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  1. Report of the case management hearing on 19 July 2016 of the legal challenges to Brexit

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    July 25, 2016 by IPAlchemist

    The IP Alchemist and a couple of his colleagues from EIP went to Royal Courts of Justice on 19 July to watch the hearing to give directions and timetable to the various legal challenges to how, following the 23 June Referendum, the Government may take a decision to leave the EU and notify this decision to the EU under Article 50 of the Treaty on European Union.

    The hearing was before Sir Brain Leveson, President of the Queen’s Bench Division, and Mr Justice Cranston, from 10am to around 11.30am.  Listed for Court 3, it was moved at the last minute to Court 4 because of pressure of numbers attending (both for the parties and in the public benches).

    Claimants:
    There were four main cases in existence or contemplation: Dos Santos (generally referred to by the name of the claimant), and Mishcon de Reya, Bindmans, and Croft (generally referred to by the names of the respective instructing solicitors). The Dos Santos case was the only one where a claim form had actually been issued and they wished to be the lead case (or at least joint lead case), but there was an issue of them not complying with the pre-action protocols (being the only reason why their case was ostensibly further advanced), and they were also seeking a protective costs order, which the Mishcon claimants were not. Dos Santos mentioned they would potentially withdraw their request for a protective costs order in order to remove this stumbling block to their desire to be the lead case. Despite this, it was decided that the Mishcon de Reya case, represented by Lord Pannick QC, would be the lead case. It was agreed by the Court that correspondence should have the litigants’ names redacted in order to avoid a continuation of the abusive and threatening communications that Mishcon and their clients have experienced as a result of this case (which had been notified to the Court by a letter from Lord Pannick QC). Sir Brian Leveson indicated that the Court took these incidents very seriously, and would be giving consideration to whether they may amount to contempt of court.

    All of the other cases were to be stayed, but permission would be granted for them to intervene in the main case. Dominic Chambers QC for Dos Santos appeared to indicate that, if not the lead claimant, his client would prefer not to intervene but to be heard as an interested party.

    The Bindmans case was organised and crowdfunded by Jolyon Maugham QC of Devereux Chambers – he was present at the hearing but not acting for any party (he tweeted for part of the hearing but had to leave to give a lecture).  Information about the case can be read on his blog here:

    https://waitingfortax.com/2016/07/08/article-50-our-letter-to-the-government/

    The Croft case is apparently on behalf of some UK citizens resident in France, presumably challenging the possible loss to them of EU residence entitlement.

    In addition there were two litigants in person, not present at the hearing, Hardy and Jacobson. At least one of these may be wishing to challenge the constitutionality of the referendum, in addition to the constitutional requirements for decision to leave the EU under Article 50.

    In view of the large number of claimants and potential claimants, it was agreed to use group email as the method of correspondence. Concern was expressed that email correspondence could lead to leaks and therefore potential further abuse. Sir Brian Leveson made clear that he expected confidentiality to be observed and would take a dim view of any of the material surfacing on any blogs.

    The defendant, originally assumed at least by the Dos Santos team to be the Chancellor of the Duchy of Lancaster, should in fact be the Secretary of State for Exiting the European Union (“Minister for Brexit”). The defendant was represented by Jason Coppel QC.

    Jason Coppel QC for the Government confirmed that the Government does not intend to make a notification under Article 50 before the end of the year. Accordingly, the hearing was set for mid-October. While not (as far as we understood) making a formal order, Sir Brian Leveson made clear that the Court expected to be informed if the Government changes its plans on timing. It appears to be assumed that there will be a leapfrog appeal, as Sir Brian Leveson believes this case meets the criteria to go straight to the Supreme Court, and no party challenged this. Sir Brian Leveson stated that the Supreme Court would be contacted immediately in order to ensure that there was space in the diary. The case will be heard by the Lord Chief Justice, but the other two judges are yet to be confirmed.

    Timetable:

    July 25th – deadline for Government to respond to the pre-action letters (so far the Government had not responded to any of the claimants, and Mr Coppel was unable to indicate whether any progress had been made on the responses yet)

    July 29th- Mishcon de Reya claim to be issued

    September 2nd- detailed response required from defendant

    September 14th- skeleton arguments from claimant must be submitted

    September 21st- deadline for submissions from interveners and interested parties (only if additional to points made by claimant)

    September 30th- skeleton arguments from defendant must be submitted

    October 17th- trial to be held for 2-3 days

    If the hearing needs to be moved, for example if Article 50 to be activated earlier (or later) than currently planned, then other dates can be moved accordingly.

    Sir Brian Leveson indicated [paraphrasing somewhat but more or less in his words]: You should have no doubt that the Court takes this case extremely seriously and will act expeditiously for its disposal; the Lord Chief Justice will require concision and expedition; and, concerning the timetable, there will be liberty to apply for variation but “not by much”, and case will “continue to be managed over the summer”.

    Good sources of information about these cases are the Jack of Kent blog (see for example here) and its author David Green’s Twitter @DavidAllenGreen; and also on Twitter Joshua Rosenberg @JoshuaRozenberg.  Other reports of this hearing are in The Guardian here and Full Fact here.


  2. The vigil for Orlando – thoughts from a gay man in London

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    June 15, 2016 by IPAlchemist

    I am certainly not the first person to write a piece like this and I am sure I won’t be the last. But the events of the last few days, and especially the feelings that arose in me when attending the Vigil in Soho after the Orlando shootings, have made me want to record something about how I see what it is like to be gay.  Here, now, in London, in 2016.

    I write “gay” because I identify as a gay man. I also identify as part of the LGBTQI+ community, but this is specifically about my story, and I will come to the issues within our community in a moment.

    Being gay puts you into a minority. We gays spring up around the country, and for many of us, like me, we don’t know any others for a long time. I heard words like “poof” in the schoolrooms tossed about like punches as clearly a bad thing, but it was a while before I had any sense of what it actually meant, and then a while more before that slow horrible realisation dawned that it possibly meant me. And, of all the people I knew, only me – no-one else seemed the same.

    For quite a few years I thought my otherness was something that might change, encouraged by well-meaning interventions from people (sorry, Mother) assuring me that being interested in girls was something that was normal to develop quite late. But by the time I was 19 I realised and accepted that gay was what I was. For several years before that I had the bizarre delusion that if I “did anything about it” my sexuality would become fixed as gay, but that if I didn’t perhaps I would slowly begin to fancy the opposite sex, as I had been taught. So I finally came out at 19, had my first “adult” consensual sexual experience (still illegal at the time, mark you, as the decriminalisation only applied to those over 21), and thought that was all there was to it.  I had “come out”.  It was done, there was no further step to be taken.  But it turns out, it’s a little bit more complicated than that.

    Gay men like me are a minority virtually all the time. Most of us spend most of our time overwhelmingly surrounded by people who are not as we are. I had heard of mythical places in America where there were not only gay bars but gay establishments of all kinds so that it was possible to live in an enclave where your sexuality was normalised. That was a long way from my reality in Yorkshire, Oxford, or even London.

    So what is the effect on us of being a perpetual minority? We dissemble, we protect ourselves, we are perpetually vigilant for how “safe” it is to let slip something of our true identity. We censor ourselves constantly. And we seek out, for perhaps just a few hours a week or a month, those places where we know we are safe being completely unguarded.

    Although that itself carries dangers that there was no-one there to warn me about. The gay scene holds out an image of the “gay lifestyle” where everyone is impossibly attractive, glamorous, stylish, promiscuous, wealthy – works hard, parties hard, and has it all. And drinks a lot. Of course. How else are the feelings of not belonging, shame, fear of discovery, and inadequacy to be silenced? I thought I wanted the mirage of the gay lifestyle, and I thought I could have it. It was not until many years later that I discovered that the image I had been peddled was an illusion, and a destructive one at that.

    But the gay scene for all its destructive qualities remains our lifeline and I still seek it out. For even now, after all the legal protections and freedoms that we have won in the UK, it is the only place where I am normal.

    Some of us, paradoxically, seek solace and comfort in institutions that actually work against our self-acceptance.  For example many of us embrace a religion that, however “compassionately” it may be put, tells us that our sexuality is deviant and unacceptable. Some of us consider priesthood.  A few actually get ordained.  But sadly I am coming to the conclusion that it is not possible to be a fully authentic self-loving gay man in most of the mainstream Christian denominations.

    Another thing we do and that I regret is to define ourselves, as I see it, to the level of “minimum unacceptability”. This seems to me to be based on the idea that if we present to the potentially hostile environment around us the minimum set of things about ourselves that might be problematic, we might be safer. So “I am gay but I am straight acting.” “I can’t bear camp people”. We distance ourselves to the point of demonisation from those whose dress, behaviour, sexual practices etc might be regarded as less “acceptable” than our own.  Please pick on that person, not on me. I used to. A lot. I try not to any more. I came to realise that we stand together, or not at all.

    A sad result of that is that our LGBTQI+ “community” sometimes isn’t actually much of a community as we struggle to define ourselves as less unacceptable than others. Gay men are quite prone to misogyny. We can be racist too. And we are inherently no more tolerant or respectful of transgender people than anyone else. So our “community” often feels to me like a disparate group of marginalised people, huddling together uneasily for mutual protection. Because there is safety in numbers, right? I now feel rather ashamed of the privilege I have enjoyed of being basically able to choose how much of my “otherness” I want to display at any time, while over the last decade or so coming to realise that others in my tribe are not able to hide as effectively as I could and so don’t have that choice.

    But although we are not at all immune to bigotry and intolerance, I would observe that most LGBTQI+ people have, because of the minority in which we find ourselves, circles of friends and companions of much greater diversity than if we had not belonged to our minority. Within our minority other boundaries are more easily transcended. We are people that otherwise would not mix.

    Fear, self-protection, safety in numbers. That permeates our whole existence. Even here in London my friends tell me that in many parts of our city they don’t feel safe holding hands with their partners, despite the legal protections that we apparently enjoy. We scan, we assess, and then we decide whether it is safe to act naturally or to hide.

    And so we come to the Orlando massacre. We feel shock, and sympathy for the many victims, even though they may be in another continent from us. We feel a sense of solidarity. We understand that, yet again, our community has been attacked by someone who hates us for whatever reason. Many of us who live in countries with some social acceptance and legal protections feel again just how fragile those protections are, how little they may actually protect us, and how easily they could be taken away again.

    And then we observed a narrative in the media – this is not about gay people. Starting with the incident on Sky news where Owen Jones was talked down for correctly asserting that this should be seen as a homophobic hate crime, and continuing with comments on social media, people, including those we counted as our friends, were trying to erase from the narrative that it was an atrocity against LGBTQI+ people, insisting it was about “ALL PEOPLE” and that the “wider context” that it fits into is one of islamic terrorism, or perhaps US gun control. For us, the “wider context” that it fits into is the one of the long history of persecution of gay people. We began to feel that if we did not make this event part of our history, other people were going to hijack it to make it part of theirs.

    Initially I thought it was only me that felt this way, but my friends who also went to Soho on Monday reported similar responses, and Douglas Robertson wrote a piece in the Independent that similarly resonated.  Many of us were angry.

    That is why I went to Soho on Monday, and that is why, two days later, I still feel very emotional and reconnected with some of the activism that I had when I was younger, that had recently begun to fade.

    So our safe places are important. The gay scene is under threat from rising property costs, redevelopment, and technology-driven social change whereby people can arrange to meet each other online rather than having to go to a real-world venue. But we need those places and this week many of us are remembering that again.  Our protections are fragile, and easily lost.  Our fight is far from over.