Michael White on John Demjanjuk

December 2 2009

Michael White, writing on the Guardian’s website, argues that John Demjanjuk, currently on trial in Munich, should not be. Demjanjuk is accused of involvement in the murder of thousands at the Sobibor death camp in Nazi-occupied Poland during the war; Michael White’s argument is that it was all a long time ago, there’s nothing more to learn about the death camps, that Demjanjuk was at most a small cog in the murderous Nazi machine, and that he’s already been acquitted in Israel.

They’re fair enough arguments. In other circumstances, I might agree with him. What makes my view different is the fact that this trial is taking place in Germany. Can you imagine the reaction of liberal writers elsewhere had Germany decided it should not seek Demjanjuk’s extradition or prosecute him? People in Britain are in my experience very ready to point the finger at Germany and Austria if they show any apparent laxity in dealing with the Nazi past. I’m not troubled by that. But we can’t have it both ways, and also insist they go easy on the likes of Demjanjuk or David Irving when their severity troubles our liberal consciences. We must make up our minds whether or not we want Germany to compromise on this kind of thing.

I back any German measures aimed at tackling the Nazi past or neo-Nazism, and I am pleased this trial is taking place. As is clear from the DW World report I linked to earlier, Demjanjuk will be robustly defended and arguments based on his health and double jeopardy will be considered by the court. Michael White can also rest assured that, whatever else happens, Germany will not “string up” Demjanjuk.

2009-12-02T17:17:08+00:00Tags: , , |

Elias LJ’s Renton lecture

November 25 2009

After the great fun I had at last year’s inaugural Renton lecture, I thought I’d head to the Institute of Advanced Legal Studies to hear Elias LJ talk this year about “The rise of the Strasbourgeousie: judicial activism and the European Court of Human Rights”. He didn’t talk about the ECtHR itself, choosing to focus for most of his lecture on how British judges do and should conceptualise their own relationship to the ECtHR when taking decisions under the Human Rights Act. Are they – and should they be – enforcing essentially domestic rights that just happen to take the same textual form as the ECHR? This is what he called the “autonomous rights” model, according to which the Convention rights in the HRA are domestic rights based on the Convention. If that’s the right model, then the courts here can go further in protecting rights than can Strasbourg. Or are the HRA Convention rights merely a “mirror” of the ECHR, so that judges here are trying to predict or copy what Strasbourg would do? Elias LJ expressed the view that it was strange, after nine years of working with the HRA, that it was unclear which approach the courts prefer.

The basic starting point was Lord Bingham’s speech in Ullah v Special Adjudicator (para. 20), which is based on the “mirror” theory that Elias LJ clearly prefers:

In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, paragraph 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

He went on to criticise the approach of Lord Hoffmann and Lady Hale in In Re P, a case in which their Lordships decided they could find a breach of Convention rights even where the ECtHR would find see the state’s behaviour as within its margin of appreciation, and so permitted. He saw this approach as depending on the, in his view, wrong “autonomous rights” model.

This was all interesting, but I never quite understood why Elias LJ sees this seizure by the judges of the right of appreciation as necessarily depending on the autonomous rights model. Yes, to be fair, Lord Hoffmann’s speech in In Re P clearly suggests the two are linked. But are they, necessarily? The ECtHR’s willingness to allow national authorities wiggle-room in the form of the margin of appreciation isn’t a result of the Convention rights themselves, their scope or meaning. It’s simply because of the Court’s position as an international tribunal, incapable of really assessing social conditions in each contracting state. The margin of appreciation is by its very nature an international law concept about the nature of international judicial supervision; for national judges to be readier to intervene on the basis of their better local knowledge seems to me consistent in fact with their applying the same rights, with the same scope and content.

I liked, though, the way Elias LJ encapsulated one of the situations in which, even on Lord Bingham’s approach, our courts should depart from their understanding of Strasbourg case law: they should reach judgments they think the ECtHR could and should make, even if they don’t think it would.

The lecture also included a discussion of the radical idea that Parliamentary sovereignty might ultimately yield to human rights considerations, suggested not only but notably by Lord Steyn in Jackson v Attorney General (para. 102):

The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

Elias LJ thinks what’s wrong with this is the idea that Parliamentary sovereignty is just like any other common law rule. He thinks as our consitutional Grundnorm or ultimate rule of recognition, Parliamentary sovereignty is different.

I enjoyed the wine and legal conversation that followed the lecture, too, and I’m glad to say bumped into Heather Hope, who when we were both pupils back in the nineties taught me how to survive in London’s criminal courts.

2009-11-25T12:59:23+00:00Tags: , , |

Two tales from Austria

November 24 2009

I’m interested that the Austrian justice minister Claudia Bandion-Ortner has disbanded a special unit of “political” prosecutors (German/Googlish) responsible for deciding whether to charge politicians suspected of offences. This is partly because of the revelation that the unit had effectively forgotten about a case against a former interior minister, Ernst Strasser, and allowed it to become time-barred (criminal cases are generally subject to time-limits in Austria). Another article in Der Standard explains that the unit had also come in for heavy criticism from politicians, who believed the unit’s specialist prosecutors were pursuing them with undue zeal (German/Googlish). From 2010, the most serious cases will be prosecuted by a new specialist corruption unit; otherwise, more ordinary criminal cases against MPs will be randomly assigned to generalist prosecutors.

I think this is interesting partly because the change has been decided by a minister, under pressure from opposition politicians – this is a not a story that inspires great confidence in the independence of Austrian justice or its ability to enforce the law against those with power. It’s also interesting because I can imagine politicians here arguing in other circumstances (Damian Green-type circumstances) that police officers and prosecutors working on these sorts of cases should be specialists, aware of the political and constitutional sensitivities.

By the way, Salzburger Fenster (German/Googlish) points out that Ernst Strasser seemed to be doing was directing public investment to localities – or not – depending on the party affiliation of the mayor. This is part of the so-called Parteibuchwirtschaft with which Austrians are familiar, and according to which all sorts of goodies – jobs, for instance – are routinely given to people because they are members of the right political party. I wish we were entirely free of that sort of patronage economy in Britain.

The second story, now. Because of compulsory retirements, two places are becoming vacant on Austria’s constitutional court (German/Googlish). The government has the right to nominate one of the new judges; the upper house, the Bundesrat, will nominate the other (the majority of judges, eight, are government nominees while each house of the legislature nominates three). According to Der Standard, the governing coalition has agreed that both vacant seats on the Court should go to the social democrat SPÖ.

Is that really the way to choose a consitutional court?

2009-11-24T15:54:29+00:00Tags: |

Michael Howard on “repatriating” human rights

November 23 2009

It’s always worth listening to Michael Howard’s views on constitutional and legal matters – he was one of the first Conservatives to speak about “repatriating” policies from the EU as I recall, an idea that was considered extreme at the time (and by some now of course) but which has since become Tory orthodoxy. Whether you agree with him or not, his ideas are coherent and tend to be based on a realistic understanding of the law rather than the eccentric views taken by the wilder Eurosceptic fringe. So I read with interest his post on the Blue Blog about replacing the Human Rights Act with a “British Bill of Rights”. This inchoate policy may be part of a new government’s programme next year, so it’s about time the idea was fleshed out by someone.

Howard doesn’t achieve that; nowhere does he suggest how such a Bill could achieve what he wants, which is a reduction in the power of judges as against the executive, at least as far as interpreting the ECHR is concerned. It seems to me what the Tories probably need to do, if they want that, is to repeal section 4 of the Human Rights Act and to amend section 3 so as to make it a weaker interpretative tool. That would water down the Human Rights Act to a fair degree, and restore us to something more like the pre-2000 position in which you had to go to Strasbourg if you wanted to challenge on human rights grounds anything Parliament had legislated for.

But Howard does put his finger on what the real issue is lying behind the whole debate about human rights in the UK: the arguably interventionist approach of the European Court of Human Rights. I’m a supporter of the Human Rights Act and of the ECHR, and I think the ECtHR is a good thing, too. I agree with a lot of what it does and much of its fundamental approach – I think it’s right to interpret the ECHR as a “living instrument” for instance, rather than seeing its application as limited by what the original framers had in mind in 1950. And I think it’s excellent that it operates by majority vote, with clear alternative judgments provided when judges dissent from the majority or even when they agree with the outcome but on different reasoning.

But there are occasions when the ECtHR seems too ready to correct national policies; the examples I have in mind are Hirst, the case about prisoners’ voting right, and S and Marper about the retention of DNA. I think both judgments were wrong (and not just because I disagree with the outcomes in policy terms: I’m content with the idea that prisoners should be able to vote) and I don’t blame the government for taking its time in complying with them.

No individual country can change the culture of the ECtHR on its own of course or override its rulings – all it can do ultimately is defy the court and try to succeed in argument in a later case. Not something anyone wants who is concerned about the rule of law. But I agree with Michael Howard that more caution from the court would be welcome, and I think he’s right that that is the goal any Conservative government should focus on if it’s serious about this subject. All politicians can do is try to influence the court with their speeches – but there’s nothing wrong with them trying to do so, and I hope the Strasbourg judges are listening.

What Michael Howard says will remind many people of Lord Hoffmann’s speech earlier this year on the same subject, and my reaction now is much like my reaction to Lord Hoffmann then.

2009-11-23T17:35:44+00:00Tags: , , , |

Binyam Mohamed – again

November 19 2009

Another week, another Binyam Mohamed judgment. This time, Thomas LJ and Lloyd-Jones J have decided to restore to their previous judgment the passages they redacted out at the request of the Foreign Secretary, who claims they’d endanger national security – but not yet, since he intends to appeal not only against that decision but against the decision in that previous judgment to restore to an earlier judgment passages they had initially redacted from that one. And in the meatime they have inserted into their previous judgment passages giving an unobjectionable “gist” of their reasoning on the bits that are now being appealed. Got that? It is all a bit confusing.

More importantly than all that, the court has given the Foreign Secretary permission to appeal – he argued that

an appeal has now become a matter of urgency and that it should be expedited

with which I heartily agree. I don’t blame the judges entirely for the mess here – no one comes out looking especially good as a result of this case, which has become increasingly absurd and in which the original issue – whether certain information should be disclosed to Binyam Mohamed – has been resolved, overtaken by time and apparently forgotten by all. As I’ve said before, the sooner this gets to appeal, the better.

2009-11-25T13:12:38+00:00Tags: , , , , |

Open Europe calls for opt-out from equal pay

November 6 2009

For many years Eurosceptic Conservatives have wanted the UK to be “opted out” of EU social legislation – John Major negotiated an opt-out from the “social chapter” at Maastricht (though he seemed to get no thanks for that from his own backbenchers) and Michael Howard has long been arguing for repatriation of power in the social and employment field. Fair enough; I don’t agree (even though I sympathise to some extent with concern about creeping EU competence in this area) but my main interest is in the legal aspects of these ideas of course.

So I’m interested in the proposal from the think-tank Open Europe which, following David Cameron’s announcement that he will indeed seek a repatriation of social and employment law, now argues for a complete opt-out from or disapplication of all the EU’s social provisions. You can read the full briefing here; there’s also a press release, and a post at Conservative Home from Mats Persson explaining Open Europe’s approach.

I think Open Europe is a good thing. I certainly don’t always agree with it – not by any manner of means – but it does not tend to make wild claims about EU law and the legal content of this briefing, while containing some interpretation of the legal position from a Conservative viewpoint (for instance, not everyone I think would agree the ECJ’s judgments on working time have unpredictably extended the scope of the legislation), is serious and pretty accurate. My one real query is whether it’s right to say UK law that has implemented past EU social law would remain in force following an opt-out; that at least needs careful thinking about, and might require the opt-out to be cleverly worded so as to apply only prospectively. But they may be right.

A very important point that I think needs drawing attention to, though, is that Open Europe is calling for an opt-out from all EU social law – including what’s now article 141 TEC, and what will soon be article 157 of the Treaty on the Functioning of the Union. Article 141/157 is the provision that

Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

The UK has never before been opted out of this provision – it was always in the Treaty the UK signed up to (in a slightly different form), and we have always been bound by it. Many women in the UK – and men – have successfully relied on it in UK courts to achieve equal pay.

I’m not accusing Open Europe of wanting to discriminate against women – I’m sure they’re more sensible than that. But nonetheless, they are calling for the UK to opt out of this. Why? Their argument makes much of the “costs to business” of EU social regulation. But no costs can be saved by this at all, if the UK continues to require equal pay for women. And an opt-out would potentially harm the UK labour market. At present, talented women from elsewhere in Europe know – without having to pay a solicitor for advice – that they can come to work in the UK safe in the knowledge that they have the same equality rights here as they do at home. An opt-out from this article would remove that security, and potentially hinder free movement and labour flexibility.

I think Open Europe, and Conservatives and others who want “social repatriation”, need to be explicit about it if they want out of equal pay – it may affect many people’s attitude to their proposals. To be fair, Open Europe have been open about it in their full briefing, if not the press release. I’ll be interesting to see how they justify the proposal, if they can.

2009-11-06T14:07:09+00:00Tags: , , , , |

Cameron’s National Sovereignty Act: what does it mean?

November 4 2009

This afternoon as part of his new EU policy, David Cameron promised a National Sovereignty Act, to make clear that British institutions ultimately rule on our relationship with the EU. I watched his speech, and thought he made a pretty poor job of explaining this (admittedly fairly abstruse) aspect of his policy. I fear that with this policy – that I think is both unnecessary and alien to our constitution – he will raise Europhobe hopes without having any real effect on the relationship between EU and UK law.

What he’s saying is that, just as in Germany the German constitution is ultimately sovereign, so that the German Constitutional Court could rule recently on whether Germany could sign up to Lisbon, so, equally, the UK constitution should be supreme in the UK, and the last word on what is law here should rest with Parliament and the British courts. That is a reasonable proposition.

But it’s also the existing position. Parliament is sovereign, it can repeal the European Communities Act 1972 or amend it, the British courts would interpret and apply any such amendment, and the British courts decide whether the UK can sign up to any further EU integration – as indeed they did in the 1990s in the Rees-Mogg case.

Cameron’s proposal will change nothing; there is no legal or constitutional point in it, and it’s even dangerous. Parliament has no need to legislate for its own sovereignty (indeed it makes no sense to do so since Parliamentary sovereignty is a common law rule) and doing so raises a critical question: what would the position be if such legislation were ever repealed? As you were, might be the answer. I hope so; I’d rather the question could never be asked. This is dangerous constitutional tinkering.

And if journalists’ questions to him are any guide, many will think his plan would somehow limit the power of the European Court of Justice or affect the EU law doctrine of the supremacy of EU law. It would surely do no such thing (although he seemed to suggest it might, prospectively), not at least if he meant what he said about trying to achieve equivalence with Germany. I fear, though, that this will seriously and misleadingly raise the hopes of radical Eurosceptics.

2009-11-05T02:40:04+00:00Tags: , , , |

Lord Martin on Damian Green: car-crash evidence

November 4 2009

A special Commons committee chaired by Sir Ming Campbell is currently inquiring into the arrest of Damian Green MP last year, and search of his Parliamentary offices; and on Monday they heard evidence from the former Speaker, now Lord Martin. You can watch the full session here, and if you’re interested in this affair, you should.

I’ve long argued that the real scandal here was Jacqui Smith’s decision to involve the police in the first place, and the arrest of Damian Green; the business about the search, warrants and privilege was a storm in the Commons tearoom. Unfortunately, this committee seems still to be labouring under serious misunderstandings about PACE and search warrants, misunderstandings that will prolong its inquiry and make its report flawed, unless they are corrected. The sooner it obtains either legal advice, or independent evidence about the law governing police searches, the better. Ann Coffey’s question to the former Speaker – what was special about the Commons that led the police not to seek a search warrant, although they’d sought warrants in relation to other premises? – would then be answered. What was special was that the police having asked for consent to enter (the correct first step under the relevant PACE Code in such circumstances) and having been told they’d be given consent, there were no legal grounds on which a warrant could have been applied for or granted.

What’s most interesting about the session, though, is the unimpressive showing of the former Speaker, who is hesitant and vague in his answers, at times evasive, and whose answers are seldom satisfactory. Michael Howard for instance skewers him for having effectively misled Parliament in his statement following the search. It’s also quite clear Speaker Martin had no grip whatever on his staff, no appreciation of the sensitivity of the issues, and no feeling that he, as opposed to his staff, had any responsibility to take any action or ask any questions of anyone once he knew a search would be conducted. Worst of all, this supposedly kindly man reveals himself in his evidence as ready to criticise others severely (notably the Serjeant at Arms, the Clerk of the House and the police) although there is little evidence they did much wrong, and although his own failings were clearly more important.

For example: he severely criticises the Clerk, who first heard of the search when it was happening, for leaving the country following the search to go to his home in Portugal. Yet it was the Clerk – not Speaker Martin, who knew of the search the day before and had failed to tell the Clerk about it – who had instantly taken steps to satisfy himself that the search was lawful; and it was the Speaker, who knew about the planned search – not the Clerk, who didn’t – who chose to be absent from the House on a personal matter and outside the reach of easy communication on the day it was to be carried out. Lord Martin reveals himself in his evidence as a small man who, passive in the lead up to the search, now seeks to blame others for what happened.

He also accused the police of being sleekit in obtaining consent to enter the House. I think this is an outrageous thing to say, especially since Lord Martin surely must know that HM Inspectorate of Constabulary has found that the police acted properly in seeking consent as they did. In very clear evidence Lord Martin told the committee that the Clerk, on the Monday following the search, had told him the police had “bamboozled” and “tricked” the Serjeant at Arms. Yet the Speaker’s secretary, who attended the meeting, told the committee he remembered no such language being used. It’ll be interesting to see what the Clerk himself says.

No doubt there are things the police, the Clerk and the Serjeant at Arms could have done better, and I dare say the committee will find some fault all round. But the police were right to seek consent to enter, and once it was given, were right not to seek a warrant (which would have been denied because of the consent). The Serjeant at Arms was surely right to give consent to their entry, no one – notably not the Speaker – having raised the question whether there was or should be a warrant, or having suggested she should do anything other than cooperate. And the Clerk was surely right, having been entirely surprised by the search, to immediately take action to satisfy himself that it was legally proper – as it was – and to inform the Speaker.

The storm in the tearoom arose only because of the political sensitivities involved, and only because the Speaker failed to ask the right questions, seek the necessary advice and to take the action needed to deal with those sensitivities. When he finally realised the full significance of what was happening – after the Clerk phoned to tell him the search was being conducted properly – he asked the questions he should have asked 24 hours or so beforehand and got answers he didn’t like. His first instinct then was to blame others, and even, we now learn, apparently to mislead the House.

This evidence is the final proof that Martin was unfit for his office.

2009-11-04T14:23:17+00:00Tags: , , |

A suggestion for Suzy Gale

October 29 2009

They’re still at it. Suzy Gale, wife of the Conservative MP Roger Gale, says

I have taken advice from an employment lawyer and if this goes ahead I will be taking legal action for unfair dismissal or positive [sic] discrimination against whatever authority I can.

But also

Gale said advice she had received suggested it was not clear against whom she should launch legal challenges. “Who do I sue for unfair dismissal? My husband or the House of Commons?

Only her employer can dismiss her: surely she must know who her employer is. If it’s her husband, won’t he have given her particulars of employment under section 1 of the Employment Rights Act 1996?

I’ve already explained why employment law doesn’t help her. But on reflection, I do have some thoughts about a possible form legal action might conceivably take. I’m not saying it’ll succeed. But it may be possible.

The Independent Parliamentary Standards Authority set up by the Parliamentary Standards Act 2009 is obviously doing something of a public nature; and it’s outside Parliament, so in principle will be judicially reviewable. Suzy Gale will be affected by what it does, if it prepares a scheme under section 5 that prevents any allowance being used to pay her to work for her husband. So she’d have standing to judicially review it. Her gounds? If the scheme took effect immediately, she might try arguing that the IPSA was irrational to adopt it because (1) its effects are indirectly discriminatory since they will affect more men than women and (2) that it is unreasonable and disproportionate for it to have the effect of terminating her job immediately after 27 years.

The beauty of this approach it that it gets round the obvious problems of an employment law route. The discrimination argument is an abstract one of principle so the “comparator” issue doesn’t arise, and since judicial review gets at the rule-maker rather than the employer applying the rules, it also opens up a possible proportionality argument. Note that the claim doesn’t necessarily rely on proportionality as a free-standing ground of challenge (whether it can be or not in English public law is an old chestnut debate among lawyers). Proportionality comes into the argument as an essential part of the discrimination claim, since the indirect discrimination in the scheme would be plainly justified except to the extent it has disproportionate effects on some individuals. The discrimination argument wouldn’t be the basis of the legal challenge as such, but just an essential part of the reasoning: the argument is that because of the discrimination and the harsh effect on some individuals, the IPSA acted unreasonably in preparing the scheme.

Notice also that I’ve not mentioned a legitimate expectation argument. I suppose if you really were conducting this litigation, you’d probably throw it in. But it’s a bad argument I think. Suzy Gale can only have a legitimate expectation to be employed in accordance with whatever the current rules are; a clear proposal from Sir Chris Kelly soon, and statement by the IPSA that it will incorporate his proposals into its scheme will surely be enough to make illegitimate any expectation she might possibly have of being entitled to work on regardless.

If I were advising the IPSA, this just possible judicial review might make me think it’d be safer for the scheme to contain some transitional provisions softening the blow and making it more difficult to argue a lack of proportionality – one Parliament’s grace for people with over 25 years’s service like Suzy Gale, for example, would seem to me more than enough. A year or two would almost certainly do, I’d have thought.

I’m not suggesting the scheme would be unlawful without such transitionals – even the proportionality line of argument is weak because Suzy Gale can have no expectation her husband will be reelected and her current work will continue. She must have spent all of the last 27 years thinking about the day she’d need to get another job, so the effect on her of the scheme would not be so life-changing as all that. And as Botogol pointed out in comments on my previous post, if the “ban” on employing spouses is merely in IPSA’s allowance scheme, it won’t actually prevent Suzy Gale continuing to work for her husband. It’s just that, like most employers, he’d have to pay her.

All I’m saying is that this may actually be a legal claim Suzy Gale could try, and that the risk of her doing so might be realistic enough to influence IPSA’s thinking at the margins.

2009-10-29T01:55:28+00:00Tags: , , |

Law and Sir Chris Kelly: MPs’ spouses

October 28 2009

We’re getting used by now to MPs moaning that the sensible expenses rules now being applied to them are supposedly unlawful. The latest claim is that preventing MPs from employing spouses and relatives would lead to unfair dismissal, sex discrimination and wrongful dismissal. Again, and predictably, this is rubbish.

We don’t know of course the detail of Kelly’s proposals: there is some suggestion that this change would be phased in some way – perhaps applying only to new MPs after the next election, and to all MPs from the election after that. I’m not sure any of that is critical in legal terms, though.

First, wrongful dismissal – which essentially just means breach of contract. Whether MPs’ spouses who work for them have contracts of employment (i.e. they are employees) or contracts for the provision of services (i.e. they are contractors) must depend on individual arrangements, I suppose. Either way, it is surely impossible to interpret such a contract as giving the spouse a right to work as an MP’s assistant permanently. As Liam Murray rightly suggested in comments at Iain Dale’s Diary, they can’t possibly be employed as MPs’ assistants when Parliament is dissolved and there are no MPs. To take that further, you can’t possibly have a contract to serve as an MP in the next Parliament, giving you contractual rights to do so regardless of the voters’ choice. Surely these must, properly construed, be fixed-term contracts of employment or for services in the current Parliament. In those circumstances, I don’t think there can be any breach of contract if no MPs’ spouses contracts are renewed after the next election – regardless of how long they’ve served. And even if the rules come in before then, I don’t see how the contracts can be interpreted as giving spouses contractual rights regardless of Parliament’s internal rules. They can only sensibly be read as subject to the internal rules Parliament adopts for MPs’ conduct.

Nor do I think even applying the new rules tomorrow to all MPs would lead to unfair dismissal. I assume Kelly’s proposal will be that the “no spouses rule” be adopted by the new Independent Parliamentary Standards Authority as part of its allowances scheme under section 5 of the Parliamentary Standards Act 2009 – that’s the only way it can be made compulsory for MPs since investigations under section 9 can only be for improper allowance claims or failure to declare financial interests. So he must be proposing what I’ve suggested, or else amendment to the Act. In those circumstances, dismissal would surely be lawful under section 98(2)(d) of the Employment Rights Act 1996 as

the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

That obviously includes the duty or restriction Sir Chris is proposing be imposed by the 2009 Act. Even if there were no such legislation, in my view the dismissal would be for “some other substantial reason” under section 98(1)(b). It is inconceivable that a tribunal would think, in the context of the new allowances scheme, that for the purposes of section 98(4) the MP acted unreasonably in dismissing the spouse in those circumstances.

It’s also said there may be sex discrimination here, and on the face of it there may be indirect discrimination, if more wives are affected than husbands. A sex discrimination claim is problematic, though, since each MP employer only employs one spouse – Parliament is not the employer of all these spouses, and I don’t think it’s obvious that the dismissed wife of one employer can compare herself for the purposes of discrimination law with the dismissed husband of another. But even if that hurdle can be overcome, the real point is that indirect discrimination is lawful under section 1(2)(b)(ii) of the Sex Discrimination Act 1975 if justified irrespective of sex, and to let an employee go so as to comply with legal requirements would certainly be justified.

A last thought strikes me. I suppose, as a stunt, that a dismissed wife might go to an Employment Tribunal – claiming unfair dismissal, say, against her MP husband – and that her husband could decide not to defend the claim, both of them hoping to be able to brandish a finding of unfair dismissal. Thankfully, I doubt that would work either, since the Tribunal Chair would have power under rule 10 of the Employment Tribunals Rules of Procedure (which are in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004) to stay the proceedings.

2009-10-28T15:06:27+00:00Tags: , , , |
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