Public Law

PUBLIC LAW

Brick Court had always done public law cases. Bob Alexander had argued Spycatcher155 and Datafin156 because the best advocates at the bar are invariably asked to argue the most important and most challenging cases. Much of the Euro work had involved judicial review.

In the 1990s there had been an explosion in EU and competition work. By the late 1990s the Blair government had made clear that it intended to legislate in the human rights area, and enacted the Human Rights Act 1998. This led to an increased importance for public and administrative law. Partly because of its moral and political importance, and partly because the courts were suddenly active in creating the boundaries, many of the best graduates became anxious to specialise in this burgeoning area of law.

There was a significant overlap with the work done by the Euros, as many of their cases involved judicial review. Euro practitioners such as David Anderson and Jemima Stratford already had practices that crossed over into public law. The Euro practitioners organised a weekend seminar at a hotel in Rye (shades of Jowitt) in 1996 for everyone in chambers to learn about human rights. The attraction of moving into public law was to use the Euro expertise as a way into this new market. It was envisaged that there would be synergies with the Euro practice, and also potentially with commercial judicial review. And a strength in public law was likely to attract bright young graduates enthusing about it after studying at university.

Richard Gordon was recruited, a senior silk who had a longstanding public law practice, together with Alan Maclean, who had a mixed public law and commercial practice. Shortly afterwards a number of public lawyers split from 4–5 Gray’s Inn Square. This led to the recruitment of Marie Demetriou and Martin Chamberlain. Marie had been one of those who had applied for pupillage for 1995–6, had not obtained a pupillage in that golden year, and her absence had been regretted ever since. Martin was at that time relatively junior but soon became the

155 [1990] 1AC 109 156 [1987] QB 815

spearhead of chambers’ public law practice. When asked why he had not originally applied to Brick Court he confessed that he had been turned down for mini pupillage! He was initially dubious as to how committed Brick Court might be to getting involved in public law but was persuaded when David Anderson told him that Sumption had told chambers that public law was going to be increasingly important. In the event Martin did much more public law work at Brick Court than he had done in the short time he was at his previous set.

Richard Gordon’s view of public law was distinctly creative. He led Martin Chamberlain in R v Registrar of Births Marriages and Deaths.157 This involved an attempt to prevent a man on remand for murder from marrying his girlfriend. The problem was that the main evidence against him was a confession he had made to the girlfriend and if he married her she would cease to be a compellable witness against him. Shortly before the hearing they were served with new discovery from the other side: a bundle of love letters provided with the intention of proving it was a genuine marriage. Richard submitted that the marriage should not be permitted as being contrary to public policy if used to stymie a criminal prosecution. What might be seen as a ridiculous argument surprisingly succeeded in the Divisional Court before Mr Justice Maurice Kay although it met with less success in the Court of Appeal. Richard and Martin were ready for the question: “What would happen in a church wedding if during the service the parson asked if anyone objected to the marriage and someone objected on this ground?” According to the Book of Common Prayer (a copy of which was purchased to consider the issue) it would be for the priest to try the issue himself.

Richard Gordon was never the most relaxed of advocates. He took a trip to Strasbourg with Jemima Stratford and Fionn Pilbrow for Roche v UK which concerned testing chemical weapons on soldiers at Porton Down. Richard (who did not like flying) proposed that the team take the slow route to Strasbourg, working on the train and with a pause for a nice lunch in Paris on the way before working late into the night at Strasbourg. Next morning the taxi driver arrived at the hotel, took all the papers plus suitcases to his boot, and locked them in. At this point

157 [2002] EWCA 1661

the taxi driver realised that he had locked his keys in the car and was unable to open the boot. “On ne peut pas ouvrir le coffre, c’est fermé à clé, c’est pas possible.” Richard definitely was not calm. After some failed attempts to think of a solution (the driver not being impressed with the suggestion that a jemmy be used to open his boot), the team took another taxi to the court. The taxi driver meanwhile rushed home and must have retrieved a spare key for the boot. Closeted in a room in the basement of the Strasbourg Court without any papers, Richard was pacing the room and planning what he was going to say without notes, when the taxi driver came back five minutes before the hearing started with the precious papers.

One of the attractions of a public law practice was its focus on cases which were topical and often newsworthy. Thus during pupillage Maya Lester was able to work on the conjoined twins case with David Anderson, where in order for either twin to have a worthwhile life it was proposed to carry out an operation which would kill the weaker twin, acutely raising right to life issues.158

As time went on, an increasing number of practitioners in chambers sought to become involved in public law. Sydney Kentridge and Martin Chamberlain argued a case that law students will study: they took the Hunting Act to a nine-member House of Lords, arguing that the use of the 1911 Parliament Act procedure to pass the statute after the conservative-dominated House of Lords (the chamber not the court) had rejected it twice was unconstitutional.159 Sydney opened the case in the House of Lords as follows: “I was accused in the court below of overstating my case. Let me overstate it again.” A second visit to the House of Lords160 was based on infringement of Article 8 of the ECHR and EU free movement rules and involved Richard Gordon and David Anderson161 for the two sets of claimants.

Sydney also argued the Chagos Islanders cases. In 1965 the islands of the Chagos Archipelago in the Indian Ocean, which had been ceded

158 [2001] Fam 147 159 Jackson v Attorney General [2006] 1AC 262 160 R (Countryside Alliance) v Attorney General [2008] 1AC 719 161 Leading Marie Demetriou.

to Great Britain by France in the 19th century, were constituted a separate colony, the British Indian Ocean Territory (BIOT). Under an Ordinance made in 1971 by the Commissioner for BIOT, the inhabitants of the Chagos Islands were compulsorily removed, mainly to Mauritius, because Diego Garcia, the principal island in the archipelago, was required for a US military base. In 2000 Sydney persuaded a Divisional Court, including John Laws, that the English court had jurisdiction to issue a prerogative writ such as an order of certiorari to any place under the Crown’s subjection notwithstanding the existence of effective local courts,162 – another case studied by law students thereafter. But then in 2004 the government decided to reintroduce immigration controls so that the islanders would no longer be allowed to return to the outer islands without a permit under new Orders in Council which removed any right of abode and disentitled the islanders from entry or presence on the islands without specific permission. This led to a divided Supreme Court163 with Lord Bingham and Lord Mance dissenting; the majority held that what had occurred did not breach any legitimate expectation of the islanders, contrary to the submissions of Sydney, now leading Maya Lester. There has been subsequent litigation both in the English courts and Strasbourg.

Apart from Sydney and Richard Gordon, David Anderson and subsequently Martin Chamberlain dominated this area of the law. David had a significant if short lived triumph164 in Wales on behalf of a client of a different nature: Shambo. He was the temple bullock at the Hindu Monastery and Temple at Skanda Vale, Llanpumsaint, Carmarthenshire. The temple bullock epitomises the Hindu belief that there is a spark of divinity in all animals and, as a result, the life of all animals is sacrosanct. It was said if Shambo were to be slaughtered, that would be a particularly

162 R v Secretary of State for Foreign and Commonwealth Affairs ex parte Bricoult No1 [2001] QB 1067 163 R v Secretary of State for Foreign and Commonwealth Affairs ex parte Bricoult No2 [2009] 1AC 453 164 Leading Maya Lester, The Queen on the Application of Swami Suryananda as a

Representative of the Community of the Many Names of God v The Welsh Ministers [2007] EWHC 1736 (Admin). Mark Hoskins argued the case in the Court of

Appeal.

sacrilegious act, a serious desecration of the temple and a gross invasion of their right to manifest their religion, a right protected by Article 9 of the ECHR. Unfortunately Shambo contracted bovine TB and an order was made for his destruction, so judicial review was sought. David succeeded at first instance before Deputy HCJ Hickinbottom, a result that was literally regarded as a miracle by his clients, although sadly this was overturned a couple of days later by a less sympathetic Court of Appeal.165 This led to attempts to restrain the police by large numbers of Welsh Hindus seeking to prevent Shambo’s apprehension requiring lines of police to keep order. When the beast was finally taken, each officer removed his helmet as Shambo went past.

David Anderson was involved in the judicial review of the Standardised Packaging of Tobacco Regulations, which was very much a chambers affair: decided at first instance by Mr Justice Green, and then the Court of Appeal. All of Marie Demetriou, Kelyn Bacon, Tim Johnston, David Scannell, Jenny MacLeod and Daniel Piccinin were involved.166 Anderson did not always get a great reception in Europe. Appearing before the CJEU in one of the Gibraltar cases, he placed his papers on a well-situated table in the court. Returning a few minutes later, he found that his Spanish opponent had taken occupation of the table and dumped his papers on the floor. When he questioned what had happened, he was told “It is no different from what you did in 1709.” At least he did not suffer the indignity of James Flynn who, appearing in an international treaty arbitration in Paris, broke his glasses mid-submission, leaving Victoria Wakefield to ascertain the French for sellotape, to run around the Quai d’Orsay shouting “du scotch, du scotch” causing general confusion (particularly because the word “scotch” did not only mean sellotape) before returning to the salle d’audience and successfully sellotaping his spectacles back together.

Anderson, who always commanded respect across EU and public law, served two terms as the Independent Reviewer of Terrorist Legislation. That led to the curiosity that on 8th June 2018 he was both created Lord Anderson of Ipswich (when he became a cross-bench life peer) and also Sir David (knighted for services to national security and civil liberties).

165 [2007] EWCA Civ 893 166 [2016] RPC 22, 2018 QB 149

David’s 250-page report, A Question of Trust, created with help from Tim Johnston and Jenny MacLeod, was the basis of the Investigatory Powers Act 2016.

In more recent years Martin Chamberlain came to dominate the public law bar. He argued, leading Emily MacKenzie, that parents were not entitled to take their children on holiday in school term time in Isle of Wight Council v Platt.167 The statute requires children to attend school regularly and it was argued on behalf of the Platts that a child could still attend school regularly and take holidays in term time. At the beginning of the hearing, Lady Hale said “Of course ‘regularly’ means ‘in accordance with the rules’ from the Latin” which proved the successful argument, stopping countless parents from taking their kids out of school in term time. And of course it gave rise to a large number of quips: “Do you go to the gym regularly?” doesn’t mean how often, but: “Do you pick up your towels?”.

Martin Chamberlain was particularly proud of his win in Animal Defenders International v United Kingdom, where the claimants contended that the ban on paid political advertising under the Communications Act 2003 was contrary to Article 10 of the ECHR, and which he won for the UK government in Strasbourg by nine votes to eight. Other highprofile cases included Regina (Campaign Against Arms Trade) v Secretary of State for International Trade v Amnesty International which involved an attempt to ban the sale of arms to Saudi Arabia for use in the conflict in Yemen,168 and Walker v Innospec169 involving the rights of those in single sex partnerships to survivors’ pensions. Aged forty-five Martin was appointed to the bench in 2019 – having survived a judgment from his former colleague Lord Justice Leggatt in terms that: “It is difficult to express in language of appropriate moderation why we consider these arguments without merit.”170

An enormous number of public law cases ended up in the Supreme Court such as R (Unison) v Lord Chancellor171 (differential

167 [2017] 1WLR 1441 168 [2019] 1WLR 5765 169 [2017] UKSC 47, leading Max Schaefer. 170 R (Law Society) v Lord Chancellor [2019] 1WLR 1649 DC 171 [2017] 3WLR 409

fees for commencing employment tribunal cases) in which Victoria Wakefield was involved and El Gizouli v Secretary of State for the Home Department172 (mutual assistance for the United States for a prosecution where there was the death penalty). Most recently, Marie Demetriou led Hugo Leith and Robert O’Donoghue led Gerard Rothschild and Emily MacKenzie in Micula v Romania173 as to whether payment of an ICSID arbitration award by Romania would involve state aid: Lord Lloyd-Jones gave the leading judgment. And Brexit provided a series of dramatic cases: Martin was involved in R. (on the application of Miller) v Secretary of State for Exiting the European Union, 174 the Gina Miller case on the role of parliament in any Brexit agreement; Maya Lester, who had built up a practice in sanctions cases, argued Wightman v Secretary for Exiting the European Union175 before the CJEU (can notice to leave be revoked unilaterally?); and Richard Howell had the junior brief for the government in the Parliament prorogation case.176

172 [2020] 2WLR 857 173 [2020] 1WLR 1033 174 [2018] AC 61 175 [2019] QB 199 176 R v (on the application of Miller) v Prime Minister [2020] AC 373