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Tag Archives: Jonathan Sumption

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

Judicial appointments and politicisation of ‘unaccountable judges’

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The starting gun has been fired on the politicisation of the (unaccountable) judiciary. The (unaccountable) House of Lords is to consider the issue – and what little commentary there has been since consultation was launched on 13 May has been (unaccountably) favourable. Parliamentary scrutiny is deemed a good thing, not least because the Judicial Appointments Commission is seen as a rather bad thing.

The remit of the House of Lords Constitution Committee inquiry ranges over various issues, but crucially it asks: “Should Parliament scrutinise judicial appointments?” High among its concerns is that “decisions made by individual judges now regularly provoke political and public debate and public confidence in the legal system has been tested”.

What this means is that the public – or more accurately the press and certain politicians – do not like some of the judgments that judges have arrived at. As a result, the cry has gone up that the judges are “unaccountable”. Here are some examples: Read the rest of this entry

Jonathan Sumption debacle

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The Jonathan Sumption affair [in 2011] seems to be turning into a debacle. Sumption is a barrister who applied for one of the vacancies in the UK Supreme Court. It looked as if he had it in the bag, according to a Times leak – but now it is suggested he may be rather too busy adding to his millions in Berezovsky v Abramovich to attend at the pleasure of the highest court in the land.

Sumption has been a controversial candidate for the Supreme Court. He applied in 2009 but withdrew, it is said, after criticism from senior judges. His latest application has also been accompanied by murmurings in judicial circles about an alleged lack of experience for the job. Sumption is not a judge, you see.

Such criticisms are a bit unfair given the Constitutional Reform Act 2005 opened up applications to the Supreme Court from non-judges with a minimum 15 years’ experience. The intention was to add a bit of diversity to the team of posh old chaps (and a lady) at the top of the judicial tree.

And perhaps that is more to the point – in fact the appointment committee’s first non-judicial choice turned out to be, well, a posh old chap. Eton, Magdalen, Inner Temple, QC, OBE, that sort of thing. The most unusual and off-the-wall thing about him is that he likes penning history texts in his spare time. Oh, and it seems he did once meet cabinet ministers unshaven and in casual attire – at his French chateau.

So is this the real heart of the problem? The Ministry of Justice under Ken Clarke is doubtless wholly signed up to the coalition government’s social mobility agenda. Here was a rare opportunity, with two Supreme Court jobs up for grabs, to go for parity: one posh old chap matched by one of something else (a woman? a black person? a grammar school lad made good?). The pool of potentials had been extended hugely by the 2005 Act – and what was the result? Well, two posh old chaps (the other being Lord Wilson).

Of course, the committee can’t appoint from a diverse pool if nobody very diverse applies. But surely a tap on the shoulder, a word in an ear might give someone the confidence that, should their name go forward, it would be sympathetically treated? It’s worked for homogeneity for hundreds of years, why not diversity?

If the Supreme Court really has to attend on the whim of a very well paid barrister, then surely that makes a mockery of the 2005 reforms. Of course any top-flight lawyer who has the 15 years behind him (her?) and the requisite reputation is someone who at any time during the lengthy and delay-ridden appointment procedure is likely to find a tasty case popping up that requires his time and expertise. One that makes the £206,000 salary he might expect in his new role look pretty meagre.

It seems likely that Berezovsky v Abramovich is going to need Mr Sumption’s attentions for more than a few months. And it would seem  that the Ministry of Justice should be looking at rather better ways of satisfying the social mobility agenda than this.


Baroness Deech commented on the Sumption debacle here.

Lord Sumption has now (November 2013) given his view on the relationship between the UK courts and Strasbourg. See Hoffmann, Laws and Sumption: They come to bury the ECHR, not to praise it.

He has also, (September 2015) given his view on judicial diversity. He doesn’t think it’ll happen for a good 50 years yet: Evening Standard. The Supreme Court has published a clarification of these comments here.

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