A Labour MP will introduce a bill in the Commons next week to allow assisted dying in England and Wales. Unlike most attempts by backbenchers to change the law, this one may succeed. Its proposer, Kim Leadbeater, came top of the ballot for private members’ bills and the government has promised to allow time for MPs to debate it. I expect there will also be help from parliamentary counsel, the specialised lawyers who draft government bills.
At this stage, all we know about the bill is that it is similar to the Assisted Dying for Terminally Ill Adults Bill introduced in the House of Lords in July by Lord Falconer of Thoroton. That private member’s bill has not been debated in its current form and it may be supplanted if Leadbeater’s bill gets through the Commons.
I published a detailed analysis of the Falconer bill in August. Leadbeater is now under some pressure to broaden its scope — though that might limit her bill’s support. Yesterday’s Telegraph reported that nearly 40 Labour MPs think the proposed legislation should apply not just to the terminally ill but also to those “incurably suffering”.1
Sentencing
With MPs returning today after the main party conferences and perhaps the prime minister getting back on track after what a former Labour deputy leader described last night as “missteps” and “clunkiness”, we can expect to see more kite-flying in the coming weeks on the government’s planned review of sentencing in England and Wales. In my view, reforming sentencing is key to resolving the current criminal justice crisis — a crisis likely to be exacerbated by the lord chancellor’s decision to restrict the number of sitting days in the Crown Court.
In my latest column for the Law Society Gazette, I explore the government’s options.
Drabble retires
“Quite plainly, Richard is the best Supreme Court justice we never had,” writes Christopher Lockhart-Mummery KC in a festschrift published to mark the retirement of Richard Drabble KC. I suspect that “retirement” for this sprightly 74-year-old means no more than slowing down slightly — perhaps not taking on any new work — as he remains an associate member of Landmark Chambers.
The online publication — less than 100 pages — is a delight. “There may be more famous or more flamboyant advocates than Richard Drabble but there are few, if any, who are more committed, more diligent, more knowledgeable or more gently persuasive,” says Lady Hale in her foreword.
That was how he contributed to the development of public law in areas such as planning and social security. Take this example from David Blundell KC:
I recall Richard taking the Court of Appeal through a number of cases in which [the test for judicial review of the social security commissioners] had been developed.
Lord Justice Sedley intervened on the morning of the first day to say “Mr Drabble, arguing this case must be like drowning for you”. Richard paused and, for a split second, displayed the merest hint of puzzlement.
Lord Justice Sedley continued, “You see your whole career pass before your eyes”. Of course, it was true: Richard had been in nearly all the cases, developing the underlying principles gradually and by incremental steps.
Blundell began his career as one of Drabble’s pupils in 2002. “For anyone taking their first, tentative steps in the law in practice at that time, his was a name that inspired awe. How could it be otherwise as someone who had been instructed in the GCHQ case, that most seminal of modern public law cases?”
That case was decided in 1984 and I remember it well — though not as well as Sir Patrick Elias, a retired lord justice of appeal:
I first met Richard when we were both junior counsel on behalf of the unions in the GCHQ case. Richard was first junior and. I was second… I doubt whether a less experienced junior team has ever acted for a party in the House of Lords…
Our leader was Louis Blom-Cooper QC. He was a gregarious, warm and impulsive man, who combined his practice with academic duties, journalism and book writing. He had a fertile mind — too fertile, is my recollection. One of our more important functions was to dissuade him — tactfully if possible, but sometimes tact was difficult — from running some of his more outlandish arguments.
Drabble may not be as well known to the public as his book-writing sisters Dame Margaret Drabble, the late Dame Antonia Byatt and Helen Langdon. But, as an advocate, he is legendary.
One final festschrift anecdote, this time from Tim Buley KC. It’s about a leading case called Cart, now overturned. Drabble acted for the claimant.
Lord Justice Laws, who presided in the divisional court, was of course a man of immense intellect with a great grasp of constitutional law. At least in his later years on the bench, he was also a judge who, though not rude, could be impatient with counsel at times and who was not averse to allowing that impatience to become apparent in a way that might be intimidating to all but the most assured, or oblivious, of advocates.
When Richard wanted to take him to [a] line of cases, he forcefully expressed the view that this was not necessary and not a good use of the court’s time. He accepted the proposition that he thought Richard wished to establish, which was that judicial review had previously been permitted in [another] context, and saw no need to trawl through the cases to demonstrate that.
That was not the limit of Richard’s purpose in taking the court to the cases, which was to demonstrate more particular features of the reasoning, including the importance that judicial review had played in this context of developing the law and preventing the fossilisation of bad law at the tribunal level.
Richard’s quiet insistence that the cases needed to be looked at by the court provoked something of an outburst, words to the effect that he had heard that brevity was the soul of good advocacy and that it was a shame that more advocates did not realise that.
This was plainly intended as a strong steer about how Richard should proceed, and many advocates would have wilted under the pressure.
Most others would have failed to resolve the situation and aggravated the court by simply pressing ahead in the face of the court’s reluctance. Richard made neither of these mistakes. His response came after a short but pregnant pause:
“My Lord, I think I know that”.
There was just the faintest emphasis on the word “I”. Perhaps I imagined it. But in any case Lord Justice Laws did indeed know that Richard knew that, not least from cases where he had been against Richard when he was treasury devil. He paused in turn, before offering a climbdown:
“Yes, Mr Drabble, I know that you do”.
There were no further interruptions, and the court listened to Richard’s submissions with the rapt attention that is accorded to only a very few advocates by the senior judiciary. Insofar as the prior relationship between the advocate and the judge here played its part, that in itself reflected the trust which Richard had earned over many long years.
Update 1430: Landmark Chambers have now formally launched the festschrift.
A Lawyer Talks: my latest podcast interview will be released tomorrow.
There is also an analysis by the Society of Conservative Lawyers.
RICHARD DRABBLE
For what it is worth, I was the instructing solicitor in Cart. it was on my drafted JR application for Mr Cart that the case went eventually to the Supreme Court. The judgment of Laws LJ in the Divisional Court as to why we have judges and what is meant by a 'superior court of record' (R (Cart & ors, on the application of) v The Upper Tribunal & ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012).
Richard was a kind man and wonderful man to work with. He lead me in my first case in the House of Lords, namely Farley v Secretary of State for Department of Work and Pensions [2006] UKHL 31, [2006] FLR 12443, [2006] 1 WLR 1817 (I'll call (1)); though to get there we had to go through (2) Farley v Child Support Agency [2005] EWCA Civ 869, [2005] 2 FLR 1075.
The first Court of Appeal hearing was (1) Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 778, [2005] 2 FLR 1059 - probably my best ever day as an advocate in any court. I was before three Lords (Woolfe CJ, Phillips MR and Lord Slynn on his last day in any court). Mr Farley was successful. Then the SSWP noticed we had no right in law to have appealed to the Court of Appeal. That said, they wanted the point in issue in the Court of Appeal cleared up and thus to go to the Lords. Richard, whom I had retained by then - 'that sounds rather fun' - had himself been in a case called Chief Adjudication Officer v Foster [1993] AC 754 (for anyone still interested in all this). He was able to tell their lordships in Farley (2) in the Court of Appeal (two by now) that they could take from us an undertaking (for which exercise I think the SSWP paid) to issue a judicial review application which they would allow in prospect, and the SSWP application to appeal to the House of Lords could then proceed. How many advocates would have argued the original Foster case and known of it for the Court of Appeal in Farley (2)?
We lost in the House of Lords; but I can remember Richard all but telling their lordships to shut up. 'Will you please listen to me' he said, at one point, and in a very firm tone...
1. In a state of some trepidation I mention that I believe Lord Falconer to be of Thoroton, rather than “Thornton”. My spell check was most insistent that I also should type “Thornton”.
2. I applaud Kim Leadbetter’s initiative and wish her Bill well, subject to the inevitable devil in the detail. I do hope she can be successful also in resisting the blandishments towards encompassing also the “incurably suffering”. However unfeeling that may seem, I share the anxiety of many that it would give rise to an opening of a “Pandora’s box”, as I believe has tended to happen in other nations ahead of us in legislation over this anguished subject.
3. Please, pretty please, let the entire issue of sentencing NOT be relegated to the second division. I am already having waking nightmares over YET ANOTHER window of opportunity sliding shut. The LAST serious attempt to be wise and constructive about all this was, after all, in the EARLY 1990s.
AND: what about some RELATIVELY quick wins, for example, doing away with six months’ sentences, re-sentencing of IPP prisoners rather than yet more tinkering around and at least introducing more restrictions upon prison for shoplifting, perhaps up to a certain value. Joshua in his Gazette column is right: red necked States over sentencing in the US have HAD to temper ever longer sentences with sanity and here we have a virtue to be made out of a necessity with no prison capacity left. As Joshua says, the money thrown away for MOST of those counterproductively incarcerated would go a long way towards breathing life into a criminal justice system on life support. As a supporter -broadly- of our still new government, nonetheless if it is to be a former senior Parliamentarian for the sentencing review (where I have my doubts about that) of the two touted I favour David Gauke with Lord B- whatever the arguments for and against him-as Joshua says, still lugging punitive and sentence stretching baggage in his kitbag. Also how can it make sense for Shabana Mahmood to have reduced sitting days, given the parlous state of our system and scandalous delays over case disposals?