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Category Archives: History

1297 And All That: how to impress a Brexit judge

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Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.

One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50  notification. But were they, how can one say it, a little economical with the historicité?

Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:

“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.”  Second day of case; digest here

This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today. Read the rest of this entry

Libel juries: How Tim Yeo and Warby J buried the Seven Bishops

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It is ironic – and perhaps a little shocking – that an early high-profile beneficiary of Britain’s abolition of the right for juries to try libel cases should be a Member of Parliament – one who will doubtless have supported the Defamation Act 2013 that removed the long-standing right. So, step forward Tim Yeo, who will not (thanks to the new law and a sympathetic judge) have 12 jurors facing him in court who need to be persuaded that he did not show willingness “to abuse his position in Parliament to further his own financial and business interests in preference to the public interest“.*

Yeo succeeded in challenging Times Newspapers’ attempt to have a jury empanelled – but might be mortified that Mr Justice Warby in Tim Yeo MP v Times Newspapers decided the case could do without a jury because Yeo is just not an important enough figure to warrant one. Some public figures (government ministers or judges, perhaps, rather than footballers or celebs) might have to face a libel trial jury, but the moderately high and not-so-mighty-now Mr Yeo doesn’t quite cut the mustard.

More significantly, Warby’s decision about a jury has ditched centuries of legal and constitutional  principle, denying any public interest right for defamation cases involving senior public servants to be tried by those representatives of the public who constitute juries. But some background is needed.

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Conservatives’ Bill of Rights: suddenly they are all relativists now

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Quick, we need some long-held, deeply felt convictions – and we need them fast. You know: stuff we can bung in a written UK constitution based on centuries of history, shared values and culture – that sort of thing. Why? Because that way we can keep the European Court of Human Rights off our backs.

The Conservative Party, you see, has noticed that the Strasbourg court – known for riding roughshod over UK government actions – is sometimes willing to let countries get away with things. But only if those countries have long-held, deeply felt convictions that emerge from their history, shared values and culture – and are written into their constitution.

Britain doesn’t have a written constitution, hence the new “UK Bill of Rights and Responsibilities” that the Conservatives are working on.

The rationale being used for the new Bill of Rights – that human rights are relative, not absolute – would not be out of place if uttered by a 1970s leftie lecturer at a bog-standard polytechnic. Here is arch-Tory Charlie Elphicke introducing his Bill of Rights (which will be the basis of the official Conservative Party version) in a parliamentary Private Member’s Bill last year:

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights.”

So Strasbourg judges have been too objective, apparently. Elphicke is wholly insistent on this subjectivity point, rejecting the principle that judges should come to decisions on a straightforward objective reading of the law. They should take account of each country’s history, shared values and culture before making decisions on their governments’ alleged breaches of human rights.

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Daily Mail: The newspaper that hates Britain – oh-so much

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The deputy prime minister Nick Clegg suggests the Daily Mail hates Britain. Shall we count the ways?

The Mail’s charge against Ralph Miliband, father of the Labour leader Ed, was that he hated Britain’s institutions – its smug ruling orders, its established Church, its values, its democratic system, its undemocratic monarchy, its traditions. And yet the Daily Mail itself hates all these things and more. It hates Britain, ancient and modern.

If it is a matter of fathers, one might note in passing that the third Viscount Rothermere, who made the modern Daily Mail what it is to day and was father of the current chairman, loved Britain so much that he settled within 170 miles of it. He lived much of the year in Paris – since one might lay down one’s life for one’s country, but certainly not lay down one’s taxable income to the predatory instincts of that great British institution the Exchequer.

But one must play the balls, not the men. How much does the Mail hate Britain? Read the rest of this entry

Sir George Young, Bt, and the original cash for honours scandal

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So what exactly is a baronet? We need to know to understand, in these class-sensitive times, following hard on “plebgate”, whether the appointment of Sir George Young, Bart, as the UK Government’s Chief Whip upsets the delicately crafted social balance of the British Cabinet. Is Sir George a bat’s squeak more posh or a smidgin more plebeian than Hampstead-born, Rugby and Cambridge-educated ex-Army officer and former Lazards banker Andrew Mitchell?

Young is well loved as the gentlemanly bicycling baronet, his copybook slightly blotted by his witty apothegm: “The homeless are what you step over when you come out of the opera” – often quoted out of context, as here. Those were more vulgar, more Thatcherite times. The Conservative party is now, of course, intensely relaxed about the filthy poor.

But back to the baronetcy. Behind it lies a shocking tale of snobbery and social climbing, naked patronage and the original cash for honours scandal.

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Plebs row: Andrew Mitchell can’t necessarily rely on police officers’ thick skins

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So should Andrew Mitchell have been arrested and prosecuted for swearing at (or in the presence of) police outside No 10 Downing Street and allegedly calling them plebs?

Those who would love to see the stuck-up Tory toff (there, I’ve said it, and it’s on the record) doing time for his outbreak of incivility have had some difficulty finding any precedents for the offence of swearing at police officers. London Mayor, Boris Johnson, has certainly said they should be arrested, and one man is said to have been prosecuted for abusing police during the riots under Section 5 of the Public Order Act 1986 on “causing harassment, alarm and distress”.

But riots and the day-to-day hurly burly of a Cabinet minister’s life are two different things. As matters stand, the police are unlikely to arrest  people who abuse them – however irritating the odious oik might be who is doing the abusing.

And this is as it should be. To arrest people who insult the police would be a draconian power, criminalizing most ordinary people who find encounters with the police stressful, whether after a hard day of trying to keep a faltering Government on its feet or because you are young, black and you’ve been stopped and searched for the Nth time this year.

Crucially it has generally been held that the police have pretty thick skins and aren’t going to be moved to strike a man who insults them (as in “conduct likely to breach the peace” – see “Blemishing the peace” below) or feel harassment, alarm and distress – even when insulted by a here today, gone tomorrow member of Cabinet who thinks the world should jump to his every order. After all, most police are likely to hear plenty of this sort of thing – not least in their own canteens.

The case to look at is Harvey v DPP (2011) in which Denzel Harvey was one of several men being searched for cannabis. “Mr Harvey objected and said, ‘Fuck this, man, I ain’t been smoking nothing’. PC Challis told him that if he continued to swear he would be arrested for an offence under section 5 of the Public Order Act 1986. PC Challis searched the appellant but found no drugs, whereupon the appellant said, ‘Told you, you won’t find fuck all’.” Other searches proceeded and names were taken, then the officer “asked the appellant if he had a middle name and the appellant replied, ‘No, I’ve already fucking told you so’. The officer arrested Mr Harvey for the offence under section 5.” He was convicted and fined £50. Read the rest of this entry

Julian Assange: History shows treason trial is an unlikely option

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It looks as if the Obama administration wants it known that it has no intention of prosecuting Julian Assange for publishing confidential documents on WikiLeaks. 

This may be true or untrue; if true, the decision may be based on political problems or legal issues. What seems certain, though, is that a treason prosecution, demanded by many in America, is not on the cards.

It is worth looking at the history of US treason law to see why. It started, of course, in England. The original Statute of Treasons of 1351 codified what was generally accepted as the common law definition of high treason:

If a man compasses [plots] or imagines [proposes] the death of our lord the king, of our lady his consort [the king’s wife] or of their eldest son and heir; or if a man violates [has sex with, whether consensual or not] the king’s consort, the king’s eldest daughter being as yet unmarried or the consort of the king’s eldest son and heir; or if a man makes war against our said lord the king in the kingdom or is an adherent of enemies to our lord the king in the kingdom…”

Any of that constituted treason plus counterfeiting the “great seal” (impressed in wax on documents to indicate they had the monarch’s authority) and coinage or killing the “chancellor, treasurer or justices”.

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