Infuriatingly…
I have a serious computer issue, which is taking time to sort – hence no normal service! Bear with me…
Have a great Christmas and New Year!
The Christmas rush has, I’m afraid, “got” to this blog somewhat – sorry. It’s not the greatest blogging period of the year, of course. But rest assured, normal service will be resumed as from 5 January at the latest.
In the meantime – have a good time!
Ireland’s re-referendum – an absolute scandal
It’s hard to find the words for how I feel about the proposed second Irish referendum on the Lisbon Treaty: cynical, depressed, angry, frustrated, concerned – all those, and more. This suggestion is an absolute scandal, revealing the authoritarian instincts of political leaders in Europe, and endangering the future of the EU. Brian Cowen should be ashamed of himself, and should resign. He ought to be standing up for his country’s decision and demanding that the EU truly get “closer to its citizens”, to use the Brussels jargon that is often mouthed and, as we can see from this re-referendum plan, rarely meant.
Everyone in Europe knows that a Yes vote wouldn’t have led to a re-run; the Spanish were never asked to vote again after they said yes to the Constitution (which everyone in Europe knows is the same as Lisbon). Everyone in Europe knows that the heads of government and the Commission dare not ask France and Holland to vote again. And everyone in Europe knows that this is an attempt to bully Ireland that shows contempt for its democracy and constitution and that will be backed by dark threats of being thrown out of the EU (which again, everyone knows France would never be threatened with). It’d be ludicrous for a Brit like me to appeal to the spirit of Easter 1916, but I suspect quite a few Irish people are wondering what was the point of getting rid of the British, if they’re going to submit to this kind of treatment by other foreigners.
None of this is about the Lisbon Treaty any more. Solely on the merits of the treaty I might have voted yes, had we had a referendum this side of the water, in say 2005. But the merits of the treaty have long since ceased to be the issue. The issue is whether the European Council will ever listen to the people they are supposed to serve. What’s now clear is that they must be forced to do so, and that the Irish must play their part by voting No again – with a bigger majority than the first time.
Shadow Attorney
From reading Iain Dale’s Diary I see the Tories still haven’t filled their vacancy for shadow Attorney – six months seems to me a bit of a gap if you take the role at all seriously. Appointing Lord Trimble would at least show they take the job seriously now – and I think the Attorney’s job could be very important if there were a Tory government, especially in contributing to European policy.
Lord Lester: it was bound to end in tears
The Guardian today has a story about Lord Lester’s disgust and disappointment as Labour’s human rights record. Oh, well. You’ll remember he resigned as a government adviser last month.
I doubt the government is all that heartbroken at his going; they got the small amount of political kudos they wanted from his appointment last year, and could probably do without an “adviser” who wants policies quite different from theirs. I have to say I think he was naive in the extreme if he thought the government was likely to increase its exposure to international human rights litigation at the moment – and he probably now realises it was a mistake for him ever to have accepted his appointment as a “goat”. Those LibDems who have been arguing for some time in common with the Tories that Gordon Brown’s government is authoritarian can be rightly miffed that Lord Lester lent himself to Brown’s cause for so long.
Asst. Commissioner Quick’s letter to Jacqui Smith
An anonymous commenter has drawn my attention to the police’s letter to the Home Secretary explaining the business about search warrants: here it is, and the letter is also reproduced on the BBC News website.
I’ve got a bit fed up of nonsensical, irrelevant talk about privilege around the blogosphere, suggesting that no warrant could ever lawfully be issued by a Magistrate, and so forth. I think it’s quite clear that the search of Green’s Parliamentary office was perfectly lawful – there was no need for a warrant – and that the police’s procedural approach was absolutely correct. The only possible way to dispute that is to claim that the facts set out in the first full paragraph on page 3 of the letter –
The officers explained the nature of the investigation and the purpose of the search and were satisfied that the Serjeant at Arms understood that police had no power to search in the absence of a warrant and therefore could only do so with her written consent or that of the Speaker.
are untrue. We’ll see if the Serjeant at Arms disputes them.
It’s also right that the Serjeant at Arms could have insisted on their obtaining a warrant, that a Magistrate could have issued one and that the police could have lawfully executed it.
The issue of warrants and the propriety or lawfulness of the searches is a complete red herring. The real issue is the propriety of the arrests.
S and Marper v UK
The European Court of Human Rights has today ruled against the UK in this important case about retention of DNA samples and profiles as well as fingerprints. S had been charged with attempted burglary when 11 in 2001; he was acquitted, but his DNA was retained under section 64 of PACE. Marper was charged with harassment, also in 2001, but proceedings were discontinued – again, his samples were retained.
The Grand Chamber of the ECtHR has ruled – unanimously, which surprises me a great deal – that UK law on this is a disproportionate interference with the article 8 right to respect for private life. It had no problem in deciding retention of the samples was an interference with article 8, and I’m not at all surpised by that. To be honest, I thought Lord Steyn was unrealistic in the House of Lords about this, and that Lady Hale had it right (yes, I do agree with her sometimes). I reckon it was always pretty obvious there was some interference, even if Lord Steyn was right to say that interference was “very modest indeed”. The ECtHR, though, took a more serious view of the effect of the interference on individuals.
Justification, though, is the meat of the judgment. The Court gave great weight to practice in other countries (paras. 108-110) and saw UK law as out of line; on that basis, it narrowed the margin of appreciation allowed to the UK (para. 112). While the Court accepted retention was for the legitimate purpose of preventing and detecting crime it saw the UK’s approach as blanket and indiscriminate (para. 119), applying to youths as well as adults, allowing long or indefinite retention and with a very limited ability to obtain destruction. The Court’s conclusion, that UK law on this is disproportionate to its legitimate aims and so in breach of article 8, is at para. 125.
I’m surprised by this, and disappointed: my own view, like Lord Pannick’s, is that building up a large DNA database by wide collection and long retention of samples is amply justified. I think Sedley LJ must be disappointed too, because this judgment clearly dishes his idea of a universal database. It seems to me that the ECtHR has given far too much weight to the abstract, science-fiction concerns here and far too little to the important offences DNA evidence can solve, and that it’s taken far too interventionist and narrow a view to the margin of appreciation here. I fear that, if close study of this judgement results in states feeling obliged to adopt a case-by-case approach to retention rather than a “bright lines” rule-based approach, the administrative burden on states will be great, litigation will grow, and inevitably crimes that might have been solved, will not be. And all because people are terrified by Hollywood fantasies about bits of gunk in test-tubes.
Unimpressed by the cowardly Speaker
I’m distinctly unimpressed by the Speaker’s statement on Greengate-Galleygate, as are Iain Dale, Guido Fawkes and Fraser Nelson.
The question of warrants is a red herring. The only issue is whether the arrest was lawful under section 18 of the Police and Criminal Evidence Act. The relevant PACE Code of Practice is here – see page 37, paras. 4.3 and 5.
Assuming the search was lawful (and nothing the Speaker said suggested otherwise) then the Serjeant-at-Arms was right to allow the police to search Parliamentary premises. Parliamentary privilege does not prevent arrests for crimes, and it would be quite wrong not to admit the police to exercise their lawful powers. Speaker Martin clearly didn’t think a search warrant was necessary last week – why should he have? it’s not – but now that all this has blown up he is trying to put the Serjeant-at-Arms in the frame. Weak, pathetic and deeply unimpressive, this: if there were any sense in this idea that a warrant should be insisted on (there’s not: it’s merely a procedural hurdle that’s being put forward now, as a sop) then he should have insisted on one last week, rather than bringing it up after the fact, as a way of blaming his staff. Jill Pay has done nothing wrong, and should not resign. If anyone in Parliament has failed, it is the Speaker personally.
I’m also unimpressed that the debate on all this will only take place on Monday – it should have been this week.
A proper debate is needed – on the real issues
The Damian Green affair obviously dominates today’s opening of Parliament – and so it should. For once, Parliament’s grand gaudy show coincides with a chance for it to really show what it can do: hold government to account, express the opinion of the public and make political misdeed have political consequences. The Speaker will make his much-awaited statement, but that’s not nearly enough: there must be a debate on Greengate/Galleygate as a matter of urgency. If Parliament works properly, that debate will be today. If that’s “not possible” because of hidebound tradition relating to the Queen’s speech, then it should be as soon as possible after that. Any delay to next week would be an attempt to muffle the debate. I think today we will see whether the Speaker is big enough for his historic office, or is the placeman his critics have accused him of being.
But I worry, too, that politicians themselves are trying to divert this affair into its less important aspects. The debate should not be confined to Parliamentary privilege or the position of Damian Green – that would bemuse the public who will see politicians debating their own privileges as against the law. The debate must cover secrecy generally in government, and whether the law should be changed. Not should the debate be diverted into a partisan spat about Christopher Galley’s alleged political motives. Yes, if as Lord Mandelson has said, Tory complaints are
a smokescreen to hide their own party’s role in, allegedly, colluding with a home office official and breaking the law
I’m no more impressed than he is – although incidentally I’d like to know which law he says has been broken, and why he feels able to make such allegations freely. But his approach is to take the narrowest, pettily partisan approach simply in order to serve ministers’ own interests and shut the legitimate debate down. The issues are bigger than Christopher Galley’s motivations.
Finally we must know about ministers involvement. What did they know – exactly – and when? They should not be allowed to give literalist answers that fall through the cracks of questions without telling the whole truth. And if as they say they weren’t told of the arrest in advance – we need to know why not. Did they make it clear to the police that they wanted to be protected from knowledge of it?
Unity’s article at Liberal Conspiracy
I profoundly disagree with Unity’s article yesterday about the Damian Green business at Liberal Conspiracy. I think in his loyalty to the Labour government he’s allowed his re-reaction to the Conservative reaction to this affair to spill over into outright support for the worst sort of traditionalist Yes, Minister Whitehallism. I’m quite pleased with my own comment, and vain enough to think you might even want to read it.