McDougal v Liverpool City Council

July 29 2009

Liverpool City council has claimed that the population of the city has now stabilised after decades of decline – but this case last week shows the effects of that decline still cause problems, as the Council had to decide which of a number of schools to close. It also shows the limitations of judicial review and human rights, which are not necessarily the trump cards local campaigners sometimes hope.

The Council decided to close the worst-performing of its city-centre schools to deal with a surplus of school places; that also happened to be a non-religious school. After the closure, the area would be left with only one such school, together with boys’ and girls’ Catholic schools. The legal complaint was, firstly that the Council erred in assuming it could not get government funding for a plan including a future for the closed school; and secondly, whether the closure breached human rights – the right not to be discriminated against, and the rights to an education.

Silber J dismissed the claim. The Council was right to assume it could not get government funding to include the school; and in so far as human rights law applied, the decision to close was justified.

Judicial review and human rights can look like extremely powerful weapons in some types of case: in individual cases for instance about the treatment of an individual prisoner, say (although campaigners for prisoners’ rights will be very aware of the limitations of public law). In challenging “polycentric”, strategic decisions such as which of several schools to close, however – decisions involving the allocation of scarce public resources – judicial review is more difficult.

2009-07-29T10:39:00+00:00Tags: , , |

Awards, polls and all that

July 29 2009

I’m delighted to say that LawMinx has awarded me one of her “blawggies” for being even better than Melvyn Bragg, which is very nice indeed. I have to thank Blogger (even though I’m going to desert them as soon as I can work Thesis for WordPress), Gray’s Inn library, my agent, my parents, my toy cat and you, dear reader.

While I’m self-indulgently on distinctions for this blog, let me also remind you about the TotalPolitics Best Blogs Poll, which closes at the end of this week – feel free to put Head of Legal on your list.

2009-07-29T10:17:00+00:00Tags: |

Lord Lester: my life as a goat

July 28 2009

Lord Lester, writing in the Guardian today, explains why he resigned as the government’s independent adviser on constitutional change. I have some sympathy for Lord Lester – he had the experience (that many civil servants have had) of finding out his role and position was in reality quite different from the one he was offered, and of discovering that ministers were not so committed to constitutional change as he’d thought. But I see it through different lenses. While I agree with a number of Lord Lester’s ideas, I certainly don’t agree with all of them: I think a War Powers Act is unnecessary; I do not share the fashionable view that the Attorney General’s role must be significantly reformed; and I think adopting a written constitution would be a historic blunder.

I see this as a story of constitutional whimmery, alighted on by a new Prime Minister in search of purpose – a whimmery that has slowly retreated as the relative sense of Jack Straw, Baroness Scotland and their allies have won the arguments. Two things Lord Lester says I agree strongly with, however.

First, he’s right that the Consitutional Reform and Governance Bill is “a mouse”. I said it was watered down to a homeopathic degree. Second, he’s right to say that the government has no mandate for constitutional reform. That does raise the question of what Lord Lester thought he was doing pressing it to make radical changes, and why he says it had the “opportunity of a generation” – but in any case, I’m glad it’s given up on the more controversial, less sensible of its earlier ideas.

By the way, I find one of the things Lord Lester says a little mysterious. He talks of

a modern democratic system of government… and a new constitutional framework… That would strengthen… our bargaining position within the EU.

I’m not sure how he thinks constitutional reform could strengthen our hand in European negotiations, unless he means the UK should have compulsory referenda for all new EU treaties – as Ireland does.

2009-07-28T14:17:00+00:00Tags: , , , , |

The Northern Rock case in the Court of Appeal

July 28 2009

The Court of Appeal has given judgment today in SRM Global Master Fund v HM Treasury – the human rights challenge by Northern Rock shareholders to the government’s compensation scheme on nationalisation.

The complaint was based on the article 1 Protocol 1 Convention right to protection of property. The system for calculating compensation, so the argument went, was set up under section 5(4) of the Banking (Special Provisions) Act 2008 in such a way that shareholders were bound to receive nothing or virtually nothing from the government – even though Northern Rock still had considerable assets. This, it was argued, failed to strike the fair balance required by article 1 of Protocol 1 between the private rights of the shareholders, and the public interest.

Laws LJ giving the lead judgment rejects the argument entirely, I’m glad to say. He accepts that the shares were in truth worthless in the absence of government support; or at least, Parliament was entitled to take that view within the margin of discretion allowed to it under human rights law. Its approach was certainly not “manifestly without reasonable foundation”.

I have two thoughts about this judgment, apart from the fact that it’s obviously right. First, although I have no problem with the idea that companies enjoy Convention rights, and it’s important to recognise that this case involved small shareholders as well as hedge funds, there is a certain absurdity in the idea of a hedge fund based in the Cayman Islands claiming its human rights have been violated. It’s the kind of claim that brings human rights into disrepute.

Second, this is a prime example of the kind of case which shows how unfair it could be, and how contrary to the public interest, if the government’s legal advice, such as Law Officers’ advice, were unilaterally published. It would mean that SRM Global Master Fund was at a distinct advantage in the case, in that it would be able to supplement its arguments with points it may not have thought of, but which the government had considered; and it would be able to focus its arguments on points which the government, in writing, had admitted were the most doubtful parts of its case. It would be very difficult for the government to argue convincingly for a particular proposition – even if it believed it to be right – if the court had in front of it papers showing some government lawyers had doubts about the point. All this would skew the case in favour of the hedge fund: I say unfairly, because they might know their own case was pathetically weak in its entirety, but would not be forced into any such disclosure.

2009-07-28T12:53:00+00:00Tags: , , , , |

TotalPolitics best blogs poll

July 25 2009

I’m encouraging readers to vote for their fave political blogs in TotalPolitics magazine’s poll – there’s a button on the right to make it even easier. You have to name ten blogs in order of preference, so it needs a bit of thinking about.

And TotalPolitics sees law as a subcategory in its political blogs directory, so you can even vote for Head of Legal if you like. I notice CharonQC is in there too, but being listed isn’t (I think) required, so there are many law blogs you could choose. No doubt many of you read plenty of straightforwardly political blogs, too.

Anyway, do vote: you’re the blog readers and you’re what we exist for, so make your views count.

2009-07-25T12:28:00+00:00Tags: |

Directive 2004/38: Commision skirts the gay marriage issue

July 24 2009

Last month, when talking about the big Californian case about Proposition 8, I mentioned the unexploded bomb created by articles 2, 3 and 4 of Directive 2004/38 on the free movement rights of EU citizens and their families: they give an unconditional right of free movement within Europe not only to every EU citizen but to his or her spouse – a term which is undefined.

I don’t think anyone intended it, and I’m not sure many people are aware of the issue, but I think read purposively (as it must be) the Directive extends to same-sex spouses married in countries like the Netherlands – thus forcing the UK to recognise such marriages at least for EU law purposes. I’m okay with that – I’m in favour of gay marriage. But I can imagine some people won’t be okay with it – and this might become a big row.

It may be that the issue never arises in litigation – if the gay spouses of EU citizens are given all the rights that are enjoyed by British married couples. I think the government must be crossing its fingers and hoping that happens, so that the problem is resolved silently. But if a married gay couple from Europe is not treated equally with traditional married couples within the scope of EU law – for instance in terms of employment rights, benefits, housing and so on, as they affect free movement – then the equal treatment provision in article 24 of the Directive may allow them to make a legal claim which will draw attention to all this.

Anyway, the point that interests me is that, in its guidance on implementing the Directive adopted recently (I’m grateful to EU law blog for drawing attention to them) the Commission has been silent on the question of who is a spouse. Not by accident, perhaps.

2009-07-24T07:08:00+00:00Tags: , , , , |

Charon podcast: the Supreme Court, and publishing Law Officers’ advice

July 23 2009

Charon interviewed me today: we spoke about the Supreme Court, its origins and what we expect from it, and whether the superficial change from House of Lords to Supreme Court will bring with it more significant changes, such as the politicisation of appointments, Sotomayor-style confirmation hearings before the Justice Select Committee, and increased judicial assertiveness as against Parliament and the executive.

In other words, in spite of the clear differences, will the UK Supreme Court become just a little more like the US Supreme Court? The difference between the two is one of the things discussed at the new joint Anglo-American blog Charon (under his secret identity, Mike) is writing with Colin Samuels – Unsilent Partners. I think that’s a great idea – we lawyers tend to be too parochially national, but we should know more about other legal systems, and certainly British lawyers could do with knowing more about US law.

So both Charon and I are very interested in what happens from October when the Supreme Court opens for business – and we’ll be keeping a close watch.

We also spoke about the transparency of the new Court and of Law Officers’ advice to government.

Listen to the podcast here.

2009-07-23T15:38:00+00:00Tags: , , , , , |

Constitutional Reform and Governance Bill

July 23 2009

I seriously dislike the word governance. Okay, it has some reasonable uses: in the phrase corporate governance, for instance, in which it has a useful sense of oversight from on high. Otherwise, it’s unbearably pompous. I also suspect politicians who use it have reached the “statesman” stage in which they’re more interested in their international contacts and memoirs than in achieving anything in government. So this Bill annoys me before I even look inside it.

It’s pretty harmless on the whole. Part 1 makes some fairly unobjectionable provision about the civil service. But why on earth has the opportunity not been taken to pick up the provisions of Andrew Dismore’s Crown Employment (Nationality) Bill? Those provisions are much needed, are uncontroversial (the opposition have promoted a very similar if not identical bill in the past) and should wait no longer. And clause 9, giving civil servants a right to complain about being ordered to breach the civil service code, will only be of use to civil servants who are being sacked or forced to resign. The idea that a civil servant could make such a complaint and retain any career hopes is just laughable.

Part 2 will give Parliament a chance to object to the ratification of new treaties – which sounds fine, and is unobjectionable, except that clause 23 gives ministers a second bite at persuading the Commons and the power to override the Lords; and clause 24 creates exceptions.

And in Part 3, clauses 29 and 30 will in effect allow peers to resign from the Lords, disclaim their peerages and, under clause 30(6) and (7), be free to stand for election to the Commons. This is the one seriously objectionable proposal in the Bill. It sounds nice, fair and modern, but when we eventually get an elected or mainly elected House of Lords, one of the worst things that could happen is if it is filled with party hacks trying to work their way up to the more glamorous and powerful Commons. We have enough elected institutions filled with those people – all councils, and the European Parliament, are examples. One valuable thing about the Lords at the moment is that the bar on members standing for the Commons means the House is made up of people who are not planning any significant future political career, and who are therefore more independent. To throw away that huge advantage is a mistake: you might as well abolish the Lords altogether if it’s going to be a House of whipped wannabes.

I don’t think the Bill does anything else of note. The government’s original consitutional reform plans were insufficiently radical to justify their billing two years ago. With this Bill, we can see they’ve been watered down almost to a homeopathic degree. I’m pleased: this government all too often proposes instant constitutional change as the answer to all manner of passing policy problems, and I’m glad the urge to remodel has been replaced with masterly inactivity. But it does show what a fuss and nonsense they’ve made about the consitution.

I agree with Steve Richards.

2009-07-23T07:00:00+00:00Tags: , , , |

Sharia delusions

July 22 2009

I often agree with John Bolch about sharia law; always, in fact. So it’s no surprise I should agree with his post yesterday about the claim made by an Islamic “scholar” that sharia law doesn’t discriminate against women. The fact that such a claim can even be made is enough to make you shake your head, or sigh.

I think John’s quite right to call this chap deluded if he can’t see the inequality that’s indisputably proved by the chart on his wall. I also think John may be right that there’s just no reasoning with this kind of person.

2009-07-22T18:41:00+00:00Tags: , , |

Transparency, and the Law Officers’ advice

July 22 2009

A couple of years ago, it was all the rage to worry about the role of the Attorney General, and the government even consulted on the possibility of publishing the Law Officers’ advice. You can see the results of the consultation here, from paragraph 84. Most respondents said there shouldn’t be publication, generally speaking – a view I agree with – although it might be fair to say that many of that majority seemed to come from within government itself. As it turns out, the government’s doing nothing on that in its Constitutional Reform and Governance Bill – of which more in a later post.

But it’s worth noting this judgment yesterday from Blake J, in which the government successfully appealed against a decision by the Information tribunal ordering the disclosure not of Law Officers’ advice itself, but of whether or not they advised in relation to the bill that became the Financial Services and Markets Act 2000.

It’s quite a success for the government, this, I’d say: they’ve argued successfully that if you want to know whether the Law Officers have advised on a certain matter you must establish that there is a weighty public interest in such disclosure. In effect I think the ruling puts the burden on applicants to show the public interest in disclosure outweighs the public interest in non-disclosure – since Blake J says the starting point is to give weight to that except in very rare cases.

I think this is a sensible approach – though whether it’s really what Parliament intended in the Freedom of Information Act 2000, I’m less sure. What I think this shows, though, again, is that it would be much better for the freedom of information regime to set out clearly the circumstances in which the fact of Law Officers’ advice – and the content of that advice – should and should not be disclosed. It’s not good enough just for the government, the Information Commissioner and the Tribunal to make these decisions by weighing up two very airy and general idea of the public interest in disclosure and the public interest in non-disclosure. From what he says at paragraph 66 of his judgment, I suspect Blake J may agree.

The case also shows, though, of course, that neither the fact nor the content of the Law Officers’ advice can always be kept confidential. A weighty public interest can mean disclosure is required.

2009-07-22T13:02:00+00:00Tags: , |
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