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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Statement to the European Research Group

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Edited by John Gynn, Wednesday, 9 May 2018, 12:55

Sometimes a question can prompt a response that has more impact than might have been anticipated.

In Prime Minister's Question Time today Opposition leader Jeremy Cobyn, having listed some pro-customs union contributions to the debate from business and unions concerning a revised Customs Union relationship, asked the Prime Minister about the stance of the European Research Group advocating significant rupture from the EU trading bloc:

"Isn't it time she stood up to the people, described last night by the Father of the House, as these 'wild right-wing people'."

This was a reference to an interview given by Ken Clarke to BBC Newsnight the previous evening.

There was a time that televising of the Commons' proceedings was severely constrained and wider selective television shots were prohibited.

Fortunately that is not the case now and the camera panned, with perfect timing, to see the Father of the House, Ken Clarke, say, with a rueful chuckle, to his neighbour:

"I'd forgotten I'd said that".

Ken Clarke chuckles as he is reminded of hat he said

BBC Newsnight 08/05/18. Available (for 28 days) at:


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Here ceased the swift their race, here sunk the strong?

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Edited by John Gynn, Thursday, 26 Apr 2018, 15:30

The Government’s ‘no deal’ Brexit approach may envisage the Customs Union depart from these shores as under the sails that saw Childe Harolde’s ship distance itself from the UK mainland powered by Lord Byron’s pen.

 And fleeting shores receded from his sight,

Thus to the elements he poured his last 'Good Night.'

Canto the First, XXXIV, Childe Harolde’s Pilgrimage (Byron, 1812)

But MP for Normanton, Pontefract and Castelford , Yvette Cooper’s intervention, at Prime Minister’s Question Time yesterday attached a few barnacles to the hull of the Government fleet which might yet be felt by Ministers keelhauled in light of the staggering lack of communication between the Great Offices of State.

Indeed the Windrush, bobbing amidst the Government’s fleet, seems to be as welcome to 10 Downing Street as was The Fighting Temeraire to the French fleet off Cadiz.

Now, Yvette Cooper’s debate on the Customs Union after Brexit is looking like it could tangle the rudder of the Prime Minister’s flagship as some in the House of Commons seem to be inclined to drop anchor.

Might Byron’s words capture the consequences of setting course through stormy waters with an unsettled crew?

Probably not when enough of the crew have a windward ear to the cries from their constituencies to keep any hint of mutiny at bay.


The Bright Stone of Honour,  JMW Turner (1835). Source Britannia Image Quest

Yet could I seat me by this ivied stone,

Till I had bodied forth the heated mind,

Forms from the floating wreck which Ruin leaves behind.

Canto the Fourth, CIV, Childe Harolde’s Pilgrimage (Byron, 1812)

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

More? Well why not...

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Bruce Adamson, Scotland’s Commissioner for Children and Young People since May 2017, issued a statement on 14 March 2018 welcoming the rise in the age of criminal responsibility from age 8 to 12 in the Scottish criminal justice system but pressed for more: 

“Along with raising the age of criminal responsibility higher than 12, more efforts need to be made to intervene early, helping families in crisis and supporting children at risk, to address the root causes of the behaviour. Research shows that many of these children have complex or traumatic childhood experiences, so we need community-based early intervention services that are well-resourced and quickly accessed, particularly mental health and intensive support services. I welcome the Scottish Government’s commitment to continuing to progress raising the age of criminal responsibility further".

Scotland’s age of criminal responsibility is rising to 12. Now, it needs to go higher than the “absolute minimum” acceptable, 14 March 2018. Available at: https://www.cypcs.org.uk/news/in-the-news/scotlands-age-of-criminal-responsibility-is-rising-to-12-now-it-needs-to-go-higher-than-the-absolute-minimum-acceptable

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

"[T]he price we pay for freedom' type thing".

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As Sergey Lavrov and Lord West’s recent contributions to the Syria debate - which debate later focussed in the House of Commons on a Motion by Labour MP for Wirral South Alison McGovern on the current situation in Syria and the Government’s response - have made clear, a more serious matter than that which is currently challenging the United Nations it is hard to imagine.

Watching the Prime Minister conclude the Syria debate, with a ruffled looking Foreign Secretary Boris Johnson sat behind the her on one side and a yawning (it was approaching Midnight and had been a long day) Defence Secretary Gavin Williamson behind her on the other side, a fanciful picture of the day’s Cabinet meeting based on the introduction to Alan Bennett’s History Boys (albeit the context there is a Bill on the criminal justice system) sprang unbidden to mind.

The History Boys: A Play

Act One
Irwin is in a wheelchair, in his forties, addressing three or four unidentified MPs.

IRWIN This is the tricky one.
The effect of the bill will be to abolish trial by jury in at least half the cases that currently come before the courts and will to a significant extent abolish the presumption of innocence.
Our strategy should therefore be to insist that the bill does not diminish the liberty of the subject but amplifies it; that the true liberty of the subject consists in the freedom to walk the streets unmolested etc., etc., secure in the knowledge that if a crime is committed it will be promptly and sufficiently punished and that far from circumscribing the liberty of the subject this will enlarge it.
I would try not to be shrill or earnest. An amused tolerance always comes over best, particularly on television. Paradox works well and mists up the windows, which is handy. 'The loss of liberty is the price we pay for freedom' type thing.


That note of cynicism was perhaps triggered by the publication of information by the Digital, Culture, Media and Sport Committee today giving insight into “the private thoughts of key people at Leave.EU and SCL” - as the Chair’s summary puts it:


This based on the work of Dr. Emma L. Briant, University of Essex, on SCL which she describes as “a conglomerate of companies including Cambridge Analytica who did work for the Trump campaign”.


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Holiday Blues

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Talking of traditions and April Fool's Day pranks:

Blue EU passport April fool's day prank from EU parliament in London

Courtesy of the UK office of the European Parliament in London twitter account.


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Did you know....?

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Section 4 of the Social Care (Self-directed Support) (Scotland) Act 2013 (the 2013 Act) came into force on April 1, 2014 placing a duty on local authorities to ensure clients are offered a range of choices on how they receive their social care services and support.

The Social Care (Self-directed Support) (Scotland) Act 2013

Section 4

Options for self-directed support

(1)The options for self-directed support are—

Option 1: The making of a direct payment by the local authority to the supported person for the provision of support.

Option 2: The selection of support by the supported person, the making of arrangements for the provision of it by the local authority on behalf of the supported person and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of that provision.

Option 3: The selection of support for the supported person by the local authority, the making of arrangements for the provision of it by the authority and, where it is provided by someone other than the authority, the payment by the authority of the relevant amount in respect of the cost of that provision.

Option 4: The selection by the supported person of Option 1, 2 or 3 for each type of support and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of the support.

Information on the Self-directed Support and its uptake in 2015-16 can be found at:


Permalink 2 comments (latest comment by John Gynn, Monday, 2 Apr 2018, 21:03)
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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Weather Beaten

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“Every one of the Brexit promises is – to quote Henry Fielding – ‘a very wholesome and comfortable doctrine to which (there is) but one objection: namely, that it is not true’”

In a speech only slightly less stormy and disruptive than today's weather (as the 'Beast from the East' sweeps across the UK bringing Scotland's first Met Office 'Red Alert') John Major - a significant actor in the discussions in the early 1990s leading up to the Good Friday peace agreement in Northern Ireland - has fired a broadside directly at Prime Minister Theresa May's Brexit policy:


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Noli Timere

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Edited by John Gynn, Thursday, 25 Jan 2018, 18:00

An extraordinarily powerful speech was given by Baroness Jowell in the House of Lords this afternoon.

It led to a rare, but wholly appropriate, standing ovation.

Baroness Jowell quoted Seamus Heaney's last words, "Noli Timere".

On the anniversary of the Scottish Bard's birthday the last words of his Irish peer rang out with universal reach:

"Do not be afraid".


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Camp David Chills?

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As plunging temperatures down to -29C chill the US in early January 2018 – with snow seen even in Florida – perhaps a more disconcerting chill might be discerned in President Trump’s comments (and facial expressions) whilst speaking at a press conference today at Camp David where the legislative agenda for 2018 will be under discussion.

President Trump asked Mitch McConnell, Republican Senate Majority leader to contribute from the podium.

Mitch McConnell advocated a right-of-centre position for the country - the UK's political right being broadly equivalent to the US left gives that some perspective - and noted his welcome to President Trump's "spectacular" nominee to the US Supreme Court (Neil Gorsuch) along with 12 Circuit judges in 2017, "the most in the first year of any President since the Circuit Court system was set up in 1891".

The US Vice-President, Mike Pence, also noted judicial appointments to uphold the rule of law and the Constitution as highlights of 2017.

Could this, arguably, be considered ‘stacking in the deck’ and anticipating judicial support for President Trump’s policy preferences?

Asked about his reaction to the unflattering image of his Administration following publication of Michael Wolff's book, 'Fire and Fury', President Trump dismissed Michael Wolff’s accounts.

President Trump said – almost in an aside - that the libel laws in the US are “very weak; if they were strong it would be very helpful. You wouldn’t have things like that happen where you can say whatever comes into your head.”

Comments made aside the main stream of discussion, can offer a useful peek behind the veil of political policy.

Emphasis is added, above, to the phrase, “it would be very helpful” because President Trump paused momentarily at that moment, noticeably breathing in, his eyes looking up to his top left - where he seemed to be envisaging a better world - as he expressed that phrase, before switching with an affirming micro-nod of his head and eyes set back to the journalist who asked the question.

From this little acorn of facial expression regarding US libel law may grow an oaken policy stance on free speech – certainly set against the kind of ‘Fake News’ that airs unfavourably against President Trump.

However, even if it proves “very helpful” to throw out the ‘Fake News’ bathwater with a legislative chill on free speech in the US, the democratic concern is for the baby in that bathwater.

Not everybody critical of US government policy is necessarily a pedlar of fake news. Just because what is said is antithetical to particular political interests does not render the view unworthy. 

This may, possibly, have dawned on President Trump today. 

Experts of facial expressions and micro-glances will also have noted the President’s eyebrows raising to reveal his genuine surprise as he mentioned that so many of the proponents of ‘Fake News’ had come to the defence of his “great Administration” in light of the publication of Michael Wolff’s book. (Whatever its actual veracity the US President is clear that, from his perspective of events, the book is inaccurate).

Interestingly in Bustos v A&E Television Networks (10th Cir. 2011) Justice Gorsuch (the US President’s US Supreme Court nominee remember) quoted Robert Burns sage words on libel scratched on the window of a Stirling Inn.

Justice Gorsuch actually attributes the quote to the English criminal courts. However, the words, “the more ‘tis a truth sir, the more ‘tis a libel”, if not Burns’ own were, if memory serves correctly, acknowledged by Burns as his own – though this may have been nobly – this was Robert Burns after all - to divert blame from the true author who would have been in hot water with Buckingham Palace.

Regardless it is a sentiment that Burns would readily subscribe to.

Burns' words were scathing at the paradox that criticism of King George would be considered a greater calumny the closer it got to revealing the true character of the King. Worrying, at least from the view of literary insight, it’s not entirely clear that Justice Gorsuch grasped the chilling message in Burns' words: Justice Gorsuch stating that the quote sounded remarkable "to contemporary ears".  It should, really, sound just as much good sense to contemporary ears as to those of the late1700s.

Interestingly Justice Gorsuch said, “defamation doesn’t vindicate factual mistakes of consequences only to such insular groups.” 

That has interesting resonance in a largely unregulated virtual world where (with alarming frequency) defamatory statements can be found in (sometimes insular) online groupings.

The group in question was an Ayran prison gang filmed by A&E in a documentary. The gang itself could, logically, it was proposed, have been offended about a claim of gang membership that might not have accorded with a factual distinction between fully-fledged gang membership on the one hand and on the other hand criminal accessories assisting the gang. But any sensitivity of reputation in that insular group did not engage the law of defamation said Justice Gorsuch. Instead what mattered was the perception of reputation in the eyes of ‘reasonable persons’ - or right-thinking members of society - who would (rightly said Justice Gorsuch) find even assisting such a prison gang abhorrent.

Justice Gorsuch also noted that the defence – to a defamation claim - of truth, “has, in comparatively recent years, taken on a constitutional patina, becoming not just a feature of the common law but a First Amendment imperative.”

So where does this position Justice Gorsuch if he might be considered a judicial bellwether relating to Trump policy on US libel law?

An article in the Washington Post online, (1st February 2017) by Aaron Blake, suggests that Justice Gorsuch is conservative in his approach – not a judicial activist. Not that this is any measure of the best judicial approach. Judicial conservatism can wreak as much havoc to the principle of justice as any maverick judge. Indeed probably more so.

Variety online flag Justice Gorsuch’s judicial integrity explicit in his comments to the Senate confirmation hearing in March 2017 that saw his US Supreme Court position established.

Gorsuch said, “When anyone criticizes the honesty or integrity or motives of a judge, I find that disheartening. I find that demoralizing.”

Sen. Richard Blumenthal (D-Conn.), who had been questioning Gorsuch, asked if that included the president.

“Anyone is anyone,” Gorsuch said.


In his 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, Justice Gorsuch gave those concerned that he might be susceptible to subjective political whim grounds to be reassured saying:

“[L]egislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But… judges should do none of these things in a democratic society… [J]udges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be— not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”


However it was Justice Scalia (who was partly being eulogized in Justice Gorsuch's lecture) who followed the United States Arbitration Act of 1925 to inhibit the availability of class actions in the US Supreme Court case of AT&T Mobility v Concepcion, 563 US 333 (2011) where a contractual ‘aside’ - tucked away among the small print of terms and conditions - aimed to prevent the class action law suits that corporate America found so unwelcome .

A US Supreme Court judge may follow the course of new legislative developments thus applying the law as it is in light of legislative change. Would a US Supreme Court judge accord with legislative change that chills press freedom?

Whether or not Justice Gorsuch quite grasped the literary and political context of Burns’ quote, as the judge joins the other chieftains of the US Supreme Court, the great Scotch bard (whose birthday this month falls just days after the first anniversary of the President’s having taken office) would likely have found anybody, such as Justice Gorsuch, offering such integrity in their words to be, “An honest sonsie” sort.

That should bring the good fortune of integrity to the law and reassurance to those concerned at any prospect of President Trump’s policy seeking to chilling speech critical of the most powerful administration in the word in 2018.

But that luck may depend on what, if any, legislative changes can be effected in the field of press freedom and just what the US justices feel might, “serve society best”.

Moreover, the, “constitutional patina”, of the defence of truth in defamation causes and its becoming a, “First Amendment imperative”, bring the matter directly into the purview of the US Supreme Court.

As Dredd Scott v Sandford, 60 US 393 illustrates, the US Supreme Court is not immune to significant ‘self-inflicted wounds’ (Doris Kearns Goodwin, Lincoln, 2009).


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

That tricky first recital - a bit like a New Year's resolution?

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Happy New Year - in 24 EU languages (including English) - courtesy of the EU interpreting service:


On this day 60 years ago the European Economic Treaty entered into force:

The Preamble to the EEC Treaty:

"DETERMINED to establish the foundations of an ever closer union among the European


DECIDED to ensure the economic and social progress of their countries by common

action in eliminating the barriers which divide Europe,

DIRECTING their efforts to the essential purpose of constantly improving the living and

working conditions of their peoples,

RECOGNISING that the removal of existing obstacles calls for concerted action in order

to guarantee a steady expansion, a balanced trade and fair competition,

ANXIOUS to strengthen the unity of their economies and to ensure their harmonious

development by reducing the differences existing between the various regions and by

mitigating the backwardness of the less favoured,

DESIROUS of contributing by means of a common commercial policy to the progressive

abolition of restrictions on international trade,

INTENDING to confirm the solidarity which binds Europe and overseas countries, and

desiring to ensure the development of their prosperity, in accordance with the principles

of the Charter of the United Nations,

RESOLVED to strengthen the safeguards of peace and liberty by establishing this

combination of resources, and calling upon the other peoples of Europe who share their

ideal to join in their efforts..."

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Lost in Translation?

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A curious turn of events today with the Prime Minister seeming, at one stage, to have secured a preliminary stage in Brexit negotiations with a draft agreement at lunchtime seemingly agreed with the EU negotiating team. 

The  agreement was regarding the crucial border arrangement in Ireland based on a distinctive regulatory approach tailored to achieve further negotiations.

Arrangements seemed, assumedly, to have been predicated upon the support of the Democratic Unionist Party (DUP).

But when the DUP's  Arlene Foster intervened with what Sky News described as a 'crisis call' to the Prime Minister in Brussels it emerged that any consensual agreement thought to have been settled had been premature.


Something seems to have been lost in translation.

Possibly the position between the UK Government and the DUP on the issue had been communicated on crossed wires. 

There did appear to have been scope for a deal earlier in the day.

Surely the Prime Minister did not undertake to reach an apparent agreement with Mr Barnier without some belief that the DUP supported the position.

Something appears to have changed.

It is possible that the parties had been reading from different scripts. 

That appears to have been the cause of the events in M v Home Office [1994] 1 AC 377 where a man seeking asylum in the UK having arrived from Zimbabwe with signs medically assessed as consistent with maltreatment was to have his return to Zimbabwe - after his case was assessed by the Home office - put on hold after an Eleventh Hour judicial intervention.

In the event Home Secretary Kenneth Baker appeared in court to clarify his position which had strayed towards contempt when the individual seeking asylum was returned to Zimbabwe via Paris in conflict with the judge's order that he was to be returned to the UK.

No opportunity was taken to return the man while his plane was in Paris and on landing in Zimbabwe he was not met by British Embassy officials as had been expected. 

He was not subsequently heard of again.

Mr. Baker certainly appeared to have been unaware of the judge's order and the view was taken that in a purported undertaking to the judge by a representative from the Home Office something had been lost in translation.

The problem lies in the significance of the consequences.

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Flirting with Contempt

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Edited by John Gynn, Wednesday, 29 Nov 2017, 22:46

Questioned during his libel trial, on 3rd April 1895, Oscar Wilde's fortunes dipped as his rapier wit foundered in that solemn forum with rather inappropriately flippant responses to questions which included his comment about Walter Grainger and an answer to a question asking why he gave a blackmailer 10 shillings.

"Q: May I ask why you gave this man, who you knew was a notorious blackmailer, ten shillings?
A: I gave it out of contempt.
Q: Then the way you show your contempt is by paying ten shillings?
A: Yes, very often."

Today, in an extraordinary day in the House of Commons, Mr. Speaker reflected concern that relations between the Legislature and the Executive may have strayed close to an equivalent flippancy on the part of the Executive. 

This concerns the provision to the Select Committee on Exiting the European Union of the full Brexit Impact Assessments - requested by the House on 1st November 2017 - which had been offered only in edited form. This after a three-hour debate  in a Motion ruled by Mr. Speaker to be binding on the Government. 

An additional disappointment was the Secretary of State for Exiting the European Union not appearing in person, as might have been anticipated, to answer an Urgent Question on his brief laid down by the Opposition.

The Secretary of State was, no doubt, occupied with pressing affairs of State* and so his absence from the House today to address the Opposition’s Urgent Question can easily be accepted. 

(*Indeed it that appears that Mr. Davis was in the thick of it at the time - negotiating the UK's 'divorce bill' with his EU counterparts).

However any trace of flippancy in recognizing the building concern within the House may begin to make the documents sought by parliament take on the colour of Wilde’s ten shillings.

The House has concerns that the Government, by submitting information subject to editing, has not adequately met the expectations of the House manifest in the Motion of 1st November and that the Government may, consequently, be in contempt as detailed on p. 273 of Erskine May (as the SNP’s spokesman, Peter Wishart, MP for Perth and N Perthshire, pointed out).

Mr. Speaker has informed the House that Members wishing to allege a Contempt or Breach of Privilege should, in the first instance, raise it by writing to him as soon as practicable. He then decides whether or not the matter should have precedence. 

Mr Bercow, growing in constitutional stature in shepherding this matter will, no doubt, position such a request prominently in light of the Select Committee securing an urgent audience with the Secretary of State. 

Indeed Mr. Speaker explicitly stated, subsequently, that nothing was as important as respecting the will of the House.

Brexit Minister Robin Walker, responding for the Government, reassured the House that the analysis requested by the House included some confidential and commercially-sensitive information that had to remain private. John Whittingdale (Con) Maldon was worried that leaks could result from the documents passed to the two Select Committees or the devolved administrations who also have copies.  

Joanna Cherry (SNP) MP for Edinburgh South West queried the existence of any information relevant to the Scottish economy within the documents the Government had provided. Wera Hobhouse (LD) MP for Bath, a member of the Select Committee, felt that the implication of the Select Committee not being afforded unedited disclosure was that its members could not be trusted to act in the national interest. Mr. Walker believed that was not the case.

That may, however, have effectively been expressing reassurance about information that had already been safeguarded/withheld through the editing process in any event.

Iain Duncan-Smith (Con) MP for Chingford and Woodford Green, a keen supporter of the UK’s exit from the European Union added to the Minister’s script in noting that the UK’s negotiating position might be undermined if all confidential information within the documents is made available – asking what specific information had not been included that was wished for. 

That does seem to be a little difficult to answer as it would seem to require knowledge of the unknown.

Peter Bone (Con) MP for Wellingborough, a pro-Exit MP whose contributions have very largely been remarkable for their measured, constructive and conciliatory tones, offered a helpful suggestion that the two rather irreconcilable Motions - relating to, first, the release of all the information and second, a non-binding Motion seeking to prevent the Government’s negotiating position being harmed by full disclosure – might be reconciled with a fresh Government Motion.

Indeed Jacob Rees-Mogg (Con) N E Somerset, spoke earnestly in support of Parliamentary sovereignty noting that only the Motion requiring disclosure was binding.

Toad asks for a lawyer

"...then I would beg you - for the last time, probably - to step round to the village as quickly as possible - even now it may be too late - and fetch the doctor ...would you mind at the same time asking the lawyer to step up? ...A lawyer! O, he must be really bad! the affrighted Rat said to himself" (The Wind in the Willows, Chapter Six, Mr Toad)

Marcus Fysh (Con) MP for Yeovil quoted p. 201 of Erskine May on Ministerial Accountability to draw Mr. Speaker’s attention about disclosing information and the public interest. Mr. Speaker reassured Mr. Fysh that he was aware of process in this field.

There therefore emerged themes expressing concern over the consequences of full disclosure and favouring a new Government Motion from Brexiteers; which is interesting in itself.

Mr Toad at the window

"Now you look out Rat! When Toad's quiet and submissive, and playing at being the hero of a Sunday-school prize, then he's at his artfullest. There's sure to be something up." (Badger's advice to Ratty, Chapter Six, Mr Toad).

Expect a revised Government Motion - no doubt only coincidentally addressing  the concerns of ardent Brexiteers - on what can and cannot be disclosed - shortly therefore. 

Interestingly, Mr Duncan Smith asked Mr. Speaker if a fresh Government Motion might negate any question of Contempt attaching to the present Motion requiring full disclosure of Brexit assessment information.

The picture is something like the efforts of Badger, Mole and Ratty (here representing the legislature) to persuade the errant Mr. Toad (here the executive, spurred by some enthusiastic quarters of the Government benches keen to ensure that the Article 50 process is not derailed) to moderate Mr. Toad's recalcitrant stance.

Of course Mr Toad was able to escape from constraint with a clever ruse, some knotted bed sheets and a convenient open window.

This all seems to reflect an emerging Cold War within the House of Commons where the first skirmish – any scope for an allegation of Contempt coming to fruition - is likely to be diffused by the Secretary of State demonstrating some contrition and humility before the Select Committee and allowing access to the information requested on the 1st November with some new consensual conditions. 

The likely condition for full disclosure was identified by Barry Sheerman (Lab Coop) Huddersfield who suggested following established practice affording the Committee Chair, Hilary Benn, full disclosure; with discretion to filter the information as the Chair sees fit.

Those favouring EU exit appear to be rather conspicuous in their apparent calm and seemingly orchestrated contributions. That might possibly suggest that there is something damaging to the cause of those who favour a 'hard Brexit' in the redacted material. 

But this parliamentary Cold War will be subtle and sophisticated – fought with the ink of revised Motions and countered by the pressure of threatened Contempt.

Kenneth Clarke (Con) MP for Rushcliffe warned that the Government “could not [by qualifying or editing the documents without amendment on 1st November], post-Brexit , start reducing parliamentary sovereignty”. 

Indeed as the debate closed with Points of Order, Ken Clarke suggested that the Government’s novel abeyance of voting on Opposition Motions was turning the House into a debating chamber without parliamentary accountability. 

The Government should be accountable to all its responsibilities to the House said Mr. Clarke. Mr Speaker agreed that the Government’s approach had not been helpful.

Two amendments seem to have been required; by Oscar Wilde and the present Government.

Oscar Wilde’s eloquent address was not sufficiently humble and lacked the common touch.

The Humble Address lacked sufficient eloquence and the Government's touch is driving the Commons wild.

Permalink 1 comment (latest comment by John Gynn, Wednesday, 6 Dec 2017, 18:55)
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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Mabel who?

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Sometimes the personalities in a courtroom can cause particular interest.

Laurence Olivier's authorised biography, Olivier, by Terry Coleman, tells of the moment an individual who seemed to be one of the solicitors innocuously sitting at the side of the court - in a case where the Director of Public Prosecutions had taken an interest in an English Stage Company production at the Royal Court Theatre - rose to give evidence in the witness box. 

This wasn't a solicitor. Coleman tells of his astonishment that it was Laurence Olivier demonstrating his 'astounding ability to make himself invisible'.

Olivier and Yorick "I knew him Horatio"

"I knew him Horatio". Yet nobody recognized Olivier.

This may, possibly, have been during proceedings resulting from the Lord Chamberlain's antipathy towards John Osborne's 1965 play A Patriot for Me.

Before being stripped of the power of theatre censorship on September 26th 1968, the Lord Chamberlain's office had suffocated work by Ibsen and Arthur Miller amongst others. Even Becket had to wait a little longer for Godot while the Lord Chamberlain engaged in moral deliberation.

However it is another, largely invisible, personality who turned out to be the most famous litigant of all time on the law's stage.

She preferred to be known as Mabel Hannah.

Her remarkable role in one of the world's most influential cases is considered with fresh eyes in the Vancouver Bar Association's journal, The Advocate and the insight is flagged anew by the excellent website of the Scottish Council of Law Reporting. 

What is particularly interesting for anyone with an interest in Donoghue v Stevenson (because Mabel Hannah was the preferred name of May Donoghue) is that the SCLR provide a photograph of Mabel - the most famous litigant of all time:


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"Call me Ishmael" (Moby Dick 1851)

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Edited by John Gynn, Tuesday, 14 Nov 2017, 11:11

Moby Dick breaches in the moonlight close to the Pequod

Moby Dick breaches in the moonlight in sight of Captain Ahab's Pequod (Britannia Images)

On the anniversary of the publication of Herman Melville's Moby Dick in 1851, the House of Commons begins Committee Stage of the European Union (Withdrawal) Bill. 

As the Explanatory Notes to the bill tell us:

"The Bill ends the supremacy of European Union (EU) law in UK law and converts EU law as it stands at the moment of exit into domestic law".

In the background some earlier inter-state arrangements are being reviewed.

Currently submerged legal instruments are being revealed as the EU tide ebbs.

One such instrument is the London Fisheries Convention signed on behalf of the Government of the United Kingdom and Northern Ireland in 1964 by Rab Butler, Conservative Minister and MP for Saffron Walden.

The London Fisheries Convention regulated the use of territorial waters for fishing.

"The London Fisheries Convention, signed in 1964 before the UK joined the European Union, allows vessels from five European countries to fish within six and 12 nautical miles of the UK's coastline. It sits alongside the EU Common Fisheries Policy (CFP), which allows all European vessels access between 12 and 200 nautical miles of the UK and sets quotas for how much fish each nation can catch."


The UK Government have triggered another two year withdrawal process - this time article 15 of the London Fisheries Convention and this time the notification is to the UK Government (so Mr. Gove's denunciation will presumably have been to the Secretary of State for Environment, Food and Rural Affairs... Mr. Gove).

The UK's membership of the EEC, from 1st January 1973, did not initially bring a Halcyon calm to disputed fishing rights between states.

The Cod Wars which boiled between Iceland and the UK like a political Corry Vreckan and peaked in the mid-1970s evidence that:


Iceland (not an EU member) now has an exclusive economic zone (EEZ) of 200 miles and this is accepted internationally other than in the EU where the Common Fisheries Policy takes precedence.

So the UK's withdrawal from the EU opens further dynamics of acceptance and recognition.

Indeed the issue may even bear on public opinion in Iceland regarding EU accession sentiment which, currently, opposes membership.

The doldrums

Whether a result of the adverse impact on UK fishing arising from membership of the EU or otherwise, some emollient, seemingly spread over recent decades by an invisible hand, has calmed the troubled waters which had previously kept the Cod Wars simmering for so long.

The perfect storm

However that period of stability should not be taken for granted. The UK Government's clearing the flotsam and jetsam of earlier regulation such as the London Fisheries Convention, Brexit and economic impact may create a political storm to match Poseidon's fury.

Fishing, politics, resources and law seem inevitably to be gathered in a disputatious relationship.

"But why should the king have the head, and the Queen the tail? A reason for that, ye lawyers?"

(Herman Melville, Moby Dick 1851, Chapter 90)

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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Brexit: Plan B

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Bee on flower

Good news for bees (picture from Britannia Image Quest). Good news for everybody.

"The weight of evidence now shows the risks neonicotinoids pose to our environment, particularly to the bees and other pollinators which play such a key part in our £100bn food industry, is greater than previously understood," said Mr Gove.

"I believe this justifies further restrictions on their use. We cannot afford to put our pollinator populations at risk."


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

A bridge too far

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Old photo of bridge players at a table


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

An apple tree in an olive plantation?

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Edited by John Gynn, Thursday, 26 Oct 2017, 22:26

This extract, from an interesting article in the International Business Law Journal 2017, notes the existence of two distinct legal systems operating in rare proximity.

"[T]he most notable aspect for the legal practitioner is the creation of an autonomous court system at the heart of the financial centre. Based on English common law, the DIFC [Dubai International Financial Centre] Courts contrast with the civil law regime applicable throughout the rest of Dubai's territory.

In 2004 the Emirate of Dubai initiated a then-unique process: it established on its territory a common law jurisdiction meant to rule upon all civil and commercial disputes relating to the newly created financial free zone.

At its early stage, this very singular configuration was compared to a "Common Law island in a Civil Law ocean".

I.B.L.J. 2017, 4, 289-304

A small Dubai island nestles in the ocean

The image above illustrates the illuminating description made in the I.B.L.J. article of a "Common law island in a Civil law ocean". The DIFC is situated in Dubai in a special economic zone covering 100 hectares.

The recognition of particular benefits of the Common law in the context of commerce reflect Lord Neuberger's thoughts in a lecture given to the Faculty of Law, National University of Singapore Lord Neuberger 18 August 2016:


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

Help me Rhondda?

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Chris Bryant, Labour MP for the picturesque Welsh constituency Rhondda, appeared on BBC's Daily Politics today discussing the Bill he introduced (on 17th July 2017) as a Private Member.  

MP Chris Bryant in his picturesque Westminster constituency of Rhondda


His Bill is aimed at protecting emergency workers from assault in the course of their work.


The Bill starts its Second Reading tomorrow.

The MP said he needs to tweak the definition of emergency worker which he drew too narrowly.

He wants to amend that definition, at Committee Stage, to encompass GPs and nurses.

With EU withdrawal leaving both a gap in Westminster's legislative calendar and creating a stretched out two-year parliamentary session - which has elongated the usual Private Members' Bill process - there may be scope for Chris Bryant's Bill to make some progress before Christmas if it can be slotted into the parliamentary timetable for debate.

The point was made that the Private Members' Bill process very rarely sees a Bill make it to the Statute Book when it comes from an opposition MP.

However it appears that the Westminster MP for Rhondda's Bill has Government support and so, unusually, a Private Members' Bill from the opposition benches could well make it through the parliamentary process.

Chris Bryant (a font of interesting parliamentary facts) said that a successful Private Members' Bill will usually come from a Government backbencher. Indeed the Government can handover a Bill to a Government backbencher and these are known as 'handover bills'.

There could still be some scheduling impact resulting from the elongated session impacting on Private Members' Bills (the two year current session giving rise to some unusual scheduling consequences.


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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

World Mental Health day

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Edited by John Gynn, Tuesday, 10 Oct 2017, 23:19

October 10th is World Mental Health day:

World Mental Health day image of protective umbrellas


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“…more than merely the providers of a service” [2017] UKSC 51

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In July 2013, the, then, Lord Chancellor (Chris Grayling), implemented the Coalition Government’s policy which sought, first amongst other policy reasons, to limit vexatious claims, made by disgruntled employees, in employment tribunals.

It appeared, from one perspective at least, that employment rights should be diluted to a degree in the interests of smoother employment tribunal administration.

Viewed over recent decades, the changing regulation of disputes through the employment tribunal system (and earlier industrial tribunals) can be considered like the strata in a geological bore hole revealing, to some extent, the dominant political and economic forces present over time.

This might not always coincide exactly with an election that brings a change of political party in 10 Downing Street as the issue seems to arise most often amidst legislative spring-cleaning. Mr Blair’s government, elected in 1998, for example, waiting until 2004 to rearrange the regulatory furniture in this area – albeit still within the boundaries of the Employment Rights Act 1996.  

Moreover changes may also be tied to a particular ideological flavour within party politics. Steering a centrist course, New Labour’s regulatory ‘feng shui’ itself envisaged the introduction of fees in an effort to control the burgeoning numbers of claims before employment tribunals. At around £100 the New Labour fees were significantly less than those just contemplated in the UK Supreme Court at the behest of trade union Unison.


Employment relationships are, perhaps, not quite sufficiently urgent a matter to effect change immediately yet are always consciously weighing on the tidy ideology of the incumbent political mind.

Looking back at the legislative movements in this clearly politicised socio-economic field can certainly help to identify which of the two main party political powers have been dominant at any given time in Westminster. (The matter is a reserved one).

A period where employment tribunal regulation tilts in favour of employers tends to arise at the hands of a Conservative administration. A swing more in favour of the employee usually reflects a Labour government at the tiller.

In March 2015 The Guardian published a letter signed by a significant number of lawyers regarding Chris Grayling’s decision:

“The ... fees are a significant barrier to access to justice and are preventing employees from being able to complain about contraventions of their employment rights.

We do not think that the current level of fees can be justified by the suggestion – repeatedly made by the media, politicians and others – that prior to July 2013 a significant percentage of employment tribunal claims were vexatious.

The introduction of fees has had no discernible impact on the outcome of cases. This must mean that meritorious claims are not being pursued because of the fees regime.

The letter urges the government to carry out a review of the fee levels, and urgently. It is signed by 40 QCs and 400 barristers specialising in employment law. Among prominent lawyers supporting the letter are Gavin Millar QC, Helen Mountfield QC and Dinah Rose QC.”


The role of the UK Supreme Court in this context, i.e. with regard to the balance of favour as between employer and employee affected by the regulation of the employment tribunal - the dispute forum that operates to resolve workplace concerns, is to ensure that there is no excessive imbalance effected within the regulation of employment tribunals sufficient to impact upon wider constitutional matters.

In doing so the Court has in mind the inherent inequality in bargaining position as between the parties.

“Relationships between employers and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, discrimination, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships so as to confer statutory rights on employees, rather than leaving their rights to be determined by freedom of contract” (Lord Reed, at para. 6).

Today the UK Supreme Court has held that the Government’s Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/189 i.e. the introduction of fees, for those seeking to challenge employment issues, represented, just as the lawyers’ letter to The Guardian stated, a barrier to justice. That barrier arising not just within the context of EU law but also under the common law.

The UK Supreme Court has detected an excessive swing to starboard likely to cause bow waves unsettling the wider channel of justice.

And possibly unsettling the wider channel of commerce? Some inevitable, jet largely ignored, consequences of commercial motivation were not explicit with the judgment yet are certainly a possible corollary. The BBC considers that aspect in an interesting programme ‘Decoding the News: Shareholder Value’ (First aired Tuesday 25th July, 2017):


The summary of today’s judgment (the numbers in square brackets indicate the paragraphs of the authoritative judgment) notes:

 “The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed. 

The constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them [65-85]. As a matter of domestic law, the Fees Order is unlawful if there is a real risk that persons will effectively be prevented from having access to justice, or if the degree of intrusion into access to justice is greater than is justified by the purposes of the Fees Order [86-89].”


Unison’s challenge to the legitimacy of the Fees Order of 2013 was rendered more easily surmountable because the change was effected using subordinate legislation.

The apparent lack of any reasoned assessment, within the Government’s calculations, as to the amount of fees proportionate in light of the mischief of vexatious employment tribunal claims seems to have left the Justices distinctly unimpressed:

‘Counsel for the Lord Chancellor were unable to explain how any of the fees had been arrived at.’

Lord Reed, at para. 18, R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51


Might New Labour’s proposed fee amount of closer to £100 have avoided the judicial assessment in this instance that the level of fees (reaching towards thousands of pounds) was a barrier to justice by being more proportionate?

Whilst the Court viewed that the employment tribunal was, ‘more than merely the providers of a service’, it cannot be ignored that the system is, nonetheless, still a service in some essential aspects of its role.

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