Head of Legal – Page 59 – legal comment from Carl Gardner

Collective worship at Meersbrook Bank Primary School

Carl Gardner February 10 2009

Like many people my instinctive reaction is to be dismayed at the news that the head teacher of a primary school in Sheffield has resigned after her proposal to end separate Muslim assemblies brought accusations of racism. The city council’s statement that her resignation has nothing whatever to do with this row seems to me barely credible.

It’s important in reacting to this however not to assume this is about Muslim parents not wanting to accept the law of the land. Separate assemblies are perfectly lawful. While section 70 of the School Standards and Framework Act 1998 requires each pupil to take part in an act of collective worship daily, it does not require there to be a single act of worship. Under schedule 20 to the Act – paragraph 3 is key – acts of collective worship can be non-religious or indeed Islamic so long as taking any school term as a whole, most acts of collective worship are “wholly or mainly of a broadly Christian character” – in other words, if just over half of them are Christian in quite a woolly way. And the extent to which other kinds of collective worship take place should depend, according to paragraph 3(5) and (6), on the family backgrounds of the school’s pupils. So it was probably lawful for Meerbrook Bank to have had separate Islamic assemblies, so long as there were an equal number of “mainly broadly Christian” assemblies during the term – plus one more for good measure. I doubt that any religious believer is happier with this mish-mash than is any secularist.

The problem is not with Muslim parents’ acceptance of the law of the land: it’s with the law of the land itself. The ludicrously Victorian section 70 and Schedule 20 should be repealed so that schools can have wholly secular assemblies. That’s the way to end sectarian squabbling and move towards genuine community cohesion.

Carl Gardner2009-02-10T20:21:00+00:00Tags: education, religion|

Lord Goldsmith on Binyam Mohamed – and Guantanamo

Carl Gardner February 10 2009

I’m interested that Lord Goldsmith, writing in yesterday’s Independent, essentially agrees with me on the Binyam Mohamed case:

That the High Court finally agreed – with some apparent regret – with the Foreign Secretary in believing the preservation of a fully functioning intelligence-sharing relationship between the UK and US outweighed the necessity to make public information about alleged torture is, I have to say, probably right (though there are now questions which need to be resolved about just what the concerns were).

The real thrust of his article, though is Guantanamo and the need, in his view, for the UK and other countries to accept some of the “non-returnable” prisoners, giving them some kind of humanitarian leave to remain here, in order to help the Americans close the prison. To adopt his sort of wording, I have to say he’s probably right on this: while this is America’s problem and they should take responsibility for most of the prisoners who are released, President Obama may well ask for help in relation to those prisoners with ties here, or who would prefer to come here – and I think it would be wrong to refuse.

Carl Gardner2009-02-10T08:04:00+00:00Tags: guantanamo, human rights, lord goldsmith, terrorism|

Women on Waves v Portugal

Carl Gardner February 6 2009

It’s been a tremendous week for protesting women, not just because Kay Tabernacle and the Aldermaston Women’s Peace Camp beat John Hutton, but also because Women on Waves have beaten Portugal in Strasbourg. It was a breach of article 10 to prevent them from sailing into Portugal in 2004 to campaign for the legalisation of abortion. That campaign has been won now; there was a referendum in 2007.

Women on Waves look pretty cool to me: you can read their take on the case on their website, or this post on the ECHR Blog.

Carl Gardner2009-02-06T13:03:00+00:00Tags: abortion, ecthr, freedom of expression, human rights|

Tabernacle v Defence Secretary

Carl Gardner February 6 2009

Yesterday the Court of Appeal gave judgment in this case about the right to freedom of expression – specifically to protest at the Aldermaston atomic weapons establishment. The protest in question is the Aldermaston Women’s Peace Camp; and the human rights issue arises because in 2007 the Defence Secretary made byelaws under section 14 of the Military Lands Act 1892 (not I think 1992, which is I think a typo in the judgment) making it an offence to camp in tents in the “controlled area” around Aldermaston. I wrote about this case earlier, when the court below was trying to decide the meaning of camp.

Well, the protesters have won their appeal: Laws LJ and his colleagues see the ban on camping as a clear interference with freedom of expression (the government ran a clever argument that the byelaws merely govern the form of protest, rather than striking at the right to protest; but the judges weren’t impressed) and disproportionate.

I’m interested in the way the Court of Appeal has dealt with remedies, though: Laws LJ says they’ll hear further argument (para. 44) on the form of relief. That’s because the big issue for Human Rights Act nerds here is whether the incompatibility with Convention rights arises only from the byelaws – in which case the Defence Secretary acted unlawfully when making them, and the byelaws can be struck down – or whether the power in section 14(2) of the 1992 Act, which says

… byelaws may also provide… for the prevention of nuisances, obstructions, encampments, and encroachments [on the land]…

is itself incompatible by permitting a ban on camping, in which case the byelaws will stand but the court may make declarations of incompatibility in respect of them and section 14(2), under section 4(2) and (4) of the Human Rights Act.

The judges must by now though have decided that the byelaws can’t under section 3 be read or given effect in a way which is compatible with Convention rights – and they’re obviously right. But with respect to them, that element of the reasoning ought to be spelled out in the judgment.

Carl Gardner2009-02-06T10:52:00+00:00Tags: defence, freedom of expression, human rights, interpretation|

The Mohamed judgment

Carl Gardner February 5 2009

Here it is. I think it’s a good judgment, and I’m glad I was cautious last night about joining the chorus of outrage: it does not seem obvious to me that justice requires the 25-line summary of evidence the judges have referred to be made public regardless of American concerns about secrecy. Binyam Mohamed I think has the disclosure he needs for the purposes of his habeas corpus application and to enable him to sue the British government for its alleged role in his treatment; and the Attorney General is considering prosecutions on the basis of the secret evidence. Had publication been necessary to ensure a fair trial I might have taken a different stance, but in these circumstances publication would be made simply for its own sake – I’m not sure it’s right for a British court to decide to do that rather than leave it to the Obama administration and the American courts to decide.

However: this puts a lot of pressure on Baroness Scotland, who so far has managed to avoid the troubles that dogged her predecessor and radical reform of her role. I think a decision not to commence prosecutions would cause her a great deal of difficulty, and call the role of the Attorney into question yet again.

Thanks to Liadnan for pointing me to the judgment.

Carl Gardner2009-02-05T15:30:00+00:00Tags: attorney general, human rights, terrorism, torture, united states|

The Mohamed case and the American threats

Carl Gardner February 4 2009

It’s difficult, without seeing the judges’ ruling, to be completely sure that the information Thomas LJ and Lloyd-Jones J would like to publish relating to the treatment of Binyam Mohamed must be published by a British court: originally disclosure was sought in the interests of Mohamed’s defence before an American military commission, but now that prosecution has been halted of course. There is also a habeas corpus application, and I’m not yet clear to what extent disclosure has been made to the American judge in that case. It may be – may be – that there has been sufficient disclosure to ensure fairness to Binyan Mohamed and that there is some good security reason for the information not to be published to all the world, or at least for the American government and court hearing the habeas corpus case, rather than our own courts, to decide whether it should be or not.

But even as I write that, I feel I’m making a far better case for the British government’s position than David Miliband himself has done. This would not be the first time the American government has appeared uncooperative in the extreme with a British court when disclosure would not, in truth, have made the security sky fall in, and I’m not satisfied either that the British government has sufficiently impressed on the Americans the importance of this kind of thing to how the US is perceived, or that the current approach really reflects what President Obama wants. Sometimes in this country it takes a little while for a new political will to change the Pavlovian learned responses of the official machine – I very much hope that’s the explanation for what’s happened here.

Carl Gardner2009-02-04T23:35:00+00:00Tags: human rights, terrorism, torture|

British jobs for British workers

Carl Gardner February 4 2009

I must admit to having some sympathy for the workers at Lindsey oil refinery who protested against the shipping in of Italian workers to carry out work there; and with those Labour MPs like Jon Cruddas who have called for a change to the European legislation which undoubtedly permits what the company in question, IREM, have done here – the posted workers directive. According to the European Court’s ruling in Laval, that Directive also makes the “wildcat” strikes unlawful. No doubt lawyers were being instructed to apply for an injuction against the strikers if a deal acceptable to the employers had not been reached.

It’s all very well for ministers like Lord Mandelson to argue against protectionism – I’m opposed to that too, very strongly, and very much in favour of free movement of workers within Europe. But the truth is that British workers are less protected than many others, precisely because of the government’s policy of encouraging a flexible labour market. Article 3(1) of the Directive guarantees posted workers terms and conditions, including pay, which are laid down by law or in binding collective agreements in the host country. Because in the UK we have no system of binding collective agreements applicable across a whole industry – rates negotiated at a national level and which must be paid by all employers – foreign firms posting their workers here have nothing to comply with except the national minimum wage legislation.

Fine, if you want ruthless labour cost competition across Europe, but we don’t have that. Lord Mandelson is being disingenuous in suggesting there is a level playing for British workers who can find work abroad, because many other countries (though not all) do have systems of binding collective agreements – British firms posting their workers will need to comply with the going pay rate there, and will find it less easy to win contracts once the additional wage costs are factored in to their bids.

For better or for worse, British governments have made our choice for us, preferring the potential benefits of importing cheap labour to those of protecting domestic workers from competition; yet they’ve failed to sell their flexible vision to European partners who continue to apply their own social model, while the EU’s “Lisbon strategy” to become the world’s most dynamic and competitive economy by next year is far from a wild success. The idea that, after lecturing others for years about flexibility and the evils of social protection the UK would now carry any credibility in trying to amend the posted workers directive is just unrealistic.

Carl Gardner2009-02-04T16:34:00+00:00Tags: business, employment, eu law, free movement|

How to address the Supreme Court

Carl Gardner January 28 2009

I’m way behind Charon and John Bolch with this story, but must throw in my tuppenceworth. It seems that Lord Hope and his pals on the well-upholstered putative Supreme Court bench are unhappy about the address of the new court, in Little George Street, SW1, and with the domain name the court will have on the web.

I have no sympathy at all with their no-longer-to-be-Lordships on the physical address point. An address is an address, and that’s that; their dislike for Little George Street is silly, infantile special pleading. They should worry less about the size of their George Street, and more about what they do in it.

I have a little more sympathy with them as far as the domain name is concerned because they are not part of government – indeed, respecting the separation of powers was the reason (although a completely misguided one in my view) for bringing the Supreme Court into existence, so it seems strange to give it a domain that apparently links it to government.

However. Lord Hope say he’d have liked supremecourt.uk, but the problem with that is that the rules prevent people from registering pure “.uk” or “top level” domains of that kind nowadays. So, as with the street address, Lord Hope is I’m afraid expressing a desire to be exempt from, or above, the rules applicable to everyone else. No more impressive an attitude from a constitutional court than it is from Parliament.

And anyway, if they don’t like being associated with the executive, why don’t they use uksupremecourt.org.uk? The Ministry of Justice has bagged it for them. Or uksupremecourt.org, which is still available?

Carl Gardner2009-01-28T08:42:00+00:00Tags: UK Supreme Court|

A good week for Basildon

Carl Gardner January 26 2009

It was a jolly good week in court last week for Basildon Council. First, they won against the Equality and Human Rights Commission in this case about travellers in the Court of Appeal; then they followed it up with this win against the golf club in the High Court. All sections of society must tremble before the might of Basildon’s legal department, for whom everything is going to plan just now.

Carl Gardner2009-01-26T21:01:00+00:00Tags: judicial review, local government, planning|

Au revoir, Rachida…

Carl Gardner January 23 2009

Oh no! She’s going! Not quite yet, but the French justice minister Rachida Dati will leave Nicolas Sarkozy’s government in a matter of weeks in order to run in the European elections. She’s being reshuffled out, basically. Shame. She may be an aggro-magnet, but she’s been great fun right up to the end, coming back to work just five days after giving birth. The father’s identity is a source of speculation, too. I’ll miss her.

Let’s hope, as she does, that it’s au revoir.

Carl Gardner2009-01-23T18:18:00+00:00Tags: france, rachida dati|