From the possibility of GREXIT to the reality of BREXIT, four years that shook the European Union to its foundations

In May 2012 this blog predicted that Greece would leave the 'euro zone'. Four years later Greece remains very much part of the 'European Project' whilst the United Kingdom prepares to trigger 'Article 50' and head for the BREXIT!

This blog was launched in May 2012 and, in those early days. Greece led the daily headlines. The Greeks were looking for their second bailout in two years and the economy was in a mess. Many commentators predicted that Greece would soon leave the 'euro zone', and perhaps the European Union itself. Despite the usual complaints from some Conservative MPs it was assumed that the United Kingdom was very much a long term member of the Union. In January 2013 that assumption was 'turned on its head' when the then Prime Minister, David Cameron, announced his intention to legislate for (in the event of a Conservative majority government) an 'in/out' referendum on whether the UK would remain a member of the European Union. In May 2015 (against all predictions) the General Election produced the first Conservative majority government since April 1992. David Cameron kept his promise and, (following renegotiation of the terms of UK membership of the EU), a referendum was held on 23 June 2016. Against all predictions the electorate voted by 52% to 48% to leave the European Union. Cameron resigned and was replaced by Theresa May and the the new administration is now on course to trigger Article 50 of the Treaty on the Functioning of the European Union (Lisbon Treaty) and thus begin the legal process of the United Kingdom ceasing to be a member of the European Union.

Thus from the possibility of GREXIT (remember this phrase?) we have, in four years, moved to the reality of BREXIT. At the conclusion of this decade the United Kingdom (assuming no delays) would have exited a major international organisation and brought to an end almost fifty years of participation in the so called 'European Project'. Greece appears secure in the 'euro zone' (though the Greek economy is still arguably a 'basket case') and the aim of the remaining twenty seven member states of the European Union is to proceed to 'ever closer union' albeit without the contribution of the United Kingdom. How and why did we get here? This blog post aims to assist the reader in the seismic shifts that have taken place in just over four years.

The original posts

It is worth revisiting what this blog stated back in May 2012. Here are the posts.

Grexit: what a Euro mess!

The future of the Euro

Four years on

This blog post looks at where we now are, over four years on, and asks the question why GREXIT failed to materialise whilst BREXIT is now a reality. It will be argued that the European Union was determined to maintain the integrity of the 'euro zone' regardless of the consequences to the Greek economy. The decision by David Cameron, in January 2013, to announce an intention to legislate for an in/out referendum was reckless. Contrary to expert opinion the outcome (a vote to leave) was always a possibility indeed it was likely as ordinary voters (especially outside London, Scotland, and Northern Ireland) had become disaffected with political elites and this had not been recognised. Although notions of national sovereignty and national identity were contributing factors to the vote to 'leave' immigration was by far the key single issue. which determined the outcome.

The GREXIT that never happened

Cast your mind back to mid 2012. All the news was about the impending departure of Greece from the 'euro zone'. The Greeks were negotiating their second bailout and the elections were predicted to bring the far left to power; who were making clear that they were not interested in the draconian terms on offer by the European Union,. the European Central Bank, and the International Monetary Fund ("the troika"). Civil unrest in Athens was a daily occurrence, and most European media outlets openly speculated about the imminent ejection from the 'euro zone' of Greece, possible contagion to countries such as Italy and Spain, and even the very real possibility of Greece leaving the European Union. Some went as far as to speculate about a military coup. The term GREXIT entered the popular lexicon.

The elections of 2012 resulted in New Democracy taking power. This centre right party was supportive of the austerity measures demanded by "the troika" and accepted the tough terms of the second bailout. At this point the immediate crisis was averted and talk of Greece leaving the 'euro zone' or the European Union abated. Early 2014 was to lead to a third bailout and yet more talk of Greece being ejected from the 'euro zone'; however, the real crisis was to come in 2015. Following early elections the far left Syriza led by Alexis Tsipras came to power on a manifesto to renegotiate the terms of the bailout and demand less austerity. This demand to reject austerity was to be reinforced by a referendum in July 2015 in which the Greek electorate voted to reject bailout conditions. Despite this rejection the bailout conditions were eventually accepted and talk of Greece leaving the 'euro zone' has again abated.

Was this a rejection of the democratic will of the people? Even as far back as November 2011 a government, led by George Papandreou of PASOK (centre left party), was effectively forced from office when it tried to call a referendum on the original bailout terms. The Papandreou government was replaced by a technocratic government led by Lucas Papademos. Ben Crum of the Department of Political Science of the University of Amsterdam argued in his paper, "Saving the Euro at the Cost of Democracy", that the present course towards executive federalism could be justified for preventing euro dissolution and recognising the value of national self-government; however, it threatens to come at a democratic price. Judicial Cat takes issue with this analysis. Executive federalism and national self government are two different concepts. The collapse of the Papandreou government in 2011 and the effective ignorance of the referendum of 2015 are two examples of were national self governance has been dismissed in favour of measures (unsupported by the electorate) put in place to protect a supra national currency. And this is exactly why Greece did not leave the 'euro zone' and GREXIT remains but a hypothetical concept. The protection of the 'euro zone' was put above all other outcomes. Greece was never going to be permitted to leave as to do so would mean that the 'elites' had 'failed'. The 'euro' was to be permanent and if one nation could leave then this opens the 'flood gates' and leads to the possibility of more important economies following them. The threat of 'contagion' was too much and had to be averted. Therefore the 'elites' of Europe did everything up to and including ignoring the will of the electorate, and forcing democratically elected governments from power, to protect the so called European project.

Although Judicial Cat believed Greece would leave the 'euro zone' ultimately, with hindsight, it is possible to argue that Greece was never going to be allowed to leave, for fear of the precedent it would set.

The fear of a hypothetical GREXIT led to the 'elites' of Europe ignoring the now very real reality of BREXIT.

Why Cameron granted the referendum

Since the early 1990s the Conservative Party has been divided over the merits of the United Kingdom being a member of the European Union. Arguably disagreements over Europe led to the fall of Margaret Thatcher from power. The government of her successor, John Major, was paralysed by arguments over Europe and especially the ratification of the Treaty on European Union ("TEU") (Maastricht). Central to "TEU" was the introduction of European Union Citizenship and, along with the completion of the single European market, complete freedom of movement for European Union citizens. At this time the European Union (European Community as it then was) consisted of twelve nations. Expansion to fifteen nations occurred in 1995; however, it was the expansion in 2004 and the accession of eight countries from the former eastern block that radically altered the public perception of the European Union, and which would lead twelve years later to the decision of the UK electorate to vote to leave. 

David Cameron became Prime Minister in 2010 and had to find a way of containing the discontent of his anti European Union MPs, and the surge of the United Kingdom Independence Party. Public concern over unlimited migration was also becoming an issue with arguments about access to public services, and the alleged driving down of wages in the lower skilled sectors of the economy. To combat these concerns Cameron announced in January 2013 that, in the event that the Conservatives formed a majority government after the scheduled general election of May 2015, a renegotiation of the terms of UK membership of the European Union would take place followed by an in/out referendum by the end of 2017. The May 2015 general election returned the Conservative Party to power with a majority for the first time since April 1992. Cameron now had to make good on his promise.

Renegotiation of a not so impressive nature

Cameron secured next to nothing with his renegotiation. He went into the negotiations looking to curb freedom of movement, access to benefits, and protection from further 'euro zone' integration. What he got was no concessions on freedom of movement, an emergency break on access to benefits that appeared so complicated that many felt that the The Court of Justice of the European Union, or the European Parliament, could block it in any event, and some loosely defined 'protections' for countries outside the 'euro zone'. In summary critics of Cameron were not impressed. Yet, he went into the referendum campaign with all the polls, and most experts predicting that the 'remain' argument would win, and win comfortably. Apart from a 'blip' in early June 2016 the polls consistently favoured 'remain' and on referendum night itself, 23 June 2016, early predictions suggested 'remain' had won by as much as ten percent. On the morning of 24 June 2016 'leave' had won by four percentage points. The United Kingdom was now heading for BREXIT. So why were the pundits wrong and why does the political career of David Cameron now lie in ruins.

Not all 'experts' predicted a win for 'remain'

Denis Macshane, a former Member of Parliament, and Minister for Europe in the Labour government, wrote a book entitled 'BREXIT How Britain Will Leave Europe'. Published in 2015 Macshane argues that 'different tributaries, political, economic, much of the press, cultural, identity, and historical' will come together in 'one power confluence' that will lead to the UK leaving the European Union. Macshane also argues that a growing dissatisfaction with political elites merged with the question of Europe. Crucially Macshane suggested that in order to win the referendum Cameron would need to secure a major concession from the European Union, which would involve some control of entry of EU citizens who seek to live and work in the UK. Macshane was most accurate with his assessment of the arguments. And it is worth noting that Macshane is a well known supporter of the European Union. Simon Tilford of the Centre for European Reform in a web pamphlet entitled 'Britain, immigration and Brexit' (published in December 2015/January 2016) was categorical; namely, if the UK voted to leave the EU it would be because of hostility to immigration. So here were two experts who, it turned out, called it absolutely right.

Sovereignty influential, but immigration determined the result

Judicial Cat argues that the pundits got it wrong because they could not see outside of London. Within England & Wales only London (by region) voted to remain part of the European Union. London is not representative of England & Wales. Those voting in the provinces were fed up of uncontrolled migration, their fears that wages were being driven down, and access to public services curtailed. There was a residual discontent that so called 'elites' were not taking such concerns seriously, or were simply dismissive of concerns relating to migration as 'racist'. Arguably there was a desire to teach such 'elites' a lesson and, to this end, the electorate engaged with the catchy phrase employed by the official leave campaign, 'Vote Leave and take back control'. Concerns about national sovereignty were influential but ultimately the 'voter in the street' was less concerned about academic arguments concerning European institutions rather than the very visible presence of perceived uncontrolled migration affecting their everyday lives. Experts such as Macshane and Tilford saw what was coming. Exit the M25 area and the reality was that the electorate was overwhelmingly hostile to the European Union. Scotland and Northern Ireland were special cases in terms of access to European funding (Scotland and Northern Ireland) and the special relationship between Northern Ireland and the Republic of Ireland. The electorate wanted to see an improvement to their own lives and felt the only way to achieve this was to seek a referendum result, which arguably would enable the UK to take control of who had the right to live and work in this country.

Conclusion

This blog has argued that the hypothetical of GREXIT became the reality of BREXIT because so called elites disregarded the concerns of their own citizens. In the case of Greece the clear decision of the electorate to renounce austerity was disregarded in favour of continuing the 'euro zone' and increasing integration further. Governments were replaced and decisions of elections ignored. In the United Kingdom the concerns of the electorate outside London were ignored, ridiculed, and dismissed as 'racist'. In Greece the 'elites' succeeded and got their way. The United Kingdom asserted its sovereignty and the electorate sent a very clear message to the European Union that the electorate could be ignored no more. That is why, four years after Judicial Cat predicted GREXIT, instead we have the reality of BREXIT.  

 

'Annexation' of Crimea is no less than an attempt by Putin to reconstitute the USSR

Make no mistake 'armed men' in Crimea represent the gravest crisis in East/West relations since the end of the cold war

A revolution in Ukraine leads to the most serious geopolitical crisis in Europe for over 35 years. What does the west appear to be doing about it? Absolutely nothing. Many will argue that the west should not get overly involved; however, Judicial Cat argues that the apparent invasion of Crimea by troops from the Russian Federation is merely the latest stage of a longer term strategy by Vladimir Putin to reconstitute the Union of Soviet Socialist Republics in so far as actual territory and influence is concerned.

Situation in Crimea is straight out of 'Invasion 101'

It all started on the morning of 27 February 2014 when 'armed men' appeared to take over the Regional Parliament. The 'armed men' displayed no insignia but wore uniform and had equipment remarkably similar to that of troops from the Russian Federation. Events moved quickly with the takeover of two airports on 28 February 2014, the surrounding of a local Television Station, and (by the end of the day) reports of as many as 2000 Russian troops being flown in. Rumours of the closure of local airspace and the disconnection of telecommunications all added to the feeling that an invasion was well and truly underway. Late on 28 February 2014 United States President Barack Obama appeared to finally acknowledge the seriousness of the situation without giving any idea of what the response of the west would be, if anything. Judicial Cat offers an analogy. Imagine you are in the UK and wake up one morning to find (for argument sake) troops from the United States surrounding City Hall in London, the BBC, and maybe Heathrow airport. That would be a blatant breach of all agreements permitting US troops to be based in the UK. Why should it be any different for Russian troops based in part of Ukraine.

Putin's 'Real' Agenda

Let us not consider at the moment how Putin runs affairs in Russia. He is supposedly elected; however, it can be argued that the veracity of the elections in Russia are questionable at best. That is before we even consider the complete lack of respect for basic human rights within that country on a scale that would make any previous Soviet leader 'proud'. Instead consider Putin's background; namely, he is ex KGB and is reported to have stated that the breakup of the USSR was the single most disastrous event of the twentieth century. Russia considers countries such as Ukraine to be their 'near abroad'. In other words well within the Russian sphere of influence. Putin is alleged to not even consider countries like Ukraine to be 'real' or 'sovereign'. When considering an agenda one does not have to go much further than the 2008 invasion of Georgia and the subsequent occupation of South Ossetia. Although Russia was nominally led by Dmitry Medvedev at the time of the Georgian invasion make no mistake that event was Putin's call (who remained as Prime Minister). The pretext for that invasion was to 'protect' Russian ethnic 'citizens' who just so happened to have been fast tracked for Russian passports. The same modus operandi is in operation in Crimea today with reports of the Russian Foreign Ministry promising to fast track passport applications for Russian ethic 'citizens' based in that region of Ukraine. And on 1 March 2014 came reports of the 'regional leader' in Crimea inviting troops from Russia to protect the local population and institutions. It is a well tried and tested formula going back hundreds of years for any country wishing to legitimise what is a good old fashioned invasion and occupation of a region of another sovereign state.

Should Putin's Crimean adventure prove successful then where will he turn his attentions to next? That is why the current events in Crimea are dangerous and represent a major landmark in East/West relations.

A quarrel in a far away country between people of whom we know nothing

Students of history will recognise the above as a quote from former United Kingdom Prime Minister Neville Chamberlain in 1938. This was the reaction of the then UK government to the invasion of Czechoslovakia by Nazi Germany. Hitler, it will be recalled, was attempting to unite and 'protect' German speaking peoples. Within a year the second world war was underway when Hitler marched into a country for which the UK was not prepared to stand aside and allow to be annexed by a much larger bullying neighbour. And this is the problem with Crimea. A lot of readers will not realise that the UK as well as the United States of America are both bound to protect the territorial integrity of Ukraine by reason of being signatories to the Budapest Memorandum of 1994. Russia is also a signatory to this memorandum, which came about at the time Ukraine relinquished control of its share of the Soviet nuclear arsenal.

International lawyers will no doubt argue what exactly the signatories must do in the event that the territorial integrity of Ukraine is violated (which it already is) but it seems to Judicial Cat that, realistically, the UK and USA will not intervene militarily to protect Ukraine. Despite the assertions of many internet 'doom mongers' the west is not going to risk world war three over Ukraine. That being said the west must do something and the reaction must be strong.

What the west can, if anything, do

The problem with Putin is that he now has reason to believe that he can 'get away with it'. Nothing was done about the invasion of Georgia in 2008 and, in all probability, nothing will be done about Ukraine 2014. The only way to stop a bully (and Putin's Russia are bullies) is to standup to the bully and take it on directly. In summary Russia must feel the hurt were it will notice it most and that is economically. The west must give Russia a deadline to stand down the 'armed men' in Crimea or implement tough and immediate economic and other sanctions including freezing assets of Russian leaders, withdrawing visas from Russian citizens, refusing to deal with Russia in international organisations such as the G8 and generally treating Russia as an international pariah state.

The eastern flank of NATO should be bolstered and membership offered to states such as Georgia and Moldova. The west must send out a clear message that the expansionist agenda of Putin will not be tolerated any further.

Closing thoughts

Judicial Cat leaves you with this thought. Putin succeeds with the annexation of Crimea and decides, maybe some years later, that Russia needs to protect Russian speaking people in Lativa, Lithuania, or Estonia. The Baltic States are members of both NATO and the EU. At that stage there would be no discussions, debates about whether invasions are not invasions etc, there would be a major war and all that would entail. That is why this modern day form of 1930s style appeasement needs to stop and the west needs to put down a very clear line in the sand.

Thatcher: - getting the balance right! Speaking out as a child of the era!

She divided a nation but the post 1990 generation have no idea what Thatcher did for the UK in the 1980s

Your blogger was a child of the Thatcher era. Although born some years prior to her election as Prime Minister in 1979, Thatcher was the first PM your blogger had any memory of. The politics of the age were defined by her policies and, perhaps even more, by her personality. Almost a quarter of a century after she left office, and now even in death, the former Prime Minister arouses passions no other domestic political figure of the last 100 years comes even close to matching. Judicial Cat comments on her key achievements, and mistakes.

A lesson for those born after 28 November 1990

When the death of Margaret Thatcher was announced on 8 April 2013 the negative reaction from many was predictable. She was not universally admired, far from it. What was not so predictable and, in your blogger's view, almost ridiculous was the reaction of many twenty somethings; those who can have no memory of Thatcher's time in office. The generation born just before her resignation, or indeed some years later, can have no possible practical idea of her overall impact. Yet many revelled in the news of her death. 

Judicial Cat invites the post 1990 generation to imagine it is the late 1970s. There are no mobile phones, indeed if you had a landline phone you were considered 'affluent'. In order to actually get the landline phone one had to apply to the Post Office and wait around three months before it was installed. You had a choice of maybe three state approved colours for your telephone. No internet, indeed no personal computers. Three television channels, a national airline run by the government, the government of the UK run by Trade Union leaders  rather than the supposedly constitutionally formed government of the country. Depending on who was striking this week you did, or probably did not, have electricity running all week without interruption. Unless very affluent you did not take foreign holidays and if you did there were exchange controls regulating just how much foreign currency you could take out of the country. During the winter of 1978/1979, the streets remained uncleaned with rubbish piling up in Leicester Square, and the dead went unburied with bodies piling up in the mortuaries of Liverpool. In summary the UK approached the 1980s as the basket case of the west. This is the reality that Thatcher's critics conveniently seek to forget or claim to be an exaggeration; even those born some years after the events. This was the 'inheritance' Thatcher faced as she walked into 10 Downing Street as the nation's first female Prime Minister on 4 May 1979.

Key achievements 

Let us look at some of the positive achievements of her premiership. Judicial Cat would highlight the 'Right to Buy', taming the Trade Unions, and her uncompromising stance when it came to proposals for European Monetary Union (or the Euro in modern parlance). Right to Buy enabled those living in what we call 'Social Housing' to purchase the home they rented at a substantial discount. A whole generation who would never have made it onto the property ladder became home owners. Your blogger's parents were 32 when they proudly completed on the purchase of their social home. Without this help, these were people who could never have hoped to have owned property. Contrast this with today's, almost impossible challenge, for anyone under 35 to get on the housing ladder. Some argue this is the cause of today's housing crisis; however, Judicial Cat would disagree. Today's crisis is caused by the uncontrolled rents of the private sector and the failure of governments (including Thatcher's) to legislate for more secure tenancies within this sector. 

The Trade Unions had to be tamed. In 1974 the National Union of Mineworkers effectively brought down the government of Edward Heath. A decade later they were at it again this time under Arthur Scargill. A year long strike, called with no mandate from the union members whatsoever, was no less than an attempt to overturn the democratic result of a general election held less than a year earlier. The government had to make a stand and Thatcher was correct to do so. It is of some note that the Labour governments of Tony Blair and Gordon Brown made no attempt to reverse legislation outlawing secondary picketing and making strike ballots compulsory.

However, in your Blogger's opinion the most important legacy of Thatcher's time in office was also to lead to her downfall in November 1990. The nation owes her a debt of gratitude for having the foresight to warn of the perils of European Monetary Union. She correctly predicted that the idea would be a disaster. On this central issue she called it right and that has become crystal clear in the modern era as we witness the economic collapse of many countries within the eurozone. Some may argue that it was Gordon Brown who 'saved' us from the euro and he certainly played his practical part. That being said have no doubt about who had the foresight years before the project came to fruition, and that was Margaret Thatcher. On foreign policy she was right on all the major issues of the day especially defence and the retention of the UK's independent nuclear deterrent.

What she got wrong

Presentation and the perceptions she allowed to be formed were her weaknesses. She gave the impression of not caring for anyone outside of London and the South East. This was, of course, completely daft. Let's take Liverpool for example. Your blogger knows a little about this area of the country, having been born and brought up there. Liverpool had been in decline for some years prior to 1979; however, to this day Margaret Thatcher is blamed. In actual fact the start of Liverpool's regeneration was under her government with particular praise to Michael Heseltine. This message never got through and, perhaps, she was not interested; there were not many votes within inner city constituencies of Merseyside. This has allowed a complete myth about her to grow and be passed down the generations. Lots of people in Liverpool and other so called 'deprived' cities did benefit from her policies; however, this was never properly communicated or promoted.

Nationally, she stayed in office far too long and brought in daft policies like the Community Charge (Poll Tax). Again nothing wrong with this policy in principle, but the implementation was a dog's breakfast due to a failure to address the regressive nature of the duke paying the same as the unemployed citizen. Judicial Cat takes the view that she should have bowed out in 1989.

Some personal thoughts

As a youngster your blogger was politically aware from a very young age. The politics of the 1980s helped form many of the political views held by your blogger today. In particular it was Thatcher's merit based approach to life that was particularly attractive. She was a conservative politician who had made it to the top, not via the 'silver spoon' route but by sheer guts and determination. Thatcher had no time for the 'celeb culture', which has affected almost every aspect of British life since the late 1990s A tough no nonsense approach is what attracted your blogger to her politics. People claim she was divisive, yet with polices such as the assisted places scheme she facilitated those with ability and from modest backgrounds to attend some of the best schools in the land. University education remained free and social mobility improved. Contrast that with the government of David Cameron and his Liberal Democrat 'side kicks'. The modern day government is divisive, detrimental to social mobility, and interested only in the 'elite'. A cabinet of millionaires, mostly with members who have no idea of the 'real world'. That is a truly non progressive government, not the socially inclusive, widely supported governments led by Margaret Thatcher between 1979 and 1990. May she rest in peace!

Mantrav Libel Case: - self represented litigants, a sign of things to come?

Attempt by Travel Agent to silence critics ends with an order to pay a Defendant's costs

Your blogger has been involved in a case far removed from the normal everyday practice of landlord & tenant law. A 'strange' case recently made it into the Queen's Bench Division of the High Court at the Royal Courts of Justice in London. Judicial Cat shall refer to it as the 'Mantrav Libel Case'. The case was to last a little over a month; however, it offers an insight into the not so far off future where (due to legal aid restrictions) Self Represented Litigants will quickly become 'the norm'.

A little background 

The Claimant in the case was longtime travel agent Malcolm Hardy. Mr Hardy is 72 and specialised in arranging holidays for the gay community for many years. His business activities have been carried out under various legal structures; however, the common denominator is the name 'Mantrav'. Last year a dispute arose between Hardy and quite a few of his customers. In summary it is alleged that bookings (and payments) were taken for a resort by the name of Club Mancha in Gran Canaria Spain. Holidaymakers would arrive only to find the resort had no bookings and had never heard of the persons expecting to be accommodated. Disgruntled customers took to venting their concerns online. It has to be said that Hardy and Mantrav have consistently denied any wrongdoing. Opposed to that assertion are clear findings of fact in previous civil litigation involving Hardy, which describe him as being 'dishonest' and suggest a history of fabricating evidence. As a result of the online comment Hardy issued proceedings for libel in the Queen's Bench Division on 2 November 2012. He also sought a wide ranging and unprecedented injunction against the 5 Defendants (and 1 Defendant described as "John Does" an american term referring to 'persons unknown') to restrain them from publishing on any website worldwide the words "Malcolm Hardy", "Mantrav", and "Mantrav International" in any context. It was certainly an attempt to secure the most 'super' of the 'super injunctions'. Hardy also sought damages of circa £150,000.00 as part of the claim.

The Mail on Sunday covered the background to the proceedings on Sunday 2 December 2012: -

http://www.dailymail.co.uk/money/holidays/article-2241565/Travel-agent-sues-libel-false-malicious-defamatory-internet-holiday-reviews.html

Self Represented Litigants: - pitfalls for the courts and litigants as well as lessons to be learned

What made this case unusual was the fact that, initially, every party (the Claimant and all the Defendants) were acting for themselves, or 'Self Represented Litigants' as the legal profession now likes to call them. Your blogger was approached by one of the Defendants and your blogger's services were offered pro bono (without charge).

Upon reading the initial case papers something profound stood out. Here was a very serious case. One seeking substantial damages but, more importantly, an injunction with consequences for freedom of expression in the United Kingdom. These were not the celebrities who we hear about almost daily, stalking the courts, seeking to prevent reporting of their 'private lives'. Instead we had ordinary everyday people who risked being silenced by a businessman whose main aim was to gag any person who dared to complain about his alleged business practices. No legal aid was available for any party (and it never has been available for defamation cases in any event). Despite the serious nature of this claim the court was almost reduced to a farce.

The claim filed by Hardy did not even begin to disclose any reasonable cause of action. A cursory perusal of the claim would disclose that it was simply never going to be legally sustainable. A key document called the 'Particulars of Claim' was incoherent, rambling, and failed to disclose any positive case. Despite this the claim made it to a court room on two occasions and led to at least two of the Defendants incurring substantial expenses in terms of disbursements and/or loss of income. 

A substantive hearing before Sharp J took place on the morning of 5 December 2012. Over two hours of court time were taken up considering an injunction application, which as the learned judge made clear was 'totally without merit'. The injunction application was thus dismissed and the claim as a whole was 'struck out'. Thus, for now, the case has ended subject to any decision by Mr Hardy to seek permission to Appeal.

The key point of this blog post however is not the merits (lack of) concerning the claim but the very fact that it was allowed to be brought at all. There are supposed to be mechanisms in place within the Civil Procedure Rules 1998 to identify those cases, which are obviously without any legal foundation whatsoever. Such claims should be passed to a procedural judge to consider whether they should be 'struck out' pursuant to the court's own initiative. The point being that Defendants should not be put to the time and expense of needing to even reply to hopeless claims, which are not going anywhere. In the 'Mantrav Libel Case' Judicial Cat estimates about £10,000.00 in professional legal fees would have been incurred by just one Defendant in one month had specialist libel lawyers been retained. Even without this the Defendants incurred over £1,000.00 in expenses but were only able to recover a small fraction via an order for costs.

The courts must be ready to stop such hopeless claims

In an era were Self Represented Litigants will be increasing, the administration of Her Majesty's Courts and Tribunals Service need to be alert to the issuing of hopeless cases with no basis in law. Rules must be followed and such cases referred at an early stage to the judiciary with the aim of stopping them before one single Defendant is forced to incur the time and expense of dealing with a claim disclosing no reasonable cause of action. It is outrageous that Defendants are expected to pay court fees and incur the expenses of applying to 'strike out' such claims when provisions already exist for the courts to take the necessary action 'in house'. 

As indicated above Mr Hardy may yet appeal and, indeed, he may also simply re-issue his claim and the whole process of expense and time wasting in the court will commence again.

Troubling times in South Africa

30 killed in clashes between Police and striking miners

Amid the news overload in the UK about the Olympics and the pantomime of recent days concerning Julian Assange, a story started to emerge on UK News Channels yesterday, which is of much concern.

http://www.bbc.co.uk/news/world-africa-19292909

Judicial Cat does not know the details of the strike; however, the news has very sad echoes of the pre-1994 South Africa and the sort of news, which those of us of a certain age remember watching nightly during the worse years of apartheid. This is a country of particular interest to your blogger, having visited no less than twelve times in the past eight years. It seems hard to imagine any sort of circumstances were this sort of Police reaction can even begin to be justified. One only has to consider the historical significance of events such as the Sharpeville Massacre in 1960 and the Soweto uprising of 1976 to appreciate why these current events are, probably, sending a "chill down the spine" of many people living in modern day South Africa.

1994 had many hopes but are things now starting to deteriorate?

Your blogger first stepped foot in South Africa in July 2004. Ten years had elapsed since the end of apartheid and a new visitor found a country apparently at ease with itself celebrating a decade of democracy. To the visitor there is much to offer and the overall beauty of the nation cannot be underestimated. However, having travelled the length and breadth of that nation there is an unpleasant side, which appears to be getting worse. Make no mistake about the poverty experienced by the vast majority of South Africans. You can't escape race in that country so let's not "beat about the bush", the vast majority of non-whites still live in informal settlements (townships). Unemployment, even with the daft government policy of affirmative action, is still endemic. There is a middle class doing very well; however, that is the exception rather than the "norm". It is hardly any wonder that strikes occur. That being said whatever possessed the South African Police to open fire with live rounds? Let's not forget South Africa is a democracy with (in theory) some of the most stringent human rights laws on the planet. It is despicable that Police Officers, some of whom would have been subjected to the same treatment by the apartheid era police, have opened fire on their own people. This can only lead to a "slippery slope" of political violence.

The warning from "next door": - Zimbabwe

The current government led by the African National Congress ("ANC") have been in power since the end of apartheid in 1994. The ANC hold office in the majority of the provinces. An exception being the Western Cape under the administration of the Democratic Alliance and Premier Helen Zille. It can be argued that the government has failed to deliver on many of the promises made at the various elections held in the democratic era. Unfortunately, when a political party is virtually guaranteed power (and make no mistake the ANC fall into this category) a certain complacency creeps in. With no real accountability to the electorate a nation effectively becomes a one party state. What incentive is there for those in power to actually tackle the problems of poverty and unemployment, as well as exploitative work practices if they know that come the next election they will be back with an overwhelming majority! Unless the ANC start to address corruption, incompetence, and their own complancey then your blogger fears South Africa will have gone the way of Zimbabwe within the next fifteen years. That would be a sad indictment on that nation and a betrayal of everything that people such as Nelson Mandela, Walter Sisulu, Helen Suzman, and others fought for over many years!

Julian Assange: - UK Government in dramatic warning!

UK Government warns Ecuador of "power" to revoke diplomatic status of Embassy and thus "march in" and arrest Julian Assange

Of all the many things that have troubled your blogger since 11 September 2001, attempts to increase pre-charge detention to 90 days, stop and search without any need for reasonable suspicion, shooting dead an innocent person going about his daily business in July 2005, last night's news about a supposed warning to Ecuador to revoke the diplomatic status of the Embassy in Knightsbridge, London, has the potential to destroy the remaining international credibility the UK has in a way many have never known.

The Assange saga: - quick recap

Julian Assange runs Wikileaks. In 2010 thousands of diplomatic cables and other communications were leaked. Most, if not all, related to intelligence gathered by the various government agencies of the United States. Around the same time, and very coincidentally, Sweden requested the extradition of Assange to be questioned in connection with alleged sexual offences. A long legal battle in the UK reached the Supreme Court earlier this year and Assange's arguments were dismissed. In the circumstances Assange is liable to be extradited to Sweden. The Assange "camp" state that if extradited to Sweden it is likely the USA would demand his onward extradition over the Wikileaks saga. In June 2012 Assange sought refuge in the Embassy of Ecuador and applied for political asylum. Your blogger makes no comment on the merits of either the case in Sweden, or Assange himself. Judicial Cat is concerned with the "threat" made by the UK Foreign and Commonwealth Office ("FCO") to Ecuador. The summary of the "threat" being that the UK could invoke little known legislation passed in 1987 to revoke the diplomatic status of the Embassy and thus allow the Metropolitan Police to go inside using their normal police powers to arrest Assange.

Embassies are the "territory" of another country aren't they?

Many lay persons understand the concept that an Embassy or Consulate is in effect the "soil" of another country. In simple terms it is understood that, for example, the French Embassy in London would be France. That is a common misconception. In strict legal theory the embassy remains part of the territory of the host nation; however, it is subject to the concept of extraterritoriality. This means that the Embassy or Consulate is outside the jurisdiction of the host nation. The international legal framework governing all this is known as the Vienna Convention on Diplomatic Relations. The United Kingdom is an original signatory. In, "pounds, shillings, and pence", this means (in broad terms) that the law enforcement agencies of a host nation can't simply walk into an Embassy etc because they wish to arrest a suspect or carry out another law enforcement activity.

The siege of the Libyan People's Bureau in London: - April 1984

In April 1984 an event took place in St James's Square, London, which continues to have diplomatic repercussions to this very day. During a protest outside the Libyan People's Bureau (Embassy) shots were fired from inside the building and WPC Yvonne Fletcher was killed. A siege followed for a number of days; however, the Police were unable to enter the building and arrest the suspect(s) due to diplomatic conventions. Eventually diplomatic relations were broken and the Libyan Diplomats ordered out of the country. A few years later in 1987 Parliament passed a little known law, the Diplomatic and Consular Premises Act 1987. It is this law, which is the focus of the diplomatic, legal, and political row that is now "brewing". In summary the UK government believe they could use the provisions of that Act and revoke the diplomatic status of the Ecuador Embassy.

So can the government actually do this?

Judicial Cat believes that the government would be on very uncertain legal territory. Section 1 of the Act appears to give the Secretary of State such power and, on the wording (to the layperson) it seems all so simple! The fact is the provision is a discretionary power and must be exercised in accordance with normal public law principles. So any decision would need to be reasonable, exercised for a proper purpose, and proportionate. Section 1 (4) explicitly states that any decision has to be exercised in accordance with international law and Section 1 (5) gives some examples of the sort of circumstances, which may give rise to the exercise of the power. If the Foreign Secretary exercised the power it would be unprecedented in modern diplomatic history. Your blogger takes the view that, in these circumstances, it would almost certainly be unlawful due to the provisions of the Vienna Convention and the fact that the United Kingdom and Ecuador retain diplomatic relations. Without doubt the case would be heading for the Supreme Court of the United Kingdom and probably international courts. However, the political ramifications would be enormous. It would set a very dangerous precedent. If the government of the United Kingdom can just overturn diplomatic conventions and protocols then what is there to stop any nation doing similar to UK diplomatic missions overseas? Make no mistake if China had marched into the Embassy of the United States a few months ago when a chinese dissident was taking refuge, their would have been meetings of the UN Security Council called, sanctions imposed, and goodness knows what else! It seems to Judicial Cat that the stance taken by the UK Government is nothing more than a good old fashioned attempt to bully a "small" nation.

For what it's worth your blogger does not believe that the UK Government will violate the Ecuador Embassy; however, the silly letter containing the "threat" is bad enough! As a nation the UK will lose respect and be seen as the "poodle" of foreign governments. Further, in terms of proportionality, such actions would be absurd. If the UK Government were to take such action then it risks making the UK the sort of international pariah, the UK accuses nations such as North Korea and Iran of being! As a UK citizen your blogger would be ashamed of any such behaviour.

Tenants' Clinic: - can a Landlord just walk into your home

My Landlord used the spare key to enter my home when I was out

Judicial Cat is often asked whether or not a Landlord can just walk into a Tenant's home. Assuming that you are a Tenant with exclusive possession the "simple" answer is no. Indeed should a Landlord do this then it is likely to be trespass and a breach of the covenant of "quiet enjoyment".

The Tenancy Agreement states the Landlord can "inspect" on 24 hours written notice

This is a "favourite" clause relied on by Landlords and Agents. Many (in error) believe that they just need to serve a written notice at least 24 hours beforehand and then they can "walk in". Whilst there is a contractual provision the fact remains that, if you do not agree, the only thing the Landlord/Agent can do is seek to obtain a Court Order. Obviously if there is a genuine emergency threatening someone's life or "health and safety" then the Landlord/Agent my have a legal duty to enter the property to remedy any problem; however, it is for the Landlord/Agent to prove such grounds exist. In summary (for most cases) a Landlord/Agent needs a prior (agreed) appointment to visit for "inspection" purposes.

Quiet Enjoyment?

This is a legal term (a covenant) that is usually a clause in every Tenancy Agreement. If it is not then it will be implied (in other words assumed). Put simply this means you are allowed to live in the rented property without interruption from the Landlord and/or the Landlord's Agents. A Landlord who just lets themselves into the property without the Tenant's permission would usually be in breach of this covenant.

What can I do if the Landlord does just "come in"

You should write to the Landlord warning that any repeat incident will lead to you reporting the matter to the Tenancy Relations office of your Local Council. Also you could issue proceedings in the County Court for damages in respect of trespass, harassment, and breach of "quiet enjoyment".

Remember it is "your home"

Ultimately a Landlord needs to remember that the property is, for the duration of the tenancy, the Tenant's home! The Tenant has legal rights and exclusive possession. Landlords should be cautious before ever entering a rented premises unless they have prior agreement from their Tenant. Mistakes, as ever, usually prove costly!