The Brief - Wednesday, January 25 2017

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Wednesday, January 25 2017

Frances Gibb and Jonathan Ames bring this morning’s must-read of all things legal, including news, comment and gossip.

Today

Supreme Court hands MPs vote to start Brexit process
What the lawyers said about Article 50 ruling …
Row over solicitor qualification reforms
Law firms ‘overwhelmed’ with technical innovation
Legal charity boosts funding by 15%
Gradual rise in solicitor training vacancies in Scotland
Comment: Even Brexiteers should rejoice at Supreme Court ruling
Blue Bag diary: Debrett’s declares Clooney pukka

Plus, see our plans for Brief Premium and archive of articles so far.

Tweet us @TimesLaw with your views.

Supreme Court hands MPs vote to start Brexit process

Liz Truss rode strongly to the defence of the judiciary yesterday as a former Tory leader, Ian Duncan Smith, attacked the Supreme Court for going too far in “deciding to tell Parliament how to run its business”.

The clash between senior Conservatives came within hours of the historic ruling by the UK’s highest court that the government must seek parliament’s approval for triggering Brexit. The decision by a clear majority of Supreme Court justices prompted a swift response from Ms Truss who weeks ago faced fierce criticism for failing to defend the judiciary in the face of attacks.

The Lord Chancellor said: “Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our Supreme Court justices are people of integrity and impartiality.

“While we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect the decision of the court.”

However hours later her senior Tory colleague, Duncan Smith, said the ruling had highlighted the question of who was supreme: Parliament or a “self-appointed court". The backbencher told BBC Two’s Victoria Derbyshire show: “They’ve stepped into new territory where they’ve actually told Parliament not just that they should do something but actually what they should do ... that leads further down the road to real constitutional issues about who is supreme in this role.”

The clash came as ministers pledged to do “all that is necessary” to implement yesterday’s Supreme Court ruling that they must seek parliament’s approval to trigger the process for the UK leaving the EU.

The Supreme Court justices ruled by eight to three that to go ahead without an act of parliament would be a breach of constitutional principles stretching back many centuries.

In a muted victory for ministers, the judges unanimously rejected an argument that devolved administrations in Scotland, Wales and Northern Ireland must be consulted before Article 50 could be triggered.

Regarding the main judgment, Lord Neuberger, the court’s president, said that the three dissenting judges, Lord Reed, Lord Carnwath and Lord Hughes, considered that the government could trigger Article 50 without an authorising act of parliament. In their view, “parliament has not imposed any limitation on the government’s prerogative power to withdraw from the treaties”.

Giving a short summary of the ruling to a packed court, Lord Neuberger said: “The issues in these proceedings have nothing to do with whether the UK should exit from the EU or the terms or timetable for that exit. The main issue is whether the government can trigger Article 50 without the prior authority of an act of parliament.”

Outside the Supreme Court building in Parliament Square, Jeremy Wright, the attorney-general, said the government and its legal team were “disappointed” but that the government would comply. MPs are to be given a vote on Article 50, the provision in the Treaty of Lisbon that starts the departure process. Theresa May is expected to bring forward a bill within days.

Liz Truss, the lord chancellor and justice secretary, said: “It is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect any decision of the court.”

Ministers — and Truss in particular — came under fire for failing to speak out in defence of the High Court judges who made the initial ruling and who were attacked as a result by some Brexiteers and newspapers.

Yesterday Truss made a point of defending the independence of the judiciary as “the cornerstone of the rule of law . . . vital to our constitution and our freedoms”.

What the lawyers said …

There was no shortage yesterday of lawyers keen to chip in their tuppence ha’penny worth as the Supreme Court handed down its ruling in favour of the two applicants.

The most succinct comment came from the law firm for one of those applicants, Gina Miller (pictured), an investment manager. “As lawyers, we believe in the rule of law, the separation of powers and the independence of the judiciary,” said a statement from the London law firm Mishcon de Reya. “This case has seen challenges to each of these principles we hold dear. We are proud that today the strength and primacy of those principles has been restated by the highest judges in the land.”

David Greene, senior partner at the law firm Edwin Coe, had far more to say and Brief readers can see his thoughts in full in our comment section below.

Losers’ warning

Lawyers for Britain, a collective that supports the Leave movement and which intervened in the Supreme Court hearing, was “naturally disappointed” with the main ruling. However, it pointed out that “on the plus side, the Supreme Court has unanimously rejected the arguments from Scotland, Northern Ireland and Wales that the devolved legislatures have a legal right to interfere with the UK’s exit from the EU, or that withdrawal is somehow incompatible with the constitutional status of Northern Ireland”.

The pro-Leave lawyers also issued a warning: “Parliament by an overwhelming majority chose to place the decision on our EU membership into the hands of the British people, who were promised in clear and unambiguous terms that whatever they decided would be implemented. Parliament now has a duty to keep its promise and implement that decision without delay or equivocation.”

Appealing for calm

Lawyer representative bodies also piled in. Robert Bourns, president of the Law Society, the quasi-trade union for solicitors in England and Wales, appealed for calm between Remainers and Leavers.

“We urge everyone – regardless of where they stand on the issue of Brexit – to respect the decision. No one is above the law and having the right to challenge government through the courts is something we should be proud of – it is fundamental to our democracy.”

View from ex-AG Goldsmith

Heavy-hitting individuals were also keen to have a bite of the Brexit cherry. “Regardless of the political ramifications, the judgment …must not be characterised as a political decision,” said Lord Goldsmith, QC, the former attorney-general turned co-managing partner at the London office of the US law firm Debevoise & Plimpton.

“This was law at its best,” he continued, “a sober evaluation of the legal issues at hand, resulting in a considered judgment absent of political agenda …

“Commentary which questions the place of the courts in the ongoing Brexit process is uninformed at best and wilfully destructive at worst. It is for all ministers, but especially the lord chancellor and attorney-general, however disappointed they may be by this decision, to have the courage to defend the Supreme Court judges against any attacks on their integrity, persons or motives.”

Don’t relax – there’s more to come

One City lawyer warned that those looking forward to a break in Brexit litigation could be disappointed.

“This is not the end of the road,” predicted Sarah Ellson, a partner at Fieldfisher. “The Supreme Court stated that while an Act of Parliament was required … it had no views on what this Act should look like. As such, the very brief bill that has been mooted before may now be brought before the House of Commons.

"As well as legislation needed in Westminster to trigger Article 50, there is currently another claim going through the UK courts on whether a further Act is required to leave the single market under Article 127 of the EEA agreement. In addition, there is currently a case in the Irish courts asking the Irish government to refer the question of Brexit to the European Court of Justice.

"And of course, this is just one part of the puzzle. There is still very little known about what Brexit will look like or how the Great Repeal Bill will work."

See Comment, Blue Bag, Tweet of the Day and Quote of the Day below

• Russell Group law faculty in row over qualification reforms

A row brewed yesterday between a group representing law academics and individual university law schools over the merits of proposed radical reforms to the solicitor qualification regime in England and Wales.

The head of one Russell Group law school criticised as “self-interested” the Society of Legal Scholars for its analysis of the plans mooted by the professional watchdog.

Earlier this week, the society attacked as “fundamentally flawed” proposals for a centralised exam and reforms that would drop requirements for prospective solicitors to have qualifying law degrees. It claimed the reforms would “damage the reputation of all solicitors”.

But Toby Seddon, head of the law faculty at the University of Manchester, yesterday cautioned the society’s 3,000 members that they “have a broader responsibility than just protecting their own interests”.

Seddon said it was “unfortunate that the SLS did not consult its members more widely”. He claimed that several of the jurisdiction’s leading leading law schools had backed the proposals from the Solicitors Regulation Authority.

Seddon said his law faculty and others aimed “to reshape their law curricula to ensure they are fit for purpose in the 21st century. At the University of Manchester we are actively exploring how we might reform our law programmes so that our graduates are better equipped for the future, in terms not only of legal knowledge and understanding but also the development of key skills and provision of opportunities to learn through practical experience.”

• Law firms ‘overwhelmed’ with technical innovation

Lawyers are being swamped with technical innovations that purport to improve their practices, yet the market remains “highly fragmented” and difficult to understand, a report released this morning argues.

Researchers said that in 2015 more than 600 technical innovations aimed at the legal profession hit the market.

However, according to a report from the Law Society, which represents solicitors in England and Wales, many were aimed at “very specific, singular problems” and did not have broad appeal. The report blamed “a general trend among technology developers to focus on creating apps for specific functions, or in response to hackathon challenges” for the wide confusion in the market.

The researchers also found considerable scepticism among lawyers over the increasing fascination with robots in the legal profession. “For all of the technological machine learning, automation and virtual assistant possibilities and efficiencies,” said the report, “collectively, interviewees were adamant that legal services not lose the human touch.”

• Legal charity boosts funding by 15%

One of the country’s biggest legal profession charities boosted grants by more than 15 per cent last year as it handed out £4.3 million to projects promoting access to justice, it was revealed yesterday.

The Legal Education Foundation – which emerged from the sale of the University of Law in 2012 – made 79 grants last year, compared with 67 in 2015.

Foundation officials said in the body’s annual review that the funds went to a variety of organisations that aimed to promote the understanding and use of law by the general public. Those institutions included legal advice centres in London, central England, Avon and Bristol, as well as Inquest, the charity advising on deaths in custody, Legal Geek, which focuses on technology innovation, and the Public Law Project, which targets advice for the poor.

One charity, Maternity Action, which provides legal advice to young parents, received a grant of £57,300 to produce a series of videos aimed at women on low incomes, informing them of their employment rights during pregnancy.

"As a specialist funder, collaboration is an important part of our ethos,” said Matthew Smerdon, the foundation’s chief executive, “and last year saw us attract £1 million from other grant-making organisations to distribute via partnership programmes.”

• Gradual rise in solicitor training vacancies in Scotland

Training places at Scottish law firms grew – albeit slowly – last year, allaying concerns that the legal profession will be hit by Brexit and is still having a generally sluggish recovery from the economic crisis.

There was a 2 per cent increase in the number of available solicitor training contracts in Scotland during 2015-16, according to figures released from the national law society yesterday.

That was the same percentage increase as in the previous year. The society said that 80 per cent of traineeships started last year were based in the geographic “central belt”, which includes the country’s largest conurbations. Training contracts in that area increased by 5 per cent over the previous year.

However, the report highlighted some concerns. It pointed out that there was a 26 per cent drop in the number of traineeships in Aberdeen and Aberdeenshire, which the researchers speculated could be the result of tumbling oil prices and a knock-on effect in business in that region.

• In Brief

UK fraud hits record £1.1bn as cybercrime soars – The Guardian

KWM administrators' interim report says partner exits hastened demise of legacy SJ Berwin – Legal Business

Partners have their say on the demise of legacy SJ Berwin – Legal Week

Accounts analysis forecasts grim future for over 500 law firms – Legal Futures

Even Brexiteers should rejoice at Supreme Court ruling David Greene

As a Brexiteer, my client, Deir Dos Santos, always said his motivation in bringing the challenge to the government's proposed triggering of the Article 50 provisions of the Treaty of Lisbon was to ensure that lawful process applied to the UK's departure from the EU.

Yesterday’s Supreme Court decision vindicates his role in shining a spotlight on the rightful process as well as the role that the law plays in that political process.

This has been a unique and difficult fight where the legal issues were often clouded by a politically charged backdrop. Yet, as has been made clear by the courts, this is a case not about whether we should withdraw from the EU but about the domestic constitution of the UK and the relationship between parliament and our government.

The result is a reassertion by the court that we live in a parliamentary democracy, in which, having been elected, our MPs have the sovereign power to grant rights and remove them; a power only constricted by consideration of human rights and rule of law.

These rights affect people’s lives, family life, where people live, where they work, their very right to work in this country. They are vital rights in day to day life. The court has decided that the rights attaching to our membership of the EU were given by parliament and can only be removed by parliament. This is a victory for democracy and the rule of law.

Some have questioned the point of this judgment now that the prime minister has said she will give parliament a vote on the Brexit deal after negotiations. We can speculate that she may not have done so had the cases of my client and Gina Miller not brought pressure to bear.

Is Theresa May's recent concession sufficient? No. Having served the Article 50 notice, we will withdraw from the union on the second anniversary regardless of whether a deal is done or whether parliament approves a deal. Parliament may be left then with a choice: vote yes to the deal or we leave with no deal at all.

The time for the vote then is now on the principle of withdrawal and the inevitable removal of citizens’ rights that will follow both for citizens here and UK citizens in the EU. In considering an Article 50 statute, I am sure MPs will have those rights in mind.

Yesterday’s ruling was also a victory for our judicial process. Both my client and Gina Miller have received vile and threatening hate mail, yet they have had their case heard and treated by the courts with the greatest of respect.

The court itself has been vilified and judges subject to intense media criticism and intimidation. Yet a determination has been made based purely on the legal issues, which is as it should be.

Ministers – and especially the lord chancellor – should confirm their unquestioning support for the rights of the claimants in this case and their respect for the court's decision.

David Greene, the senior partner at Edwin Coe, a London law firm, acted for Deir Dos Santos, one of two applicants in the Supreme Court hearing on the Article 50 process of the UK leaving the EU

On rereading I'm finding massive holes in the UKSC's a50 reasoning. Doesn't para. 86 necessarily mean the Lisbon Treaty was unlawful?

Carl Gardner @carlgardner

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With whom, or without whom …?

UK Supreme Court judges spent much of the Article 50 hearing basking in plaudits for the smoothness of their media performance. There were no embarrassing stumbles during the four-day broadcast of the hearing and the consensus was that – just as with the changing of the guard and the Queen’s various jubilees – the message to the wider world was that this is the sort of thing the British do jolly well.

But there was bound to be a glitch eventually. And of course it came just before the climax of the whole saga as the media and public waited anxiously for the ruling to be handed down. Fifteen minutes late and still no sign of Lord Neuberger, the court’s president, and his merry men and one woman.

Eventually, sources revealed that there was a tiny last-minute disagreement. Nothing so serious as Lord Sumption having a sudden change of heart and jumping into bed with the three dissenters, Lords Carnwath, Hughes and Reed. But slightly difficult nonetheless.

The issue was the very top of the judgment, which read “Lord Neuberger: (with whom Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge agree).”

Apparently those in brackets were not entirely comfortable with the phrase “with whom” as it could be inferred that the president alone burnt the midnight oil producing the comprehensive 97-page ruling, while the rest of them had their feet up and got stuck into the Supreme Court cellar’s vintage port.

Sadly for them, it was too late to amend the judgment.

Lawyers unable to reist Brexit ruling bandwagon

The torrent of commentary that flowed from lawyers in the wake of yesterday’s Supreme Court ruling on Article 50, Brexit and all that was a mix of the insightful and the downright banal.

Some lawyers could not resist hitting the “send” button even if all they had to say amounted to something like: “The judges handed down their ruling; it was very important.”

And some brightened up media in-boxes just by the sheer chutzpah of the presumption that no matter how far outside their field of specialism the subject was, the wider world must be interested in their views. Step forward Ayesha Vardag, founder of the London law firm Vardags. She has built a reputation for high net worth divorce work and appearing in glossy magazines.

And Vardag’s thoughts on this great constitutional ruling: “Rather than a rejection of the Brexit result, which remains an important indicator of public sentiment, this is a recognition that due democratic process must be followed.”

Debrett’s declares Clooney pukka

For those who hark back to days of upstairs and downstairs, there’s nothing like a nostalgic leaf through the pages of a Debrett’s tome – and the pukka publisher’s guide to which lawyers are among the most influential people in Britain makes for an especially entertaining read.

The gossip website Legal Cheek points out that among the 20 lawyer names in the most recent edition are only three of the Supreme Court’s 11 justices: Lord Neuberger, the court’s president, Lady Hale, the deputy president, and Lord Sumption (presumably his collection of outlandish neck-wear sealed his place).

But it is the inclusion of Amal Clooney, the Doughty Street Chambers junior barrister, which has the site most intrigued. It describes the wife of Hollywood heart-throb George as having a “relative lack of experience” at the bar.

Another eclectic inclusion is Julia Salasky, who qualified five years ago and practised briefly at Linklaters, one of the City of London’s five “magic circle” law firms, before setting up the website Crowd Justice.

At the other end of the qualification spectrum, and apart from the Supreme Court trio, other old-stagers to make the Debrett’s cut include Lady Justice Hallett, the Court of Appeal judge; Sir Brian Leveson, president of the Queen’s Bench Division; Sir James Munby, president of the Family Division; Helena Kennedy, QC, the longstanding human rights lawyer; and The Times’s own columnist Lord Pannick, QC, of Blackstone Chambers.

"We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by parliamentary legislation."

Lord Neuberger, president of the Supreme Court, from part of the nearly 100-page ruling on whether MPs should vote on the Article 50 trigger to the UK leaving the EU.

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