In January I noticed not all employers had yet “got it” about age discrimination. Now here’s more evidence, this time from an “executive search” company no less:
I suggest if they want to avoid breaching regulation 7 of the Employment Equality (Age) Regulations 2006, they should consider also looking for the next “bright middle-aged thing” or even a “bright old thing”.
In his piece on the “Bloody Sunday” Inquiry at the Guardian’s online law pages, Joshua Rozenberg reminds us how extraordinarily prolonged the inquiry has been:
Lord Saville’s report will be too large to publish in the traditional way and certainly too lengthy to read and absorb in the seven-and-a-half hours ahead of formal publication that has been offered to those most closely involved.
Nobody asked Saville to go into such detail. On the contrary, parliament told him that the subject of his inquiry was a matter of “urgent public importance”. That was more than 12 years ago.
And Saville’s report will be published some five years later than he had predicted. The supreme court judge finished taking evidence from all but a handful of witnesses in February 2004 and heard closing speeches in November of that year. He made it clear at the time he planned to deliver his report in the summer of 2005. Saville’s gross under-estimate of the time it would take to complete, for which he has never offered an adequate explanation, hardly inspires confidence.
He’s got a point.
I’ve been interested by a series of pieces musing on the political consequences of Gordon Brown’s decision to remain as Prime Minister for five days following the election – rather than resigning on the Friday. First to consider this was Toby Young in his Telegraph blog a couple of days later:
I’ve been puzzling away at the question of why Gordon Brown didn’t simply resign on Friday morning when it was clear he’d been comprehensively defeated in the general election. And the conclusion I’ve come to is that it was an error of judgment.
He goes on to argue that Brown was entitled to hang on, constitutionally, during the Con-LibDem talks – but not required to. I think he must be right about that. Brown could have resigned at any moment, and Toby Young thinks he fouled up tactically:
In effect, by waiting five days before resigning, and behaving in the way he did, Brown enabled Cameron to forge a deal with Clegg that has left him in a far stronger position than he otherwise would have been. Had Brown gone on Friday morning, the Labour Party would now be squaring up against a minority Conservative government. Such a government would have been weak and unstable, a far preferable enemy to the formidable Lib-Con coalition it now faces.
He argues that Brown’s carrying on gave Cameron time to conclude his deal, and that had David Cameron been summoned by the Queen on the Friday morning, he’d have had to form a minority government immediately.
Next to look at this was Tom Harris. His take is a little different, though. He’s a bit more critical of Brown in constitutional terms for hanging on,
Surely the correct constitutional course of action would have been to accept the will of the people and to have tendered his resignation to the Queen, who would then have invited the Leader of the Opposition to form a new government.
but he agrees an earlier resignation would have made David Cameron’s position more difficult:
Had the Tory leader suddenly found himself heading to the palace on the Friday afternoon, before he’d even had a chance to open up talks with Clegg, the pressure from his party to form a minority administration would have been immense – possibly even irresistible. In which case, we would now have a vulnerable, unstable Tory government, able to govern but not legislate and poised for defeat at any time in the next year.
Finally Mike Smithson at Political Betting yesterday saw a lot in Tom Harris’s argument:
If Cameron had been asked to form a minority government on the Friday afternoon then the whole negotiating environment would have changed and it is hard to see how the party would have agreed to any offer to the Lib Dems.
I’ve already said I agree with Toby Young about the constitutional position Gordon Brown was in; I disagree with Tom Harris about this. I can accept the argument that the Prime Minister has a constitutional duty to resign when it’s clear he cannot form a government; but I see no duty before then. It wasn’t clear Gordon Brown had “lost” until a “progressive coalition” became impossible.
The real trouble with the theory though is the argument that had David Cameron entered Number 10 on the Friday, he’d have been likely to form a minority government straight away. The Queen certainly wouldn’t have asked him to – and I doubt Mike Smithson really meant she would. One of the interesting things about the way the constitution works is that the Queen appoints a Prime Minister, not a government. Her appointment of David Cameron on the Friday would in no constitutional sense determine the political complexion of the administration he would then try to form.
Tom Harris of course puts his emphasis more plausibly on the political momentum that would have been caused by an early Cameron appointment: he’d certainly have been under pressure to form a minority government, from his own side. But I doubt that would have shifted the balance critically. The Parliamentary maths would have been the same, the political logic of a deal would have been the same, and there is no reason why Cameron could not have told the Queen of his intention to make a “big offer” and his aim of forming a stable, enduring government.
I see no constitutional reason why the Conservatives could not have spent the same five days negotiating with the Liberal Democrats after his appointment as they did before, and, with the risk of a revolving door and Gordon Brown’s still being recalled by the Queen, I doubt that calls of “betrayal” from the Tory right would have had any more purchase than they did as things actually turned out. Ministerial appointments could have waited, except for one thing: the 9 May meeting of EU finance ministers that Britain attended. Even that difficulty could have been overcome, the question of who would be Chancellor simply being brought to the top of the Con-LibDem negotiating agenda, or by an immediate or interim appointment.
So although this is an intriguing counterfactual, I don’t think Gordon Brown’s resignation would have changed this dramatically, except – had he gone, and the new Prime Minister David Cameron’s offer been rejected by the Liberal Democrats who then informed the Queen they wanted to negotiate with Labour, it’s not absolutely certain Mr. Brown would have been the right man for the Queen to recall – as opposed to Mr. Clegg himself, or Harriet Harman.
But the very prospect of this “revolving door” scenario shows why Gordon Brown acted properly – at least until the Tuesday evening. He wasn’t obliged to stay till then, but in my view this was the best course, constitutionally. First, because it wasn’t yet clear he himself wasn’t the person best placed to lead a majority in Parliament. Second, because until the real political succession is clear, some sort of caretaker government is in practice needed to govern on a minimalist, non-controversial basis, and the most effective caretakers are those who’ve just been governing full-bloodedly.
Professor Rodney Brazier in his book Constitutional Practice (3rd edition, 1999) proposed an approach to hung Parliaments which seems to me constitutionally impeccable, and which it appears was essentially followed this time. No doubt both the civil servants supporting the process and the Queen’s advisers were aware of his view. If an election resulting in a hung Parliament opened a variety of possibilities for coalition or minority governments, the Queen, he says, would be unwise to appoint a new PM immediately:
… it would be more prudent if, through the outgoing Prime Minister, the Queen were to tell the Leaders that if she were to receive evidence … of a copper-bottomed agreement on a majority coalition … together with an equally sound guarantee that the coalition government would not seek a dissolution within a reasonable time, then she would appoint the person agreed upon to be Prime Minister. The Queen should further stipulate that the package should be endorsed by the relevant Parliamentary parties … and also that the ultimate agreement should be made public … If the whole agreement on a majority coalition were achieved, then that fact would be communicated to the outgoing Prime Minister, who would see the Queen, recommend that she send for the coalition leader, and resign.
Not that the Queen has to follow the Prime Minister’s advice on who to appoint next; she doesn’t. But Professor Brazier’s suggested approach is so close to what actually happened that I can’t help speculating that the Cabinet Office and Buckingham Palace were following it. It goes further than the guidelines published by the Cabinet Office earlier this year.
My one query is whether Gordon Brown timed his resignation impeccably in constitutional terms. Conservative and Liberal Democrat MPs had met to consider the deal on the Monday, but negotiations continued on the Tuesday afternoon (after Labour-LibDem talks broke down) and I don’t think there were any further meetings of Tory or LibDem MPs until after Gordon Brown offered his resignation. So the question is: had Gordon Brown been told by 7 o’clock on the Tuesday evening that the coalition deal had been authorised (perhaps in advance by means of negotiating mandates agreed the previous day) by MPs of both coalition parties? If so, then what he’s reported to have said to Nick Clegg on the phone at about that time would be entirely justified. If not, then he’s open to the charge of having jumped the gun.
I applaud the decision of the government to publish a complete list of the names, salaries and job titles of everyone in the Senior Civil Service who earns more than £150,000. You can save the list by clicking here. There was a time when Conservative politicians would have called this an exercise in the politics of envy; I’m pleased they’ve moved on from that. I think this will inject a much-needed element of accountability into public service.
The most surprising revelation concerning lawyers is that no fewer than twelve members of the Office of the Parliamentary Counsel feature on the list, led by Stephen Laws at number 21, who is apparently paid £225,000. Parliamentary Counsel are the lawyers who actually draft Parliamentary Bills and the amendments to them. The total of twelve amounts to more individuals (on a quick count) than in any other department bar Defence. In an office of only about 60 staff, that’s pretty impressive or unimpressive, depending on how you look at it.
I should reveal an interest: I was once turned down for a job at Parliamentary Counsel, I think in 2000. Before long, I was happy I’d ended up doing other things instead (though I’m not so sure now, looking at these numbers). But think me a bitter wanned-to-be, if you like. I was also happy to drink their or the taxpayer’s Pimms when I was invited to the office’s garden party one year.
The job of a Parliamentary draftsman is a difficult and specialised one, but I’m afraid I don’t think these salaries can be justified – and certainly not the very highest ones. I note in passing that of the twelve, only four are women. In my not vast but real experience of working with Parliamentary Counsel, I found some of them very impressive, and good at working with lawyers like me who were advising ministers. The people I have in mind may recognise themselves if they ever read this. I think the office does a good job generally for Parliament and for the public, and that much criticism of its legislative drafting, mainly focusing on the claim that it should be in plainer English, is misguided. Many people in the office work very hard, no doubt. What I’m less sure about is that they work harder than many other government or local government lawyers, or that the highest paid of them are necessarily among the hardest workers.
The other legal listees are David Green, Director of Revenue and Customs prosecutions at the CPS, (number 46) who is paid £210,00, more than the DPP himself, Keir Starmer (number 45) who’s on £195,000. Those both seem to me unjustifiable salaries. The Treasury Solicitor Paul Jenkins (number 167) is paid £155,000 – his certainly should be the highest salary of any government lawyer – and Bruce Houlder, Director of Service Prosecutions in charge of courts martial (number 127) is on £150,000.
Finally, no less than seven Ministry of Justice officials are paid more than £160,000. They’re numbers 134 to 140, led by the Permanent Secretary Suma Chakrabarti at number 134, who’s on £180,000. Many lawyers will want to know which of them is responsible for delivering legal aid savings.
I’d like to see the end of the culture of excess at the self-rewarding top, not just in the public sector but everywhere. To that end, I hope this kind of transparency goes much, much further.
Former Solicitor General Vera Baird makes a strong argument at Progress online against the proposal to grant anonymity to defendants in rape cases. She makes the important points that the coalition has actually made the case for this proposal yet (I noticed that equality minister Lynne Featherstone signally passed on the opportunity to do so on her blog) and that the fear of stigma applies not just to rape cases:
There is no argument in the coalition’s announcement. What surfaces from time to time is that being identified with a rape causes immediate stigma which is irremovable even by an acquittal. No problem being named as a baby batterer, paedophile, robber of the vulnerable or murderer and few argue for anonymity for those. It is only public exposure to rape charges that do damage. One should ask Colin Stagg, acquitted of the killing of Rachel Nickel some years ago, for his views on that.
She goes on,
Logically, either we continue to name all defendants, as we have done for centuries, intending that justice should be done publicly, or we launch a wide-ranging debate to consider changing the system to give anonymity to every defendant.
I’m not sure we name all defendants in fact: there are cases involving children where reporting is restricted. But the point is a valid one. I oppose granting anonymity to defendants in reporting of all criminal trials (as I understand they do in the Netherlands) but if we did, we ought to grant it to all defendants without distinction, in serious and minor cases and including for instance murder, terrorist offences, child porn offences, false accounting (in which case the MPs currently facing trial in relation to expenses claims would be protected) and road traffic offences. At least, the trial judge should have the same discretion in every case. Stigma does not just affect men acquitted of rape.
Finally she makes the excellent suggestion that general agreement could be reached on a proposal to secure anonymity for all defendants before they are charged but not thereafter. That I think is an idea worth considering. It might help avoid the most dangerous excesses of the tabloids when someone is arrested for a notorious crime, ensuring fair trials and safe convictions.
The "Democracy Village" last Wednesday
Last week I briefly visited the “Democracy Village” on Parliament Square. My instinctive reaction earlier in the week was to support Boris Johnson and Westminster Council in their wish to move the protestors off the Square. As I wrote three years ago now,
I can understand why Liberty and others back Brian Haw, but I’m not really sure it is a fundamental right to be able to demonstrate wherever you want, however you want, at all times and continuously.
Nothing I saw changed my view.
It’s not just that I disagree with them; I probably do on almost everything, but that of course isn’t the point. I’m sure I’d object in just the same way if they were protesting for a pet cause of mine. Nor do I have a real problem with the camp being “an eyesore”. It’s not lovely (you can see more of my photos at Flickr) but it’s not as ugly as all that, either. Nor, finally, is it anything to do with the attitude of the protesters. Not all of those who’ve been attracted there are attractive characters: I’m not sure anyone in the media has yet noticed that this chap, who was filmed there by BBC London News last week, is the one who ruined the 2004 Olympic Marathon, disgracefully depriving Vanderlei de Lima of the chance of Gold, having almost put his death on a driver’s conscience the year before. But they’re not all like him, and when I was there on Wednesday they were neither friendly nor unfriendly, but simply let me be as I walked among them having a look and taking photos.
My difficulty is that this is much more than a limited protest. The protesters have effectively taken possession of Parliament Square, meaning that it can’t sensibly be used by anyone else for anything else – not by other protesters, for instance. If this were a time-limited affair – say for the Bank Holiday weekend – I might have more sympathy. But it’s not. The “villagers” intend to stay indefinitely – at least until all British soldiers are brought back presumably from Afghanistan. That amounts to enclosure of the Square by them for their own private use, regardless of the rights of others; it goes well beyond an exercise of the right to assemble and protest. As the banner says, at the moment they “rule” the Square, and I think they should be stopped.
I do think the Democracy Villagers have got the germ of a decent idea, though, to be fair. When they’re gone, Westminster Council might consider devoting at least part of the Square, some of the time, a to a genuine non-residential Democracy Village dominated by no group and open to all to engage in genuine discussion, education and debate in a friendly atmosphere. It’d have to be run quite brilliantly to avoid its being taken over by angry extremists and fundamentalists. But if it could be made to work, it’d be a really welcome innovation.
It’s of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. So said Lord Chief Justice Lord Hewart in 1923, quashing a guilty verdict arrived at by magistrates in private with their legal adviser, who had a conflict of interest.
The principle has two aspects. First, the justice system must be visibly free of bias. But second, and more fundamentally, the workings of justice must be seen in the first place. Only if justice is carried out publicly can we know it’s being done fairly. That’s why you can go into your local Crown or Magistrates’ Court any day, if you’re not working, and listen to proceedings. It’s why I think criminal trials should be televised. And it’s why I’m against the government’s surprising new proposal to grant anonymity to defendants in rape cases.
Actually, we should talk about the coalition’s proposal to “restore” anonymity to rape suspects – because we’ve been here before. In 1976 the Labour government legislated to grant anonymity to rape complainants, following the recommendations of the Heilbron Report. It was forced in committee to grant the same protection to defendants. But Margaret Thatcher’s government removed it in 1988 after the Criminal Law Revision Committee had concluded that the argument often made about equality between rape defandants and complainants was not valid “despite its superficial attractiveness”. That reasoning reflected Heilbron’s own earlier view that the right comparison was not between a rape defendant and alleged victim, but between him and other types of defendant. Even so there was an attempt to amend the government’s Criminal Justice Bill to retain defendants’ anonymity; among the majority who voted it down then were five MPs who are today ministers in the new coalition government, Francis Maude, Andrew Mitchell, Gerald Howarth, Sir George Young and David (now Lord) Howell. I hope they remain of the same view.
It’s sometimes argued that naming rape defendants means they’re not treated as innocent until proved guilty. That, though, is a misunderstanding of the presumption of innocence. It’s a vital principle, preventing the state from punishing anyone, for instance by imprisonment, unless a court is satisfied of their guilt. But it doesn’t mean, and never has meant, that nothing adverse should happen to you if you’re suspected of a crime. If it did mean that, no one could be arrested or questioned for any crime, since by definition it’s not been proved at that stage. Nor does it mean allegations must be kept secret.
But if it did mean either of those things – if the presumption of innocence really did require rape defendants to be anonymous – then the same, surely, would go for all defendants. It would apply not just to those accused of sexual or violent offences, but to alleged benefit cheats and drink-drivers. All are entitled to the presumption equally. Such an approach would utterly destroy the essential principle that justice must be done publicly. Our criminal justice system would retreat into secrecy just as the family courts begin to open up, and the absurd result would be that we’d have no idea which former MPs were facing charges in connection with their expense claims – if we knew that any were at all.
People rightly cry out for transparency and openness in criminal justice. Some even do so when, as in the recent case of Jon Venables, secrecy is a matter of life and death. I’m content that there be limited restrictions on public justice, in order to protect lives, to ensure trials are fair, to protect children and to protect rape victims. But public justice is too precious to make any more exceptions than are absolutely necessary. The government should think again.
The coalition’s “Programme for Government” published today contains at least one major surprise. In section 20 of the document relating to justice policy, on page 24, it says
We will extend anonymity in rape cases to defendants.
This is a controversial policy, and one I’m not sure is right. It’s true of course that a man’s life can be ruined by an allegation of rape, even if he’s acquitted in the end. Maybe that’s a worse problem than it is for those acquitted on other charges because of the sensational interest there can be in rape cases. But there’s a strong case against the change. I doubt very much that anonymity will much affect women’s likelihood to report rape cases overall, or the conviction rate. What it will do though is reduce the chance of publicity about one rape case triggering reports from women that the man accused attacked them in the past, and identifications by women who have reported a rape, but believe they now recognise their attacker having seen him in connection with another case.
The law of rape is a fraught area. The presumption of innocence must not simply be thrown out of the window in pursuit of convictions at all cost; but nor should wrong-headed extensions of the scope of the presumption be used as a barrier to investigating rape cases. The presumption of innocence does not require anonymity, and I’m not persuaded we should grant it.
What’s more extraordinary than the policy itself, though, is the fact that it’s been announced out of the blue as a definite commitment today, never having been mentioned in either the Conservative or the Liberal Democrat manifestoes. Where’s this suddenly come from? It is a hobby horse of one of the new Home Office or justice ministers?
This coalition will need watching. Are we going to have five years of unpredictable policy shifts like this?
At the end of my interview the other day with Charon QC, I spoke briefly about the appointments of the Law Officers – the Attorney General, Dominic Grieve and the Solicitor General, Edward Garnier – and suggested Nick Clegg had missed a trick by not insisting on a Liberal Democrat in one of these posts. I really do think that’s a mistake on his part.
As I’ve often said, political commentators tend to underestimate the importance of the Law Officers, thinking the Attorney’s job merely a technocratic consolation prize for lawyers not given a proper policy job. Iraq should have shown people how wrong that is. The government is bound by collective responsibility to accept Law Officers’ advice and act on it; their advice sometimes determines government policy, and is often a strong influence on it. Major fields such as European policy involve a large amount of legal content – George Osborne’s negotiating strategy on regulating hedge funds and the financial services industry will be significantly informed by Treasury lawyers’ view of the meaning of the EU’s proposals, and if he’s not content with government lawyers’ advice, the final view will come from the Law Officers. The Law Officers also resolve disputes between departments when they turn on legal issues – a role they may need to play more often when, say, Vince Cable’s department disagrees with the Treasury, or Chris Huhne’s disagrees with Transport or DEFRA.
All of which means David Cameron and the Conservatives are at a clear advantage in the coalition, holding both Law Officer posts. Had I been advising Nick Clegg, I’d have told him he needed a Liberal Democrat Solicitor General – Lord Carlile might have been an ideal choice had he been willing. I’d also have suggested the coalition agree that LibDem Cabinet ministers have a right to insist on joint, agreed advice of both the Attorney and Solicitor General before being bound, and that irreconcilable disagreements be sent for binding resolution by Treasury Counsel, James Eadie or Jonathan Swift.
As I say: Nick’s missed a trick.
Charon QC interviewed me on Friday about the new Conservative-Liberal coalition government and its special points of legal interest. We begin with the heated debate about the “55%” rule, under which the coalition proposes this should be a fixed-term Parliament, with a majority of 55% of MPs needed before any dissolution, a proposal I’m firmly against; we move on to discuss its proposals on civil liberties, including ID cards, CCTV and the DNA database; and finally we talk about law-related appointments of Ken Clarke as Lord Chancellor and Justice Secretary, and of Dominic Grieve and Edward Garnier as Attorney and Solicitor General.