‘I am mid-sentence’: Brexit case barristers clash in House of Lords debate

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By Katie King on

Lords Pannick and Keen did not see eye to eye

There was a bit of an argy bargy in the House of Lords between top barristers and former Article 50 case rivals Lord Pannick and Lord Keen this week.

The back and forth came during a debate on a regret motion brought by fellow peer and QC Lord Marks — hat tip to BBC journalist Esther Webber for bringing it to our attention.

Oxford law graduate Marks believes the law in question, the Civil Procedure (Amendment) Rules 2017, will deter claimants from bringing meritorious environmental cases. He put forward his motion on rule of law, access to justice and international law grounds — three things we’re sure both Pannick and Keen know a lot about.

So knowledgeable are the pair that both starred in the biggest Supreme Court case of a generation, Miller.

Blackstone Chambers’ Pannick, representing claimant Gina Miller, stole the Article 50 show and became quite the social media sensation when the case was livestreamed to thousands. Keen, the advocate general of Scotland, wasn’t quite so well received, journalist and critic John Crace at the time noting:

Glaciers move more quickly than Lord Keen. There seems to be a significant timelapse between him having a thought and it getting uttered.

The two adversaries came face to face again in this week’s debate, Pannick succinctly sharing his fears the civil procedure legislation will damage access to justice. Then Conservative Keen, not quite so succinctly, responded with nearly 2,000 words on: infraction proceedings in the European Court of Justice, the Aarhus convention, the environmental costs protection regime, and more.

But just as Keen got onto the really juicy stuff — judges’ discretion to alter caps on damages — he made a little dig at his Miller rival:

The noble Lord, Lord Pannick, said that [the variation in the cap] removes certainty, suggesting that at any time a claimant could suddenly find that their liability for costs had materially altered without any change in circumstances. That is simply not the case. A good argument is never improved by being overstated.

Pannick, a crossbencher, tried to interrupt (“My Lords — ”), but was told by Keen: “I am mid-sentence but the noble Lord may come in in a moment.” Beef.

When Pannick finally got a look-in, he told his colleagues he didn’t want to overstate his case, but just wanted to make clear he’d understood the rules correctly. But when Keen went on to set out these rules “absolutely clearly”, more uncertainty persisted.

Solicitor, judge and silk Lord Thomas, bemused, jumped in, asking Keen:

The regulations as drafted suggest that there can be alteration depending upon the court’s view of the merits or demerits of the case as it goes along. Am I wrong in that?

Apparently so, according to Keen, who finished up another longish speech by saying: “I hope that the noble Lord [Marks] will withdraw his motion.” Did Marks follow Keen’s advice? Of course not:

I have heard nothing that persuades me to withdraw my regret motion and I wish to test the opinion of the House.

The motion was agreed 142 votes to 97 — a major embarrassment for the government.

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