Disproportion about proportion
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
11M ago
Steve Eason | CreativeCommons In my review of Adam Wagner’s Emergency State I talked about proportionality: Proportionality is a key concept in human rights law, and Wagner’s approach and my criticism of it may be explained by different instinctive approaches to proportionality. … Perhaps my background as a former government lawyer makes me tend to allow a substantial margin for a range of different policy approaches all to be justifiable, whereas some very human rights-minded lawyers can seem to think proportionality is a search for the one and only exquisitely calibrated ideal response, w ..read more
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Retained EU law: shredding the shredder
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
11M ago
 That video gives the impression, doesn’t it, that Rishi Sunak was going to “shred” retained EU law within a hundred days? That was certainly the sort of thing many Conservative members wanted to hear last summer. They believe, and believe they’ve learned from experience, that the best way of dealing with Brussels and its works is to passive-aggressively set a deadline after which we leave with No Deal, or upon which every bit of retained EU law goes up in a puff of smoke. They doubt these sudden shocks would be a problem; but anyhow, the threat of the cliff edge will concentrate minds. That ..read more
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Is a digital newspaper a newspaper? The “always speaking” principle
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
1y ago
A Supreme Court judgment recently held that a digital newspaper isn’t a newspaper. This was the case of News Corp v HMRC, in which the media giant tried to get the court to agree that its digital newspapers fell within the special zero rate of VAT that applies to “newspapers” under section 30(2A) of and Schedule 8 to the VAT Act 1994. You might think the answer is obvious: a digital newspaper must be a newspaper, just as a brown dog is a dog. That’d be a wholly linguistic approach, which I’m not sure works infallibly on its own non-legal terms (is oat milk milk?). But it’s certainly not good ..read more
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Emergency State by Adam Wagner: having and eating cake?
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
1y ago
Adam Wagner has written a very interesting, highly readable and thought-provoking book about law and the pandemic, based on his professional experience in a number of important court challenges to aspects of the restrictions, not just as an ordinary citizen. I’m very late to review it, but I recommend it. If you have an interest in law you really should read it. None of which means I agree with its premises, arguments or conclusions. What Wagner’s right about is the extreme departure from normal social life we experienced during the pandemic, and that Britain could have handled better the leg ..read more
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Letter from a Birmingham Jail
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
1y ago
I’m perhaps a few days late to commemorate the 60th anniversary of a great modern document—Dr Martin Luther King Jr.’s Letter from a Birmingham Jail, written in April 1963, but widely published a few weeks later. Written while he was detained in Alabama, having been arrested for taking part in an unauthorised protest march in breach of an injunction, it’s an eloquent argument for non-violent disobedience, and a classic of politically, or I suppose more accurately morally activist literature. What most interests me is King’s discussion of law, set out below. This is not only the best, most acc ..read more
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Laughing gas and the Psychoactive Substances Act
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
3y ago
It’s been reported that some prosecutions under the Psychoactive Substances Act 2016 have collapsed recently, at Southwark and Taunton Crown Courts. The Taunton case at least was about the section 7 offence of possession with intent to supply a psychoactive substance, and both cases related to nitrous oxide—or “laughing gas”. The cases have led to a predictable chorus of claims that the Act is fundamentally misconceived and unworkable. But is it? Or have two Crown Court judges got the law wrong? You can be only be guilty of the section 7 offence if what you intend to supply actually is a ..read more
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Will Brexit rights have direct effect? The Human Rights Act may show us the answer
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
3y ago
The government published its latest “future partnership paper” today on “Enforcement and dispute resolution”, and most of the attention it’s gathered—and the government’s spin—has been about its “dispute resolution” aspect. In other words, what role the European Court of Justice may have in the UK’s future relations with the EU. But I want to focus on the other bit—enforcement. I think the paper is at least ambiguous about the relationship it envisages between what we might call “post-EU law” and our domestic legal system. It’s a very interesting ambiguity. Both the UK withdrawal agr ..read more
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The Suez file: the Attorney’s letter to the Prime Minister, November 13, 1956
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
3y ago
The final document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 13th 1956 from the Attorney General, Sir Reginald Manningham-Buller, to the Prime Minister Sir Anthony Eden. The previous Thursday, the 8th, the day the government had survived a vote of confidence in the House of Commons. Eden had ordered a ceasefire from midnight on November 6-7. Ten days after this letter was sent, the Prime Minister went to Jamaica to rest; he resigned in January 1957. The Attorney’s concern was the legal positi ..read more
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The Suez file: correspondence between Sir Gerald Fitzmaurice and the Attorney General, November 6-7, 1956
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
3y ago
From the Attorney General’s 1956 Suez file I’m today reproducing (with permission of the image library of the National Archives) a letter dated November 6 1956 to the Attorney General, Sir Reginald Manningham-Buller, from the Foreign Office Legal Adviser Sir Gerald Fitzmaurice; and the Attorney General’s reply of the following day. Fitzmaurice tells the Attorney that he’d been asked by Foreign Secretary Selwyn Lloyd to comment on a letter from the Attorney (which must be his letter of November 1). Apart from saying that the views of the legal advisers here entirely coincided with yours as to ..read more
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The Suez file: Lord McNair’s letter to Lord Kilmuir, November 4, 1956
Head of Legal - Legal comment from Carl Gardner
by Carl Gardner
3y ago
Today’s document from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) is a letter dated November 4 1956 to the Lord Chancellor Lord Kilmuir, from Lord McNair. Lord McNair was a professor of law at Cambridge. He had served as President of the International Court of Justice until the previous year, and so was obviously one of the leading international lawyers of the day. He went on to be President of the European Court of Human Rights from 1959. McNair had spoken in the House of Lords in September, making clear his view that Egypt ..read more
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