It’s certainly not “time” for a written constitution

March 29 2010

I’m grateful to Charon for drawing my attention to Richard Gordon QC’s article in the Times last week arguing that it’s “time” for a written constitution. I’m not as impressed as he was, though. I’m thoroughly and firmly against a written constitution for the UK. The current conventional vogue for one, together with Gordon Brown’s occasional loose talk of one, risks steering Britain towards a massive historic blunder. I don’t think Richard Gordon makes a good case for one, either.

I love constitutional change. I think one of the best things about politics in Britain is that there’s continual debate about our constitutional arrangements and the way we protect rights, and as a result, regular and ongoing reform. At the moment we’re discussing changing the House of Lords further, and radically reforming libel law. Not long ago we gave more powers to the National Assembly for Wales, we continue to debate the wisdom of the domestic human rights law system we adopted twelve years ago (which we retain the option of abandoning) and the powers of local government. Just five examples where reform has happened recently, or is expected soon. One of my main complaints against a written constitution is that overnight, its effect would be to freeze our constitution, and make constitutional reform a much less important part of our national discourse as we found we were simply straitjacketed within the entrenched written arrangements we now had and were unable so easily to talk about and make these sort of piecemeal changes. I find it astonishing that this simple point isn’t more often grasped.

But let me deal with some of Richard Gordon’s arguments. He says

Our profound disillusionment with politics can only get worse with the “constitution” we have; an unwritten (in the sense of uncodified) “constitution” that is out of touch with the reality of the modern world.

I admire advocates of a written constitution (and of fixed-term parliaments, PR and every other constitutional reform) for trying to link their cause to the current political crisis following expensesgate. They’re not really linked, though, are they? There have been plenty of financial scandals among politicians in countries with written constitutions, like France and Germany to name only two. Gordon’s remark about the “reality of the modern world” is just a wrong-headed appeal to fashion, and reminds me of a claim I once heard attributed to Carmen Callil, who apparently said Britain can’t “carry on drinking warm beer” (a remark which, if true, shows how little she knew about beer). The fact that something’s in fashion in many places doesn’t mean other places or ways become “unreal” or part of a dispensible past. Richard Gordon’s approach to the constitution is akin to a belief that the food traditions of Italy, say, should be abandoned in favour of fast food because that’s the “reality of the modern world”.

After a brief discussion of the views of Lord Steyn and Lord Hope in Jackson v Attorney General, he goes on

In stark contrast to parliamentary sovereignty, constitutional supremacy makes it clear that power resides in the people and that they have delegated a defined measure of that power to government.

It may do – in theory. But this is an abstract “people” whose abstract “will” is strictly confined within the limits of the supreme constitution. Who, in Richard Gordon’s scheme, wields the undefined measure of power that has not been delegated to political institutions? No one, is the real answer; the power has been abandoned in all but theory, because the constitution allows the people themselves no means of exercising it. But more of that in a moment.

After a fashion our constitution — haphazard as it may be — “works”. To move from an informal arrangement of that kind to a formal written constitution, itself usually the product of a crisis in national affairs, may seem at best pointless and at worst threatening.

I actually agree with this. Our constitution certainly does work. Anyway, it works just as well as that of anywhere else in the “reality of the modern world”, where other countries have occasional crises about, for instance, hanging chads or, in the case of France, “cohabitation“. To change our entire polity from top to bottom (and abandoning Parliamentary sovereignty would certainly amount to that) would indeed be pointless and threatening.

The apathy that seems to have triggered rapidly declining electoral voting patterns is part of a more general malaise in which we, as citizens, feel powerless to affect events about which we feel strongly but over which we have no control (the Iraq war is a notable recent example); a malaise in which the top-down government that we have — itself the legacy of our history of absolute monarchy — leaves us politically disillusioned and at times (“expenses” being a notable recent example) profoundly mistrustful of the good intentions of those who exercise power over us.

We’re back to the point about the power of the people again. How would a written constitution increase our ability to influence events? No imaginable written constitution would conceivably prevent Parliament from voting for war (which ours did) or prevent a crook (as some people think Tony Balir was) from holding power. Watergate happened in Washington, not London.

A written constitution would decrease the peoples power, in fact. Think about America, where city and state government may enact measures to control guns, yet those measures can be challenged and struck down by judges like Antonin Scalia regardless of the views of the people. In the United States, the people’s choice is not the last word on matters such as, for instance, how gay relationships should be formally recognised. There, liberals and conservatives alike have to wait on legal procedures and the rule of judges to tell them whether there must, or may not, be gay marriage laws and whether or not a referendum is to be respected. Here, if a political party argues for gay marriage or civil partnership, and wins a majority in Parliament, the people’s wishes can be enacted without final judicial approval. Yes, this is a weakness, and exposes us to the risk of  intolerant majoritarian rule. I wish critics of our system, though, would accept that the American “sovereign written constitution” model, admirable though it is, also has the serious weakness that it limits the people’s ability to will change.

However, without a national debate nothing will happen. We will have to be content with what we have. And what we have is the outmoded doctrine of parliamentary sovereignty; the palest of shadows of the popular sovereignty to which we are entitled if we want it.

To call Parliamentary sovereignty “outmoded” is simply rhetoric based on the attraction of fashion, as I’ve said. Richard Gordon wants a national debate – fine. We’ve been having one for at least twenty-two years in fact, and I hope it continues.

But what if he got his way and we did have a written constitution? What would happen to national debate on constitutional change then? It’d end, effectively. Where is the ferment of constitutional debate in the US? It isn’t as lively as it is here, because the written constitution is, in terms of workaday criticism of its workings, simply an unshiftable given. Since prohibition there have only been six constitutional amendments; the Equal Rights Amendment has not been adopted in ninety years of activism in a polity saddled with the useless, genuinely outmoded “right to bear arms”.

If you want the people to rule over institutions like Parliament and the courts, and if you want constitutional reform and improvement to remain a constant issue in our politics, you should oppose a written constitution.

2010-03-30T00:42:04+00:00Tags: , , |

Defending the DNA database

March 26 2010

I wrote at Comment is Free yesterday, defending the government’s proposals on retention of DNA profiles in the Crime and Security Bill, and generally arguing against the idea that profile retention is a major invasion of human rights:

… much queasiness about storing DNA profiles is based on a vague perception that they contain something ineffably “intimate” that can’t, so needn’t, be explained. But such higher superstition is no basis for sensible policy: retaining DNA profiles does not meddle with anyone’s soul. Metaphysics aside, being on the DNA database takes away no freedom (and yes, if the bill gets through, I’ll go on it voluntarily). Lord Steyn was right to suggest that any human rights invasion is “very modest indeed”. Against this, keeping even innocent people’s DNA for six years is amply justified in order to fight crime.

I’m not in favour of taking people’s DNA just for the sake of it, but I really do fear that, if we listened to Liberty and the Liberal Democrats, the database would be too small, and would not include some people who turn out to be serious offenders but who were not convicted the first time they were suspected of an offence. The LibDems want only those convicted to stay on the database; I think Liberty is prepared to countenance the retention for three years of profiles of those arrested for violent and sex offenders, as a compromise. Even that, which is the Conservatives’ proposal, seems to me too short a period of retention and perhaps too narrow a scope (unless sex and violence are interpreted widely) for the database to do its job.

The point I’m really interested in, though, is this business about “higher supersitition”. I think one reason why opposition, or concern, about DNA retention has become so popular is that it’s too often assumed without examination, and too often conceded even by the defenders of DNA databases, that profile retention is a real interference with human rights. I know it is legally speaking, of course. I don’t doubt for a moment that retaining a DNA profile engages the article 8 Convention right. I wrote when the S and Marper judgment came out that I thought Lord Steyn had been unrealistic to suggest it didn’t. But I think this is an example of one of the debate-shaping effects of the Human Rights Act: the fact that that’s the correct legal analysis leads too many people to think it’s indisputable in moral and political terms that retention is a major invasion of privacy.

I think those of us who think the government should not compromise further should focus on this first step of the argument. If you think that your DNA profile is somehow the private essence of your humanity and that storing twenty numbers on a computer is messing about with your very nature, then I can see how you might conclude that should be avoided, even if the result is some murderers may go free. I don’t think it is, or that it remotely compares as an invasion of privacy with, say, being arrested – or even with being seen on the street by passers by. If people who think like me can persuade people of that point, we may win the argument that DNA’s investigative potential well justifies the retention even of innocent people’s profiles.

2010-03-27T15:57:32+00:00Tags: , , , , |

Jon Venables: my Index on Censorship piece

March 19 2010

I may have been less visible than usual here recently, but that’s not been simple idleness – and I have been writing elsewhere, including this piece the other week on Index on Censorship about Jon Venables. I was a bit concerned that my first piece for them was about the case for restraints on free expression – but there you are. I’m a bit of a contrarian by nature so perhaps that was fitting.

We know the power of the internet to unleash the madness, as well as the wisdom, of crowds – consider the “human flesh searches” that have been reported in China. Worryingly, #findandkillvenables has been used as a hashtag on Twitter. But the injunction binds everyone. I would not advise anyone in the UK to post or tweet anything in breach of it, or to publish anything about any offence Venables may have committed. There seems to me no reason why the Attorney General should not take action against them. As far as the mainstream media are concerned, the injunction even binds the media here from disclosing Venables’s new identity and appearance even if they do appear on the web… Free expression must be exercised responsibly when an ill-judged article may be a death sentence. In a perfect world, editors would act accordingly rather than indulging in the kind of legal brinkmanship that gives our free press a bad name. But if the Attorney General has to prosecute or seek someone’s committal to prison in order to enforce their responsibility, then we should back her.

At a meeting last night some non-lawyers were asking me about Jon Venables, and the conversation reminded me just how unclear it is to most members of the public that “outing” Venables would almost certainly destroy any potential prosecution of him. The government may well think the story has blown over for the time being, but this, surely is the argument it must make if it’s to hold the tabloid mood in check.

For any prosecution to succeed, there must be a trial, and a trial has to be fair. But, even if you believe in juries as I do, it’s difficult to see how any jury can be other than strongly prejudiced against Jon Venables. It’d have been far, far better if no details of the offence he’s supposed to have committed had been published – then he could have been tried in his secret identity and fairly convicted or acquitted. That may still be possible – I hope it is. If not, the impossibility of a fair trial – let alone security concerns – may rule out prosecution altogether.

Those who want to see justice take its course against Jon Venables should be more patient, not less, about discovering the details of what he’s alleged to have done. The government needs to get that message across if this comes back to the top of the news agenda.

2010-03-19T18:17:42+00:00Tags: , , , , |

Binyam Mohamed: finally, an end

February 24 2010

I’m sorry it’s taken me so long to comment on the Court of Appeal’s judgment in R(Mohamed) v Foreign Secretary. People usually claim to hate saying they told you so. I love saying it if I’m honest, but only if I really did tell you so, something you may well doubt if you listen again to my podcast discussion with Charon QC about the case at an earlier stage.

I said at that time that I thought the whole case has become something of a farce, since Binyam Mohamed already had disclosure of the material he needed; the question whether one judgment should or should not contain a few paragraphs was a side issue. I criticised the judges for going back on their original ruling that the paragraphs should not be published, on the basis of an unduly close reading of a General’s letter and a wrong assessment that the US position had changed. My guess in my podcast with Charon was that an appeal court might come down on the government’s side.

Well, I was wrong about that. But I think the Court of Appeal judgment is in line with my analysis otherwise.

Lord Neuberger at paragraph 145 agrees with me that the American position as put before the court in its fifth judgment was similar to the position as the court understood it in making its fourth judgment. There was no real change of approach in Washington. Lord Neuberger also agrees (para. 146) that the judges got far too caught up in analysis of a CIA letter:

the court subjected the CIA letter to what, in a very different context, Lord Diplock referred to disapprovingly as “detailed semantic and syntactical analysis”

and at paras. 148-151 he rejects the Divisional Court’s interpretation of Hillary Clinton’s view in May last year as different from that in the CIA letter and (I thought breathtaking) conclusion that it was less representative of the US view.

At paragraph 191, Lord Neuberger makes it clear that, had nothing else changed, he’d have ruled that the Divisional Court was right the first time: the public interest in including the seven paragraphs in the judgment was indeed outweighed by the risk to national security in doing so. The implication is clear, that the judges below were wrong to change their minds.

What changes everything, however, as Lord Neuberger said at para. 199, was the fact that the same information had in the intervening time been publicly disclosed by Judge Kessler in her habeas corpus judgment the Columbia District Court in Farhi Saeed Bin Mohammed v Barack Obama. The last paragraph on page 64 is the key passage.

Lord May reaches the same conclusion. In his view (para. 284)

the issue of the exclusion of the seven subparagraphs has taken on an unsatisfactory life of its own as satellite litigation… which in the present case has taken the parties and the court way beyond any issue in the original litigation, thereby generating huge complexity and expense.

At paragraph 287, he too implicitly criticises the judges below for making too much of the difference between “would” and “could”. At paragraph 290 he suggests his “provisional view” would also be against inclusion of the seven disputed paragraphs. But at paragraph 295 he also reaches the opposite conclusion because of the intervention of the American District Court:

In my judgment, the decision of the US District Court shifts the already fine balance in this case against the exclusion of the seven subparagraphs.

Thus ends a case that represents a fairly unfine hour for the British judiciary: a prolonged self-referential series of judgments about judgments, no longer referring to any real dispute (and which would be entirely lacking in seriousness were it not for the fact of Binyam Mohamed’s torture) resulting in an unjustified and petulant change of judicial mind. And a final conclusion determined not by any proper resolution of the legal position but by the action of an American court. At least in the end the right thing was done: what happened to Binyam Mohamed should always have been disclosed by the American authorities, and in the end it was.

How fitting that this final judgment should have ended with a ludicrous dispute about whether Lord Neuberger should edit his own judgment. I see no great constitutional outrage in Jonathan Sumption’s letter to the judge, though its not finding its way to the other parties was a bad mix-up. What the outcome of that last row is seems to me hardly to matter.

2010-02-24T03:29:47+00:00Tags: , , , , |

Health and safety law: a cautionary tale from Down Under

February 23 2010

It’s not often health and safety law is big news – but it has been in Australia this month, as a result of the judgment of the High Court of Australia in the Kirk case.

Graeme Kirk was director of a company that owned a farm in New South Wales, but left the management to an experienced farmer, Graham Palmer. One day Mr. Palmer was transporting some steel on a off-road vehicle, when for no reason anyone can explain he drove the vehicle off the gravel farm road, and down a steep hill. The vehicle turned over – and Mr. Palmer was killed. As a result, WorkCover (the Australian equivalent of our Health and Safety Executive) prosecuted Graeme Kirk, who ended up being convicted under New South Wales’s Occupational Health and Safety Act 1983. Section 15(1) of that Act states that

Every employer shall ensure the health, safety and welfare at work of all the employer’s employees

while section 53 provides defences:

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:
(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

Stopping at this point, it’s difficult to see what any employer can do to stop an experienced worker from literally going off-piste and, in a moment of uncharacteristic madness, taking an unacceptable risk at work. What was Mr. Kirk supposed to do? How could any training or workplace rules have prevented the accident? Surely, you’d think, one of the other of the section 53 defences would have helped Mr. Kirk – but no.

The Industrial Court saw the section 15(1) duty as absolute in nature. An offence under that section was charged without any real identification of anything Mr. Kirk or his company could or should have done to prevent the accident – the charges skirted that issue by referring vaguely to inadequate training and an unsafe system of work, without saying what a safe system might have consisted of, or what training could have prevented the accident. Even though it was subject to the section 53 defences, viewing section 15(1) as absolute distorted the Industrial Court’s approach, as the High Court of Australia explains (para. 38)

A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability.

In practice, therefore, section 15(1) was applied as though it were absolute, so that an employer would be guilty of an offence almost automatically whenever an accident happened.

The High Court of Australia has now roundly criticised that approach, and has quashed Mr. Kirk’s conviction. Charges under section 15 must specify what risks the employer should have addressed and how he or she has failed to reduce or eliminate those risks. ABC Radio National interviewed Mr. Kirk earlier this month on its excellent show Counterpoint – you can read the transcript and may still me able to listen to the interview here.

The World Socialist Website sees this as a victory for capitalism at the expense of workers’ health and safety – but I disagree. I’m not the sort of person who shares the Fox view of law according to which employers should probably be released from all and any legal burdens. But I do think interpreting the legislation in such a way as to impose criminal liability on someone without any factual basis for holding them responsible for Mr. Palmer’s death was oppressive. Health and safety at work is a serious matter: it should not be brought into disrepute in this way, and laws aiming at securing it should not be used as as instruments of arbitrary oppression.

Nor do I think imposing absolute liability was good policy. If employers are faced with a reality in which no amount of sensibly-targeted expenditure on training and equipment can hold them safe from litigation, then it becomes economically irrational to invest in safety. Instead, you’d be better off buying insurance to enable you to meet legal bills and fines in case one of your workers is injured when something happens that you could never control. Absolute liability is the enemy of health and safety, in truth. Law and regulation ought to focus on practical precautions – on what employers can and should do now to reduce risk – not on the steamroller of perfect legalistic hindsight, a blunter and less effective way of trying to improve workplace standards.

Which is why I’m glad that a few years ago the UK fought and won in the European Court of Justice when the European Commission argued for an “absolute” interpretation of the equivalent EU health and safety legislation.

2010-02-23T19:31:36+00:00Tags: , , , |

The invasion of Iraq was lawful

January 27 2010

This blog didn’t exist when US and British forces, with others, invaded Iraq in 2003. I’ve never written directly about the legality of the war. But with Sir Michael Wood and Elizabeth Wilmshurst having given evidence to the Iraq inquiry yesterday, and Lord Goldsmith due to appear today, I think it’s time for me to address the issue.

Let me begin with a declaration. I worked at the Attorney General’s Office under Lord Goldsmith from 2005-7, well after the invasion itself; I did not advise him on international law except to the extent that it arose as part of my EU law, human rights and domestic advice. Some might say I have a natural inclination to defend him and his views. Maybe. I also want to make clear that I was not involved in any respect in the government’s internal legal discussions about the Iraq war, and have no inside knowledge of it whatever. I share no responsibility for the advice that was given, and have no personal stake in it that I have to defend.

My final preliminary: far too often this issue is discussed by a pure appeal to authority. Philippe Sands QC says the war was unlawful, we’re told by some anti-war campaigners; therefore it must be. Most international lawyers agree, it’s often said. Sir Michael Wood and Elizabeth Wilmshurst advised that the war was unlawful. The Dutch inquiry has concluded so. All these are worthy of respect of course. But the fact they see the war as unlawful does not mean it was unlawful, any more than Lord Goldsmith’s view means it was lawful. An appeal to authority is quite inadequate. We must form our own view on the legal merits and must judge the views of others based purely on their content. That’s what I’m trying to do.

I accept that the invasion was not clearly and unambiguously lawful. Far from it: the UN Security Council had plainly not expressly said that members could use all necessary means to enforce Iraqi disarmament and compliance with UN inspection and verification, which was a condition of the ceasefire at the end of the 1991 war over Kuwait. But equally, the invasion was not clearly and unambiguously unlawful because of the absence of a resolution including those express authorising words. I disagree with that commonly held view.

I think it’s important to see the 2003 invasion in historical context. The UN had authorised force in UNSCR 678 in order to free Kuwait and restore peace and security in the region; UNSCR 687 recalled and affirmed that resolution and imposed disarmament obligations on Iraq as one of the conditions essential to the restoration of peace and security in the region. By August 1991, the UN had determined that Iraq was in material breach of those obligations. It reaffirmed them and demanded compliance again in 1994 and in 1996. There were three further UNSCRs about Iraqi non-compliance in 1997, and three more in 1998, culminating in November 1998 in UNSCR 1205, condemning an Iraqi decision to stop cooperating with UN inspectors.

At this point it’s important to note that in December 1998, the US and Britain bombed Iraq so as to “degrade” its WMD capability. That action was defended in Parliament by the Foreign Secretary Robin Cook, who said

The action has been taken with the full authority of repeated Security Council resolutions, supported by all members of the Security Council

although none of the 1998 UNSCRs spoke of taking all necessary means. The legality of that action was justified on the basis of the “revival theory”, that UNSCR 678 still governed and overshadowed the entire process. Ming Campbell said this at the time:

Some say that there is no proper legal basis because there is no single resolution of the United Nations Security Council that authorises the action taken during the past 24 hours. To them I say that, when considering the legal basis of the action, one must have regard to resolutions 687 and 688 with which the Gulf war was brought to an end, to the fact that they reflect voluntary undertakings freely entered into by the Iraqi Government to help bring the war to an end and that since then no resolution of the Security Council in respect of these matters has been anything other than entirely consistent with those obligations. When considering the legal basis of the action we must look at the body of resolutions as a whole and not seek to fasten on to one particular resolution or describe it or any other as deficient.

We know from Lord Goldsmith’s published advice on the Iraq war that the Attorney General in 1998, Lord Morris, must have advised that the bombing was lawful based on this theory. We also now know that Elizabeth Wilmshurst agreed with that advice at the time (see page 30, line 16) although she now thinks it was a “strained” view. I agree with it, too.

Tony Benn, to be fair, said it was unlawful because not expressly authorised. Fair enough. Perhaps in the interests of complete fairness, it’s worth remembering that Tony Benn also called the war in Kosovo a “war of aggression”. It was not authorised by the UN either, but is now widely considered lawful because of what international lawyers now recognise is an “emerging” international law doctrine that it’s lawful to intervene to avert an overwhelming humanitarian catastrophe.

That’s the background to the 2002-2003 crisis. UN inspectors were allowed back into Iraq following the now famous UNSCR 1441. In its preamble the UNSC recalled

that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area;

The key operating provisions were OP4, in which the UNSC

Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;

and OPs 12 and 13 in which it

12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;

13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;

This website allows you to consult the post-adoption statements by each of the permanent five UNSC members. The US took the view that the resolution did not preclude military action, though everyone agrees it provided for a “two-stage” process involving further consideration by the UNSC; no one says a further resolution is required. Jack Straw’s analysis of resolution 1441 is, to me, persuasive. The text represents a clear compromise between the three members who opposed action and wanted to tie the US into needing further express authorisation, and the US, who thought action necessary, and wanted immediate authorisation. It clearly rejects “automaticity”: no one could use it in itself as a legal basis for war in late 2002. But it also makes provision only for further consideration by the Security Council; not for any further decision or resolution. It was of course followed by the discovery of Iraqi missiles held in breach of the UN’s resolutions, and by, in the view of Dr. David Kelly, further non-cooperation from Iraq.

Bearing all that in mind, I agree with Lord Goldsmith’s advice of 7 March 2003, first that the safer course would be to seek a second resolution authorising force; the UK did that, of course, and failed; and second, that the “revival” argument, that further material breach by Iraq would revive the authorisation of force in UNSCR 678, is a reasonable one.

I’d go further, in fact: I agree with what Lord Goldsmith seems to have concluded a few days later – that the “revival” theory is the better view, to be preferred to the alternative put forward by Elizabeth Wilmshurst, that resolution 1441 clearly required a further decision by the Security Council. She told the Chilcot Inquiry that the wording of resolution 1441 had this effect (see page 30, line 7 of the transcript) – that was what made the position different from 1998, when as I’ve said she had agreed with the revival theory (though she now thinks it was “strained” even then). I find it difficult, looking at UNSCR 1441, to find the language that she says excludes the revival theory she supported in 1998, and reserves to the Security Council alone the sole competence to act subsequently, in the sense that its inaction should preclude action by others.

It follows that I agree with what Lord Goldsmith said was the legal justification for war. Member States were always authorised to use all necessary means to restore peace and security in Iraq. The authorisation was suspended; but on condition Iraq verifiably disarm. Its repeated material breach and failure to take its final opportunity meant it was lawful for Member States to use force on the basis of UNSCR 678. Any other approach seems to me to build far too much on words such as assessment in OP4 and consider in OP12; and to empty of all practical meaning the threat of serious consequences in OP13.

In any event, the fact that Elizabeth Wilmshurst’s change of approach since 1998 turns on a detailed construction of 1441 shows the question is not an easy or obviously one-sided one. The fact that two views are possible is enough, in my view, to reject wild, overblown and rhetorical claims that Tony Blair is a “war criminal”, for example.

I’ve already said I prefer the revival argument. But finally I must deal with Elizabeth Wilmshurst’s further point, that in circumstances like those of 2003, government should adopt the legally safest course and only use military action where it is legally uncontroversial. That’s a policy argument rather than a legal one, but it has some force. On the face of it, it seems to be the internationalist position, the one that favours multilateralism and the UN. But it isn’t, in truth.

After the Berlin wall fell, the UN was suddenly free of the shackles of the cold war: it found it could unite and act against Iraq in 1990 and 1991. The first president Bush could speak of a “new world order”. But through the 1990s, the UN’s authority was systematically undermined by Iraq – and it began to lose its unity and its will. By 2003, the question was whether its authority meant anything or whether its orders could be safely defied for ever. It was the determination of the US to confront Iraq and enforce UN resolutions, not the French and Russian reluctance to do so, that represented the old idealism of collective security against aggression.

Had the Security Council united to give Iraq a clear ultimatum in a “second” resolution (there were many resolutions about Iraq’s disarmament in truth), as Britain wanted it to, then the UN’s authority might have been upheld without political division – maybe even without war. Of course it didn’t unite, and didn’t agree to do anything, primarily because of the unwillingness of France, Russia and China. In judging the subsequent actions of countries like the US, Britain, Spain, Italy, Australia, Holland, Poland, Denmark, Japan and South Korea among others, I prefer to read the background UN resolutions in a way that favours the enforcement of international disarmament obligations – and permits their multilateral action; it is surely a mistake, and arguably even a betrayal of the UN ideal, to read them in a way that requires minimum respect from aggressors for the UN’s united will, and maximum respect from members for its culpable inaction.

2012-09-10T14:23:50+00:00Tags: , , |

The truth about Munir Hussain

January 22 2010

A lot of the talk about the release of Munir Hussain, the law of self-defence and the functioning of the courts this week has missed several points. Why, people ask, didn’t the judges take account of the anguish Hussain was in following the attack on his family? Why does the law not allow you to do what you feel is needed to defend yourself? If the Court of Appeal could free Hussain this week, people ask, why didn’t the original judge do so in the first place? And doesn’t this all go to show we have to “clarify” the law to redress the balance in favour of householders?

When I wrote about the case just before Christmas (or rather, in my defence, about Chris Grayling’s misconceived policy proposals triggered by publicity about the case) A Basu drew attention to the transcript of the judge’s sentencing, which makes interesting reading. Judge John Reddihough made clear the case was not about self-defence

The prosecution rightly made it plain that there was no allegation against you, Munir Hussain, in respect of the force you used against Salem in defending your own home and family or of the force used by either of you in apprehending Salem.

in fact, Munor Hussain never even pleaded self-defence

Of course, it is to be noted that it was never suggested by you or on your behalf in the trial that there was any justification for the attack upon Salem. You simply claimed that you were not involved in it.

So the jury never actually had to decide whether the force he used was reasonable. The issue for them seems to have been one of identification: whether or not he was there. This is yet one more illustration of the fact that reporting of criminal cases is often misleading and it is unfair to fulminate against out-of-touch judges without knowing the full details.

Then we get to the meat of the sentencing decision:

The sentencing guidelines for this offence, the maximum sentence for which is life imprisonment, indicate that usually when such serious injuries result from such an offence, a very long sentence of imprisonment of seven years or more should be imposed after a trial. Whilst I must have regard for those guidelines, I also have to have in mind the particular and unusual circumstances of this case and all the mitigating factors. I have had regard, too, to relevant reported Court of Appeal cases, including R v Smith (2009), R v Fazal (2005), R v Lindley (2009) and A-G Reference 83 of 2001. Immediately before you both committed this offence, Munir Hussain and his family had been the victims in their own home of a very serious and frightening criminal offence. In my judgement, there was a high degree of provocation which led to this offence being committed and to you both acting out of character…

The prison sentences I pass upon you are very significantly shorter than would have otherwise been imposed by reason of the degree of provocation involved and the other strong mitigating factors to which I have referred.

So the judge did take provocation into account. The reference to the sentencing guidelines is also interesting. They make clear that 3 years is the very bottom of the sentencing range for the offence Munir Hussain committed (page 13 of the pdf). The judge arguably went beyond that, reducing the sentence further because of provocation even though the guidelines don’t point that way. They say provocation should be taken into account (see para. 31 of the pdf)

when sentencing an offender who claims to have been provoked into committing an offence against the person

which was not the case here: Munir Hussain claimed not to have been there at all. So the judge, who was legally obliged to take account of the guidelines under section 172 of the Criminal Justice Act 2003 went as far as he reasonably could in Hussain’s favour, even bending the guidelines to achieve leniency.

Why, though, did he not suspend the sentence, as the Court of Appeal did? The reason is that he couldn’t. Section 189 of the same Criminal Justice Act 2003 provides that imprisonment can only be suspended if ordered for less than a year ( to be precise, I think 51 weeks has been amended to 12 months, but I can’t track down the amending provision). You can see, if you look at the guidelines closely, why the judge felt unable to drive the sentence down quite that low. The Court of Appeal (I’ve not seen the judgment yet) clearly felt able to go further, and reduce the sentence to twelve months – at which point the option to suspend became available.

Why are the sentencing guidelines there? Because politicians want to ensure consistency in sentencing, believing (perhaps with some justification – I’m not against the guidelines) that judges cannot safely be allowed too much discretion. Why is section 189 there? because politicians wanted to stop judges from suspending prison sentences for offenders like Munir Hussain. Presumably because they thought judges were being too lenient and needed to be made more firm.

If there’s a problem here, the answer is not more meddling by politicians, straitjacketing the judges trying to do justice in the individual cases before them, whose multifarious variety well exceeds the imaginations of MPs and the surely and how come merchants in the press who egg them on to unwise action.

2010-01-22T14:31:08+00:00Tags: |

My CiF piece on Nadia Eweida

January 22 2010

On Wednesday I wrote about the Nadia Eweida case at Comment is Free.

My line’s a compromise one, I think: my starting point is a secularist one, but I’m not insisting on the workspace being absolutely non-religious. I doubt that’s achievable under the 2003 regulations. Some (misguidedly I think) are tempted to see a secularist approach as itself a sort of fundamentalism, and I think those who believe real freedom depends on maintaining a predominantly secular public space would be wise not to fall into that trap. So I’m prepared to give a little to meet genuine religious concerns, and I think a reasonably principled compromise may be possible, along the lines of the Aberdare school case, in situations where

  • someone doesn’t just believe they have to wear an item for religious reasons, but can show there actually is such a requirement;
  • the item either cannot be covered up or if it can, is covered up so far as possible, and
  • displaying the item is not in any conflict with dignity, equality and human rights.

This, I can accept. It’d mean you could wear a kara or a turban, for instance, and maybe the hijab (is it really required? I’m not sure, though as I understand it, that’s a more mainstream Muslim view than the belief that a jilbab or full veil is needed). The claim that you should be able to wear a full veil would not pass my test – it’d fall down probably on limb 1 of the test, and certainly on limb 3.

What I obviously don’t want is significant encroachment of religious rights over the rest of us, which is what I think Liberty’s approach entails. I think their support for Nadia Eweida puts religious privilege over equality – and indeed freedom from her religion for the rest of us.

2010-01-22T13:36:57+00:00Tags: , , , |

Banning the burka in France

January 14 2010

While the British government bans Islamist groups, it looks very much as though some kind of ban is going to be imposed in France on being completely veiled – wearing the niqab, chador and burka – in public. A committee of the National Assembly has been considering the current position since last summer, and there is support for a ban of some kind among MPs from President Sarkozy’s UMP party, Jean-François Copé wanting to move quickly to legislation, pre-empting the committee’s findings (Authueil has the text; Jules at Diner’s Room argues that it’s unconstitutional). Ministers are divided, employment minister Xavier Darcos arguing against a ban, which he argues is unenforceable, preferring instead a Parliamentary resolution, which he sees as potentially authorising public officials and others to require unveiling when doing business with them. Interior minister Brice Hortefeux is in favour of a limited ban, for instance in the context of public services. Prime Minister François Fillon is also in favour.

In that context, Nicolas Sarkozy’s most recent intervention can be seen as an attempt to unite his supporters. He’s calling for a Parliamentary resolution first, to be followed up by some form of legislation. The opposition socialists are divided, Laurent Fabius being open to a ban while Martine Aubry is opposed. I really can’t understand Julien Dray’s position, which is apparently to say the burka is unacceptable in France but to oppose a ban, preferring a “pro-dignity law”.  The effect of which is not clear.

There’s some division among lawyers, too. Anne Levade from the University of Paris XII told the Parliamentary committee that a general ban would be in breach of fundamental rights, though some specific limitaitons on the full beil could be defensible; Bertrand Mathieu of the Sorbonne agrees. But in the same session, Guy Carcassonne from the University of Paris Ouest argued that the European Court of Human Rights would uphold a ban on all face coverings in public imposed on grounds of public order and security.

Une loi fondée sur l’ordre public n’exposerait pas la France à une condamnation par la CEDH : il ferait beau voir que la Cour de Luxembourg expliquât à la France que le fait de cacher son visage aux autres est un droit inaliénable et sacré !

[Legislation on public order grounds wouldn’t result in France’s being found in breach by the ECtHR: I’d like to see the Court in Luxembourg tell France that concealing your face from others is an inalienable, sacred right!]

Apart from the classic howler of misplacing the European Court of Human Rights in Luxembourg (that’s the European Court of Justice; the ECtHR is actually in France, at Strasbourg), surely this is too confident. While Sahin v Turkey makes it clear that a ban even on wearing a headscarf can be justified in terms of the right to freedom of religion, that was a limited ban in public educational intstitutions. I don’t think it can be safe to assume a general legal ban would be okay. More importantly, I think the problem with his approach is that his law would be based on dishonest grounds. If I were a judge in Strasbourg I doubt I could honestly find a ban justified on public order grounds if that was not the real policy purpose behind it. The real reason for considering a ban is to combat extremism and protect women’s rights. If one is imposed, it should be justified in those terms.

If I were advising the French government, I’d suggest something along the lines Sarkozy has proposed: wait for the committee’s report, pass a resolution (these steps may help France’s defence in Strasbourg) and then consider legislating in some form. I reckon legislation could defensibly outlaw wearing the veil in the public sphere (by public servants on duty, in courts, in education and so on; perhaps releasing public authorities such as benefits offices from any obligation to deal with veiled customers) and give special protection to employers who justify banning the veil.

I wonder what the former justice minister and MEP Rachida Dati thinks of all this. As a matter of interest, she’s just become an avocate. That seems to be a fashionable move among French politicians for some reason.

2010-01-14T19:39:17+00:00Tags: , , , |
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