Lord Pannick QC was in Hong Kong to discuss how Brexit is in danger of making the United Kingdom one country with no system. He delivered the Keynote Speech “Miller – The Judgment and Beyond” on Saturday, 2 December 2017 at the Brexit Conference “Impact of Brexit on the Development of Common Law, Dispute Resolution and Judicial Co-operation in Civil and Commercial Matters”. The conference was held at and organised by the Department of Justice. Lord Pannick commented on the decisions of the High Court and Supreme Court in R (Miller) v Secretary of State for Exiting the European Union. He also shared his views on the post-Brexit development of the legal system of the United Kingdom, having regard to the European Union (Withdrawal) Bill published on 13 July 2017.
The Hong Kong Lawyer was fortunate to be able to interview Lord Pannick. The following is an edited summary of the interview.
Early Life and Career
The interview began with a discussion of Lord Pannick’s educational background and what made him want to enter the legal profession.
“I went to Bancroft’s School in Woodford Green, Essex - a fee-paying school, but in those days the local authority paid for a few scholarship students, of whom I was one. My parents were not wealthy. My father owned a shoe stall in Romford Market, and my mother worked as a secretary in a local school. One of their main ambitions in life was to provide me with the chance to succeed. Then on to Hertford College, Oxford. I decided I wanted to be a barrister at about the age of 16. I would go to the Old Bailey to watch criminal trials.”
The discussion then progressed to the topic of legal practice encompassing a broad range of practice areas and how Lord Pannick became specialised in several areas of law, in particular, public law and human rights.
“I started off as a pupil in Chancery Chambers. I did not like the work. There was a lot of drafting variations to will trusts, with very little court advocacy. So I managed to transfer to public law Chambers as the pupil of Michael Beloff. Anthony Lester QC brought me into a case in the Privy Council while I was a pupil: about the constitutionality of a mandatory death sentence in Singapore. So my first client was hanged. I could only do better after that.”
Lord Pannick then responded to the question whether there was any area of law he found to be of particular interest and had yet to handle. “In theory it would be fun to defend in a murder case at the Old Bailey - but not fun for my client. So I stick to appellate advocacy on points of law.”
Lord Pannick was then asked about a comment he had made in 2013 that he would feel nervous when going into court as an advocate can never be sure about what will happen in court.
“There are very few good advocates who do not feel anxious before the case starts. A failure to do so often means arrogance, which can prove disastrous in court. Happily, the nervousness usually disappears once you start the case and the adrenalin kicks in.”
Apart from Brexit, Lord Pannick has also had many other fascinating as well as high-profile cases and spoke of his most memorable cases he had been instructed on.
“I have been fortunate to argue cases of real interest and importance not just in London and Hong Kong, but in many jurisdictions (Strasbourg, Luxembourg, Trinidad, Bermuda, the Cayman Islands, Gibraltar, Brunei, for example). I was even once briefed to speak as a representative of the International Basketball Association at a sports body hearing in Acapulco, Mexico (I was substantially shorter than the other representatives). Of my successes (I cannot bring myself to speak of my failures, from some of which the wounds are still raw) I most enjoyed establishing in the European Court of Human Rights that it was a breach of the right to private life for the armed forces of the UK to dismiss gay servicemen and women simply because of their sexual orientation; acting for Princess Diana in an Industrial Tribunal when she was sued by a domestic servant she had dismissed; acting for Debbie Purdy, in the last case before the Appellate Committee of the House of Lords before its replacement by the United Kingdom Supreme Court in 2009, and establishing that the Director of Public Prosecutions must produce guidelines on prosecutions for assisting in a suicide; and, of course, the Gina Miller Brexit case, where the Supreme Court decided in January that an Act of Parliament is required before the United Kingdom can leave the EU.”
The discussion then turned to Brexit, in particular, where Lord Pannick was the lead counsel for Mrs Miller in R (Miller) v Secretary of State for Exiting the European Union  2 WLR 583 in which he was successful in arguing that the Ministers could not notify the United Kingdom’s intention to withdraw from the European Union under Article 50 of the Treaty on European Union without express authorisation by an Act of Parliament before the UK Supreme Court. He illustrated the importance of the case.
“The Miller case was important because it reasserted Parliamentary sovereignty as the fundamental principle of the UK legal system, as of course, we have no Basic Law or other constitution. Ministers cannot change the law of the land by exercising the Royal Prerogative. The case is also important because it demonstrated that the rule of law, and the independence of the judiciary, apply in practice as well as in theory in the UK even in respect of the most contentious political issue of our generation.”
“Under the common law system, the Government cannot compel obedience to its views. It is a litigant in the courts, reliant on the skills of advocacy of its counsel, in Miller the considerable skills of James Eadie QC. An ordinary citizen - well, Mrs Miller is an extraordinary woman - is able to challenge the legality of government conduct on the most important issue of the day, and have the issues argued in public before independent judges who give a reasoned judgment.”
“The Miller case attracted enormous public attention. The Supreme Court broadcasts its hearings on the Internet. The viewing audience usually consists only of the relatives of the lawyers appearing in court. The Gina Miller case is the first to attract a mass audience. Every evening of the four day hearing, SkyNews produced a “highlights” programme (“will your Lordships and Your Ladyship please turn to Bundle 18, tab 199?”). A betting company opened a book on the result, the odds changing as the hearing progressed. I received a few e-mails from people who failed to understand the issues. I had “missed the main point”: the Queen had not been consulted, and so I should call Her Majesty as a witness. One anonymous correspondent expressed his or her views succinctly: “you are just a bunch of slimeball lawyers”. But these were, I think, atypical of public understanding of the legal issues. The publicity for the case did much to educate people about the virtues of our legal system.”
Lord Pannick was then asked about the impact of Brexit on the UK legal system as well as Hong Kong and its legal profession.
“It is very hard to assess the impact of Brexit because, at present, we have one country, no systems. The Government is unable to decide how it wishes to proceed. It is one thing to have difficulty reaching agreement with our EU colleagues. It is quite another to have a British Government so weak that it cannot reach agreement even within its own Cabinet.”
Further, “I doubt that Brexit, whatever form it takes, will alter Hong Kong and its legal profession. Hong Kong has its own developed legal system, skilled lawyers, and expert and independent judges led by an outstanding Chief Justice, Geoffrey Ma. Hong Kong law rightly has regard to jurisprudence in other jurisdictions - as does the UK legal system - but the development of Hong Kong law will be influenced far more by matters relevant to Hong Kong than by what sort of agreement the UK reaches with the EU.”
The discussion then raised the question as to whether the United Kingdom could withdraw the notification given under Article 50 and remain in the EU, at least until the government decides what it wishes to do.
“A nineteenth century British Prime Minister, Lord Palmerston, said that the answer to the Schleswig-Holstein question was known by only three people: one was now mad, one was dead, and the third person was Lord Palmerston himself, but he had forgotten it. The only people who know whether a member state can unilaterally revoke an Article 50 notice of withdrawal are the judges of the Court of Justice of the European Union in Luxembourg. And they will not be telling us the answer unless and until our government or Parliament decides that it wants to revoke the notification. As we lawyers like to say, “See you in court.”
Advice for Readers
The discussion then moved on to advice for readers. Lord Pannick was asked if he could go back in time, whether he would do anything different with regard to his career.
“There are many cases I wish I had argued differently. Robert Jackson, the US lead prosecutor at the Nuremberg War Crimes Tribunal, and a Supreme Court justice, said that there were three types of speech he had in every case. First, the one he prepared in advance of the hearing, logical and coherent, covering all the issues. Second, the submissions he made in court, disjointed, stumbling and inadequate. And third, the speech that went through his mind after the case had finished: with devastating points he should have made in court.”
Next, Lord Pannick shared some advice for advocates in Hong Kong who wish to pursue a path similar to his.
“My advice to aspiring advocates is that detailed preparation for each case is essential, and in court listening is as important as speaking. Your task is to persuade the court on behalf of your client, and you can best do that by taking note of the judge’s concerns and interests and doing your best to respond to them. Also bear in mind that a short presentation, provided it covers the relevant issues, is more likely to persuade than a lengthy speech which loses the attention of the judges.”
Finally, Lord Pannick was asked about how he would like for his career to be remembered when he finally retires.
“Few advocates are remembered. Submissions vanish into the air. I would hope that those who know me will remember me with affection as well as respect.”