-Doo, Nothing Else Will do –ooh-ooh” he had never intended to mean that literally nothing else will do. Nor did he literally want to walk like you, or talk like you. It’s plain to see, that someone like Louis, can learn to be, like someone like you.

[And I’m sure that you are now humming I wanna be a man, mancub, and stroll right into town – so here it is for you. ]

 

 

If you don’t happen to read Adam Wagner’s UK Human Rights blog which inspired this pastiche, I’ll recommend it to you. It has a much broader focus than this blog, and you can usually find something very thought-provoking there – whether it be what should be done with King Richard II’s bones, whether people should have the right to die with dignity or where the limits of religious conscientious objection to abortions stretch in relation to Catholic midwives – and today, why Strasbourg was chosen as the correct venue for the European Court of Human Rights – it is nothing to do with geese, apparently.

It is immensely useful when the Press are having one of their periodical fits of morality, and you want to find out a bit more about what’s behind the story.

http://ukhumanrightsblog.com/

Back to work

In case, like me, you are back to work today and not quite feeling it, here’s Mark Twain putting it remarkably well.  If you think of Mark Twain as being that “huckleberry finn guy” then I have a good New Year’s Resolution for you – like Raymond Chandler, he puts a diamond on every page.

 

In this passage, Twain having travelled across America to take part in the Gold Rush as a prospector, investor or mine-owner, unsuccessfully, has been working down someone else’s mine, doing the task of taking all of the rock and breaking it down, and then getting all of the metal out of it and then heating the metal up to make nuggets.

 

“I will remark,in passing, that I only remained in the milling business one week. I told my employer that I could not stay longer without an advance in my wages; that I liked quartz milling, indeed was infatuated with it; that I had never before grown so tenderly attached to an occupation in so short a time; that nothing, it seemed to me, gave such scope to intellectual activity as feeding a battery and screening tailings, and nothing so stimulated the moral attributes as retorting bullion and washing blankets  – still, I felt constrained to ask for an increase of salary.

 

He told me that he was paying me ten dollars a month, and board, and thought it a good round sum. How much did I want?

I said about four hundred thousand dollars a month, and board, was about all I could reasonably ask, considering the hard times.

I was ordered off the premises. And yet, when I look back to those days and called to mind the exceeding hardness of the labour I performed in that mill, I only regret that I did not ask him seven hundred thousand”

 

An appeal

 

Not the President’s judgment in Re R a child 2014  (I need a bit longer to do my piece on that, but it is here http://flba.co.uk/blog/2014/12/16/re-r-a-child-2014-ewca-civ-1625/   and Lucy has done a piece on it here http://www.pinktape.co.uk/legal-news/sorry-whats-that-you-say/  )

 

My gut feeling is that this is really just the Court of Appeal saying “If you are appealing against a Placement Order, come to us with an actual argument as to why the Judge got this wrong, not just on a technicality, but an actual argument about the facts”    (or an even shorter version “Stop making b**locks appeals”)

 

No, this is an appeal via one of my readers.  This reader, a very nice person, read my “What to do if Social Workers are Trying to Steal your Children” blog post with some practical advice.

 

This mother was helped enormously by a charity, and she in turn would like to help them. As with any charity, money and funding is scarce, so this is an appeal that if you were in a charitable frame of mind at this time of year, this looks to me to be a very good cause.

 

 

  www.familiesincare.com.   This is a very small charity which supports, advocates, and advises North East families who are faced with Child Protection Proceedings.
In order not to get this mother into any difficulties and at her request, I’ve taken out the very moving and impressive story, but I can absolutely tell you that this charity has made a massive difference to her life and other people like her, and I think they need to be helped to keep doing so.

 

  They have students – both Law and Social Work – who come in on placement, and many stay on to volunteer. There is a Parents Group for parents who have lost children to adoption, gently supporting them through their own disenfranchised grief process, and Families In Care help parents with Letter Box Contact.  

 

In short, this is a rare gem, a beacon of hope to parents faced with the most horrifying of times.     However, Families In Care are struggling. Having had their funding removed from a particular source, they are now in a position where they face imminent closure. This just cannot happen. It just can’t. So many families rely on their presence, their hands to hold, and their commitment to ensuring parents are heard and fairly treated.  

 

Families In Care have made an Urgent Christmas Appeal for help:   http://shoutout.wix.com/so/97a9fcf6-5dfa-4cc7-b4f3-25f19be6934b#/main   

 

Families In Care need £3000 before January or they will close and families will be left without support at the worst, most vulnerable time.     Please help, it really would mean an awful lot.

 

If you can help Families In Care at all, they seem like people who have the potential to really make a difference to people who need help.   Even better, if you happen to be someone in the North East who has some sway over budgets and resources, please see if you can give this charity some support.

A big thank you to lots of people

 

The Family Law Awards were on Wednesday night (I was too tired and emotional yesterday to post anything). I would like to give a big thank you to every person who voted for me.  If you are on Twitter, you already know that the votes were not wasted (though I was).  But not everyone is on Twitter, so I wanted to let you all know that it was a successful night and that I am very grateful for your vote and support; but even more importantly for the time you give to read and think about the pieces and your comments – even to my most argumentative readers, debate and thought and time is really valuable.

 

And huge thanks to my team, who also picked up an award, and who are not only great people to work with, but great people to celebrate with too.  And to my long-suffering wife, who has to put up with my weird random ideas and my occasional ramble of “There’s this amazing case I’ve just read about, you really won’t believe what happened”.  And to Martin and Mary and David Bingham for sharing the evening with us, and I can’t forget to thank Adam Smith for being a very cool guy indeed.

 

Finally massive big up to Harj Kaur, my great friend and supporter who wasn’t able to be there with us, but was in spirit.

 

{I apologise to anyone who hunts the Net looking for Humblebrags, this really isn’t meant to be one. I am just actually very pleased to have had an experience in family law that was nothing other than enjoyable and want to thank people who made that happen.}

The Great British Blog Off

 

As you may know, Lucy Reed from http://www.pinktape.co.uk and I are both nominated for an award in the Jordans Family Law Award  (or what literally nobody in the legal world is calling “The Jordies”

 

You can vote for either of us, and voting ends on Midnight Monday.

 

Vote here  http://books.jordanpublishingsecure.co.uk/updates/vote.asp

 

You don’t have to be a lawyer to vote, you can be a real person too.

 

Now, I know that I was wrong to take Lucy’s post on Baked Alaska out of the fridge before it was ready, and I’ve apologised for that.

I can assure you that a vote for either myself or Lucy WILL ensure that we keep the pound, that Strictly Come Dancing will continue to be available on BBC, that all of the revenues Lucy and I get from North Sea Oil will remain in the blogging community and that neither Lucy nor I will have access to Trident missiles.

 

Did I mention that you could vote here   ?

http://books.jordanpublishingsecure.co.uk/updates/vote.asp

If you have been meaning to vote, then get round to it please. You don’t want Lucy or I to have access to Trident missiles, do you?

If you have already voted, then thank you. And also, if you fake your own death and get a new identity before Monday, you could vote again, so… y’know, don’t ignore that route.

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