Lord Carey and “religion-sensitive” judges

April 19 2010

I agree entirely with Afua Hirsch’s piece in the Guardian today – at least on religitigation, Lord Carey and his call for “religion-sensitive” judges. She’s right: to create a panel of specially faith-sensitive judges would be a wholly retrograde step and needs to be opposed. If a judge gets the law wrong, you can appeal – whether he or she is Sikh, Catholic or atheist. Litigants of all faith and none need no less protection – but no more, either.

In fact providing certain litigants with special judges “sensitive” to their ideology, whether that be Islam, Marxism, veganism or atheism, would risk incompatibility with article 6 of the European Convention on Human Rights in combination with article 14. The article 6 Convention right guarantees the right to a fair trial; article 14 provides that

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion …

So giving certain groups an “especially fair treatment” in the courts would discriminate in their favour, and therefore against others in the enjoyment of the right to a fair trial – and Lord Carey’s proposal in particular would discriminate on grounds of religion.

In fact it would also involve a straightforward breach of article 6, too, in any case where a non-religious person was involved in litigation about religious rights against a religious believer, since the process would be biased precisely in its assumption that religious rights are worthy of special legal recognition, which is often the issue in such cases. Only a faith-sensitive and secularism-sensitive judge could fairly decide such a case, which would I think defeat Lord Carey’s purpose.

What worries me most is that Lord Carey’s intervention signals what may become a new tactic in religitigation: attacking judges personally. Look at this press release about his remarks from the Christian Legal Centre, which says

Lord Carey, the former Archbishop of Canterbury, and several high-profile Christian ‘victims’ who say that have lost confidence in the independence of the judiciary in England, will urge senior judges to stand down from future Court of Appeal hearings because of “disturbing” and “dangerous” rulings they issued in recent religious discrimination cases.

It may not just be, then, that Lord Carey and other Christians believe in general that faith-sensitive judges should be used. Some Christians concerned about their perception of anti-religious bias in the courts may try to get judges in individual cases to step down because they are insufficiently religiously sensitive, or of the wrong religion, or simply not religious at all.

Religious activists have been trying to advance the claims of religion through the courts for some time; so far, to be fair, they’ve been playing the legal ball. But they’ve not been winning – which is why they may now turn to playing the legal man or woman. I hope it doesn’t, but I fear that religitigation may be about to take a nasty, personalised turn.

2010-04-19T16:06:27+00:00Tags: , , , , |

Charon QC podcast: arresting the Pope, is legislation invalid, and a hung Parliament – who gets to be PM?

April 16 2010

Charon QC interviewed me this afternoon as part of his “20 minutes” series of podcasts. First we spoke about arresting the Pope following my post earlier today. The we moved on briefly to discuss the former UKIP MEP Ashley Mote’s idea that all legislation since 2000 is “invalid“, before finishing with a discussion of who gets to be Prime Minister in the event of a hung Parliament, something I may write more about soon.

I enjoyed talking to Charon as always – it’s a good discussion about a deadly serious piece of legal creativity and a wholly misguided one, and an exploration of some constitutional hypotheticals that may be about to come true. Listen to the podcast here.

On Ashley Mote’s idea, you should always be sceptical of a claim that Parliament “can’t” do something, or that something it has done is “invalid” – a type of claim that only makes any sort of legal sense if you mean Parliament has breached human rights or especially EU law, yet which seems to be coming increasingly often from Eurosceptics, who ought to support Parliamentary sovereignty, you might think. He argues that Letters Patent creating peerages can’t be amended by general legislation – but his only basis for this argument appears to be a written answer from Baroness Ashton which he’s misconstruing.  All she was saying was that Acts don’t have the effect of changing the legal effect of Letters Patent incidentally – it needs to be clear that Parliament does indeed intend to change their effect. She actually cited the House of Lords Act 1999 as an example of an Act plainly intended to change the membership of the House. In any case, Letters Patent are irrelevant anyway. The entitlement to sit  in the Lords is not created by Letters Patent but by the Queen’s writ of summons; the only question is whether she has failed to summons anyone qualified to sit. But the House of Lords Act 1999 makes clear the old hereditaries are no longer qualified. Plus, he’s forgotten the enrolled bill rule in Wauchope and in Pickin. The courts wouldn’t entertain any legal challenge to Acts of Parliament based on arguments like his.

2010-04-16T17:43:22+00:00Tags: , , , , , , , |

Noli me tangere: why you can’t arrest the Pope

April 16 2010

I’m pleased that Richard Dawkins and Christopher Hitchens are raising the question of the Pope’s potential legal liability for his apparent role in allowing the abuse of children by priests to continue by failing culpably to take action against them. The key evidence against the Pope is the 1985 letter he wrote declining to defrock Stephen Kiesle, who had raped children.

I admire both Dawkins and Hitchens immensely, and agree that the Pope should be held accountable for his own actions and for the policies of his church. I support their efforts to have him subjected to international law in just the same way as any ruler. And few things give me greater pleasure than the knowledge that, although baptised and confirmed in the Church of Rome, I am now excommunicated from it. I hope I’ve made it clear that I am no fan, and no defender, of the Pope. But I don’t see how he can be arrested or put on trial when he visits England later this year.

Geoffrey Robertson QC, who with Mark Stephens is considering possible legal avenues of redress, places great emphasis on the question of the Pope’s immunity as a head of state, arguing that it does not apply, either because the Vatican is not a state or because in any event, there is no immunity from prosecution in the International Criminal Court. I think he has a decent argument on the first point, and he’s right on the second – see article 27 of the Rome Statute.

But before any question of immunity arises, the prior question is whether there’s any offence for which the Pope can be arrested or with which he can be charged in the first place. Only if there is does he have any need of immunity.

The starting point must be to ask whether he might have committed a crime against humanity as defined by article 7 of the Rome Statute. The Pope could potentially be liable under article 28 as Kiesle’s “superior”

a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i)     The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii)     The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii)     The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

But what crime against humanity? Article 7(1) defines a crime against humanity to include rape, sexual violence or other inhuman acts of a similar character

committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack

and article 7(2)(a) makes clear that a “widespread or systematic attack” means

a course of conduct involving the multiple commission of acts … against any civilian population, pursuant to or in furtherance of a State or organizational policy.

But was child sex abuse the Vatican’s organizational policy? According to the explanatory memorandum to the Rome Statute (as quoted by Wikipedia – I can’t find it online) crimes against humanity

are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

So there may be an argument that by in effect tolerating acts which were part of a consistent pattern of inhumanity committed by people liked by their common vows and vocation, Pope Benedict has crossed the article 7 threshold. It’s very far from clear, though. In fact as Paul Behrens has argued, it’s a bit of a stretch.

What’s more, the Rome Statute, signed in 1998, only came into force in 2002 – and article 24 makes it clear that there can be no criminal liability for conduct committed before then. So the ICC could only act in respect of anything the Pope did long after the “Kiesle letter”.

In the absence of a request from the ICC to arrest the Pope, what other possibilities are there? First, and most obviously, another state could request his extradition for offences under its jurisdiction, in which case the police here might be able to arrest him and put him before a magistrate. If a state did make a request, he might have need to worry. But no state has requested his extradition, and there is no European Arrest Warrant against him. So that won’t work.

Might he have committed an offence under our own law?

Crimes against humanity committed here are an offence here under section 51 of the International Criminal Court Act 2001, and importantly under section 52 it is also an offence in England and Wales to engage in conduct ancillary to a crime against humanity committed anywhere. But in either case, the offence can only be committed either by conduct in England and Wales, or else by a British citizen or resident abroad. And the provisions only apply to conduct that took place after 2001 or (under the new section 65A(3) and (6) inserted by section 70 of the Coroners and Justice Act 2009) at the earliest 1991. Again, therefore, the Pope seems to be in the clear, at least as regards any potential offence disclosed by the Kiesle letter. If that weren’t enough, section 53(3) makes it clear you need the Attorney’s consent to prosecute.

At this point, I can hear some readers thinking, how come a warrant was granted recently for the arrest of Tzipi Livni recently, the former Israeli foreign minister? The key difference in that case was that the warrant was sought in respect of an alleged offence under the Geneva Conventions Act 1957, which provides for universal jurisdiction. A war crime under that Act can be committed by anyone, anywhere. Whatever else the Pope might be guilty of, it isn’t war crimes.

The final legal avenue might be the legislation criminalising sex offences against children abroad. Section 72 of the Sexual Offences Act 2003 (as substituted oddly enough by section 72 of the Criminal Justice and Immigration Act 2008) makes it an offence to aid or abet sex offences against children abroad – but only since the original Act came into force in 2004 and again, you can only commit an offence under this section if you are, or (in the case of acts committed after the 2008 amendment came into force) subsequently become a British citizen or resident. So again, far too late for any offence allegedly evidenced by the Kiesle letter, and not applicable unless the Pope moves here.

As I’ve said, Geoffrey Robertson’s argument about state immunity seems to me reasonable – if the Pope ever did need to rely on the defence, he might well fail either because the Vatican isn’t a state in international law or (more likely) because state immunity is no defence against crimes against humanity or similar gross violations of human rights. The point, though, is that the Pope doesn’t have to rely on state immunity: there’s nothing he needs to be immune from. If Mark Stephens and Geoffrey Robertson can come up with anything, I’ll take my hat off to them. Of course I’ve only covered the law of England and Wales, and the Pope will be visiting Scotland too – if I find any significant difference in the law there, you’ll be the first to know.

Richard Dawkins isn’t going to try to arrest the Pope, and I’d advise anyone else against an attempt – they might well commit a common assault. I suppose he ought to turn the other cheek rather than press charges, but I wouldn’t bet on it. Anyway, there’s little prospect of his being held in the Tower of London.

Noli me tangere, the Pope might legitimately say.

2010-04-16T16:09:14+00:00Tags: , , |

The Tory legal bits

April 14 2010

Following my post on the “legal bits” of the Labour manifesto, here’s my analysis of the most important Conservative proposals of particular legal interest. I warn you: this is a long one, and needs sub-headings.

Constitutional law

On the constitution, the Tories promise that

A Conservative government will change the law so that never again would a government be able to agree to a Treaty that hands over areas of power from Britain to the EU without a referendum. That would include any attempt to scrap the pound for the euro

which seems to me to go further than is sensible. I can see that the transfer of power to the EU is a problem in the view of Conservatives (who now seem overwhelmingly Eurosceptic). I also think there shouldn’t be treaty change in the next Parliament, since the EU has just had what its leaders sold as the one big necessary treaty change for the foreseeable future. But this proposal refers to the indefinite future, and would require a referendum even for any small transfer of power that we can’t imagine now and that everyone in the UK agreed with. What’s more, since the Tories are not proposing any sort of procedural entrenchment of this law (for instance by saying only a Parliamentary vote of 75% could amend it, an approach that would be highly constitutionally controversial), a future post-Cameron Europhile government could, legally, simply repeal it first, then transfer power to the EU without a referendum. In my view the entire proposal is a misuse of legislation for the purpose of declaring political intent and trying to box in future governments politically – and a policy which will reduce the UK’s seriousness as a negotiator in Brussels.

A Conservative Government will also introduce a United Kingdom Sovereignty Bill, to make it clear that ultimate authority over our laws stays in this country

This, as I’ve written before, is a bad and entirely misguided policy. Today’s Conservatives seem to think this country has a difficult legal relationship with EU law or that we’re somehow more open to attack from the EU law virus than, say, Germany is; they want some sort of “firewall”. In fact our law works well with EU law, and we’ve not had the problems Germany has had in marrying national and EU law, difficulties resulting from its written constitution and which have led it, for instance, to be keen on the EU Charter of Fundamental Rights as a means of ensuring EU law is very visibly respectful of German constitutional rights. A sovereignty bill is an unnecessary waste of time if (as I suspect) it has no real legal effect, and dangerous if it does have any. A real minus for the Tories, this one.

The Conservatives would

Replace the Human Rights Act with a UK Bill of Rights

a half-baked policy which has never been sufficiently explained and which I don’t think the Tories themselves yet understand. Dominic Grieve has been saying there is no plan to resile from the European Convention on Human Rights itself, and has been doing an impressive job of edging this policy towards coherence. My impression is that Conservatives do not want simply to repeal the HRA – they want a tool that will somehow “interpret” the Convention rights in a British way and even add to them. I can only wait to see what the actual plan is though, if they get in. In my view what they need to do (I don’t agree with it) is to repeal section 4 of the Human Rights Act, so that courts can no longer declare legislation incompatible with the Convention rights, and amend section 3 so as to weaken the obligation to interpret legislation compatibly with the ECHR, for instance by limiting the obligation so as only to apply where legislation is ambiguous in the first place. I imagine they’ll also want some sort of provision telling British judges to apply Convention rights having regard to common-law traditions of liberty and so on. Dominic Grieve is welcome to send me a consultancy fee if he finds himself in government next month.

Going on, the Conservatives say they’ll

Strengthen Parliament so that it acts as a proper check on the power of ministers

which sounds fair enough but is unexplained,

Restore the integrity of the ballot and give voters the right to kick out MPs guilty of wrongdoing

again fair enough. Presumably they mean doing something about electoral fraud; as for kicking out MPs, this may be pointless if it’s so hard to be found “guilty of wrongdoing” that no MP ever is actually kicked out. They’d

Work to secure a consensus for a substantially elected House of Lords

a policy I agree with; I think getting this right is more important than doing it quickly, and that consensus would be a good thing if it can be achieved. And the Tories say they’d

Address the West Lothian Question by ensuring that legislation on devolved issues that only affects England, or England and Wales, can only be passed with the consent of MPs from England, and where applicable Wales.

I think I have to agree with this policy too. This would be a good deal more politically radical than would first appear if there were a clear Tory majority, but if it became settled Parliamentary practice it would open the real possibility of a UK administration that had a majority for its UK policies (on foreign affairs, defence, tax, pensions and so on) but relied on support from other parties or was even entirely captured by the opposition in respect of its policies only affecting England (on health, for instance) or England and Wales (on crime, say). That might have some of the bad consequences of coalition government, and be difficult for voters to follow, but it wouldn’t necessarily entail either. And the case for it is strong, based not only on fairness but on the simple consitutional proposition that an MP should only determine public policy on things for which they are directly accountable to electors. I don’t think I can possibly argue against that, and I wouldn’t want to.

Civil liberties

On civil liberties, Conservatives would

Roll back Labour’s surveillance state, curtail powers of entry for state officials, and introduce new protections over the use of personal data;

Scrap ID cards immediately;

Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model;

Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately; and

Allow people with historic convictions for consensual gay sex to have those convictions removed from their criminal records.

I’m not part of the current trend for seeing the “civil liberties agenda” as one big issue, with CCTV, DNA and ID cards etc. all part of the same big problem. I think each is separate and must be treated on its own merits. And I certainly do not think we live in a “surveillance state”. Their use of that language makes me take the Conservatives less seriously. They don’t actually mention CCTV as a matter of interest – which makes me suspect they have no policy, just the desire to appear not to like CCTV. On ID cards, I think the Tory policy is fair enough. I’m absolutely against any compulsory ID cards, and am unconvinced about voluntary ones either. Best to save money by scrapping them. On DNA, I’ve written elsewhere that I’m against Tory policy on this. Their line isn’t quite so different from Labour’s as many believe – they’d retain the DNA of innocent people – but I don’t see why the shorter Scottish retention periods are so much less intrusive of liberty that they justify the loss of investigative power they’d entail.

I entirely agree with the proposal on expunging past criminal records for consensual gay sex. That seems to me the right approach where the law has not only been changed but is believed by a majority to have been morally wrong at the time. I also agree this should be voluntary. A few gay people may see their criminal record as a badge of honour or an important reminder of previous intolerance: the rest of us should not rewrite history unless they want us to.

The courts, legislation and law generally

On the courts, the manifesto says a Conservative government would

Tackle unacceptable cultural practices by… ensuring religious courts act in accordance with the Arbitration Act.

I’m not sure what this means – unless it means sharia courts should only rule on matters than can lawfully be arbitrated and avoid quasi-criminal matters and any family matters having other than strictly religious significance. In which case, good. I’d like to see this fully explained, though, before I can say I wholeheartedly support it. Hostile as I am to any formal recognition of sharia law whatever (or any other religious law for that matter), I am content for religious people to have entirely religious matters dealt with by religious courts, if they want.

The Tories have an interesting proposal on legislation – or what they’d call regulation. They’d

Reduce the burden of red tape on business with a ‘one in one out’ rule for new regulation and regulatory budgets for departments so that new regulations cannot be introduced unless the burden is reduced elsewhere. And we will give the public the opportunity to force the worst regulations to be repealed

That sounds fair enough, and harks back to Michael Heseltine’s and Neil Hamilton’s (remember him?) promises to cut red tape in the past. I doubt it will amount to much, though. A lot depends on whether you classify legislation as imposing a burden or whether you see it as “freeing things up” – if you can characterise it as the latter, then not only does it not count as “one in” – it counts as “one out” and actually permits the imposition of another burden somewhere else. And when they say “one in”, how much is “one”? Many pieces of delegated legislation – statutory instruments – contain a number of provisions. Will the formula match instrument for instrument (in which case it’ll be easy to churn out one little liberalisation for every huge piece of regulating legislation) or “measure for measure”, in the Bard’s words? The latter would be a major exercise in detailed analysis. Plus – would Acts of Parliament themselves count as part of the exercise? Why not?

On law generally, the Tories would

Conduct reviews of family law, legal aid and the libel laws;

and

Review family law in order to look at how best to provide greater access rights to non-resident parents and grandparents

of which libel reform is very welcome. None of the parties have made detailed proposals on this, but all of the main parties are now committed to libel reform of some kind. It looks very much as though we’re at the end of an era for libel law.

Family lawyers will be unimpressed by the Tory use of the old “access” terminology, which may seem minor or may reflect a world-view stuck in the past. The proposal for a review is fair enough, but I hope today’s Conservatives are not (as I suspect they may be) still influenced by old-fashioned ideas about fault-based divorce and so on. The suggestion of a “review” of legal aid will however chill yet further the spines of legal aid solicitors, and with good reason.

Crime, policing and sentencing

On crime, the manifesto talks about

Giving people the power to elect an individual who will set the policing priorities for their community

which is something I’m not sure about. Democratic control is a good thing, and must be genuine: I don’t think indirect control of the police by councils or unelected authorities is really democratic. But I worry about American-style populism in policing.

The Tories promise to

Introduce a system of honesty in sentencing where judges can give some categories of offender minimum and maximum sentences, and prisoners who want to be released after serving the minimum will have to earn their release through participation in education, rehabilitation and work programmes

none of which I object to. I think the apparent dishonesty whereby an offender is sentenced to x years in prison, while everyone in the justice system knows that by law he will serve x – y years, is wrong. To be clear, I agree with the current situation under which time spent on remand in custody before trial is counted as part of a subsequently-imposed prison sentence (which automatically gives rise to an apparently dishonest x – y effect). But I think any dishonesty in that is removed if the judge announces the effect of the calculation publicly at the time of sentence. I also think it should be possible for a prisoner to be so reformed as to be released on parole before serving the full term to which he was sentenced. I would not want all prison terms automatically to become absolute minima. But I do think the normal expectation should be that a prisoner given a determinate sentence should serve that period, and that any reductions should be earned. The maximum and minimum sentence idea seems reasonable enough.

The manifesto also promises to

Create a rehabilitation revolution, contracting with the private and voluntary sectors to provide post-release support, and paying them by results with the savings made in the criminal justice system from lower crime.

I hope that might be true. If the Conservatives really are serious about rehabilitation – good. But I wonder really whether they’d have the commitment to spend enough, and to care enough about what can be easily defamed as the “bleeding heartish” side of penal policy, to make this work.

Europe

Earlier I discussed the most important Tory policies on the effects of the Lisbon Treaty and “giving away powers”, when dealing with their constitutional proposals. But there’s another minor aspect to that:

As the Lisbon Treaty allows a number of the further changes to the EU’s rules without a new Treaty, a Conservative Government would change the law so that any use of these “ratchet clauses” would require full approval by Parliament, and where they amount to handing over an area of power, e.g. abolishing vetoes over foreign policy, a referendum would be required. A Conservative government will never sign up to a European Public Prosecutor.

As far as Parliamentary approval is concerned, they must be right that Parliament’s approval be sought; and changing the law to require that would have some effect (because a future government would have to bring the matter to Parliament if it wanted to repeal the requirement). So, fair enough. As regards the proposal about referendums, however, I have the same objection to that as I set out above to the idea of legally requiring any referendum on transferring powers to the EU.

The Conservatives remain concerned about the EU Charter:

Labour claimed to have obtained an opt-out from the Charter of Fundamental Rights, but were forced to admit it was just a ‘clarification’. We want to upgrade this to a full opt-out so that it cannot be used by EU judges to re-interpret EU law affecting the UK

I’m sure David Cameron has to go for this to satisfy those who are wracked with Eurofears about this Charter. In reality, if he gets this opt-out he will have expended a great deal of political capital to no real effect. As I’ve written before, although the Charter is now legally binding, the government succeeded in negotiations in making sure the text really only binds the UK to do things it’s bound to do already. We never did need any legal protection from it – the government’s almost meaningless protocol was a misguided effort to ease misguided fears. An “opt out” is one of the least important legal issues affecting this country. I don’t agree with him on his social opt out, but he’d do much better to focus on that, which would have real effects.

The manifesto goes on

We want broader protection against EU judges extending their control over Britain’s criminal justice system and we want to ensure that only British authorities can initiate criminal investigations in Britain.

I have no objection to this. There has been some creeping competence in the criminal field, and it seems to me a legitimate policy for a British government to oppose it.

Crucially as far as EU social and employment law is concerned, the Conservatives say

We want to restore national control over those parts of social and employment legislation which have proved most damaging to our businesses and public services. For instance the application of the Working Time Directive on the NHS

This isn’t surprising, especially the mention of the Working Time Directive, which previous Conservative government always opposed. It’ll be interesting to see if a Tory government could negotiate it. Interestingly it doesn’t go nearly as far as the proposal recently by Open Europe that Britain should opt out of all EU social and employment law, including equal pay for women.

The manifesto says

We will fight for wholesale reform of the Common Fisheries Policy to encourage sustainable practices, give communities a greater say over the future of their fishing industries, and bring an end to the scandal of fish discards.

For once, this is a Tory European policy that I have real sympathy with. I think it’s odd that we don’t eat more fish than we do in Britain – and I worry about fish stocks. I’m not sure current EU policies are working well enough to deliver sustainable fish stocks and a sustainable fishing industry. I’m not saying fisheries policy has to be “repatriated” – but I do think reform would probably be a good thing. Fair enough if the Tories want to argue for that.

Employment

Apart from the EU social opt-out I’ve already mentioned, as far as employment law is concerned the Tories say they will

Introduce a new system of flexible parental leave so parents can share maternity leave between them or both take time off simultaneously

which sounds good,

Extend the right to request flexible working to every parent with a child under the age of eighteen; and ensure that the government leads from the front by extending the right to request flexible working to all those in the public sector, recognising that this may need to be done in stages

which sounds very good, and that they’ll take

Measures to tackle the gender pay gap, including stronger legislation to prevent employers discriminating and better careers guidance for young women

which sounds somewhat unreal in a Conservative manifesto. Do they mean this? It may only be an impression of mine, but Conservatives rarely seem to support any of this when it comes to bringing forward actual measures.

Less welcome in my view, as a former civil servant, is the suggestion that

We will improve financial discipline by introducing a fiduciary obligation to taxpayers in civil service employment contracts

Fine on its face – but why should this just apply to civil servants? If it applies to ministers and special advisers too, I’ll back it.

Immigration

We’re told

There will be an English language test for anyone coming here to get married

which sounds fair enough, assuming someone’s intending to settle here (although it doesn’t actually say people will be turned away if they fail the test). I suspect too that exceptions will be needed for instance to cope with EU citizens, and those who come to marry EU citizens here; they may have the right to come to do that regardless of their language skills.

Education

The Conservatives want to

Restore discipline and order to the classroom. We will give teachers the tools and powers they need to keep order in the classroom. We will abolish the legal requirement of 24 hours’ notice for detentions; reform the exclusion process; and give headteachers the power to ban, search for, and confiscate any items they think may cause violence or disruption.

I think I agree with all of this. I think schools need to be freed from legal restrictions which I’m sure don’t help them build a good learning environment.

Other stuff

I might have mentioned tax simplification (a good idea, but one that involves setting up a new quango – something the Conservatives don’t usually like) and the abolition of the Financial Services Authority (who will do the micro-regulation of financial firms that consumers need?) but I suspect by now you may have had enough.

Conclusion

As a Labour supporter, I’m far from being a natural Conservative, and so perhaps I’m likely to be biased – my inclinations come across in my comments on their employment law policies I think. I do think though that purely in legal terms, some of these policies are bad – especially the big-ticket constitutional items of the relationship between the UK and Europe, and on human rights. I’m afraid that a Cameron government would tinker with our constitution at best pointlessly and at worst dangerously in order to pacify extreme Eurosceptics in its own ranks.

To try to secure a social opt-out is one thing: I may disagree with it, but it’s perfectly coherent and achievable, legally speaking. To try to get an opt-out from the Charter of Fundamental Rights is liveable with, even if it’s an silly bee in a silly blue bonnet. But the proposed national sovereignty bill is constitutionally incoherent nonsense, at best pointless and at worst dangerous. The proposal to require referendums for transferring power to the EU goes too far, and has little purpose beyond the declaratory and partisan. The human rights proposals are unexplained and as yet are incomprehensible.

Otherwise, some of the more workaday proposals seem to me decent ones. I don’t share the Tory approach to civil liberties, and I’m not persuaded on elected police chiefs, but I welcome what they say about libel reform, honesty in sentencing, looking for a consensus on a mainly elected Lords and moving to “English votes on English issues”.

And they don’t want a written constitution, at least.

2010-04-14T22:24:33+00:00Tags: , , , , , , , , , , |

Video: Demonstrator arrested near Parliament

April 14 2010

You don’t often see videos here, but after lunching with a friend today in Westminster, I witnessed the police arresting a demonstrator on College Green – and I thought I might as well share with you what I saw. Apologies for the awful quality of video taken on my phone, and for the camerawork.

I’d just walked past College Green as a man stood on a soap-box and unfurled a banner showing the word “Nukiller”; he started to speak, saying he was going to say something about nuclear power or nuclear weapons (I can’t remember which, which may prove I’m a bad witness, or a bad citizen, or both).

What caught my interest was that, as  I passed a group of three policemen looking on, I heard one of them say “… unlawful demonstration …” whereupon I took a few photographs. One of the policemen began to talk to the demonstrator for a few minutes; the demonstrator seemed to ignore him, while the other policemen posed with tourists for photographs. But after a few minutes the first policeman consulted with his colleagues, and the three of them went over to speak to the man again, and arrest him – presumably on suspicion of the offence of demonstrating without authorisation in a designated area under section 132(1)(c) of the Serious Organised Crime and Police Act 2005, which is still law.

It’s the man on the grass on the right who is arrested, the one holding a white card or banner; not the one on the left with a blue and red board, who seemed to be with him.

As the demonstrator was being taken away, you can hear him protesting that “this is a false arrest” and citing article 10 of the European Convention on Human Rights, which guarantees freedom of expression. At 1’38” he also says “I am now being tortured by the police”. The policemen took him past me, and just as they went out of side, appeared to be handcuffing him – which is why I followed, losing them from shot for a moment or two. They then took him into the Palace of Westminster through the Sovereign’s entrance.

2010-04-14T15:28:14+00:00

Labour’s manifesto: the legal bits

April 12 2010

Obviously all the parties’ manifestos will contain long lists of items many of which could end up as legislation. I want to focus though on some of the “pledges” that are of particular legal interest or significance. Starting with Labour’s manifesto, “A Future Fair for All“.

Of most interest to me are the constitutional changes Labour promises. First, they pledge that:

To further strengthen our democracy and renew our constitution, we will legislate for Fixed Term Parliaments and set up an All Party Commission to chart a course to a Written Constitution.

Anyone who reads this blog will know I’m opposed to written constitution for the UK. I doubt politicians realise how fundamentally this would change our politics for the worse – or, as I argued recently, how it’d put a stop to the politics of constitutional reform in this country. I may be in a very small minority, but for me, this pledge is a definite minus for Labour. I hope that, if they do get back in, the written constitution commission goes the way of the Jenkins commission on electoral reform, and meets with a complete ignoral.

I don’t see the point of fixed-term Parliaments, either, which is just another superficially modern-sounding whim. Would it mean that there could never be an early election – for instance, if a future Gordon Brown were to take over without a general election? Would the new PM be denied the option of seeking a new mandate? What if there were a hung Parliament and coalition government? Would it be impossible for a new election to be sought if the coalition collapsed and an entirely new one came into power? These are hard questions for the fixed-term Parliament campaigners – and it’s time attention were focused on them.

Next,

To ensure that every MP is supported by the majority of their constituents voting at each election, we will hold a referendum on introducing the Alternative Vote for elections to the House of Commons.

I’m not against this. I’d be concerned about proportional representation in the Commons (because of its tendency to produce coalition governments that are in effect unsackable by the people) but one of the attractions of AV is that it could make more people’s votes count without damaging our democracy. I think it’s right, too, for a major change to be put to the people.

Still on the constitution,

We will ensure that the hereditary principle is removed from the House of Lords. Further democratic reform to create a fully elected Second Chamber will then be achieved in stages. At the end of the next Parliament one third of the House of Lords will be elected; a further one third of members will be elected at the general election after that. Until the final stage, the representation of all groups should be maintained in equal proportions to now. We will consult widely on these proposals, and on an open-list proportional representation electoral system for the Second Chamber, before putting them to the people in a referendum.

I agree with the hereditaries being cleared out of the Lords – of course. It should have been done long ago. I’m less sure I’m in favour of an elected second chamber, for two reasons. First, because a more democratically legitimate chamber would compete with the Commons for power in a way that might be destablising – or even cause American-style logjam. Second, because the last thing we need is yet another load of identikit career politicians who are rally trying to get to the Commons. I worry that we might lose the expertise of Lords who’d never want to stand for election, but whose insight really helps the quality of national debate. My own preference would be to retain some expert appointees, at least – but allow them only to speak, not to vote.

If we’re to have an all-elected Lords then I do think it should be elected proportionally: its role will be a conservative one, of checking government action, so I think the inherent consensualism of PR will be right for it. It’s good that Labour wants open lists (where you’ll choose which candidates you want, and not be stuck with the ones the parties most want to stuff into the Lords). Why, though, should the Lords be elected in parts, rather than all at once? If we elected the Commons like that, we’d be stuck with some of the worst expense-troughing MPs for another ten years. Again, though, it’s probably right that the people should have the final say on this.

… a free vote in Parliament on reducing the voting age to 16, for which we will make government time available.

I’m in favour of this reform. Why should it be a free vote, though?

We will implement the recommendations of the Calman Commission, including giving the Scottish Parliament additional tax-raising powers, and seek ways to build consensus behind these changes. In Wales, we will work with the Welsh Assembly Government on a referendum to enhance the powers to make laws…

Good policies in my view.

We believe that there is a case for reform of the laws concerning marriage to Roman Catholics and the primacy of male members of the Royal family. However, any reform would need the agreement of all the Commonwealth countries of which the Queen is the Sovereign.

I suppose the Commonwealth does have to agree. I find it difficult to believe that Commonwealth countries might not consent to this, though; and any who do not must be made to realise they are in effect blocking amply-justified constitutional change in other liberal democracies, and pressurised if need be. We should be able to get on with this within a Parliament.

On human rights, Labour says

We are proud to have brought in the Human Rights Act, enabling British citizens to take action in British courts rather than having to wait years to seek redress in Strasbourg. We will not repeal or resile from it.

That seems to confirm its intentions on a Bill of Rights and Responsibilities, which Labour for a time seemed to be trying to sell as a revised Human Rights Act, before pulling back. In fact, the manifesto is better, since it dispenses with any further pretence. Labour plans no change on human rights.

Importantly, the manifesto says

To encourage freedom of speech and access to information, we will bring forward new legislation on libel to protect the right of defendants to speak freely.

I’ve not blogged much about libel reform for various reasons, but I support this strongly. I think Britain is gradually moving from a media law under which writers had to fear writing things that were damaging, regardless of where the public interest lay, to a media law under which they need to be wary of writing things that are private, unless they’re in the public interest. A wholly positive change which we need libel reform in order to complete.

As far as crime is concerned, Labour says

We will continue to make full use of CCTV and DNA technology… Labour will ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.

I don’t share the common instinctive aversion to CCTV and the DNA database, and I’m pleased Labour stands behind them both. The truth of course is that the differences between the big parties on DNA are fairly narrow: all of them would retain a database, and only the LibDems would restrict it to convicted offenders.

… when someone suffers repeated ASB [anti-social behaviour] and the police, council, courts or other agencies fail to act, there must be a stronger form of redress. So we will legislate to give people financial support to pursue legal injunctions, with the costs met by the agency that let them down.

This sounds fair enough, though it’s not all that easy to imagine how people will be able to use the power in practice, or who will decide when an agency has “let them down”. As for the pledge that Labour will

Expand tough ‘Community Payback’ for criminals who don’t go to prison, giving everyone the right to vote on the work they do

I haven’t researched statistics on this, but my impression is that this is something on which delivery has lagged well behind politicians’ rhetoric. I’m all for credible, tough community sentences as an alternative to prison, but I’m not sure it helps to allow people to vote, “Strictly Come Paying Back” style, on what work offenders do.

Labour offers a couple of interesting proposals in the employment law field. There’ll be

More help for parents to balance work and family life, with a ‘Father’s Month’ of flexible paid leave

and

The right to request flexible working for older workers, with an end to default retirement at 65, enabling more people to decide for themselves how long they choose to keep working

both of which I support, though I doubt Fox lawyers do.

Finally, there are a couple of interesting proposals on company law and on mergers and acquisitions. The manifesto says

There needs to be more disclosure of who owns shares, a requirement for bidders to set out how they will finance their bids and greater transparency on advisers’ fees. There should be a higher threshold of support – two-thirds of shareholders – for securing a change of ownership and the case for limiting votes to those on the register before the bid should be examined

and

We now propose to extend the public interest test so that it is applied to potential takeovers of infrastructure and utility companies

which is oddly placed in a section of the manifesto about infrastructure, but which I think can only refer to corporate takeovers rather than to planning decisions. Together these measures would go further than the “Cadbury” law the media had expected since the “two thirds threshold” test is proposed to apply to all takeovers regardless of public interest – and then there’ll be the extra public interest test in infrastructure on top of that. I don’t know what I think about the public interest test; but I do think takeovers, while of dubious social and even commercial value, are of personally enriching for many corporate leaders and advisers and contribute to the bubbly, leveraged, get-rich-quick capitalism we’ve suffered for too long. So the two-thirds threshold gets my thumbs-up.

In summary, then: the human rights, crime, employment and company law element of Labour’s manifesto seem to me sensible and worth supporting. Some of the consitutional law proposals raise concerns, though. I’m not sure about Labour’s plans for the Lords, I’m against the idea of fixed-term Parliaments and I’m really, really worried by this slack, careless talk of a written constitution.

This post first appeared at Head of Legal

2010-04-20T10:58:03+00:00Tags: , , , , , , |

Balls on human rights

April 9 2010

I was interested in a debate yesterday kicked off by Jessica Asato, writing at Left Foot Forward about the way Conservative opposition led to the government’s dropping provisions in the Children, Schools and Families Bill about personal, social and health education – sex and relationships education being its most controversial aspect. The plan had been to put “PSHE” on a statutory footing, and importantly, to make it compulsory for one year for schoolkids once they’re fifteen. But the Conservatives opposed this, and wanted to amend clause 14 to allow parents to withdraw their children not just up to 15, but all the way up to 16 years old. An amendment which would of course have wrecked the whole idea. Peers were miffed on Tuesday that in the face of this, the government caved in and took the provisions out of the Bill – which has now received Royal assent, by the way. I can understand peers’, and Jessica Asato’s, frustration at the opposition to and abandonment of a good policy.

What interests me though is that Jessica linked to a letter from Ed Balls to his opposite number Michael Gove about this, in which he claims that the Conservative policy breached Convention rights:

As I explained yesterday, your insistence that parents should have a right to withdraw their children until they reach the age of 16 – the age at which they are in many respects considered adults – makes it impossible for us to proceed. Both British and European case law do not support an opt-out up to the age of 16.  As I explained when we discussed yesterday, that amendment would have meant that the bill would not have been compliant with the ECHR.  Your insistence that the age limit must be increased to 16 would have made the entire bill non-compliant with UK and European law and, therefore, our lawyers advised me that, as Secretary of State, I had no choice but to remove all the PSHE provisions.

I can’t understand this at all – and it makes me wonder whether Balls isn’t “sexing up” the legal angle here for some reason. Balls says case law “does not support” an opt-out up to 16, but that isn’t the same as saying case law precludes such an opt-out. To say parents have no absolute right to withdraw their children from sex education, as Kjeldsen v Denmark makes clear and as Parliament’s Joint Committee on Human Rights said when scrutinising the Bill, is one thing. But to go further, and say that the ECHR requires the UK to deny parents a right of withdrawal is quite another. If it were true, we’d already be in breach now, and Ed Balls’s own policy would be difficult to defend as it affects children aged just under 15. The truth is that human rights law permits Ed Balls’s policy but it doesn’t, as he argues, require it. I think the Conservative education adviser Sam Freedman was right to call Balls’s legal point “dubious”.

It’s interesting that Ed Balls doesn’t actually say his lawyers had advised him the Tory amendment would breach Convention rights. I’d be amazed if they had.

What’s most extraordinary about the Balls letter, though, is that he does say his lawyers advised he had no choice but to remove the provisions because of the purported breach of the ECHR. How can this be? Any competent government lawyer knows that the Human Rights Act permits ministers to put forward legislation even if they know it breaches Convention rights. The Human Rights Act was deliberately designed to allow exactly that. Balls certainly did have a choice. Can DCSF lawyers really have made such an elementary blunder? I doubt it very, very much, having worked with a number of them over the years. So either Ed Balls misunderstood the advice, or else his presentation of it leaves something to be desired.

If government ministers distort the impact of the Human Rights Act for partisan gain, how can they complain, as they often do, that “myths” have grown up about it?

2010-04-09T15:04:58+00:00Tags: , , , , , |

“People’s courts” an election issue

April 1 2010

The election really has begun in all but name, and justice already looks set to become of the biggest issues at the polls. Following George Osborne’s announcement on National Insurance, today the Conservatives are scheduled to announce plans for new local community courts on the “Swedish model” they are already pushing for schools.

A Labour spokesman has already responded, saying the plans are “wrong-headed and unfunded” but promising an urgent White Paper on “Local Justice for All” that will also include radical plans for decentralising justice, based on the results of in-depth consultations with “citizens’ juries”.

According to Whitehall insiders, these will allow anyone to set up a local court and receive direct funding from Whitehall. Private companies, faith groups and residents’ associations are expected to be the first to take advantage of the proposed scheme, which will allow the local courts to develop their own distinctive “ethos”. Initially bids will be invited for the 20 Magistrates’ Courts Jack Straw has announced will close as part of the Ministry of Justice’s cuts. Labour advisers are arguing that the courts should be subject to a stringent regime of targets, league tables and guidelines set by a new regulatory body, OfJust.

Under the Tory plan, the courts could attract private capital and enter into partnerships with commercial sponsors, for instance hosting courtrooms in popular shopping centres like Tesco. Tory strategists believe the new courts could crack down effectively on anti-social behaviour and help bring back the orderly Britain many believe has been lost since the 1960s. If they prove they can deal effectively with low-level crime, it’s understood they could be given further powers – though falling short of capital punishment.

Neither party can name any potential bidders at this stage, but Church of England sources have declined to comment on speculation that the Archbishop of Canterbury has been approached to front a multi-faith consortium with plans to develop modern, accessible and attractive Sharia courts in a number of English cities.

In addition, Labour is developing an idea for the trade union UNITE to take over the running of Employment Tribunals, saving millions of pounds for the public purse. It’s understood the Tories are considering a radical new proposal to tackle the deficit by auctioning off seats on juries to the highest bidder. It’s thought the foremanship of an Old Bailey murder trial could fetch up to £50,000.

The LibDems are working on their own distinctive scheme, backed by Simon Cowell, in which Lord Lester will chair a “Dragon’s Den” style panel of judges dispensing justice around the country. It’s hoped the idea, which will involve celebrity advocates coached by Clive Anderson, a TV audience voting on guilt and “Deal or No Deal” style plea-bargaining, will make law “accessible” and “cool”.

Full details of all the parties’ plans can be read here.

2010-03-31T23:56:15+00:00

It was only au revoir…

March 31 2010

I’m glad to say Rachida Dati is in the news again on the other side of the water. The Telegraph reports a claim that Nicolas Sarkozy suspects her of being the source of the recent rumours about his marriage; Le Monde merely says Sarkozy was miffed that she popped up after the recent regional elections to criticise his policies – having been invisible throughout the campaign. Anyway, she’s lost her chauffeured limousine, though she blames the interior minister Brice Hortefeux rather than the President of the Republic.

Life would be a lot more fun here if we had an ex-minister like Rachida. Is it worth a revolution?

2010-03-31T23:38:10+00:00Tags: |

Servier Laboratories v NICE

March 31 2010

I’m a bit troubled by the judgment of the Court of Appeal in Servier Laboratories v NICE, in which the Court has granted Servier’s appeal, quashing the National Institute for Clinical Excellence’s decision not to recommend Servier’s drug Protelos (strontium ranelate) for use within the NHS for the prevention of fractures in patients with osteoporosis.

Protelos has been licensed for use throughout the EU by the European Medicines Agency, which considered the drug in 2001 (some drugs are considered by the EMA at EU level, bypassing national authorisation by our own MHRA). As part of its assessment, the EMA asked for some evidence that Protelos prevents hip fractures in particular, and suggested Servier identify among the patients who’d taken part in its clinical trial a subgroup of women who would be at an enhanced risk of suffering a hip fracture. Servier did so, and analysis of those figures seem to show, within the subgroup, that women on the drug had sustained 36% fewer hip fractures than women on placebo. That degree of efficacy compared closely with that of of aledronate – NICE’s recommended drug. On that basis, the EMA was content to authorise the use of Protelos in Europe.

Why the EMA asked for that analysis, I don’t know. It’s important to note though that the subgroup analysis is not itself randomised clinical trial data. It’s a selection of data made after the fact, and so inherently vulnerable to the biases that randomisation in clinical trials is designed to prevent.

When NICE looked at the drug, though, it was less happy with this evidence. Its guidance to drug companies says

There should be a clear clinical justification and, where appropriate, biological plausibility for the definition of the patient subgroup and the expectation of a differential impact. Ad hoc data mining in search of significant subgroup effects should be avoided.

When NICE asked experts at Sheffield University to evaluate Protelos, they weren’t impressed with the subgroup analysis, which they thought essentially unreliable, because comparisons were not being made between randomly selected groups. Servier disagreed, and make submissions reminding NICE that the EMA had been satisfied with the robustness of the data, and arguing that the subgroups were effectively “randomised”, since they had been well balanced for baseline characteristics. I don’t myself see how judicious post-hoc selection can ever be equated to genuine advance randomisation, but perhaps that’s a result of my scientific ignorance rather than the Court of Appeal’s. In any case, NICE’s Appraisal Committee decided against Servier, whereupon Servier appealed; and on appeal, NICE’s Appeal Panel decided it had been right to reject the evidence of the subgroup analysis.

Whereupon, Servier went to the courts, arguing on judicial review that NICE’s decision was not properly reasoned, and irrational. Again at first instance they lost on this point. But now the Court of Appeal has finally found in Servier’s favour.

The Court’s reasoning is that NICE in the reasoning it gave for its decision never expressly adopted the Sheffield experts’ view that the subgroup analysis was not randomised. Nor did it expressly give reasons for rejecting Servier’s arguments about randomisation. So far, I follow. Perhaps – just perhaps – it’s right to quash a decision like this on the sole basis that it could and should have been more fully reasoned. I’m not sure in this particular case that it would be right, given that it must have been obvious to Servier at every point in the procedure why its data was not accepted. Indeed, the submissions it actually made indicate clearly that it was well aware NICE shared the Sheffield view that the subgroup analysis was unreliable because not truly randomised. I am genuinely surprised that Lady Justice Smith says she doesn’t know why NICE reached the decision it did.

But the judges go further than this – and that’s what causes me concern. Lady Justice Smith says (para. 40) she has grave doubts about the rationality of NICE’s decision – not merely about the adequacy of the reasons NICE gave for it. She follows Servier in placing great emphasis on the fact that the data was good enough for the European Medicines Agency, and goes on (para. 52)

By making these references to EMA I am not, of course, suggesting that NICE is bound by a prior decision of that body. However, I would expect to see some reason given for NICE reaching a different view from a body of similar standing.

Lord Justice Wilson agrees (para. 62):

It is not suggested that NICE are bound by EMA’s decision or its reasoning but the appellants are entitled to expect any decision against them to be properly reasoned, especially when it is contrary to the reasoned decision of an equally eminent body.

But this surely goes too far, and does indeed bind NICE to follow the EMA at least in the sense that it must do so unless it provides good reasons why not. Servier certainly present it that way in their press release.

Both judges seem mesmerised by the fact that the EMA asked for this data. But firstly, it’s not clear that should matter since the EMA’s decision was of a different kind – whether Protelos could be used at all in the EU. Accepting data as supporting mere authorisation (when the alternative would be to deny Protelos access to the EU medicines market at all for prevention of hip fractures) is not the same, it seems to me, as accepting the same data to support Servier’s case that Protelos should be funded by the NHS rather than some other drug – especially when even the Court of Appeal recognised that the contentious data does not show Protelos is more effective than NICE’s preferred treatment. It’s far from clear that it would have made any real difference to its recommendations even if NICE had accepted the subgroup analysis – but the judges don’t seem to have thought much about that. They simply accepted Servier’s contention that the point is not academic and the outcome might somehow be favourable to its drug.

Secondly, though, neither judge seems to consider the possibility that the EMA might have got it wrong by asking for subgroup data precisely “in search of significant subgroup effects”, as NICE’s guidance cautions against. Why should NICE have to justify its departure from the EMA’s approach, unless the EMA is equally required now to justify its approach in the light of NICE’s? Repeatedly the judges suggest it would be “surprising” if the EMA had accepted flawed results. But that’s merely an assumption based on a perception of the EMA’s authority. Nowhere do the judges quote the EMA as giving adequate reasoning – of anything approaching the exhaustiveness the judges are requiring from NICE – to justify its decision to accept the data.

For NICE to have to go through this decision again, being in effect barred, against its better scientific judgment, from rejecting the subgroup analysis on principle because selected post hoc, is bad enough. It looks very much as though the judges have been persuaded by Servier’s arguments about the data, and have preferred their own scientific judgment about its relevance to that of the actual experts.

Yet worse is the suggestion that NICE’s decisions may in future be legally reviewable in terms of their agreement or otherwise with the uncritically accepted approach of some other body, set up for another purpose.

2010-03-31T19:05:43+00:00Tags: , , |
Copyright 2022 Carl Gardner. Site by Samsara
Go to Top