Friday, 16 December 2016

Supreme Court: contract and carols


There was much chortling in-jokery last week about Lord Sumption’s ties at the four-day Article 50 hearing. Today, Jeeves has clearly returned from his holiday but there are no fervid rune-readers here to report that Lord Sumption is wearing an EU-blue tie with what could from a distance be gold stars on it. They are probably polka dots.

Today’s case is about contract and trusts. It refers to planning permission. Meanwhile the court has a planning application notice outside, as it is seeking to replace an oak floor which has a romantic creak like a ship in full sail. I hope the sound gets archived before the timbers are shivered.

BPE Solicitors and another v Hughes-Holland (in substitution for Gabriel) is the latest in a strand of litigation stemming from a discussion in ‘the Red Hart public house’ in 2007 between two friends: Richard Gabriel is the godfather of one of Peter Little’s children. Mr Gabriel agreed to lend Mr Little’s company £200,000 towards developing a property at Kemble Airfield (Cotswold Airport), formerly the base of the Red Arrows.

I google Cotswold Airport. In its AV8 restaurant ‘you will be able to watch the world fly by in a classy atmosphere with a distinctly Mediterranean feel, something that you do not come across very often in the UK.' I guess that's why I voted Remain.

The property was not developed, the loan was not repaid. Mr Gabriel chose, as counsel puts it today, 'to roll the dice of litigation’. Can he recover from his solicitors the money he lost, and did they have a duty to protect him from the loss? Are Dickens and Kafka playing consequences?

At lunchtime, the Treasury Singers arrive for their annual charity carol concert, this year for Crisis. 

We are ushered into the lofty anarcho-gothic-pre-Raphaelite library (normally off-limits), which has been camped up with pine garlands and poinsettias. Justices pop in. The Supreme Court’s misdescribed Can’t Sing Choir join in with relish and don Santa hats for the finale, We Wish You a Merry Christmas. There is an earnest endeavour that touches the flinty heart. 

I go to the café where my friend does some quick and easy Christmas shopping, including a teddy bear for a baby. 

Saturday, 10 December 2016

Supreme Court: last day of Article 50 hearing


I start in one of the overspill courts, watching on a screen. Which way is this case going? We seek a sign. Has Lady Hale been semaphoring all week with her motif brooches? It’s impossible to tell whether today’s is a brooch or simply an ornamental part of her black dress, but it looks like a black flower. Is she alluding to Black Flower, Kim Young-Ha’s novel about migrant workers caught up in a revolution who set up their own mini-nation?

The Brexit analogy is tempting. But I could be reading too much into it.








Helen Mountfield QC (below), for the crowd-funded People's Challenge group, starts with an unnecessary apology: ‘To some the legal arguments in the case may sound dry and antiquarian…’

No, for a non-lawyer this is the good stuff: we get the Treaty of Utrecht, the Seven Years’ War, Henry IV, Henry VIII (whose face is carved into an oak bench in the courtroom), William III and George III.


She adds: ‘Mr Eadie’s submissions are the equivalent of arguing that because none of the attempts to catch the Loch Ness monster succeeded, the Loch Ness monster still roams free.’








In court, there is a strained, earnest longing to find jokes funny. They are scrutinised afterwards by the commentariat like prize-winning bantams at a show for people who know how to evaluate bantams.

In the cruel world of stand-up, they would not win prizes. As a sacrifice to nerves, Mr Eadie started with something baffling which depended on knowing the form of a certain race-horse. Ad libs from the bench win overall on the comedy front.








Manjit Gill QC speaks movingly on behalf of vulnerable people, including British children and disabled people whose parents, guardians or carers, aka bargaining chips, may lose their right to live in the UK.









At lunchtime a punter hands out Cadbury Heroes. Hope he’s got some left for the heroic advocates and justices. Witnessing this superb exposition of legal process is a consolation after the national shame of Brexit and its spiteful aftermath.

In the afternoon I inherit a space in the courtroom. Bad for sightlines, good for authenticity.

Time for the last submission before Mr Eadie returns for the government. Lord Neuberger: 'Final shake of the kaleidoscope of the front bench. Mr Green.'

If I am to abandon my hobby of remoaning, where can I redirect my attention? Il faut cultiver notre jardin. But gardening is no real retreat from the world. The no-borders fox has just left contemptuous paw prints in wet cement. Fuchsia bug mite ignores trade barriers: it reached England from the US about ten years ago. My plants are riddled with it. You can’t disengage from the single organism we belong to, even if you suspect we're all inside a psychopathic alien’s test tube.


Mrs May is going for the ‘best possible’ Brexit. All the possibilities are invited to the Brexit party, but can we rely on them to turn up if there's a better gig somewhere else? Is the best possible Brexit an impossible one?

On Wednesday, David Scoffield QC said, ‘The UK Government's contentions on the extent of its prerogative power are, with respect, cavalier, perhaps in this context with both a small C and a large C.’ So, can anyone read anything into these two maps: the start of the English Civil War and the referendum result?

Yellow = Cavaliers
Yellow = Remain













PS Across the channel, there’s a spat involving the French equivalent of the Supreme Court. In a bureaucratic rejig, the Cour de cassation has been put under government supervision for the first time. The court’s president and the attorney general fired off a terse open letter to the prime minister. Le Figaro claims that the situation is more nuancée than it appears, but the article reads like a phone call from a weary government press officer.

PPS This is the second piece of EU referendum-related litigation to reach the Supreme Court, and presumably not the last as this fiasco plays out over decades of decline [smiley face]. In May, the court upheld a ruling that British expats who'd lived outside the UK for more than 15 years could not vote in the referendum. The Conservatives didn’t get round to changing that in time.

Lord Neuberger - two of many seat positions

Thursday, 8 December 2016

Supreme Court: more Article 50 action




Watching it on the train...
I board a train in Warwickshire. I watch the newest folk hero, Lord Pannick, on my BlackBerry. He should sell his recorded advocacy as a cure for insomnia – he is not boring but soothing, authoritative, sometimes incantatory. 

He makes it all look easy and I am lulled into a heedless trance. Then I leave a breathtakingly expensive pen on the train. Bother. 





...and in a cab
I take a cab. The sign in my drawing is all about Brexit. A late arrival at the Supreme Court, I'm in one of the overspill rooms.

The Irish question. When I got married I asked my husband if he would take British citizenship. He thought it was an absurd idea. His parents marched against Mosley in Cable Street. Now he is a bargaining chip. Will we have to stand in different queues?

It’s a mess. Bones rattle. The auld triangle goes jingle jangle. Ronan Lavery QC addresses the court: ‘Take the applicant, my client, for instance, he is a Protestant from north Belfast, he is a victim of the Troubles, he is a victims' rights campaigner. He is here, has always attended court with his friend who is a catholic. But his son was murdered by loyalist paramilitaries. He regards himself as British, although many people in Britain may regard him as Irish. It is a complex situation, my Lords, my Lady, Northern Ireland, and there is a complex constitutional settlement.’

The room grows cold. Or is it me.


So, what’s going to happen? Who will win this case? At the end of day three, William Hill are offering 5/2 that the government will win and 2/7 that they will lose. That’s just betting, though, which consists of money, sentiment, superstition and hedging.














What about the index to the day’s transcript? This perfect source of found poetry includes a numeric index for all you Bletchley Park types. Are there any clues in this sample page, for example? I would pay to hear Lord Pannick read this out:


Or is Lady Hale giving us signs? On day one, she wore black and a brooch which looked like a double dragonfly. On day two she wore half-mourning (purple) and what appeared to be a beaten silvery blazing comet or quarter sunburst. Today she is dressed in deep blue and a metallic caterpillar.


‘Don’t be pessimistic,’ someone said to me yesterday, after my latest diatribe. ‘Nigel Lawson says global warming isn’t happening.’ That is an unfortunate combination of words to use against me. I find it hard to trust people at the moment.

David Runciman, a professor from the Remain stronghold of Cambridge, writes in the latest issue of the London Review of Books (read by the people of the smaller bubble inside the larger bubble, like me): ‘By choosing to quit the European Union, the majority of British voters may have looked as if they were behaving with extraordinary recklessness. But in reality their behaviour…reflected their basic trust in the political system with which they were ostensibly so disgusted, because they believed that it was still capable of protecting them from the consequences of their choice….’

His article does not end happily.

Tuesday, 6 December 2016

Supreme Court: Article 50

Caution: contains remoaning.

I wish I loved the Human Race;
I wish I loved its silly face;
I wish I liked the way it walks;
I wish I liked the way it talks;

And when I'm introduced to one,
I wish I thought "What Jolly Fun!"

 - Sir Walter Raleigh (1861-1922)

I've had it up to here with vast swathes of humanity lately. Still, let's be positive, eh.

I’m queuing to get into the Supreme Court for the Brexit hearing. Can parliament get to vote on triggering Article 50? The true spotters got here before dawn. (Sensible people watch it live on the website.)

A red double-decker bus swings around Parliament Square and parks outside. On top are cheerful people in judge fancy dress, brandishing fencing foils to be like the Master of the Rolls. 'Nigel, where are you?' they cry.

I'm directed to one of two overspill courts, to watch proceedings on a large screen.

'Her Majesty's Attorney General,' says someone, reading from the cast list. 'Is that Liz Truss?'

The hearing kicks off with fire and brimstone from the bench. Lord Neuberger has tough warnings for dealers in abusive threats, and explains that judges judge law, not politics.

He also thanks the staff for responding to the full glare of Brexit. The court is in superb condition, its engine purring softly.




There is something rather touching about the blue velvet upholstered chairs, hired to cope with the extra numbers and matching the carpet. Everyone has leaned over backwards to explain, to inform, to welcome, to get the house-keeping right.

Ambulatory is a key word in James Eadie QC's argument on behalf of the Government. Blurrily reading Joshua Rozenberg’s commentary in the unhinged insomniac hours, I misread 'future' for 'furniture', and agree: the legislation has marched into the furniture or maybe the brick wall of Brexit.












At lunchtime, a woman buys a souvenir teddy

In the afternoon I'm allotted a seat in the packed courtroom - next to a proper court artist, one who can really draw and stuff. I thought I'd better be very small so I just brought A4, whereas he is happily playing around with A3, so I get format envy. Meanwhile, Mr Eadie parries piercing questions from the bench - the fencing foils come to mind.

Protest outside the court - Brexit means cab

And now the fun part. Lovers of found poetry will be excited to learn that the Supreme Court's transcription of this case (ready on the same day!) is not only searchable but INDEXED. Here's a random sample of allusiveness:



















PS Do be careful, Daily Mail. Writing about the Supreme Court justices, you say: 'With no written constitution to guide them, this is not a mere question of law, to be solved like a quadratic equation, with a correct or incorrect answer.' Most quadratic equations have two solutions, so your analogy falls down rather.


PPS there are lots of grown-up legal commentaries, including live tweets, but you only come here to know that Lady Hale was wearing a lovely brooch which looked like a double dragonfly, or maybe a damselfly.