Charon interviewed me today about the MPs’ offences scandal – including potential criminal liability under the Fraud Act 2006 – and about the Speaker’s decision to call in the police, not to investigate MPs’ claims but astonishingly to investigate the leak to the Telegraph. Listen to the podcast here.
This morning the Telegraph reports on an expenses claim by Elliot Morley for mortgage interest he never owed; and for the first time, this report mentions potential offences, with a quote from solicitor Steven Barker, quite rightly saying that any offence that an MP might have committed in these circumstances would be under the Fraud Act 2006, or else under section 17 of the Theft Act 1968.
Under the 2006 Act, there are three ways of committing fraud. Under section 2, you commit the offence of fraud by false representation if you dishonestly make a false representation intending to make a gain; a representation is false if the person making it knows that it is, or might be, untrue or misleading, and includes any representation as to fact or law, including a representation as to your state of mind.
Note, therefore, that it’s enough to know something might be misleading; and you can commit the offence by saying something you know might mislead people as to your intention, say about where you will spend most of your time. Critically, though, to be guilty of this offence you must act dishonestly, which under the two-limbed test in R v Ghosh means
– what you did was dishonest by the ordinary standards of reasonable and honest people, and
– you knew it would be regarded as dishonest by reasonable and honest people.
Under section 3, you commit fraud by failing to disclose information if you dishonestly fail to disclose to another person information which you are under a legal duty to disclose, intending to make a gain. And under section 4, you commit fraud by abuse of position if occupy a position in which you are expected to safeguard, or not to act against, the financial interests of another person and dishonestly abuse that position, even by omission, with intent to make a gain.
Fraud carries a maximum sentence of 10 years imprisonment and/or an unlimited fine.
It seems to me section 2 is the only realistic potential fraud offence here; while section 4 seems at first blush apt to cover an MP acting fraudulently against the taxpayer’s financial interest, I think it’s intended to cover the kind of situation where a trustee, say, misappropriates money, without necessarily saying anything false. In the scandal over MPs expense, my feeling is that if any offence is committed, it’ll be because an MP has made a misleading claim. In those circumstances, section 2 looks like the right one to charge.
The most likely alternative would be false accounting under section 17 of the Theft Act 1968. You are guilty of false account if dishonestly, with a view to gain, you falsify any account, record or document made or required for any accounting purpose; or if in furnishing information for any purpose you produce or make use of any such document which you know is or may be misleading in a material particular. Section 17 is a classic white collar fraud offence, very apt to catch gaining money dishonestly by making a dodgy expense claim.
The maximum sentence for that offence is seven years in prison.
It’s also important to bust a myth that seems to have spread at Westminster and in the blogosphere: the old offence of obtaining a pecuniary advantage by deception is a complete red herring. That was under section 16 of the Theft Act 1968; but if you followed that link, you’ll see it’s been expunged from the statute book, having been repealed in January 2007 by the Fraud Act 2006. If that weren’t enough, it wouldn’t apply to any MP’s expense claim even before 2007 because the offence was limited to very specific circumstances, the best example of which was getting a job by lying on your CV. This book by Catherine Elliott and Frances Quinn explains pretty well what section 16 used to cover.
Last week, Charon interviewed Sara Chandler, who’s director or the pro-bono unit at the College of Law, about the situation of lawyers and other human rights advocates in Colombia. Sara was one of over forty British lawyers who visited Colombia last year as part of an international delegation of lawyers who investigated the shocking situation faced by Colombian lawyers and human rights advocates – in recent years roughly 25 of them are murdered every year, while others are threatened, harassed and subjected to trumped-up disciplinary charges.
We’re lucky here: lawyers are allowed to get on with their jobs here, and although there are issues about access to justice here, clients can expect a reasonable crack at justice. What on earth must it be like to practice law in Colombian conditions? The courage of those who carry on in the face of this is astonishing.
Charon has the report of the delegation here; and do listen to the podcast.
I’m not blogging much at the moment: I’m sorry, teaching commitments are keeping me away. But I must comment on an apsect of the MPs’ expenses revelations carried by the Telegraph today.
BBC News is reporting that “the Commons authorities” have made a complaint to the police about the leak to the Telegraph. If that’s right, it must mean the Speaker has authorised getting the police involved. As readers of this blog will know, my view of the Greengate-Galleygate affair was that the real scandal was the apparent abuse of power from the Home Secretary in allowing the police to be called in; it was obvious that the leaks in that case did not merit a criminal investigation and that the police’s role was in effect to prevent embarrassment to ministers. Jacqui Smith has never answered properly for what she did.
I now think the Speaker is doing just the same thing here. It is plain that these revelations are in the public interest. It is also plain that they do not threaten national security or risk any lives. If the Speaker wants to conduct an internal investigation and discipline some Commons employee for leaking this stuff, so be it. But to treat it as criminal is as outrageous as Jacqui Smith’s behaviour over Damian Green. The only interest the Speaker is serving is politicians’ personal interest in protecting themselves from embarrassment. The police should not be abused in this way. It must be stopped.
Charon QC has reported on the proposed merger of Inner and Middle Temple libraries – a depressing proposal, in my view.
It cost me a lot of money to join my Inn – Gray’s – at least, it seemed a lot of money back in 1992. And I’m not aware of Gray’s ever having done anything for me. It certainly gave me no financial support when I desperately needed it as a bar student – preferring to help others who already had support from other sources. Nor did it recognise my utterly unspeakable brilliance at mooting, preferring plummier students, I noticed. All I ever got was a load of dinners I didn’t want, and had to pay for anyway.
Except for the library. As a student, Gray’s Inn library was indispensable, and saved my course and career a number of times. It became a refuge and retreat, and is filled with memories – of reading my first human rights case, in the North Room, for example, of sniggering upstairs over essays and of carrying books for the young barrister I was after in those days.
I still spend a lot of time at the library now: it’s where I often work, researching either for my teaching or consultancy work, or for this blog. A lot of posts are written there, thanks to the wi-fi which is quite wonderful. The librarians are helpful and friendly, as are other users on the whole, and all law is there. For me, Gray’s Inn is the library. Perhaps the Inn does something useful with the money I once gave it, apart from provide further CV kudos for its benchers, but I’ve no idea what that might be. It’s the library alone that makes it worth my having joined all those years ago. If it went, there’d be no point in my being a member, except to satisfy some rule.
So you can guess I think this proposed merger is a thoroughly bad proposal. The Inns libraries are one of the legal profession’s most valuable resources. I know they’re in London and only help those who live or work there. I wish they were all over the country. But without them, there’d be nowhere barristers, including non-practising ones like me and struggling pupils in search of tenancies, doing voluntary work perhaps, could work with all the essential legal tools available to them. Without the Inn libraries, only those already successful, on the inside of chambers or big firms and organisations, would have access to the best books and online servcies without having to pay privately. It’d be a bad day for students, pupils, struggling barristers and pro bono legal work, as well as for the blawgosphere, and the public in general, because of the work and writing that’s done there, and I don’t mean by me. It’d be a bad day for the bar. Which is why, even if Gray’s library remains, I don’t want to see any other Inns close theirs.
Charon has set up a poll – please go and vote if you have a view on this. Which way do you think I voted?
The family courts opened their doors to the press this week, of course – well, sort of. Afua Hirsch wrote the other day about what she couldn’t report, and Natasha Phillips thought the change was much ado about nothing. John Bolch has reservations, summarised initial reactions and told some home truths.
I must admit, my initial reaction to this change was a slightly typical lawyer’s knee-jerk: there are good reasons for family hearings to be in private, I thought, and wanting “openness” is at best a desire to rewrite the rules for rewriting’s sake, at worst a victory for Fathers4Justice. But on reflection, I think I was guilty of pure knee-jerkery. I’m sure Afua is right that the rules can’t stay as they are – reporters must be allowed to report something about what goes on in family courts if there’s to be any point in the change. But perhaps a gradual, step-by-step change is a sensible approach. Letting reporters in will not prevent accusations that the family courts represent a conspiracy against justice, but they may make it less likely the general public will listen to them.
Here are the amending rules, by the way. Something that interests me is that access is limited to
duly accredited representatives of news gathering and reporting organisations
The government’s press release says this means the family courts will be open to those with a press card from the UK Press Card Authority. I’m not sure that’s right: there may be a definition of news gathering and reporting organisation in the Family Proceedings Rules (I couldn’t find one), but that phrase is not defined in the amending rules, and in its natural meaning doesn’t obviously cover freelance journalists, say, unless on a specific assignment. And even many publications that might well be interested in the family courts – women’s magazines, say – can hardly be called news gathering organisations. I wonder what media lawyers are advising journalists about this.
Interestingly, the government says bloggers are excluded. First, I’m not sure that’s really correct: bloggers can now be admitted to organisations that are “gatekeepers” to the press card scheme, and anyway, loads of proper journalists have blogs. Bloggers aren’t excluded at all. But anyway, why should the government want to exclude bloggers? Of course I know that if just anyone with a blog could turn up, that would include loads of obsessive crazies, ignoring all the rules and typing in green ink about how family judges are really lizards. But the entire blogosphere is not like that, and it’s wrong for a government which claims to be friendly to the development of new media to take that instinctive attitude.
There’s no shortage of responsible family blawgers: they can and should be allowed to apply for access to the courts under this scheme. Let’s hope that’s among the changes the government gradually makes.
The Lords gave judgment yesterday in this complex case, about confiscation of the proceeds of drugs offences. The main issue is actually whether the judge ruling on confiscation can take into account criminal conduct that the defendant has never been charged with, but which the judge thinks is proven beyond reasonable doubt (see para. 85 of the judgement). Their Lordships all agreed the judge could take account of this. But I’m more interested in the fact that the majority – Lords Rodger, Brown and Neuberger – held that, applying the Human Rights Act, the judge could only do so if the “offence” is proved beyond reasonable doubt. I think they’ve got this wrong.
Their Lordships disagreed about whether the article 6(2) Convention right,
applies to confiscation proceedings in which the prosecution tries to prove uncharged offences have been committed (for the purpose of going after the proceeds of those offences). The majority held that article 6(2) doesn’t apply, since even in these unusual circumstances confiscation proceedings do not involve the defendant being charged with a criminal offence for human rights purposes. But in any event, article 6(1) does apply, and with it an implied presumption of innocence. Fair enough.
But the majority goes a further step (see paras. 76-79 of Lord Rodger’s speech), and says that, since there is a presumption of innocence, therefore the defendant must be proved guilty according to law on the offence if it is to be take account of by the judge on confiscation, applying the words of article 6(2) by analogy; and that means the offence must be proven beyond reasonable doubt because, in Lord Rodger’s words (para. 76):
that is how people are “proved guilty according to law” in this country.
Lord Brown agrees, without as far as I can see any adequate reasoning, in paras. 95-97 – he says at para. 94 that he’ll return to the standard of proof issue, but where in paras. 95, 96 or 97 does he actually explain why the criminal standard is required? Lord Neuberger simply states his agreement (para. 152).
There are two problems with this. First, and most importantly, the majority are surely wrong to read article 6 as requiring anything to be proven to the criminal standard. Yes, the general rule in criminal proccedings is indeed that offences must be proved beyond reasonable doubt. Of course. But these aren’t criminal proceedings, even for human rights purposes; and anyway, what’s more important is that the applicable standard of proof is that laid down in section 2(8) of the Drug Trafficking Act 1994:
The standard of proof required to determine any question arising under this Act as to—
(a) whether a person has benefited from drug trafficking, or
(b) the amount to be recovered in his case by virtue of this section,
shall be that applicable in civil proceedings.
The majority simply does not deal with the argument that in these non-criminal proceedings proof to the civil standard, that is on the balance of probabilities, is quite clearly according to law under section 2(8). That argument seems to me unassailable, and the majority says nothing to counter it.
The Lords have fallen into error here. Arguably what the majority held on this point is obiter, since it’s not strictly necessary to answer the question before the court; I’d like to think prosecutors would be bold enough to treat it as non-binding. Unfortunately I suspect the Revenue and Customs Prosecutions Office may feel unable to be so bold.
Less crucially, but also importantly, the majority held that section 2(8) must be interpreted, contrary to its own wording, as requiring proof beyond reasonable doubt – which it’s absolutely right they should consider doing under section 3 of the Human Rights Act if article 6 really required it – but without going through the proper section 3 reasoning, applying the principles laid down in the leading case, Ghaidan v Godin-Mendoza. I’m not saying their conclusion on interpretation would be wrong (if they were right on article 6), but I think it’s a pretty poor show that they failed entirely to address the key question whether the civil standard of proof might be a fundamental principle of the 1994 Act.
Not their Lordships’ best judgment.
Both Pub Philosopher and Paul Waugh have noticed something about the Equality Bill: the government’s explanatory note to clause 10 (scroll up the page for the note), which defines “belief” for the purposes of preventing discrimination on grounds of religion or belief, says that belief does not cover political beliefs such as Communism, Darwinism, Fascism and Socialism. Pub Philosopher reckons this means people can now be sacked for being members of the BNP; Paul Waugh thinks it means socialists can now be sacked.
In a sense they’re right: it probably is lawful to sack someone for being a member of the BNP, at least if an employer has a good reason not to want such people working for them. But that’s the law now: the Equality Bill will change nothing.
To understand what’s going on you need to know a bit of background. The key legislation here is actually Directive 2000/78, which requires EU member states to outlaw discrimination on grounds of religion or belief, but which does not define that concept. This paper from Lucy Vickers explains (see page 30) that some EU countries have implemented the Directive on the basis that “belief” covers political opinions; others haven’t. Interestingly she tells us the UK has not, except in Northern Ireland, where the relevant legislation specifically mentions political opinion. That is undoubtedly permitted: Article 8 of the Directive allows states to go further in combating discrimination than the minimum guarantees it requires. The big question, though, is whether the Directive itself actually protects political opinion as a minimum component of “belief”. The answer? I’m not sure, but I find it difficult to believe the European Court would read the Directive as permitting the sacking of, say, a stockbroker, simply and solely on the grounds that he or she is a member of the Conservative party. We won’t know, of course, until the point is tested in the ECJ.
So there certainly is some risk that sacking a BNP member could, depending on the particular circumstances of the job, breach the Directive – and therefore necessarily break UK law, whatever that law says. That was the position from the moment the UK implemented the Directive, and remains the position now.
The British government has always proceeded (in its implementation in Great Britain) on the basis that political opinion is not protected. Interestingly, the legislation has never referred to political opinion, which when you compare the Northern Irish text is a clear signal that including it was never the intention. See regulation 2(1) of the original 2003 regulations which said
“religion or belief” means any religion, religious belief, or similar philosophical belief.
Later, though, in section 44 of the Equality Act 2006, the government changed the definition slightly so that
“belief” means any religious or philosophical belief.
Nothing seems to have been intended by this – the explanatory notes to section 44 signal no actual change, and Baroness Scotland’s explanation in the House of Lords makes clear this was simply about drafting tidiness, dropping the word similar in order to get rid of the apparent implication that atheism, say, is “similar” to religious belief.
However some lawyers seemed to think this meant the government had changed the position; I don’t agree, although it’s right of course that the underlying uncertainty about the meaning of the Directive means sacking a BNP member involves at least some risk.
And now, we have the Equality Bill, which simply restates the 2006 Act, saying again at clause 10(2)
Belief means any religious or philosophical belief
Yes, the government’s explanatory notes say this doesn’t include socialism and fascism; and that may be right. What’s wrong is to think this would change anything. It doesn’t. The Equality Bill merely repeats the wording of the Equality Act 2006 on this. There is underlying uncertainty, caused by the lack of definition in the Directive, but this has not been affected by anything ministers have done to amend the legislation since 2003. I hope that clears things up…
Of course EU law is only one legal aspect of sacking a BNP member: an employer also has to worry about human rights law. Arthur Redfearn failed in his attempt to use the Human Rights Act to win (strangely enough…) a race discrimination claim against his employers, who sacked him as a bus driver because of his BNP membership. He would have had a more serious claim has he worked for them for a year and been able to claim unfair dismissal; then, relying on X v Y, he might have argued his dismissal was “unreasonable”, interpreting that term in section 98(4)(a) of the Employment Rights Act 1996 in line with the Article 9 Convention right to freedom of thought, conscience and religion. But that depends on membership of the BNP being covered by article 9; he’s having a go in the European Court of Human Rights, but the questions put by the Chamber to the parties in the case suggest to me he’s going to lose on article 9. If the court were with him, it wouldn’t be interested in the other articles.
My advice? If you have a good reason for sacking a BNP member (or indeed a socialist…), for instance how you think they may treat members of the public, or your fear that the public may not have confidence in him or her, then it’s probably okay to sack them. But can you ever have a good reason for sacking a socialist?
The Equality Bill published yesterday does quite a lot of things: it aims to replace existing discrimination law on sex, race, age and so on, and update it, harmonising the protection given to each “protected characteristic”, which in many cases means extending protection. For instance, something that’s been hardly commented upon is the widening of the public sector equality duty in clause 143 to cover age, sexual orientation, religious discrimination and discrimination against transsexuals. But some of the very new provisions in the Bill have already attracted attention – and it’s those I want to focus on.
First, the absolutely new public sector duty regarding socio-economic inequality in clause 1(1):
An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.
I’m not sure what I think about this. I’m very much of the view that economic inequality is the big unfairness in British life that is often ignored in favour of sex and race discrimination, and especially “equality of opportunity”, which is all some people can imagine equality consists of. I’m glad someone is government is concerned about inequality generally and is doing something about it. But at the same time, I’m not sure imposing abstract duties on local authorities and others is really an effective means of addressing the problem. I worry that this is just one more impact assessment councillors will have to go through before making decisions, and will contribute further to the hemming-in and depoliticisation of local government.
By the way, I think the explanatory notes are a bit misleading about clause 3 and enforcement: although individuals will not have any private law cause of action for alleged breaches of the duty, they will be able to challenge councils and health authorities in public law, by judicial review.
The most interesting new provisions are about employment, though, and although they catch all the protected characteristics, in reality they’re aimed at ensuring equal pay and equal treatment for women.
I welcome clause 72, about discussions with colleagues, which makes unenforceable any ban on discussing pay. Or rather, it makes them unenforceable in some circumstances: it means you can safely disclose your salary or ask a colleague about his or her pay in the context of a discussion of potential sex or race discrimination, etc. – but not otherwise. I wish it had gone further, and made secrecy clauses unenforceable in all circumstances, and I wonder why the Bill doesn’t aim at that, to be honest.
I also wholeheartedly support clause 73, on gender pay gap disclosure, which will allow ministers to require firms employing more than 250 people to publish annual statistics on the pay gap between men and women. As Polly Toynbee says in today’s Guardian, employers who say such statistics do not reveal unfairness entirely miss the point. It’s not just about whether people in the same job are paid the same; fairness is also about making sure men and women aren’t systematically working in different jobs paid at different rates. In any event, the government only intends to impose these rules in 2013 if employers don’t publish the figures voluntarily; let’s see if they do. And if David Cameron’s Conservatives, if they get in, leave these provisions in place, as I think they should.
I’m less sure about clause 153, on positive action in recruitment and promotion. This would allow appointment of a woman candidate for a job (or a black, gay or disabled candidate, or a young, old, transsexual or married candidate) where an employer thinks that group is disadvantaged or under-represented and the candidate is as qualified as others. The employer will not however be allowed to do this as a policy. Hm. I’m don’t take a purist stance of opposition to “positive discrimination” in principle – and whatever the government says, this clause certainly is aimed at allowing what most people mean when they talk about positive discrimination. But I do have some concerns.
First, I don’t see how any employer can rationally do this yet not have a “policy” of doing it. To avoid having a policy, you’d have not to have decided what to do until actually faced by equally qualified candidates; but if you hadn’t addressed this beforehand, you might not have gathered sufficient information about your workforce to enable you to reasonably conclude there’s disadvantage or under-representation, and you’d have to agonise, probably with legal advice, about what was lawful and what was right, right in the middle of a recruitment exercise. I don’t think that’s realistic. Plus, if there’s no policy then each decision to positively discriminate would be ad hoc in an individual recruitment or promotion exercise. But can that be fair? It means you could be turned down for a job ultimately on grounds of your sex or race, but someone else, applying to the same employer for a similar job, might not have positive discrimination applied to them. Unequal treatment is built in, bizarrely. I think the provision is practically inviting employers to adopt a tacit policy of positive discrimination in order to avoid these problems while staying within the letter of the law.
Next, I’m not completely convinced this provision complies with EU law. While EU legislation does permit positive action (see Article 3 of Directive 2006/54 and Article 157 of the EC Treaty), it doesn’t permit any policy of favouring women at the point of recruitment – presumably that’s why the policy ban is written in to clause 153. And, more importantly, I think it’s far from clear, looking at cases like Abrahamsson and Briheche for instance, that EU law allows an under-represented group to be favoured in any circumstances at the point of recruitment, policy or no policy. I think ministers are taking a legal risk here – as they’re entitled to do, to be fair – and it’ll be interesting to see whether clause 153 really is compatible with European law. They’ve probably concluded they’re at least safe from damages actions on the basis that this is not obviously contrary to EU law, and their anti-sexist intentions are good – and are willing to to see if clause 153 is sustainable.
Finally, while I’m not opposed to positive discrimination, I do mistrust it. As a lawyer I think it’s interesting how decision-makers of all kinds, when told they need to and can apply a burden of proof, tend to seize on this as the answer when in doubt about what to do; and how easy it is to find yourself in doubt when you know at the back of your mind that you can apply a simple tie-breaking rule. I fear that clause 153 might be tacitly used as an easy tie-breaker, allowing employers too readily to conclude candidates are equally qualified, when they may not be.
Two cheers for Harriet and her Equality Bill, then.
It’s a month since the government published its green paper on rights and responsibilities, and I’ve written nothing about it yet; I’ve been trying to gather the strength. I also managed to miss the justice minister responsible, Michael Wills, gaving a lecture about it last week to the British institute of Human Rights. Reading the lecture, it’s clear he feels on the defensive: and he’s right to. I’ve long thought the entire policy was misconceived, and the while the green paper is a brilliant exercise in covering this up with words – the civil service can perform magnificently when called upon – it takes us not much further.
Well, all right: it takes us a little further. We know now that the government is against diluting the Human Rights Act by making the rights in its in any way conditional on fulfilment of responsibilities (see para. 2.22 of the green paper). We also know now that the government is against any new bill having full legal force (see para. 4.25). Finally, we know now that the government isn’t intending to do anything about this till after next year’s election (para. 5.3). That, though, is enough new knowledge to conclude that the entire exercise is a waste of time.
The origins of this green paper go back to the government’s 2006 review of the implementation of the Human Rights Act, which concluded that in some ways, public bodies had applied the Act in an unbalanced way, giving too much importance to the rights of individuals and insufficient weight to public safety. Aware of criticism of the Act in newspapers and of the Conservative pledge to repeal the Human Rights Act, ministers have felt the need to show they “get” the problem, and to be seen to be doing something to rebalance things. The problem is, being seen to be doing something is the important thing here; actually doing something comes lower down the agenda. Which explains the content of the green paper.
There’s a lot of guff about Rousseau, Bentham and all those characters, and a suggestion we might have a non-justiciable statement of responsibilities such as the responsibility to treat NHS staff with respect, living within environmental limits, voting (although there’s no suggestion this will be made compulsory) and doing jury service. Any such statement would waste Parliament’s time to no good purpose. To compare such a prosaic list to the Gettysburg address, as Michael Wills did in his lecture, is risible. The only other real options put forward in the green paper are a set of principles that would inform judges’ decisions and/or legislation while not being strictly enforceable – a recipe for legal uncertainty, on the one hand, and for a box-ticking approach to legislation on the other; and for new duties to be placed on public authorities, which would if you think about it run in the precisely opposite direction to the original motivation of the bill.
I think this is a phoney exercise. Michael Wills is right in his lecture to attack the Conservatives for having no coherent policy on human rights – he attacks everyone in that lecture, in fact, from the Guardian to Shami Chakrabarti – but the truth is, he has no coheretn policy either. The government is merely floating ideas that would have little effect if acted upon and which it will not act upon any time soon; and it is doing this merely in reaction to the Conservatives.
Because what this green paper does do is give the government some sort of “line” to take in an election campaign. If the Tories say something must be done about the Human Rights Act, Labour ministers can now at least reply: Look – we’re already doing something! It doesn’t really matter what that “something” might be, as long as the line can be spun.
I’m afraid I have to conclude that that, and that alone, is and has always been the point of this charade.