Guy Opperman's Constituency Diary: September 2019

In this blog I will try and set out the basis of legal advice, based upon my own experience, the legal basis for the Attorney General’s advice, the evolution of Judicial Review, Prorogation, the Supreme Court litigation and decision, the way ahead for Brexit, and the need for Parliament to deliver on the 2016 referendum result. As always in a twitter, instant media age, everyone wants instant reactions. I disagree. I really try to read the judgments, listen to the debates and give detailed assessments. This is not always possible, but this blog has been 2 days in the writing. It is long and will not cover everything but is an attempt to explain certain things, notably an acceptance and an understanding of the recent Supreme Court decision, following legitimate questions by constituents, media and colleagues in the House of Commons.

Language:

This has to change – whether it is in a political arena, by a football pitch or on social media, where normal human beings become something very different. Many of my MP friends have abandoned social media. I continue but never read notifications as the bile is off the charts. But we have to keep going – and keep trying to make a respectful robust but civilised case. At all times I, and the government, respect the decision of the courts, and accept the judgment of the Supreme Court. However, everyone seriously needs to moderate their language, and tone. There are no exceptions:

- people or newspapers attacking judges or civil servants,

- John McDonnell’s lynching comment concerning Esther Mcvey,

- people using language like a coup to incite violence

- liberals talking about decapitation of individuals

- and party leaders forgetting that tone matters

- Clearly some Conservatives have used inappropriate and inflammatory language just as others have. It helps no one. There are no exceptions to this. I deprecate it all.

- Every MP I know requires police protection in some shape or form. I am no different to that, but clearly the female labour MPs, and particularly the Jewish ones, get it worst of all.

The nature of advice before action:

I made my living for 20 years as a barrister. Often, I was asked to give advice to government, or other arms of the state, on prospects of success in a case, or in respect of a course of action. On other occasions I was fighting government in the pursuit of individuals rights, freedom or entitlements.
In the field of criminal law I did over 200 trials and was a prosecutor often advising the state on prospects of success in criminal cases. Some we won. Some we lost. That is the nature of being a prosecutor, and criminal trials. I also defended hundreds of people accused by the state on good grounds [according to a prosecutor and the police] – and successfully won many cases on legal aid to ensure my clients freedom.

Similarly, I did a significant amount of judicial review and public law cases. In both instances' counsel is asked to advise on prospects of success.

The test is never 100% certainty as a lawyer in any situation. The test in crime before prosecution is on the balance of probabilities / reasonable prospect of conviction – sometimes known as being at least 51% sure. In civil litigation different tests apply, but there is always an assessment of how sure the lawyer is of the outcome and the validity of the action.
All ministers in government are constantly being advised by department lawyers, retained by government as civil servants to advise on any course of action. For the avoidance of doubt this is standard under any government. They advise without fear or favour, as any minister – or civil servant - will tell you.
In March 2010 I did my last case as a barrister. It was in the High Court in London. I represented one arm of the state. My co-defendant in the action brought against the state was Rt Hon Ed Balls MP – in this case in his capacity as Secretary of State for Children, Schools and Families. We were successful on behalf of the state. The case is reported here: http://news.bbc.co.uk/1/hi/england/devon/8587947.stm

Frequently, during my career at the bar, I regularly was asked to challenge the government or state sponsored bodies: such cases like Compton v The Wiltshire Primary Care Trust are reported here: https://high-court-justice.vlex.co.uk/vid/-52631246

Although that case was successful against the state, I know that the state received advice on prospect of success and the legality of the process, which indicated that Mrs Compton would not win. On that occasion, by our litigation, we helped create new law.

The Attorney Generals advice to cabinet – how a decision can be perfectly properly reached and then overturned by a court:

It is not possible to ascertain the precise nature of the Attorney Generals advice in the summer [this is never disclosed by any Attorney General] but the background to it, the basis of the argument and its legal justification is very simple. He was asked about the legality of the process. He advised the cabinet and the PM that prorogation was legal, and not a justiciable matter. On that basis the cabinet acted as they did, suitably advised. The legality is clearly ascertained from the court transcripts and judgment – see below.
Mrs Gina Miller sued the government – and her case was first heard in the High Court in London. The High Court unanimously agreed with the Attorney General. For those who want to read the High Court’s decision in favour of the government in full it is here: https://www.judiciary.uk/wp-content/uploads/2019/09/Miller-No-FINAL-1.pdf
The key section from the agreed judgment of the Lord Chief Justice identifies the argument [and the Attorneys approach] here:

40.“There are many other statements, in cases binding on this court, that the first question when considering the court’s power to review the exercise of prerogative powers is whether the subject matter of the power is non-justiciable.

41. It is central to Lord Pannick’s submissions [For Mrs Miller} that we should explore the facts first, for the purpose of deciding whether there has been a public law error, and then turn to justiciability; and then in the limited sense of deciding whether “caution” should forestall intervention. We are unable to accept that submission. The question of justiciability comes first, both as a matter of logic and of law.”
He then added:
54.“All of these arguments face the insuperable difficulty that it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between Parliamentary sessions. There is not even a constitutional convention which governs the matter, albeit that constitutional conventions are not justiciable: see Miller No. 1 at [136] and following. The skeleton argument for the Prime Minister notes that there have been a number of occasions in modern times during which Parliament was prorogued for a lengthy period. It was, for example, prorogued on 1 August 1930 until 28 October 1930; on 18 September 1914 until 27 October 1914 and then further prorogued until 11 November 1914; and on 17 August 1901 until 5 November 1901.

55. Those facts also highlight that Parliament may be prorogued for various reasons. There is no statute, other law or any convention which requires Parliament to sit in constant session. The purpose of prorogation is not limited to preparing for the Queen’s Speech. We have noted that under The Meeting of Parliament Act 1797 and The Prorogation Act 1867 there can be a proclamation shortening or extending the period of prorogation. Prorogation has been used by the Government to gain a legislative and so political advantage. One of the most notable examples of that was its use to facilitate the speedy passage of what became the Parliament Act 1949.”

He concluded:

“68. For all these reasons we concluded that the claim must fail. In our view, the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts.”

The Supreme Court decision:

Self-evidently, the Supreme Court on appeal decided very differently. The judgment of the supreme court needs to be read in full, and digested properly; it can be found here: https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf
In short form [for those who don’t want to read the judgment, although I would recommend it] the Court found in summary, that the decision was justiciable, therefore it requires justification, and absent further evidence, they chose to decide that the overall length of the prorogation was unjustified.
I think it is important to make a few basic points clear at the outset. All governments obey the rule of law and accept court decisions. This government will do that. The highest court in the land has changed the law and found against the government [and any future government] and that is where we are now. The court has now decided it has power over something it did not have a power over before. As I hope I have clearly demonstrated above the Attorney General gave advice, which gave justification for the action of the cabinet and the PM. This was a discretionary non justiciable power so he advised accordingly. The High Court did not dispute this. The Supreme Court decision changes the law - so clearly the original decision is overruled. There is no criticism of any of the judges or counsel, many of whom I know and have worked with, against or been in front of in a former life.

Commenting on the judgment, and supporting the judges:

I repeat that I support the rule of law. I will never be a Law Lord, but I do have considerable experience in legal matters, and was given commendations by the Bar Council https://weareadvocate.org.uk/bar-pro-bono-award-past-winners.html and even the labour Attorney General – see here for example: http://guyopperman.blogspot.com/2009/11/meeting-baroness-scotland-at-pro-bono.html
Any counsel, or member of the public for that matter, after a case is entitled to assess the decision and seek to understand the decision. This goes to the issue of being surprised or disagreeing with a judgment but accepting it. The media love to ramp this up, but you can do both things – namely accept the judgment and disagree with parts or all of it. As I say, the decision breaks new ground and is without precedent, as was conceded. But clearly a few points can be made:

- Never before has any court decided to intervene as this court has, or even decided that it had the power to intervene.

- If this was on a time basis then parliament has been prorogued for far longer at equally serious times – see previous prorogations in the first world war, or during the 1930 or 1949 serious situations: I quote the judgment

“on 1 August 1930 until 28 October 1930; on 18 September 1914 until 27 October 1914 and then further prorogued until 11 November 1914; and on 17 August 1901 until 5 November 1901.”

-          Many in parliament would genuinely question whether this prorogation stopped parliament functioning, given a maximum of 6 sitting days would have been missed, given the usual party conference recess, and the impact of the Benn Act ruling out no deal, but that is the decision of the court. See below for further discussion on this, given the reality of the Brexit situation.
-          But that is the nature of judicial review, which sees the ever-greater scrutiny of the executive by the courts. I have been party to this previously, as explained. I also want to stress that the case may have been political in nature and consequence, but it does not follow in any way that the court is politicised.
-          Indeed, some may come, in the future, to welcome judicial intervention and oversight one day.
-          I will give on example that features, at paragraph 40 of the judgment, when Lady Hale reminded the court:
“In their application to the exercise of governmental powers, constitutional principles do not apply only to powers conferred by statute, but also extend to prerogative powers. For example, they include the principle that the executive cannot exercise prerogative powers so as to deprive people of their property without the payment of compensation.”

Now, given the very recently agreed Labour party policy to forcibly take over property from individuals, the reference to the executive taking over property is very relevant were labour to win the next general election: bear in mind their policy as confirmed recently at conference is to

- hand local authorities wide-reaching compulsory purchase order powers to take ownership of empty homes.
- Allow millions of private tenants in the UK to buy their rented homes for a “reasonable” price

Now were labour to win and seek to appropriate assets or force people to sell at under value any landowner may well want judicial intervention to prevent wholesale theft. Obviously, my advice would be not to vote labour – but the point by Lady Hale might be considered by some as both a sensible pointing out of the power of the court to intervene or by others as a warning shot.

However – when Lady Hale describes the case in her judgment as a “One off” I am afraid she clearly misunderstands the desire for many to challenge the state’s actions – the reality is that the courts will be asked to adjudicate ever more frequently on this power on a regular basis. All my Labour, and other parliamentary MP friends in the Commons, and many of my former lawyers’ friends, agree that this opens the floodgates to greater judicial intervention with the executive’s powers. Absent a written constitution that is inevitable with the growth of judicial review – which does what it says on the tin. It reviews the actions of all executives; and it does so more and more. This case will be repeated.

The need for a Queens Speech

It remains my view that a Queens Speech is necessary. To have a Queens speech you have to prorogue – and this is not a coup as some seek to argue. I have made the argument for a Queens Speech before: http://guyopperman.blogspot.com/2019/08/the-need-for-new-queens-speech-and.html
It normally happens every year, and did so effectively every year under Labour 1997-2010. This should definitely happen. And progress on a deal can continue, notwithstanding a Queens Speech. For example, in my department at the DWP the Queens Speech is necessary because we are trying to reform private pensions with collective defined contributions, reform Defined Benefit to prevent the Philip Greens of this world behaving as they did, and to bring in a Pensions Dashboard. Here is me calling for such a Queens Speech [as were labour] in October 2018: https://citywire.co.uk/new-model-adviser/news/pensions-minister-exclusive-government-committed-to-dashboard/a1160621

Brexit, the Benn Act, Article 50 Extension and Revocation, and agreeing a deal:

The Benn Act: The law following the Benn Act is clear – no deal is taken off the table, and Article 50 extensions should be sought if a deal is not reached by 31^st October 2019 – although the EU has to agree: http://www.legislation.gov.uk/ukpga/2019/26/enacted/data.htm
Its consequences are draconian, and potentially it involves unlimited delays, and I certainly don’t agree this is the right way forward. It certainly hampers the PMs negotiation ability; but again it is the law - albeit it requires 27 other foreign powers unilaterally to agree. And bear in mind notwithstanding the alleged “coup” this act was passed by parliament before the September prorogation.

Seeking A Deal: I remain committed to a deal to leave the EU, as does the Prime Minister. I have voted 3 times to leave the EU with a deal and will do so again. I do so as a democrat, who helped lead the campaign to remain in the North East. But the country has decided, and we need to see this through. There are only 2 ways that parliament can agree a deal:

- if the PM brings back a fresh arrangement following the October 17/18 negotiations at the EU summit.
- or if the opposition parties change their approach and seek to work constructively to agree an exit mechanism.

Prospects of compromise: Sadly, the liberal democrats have decided they are now a party of full-scale Article 50 revoke, without even a second referendum anymore! Clearly the original referendum and their repeated promises to abide by the result no longer apply. I could make detailed points that they were the first party to call for a referendum that their new leader, Jo Swinson, called for a referendum as long ago as 2008, and that Nick Clegg was unequivocal about complying with the result https://www.youtube.com/watch?v=BX1vhfdSKu4

But they will clearly never agree to any compromise deal, and have repeatedly blocked any effort to leave the EU as per the referendum decision. The Lib Dems sit in the same camp as the SNP on this issue. Both are wrecking balls in their approach. That is their call but I regret it and continue to try to engage with them. Many are my friends.

As to Labour, if any readers genuinely understand Corbyn’s position then good luck to them. However, there does remain a very large cohort of the labour party who wish to respect the result – several Labour MPs voted for Theresa May’s deal. I live in hope of compromise by Labour, who repeatedly before and after the referendum agreed to abide by the referendum result.

The purpose of further delay: Colleagues have returned to parliament, but the key issue is what do they want to do with the parliamentary time? Those who seek a further extension have to be honest as to what the extension is for – if it is not to enact the original decision of the referendum, or to frustrate the government, then at least say so. Clearly, despite opportunities to vote for No Confidence or an election, the labour party do not want an election having called for one every single day previously. That is their choice.

I do not believe it is right to delay further, and I would definitely prefer compromise to an election. The damage the delay is causing to democracy, public life and so much more is significant. Parliament must honour the 2016 referendum result, deliver a Brexit withdrawal deal and then, crucially, re-establish its reputation as the servant of the British people, not its master.

Northumberland County Council’s scheme to promote food and drink produced in our county- Produced in Northumberland- has reached a fantastic milestone after gaining its 100^thmember. Grannies Tearoom and Delicatessen in Alnwick has become the 100^thbusiness to sign up to the scheme, thanks to its brilliant range of locally produced products. The scheme was launched in 2015 to verify that food and drink products have been produced locally, and has proved to be a great boost to our local economy.

There is such a variety of food and drink produced in Northumberland and I am a great admirer of the Produced in Northumberland scheme which celebrates our local food and drink industry. As always I would encourage you to support your local businesses by shopping locally.

You can find out more about Produced in Northumberland by visiting its website: https://producedin.northumberland.gov.uk/Home.aspx