Charon QC podcast: the “Guardian gag”

October 13 2009

Charon QC interviewed me this afternoon about the “Guardian gag” affair – the attempt by Carter-Ruck solicitors to prevent publication of reports of a parliamentary question by Paul Farrelly MP.

I think some blogger’s references to the Bill of Rights 1689 is over the top – the Bill of Rights protects Parliamentary debates themselves from injunctions, not the reporting of those debates by others. But the case does raise serious questions: Parliamentary privilege means nothing if law protects MPs’ right to speak in the House, but prevents us from knowing what they say. It seems extraordinary, especially in view of section 12 of the Human Rights Act, that a court should have felt it in the public interest to prohibit reporting of a Commons question. I hope this case prompts Parliament to look closely at what further protection is needed in this area – and prompts the courts to take more care in making sure “superinjunctions” – which prevent any discussion of the fact of the injunction or of who obtained it – are granted only where really necessary.

Listen to the podcast here.

2009-10-13T18:38:34+00:00

A new Supreme Court – and a new era

October 1 2009

The Supreme Court of the United Kingdom opens officially today – and with it, a new chapter in this country’s legal history. The Guardian has a leader about it today, and the opening is likely to be covered widely in the media. Sittings actually begin on Monday, when the Justices will begin to hear the appeal in H.M. Treasury v A and others and a leap-frog appeal from the Administrative Court in H.M. Treasury v Hay. These judicial review cases raise similar issues relating to the validity or otherwise of Treasury orders freezing the assets of people suspected of aiding terrorism – specifically, Al Qaida and the Taliban.

You can visit the Supreme Court’s website already, though – and listen to an interview recorded a few days ago by Charon QC for the College of Law with Jenny Rowe, the Supreme Court’s chef executive, about how the court will be run, its jurisdictions and membership, its running costs, facilities and access to the public and broadcasters. Jenny’s giving that interview is a very good sign that the court will be as open as I’d hoped – and she says we’ll be able to download documents filed in cases, presumably including written submissions. Very good news.

Oh, and watch out for Sky News tonight from 7 – I’ll be discussing the Supreme Court, and specifically the significance of the facts that TV cameras will be recording the Court’s proceedings for broadcast.

Gordon’s speech – and law as a stick for governments

September 30 2009

Gordon Brown’s conference speech yesterday gripped the nation, obviously – if you want to know what I thought of it politically, have a look at my other blog. A couple of constitutional and legal points emerged from it too, though.

Obviously, there was his surprising (in the civil service sense – a phrase I may get addicted to) promise of a referendum on the alternative vote system. That takes me back to the 1980s, actually, when as an enthusiastic Liberal/SDP student (you could join both in those days) I was all for STV and spat metaphorically on the unilaterally disarming, anti-European, pro-siege economy Labour students who, in response to the irresistible call for fair votes, suggested AV. I’ve changed my mind since then, put off by the permanent coalition government STV would bring, and the resultant muffling of the public’s ability to influence who has power. In Germany this week, for instance, we’ve seen Angela Merkel’s power increase even though her party’s vote went down to its second-lowest level ever. I’m not sure Gordon’s referendum is a good idea – and it may well not attract the liberal votes he wants. But it has a nice nostalgic whiff of Thatcher-era student politics. And actually… I now think AV might be a very good system for Westminster. I like to think I’m wiser. I’m definitely older. Brown also proposed recall of misbehaving MPs, in some, pretty narrow, circumstances.

Another interesting point for lawyers though is the way Brown is increasingly setting binding targets for government in legislation. Already we have the Climate Change Act 2008, which imposes a binding target for reducing carbon emissions by 2050. The Child Poverty Bill would impose a number of targets in relation to child poverty, to be met by 2020. And in his speech this week, the Prime Minister proposed two further similar measures: a Financial Responsibility Bill, to oblige government to reduce the public deficit and national debt, and legislation to force government to raise overseas development aid to 0.7% of national income – a long-standing ambition of international development campaigners. Interesting, this: it’s a new technique in British public policy, and clearly a favourite of Gordon Brown’s.

I’ve been a bit dismissive of this in the past. I don’t agree with the very traditionalist view that obligations without enforcement provisions are useless – social psychology, culture and, in the case of politicians, scrutiny, may concentrate minds wonderfully. But targets do nothing to meet themselves, I’ve argued, and these are just targets writ large and legal. Was I right, though? Thinking about public debt, I can see how making a public binding pre-commitment now may well help British governments of whatever colour in the future to retain confidence in fiscal policy. Britain’s “Triple A” rating may be safe, but is now discussed more than previously. Legal commitments may help. And to be fair, that makes me realise legal obligations on climate change may give the UK credibility internationally on that issue, too. The same goes for overseas aid; and while a similar approach to child poverty has a clearly domestic political edge, sharpened for David Cameron, I can see that a similar logic may apply as it gives poverty campaigners a big stick to beat the government with.

I may be a convert.

Hotter and hotter for the Attorney

September 24 2009

The latest development – the arrest of Baroness Scotland’s former housekeeper and her husband – means this story continues to roll. And if what Guido is reporting turns out to be true, surely her career must be over. If the husband isn’t a solicitor, that’s a bit embarrassing. But if the housekeeper says she never showed her passport to the Attorney, then one of them must be lying, and Baroness Scotland can’t, it seems, prove it’s not her. This must be pretty awful for her: everything she says may be true, and if she does lose her job for it, it’ll be the wrong issue – her taking an overnight allowance in spite of having a London residence is much the worse of the mistakes she’s made. But if that really is what the cleaner says, I doubt even Rasputin could survive it.

It’s doubtful she’ll even make it to Brighton for the Labour conference – and if she does, it may only be for a seaside weekend.

2009-09-24T18:11:16+00:00

The death of control orders?

September 24 2009

I doubt they have much future, now Alan Johnson has abandoned a second one since the Lords ruling in AF. I’m a bit surprised by the government’s approach – I’d expected them to fight, Ypres-style, over every inch of disclosure it was suggested they make. Clearly Johnson has decided it’s not worth it, at least in these cases; and perhaps Lord Carlile will recommend their abandonment in toto when he reports to the Home Secretary next year. It’ll be interesting to see how many, if any, of the remaining 14 orders he tries to maintain in the meantime.

2009-09-24T17:54:41+00:00

Pressure grows on the Attorney

September 23 2009

Stephen Hesford’s resignation is very unhelpful from Baroness Scotland’s point of view, and may be very dangerous, too: Gordon Brown’s entire government is a fragile rock since the failed coup earlier this summer, and he must fear that the resignation of even the lowliest government bag-carrier might set off an avalanche. Charon sees the call for her resignation as largely partisan hounding but it seems to me her staying is least defensible from a partisan Labour point of view. I’m sure Gordon Brown genuinely doesn’t want to lose her, but neither that nor her competence is the point. In one sense, this was an opportunity: she is sackable (unlike, say, important leadership rivals or potential plotters in the Commons), she has a ready replacement, and sacking her could allow Brown to grandstand his integrity for once, something he allowed David Cameron to outdo him on during the expenses scandal.

I’m sure a scalp would help the Conservatives, but surely it helps them more to have a damaged minister staying on, a story that keeps rolling and further evidence of the Prime Minister’s weakness and indecision.

2009-09-23T17:14:33+00:00

An extreme view of employment law

September 23 2009

If you read magazines aimed largely at commercial lawyers, you’ll be familiar with the sort of article in which a solicitor argues against some proposed or actual piece of regulation, saying business would be better off without it. Sometimes they have a point, but often they’re extremely predictable, and merely reflect either a wish to be heard saying things the writer thinks his or her clients want to hear, or else complete ideological capture by those clients and their worldview. Mildly irritating over coffee in the office but no big deal, and arguably no different from immigration lawyers railing against the iniquities of immigration law, say.

But Fox lawyer Michelle Chance’s piece in the Telegraph today does require comment, I think. It’s a plea for a radical simplification of the “minefield” of employment law, raising the suggestion that employers should to be able to sack workers at will, Victorian-style. She says

for an employer to fire an under-performing employee, the law requires a performance management process, which involves setting goals and objectives for the employee to meet over a specific timeframe, during which his performance will be monitored. This usually takes at least a month. The employee must be given the tools to enable them to try and meet the objectives that have been set for them which will take even more time.

This seems to me exaggerated: she makes it sound as though the law requires a bureaucratic process to be gone through in every case. But it doesn’t. It requires an employer who fires an underperforming worker to act reasonably in doing so. And not even that in many cases, since employees who’ve worked for less than a year have no right at all not to be unfairly dismissed, something right-wing and business commentators on employment law often fail to mention for some reason. So the worker who Michelle Chance is impatient to sack has presumably performed adequately for a year, if the employer has to worry about their rights. Has his or her performance never been monitored in any way in all that time? If not, how do you know they’re underperforming? Why’s it so unreasonable to expect a few weeks of thinking about their performance, and how to improve it, before they’re simply sacked?

She goes on to say

In the case where an employee cannot deny gross misconduct, for example when he has been caught red-handed with his fingers in the till, his employer must still call him to a disciplinary hearing, at which he has the opportunity to explain his actions accompanied by a colleague or trade union representative of his choice. The allegations against him must be set out in writing and he must have sufficient time to consider them and prepare for the hearing. Investigations must be carried out and witness statements taken, all of which the employee is entitled to see before the hearing.

I’m not at all sure it’s right to say an employer must take witness statements: neither the ACAS Code of Practice (which is legally binding in the sense that Employment Tribunals will take it into account and may increase any compensation for unreasonable failure to follow it) nor the non-binding guidance mention a need to take them – simply to disclose them to the employee in advance of a disciplinary hearing if they exist.

More importantly, though: is it really so shocking that even an employee who has been “caught red-handed” doing something wrong should have a chance to know what they are accused of and to give their side of things? What does it mean to say someone has been “caught red-handed”? I’m not sure she’s really thought about that beyond accepting the vague idea unquestioningly. Does it mean someone says they saw them doing something wrong? An accusation of sexual harassment would fall into that category. And what if someone really were “caught red-handed” in a truly undeniable sense, say by being recorded on CCTV fighting with a colleague or stealing from the till. Police involvement and instant dismissal might well be reasonable. But would an employer really be harmed by showing the worker the tape and hearing what he or she had to say? There might, just might, be some explanation for punching someone, or at least some important background about what the punchee said or did that the employer should know. There might be some important background fact, such as that the supervisor told the worker to borrow money from the till, something the employer really needs to know. But they never can know if they’re not listening.

It’s worth noting that Michelle Chance presents every element of basic fairness – holding some sort of hearing; putting the allegation in writing, surely not a very onerous idea; allowing the worker a bit of time to prepare; allowing them some source of help – as tiresome burdens or “needless obstacles”. The truth is that an employer can sack a worker fairly on the basis of a reasonable suspicion of serious misconduct. The odds are not stacked in a worker’s favour at all.

I’m afraid this article is an example of some narrow conventional thinking among some business circles. It also reflects the political ideology of the Thatcherite right. But it’s unbalanced, and unrealistic about power in the workplace and the behaviour of some employers. I hope no mainstream politician wants to take us to Michelle Chance’s world.

2009-09-23T15:37:01+00:00

Patsy: can she survive? Should she survive?

September 22 2009

Extraordinary that, while I was away, the Attorney General Baroness Scotland should have come under such pressure. Now, she’s been fined for employing an illegal immigrant as her housekeeper. Here’s her apology and defence of her “technical” error. I do have some sympathy with the Attorney – she obviously trusted this woman, apparently partly because she’s married to a solicitor (a touching detail), had no reason to think she was an overstayer, and has fallen foul of the great mass of rules we all have to comply with nowadays and which are a bigger problem in my view than, say, the growth of CCTV cameras. I have the same sympathy for her as I have, say, for people who are penalised for failing to pay their tax on time, or for forgetting to renew their tax disc. What reduces my sympathy somewhat is the line of defence she’s putting out, which implies she’s been fined for failing to photocopy something, which is a bit misleading. She’s been fined under section 15 of the Immigration, Asylum and Nationality Act 2006 for employing an illegal immigrant – the technical bit comes in because, having failed to copy the document, she does not benefit from the statutory “excuse”.

I’m not sure she should remain as Attorney after this. But she certainly shouldn’t remain if the more serious allegation is true, that she’s been pocketing over thirty thousand pounds a year in London overnight allowances in spite of having a London home. Even if within the now notorious rules, that is scandalous – and of course there is a link, because the £5000 fine she’s paid today was all the less painful for having been so generously subsidised by the government.

Sadly, I think Gordon Brown may now be so out of touch that he stands by her in spite of everything, and simply does his government more damage. So she may yet survive, after a fashion. She certainly should go, though.

2009-09-22T17:57:30+00:00

Keir Starmer in the Guardian

September 21 2009

The Guardian today carries an interview with the DPP, Keir Starmer – well worth reading of course, though it’s certainly not his first media interview because Clive Coleman spoke to him on the BBC’s Law in Action in the spring. I think it’s a bit depressing that the interviewer seems to think Starmer must be a tremendous chap because he used to be a “human rights lawyer” and that it’s strange he should have agreed to be DPP, as though prosecuting in Britain were similar to working for the Spanish inquisition or the KGB. I wish the media would give up this hilarious Judge John Deed view of law.

The hook on which the interview is hung is of course the interim guidance the DPP is about to issue following the Lords last but perhaps not finest ruling in the Purdy case, guidance which not only doesn’t change the law, but (whatever Keir Starmer may be saying) can’t really be “clarifying the law”, either – a usefully vague phrase, that, for people who want the law either to be changed or applied in a way that suits them. What the guidance will do is clarify the DPP’s policy on prosecuting those suspected of breaking the law on assisted suicide, a law I’d like to see really changed.

One other point worth noting is the way Starmer clearly expresses a political view about the Iraq war, and gives a legal view about it too. As a former civil service lawyer myself (which Keir Starmer is now of course) I found this surprising, in the civil service sense of the word. I wouldn’t want to deny him the right to say what he’s said – I think we’re too restrictive about what civil servants can and can’t say or write publicly, and could usefully ease up. Equally, I can live with the existing position whereby  civil servants are supposed to avoid being publicly identified with views on matters of political controversy. What does annoy me, though, is that this interview reveals the truth: that those civil servants who are powerful and have media profiles can afford to ignore the rules, whereas an ordinary civil servant who had, say, commented on a blog arguing against the Iraq war, would probably be disciplined.

Keir Starmer’s commitment to fairness and human rights will really show if he applies the same rules on impartiality and freedom of expression to his CPS staff as he does to himself.

2009-09-21T16:46:01+00:00Tags: , , |
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