Sunday, 31 July 2016

Supreme Court: retrospection

Lord Toulson receiving praise
Some careers are short by definition. I've seen footballers, gymnasts and ballet dancers come and go. Paul Gascoigne. Olga Korbut. Irek Mukhamedov.

It feels unsettling to have seen Lord Toulson's span as a justice of the Supreme Court begin and end - but that was not, of course, his entire career on the bench, and he'll return to this court as a member of the Supplementary Panel.

At the start of his last case before retirement, he looks down as Lady Hale and leading counsel pay tribute to his career. He eventually smiles and says he is 'appreciative and astonished'.

R (on the application of Johnson) v Secretary of State for the Home Department concerns illegitimacy so it resonates with me. ('Oh no,' frets my reader, 'that'll set her off again, building a mausoleum for that Unknown Grandfather with her bare hands.')

Someone recently told me the known fragments about his own accidental grandfather, who abandoned his three-year old son, but not before giving him a football. That seems like untold riches. 

Eric Johnson could be excused for feeling like a football. Born out of wedlock in Jamaica to a British father and a non-British mother, he was brought to the UK at the age of four but did not subsequently take up his right to apply for permanent citizenship. Following his conviction for manslaughter he is challenging a deportation order which would return him to Jamaica. ('You can't be made stateless,' says counsel although, still in free-fall after the referendum, I do rather feel it.)

Retrospection is key - including whether the Human Rights Act 1989 can apply to something which happened before it came into force but which still has an effect. Legitimacy can be bestowed retrospectively if the parents marry - not an option in this case.

I have outfit envy: an enterprising girl on the legal team is wearing a champagne-coloured jacquard-weave bell-skirted suit.

In the evening, I'm surrounded by people drinking, eating popcorn and chattering in the Albert Hall during Rossini's The Barber of Seville. I think of Mr Justice Harman who reportedly asked, 'Who is Gazza? Isn't there an operetta called La Gazza Ladra?' (Rossini again.)

During a prolonged episode of comic mugging from the singers (blame the director) someone is stretchered out from the stalls and someone else appears to cry out '****!' from the vicinity of the loggia. As in court, there is a thread of drama in reality which is impossible to recreate on stage. But I would cast Alex Jennings as Lord Toulson.

You'll find a grown-up interview with Lord Toulson here.

Tuesday, 19 July 2016

Article 50 in a heatwave

Douglas Adams was wrong. The answer is not 42, but 44.

The question: which way did you vote in the referendum?

Someone said to me once: 'I didn't recognise your number because it began with 44.' That makes him a leave and me a remain.

Yes, I oversimplify. This is a blog post.

I am in Court 4 of the Royal Courts of Justice. The outcome of the referendum is getting its first and by no means last day in court. 

The day of the referendum had apocalyptic rain. Today is beyond sweltering. The court has its own pathetic fallacy: in a ring of lightbulbs, one is dark, like the symbolic star which users of social media are removing from the EU flag.

Put out the light, and then put out the light:
If I quench thee, thou flaming minister,  
I can again thy former light restore,  
Should I repent me...

My notes say: 

Ski jump nose flaring nostrils fine tapering fingers
Dirk Bogarde'

Good God, is this Mills & Boon?

Today, order has to be made out of a slew of represented parties and two litigants in person, who have what is described as a Venn diagram of intersecting interests.

From the bench:
'...urgency and uncertainty...'
'...concerned citizens...'
'I look across the front row and see a bewildering array of legal talent.'
'We are living in very uncertain times.'

'Four hundred funders are not necessarily four hundred clients' (prompting thoughts of the Four Hundred who established a short-lived oligarchy in war-torn ancient Athens).

Do you trigger Article 50 or invoke it? Most people in court today say trigger, which sounds final, but I prefer invoke, as in conjuring a spirit, which might vanish.

'It would be disturbing if the Government said: all right, we'll just do it,' says the bench.
Lord Pannick says that would be 'inconceivable'.

'There will be no decision and Article 50 will not be invoked,' says Jason Coppel QC (for the Government).
'Before the end of the year. Let's just finish the sentence,' says Lord Leveson.
[Laughter; hasty confab among counsel's party]

Afterwards Joshua Rozenberg, who has been taking notes on yellow paper, speaks to camera outside.

I catch a disastrously designed Heatherwick bus. It is intolerably hot and breaks down at Hyde Park Corner. 'The bus has gone mechanical,' says the driver.

At home I do a rough draft sketch of the court scene and lose the will to live. I go to Beethoven's Missa Solemnis.

Miserere nobis
Dona nobis pacem

My exhibition of drawings, The Body of Law, is on the second floor of Senate House, University of London, Malet Street, London WC1E 7HU. It is part of the Institute of Advanced Legal Studies’ public engagement programme, Open until 30 July, Mon-Fri 9am-8.30pm, Sat 9.45am-5.15pm.

Tuesday, 5 July 2016

Supreme Court: moral landscapes

I know someone who used to ______ Boris Johnson's ______.  But it's not the sort of thing you'd say on the record.

I often marvel at what people will say in front of journalists.

'Why did he/she print what I said when we agreed it was off the record?' 

I've heard that a few times.

'Because you said it, you moron,' is what I find a more polite way of saying. Why were you so sure that you and the journalist occupied the same moral landscape? 

They might leave the camera running.

Today's case, R (on the application of Ingenious Media Holdings plc and another) v Commissioners for Her Majesty's Revenue and Customs, is about confidentiality.

The appellants run film partnerships which they say offer tax breaks although this is being disputed in the tax tribunals. Did an off-the-record briefing to journalists by HMRC breach HMRC's duty of confidentiality or the appellants' legitimate expectation, abuse HMRC's power, fail to follow its existing policy or breach the appellants' Article 8 and Article 1 Protocol 1 ECHR rights?

The flowers in the carpet are at risk again
The Court of Appeal judgment gives a flavour of the briefing, including text which wasn't published in the newspaper: 'You won't find anybody here at all...who thinks film schemes are anything other than scams for scumbags.'

I always bring sheets of drawing paper. Of course I do. Today I forget them. It's been like that since the referendum laid an ostrich egg in my brain. I scrabble around in my bag. There's a small sketchbook. 

Heavy hitters are slugging it out. Hugh Tomlinson QC and James Eadie QC.

One of them is ticked off by the bench in a manner which would have me running out to cry in the toilets. I've seen it before. It always rolls right off them. The other side get smug for a bit. That doesn't last long.
I ask a guard if he knows why one of the justices is using a crutch. 'All that football,' he says. I realise where the next England manager should come from.

Outside on Parliament Square there's a desultory lager-and-spliff anarchist demo. Although it's billed on Facebook as pro-migrant-workers, the EU hardly figures: it's an anti-everything collage including hunt saboteurs in case anyone pursues a fox across the grass.

I've found it difficult to relax lately but out here as the wind picks up and clouds gather I feel at home in a place of certainty. No one in court resigned today. No one out here seems to have anything to resign from. No one bothers to make a speech. The sound system plays hardcore punk, reggae and easy listening.

I chat to a survivor of Occupy, which I used to watch. Although he shouted pro-EU slogans at the anti-Brexit rally last Saturday, he voted Leave. As I said, be sure you know what your interviewer is thinking.

I head for home. In Victoria Street I find a broken heart on the pavement. Mine.

But the newspaper offers a shred of hope: we're not that well protected against asteroids.

My exhibition of drawings, The Body of Law, is on the second floor of Senate House, University of London, Malet Street, London WC1E 7HU. It is part of the Institute of Advanced Legal Studies’ public engagement programme, Open until 30 July, Mon-Fri 9am-8.30pm, Sat 9.45am-5.15pm.