Breaking news for lawyers – the internet has arrived!

Guardian: The Attorney General had a surprise at the official launch of Guardian Law

The decision by The Times to drop off the face of the legal net (Yes, I am sure a few are paying to read it online) by disappearing behind a paywall  must have assisted Guardian Law in their new endeavour.  I like the format and I like the style.  The content is developing and a couple of my friends have been contributing – Carl Gardner who writes the Head of Legal blog and BabyBarista.

Guardian Law is definitely one for student, lawyer, academic and member of the public to follow.  Afua  Hirsch seems to have a wise  head and keen eye and brain on young shoulders, if I may say so – good stuff. She does the Guardian Law Afua Hirsch blog as well!

Guardian: Simon Hughes, who gave evidence against a NoW journalist after his phone was hacked said others were afraid to join him.

Astonishing really… but Tom Watson MP was certainly happy to get up on his feet, albeit using the protection of Parliamentary privilege, to talk of red topped assassins yesterday in a good speech.  Whether anything will actually come of this remains to be seen – but if the *evidence* points that way, we will know for sure.  The key is to get the evidence – so the campaign has been worthwhile in shaking the tree. Forgive me if I continue to take the well worn path of assuming innocence until guilt is proven – a very different matter from innocence or  my own personal thoughts on the matter.

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Independent: New parliamentary inquiry will have the power to force senior newspaper executives to give evidence

Tom Watson MP Speech….

“Referring to News International Chief Executive Rebekah Brooks, Mr Watson told the Commons: “The truth is that we all of us in this House in our own way are scared of the Rebekah Brooks of this world.

“If you fear passing this resolution, think of this; it’s almost laughable. Here we sit in parliament, the central institution of our sacred democracy, between us, some of the most powerful people in the land, and we are scared of the powers she wields without a jot of responsibility or accountability.

“They, the barons of the media, with their red-topped assassins, are the biggest beasts in the modern jungle.

“They have no predators. They are untouchable. They laugh at the law. They sneer at parliament. They have the power to hurt us, and they do, with gusto and precision, with joy and criminality.

“Prime Ministers [cower] before them. And that is how they like it. That, indeed, has become how they insist upon it.

“And we are powerless in the face of them. And we are afraid. And if we oppose this resolution, it is our shame.

“That is the tawdry secret that dare not speak its name…..”

Guardian: Sky News presenter has on-air spat with MP during interview about News of the World phone-hacking story.

Burley was interviewing Labour MP Chris Bryant about the Commons debate on the News of the World phone-hacking story. When Burley challenged Bryant to provide evidence for his claim that phone hacking and other illegal techniques were “endemic” in the newspaper industry in the past, he cited a report by the Information Commissioner that identified more than 1,000 cases.

Burley said: “So you are in a position to have listened to the debate and read the report and as a result you are content to say that on telly.”

Bryant replied: “I have just said that. You seem to be a bit dim, if you don’t mind me saying so.”

I quite enjoyed this.  I rarely watch Sky -  not out of some bizarre anti-Murdoch protest – but simply, try as I might, I can’t actually find a single thing, news or otherwise, that I actually want to watch apart from Cricket and I decline to pay to watch when BBC commentary does the job just fine.   Good to see a politician not putting up with nonsense from TV people – some of whom appear to think they are more important than the people they are interviewing.

Lawyer and Jack of Kent blogger, David Allen Green writes a short article in The New Statesman asking “Are we censoring a retired politician?” Blair has cancelled a number of events recently – to what appears to be the delight of some Libertarians and others who might, otherwise, be expected to be the first to storm the barricades from the comfort of their Parker Knoll chairs and complain about erosion of their free speech.  Tom Harris MP tweeted the other day expressing the hope that Blair would not cancel events due to ‘thuggery’.  Blair cancelled the events – explaining, not unreasonably, that he did not want to put additional burdens on Police and the like.  It may also be that he recognises that sentiment is not with him on the Iraq war and does not wish to fan the flames further.  It may be that book sales are going so well that he doesn’t need to. Kerching! – for the British Legion…so that is just fine by me.  I am enjoying his book.
David Allen Green makes a rather good point when he says this… “The defence of free expression is often most important when the beneficiary is unpopular.” On this issue, emotions run high and the rights of those who wish to express dissent our outrage at Blair, in a peaceful way, have as much right to do so as Blair does to promote his views.  Both are now denied such an opportunity face to face.  The comments in The New Statesman article are revealing – and some, understandable. The principle of freedom of speech is a good one.  The reality may not always be quite so ‘convenient’.  We should promote the former and guard against development of the latter.

I agree with Green – freedom of speech is all. Unfortunately, unlike America, we don’t have a First Amendment – so if any Pastors over here developed a taste for Koran burning – they would simply be banned and, possibly, locked up. That is the British way with dissent and ‘difficult’ issues. Freedom of speech?  You’re having a larf…… doesn’t exist in Britain – there are pragmatic and, sometimes, politically convenient limits.  Superinjunctions, libel laws, privacy laws and good old fashioned funk at what a journalist can find lurking in a cupboard to dissuade MPs (and others), according to the news story above,  ensure that freedom of speech is very much controlled by those with the money and influence to do so.

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UPDATE

Some EVIDENCE some may prefer not to see or even look at?

from Guido Fawkes….

While the Mirror and the Guardian try desperately to breathe air into the phone hacking scandal, lets take a look at why it isn’t really about evil Murdoch and his newspapers. A little evidence based research, with the help of the Information Commissioner’s Office, shows how all the papers were up to dirty tricks and “blagging” - pretending to be someone you are not in order to gain the information you are not entitled to. Who do you think had the most recorded offences?…..

Go on… it will do you good

I am very pleased to announce that I have awarded myself an award (another one). Modesty forbids me from saying that I won – hence…TOP 2

With all these total politics blog awards being handed out to polbloggers… although I understand they do have a voting system – I can hold my head up high… when I sober up

My apologies to Iain Dale and all polbloggers… I do enjoy your blogs

2 Corinthians 11:30
If I must boast, I will boast of the things that show my weakness.

***

And on a positive note… I am more than happy to see Barristers abseiling… and doing good… these are from Exchange Chambers!

Would you like to donate to this or publicise it?

Mandy Yip, Rob Dudley and Alison Graham-Wells thank you for coming to their fundraising page.

The three of us have agreed (somehow!) to climb over the edge of the 164ft tall Mersey Tunnel ventilation shaft and abseil down on 26th September 2010.

We are all trying to raise money for the Bar Pro Bono Unit

[I've done some abseiling - not easy!]

A couple of law stories – with no comment – simply because I have just read them and found them interesting.

The Guardian: Geoffrey Robertson QC calls for end of church law and chides UK government for recognising Vatican’s sovereignty

The system of law operated by the Vatican has allowed serious sex offenders to escape punishment and must be abandoned, says a prominent lawyer.

According to Geoffrey Robertson QC, whose book The Case of the Pope is published tomorrow: “Canon law has been allowed to trump criminal law in countries throughout the world. This is a very serious matter‚ the pope through his pretensions to statehood refuses to acknowledge that child sex abuse is a serious crime as well as a sin.

“The Catholic church must abandon canon law as a punishment for priests who commit crimes.”

The church’s form of law, Robertson argues, “has no public hearings, no DNA test facilities, no enforcement mechanism, and the most severe punishments – excommunication or an order to return to the laity (without entry on a sex offenders’ register) – bears no comparison with the sentences of imprisonment or community service that can be expected under criminal law.”

Michael Wolff: “You don’t get it,” a member of News Corporation’s inner circle in London told me last night, about the phone hacking scandal. “If there was a conspiracy in the company, the conspiracy was to keep Rupert from knowing.”

That is called the circle-the-wagons defense. That’s called everybody-else-is-expendable. That’s called a total freak-out.

The company has been caught as unaware, as unprepared, as incapable of responding, as on the ropes, as it ever has in its 60-year history. News Corp. only knows how to be the aggressor; now it’s on the defensive—and it has to defend itself against the very thing that it has always been, that has always protected it, that is the reason for its fundamental pride: Its newsrooms are down and dirty.

I am delighted to host two very thoughtful blog posts from Scots lawyers on the issue of Independence for Scotland. I have, with their permission, taken their published posts from their blogs and hosted them here.  Given the fact that we are, for the present, a United Kingdom, I thought these would be thought provoking.  Love and Garbage and Lallands Peat Worrier are serious law bloggers who, it has to be said, also enjoy twitter – which is how and why I ‘met’ them.

First from Love and Garbage

As a child I was taken to a magic show, where the conjurer practised close-up magic. He’d wave the cards in front of you, and wonder of wonders you’d miss the sleight of hand. Until he tried it with a small boy who saw that the conjurer held two cards together pretending they were one.

What does that have to do with politics, though?

Well, a little while ago I noted how ignorant certain journalists were on matters relating to human rights – meaning that the incoherent Conservative policy escaped scrutiny during the election campaign. Scottish journalists are not exempt from similar criticisms. Too often the framework within which the Scottish Parliament operates is ignored when the political dimension of the Parliament is considered. The ignoral is a mistake. Smoke, mirrors, bluster, and crashes and bangs are classic distraction techniques – designed to draw attention away from the real position. Journalists and those scrutising our politicians should try not to be distracted.

The Scottish Parliament was not born free. It is a statutory creation, its powers circumscribed by the legislation establishing it. The Parliament, and the Scottish government (the executive within the terms of the Scotland Act 1998) can only act in accordance with the powers conferred upon it by the Scotland Act 1998. This was apparent before the Parliament was established. The restriction confirmed by the courts in Whaley v Lord Watson 2000 (later confirmed by the House of lords).

But the restrictions on the Parliament are sometimes forgotten (caught up sometimes in confusion between and conflation of the Westminster and Holyrood legislatures – Westminster notionally being the beneficiary of a doctrine of parliamentary supremacy (an English concept the Scottish courts reject as an absolute). And this means that pledges and promises made by Scottish parties in Scottish campaigns are therefore questioned only on a political basis without adequate scrutiny of whether a proposal can actually be implemented.

Consider for example a saga that began 3 years ago. In August 2007 the Scottish government issued the white paper that formed the centrepiece of the “national conversation”. This white paper proposed the holding of a referendum on scottish independence and included a draft bill to that effect. The period since then has seen much consultation, more detailed bills (pursuing the same central objective) - but the legislation has not been forthcoming.

Three years ago I suggested that legally (within the context of the Scottish parliament) the national conversation was hanging on a shoogly peg. I noted the following,

“ The powers of the Executive and Scottish Parliament are determined by the Scotland ACt 1998.  This ACt provides that any bill which is put forward must be compliant with the scheme of devolution.  If a bill is not on a devolved topic then it cannot enter the Parliament, never mind be passed.  The 1998 Act provides that this is considered at at least two stages – first, the Presiding officer can prevent the bill entering the Parliament at all (a rule already exercised – probably inaccurately – when a bill which attempted to prevent the right of appeal to the House of Lords in civil court cases was rejected); second, the Advocate General (a UK government law officer) can – if a bill is passed by the Parliament – judicially challenge it before royal assent is given.”

And suggested that,

“The presiding officer is unlikely to give approval to the bill (given the precedent of rejecting a previous bill deemed to have constitutional import). ”

I suggested that the white paper engaged in elaborate sophistry as the legal problems inherent in the constitutional settlement were ignored, or downplayed with qualifying words.

While there has been toing and froing on the referendum I have been waiting for the inevitable. My view was that no bill would be introduced into the Parliament because a bill on the topic cannot fall within the legislative competence of the Scottish parliament. I expressed this view in blog comments in various places on the net (eg here). Imagine my astonishment yesterday then when the Sunday herald broke an exclusive story indicating that the referendum was being shelved.

The Sunday Herald report is an interesting one. It focuses on the fact that Mr Salmond believes that the bill will be voted down and therefore the bill will not be introduced. That political angle is the one that has been followed up in the reports yesterday and today (BBC, Brian Taylor, Scotsman). And it is the political element that has been followed up by bloggers (including the team at the excellent new Better Nation blog, Joan McAlpine, Colin Fox, and burdzeyeview,)

However, hidden away in paragraphs 14 and 15 of the Herald report is the news that most lawyers interested in the area expected to see:

“SNP sources also said the First Minister revealed there were legal problems surrounding the wording of the referendum question.

This related to talks between the Government and the Parliament’s Presiding Officer, who has to rule whether a Bill falls within the powers of Holyrood.”

This is no surprise, but will form the focus of this post as it has been ignored elsewhere.

During a previous session of the Scottish Parliament SNP MSP Bryan Adam proposed a Civil Appeals (Scotland) Bill which would have abolished the right of appeal from Inner House of the Court of Session to the House of Lords. The presiding officer (on his legal advice) ruled the bill fell outwith the competence of the Parliament. The justification was that the bill would have had an impact on the general constitutional reservation found in Schedule 5 to the Scotland Act 1998. If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.

I think that establishing that a bill on a purely constitutional matter falls within the legislative competence of the Scottish Parliament will be a difficult task. Schedule 5 of the Scotland Act seems pretty clear.

However, I was somewhat surprised today to read a post from the excellent Joan McAlpine that suggested that matters could be dealt with without a bill. Dr Matt Qvortrup - a senior lecturer in international relations and “ described by the BBC as the “world’s leading expert on referendums”” had written an article for the Herald during the summer. Dr Qvortrup wrote what, to a lawyer interested in the constitutional position, is a startling piece.

He opined,

“The referendum can be held after a so-called Order in Council, or by a Scottish Statutory Instrument (SSI). That is to say, the First Minister can decide to simply use his executive powers to have a consultation.”

Joan McAlpine, relying on the article, writes,

“Politically, such a move could put the Holyrood unionist opposition and the coalition Westminster government in a very tricky situation. If this consultative exercise included a devo max option alongside full independence, the outcome would certainly be a majority of Scots opting for radical change. That would put the SNP in a powerful position going into the 2011 election and, afterwards, if they formed a government. Whatever happened, the flawed Calman proposals would be holed below the water.

I am aware that this a sharp-intake-of-breath suggestion.  The opposition could sink it with a no confidence vote. Would they dare? If they did, the issues at stake would be made very clear indeed. It should at least be examined.”

Dr Qvortrup’s proposition is startling to a lawyer because it is flawed in two fundamental respects.

First, Orders in Council or statutory instruments are examples of delegated legislation. The right to grant executive orders is (as are the powers of the Scottish Parliament itself) circumscribed. There are no general rights to legislate as an executive wishes. A government minister cannot decide that I would like to pass laws which require people to do X. A power so to legislate is required. A quick look at the Scottish statutory instruments demonstrates this. Each narrates the power under which the statutory instrument is made. Delegated legislation then involves the delegation of a power to legislate to the executive and any subordinate legislation (such as an Order in Council or statutory instrument) which is laid by the Scottish government has to be laid in the exercise of a legal power delegated to the government. I can find no legal power to hold referenda delegated to Scottish ministers. None is referred to in the leading modern Scottish texts on constitutional law. Additionally, I have trawled material from pre-devolution (where certain powers delegated to ministers are now delegated to Scottish ministers); have examined material in Scottish and British writings on constitutional law to determine if there would be such a power delegated under prerorgative powers (I can find no such power); and have looked at post-devolution legislation from the Scottish Parliament and Westminster and can find no such power. If there is no such power delegated there can be no Order in Council or statutory instrument. I accept that such a trawl will not have been exhaustive. However, this leads to the second flaw in Dr Qvortrup’s position.

Delegated legislation is not automatically waved through. Just because a minister says something does not mean that it becomes the law. The procedure for consideration of delegated legislation is set out in rule 10 of the Standing orders of the Scottish Parliament. Delegated legislation either requires affirmative procedure (meaning it requires the approval of the Parliament) or if it is not subject to affirmative procedure can be annulled.

Let us assume that contrary to my researches Dr Qvortrup is right and a power to legislate to hold a referendum has been delegated to Scottish ministers. Let us assume as well that this fictitious power does not provide that any statutory instrument or Order in Council has to be approved affirmatively. Dr Qvortrup bizarrely suggests that

“In Scotland’s case, the only option open to the Opposition would be to table a motion of no confidence in the administration.”

Sadly for Dr Qvortrup this is palpable nonsense. The position is set out in rule 10.5 of the standing orders:

“1. In the case of any draft instrument laid before the Parliament where the instrument may be made without the approval of the Parliament, any member (whether or not a member of the lead committee) may, no later than 40 days after the draft instrument is laid, by motion propose to the lead committee that the committee recommend that the instrument be not made (or, in the case of a draft Order in Council, be not submitted to Her Majesty in Council).”

This is not a motion of confidence in the government (with all of the implications involved therewith). This is simply a motion to annul (or a negative resolution) which would be dealt with and may be voted on in the normal way. Any member could make such a motion – from the humblest backbencher.

The political implications of holding a referendum are also considered by Dr Qvortrup.  But until he – or one of those advocating the circumventing of Parliament by executive power – can point to a power that would entitle the Scottish government to lay delegated legislation and do this – and which would circumvent rule 10 of the standing orders, I suggest that no referendum can competently be approved by the Scottish Parliament.

The central plank of the SNP manifesto then will be a policy they cannot implement within the confines of the Parliament they are running for (although of course politically, an SNP majority vote would make any demand for such a referendum to be passed by Westminster politically impossible to resist).

Edited on 7th Sept at 4.45 pm to note the excellent response from Lallands Peat Worrier on the legality of the referendum bill. I disagree, but I think it is important that the argument is heard and engaged with by both sides. The failure of both sides to do so thus far (and journalists to scrutinise) says much about our system.

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And.. from Lallands Peat Worrier….

Before the 2010 Westminster general election, I tore rather mercilessly into the legal illiteracy at the heart of Tory pre-election pledges on the Human Rights Act and the European Convention. “And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?” asks Scottish legal blogger Love and Garbage in an important post suggesting that is the SNP’s proposed referendum on independence demonstrates our own illiterate grasp of the legal constraints of the devolution settlement. Either that or a wilful blindness which would hardly be more laudable. The public orthodoxy assumes that Holyrood is perfectly empowered to hold such a referendum. Even the opposition parties believe so. How else could Wendy Alexander have cried “bring it on”? The question then becomes a matter of pure politics, whether such a referendum should be held a question finally to be answered by the institutional majority. “Unionists have killed off the independence vote”, suggested Salmond this morning. This, argues Love and Garbage, is so much Eckly razzmatazz:

Why not? His starting point is the legislative instrument that is the parliament’s foundation ~ the Scotland Act 1998. As he rightly stresses, it is something that the Scottish media and the rest of us often lose sight of, but Holyrood is not an assembly at liberty to do as it pleases. The Act is structured with general and specific reservations. At the top of the general list in Schedule 5, we find the Constitution. Section 29 provides that “An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament…” and that “A provision is outside that competence so far as … (b) it relates to reserved matters…”. So, how is the phrase “relates to a reserved matter” to be construed? The Act offers this guidance:

“For example, the subject-matter of the Carriage of Goods by Sea Act 1992 is a reserved matter: para 1 and Section E3 of Part II of Schedule 5 to the 1998 Act. Obviously, therefore, if the Scottish Parliament purported to pass a Carriage of Goods by Sea (Scotland) Act with the sole purpose of repealing the 1992 Act in Scots law, its purpose would relate to a reserved matter and so its provisions would be outside the competence of the Parliament by virtue of section 29(2)(b). In practice, such a clear example would be unlikely to get past the legal advisers to the Scottish Parliament. In real life the problem is likely to arise in more complex situations.” [Para 75]

“If something which proposed to regulate an aspect of the legal system (against the context of the general devolution of matters relating to the courts, court procedure, and private law) is outwith the competence of the Parliament – then a bill which is about entering negotiations for the establishment an independent nation with its own legal system and legislature (or the break up of the United Kingdom, depending on your political preference) seems bound to have an impact on the United Kingdom Parliament (one of the matters on which legislation is expressly reserved to Westminster and on which the Scottish Parliament has no competence) and accordingly it would seem likely to be ruled by the presiding officer’s legal advisers as falling outwith the legislative competence of Holyrood.”

I propose that we can distinguish this precedent quite simply from referendum. Or at least, might be able to make a manful legal argument to that effect. Assume that George Reid was correct and that the proposed Bill was beyond Holyrood’s competence. What about a Bill attempting to have a referendum on the subject of the Civil Appeals Bill? Holyrood couldn’t delegate powers for the Scottish people to make binding resolutions in a referendum. What if the public were asked “Do you agree that the civil appeal to the House of Lords should end?” As I understand him, on Love and Garbage’s logic such a referendum is incompetently “tainted” by its reference to a clearly reserved subject. Couldn’t we think about this differently and harden this contrast between admittedly incompetent affirmative legislation and legislating to institute a referendum process for the expression of public opinion on some subject which happens to be reserved? As I understand him, Love and Garbage is entirely consistent on this level. If the proposed referendum on independence is incompetent, surely my imaginary referendum on the Civil Appeals bill would also fall to be rejected.

I’d propose an alternative interpretation (I should stress, in a spirit of advocacy rather than in any certainty that a court would uphold my argument) and submit that legislating to conduct an advisory referendum on both reserved subjects can be distinguished and need not incompetently “relate” to the constitution as a reserved matter. All of this hinges on whether conducting a referendum on a reserved matter of itself “relates” to a reserved matter under section 29 of the Scotland Act. “Relation” is obviously not being used here in its common-sense definition of any tenuous connection. The Act suggests that we attend to (a) the purpose and (b) the effect of the legislation. So what is the essential purpose of a referendum on independence? As Lord Rodger noted:

“Sometimes, of course, the purpose of a provision may be obscure. And, even when it is not obscure, people may describe the purpose in slightly different ways” [Para 113]

This seems to me to be at the heart of the argument. How should the essential purpose of the referendum be described? On one level, we might say that its primary purpose is to canvass the opinions of the Scottish people. In law, it would have no binding effect. No legislative modifications would necessarily follow. Indeed, its lawful effect would simply be to set in motion a consultative process. Ascertaining the opinion of the Scottish people on a particular question is not a reserved matter. L&G would no doubt contend that this is a rather artificial analysis and that effect should be given a more expansive definition. Moreover, it is no secret what the general purpose of the SNP is in bringing such a referendum forward. He might be right in both respects. However, such arguments emphasise an important point. Whatever one’s immediate view of the merits of either contention, it seems fair to say that the authoritative judicial definition of “relation to a reserved matter” remains opaque. Alan Trench, a far more dexterous public lawyer than I am, has recently composed this worthwhile piece on the wobbly line drawn between devolved and non-devolved powers of the parliament. My point is that the competence and legality of any referendum is at least arguable, if one begins to accept the separability thesis I outline above. That said, Love and Garbage is quite right to emphasise that blithely assuming Holyrood can competently legislate for a referendum is problematic. I have no insight into the SNP’s legal advice or their legal thinking. However, I suspect that this analysis might also go some way to explaining the reported difficulties which were experienced in composing suitable wording.

Guardian: Malcolm Jack says legislation could mean courts would ‘be drawn into matters of acute political controversy such as whether an election should be held’

This could be a bit of a problem?

I do like twitter – this from a friend….

Funnily enough.. the Scots have a possible problem with an  independence referendum… as a guest post soon will reveal….

BBC Reports: A man posing as a barrister fled a court in Devon when a senior judge became suspicious of him.

What a great story.

PODCAST EPISODE 2: MUTTLEY DASTARDLY LLP – PROCURECO WARS

MEMORANDUM

To: The Partners

From: Matt Muttley, Managing Partner

RE: PROCURECO WARS

Gentlemen, I write from our Caribbean island with news of an opportunity which I think we should give some attention to.  As you know, it is 24/7/365 at M&D LLP.  I have a lunch engagement, so I shall be brief.

1.  Barristers’ chambers could provide a ‘lifeline’ to small criminal law firms, Bar Council chairman Nick Green QC has told the Gazette

2. I quote from the Gazette: “Green said that when the Legal Services Commission next tenders for criminal contracts, likely to be next year, he expects to see barristers’ chambers putting in bids for work using the model procurement company devised by the Bar Council, known as the ProcureCo.”

3.  I rather like this bizarre word ‘procureco’ – pregnant with all manner of meanings, some possibly  sinister.  The idea is that Barrister chambers will rush into the market to mop up criminal work and provide a full service  through a Procureco bolted on like a shed to the side of their practice – as is required under The Dragon’s Den rules – sorry, that should be, under LSA rules. This means that in addition to providing advocacy services which they can, clearly, provide, they will have to provide all the back up services as well currently being done by solicitors.  This means they will have to do deals with solicitors and the minutiae of commerce – a prospect some at the Bar may not enjoy, or even, in the case of some of m’learned friends, positively recoil in horror from.

4. Unfortunately for Mr Green and his vision of a land of milk and procurecos – there is a rather large fly in the ointment.  The fly is the plan by solicitors to blacklist any set of chambers setting up a procureco and bidding against them for work – resulting in those same barristers not being instructed by the firm or firms doing the black listing.

5.  I would like to propose two alternate plans:

Plan A would involve encouraging as many sets of chambers in this field as possible to set up Procurecos, encourage – through twitter and articles strategically placed in law publications – solicitors firms to blacklist them – and set up our own Criminal Division to deal with criminal work and use the barristers who can’t get instructions from other criminal firms because they have been blacklisted.  This should result in some satisfactory fee discussions with the clerks.

Plan B is that we buy a range of small criminal law firms – or enter into ‘affiliation’ arrangements with them providing our infrastructure and ‘ethos’ rather along the lines of claim farms in personal injury -  and use the combined muscle of collaboration to create a large (and, ultimately, monolithic criminal law firm) and exercise a very real influence and control in and of the market.  The latter plan is, of course, more expensive and for the longer term.

6.  I end with a few choice points in the Comments section of  Catherine Baksi’s excellent article for your perusal, delectation and delight:

Can the Bar not see that by entering into direct competition with solicitors they will potentially reduce those who will instruct them…….. If the bar secure a contract in one area, they will get at most an eighth or a tenth of the work in that area, based on the reduced number of suppliers suggested by the MOJ. That means that the rest of the work in the area is undertaken by people they are now competing with. That could seriously limit the work they have coming in.

They need to think this through again.

Solicitors should be taking the lead here.

Gentlemen – please note that Allan Carton seems to favour our Plan B option.

And, finally – I rather liked this comment:

***

PODCAST EPISODE 2: MUTTLEY DASTARDLY LLP – PROCURECO WARS

With thanks to Cellmark, OnlineWill.co.uk, BPP University College, David Phillips & Partners Solicitors, Wildy & Sons, Camps Solicitors accident claims

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I do seem to have unusual hours – getting up at 3.45 am  to ensure that The Grim Reaper does not get me  – A lot of people die at 4.00 am according to statistics from HM Treasury and NHSDirect ( – but probably not enough to help the Coalition government and Chris Grayling et al  with the deficit and looming pensions problem)

Because I am not trying to pimp a law practice or a business and I no longer care that much about anything  – but still enjoy law, art, wine, drinking, the human condition  and business and life in our increasingly strange country – I shall continue to enjoy observing and commenting.  I shall leave *pronouncing* to others

That is all.

I’ve been following what is called #Metgate and #Hackgate on Twitter and in The Guardian / The Observer. I’ve kept out of the analysis – partly because of The Guardian and  David Allen Green’s (Formerly Jack of Kent) sharply observed writing on the matter – and partly because I don’t know enough about it yet  and I am quite happy to wait for the *Evidence* -  that hoary old chestnut which underpins our ‘rule of law’.

[Scotland Yard is examining new information according to the latest reports]

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A bit of SPIN Drying for you – I don’t suppose that anti Murdoch feeling (Wall Street Journal v New York Times and The Times / Sky et al versus The Guardian has anything whatsoever to do with the prominence of this story – how would I know?  Not for me to even think about it….. ha!  And let us not even think about the political point scoring on this… see Guido below

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The Jack of Kent / David Allen Green posts on this topic are here… I’ve listed them with the most recent at the top – very comprehensive and well worth a read if you wish to look at this topic in more detail

This article from Obsolete is worth a read….
Let’s go round again.

***

The Independent…

The Independent: A new police investigation into alleged phone-hacking might clear all those said to be involved. But it is urgently necessary nonetheless

And… of course… Guido Fawkes has a few observations on the matter…

The problem for Labour is how little they cared when they were in power. Why only in opposition has Alan Johnson finally decided to make some noise? He had far more power when he was Home Secretary……

Not everyone reads The Independent - so I hope The Indie and Dave Brown do not mind me posting this excellent cartoon!

Here is the original source from  The Independent

Hat Tip Beau Bo D’or - who knows a thing or two about satirical cartoons / artwork  – well worth visiting and bookmarking.

Rosh Hashanah, the beginning of the Jewish New Year, begins this Wednesday night.  And what could be a more appropriate occasion for Blawg Review—for us to pass judgment on a world of law blogging about law, justice and perhaps even mercy—than the Day of Judgment?  Lest anyone think that Rosh Hashanah is of mere sectarian interest, let such error cease.  For Rosh Hashanah is the Day of Judgment for all of humanity—even lawyers. Even judges.  Even blawgers!

Read

I read a lot of Blawg Reviews (well all of them for three years)  – this is a very good one.

I had an amusing weekend – and on Sunday a very enjoyable long lunch with @BabyBarista and @Oedipus_lex (Twitter monikers)  – with an old friend, Johnny Biltong,  arriving later.  This made it impossible for me to do my usual weekend Postcard from The Staterooms. Be that as it may…  my attention a few moments ago was taken up with two pieces of  writing raising law issues.

Independent: Think of them as the worst end of the press, disreputable and increasingly intrusive, and all in the name of what, exactly

and then…this…..from US law website Law.com

Tips on Becoming a More Effective Legal Writer  ?

Lawyers are famous for redundant writing and using long words where shorter words would suffice. In today’s practice, the written word is a lawyer’s prime currency. For the firm, its written work is its face to the world, and its reputation could hang on a phrase in any brief, memo or even e-mail. Thus, there can only be one answer to the question, “does good lawyering require good writing?” — a definitive and emphatic, “yes!”

The problem with lawyers writing, in a professional context, in a clear and concise fashion is that it could give some people the idea that lawyering is fairly easy – and that would not be a good thing in these dark and difficult times.  Mystery is all… The Royal Family knew this – unfortunately several members of the Royal Family appear to have run amok over the last forty years and the rest is history.

I particularly enjoyed this…from the same article.  I’m just glad that I was told the meaning of ‘elucidate’ some years ago …and I did like ‘emblematic of the legal profession’. I shall lose no time at all in shoehorning that phrase into a conversation in a bar near me, soon.

CLEAR AND CRISP THINKING

Good writing is a reflection of clear thinking, and it elucidates its conclusion with clear statements in logical progression. Good legal writing uses the simplest possible language and does not hide behind acronyms. That does not mean that all sentences have to be short, simple declaratory affairs — often, that is not possible. However, sharp, crisp writing can often convey complex ideas in an orderly and straightforward way, avoiding the rambling sentences that resemble paragraphs so emblematic of the legal profession.

Too many professionals use convoluted language to make their thoughts seem more impressive. As a result, lawyers believe they need unnecessary redundancies in order to make their writing “sound” legalistic. Don’t believe it. While flowery language might impress a client here and there, it will alienate, not impress, your most important and educated readers.

The first person to tell me in the comments section what *unnecessary redundancies* are… will get a round of applause from me!

While I admire *skeptics* I am NOT one…. I have found that *skepticism* can be a tool for kicking other people’s ideas without coming up with ideas… I would rather encourage debate… enjoy a wide range of perceptions and accept that some people are not persuaded by debate and discussion… and then go on twitter to see what the next bandwagon is

Hence my tweet earlier….

Nor…  @Humphreycushion….am I a *septic* – I accept that I can be *peptic*.

But the good news is that Liberals / Lib-Dems are measured… nice people and not buffoons… I never thought they were!

You may want to listen to the covert recordings… with Lionel Ritchie playing the part of a phone caller…hacking away on an old theme…

I’m sorry that there is no guest appearance from The Pakistan High Commissioner in the film or , indeed, any cricketers….On #Metgate #Hackgate -  it seems, with the NOTW covering 18 pages of their paper tomorrow on corruption in cricket,  they Coulson’t fit any other types of corruption in!

We shall find out when the papers hit the shops tomorrow!

And… you really should look at this post by leading Tory blogger  Iain Dale for balance.

“Andy Coulson is bloody good at his job. That’s why the likes of The Guardian, Alastair Campbell, Prescott and Johnson are doing their best to jump on the back of the New York Times story about an ex News of the World journalist who was sacked by the paper for persistent drug and alcohol problems. You don’t think he might have a grudge, do you?

They all want Coulson’s scalp. Well, sod ‘em.

Well… there we are… life in Britain goes on despite the credit crunch… etc etc etc….. and, in time, we shall see who is right… The Tories or the Wicked Witches from Narnia on the Left …who have been sitting in a cupboard for well over 100 days trying to elect a new leader….

In the interests of a rounded view – it is only right that I draw your attention to some world class thinking from…. Dizzy Thinks … or thinks he thinks?

And this from Iain Fale’s Diary….

• Pressure mounts as No 10 spin doctor’s ex-colleague speaks
• Tessa Jowell says phone was hacked 28 times
• Prominent figures to sue Met for lack of warning

Guardian

Guardian: Documents held by Metropolitan police suggest News of the World targeted former deputy prime minister

Channel 4 maintained earlier on twitter through Krishna Guru-Murthy that they were not running with this Prezza story because he was dealing with a Sunday newspaper…..  Who would have thought that such a thing was possible?

And… it will be interesting to see if… following  the endeavours of those who pushed this story (famous bloggers / politicians et al) …. to see if there is any *Evidence*….. Evidence is quite useful to the rule of law… and if there is… we should see it and act upon it…. if there isn’t.. well…. I leave you to draw your own conclusions on those who have pushed it / not pushed it

I don’t know… not being privy to these things…..

And… I suppose that we shouldn’t leave out the latest from the Labour Leadership election. Ed Balls… is, ineluctably, getting up David Miliband’s nose…. OK… I’ll get my coat…

Hat Tip @Noeticat on twitter for the pic

It may also assist if you have a kneejerking problem that you look at a medical bulletin issued by my cousin Charon MD only this evening.

Striking the brain of a twitter user with a blog post or a newspaper article or tweet  just below the cerebral cortex can stretch the mind of some bloggers/tweeters  beyond credulity. This stimulates an immediate desire to post a blog post that triggers an afferent impulse in a sensory nerve fiber of the femoral nerve leading to the lumbar region (L4) of the spinal cord of both the writer of the blog post and sundry readers of the tweets. Then (I’m afraid), the sensory neuron synapses directly with a motor neuron that conducts an efferent impulse to the quadriceps femoris muscle, triggering contraction. This contraction, coordinated with the relaxation of the antagonistic flexor hamstring muscle causes the leg to kick and all sorts of bollocks to be written on blog and on twitter.  The good news is….. that  this reflex helps maintain posture and balance, allowing one to walk without consciously thinking about each step or, indeed, anything sensible.

Charon MD

(After Wikipedia – to whom I apologise)

Guardian Exclusive: Education secretary had claimed that more than 700 ‘free schools’ could be established due to high demand

Being fair – I am a bit surprised. Gove seemed very sensible on Newsnight before the election – quite credible in a fantastically irritating way (until one compared him to Toby Young on the subject of education who is World Class when it comes to ‘opining’ on television).  This, after his recent humble reprise of Uriah Heap in The Commons -  but weeks after the Coalition Forces took power – is not that helpful to his future.  Laws – GONE.  Hague – I hope he does not resign – Gove? -  Chopping block job? Dr Spin Dr Coulson?  Well… twitter is ablaze with it… I don’t need to comment….

The Man of Law’s Portrait THE LAWYER 309: A sergeant of the lawe, war and wys,
310: That often hadde been at the parvys,
311: Ther was also, ful riche of excellence.
312: Discreet he was and of greet reverence –
313: He semed swich, his wordes weren so wise.
314: Justice he was ful often in assise,
315: By patente and by pleyn commissioun.
316: For his science and for his heigh renoun,
317: Of fees and robes hadde he many oon.
318: So greet a purchasour was nowher noon:
319: Al was fee symple to hym in effect;
320: His purchasyng myghte nat been infect.
321: Nowher so bisy a man as he ther nas,
322: And yet he semed bisier than he was.
323: In termes hadde he caas and doomes alle
324: That from the tyme of kyng william were falle.
325: Therto he koude endite, and make a thyng,
326: Ther koude no wight pynche at his writyng;
327: And every statut koude he pleyn by rote.
328: He rood but hoomly in a medlee cote.
329: Girt with a ceint of silk, with barres smale;
330: Of his array telle I no lenger tale. A sergeant of the law, wary and wise,
Who’d often gone to Paul’s walk to advise,
There was also, compact of excellence.
Discreet he was, and of great reverence;
At least he seemed so, his words were so wise.
Often he sat as justice in assize,
By patent or commission from the crown;
Because of learning and his high renown,
He took large fees and many robes could own.
So great a purchaser was never known.
All was fee simple to him, in effect,
Wherefore his claims could never be suspect.
Nowhere a man so busy of his class,
And yet he seemed much busier than he was.
All cases and all judgments could he cite
That from King William’s time were apposite.
And he could draw a contract so explicit
Not any man could fault therefrom elicit;
And every statute he’d verbatim quote.
He rode but badly in a medley coat,
Belted in a silken sash, with little bars,
But of his dress no more particulars.

The White Rabbit – Ian Tomlinson and an idiot pathologist…

I have had the pleasure of several evenings chatting about various matters with The White Rabbit – author and experienced barrister. It is rare for The White Rabbit to write about the law – but when he does – it is very definitely worth a look.  In this post he reviews the tragic Ian Tomlinson case – and the lack of a prosecution.

Read here?

1On the third day a dinner party  took place at Chelsea in London. Charon was there, 2and Cardinal Charoni Di Tampranillo and a few of his mates had also been invited  3When the wine was gone, Cardinal Charoni di Tempranillo  said to Charon, “There is no more wine.”

4“Cardinal, why do you involve me?” Charon replied, “My private delivery  has not yet come.”

5Cardinal Charoni said to the catering company waitress, “Do whatever he tells you.”

6Nearby stood a stone water jar, the kind used by the catering company for guests who cannot live without expensive water in bottles ,  holding from twenty to thirty gallons.[a]

7Charon said to the catering company staff, “Fill the jar with water”; so they filled it to the brim.

8Then he told them, “Now draw some out and take it to the Cardinal.”

They did so, 9and the Cardinal tasted the water that Charon had tried to turn into wine. And the Cardinal said..”LO…. it is time to phone Oddbins….. “

First Charon made his heaven & earth 2 The earth was without form and void, and darkness was upon the face of the blogosphere; and the Spirit of Charon was moving over the face of the waters. 3 And Charon said, “Let there be a wine bar over there; and… LO….  there was … which was great, so Charon went and ordered a bottle of Rioja. 4 And Charon saw that the Rioja was good; and Charon separated the Marlboro lights from the fully leaded ones he had picked up in a Chelsea nightclub  discussing God with Steve Hawking and Dickie Dawkins before the world was created . 5 Charon called the light’s Gold, and the fully leaded he called Marlboro Red. And there was evening and there was morning, it didn’t matter to Charon – he could drink and smoke any time he liked… and it was so…… 6