NO “GRANDSTANDING” PLEASE: THE COURT IS NOT ASSISTED BY RHETORICAL POINTS
It has been a week for the courts commenting on advocates. Earlier we had complaints of advocates interrupting each other. Today we have complaints of “grandstanding”. Reminding advocates that their task is to deal with the legal issues at hand the avoidance of rhetorical points. These are the closing comments of the judgment of the Administrative Court in The Good Law Project, R (On the application of) v Electoral Commission & Anor  EWHC 602 (Admin).
The claimants sought a review of the Electoral Commissions alleged failure to oversee spending of the Vote Leave, and other campaigners, in the run up to the referendum on Brexit. The claimants were successful, in part, in obtaining commission. However the judgment had a sting in the tail.
NO GRANDSTANDING PLEASE – THESE ARE THE COURTS
Approach to the arguments
We feel obliged to mention some unsatisfactory aspects of the hearing before us so that they do not recur at the substantive hearing. The hearing of the renewed application for permission was originally listed for 22 February 2018 with a time estimate of 1 hour. The claimant sought an adjournment on the basis that a half day was needed, even when the court increased the time estimate for 22 February to 2 hours. The hearing was then re-listed for half a day on 15 March, which should have been ample time to determine whether the claim should be allowed to proceed to a full hearing. It was disappointing that in presenting the claimant’s case time was taken up, despite discouragement from the court, in making forensic points and even grandstanding, rather than focussing on an objective analysis of the legislation and the relevant questions of statutory interpretation. Similar criticisms can be made of the written observations submitted on behalf of Vote Leave. This only served to make the court’s task in determining whether the grounds raised properly arguable questions of law more difficult and time-consuming than it ought to have been.
It is well understood that the issues raised by this case have sensitive implications for participants in the referendum campaign and the general public. It should be equally well understood, however, that the court’s role is strictly confined to determining the meaning and effect of the relevant legislation and that the advocates’ submissions should therefore be similarly confined. For the substantive hearing the court would be assisted by counsel researching such matters as relevant case law on the language used in PPERA and EURA, antecedent legislation and admissible parliamentary materials. The court will not be assisted by rhetorical points which have no relevance to the legal issues and expects counsel to eschew such points in accordance with their duty owed to the court to act with independence.