“It is my fifth topic, whatever it is called”: not so much religion this week but quite a lot of law…
On Wednesday, the Commons voted by 461 to 89 in favour of a motion, including a Government amendment [in red], as follows:
“That this House recognises that leaving the EU is the defining issue facing the UK; notes the resolution on parliamentary scrutiny of the UK leaving the EU agreed by the House on 12 October 2016; recognises that it is Parliament’s responsibility to properly scrutinise the Government while respecting the decision of the British people to leave the European Union; confirms that there should be no disclosure of material that could be reasonably judged to damage the UK in any negotiations to depart from the European Union after Article 50 has been triggered; and calls on the Prime Minister to commit to publishing the Government’s plan for leaving the EU before Article 50 is invoked, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.“
The Guardian’s Supreme court justices tamed in face of a Pannick attack provides some light relief for legal/policy wonks from this week’s proceedings in Courtroom 1; “Gina Miller’s barrister gives Treasury Devil and other QCs a lesson in taking the floor and keeping it at an article 50 hearing”. For “balance”, readers might wish to see Stuck in a swanky temple to inertia and self-regard in the Daily Mail by Quentin Letts. Or not.
The Supreme Court itself tweeted as follows (now there’s a thing: had Twitter existed then, could you imagine the Appellate Committee of the House of Lords ever tweeting?):
We expect judgment in the Article 50 #Brexit appeal to be delivered by the end of January. Here's some more info on the process… pic.twitter.com/yA5qsgfBu1
— UK Supreme Court (@UKSupremeCourt) December 8, 2016
Brexit and the “British Bill of Rights”
On Thursday, in reply to a supplementary question from Peter Bone (Wellingborough, Con), the Attorney General said this:
“We remain of the view that human rights law requires reform. I think that my hon. Friend and I are in full agreement that, although we have no quarrel with the content of the European Convention on Human Rights, it is the way in which that document is applied that gives us difficulty. The Government are certainly committed to seeking to do something about that. He will have noticed that we have a few other things on our plate at the moment; I think we will have to resolve those before we can resolve the matter to which he refers.”
Which leads Adam Wagner to speculate on RightsInfo that plans for major reform of human rights law may be delayed until the Brexit process has run its course.
Prisoners and family funerals
In 2011, Florian Kanalas was sentenced to 12½ years imprisonment for attempted murder, later reduced to 10. He was held in Oradea and Rahova prisons and he complained about the conditions of his detention. The interest for readers of this blog, however, is that in 2014 he was refused leave to attend his mother’s funeral.
in Kanalas v Romania  ECHR 1078 [French only] the Fourth Section ECtHR upheld his complaint under Article 3 about prison conditions. As to the refusal of permission to attend his mother’s funeral, it had been in accordance with the law and pursued the legitimate aim of preventing him from using the leave to commit offences or cause a breach of the peace. However, he had been rewarded on numerous occasions for his good conduct in prison and the head of the prison in which he was held had been in favour of granting his request. Nor had the prison administration explored the possibility of escorting him to the funeral.
The national authorities had not balanced the various interests at stake: Mr Kanalas’ right to respect for his family life on the one hand and public safety, and the prevention of disorder or crime on the other. The right to prison leave was not guaranteed as such by the Convention and it was for the national authorities to examine the merits of each request; however, in the present case the national authorities had not demonstrated that the refusal was “necessary in a democratic society”. There had therefore been a violation of Article 8 ECHR (respect for private and family life).
Pemberton v Inwood
Canon Jeremy Pemberton (who, as you all know, married his long-time partner Laurence Cunnington) lost his appeal against the finding that the Actiing Bishop of Southwell & Nottingham had not discriminated against him directly on grounds of sexual orientation and/or marital status in refusing him Permission to Officiate and an Extra Parochial Ministry Licence, and that he had not been unlawfully harassed. The Church of England lost its cross-appeal against the finding that the Bishop was a “qualifications body” for the purposes of sections 53 and 54 of the Equality Act 2010. We noted it here.
Safeguarding in Scotland
On Monday, the Catholic Bishops’ Conference of Scotland announced that Baroness (Helen) Liddell, a former Secretary of State for Scotland, will chair its Independent Review Group on safeguarding. The Group, whose establishment is part of the Implementation Plan of the Recommendations of The McLellan Commission, will function separately from the Church, reviewing new safeguarding standards and carrying out independent audits.
Armenian church property
Since 1441, the Armenian Apostolic Church has had two historic Catholicosates: the Catholicosate of All Armenians, otherwise known as Holy See of Etchmiadzin, in Armenia itself and the Catholicosate of the Great House of Cilicia, since 1930 based in Antelias, Lebanon. However, the seat of the Catholicosate of Cilicia was originally at Sis, south-west of the modern Turkish town of Kozan in Adana Province; and in 2011 and 2013 Catholicos Aram I wrote to the Turkish Government asking for the return the estates of the Sis Catholicosate – but did not get a response. The Armenian Church then applied to the Constitutional Court of Turkey for restitution; however, the court decided not to proceed with the case and banned the Church from having access to property records.
The property itself is “just a pile of rubble”; but on Wednesday it was announced that the Church has decided to take the case to the ECtHR, arguing that the refusal to restore ownership of the site contravenes Article 1 of Protocol 1 ECHR (property) and Article 9 (thought, conscience and religion). Presumably there will be a hearing at some point in 2017.
[Thanks to Donlu Thayer and ICLRS Headlines]
- Dame Louise Casey, for the DCLG: The Casey Review: a review into opportunity and integration: found “high levels of social and economic isolation in some places and cultural and religious practices in communities that are not only holding some of our citizens back but run contrary to British values and sometimes our laws. Time and time again I found it was women and children who were the targets of these regressive practices. And too often, leaders and institutions were not doing enough to stand up against them and protect those who were vulnerable.”
- The Guardian: Britain struggles with the uneasy legacy of the much more religious country it once was: unsigned editorial which concludes: “the values of a society are developed and maintained by its institutions. These need not be branches of the state. In fact it’s essential that many of them aren’t. Trade unions, food banks, football leagues, even reading groups all qualify, but many will always be religious. It would be stupid and self-destructive to make such groups feel useless and unwanted.”
- Simon Jenkins, Reform: Jumble Sales of the Apocalypse: the Christingle: “What on earth have jelly babies stuck in oranges got to do with Jesus?”: answer, “Not a lot”.
- Angela Patrick, RightsInfo: Mapping the Great Repeal: European Union Law and the Protection of Human Rights: “The removal of the additional protection for fundamental rights offered by EU law and the European Communities Act 1972 creates a greater incentive for the protection of the minimum standards and guarantees offered by the HRA 1998 and the UK’s commitment to its wider international human rights obligations.”
- Sarah Wilkins-Laflamme, Religion and the Public Sphere: The new religious context: a greater divide between the religious and non-religious in attitudes towards public religion: “controversies surrounding religion and the importance of level of religiosity in predicting attitudes and behaviour may become greater in areas of advanced secularization, not weaker.”
And finally … seen on Twitter
He’s makin’ a list,
Checkin’ it twice,
Gonna find out who’s naughty or nice.
Santa Claus is … in contravention of the Data Protection Act 1998.
…and heard in the Supreme Court
Lord Pannick: Can I come to the fifth topic which is De Keyser [De K-eye-ser] and the other case law?
Lady Hale: Have I been mispronouncing that case all my adult life?
Lord Pannick: Would your Ladyship like to tell me the correct –
Lady Hale: De Keyser [De K-ee-zer]
Lord Pannick: I will call it De Keyser.
Lady Hale: I may be wrong. I am often wrong.
Lord Pannick: You say De Keyser, I say De Keyser.
Lord Clarke: Down here we think it is De Keyser.
The President: We can each stick to our own because the transcript will not give away what we have called it.
Lord Pannick: It is my fifth topic, whatever it is called.
The case in question is Attorney General v De Keyser’s Royal Hotel  AC 508  UKHL 1. Sir Polydore de Keyser, who established what became De Keyser’s Royal Hotel, was originally from Flanders. The Dutch pronunciation is something near to “De K-ay-ser“.
The UKSC transcript of the proceedings is here [see page 16] and I News carries a recoding of the exchange.
Today’s Sunday Times reports [£] that a fresh legal action is likely over the detail of Brexit. The two petitioners are Peter Wilding, chairman of pressure group British Influence, who voted to remain, and Adrian Yalland, a Conservative lobbyist, who voted to leave. They are to seek a further judicial review in an attempt to give MPs a veto over the terms on which Britain leaves the EU. They argue that the Government has no mandate to withdraw from the single market because it was not on the referendum ballot paper on 23 June and was not part of the Conservative Party manifesto for last year’s General Election.
The new argument hinges on whether, in addition to triggering Article 50 TEU, the Government must also trigger Article 127 of the Agreement on the European Economic Area in order to quit the Single Market. According to the Sunday Times, lawyers acting for Wilding and Yalland are to send a letter before action to Downing Street tomorrow.
In your note of the EAT judgment in Pemberton v Inwood, you say that “The parties were given permission to appeal should they wish to do so.” It is correct that in the concluding paragraph of her judgment (para 126), Judge Eady QC said: “Given the importance of the legal questions involved and the novel issues arising, in particular, in respect of schedule 9, I would consider this matter suitable for permission to be given to appeal to the Court of Appeal, should such an application be made.”
However, this is only an expression of Judge Eady’s view as to whether the case is one suitable for consideration by the Court of Appeal. Since an appeal to the CA would be a second appeal, only the Court of Appeal can grant permission to appeal to the CA; Judge Eady cannot herself grant that permission and has not done so.
Thank you: I clearly got that wrong. I’ll correct it.
Really the proposed EEA case the press keep referring to Article 127 of the EEA agreement but ignore Article 126 which says that the agreement is between the EU and Norway Liechtenstein and Iceland On that basis once we withdraw from the EU we cease to be covered by the EEA unless the named parties separately agree to us being covered by it. I must say these continuous legal challenges in my view bring the law and the idea of the Rule of Law into disrepute
Re the Supreme Court ‘Brexit’ appeal and the exchange between Lord Pannick and the Court, you’ve unfortunately omitted Pannick’s response to Lady Hale saying that she is often wrong: “You say De Keyser, I say De Keyser”. This was the line that made the exchange humorous and which led to its re-enactment on “Have I Got News For You?” last Friday (with Jacob Rees-Mogg resolutely refusing to don the proffered wig!)
According to the transcript (which, as Lord Neuberger pointed out, does not reveal anyone’s pronunciation), the full exchange was:
LORD PANNICK: Can I come on to the fifth topic which is De Keyser and the other case law.
LADY HALE: Have I been mispronouncing that case all my adult life?
LORD PANNICK: Would your Ladyship like to tell me the correct –
LADY HALE: De Keyser.
LORD PANNICK: I will call it De Keyser.
LADY HALE: I may be wrong, I am often wrong.
LORD PANNICK: You say De Keyser, I say De Keyser.
LORD CLARKE: Down here we think it is De Keyser.
THE PRESIDENT: We can each stick to our own because the transcript will not give away what we have called it.
LORD PANNICK: It is my fifty topic, whatever it is called…
Thank you for pointing out that we had omitted lines 20 and 24/5 from page 16 of the transcript. We included this item since this accorded with the I News assessment “Supreme Court Article 50 case: The most wonderfully British moments”, which explained to its readers “what’s happening is just some plain hilarious wordplay”. We also felt that it was pertinent to point out that, in our view, the correct pronunciation was “something near to ‘De K-ay-ser‘”. As first published, therefore, the item nevertheless held together as an example of “plain hilarious wordplay” despite the missing line 20, but chacun à son goût.
The text of our piece now contains the full exchange from line 11 to lines 24/5 (in which Lord Pannick refers to his “fifth topic” not his “fifty topic”).
Thank you, David, including for providing the link to the amusing ‘wonderfully British moments’ in I news. (The ‘fifty’ instead of ‘fifth’ was my typo – only spotted after I’d pressed ‘Post Comment’ when it was too late to correct it.) David L.
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