As the first female chairman of the Scottish legal firm Balfour + Manson and a litigator whose Court victories have changed the law on a number of occasions, Elaine Motion was already one of the sector’s most important figures, North or South of the Border.
Then along came Brexit. She tells The Brief about some of her biggest cases, including her role in one of the most explosive legal challenges of recent decades.
Elaine Motion was the lead solicitor in the legal team that successfully argued in 2018 that the UK could, if it wished, unilaterally revoke Article 50 and cancel Brexit. At the time of winning this case she believed that it would be the biggest moment of a career that had begun more than three decades earlier.
“I thought that would be the highlight, sitting in the European Court of Justice with a room packed with hundreds of people,” the chairman of the Edinburgh, Aberdeen and Glasgow firm Balfour + Manson tells The Brief. “But it wasn’t the highlight because, of course, the following year we had the prorogation case.”
In late summer 2019, readers will recall, the UK Government attempted to prorogue Parliament, which would have meant MPs not returning from the summer recess until after the party conference season in October. At the time Boris Johnson’s Government did not have an overall majority, and could not rely on the support of a substantial number of its own MPs.
This was presented by 10 Downing Street as a procedural issue, and a return to the status quo that had persisted until September sittings were introduced by David Cameron. Opponents, however, saw it as an attempt to create the circumstances in which a no-deal Brexit could be pushed through with no opportunity for Parliament to intervene.
An extraordinary case
The internal Balfour + Manson litigation team working on the prorogation case was “tiny”, Motion says, which is how she prefers to operate. “I’m a real believer that if you keep it tight then you can get things done really quickly and really well, so there were only one or two other people involved internally in the nuts and bolts,” she explains.
Externally, however, there was a broader team at work, led by Motion’s longstanding collaborator, Aidan O’Neill QC (Scot.), QC (E&W), BL (Ireland), who practises out of Ampersand Advocates in Scotland and Matrix Chambers in London. “I have known him for decades and he is utterly brilliant,” she says.
“Because we have worked together for so long, we often don’t even really need to speak about what needs to be done – we just do it almost by telepathy.”
In addition to O’Neill, the team included junior counsel David Welsh, of Edinburgh-based Axiom Advocates, and Sam Fowles, who practises out of Cornerstone Barristers chambers in London. “I’m immensely proud of the team who worked on the prorogation case – everybody says this but it’s so true,” Motion continues.
The case itself, she says, was like no other on which she had worked in that the goalposts kept shifting, hour-by hour.
“It wasn’t that we simply had a clear argument at the beginning and it was the same argument at the end,” she says. “We had all the press stuff that was coming out, and what the Prime Minister was saying, documents produced and the actual attempt at prorogation itself.
“I was sitting at my desk and the phone rang at 7.45am, from one of the clients, who said ‘We need to have a talk because I think the Privy Councillors have gone up to Balmoral to see the Queen’, and I found myself on a five-way call with clients and other people, including senior and junior counsel, to work out what to do. The day before this the Government had said there was no risk of prorogation, and the very next day they were up at Balmoral asking the Queen to prorogue.
So we went straight into Court and we had another bunfight. It was extraordinarily fast-moving.
“Once we got into the Appeal Court it moved at breakneck speed and, blow me down, we won in our Appeal Court. It was one of those extraordinary moments in Court that I will never forget.”
The fight was not yet over, however, and the Government appealed to the UK Supreme Court. The Government lost.
The rule of law
“The Supreme Court were astonishing,” Motion says. “Lady Hale was amazing, and that’s another day I will never ever forget. I know it’s come in for some criticism from politicians but the bottom line is the Court are there to deal with the rule of law.
“They have to uphold the rule of law, and they have to keep the executive and the legislative elements of our tripartite system properly balanced. That’s exactly what they did, and it was extraordinary.”
Now, almost two years on, and with Brexit a historical fact, does Motion believe that the successful challenge to the prorogation of Parliament in 2019 has actually changed anything in public life?
“I would love to say ‘yes’,” she says. “But the current Government remain intent on the executive pushing and controlling Parliament as much as possible, and Covid has played right into their hands in terms of not being able to have a full bench of MPs to challenge them.
Has it changed things? I think it has, though probably not as much as all of us who believe in the rule of law would want it to.
“People know now that if there is that kind of behaviour again then it can be challenged. But, of course, the Government are now trying to legislate out these types of challenges."
“I fear for our democracy, to an extent, if that happens. But the ingenuity of lawyers should never be underestimated.”
Motion and her team’s instruction by Jolyon Maugham QC of the Good Law Project to act on the Article 50 revocation and prorogation cases did not come out of the blue. Rather it was based on a reputation built up over decades working on what Motion calls “grave cases”.
These included litigation that ended the practice of slopping out in Scottish prisons. A later case, in 2019, brought down the proposed “named person” legislation brought forward by the Scottish Government.
The latter measure would have seen a named person – often a teacher or health visitor – allocated to every child in Scotland, which could potentially have led to the wide sharing of information about children (and parents) among public authorities without their, or their parents’, knowledge or consent. “We were acting for the Christian Institute and took a challenge to that legislation, which we brought down in the Supreme Court,” Motion says.
One of her proudest achievements, though, relates not to constitutional matters or human rights but financial services: the 2006 case of Valerie Cuthbertson v Friends Provident, in which Motion acted for the plaintiff. In this case the insurer had refused to pay out on a critical illness policy because Mrs Cuthbertson, who suffered from multiple sclerosis, had not made a number of disclosures when she first took out the policy.
These disclosures might, with hindsight, have been related to the development of her, at that point undiagnosed, MS. Medical experts called to give evidence by Balfour + Manson argued, however, that it was unlikely any GP would, at the time the policy was taken out, have seen the undisclosed symptoms as warning signs pointing to a developing condition, and she was never advised of that possibility.
“We won that case and it turned Scottish, and ultimately – through legislation – UK, law on its head,” Motion explains. “It turned it in favour of the individual, so it hopefully helped hundreds of thousands of people get payments under their critical illness policies – so that’s one case that I am most proud of, which is under the radar most of the time.”
A trailblazing business
Balfour + Manson is able to take on challenging cases, Motion explains, because it is in the unusual position of having a leading litigation practice while not having many ties to public sector agencies. This means it can take on cases against government or public bodies without any conflict of interest.
Motion joined the Edinburgh office of Balfour + Manson in 1993, following a three-year stint practising in New Zealand. Prior to this she had worked for Thompsons Solicitors in Edinburgh, where she cut her teeth doing personal injury work, before moving on to McGrigor Donald, which has since merged with Pinsent Masons, to do commercial litigation work.
“These were deliberate choices – I wanted to make sure I gained as broad experience as possible,” she explains.
Soon after joining Balfour + Manson she became the firm’s first ever associate, and was appointed partner in 1997, while on maternity leave with her second daughter. She later became head of litigation and, in 2014, was appointed chairman – the first woman to hold this position in her firm.
For six years she carried out the role in an executive capacity before, at the beginning of 2021, handing over the reins to the firm’s senior management team and becoming non-executive chairman. She still acts as the external face of the firm, as well as chairing the partnership.
Balfour + Manson is one of the oldest firms in Scotland, dating back to 1888, and has a distinguished history in terms of gender equality. In 1949 it was the first Scottish firm to appoint a female partner: Ethel Houston, who prior to joining the firm had been one of the Enigma codebreakers at Bletchley Park.
The firm today has an equal gender split among its partnership. “It’s not been done deliberately, they just happen to be the right people in the right places,” Motion says.
“My fundamental principle is equality. I believe that if you promote people who are good at what they do then that will lead to the best outcomes all-round.”
Although she has stepped back from her executive role at the helm of the firm, Motion’s litigation practice continues to break new ground, and to attract headlines. One of her more recent cases involved acting as an additional party in litigation that successfully overturned the Church lockdown in Scotland: “That is the only case in Scotland that has taken down an element of Covid legislation.
So we’re still rolling on, and I’ve got a few other delights in the pipeline, with a bit of luck!
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