Life class and a Gerry Adams court case: sketchbook muddle

Don't take anything for granted. Things I sort of took for granted were the weekly life class, the Good Friday Agreement and live drawing (with permission) in the UK Supreme Court. Two are currently impossible because of Covid-19 and one is under threat because of human idiocy.

This muddled-up sketchbook has become an accidental record of two, with overtones of the GFA, in that a court case in central London involving Gerry Adams (although absent) did not require massive security.

It shows life drawings from a couple of weeks' sessions, and sketches R v Adams (Northern Ireland) which was heard on 19 November 2019. In May 2020, the Supreme Court quashed Gerry Adams's convictions for escaping from the Maze prison in the 1970s.

A Court of Specialists: Judicial Behavior on the UK Supreme Court

Wisden will be rather thin next year, so if you like chunky facts and statistics why not console yourself with A Court of Specialists: Judicial Behavior on the UK Supreme Court, a volume to make the spotters’ eyes sparkle. (The American spelling reflects the key market of the publisher, OUP.)

The author, Chris Hanretty, is Professor of Politics at Royal Holloway, University of London. Although he is a political scientist, his aim is not to probe the Justices’ personal politics: ‘There has been no suggestion that politics matters for appointments to the Supreme Court. Indeed, it is difficult even to form an impression of what nominees’ politics might be.’ (What Justices may do in retirement is another matter.)

This book covers the period from the Court’s beginning in October 2009 to September 2017, so it misses out the turbulent prorogation spectacular of 2019, R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland, which did much to raise the Court’s profile. 

Professor Hanretty’s thesis is that specialisation dominates every aspect of the Court’s work, from who gets heard to who dissents. He calculates, for example, that Lord Neuberger weighed in at 74% tax/chancery before reaching the Supreme Court, while Lord Sumption, appointed from the bar with no bench form, ‘has been imputed values equal to the mean for English and Welsh judges.’

‘The argument of this book,’ he writes, ‘is that…the Supreme Court is a court of specialists, and that its work should be interpreted in that light…Although the court may sit in panels of five, seven, or nine, the bulk of its work…is carried out by…individuals who have given over a substantial part of their career to tax law, family law, criminal law, or public law. This specialization means that the effective size of each panel is much smaller. This in turn reduces the scope for disagreement, and makes it much easier to sustain higher levels of unanimity.’

This book is for anyone engaged in Supreme Court haruspication. Although Professor Hanretty points to the turf guide which suggests that the Government and parties using the most costly counsel tend to have a good chance of success, there are no easy answers and you are cautioned to cast your net widely: ‘Betting markets [in this case Betfair]…proved accurate in the [first] Miller case. Two weeks before the court handed down its judgment, a £1 bet on the eventual winner would have given a return of just £1.23, compared to a return of £4.70 in the event of the government winning…The betting markets thus made a confident and correct prediction about the outcome of a Supreme Court case.’

That case (R (on the application of Miller and another) v Secretary of State for Exiting the European Union) is one of two appeals spotlit in the introduction. The other is R (on the application of Newhaven Port and Properties Limited) v East Sussex County Council and another, a lyrically English village green case with added maritime romance. As Lord Carnwath points out, perhaps misty-eyed, the appellants relied on Hall on the Seashore, Phear’s Rights of Water, and Stuart Moore on the Foreshore. A 1904 decision of Vaughan Williams LJ is cited: he was the uncle of Ralph Vaughan Williams and you can hear the swelling strings.

The poet George Crabbe keeps trying to break out in the scene-setting at the beginning of the judgment (Lord Neuberger and Lord Hodge). Their conclusion is elegiac: ‘The poet Ovid spoke of time as “the devourer of things” (“tempus edax rerum”. Metamorphoses 15.234).’

I’ll bring in the translator Arthur Golding:

Thou tyme, the eater up of things, and age of spyghtfull teene [vexation],

Destroy all things. And when that long continuance hath them bit,

You leisurely by lingering death consume them every whit.

There is no poetic soul in Miller 1, enacted before a sour and riven nation, with angry tides lapping at judges left undefended by a feckless Lord Chancellor. The only balm was to see the Supreme Court, at a time of unprecedented pressure, being hospitable and accessible (‘The communications could not have been better,’ wrote David Allen Green for the Financial Times), and to witness competent, articulate people at work, contrasting with the strident reverse-talent contest across the square.

I hesitate to judge this book by its cover because it uses one of my drawings of R (Nicklinson) v Ministry of Justice, the assisted suicide appeal. On his feet is Paul Bowen QC, representing the late Tony Nicklinson and Paul Lamb. He was leading Guy Vassall-Adams, seated to his right, who became a QC in 2016. I blogged about it here.

Nicklinson was one of the rare hyper-important cases with a panel of nine Justices instead of the normal five – not surpassed until both Miller appeals with panels of 11. Professor Hanretty uses Nicklinson to show that the UKSC may find ‘in favor of the government, but at the same time puts the government at notice that it might not be so lucky next time… The court was asked whether UK policy in relation to assisted suicide was compatible with the Convention right to respect for private life (Art. 8)…Three judges (Neuberger, Mance, and Wilson) said that it would be appropriate for the court to say whether or not the policy was compatible, but that there was insufficient evidence for them to do so in the present case…Decisions…like this suggest that judges are eminently capable of reaching decisions that are political in this sense.’

The book concludes: ‘There has been almost no study of public opinion regarding the court, of media coverage of the court and its rulings, or (save in very specific cases) the reaction to the court in the political sphere. An investigation of this kind seems necessary if we are to know whether the court’s expertise brings with it the trust of the people.’

The feverish public response to Cherry/Miller 2 moved things on a bit. And we might well ask, post no-deal Brexit, who will protect the judiciary from the suspicion of a squalid government? Where would the people rather place their trust? This book takes the Human Rights Act 1998 as a given.

A Court of Specialists: Judicial Behavior on the UK Supreme Court by Chris Hanretty, OUP, £64, also an ebook

Supreme Court: Gerry Adams's appeal

'I'm sufficiently old to be able to remember something of the contemporaneous events,' says Lord Kerr, who is presiding over R v Adams. To the girl who briefly sits beside me, flicking through WhatsApp, it's ancient history.

I remember the British confusion when the IRA bombing campaign reached the mainland in 1973. Metropolitan litter bins disappeared. Public lavatories at railway termini were briefly closed. It was said that the Bakerloo line would never be bombed as it serves the Irish community in Kilburn. I was told about a girl with an Irish accent carrying her brother's birthday cake on the Tube: the police cut the cake into little pieces to prove that it didn't contain explosives. Did that happen? There were more sophisticated ways of dealing with suspect devices but it was plausible at the time.

Lord Burnett, the Lord Chief Justice, has joined the Supreme Court bench today. Gerry Adams is absent. The court is tumbleweed alternating with tour parties who come and go with a swish of Gore-Tex on the wood and leather seats. The air conditioning is barely audible; the bagpiping busker outside can't be heard thanks to triple glazing. Now and then the Welsh slate clock on the wall makes its sinister rasp; disappointing too was the harsh, dissonant voice of Gerry Adams once the British were allowed to hear it, instead of the silver-toned actors who dubbed him from 1988-1994, when a broadcast ban applied to Irish dissident groups.

Professor Alan Paterson, author of Final Judgment, about the early years of the Supreme Court, slips in towards the end of the appeal.



At one point Lord Kerr, who was previously the Lord Chief Justice of Northern Ireland, appears to be attending to a paper cut on his finger. This is not the time or place to hold a silence for the adults and children killed because of the Troubles but a tiny drop of blood shows up as a pathetic fallacy.

Gerry Adams is trying to clean up his criminal record. In 1975 he was convicted twice for attempting to escape from the Maze prison where he was interned without charge or trial. But government papers released under the 30-year rule showed that his interim custody order, made by the Minister of State under the Detention of Terrorists (Northern Ireland) Order 1972 art. 4(1), had not been considered by the Secretary of State for Northern Ireland, who was then Willie Whitelaw. Does this make the order invalid?

The wording goes under the microscope. As with Brexit ('a' customs union versus 'the' customs union) we are in 'a' Secretary of State versus 'the' Secretary of State territory. In play is Carltona Ltd v Commissioners of Works which equated acts of government officials with acts of the minister.

Counsel makes a reference to 'groping at perpetual twilight' and when the Supreme Court puts the recorded film on its website I will be able to check the context but meanwhile I am left with Isaiah 59:10: We grope for the wall like the blind, and we grope as if we had no eyes: we stumble at noon day as in the night; we are in desolate places as dead men.

After the hearing I encounter a real live hunger strike on Victoria Street, far in distance and time from the ten Provisional IRA hunger strikers who died in the Maze in 1981: beyond House of Fraser's twinkly Christmas display, Extinction Rebellion campaigners are lodged outside Labour Party HQ.

Further up and down this street which connects a Protestant abbey and a Catholic cathedral, rough sleepers are muffled against the cold or insensible to it. A woman handing out leaflets says, 'Give your lives to Jesus, people.'

Coda: the British have a long and painful tradition of indifference to/ignorance of Ireland. I am beyond sickened by those who would trash the Good Friday Agreement for the sake of pitiful delusions about Brexit. It has been keeping a fragile peace, more or less, since 1998.

 

Cherry/Miller2: in court for the judgment

Ink and rainwater

Wet. More wet. Queue in rain from 7am. Hide from cameras. Sky journalist Adam Boulton's beige cloth coat is drenched and clings to his bulky form. The crews and photographers are soggy but jocular. I eat a Gregg's croissant.

The omens aren't great. On his way in, Michael Fordham QC pauses to talk briefly to the only man queueing without an umbrella. A couple of minutes later, a member of staff emerges to lend him a big black Supreme Court brolly. It does not open properly. It does not provide comfort or shelter. This is bad. Someone else in the queue assists. Together they prop it half-open.

Even worse: on day 2 of the hearing Aidan O'Neill QC, representing Joanna Cherry QC MP, is going large on Celtic twilight and says 'Macbeth' in open court. Surely that's as ominous as pronouncing it in a theatre? Shouldn't he follow thesps' tradition and leave the court, spin around three times, spit, swear and knock on the door for Derek Allen the Court Usher to let him back in?

Shortly before opening time, we are handed our salmon pink tickets. Mine gets soaked. I could have been having a different kind of watery experience, in Venice, with my friend Jacqueline. I have chosen to be here, among puddles, not canals or lagoons.

Into the courtroom. As Lady Hale begins to speak, a thousand fingers on keyboards patter like sweet rain on the desert where a howling hot wind has been blowing a storm of lies into our faces.

We forget to breathe.

When she says 'unanimous' there are suppressed gasps.

It could be happening.

More gasps and a whispered 'Jeeze' when she says 'unlawful'.

In her judgment she goes back to 1611 - the likely date of the first public performance of Macbeth, although it was performed earlier for King James.

When it's over I stand at the back of the courtroom with water running down my face and Michael Fordham QC touches my shoulder on his way out.

I get an urgent message from Jacqueline. Can I fnd out where Lady Hale got her spider brooch? It's news to me that she's wearing one as I couldn't see her from my seat. The arachnid frenzy breaks shortly afterwards.

Prorogation cases: Cherry/Miller 2 in the Supreme Court, day 3

Tense, head down, guarded by a phalanx of police officers, Gina Miller walks swiftly to the Supreme Court entrance. 'Disgusting,' shouts an agitated man in a lime green hoodie.

'You're doing a great job,' calls out Leo, a German exchange student at King's College London from the French institution Sciences Po, cradle of Marcel Proust, Christian Dior and Emmanuel Macron. He has a mane of red-gold hair from his Celtic grandmother. 'Thank you,' says Gina Miller.

It's the third and final day of R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland.

There's a holiday feeling in the queue - we're enjoying a temporary break watching the grown-ups in court rather than the political Punch and Judy show with its rhetoric made of artificial sausages.

Femi Oluwole, the Darlington-born Remain idol whose idiomatic French has been admired by Michel Barnier, is out here making two of his couldn't-be-clearer explainer videos and interviewing Jolyon Maugham QC, founder of the Good Law Project which is backing Joanna Cherry QC MP's case.

Later, Femi goes to Downing Street with a demand to end the prorogation and icons collide when he meets Larry the Cat - I stole this still from a Twitter clip:

Into court we go. 'Oh no, where's my ticket? If I've lost it I'm ****ed,' someone observes correctly. That little rectangle of coloured paper, handed to us by friendly court staff who engage in the banter, is our entry to Courtroom 1.

Lady Hale warns Lord Advocate James Wolffe QC: 'You might have to speak up a bit.' She explains that the microphones don't necessarily amplify your voice: they are there to 'ensure that it's transmitted worldwide.'

Advocates are focused solely on the bench whereas the court is acutely conscious of its entire audience, well beyond the back of the courtroom (today barely containing a tide of constitutional law geekery which over the next decades will work its way towards the front). Lord Wilson warns Ronan Lavery QC, representing the victims' rights campaigner from Northern Ireland, Raymond McCord: 'I'm really worried about your submissions. So many people are listening to you. Perhaps some of them have just turned on and they will hear these points, these general points about Brexit and its effect on Northern Ireland, and...may come to an entirely wrong conclusion, namely that this is what we are looking at. Now don't abuse our politeness and don't abuse Lady Hale's patience.' A student whispers, 'Wow.'

Michael Fordham QC's personal volume control is erratic, sometimes startlingly so, but his style is arresting.

One downside of being at the back is that you can't see the rich cavalcade of Sir James Eadie QC's facial expressions while his opponents are speaking. Poker cannot be his game.

On one side of me is an undergraduate who has braved a long journey on public transport with a crutch, having dislocated her knee six times. On the other side is an LLB student whose interest in constitutional law comes from being Ukrainian.

The hearing is allowed to overrun by 15 minutes. The back rows don't want it to end. The court is a prelapsarian place of greater safety. Before the potential prolapse of the judgment. Prerogative. Prorogation. Oh Christ.

We don't hear the shouty crowds outside because of the triple glazing. The court has become our reality. The sunlit beauty of St James's Park feels staged. I walk to the Royal Over-Seas League in search of carbohydrates. The information screen in the foyer says that the Teeth Meeting is in the Wrench Room. Good grief, I've been a member for 25 years and still haven't a clue what goes on here. 

There is abundant legal commentary on social media. The Supreme Court Yearbook is learned but approachable, while The Supreme Court: A Guide for Bears caters for a niche audience.

You don't normally have to queue for the court's hearings, which are free and open to all; live and recorded footage is on the court's website, judgment summaries are on YouTube.