It’s not particularly uncommon for various forms of horror stories to start with a person waking up. 28 Days later is just one variation on a theme which reaches back to at least the War of the Worlds and but for my limited reading / watching of that particular genre, there are likely many hundreds of other exemplars. Apologies that I can’t recite an exhaustive list but I’m a jack of all trades and tend to look queerly at the specialist.
28 Days was the deadline the district judge declared yesterday for him to deliver his written opinion to the argument that was heard yesterday up at Liverpool Magistrates Court.
For the benefit of those who were not allowed into the public gallery, they restricted attendance to eight persons, I’ll give a quick summation of the principal issues that were raised.
A Bill
The Summons
Costs
The Tricky One
A Bill
This is a common bugbear of mine. When is a thing not a thing. To the barrister for Liverpool City Council apparently it is neither here nor there, which coming from a legal professional must have had his stomach in knots as the whole legal profession relies on clear definition. It’s why the best legal help you will ever get will be from someone who likely has a first class degree in English; clarity of expression.
The problem here is that (and this is true for the most part) we receive a council tax bill and not a council tax demand notice. A bill is legislatively defined in the Bills of Exchange Act 1882 and, to cut a long story short, it is a contractual agreement. Clearly council tax is not a contractual agreement, it is, and this is entirely true of all council tax legislation, a thing which derives its legislative authority from the LGFA 1992 which allows for a council to only issue a demand notice. There is a world of difference between paying for something that you have agreed to and paying something on demand; a thing which is not lost on the councils.
The expectation here is that, despite the barrister not giving a care for the clear fact that there is no legislative authority for the council to be issuing a bill, the judge can only, rationally, find the same.
The Summons
I’ll go out on a limb here. Not a single summons for the non-payment of council tax is being correctly issued (at least not in the last 20 odd years). The decision to issue a summons is a judicial decision, the issue is that up and down the country, council officers are emailing lists of the naughty people to the court and a Legal Advisor (formerly known as the clerk of the court) is sending the list back as approved. The council are then sending out the summons to the dissenters. A legal advisor is not able to do what they are doing, they are not bound by the judicial oath and should have no part to play in this process. Thus the summons is defective. In truth, despite its physical appearance it doesn’t technically exist as no judge has issued it.
Now, the friendly, carefree and word sloppy barrister is relying upon The Justices' Clerks Rules 2005 which gives authority to the Legal Advisors to do what they are doing. The problem with that is that nowhere, presently, does the authority exist for the transfer of a judicial function exist. It’s a naughty piece of paper that assumes an authority to confer a power that it does not have. Oops.
And so the expectation here is that, despite the barrister not giving a care for the clear fact that there is no legislative authority for the Legal Advisor to be authorising a summons, the judge can only, rationally, find the same.
Costs
This is a tricky one which ended up with the barrister being warned not to mislead the court; the back of his neck was rather red and bloated at this particular point of the proceedings.
For those of us who are in this particular camp we will, for a demand notice that has never been issued, receive a summons which has never been authorised, which will then carry upon it some arbitrary number of pounds as to costs. Now, the friendly, carefree, word sloppy and administratively laissez-faire barrister is informing the court that none of this really matters and that it is in the judges gift as to costs. Only the problem here is that it is not. The court has no discretion as to costs and that the complainant (Liverpool City Council) must provide the court with the evidence that any claim of costs is reasonable. Consequently as the council are just arbitrarily stating costs XYZ without evidence the court has absolutely no discretion and cannot issue any liability order.
And so the expectation here is that, despite the barrister guiding the court that it has discretion where it has none and for which he was duly admonished, the judge can only, rationally, find the same.
The Tricky One
Ultimately it all boils down to a simple constitutional question; can parliament impose their will? The judge looked to clarify the point we are asking him to give a response to. In respect of the constitutional argument we are advancing he asked whether we are looking for him to rule whether Parliament could or could not advance the legislation that they have and upon which the council are relying (albeit badly - cf: Demand Notice) in raising revenue. This was quickly clarified, Parliament can do whatever the hell it likes, the question is whether what they have done is lawful.
The judge was shifting, we were shifting him.
He wondered as to whether he had jurisdiction to weigh on such matters. He’s worried, he does, as we gently prompted him forward noting for him that this is precisely why our independent judiciary exists.
Now, the friendly, carefree, word sloppy, administratively laissez-faire and wholly out of his depth barrister is at this point, present and yet wholly absent. He simply cannot comprehend the nature nor the importance of getting absolute clarity on this point. The Local Government Finance Act 1992 is in existence, we aren’t arguing that, the question is, on what authority is it relying and does that authority have the right to impose a demand, its will.
We think not and have evidenced why we hold with this understanding to the court.
And so now, having administered a treatment that should help resuscitate this ailing patient, all we now have to do is wait for the bandages to be removed and trust that the light of day shines in.