Pannick attack

MONDAY and many enthusiastic comments following the WS Cycling Podcast event. Celebrated cycling journalist William Fotheringham tweeted, “Went to the Signet Library with my Dad in (gulp) 1978 when he was cataloguing books. Glorious building”. Publisher and author Lionel Birnie wrote, “Blown away by the response at our event at the Signet Library. Great audience, great questions, beautiful venue.” The podcast will be posted here. Judging by the comments on Twitter, any similar events would be in great demand.

THIS WEEK has been dominated by the UK Supreme Court’s hearing of HM government’s ‘article 50’ appeal, a case of unprecedented constitutional significance and public interest. It’s the ultimate legal cup-tie with the court putting out its strongest eleven in 4-3-3-1 formation. 

DAY ONE – A stern warning from the court’s president, Lord Neuberger, first to the media not to name or identify the litigants and their families, and second to the public that ‘threatening and abusing people because they are exercising their fundamental right to go to court undermines the rule of law’. The warm-up act was attorney general Jeremy Wright who then handed over to ‘Treasury Devil’ James Eadie QC to do the heavy lifting. So quick to attack judges for alleged Europhile tendencies, The Daily Mail must surely have missed that Eadie’s website claim to a ‘working knowledge’ of French. Eadie opened with a misguided attempt at bluff Rumpole-of-the-Bailey humour which badly misjudged the occasion. More bluff and bluster followed as Eadie endured more than a few sticky moments under judicial questioning. These exchanges dripped in legal metaphor with much talk of ‘side winds’ and of ‘water coursing through conduits’. It sounded as if Eadie’s advocacy had been infected by the attorney general’s reputation as (according to one unkind Tory MP) a “third rate conveyancing lawyer’. 

DAY TWO – On Tuesday morning Eadie laboured on under more sceptical questioning from the bench. Eadie made much – perhaps rather too much – of ministers’ prerogative power ‘on the foreign treaty plane’. The bench seemed uneasy. Eadie amiably conceded it was a ‘complex’ issue, possibly lacking a ‘complete answer’. 

NEXT UP a cameo performance from government attorney general for Scotland, Lord Elie QC (the Fife seaside connotation of his title belying his reputation.

LORD PANNICK QC appeared for the main respondents, arguing that the prerogative power cannot be used to frustrate or annul rights under a statutory scheme. The sovereignty of parliament is paramount. The power is limited by other principles of constitutional law, particularly the sovereignty of parliament. Pannick asserted that authorities on the point are scarce because, generally, ministers recognise basic constitutional law. Pannick said the onus is on government to show that parliament has authorised a minister to amend or appeal primary legislation and, in cases of doubt, a restrictive approach has to be taken. A ‘new legal order’ was created in 1972 act which requires legislation by parliament to dismantle. It would be ‘inherently implausible’ that parliament intended that this new legal order could be wiped away by prerogative powers.

DAY THREE – Wednesday morning and Lord Pannick at last runs into some choppy waters, Lord Neuberger, musing, “It would be a bit surprising if the referendum act and the referendum had no effect in law”. Pannick held the line with his characteristically intense discourse. Dominic Chambers QC followed. Things took an ominous turn from the government’s point of view as the judges seemed to be agreeing that a referendum result is an instruction to parliament for political and legislative action and no more than that. Chambers summed up before handing over to counsel for the government of Northern Ireland David Scoffield QC – the first lawyer to speak with a regional accent, Scoffield accused the government of being cavalier with both small ‘c’ and capital ‘C’. He developed his argument on the basis that the Northern Irish devolution settlement and the Good Friday Agreement are both predicated on EU membership and that, accordingly, legislation is required to adjust the constitutional structure. Ronan Lavery QC, also from Northern Ireland, went further by saying that sovereignty on constitutional matters had been passed to the people of Northern Ireland.

LORD ADVOCATE James Wolffe QC appeared for the Scottish government, finding common cause with the Northern Irish argument based on the devolutionary settlement. Wolffe went back to basics, citing the Scottish claim of right and English bill of rights of the 17th century as limiting prerogative powers and to the act of union of 1707 which gave only to the UK parliament to legislate in Scotland. The Scottish parliament could not veto the UK leaving the EU, but that its consent is required to leaving as this would impact on devolved responsibility. Wolffe’s argument ran into some flak from Lord Hodge who questioned how the Sewell convention had become a constitutional principle given that there are now four legislative bodies in the UK.

DAY FOUR – Wolffe wound up this morning, arguing that the Sewell convention requires legislation from parliament because of the impact on Scots law on devolved matters. Lord Neuberger suggests says that interpretation depends upon the court deciding that legislation is required in order to trigger article 50.

NEXT UP today was Richard Gordon QC for the Welsh devolved government who did not mince his words in condemning the government’s view. Gordon certainly livened things up with an infusion of rhetoric into the dry legal arguments. ‘A child of six’ (presumably Oxbridge educated), he said, would respect that you can’t abrogate a prerogative power that does not exist. He went on to nail his colours to the mast: ‘We are looking at a situation in which prerogative power is being used to drive through the most major constitutional change in our system at least since 1972’. The first advocate to point out that the number of authorities quoted could mislead people that the issues are complex, whereas, he said, the issue was quite simple. The government’s confusion should not obscure the simplicity of the legal issue. Helen Mountfield QC appeared for crowd-funded litigants – the first women advocate to appear – and said her clients were simply asking the court to rule on whether the use of the prerogative to trigger article 50 would be lawful, not asking the court to rule on Brexit. The Daily Mail is unlikely to report this point. Mountfield tore into James Eadie QC’s arguments on Monday.

BY THIS STAGE a fin de siècle mood seemed to have taken over. Still to come, however, were the government lawyers’ replies. It began with Richard Keen QC giving his response to the Lord Advocate’s case. Then, DÉJÀ VU, James Eadie QC hove into view like a ragged Spanish galleon, already shattered from several broadsides, turning about to come back for more. So, inevitably, the bench began to pepper Eadie with grape shot. And yet he sailed on, torn sheets flapping, timbers splintered, listing to starboard, taking on water, owning up ‘for good or ill’ to his argument or, as he put it, ‘my two-legged stool’, or, as one judge put, his ‘empty conduit pipe’. Seldom has the phrase ‘on the international plane’ appeared more frequently or with such desperation. Will it be enough to salvage the government case? Time will tell with the judgement expected in the New Year.

A COURT in France of a different kind today sentenced to jail former France finance minister Jérôme Cahuzac for fraud. Cahuzac resigned in 2013 after it emerged he had held an undeclared Swiss bank account and then lied about it. The affair has embarrassed president Hollande and outraged public opinion.

NEWLY ELECTED UKIP leader Paul Nuttall suggests the time is right for a referendum on the return of capital punishment “for child killers”. BBC three-part drama Rillington Place could hardly be timelier. The second episode this week, “Tim”, dealt with events leading up to one of the most notorious miscarriages of justice in modern history, the 1950 execution of Timothy Evans for the murder of his infant daughter Geraldine. The body of Evans’ pregnant wife Beryl was found alongside that of her daughter in the washhouse of their property, and although not charged formally with this Evans was convicted on a number of false confessions linking the crimes. It was later alleged these “confessions” were fabricated by police and signed by the accused under duress. By the time of his trial he was plaintively stating, “Christie done it” – referring to his downstairs neighbour at 10 Rilllington Place, John “Reg” Christie, the principal witness for the prosecution. Since Christie was a former special police officer and respectable member of the community, with no apparent motive, Evans’ accusations were ignored by the judge and jury. He was convicted in less than an hour and sentenced to hang. The trial received little attention in the press. On the day of Evans’ execution, Christie told a next-door neighbour, “He got what he deserved”.

THREE YEARS LATER, however, Reg Christie was himself arrested after the bodies of three women were found behind a kitchen alcove in his ground floor flat at 10 Rillington Place. Upon investigation by the police further human remains of at least eight women were found in the garden and other rooms of the flat, including the body of Christie’s own wife. Christie, revealed as one of the UKs worst serial killers, was convicted of the murder of his wife and executed in 1953. Commentators immediately questioned the safety of Evans’ earlier conviction, recalling his last words to hangman Albert Pierrepoint: “Christie done it”. Scottish journalist Ludovic Kennedy began a celebrated examination of the case, 10 Rillington Place, arguing that Christie was responsible for all the murders at Rillington Place and that Evans should be posthumously pardoned. However, two subsequent Home Office appeals upheld Evans’ conviction, findings which were met with much public scepticism and did a great deal to undermine the case for capital punishment in Britain. It was not until Roy Jenkins became Home Secretary in 1966 that the government granted Evans a Royal Pardon and acknowledged an innocent man had been hanged. The BBC has created a truly terrifying drama from the events, which commendably avoids enactments of any of Christie’s killings and benefits from chilling performances by Samantha Morton and Tim Roth as Ethel and Reg Christie. According to legend, Ludovic Kennedy (who lived in Edinburgh’s New Town) was blackballed from a number of local golf clubs for his work on highlighting this and other failures of the legal establishment. Capital punishment was finally abolished in Great Britain in 1965. Rillington Place concludes with the trial of Evans next week and the first two episodes are available on the BBC iPlayer.

— “Writer”

Writer's Week is not intended to represent the views of the WS Society or its members.