Reactions to Dacre

November 14 2008

There’s been quite a lot of blawg talk about Paul Dacre’s speech, apart from here. I’m especially interested in Simon Myerson’s good advice to would-be barristers about avoiding judge-bashing, as disrespectful of the rule of law and ultimately of democracy. Of course you can criticise judges’ legal reasoning – this blog would be in trouble if I didn’t indulge in that quite a lot – but I think that requires what I’d call a scientific attitude, reflecting a desire to get at the “truth” of what the law is and to move legal reasoning forward. Plus of course a demonstrable ability to enagage with the legal issues, without which your criticism will carry not credibility.

Simon’s post was interesting enough to make me question my own recent and serious attack on Lord Phillips, in which I said he wasn’t fit to lead the Supreme Court next year. Even after reflection, though, I stand by it. I think to suggest it wouldn’t be a radical change if family disputes in this country were decided according to a system that discriminates systematically against women is I think well below the standard you should expect from the head of a consitutional court in a leading democracy.

I was pleased to be called “characteristically forensic” by Geeklawyer: praise for your argumentative style from that quarter is worth remembering and quoting (if necessary, back at him). Da Geek exemplifies Simon Myerson’s advice in arguing for the law to be different – I’m not sure his language is to be recommended in pupillage interviews, though. I’m sympathetic to his instinct to separate the rich and extrovert from the ordinary citizen, but I don’t see any way of doing that – at least not without breaching article 14 by giving people differential privacy protection depending on their income or wealth. Actually, I’d go further and say that we shouldn’t worry too much that the big cases are all about the rich: that’s just the way of the world when law costs money. Equally, freedom of expression cases can only generally be run by big publishers with plenty of cash, but I think the fact that they do so helps smaller, more shoestring publications. Just as Max Mosley’s victory makes for greater privacy for everyone.

Lords judgments

November 12 2008

There are two today, both from Northern Ireland.

In Re E is about the protests and distress of little girls trying to attend the Holy Cross Church in north Belfast in 2001 in the midst of violent and threatening protests – the claimants did not succeed in establishing that there were police failures to defend the children that amounted to a breach of their article 3 Convention right to be free from inhuman or degrading treatment, or that they were discriminated against contrary to article 14.

Zalewska v Dept. for Social Development is about the workers’ registration scheme imposed on Polish and other workers for a transitional period after EU accession in 2004. Ms. Zalewska argued that the UK’s scheme was disproportionate in its procedural requirements, as, although she initially registered and then worked for a period of 12 months in the UK – which would normally entitle her to benefits thereafter – she failed to re-register after a change of employer, and so lost all entitlement. Lady Hale and Lord Neuberger agreed with her, and held the scheme disproportionate; and Lord Hope ummed and aahed considerably before concluding that is was proportionate after all. Lords Carswell and Brown agreed with him – so Ms. Zalewska lost by three to two, and the government must be relieved.

Particularly interesting is the contrast between what might be called the “broad” approach to proportionality exemplified by Lord Brown at para. 63-65 of his speech, and the “narrow” approach to it of Lord Neuberger at paras. 67-69. Instinctively I agree with Lord Brown; I think the narrow approach risks being excessively interventionist although I can see it has strong arguments in its favour. There was a similar divergence of approach between Judge Masing and the others in the German Constitutional Court earlier this year.

Paul Dacre’s laughable attack on Eady J

November 10 2008

I almost almost choked on my credit crunch this morning (Sainsbury’s “Basics” breakfast wheat biscuits) as I listened to quotes from Paul Dacre’s lecture to the Society of Editors Conference, in which he attacks Eady J personally for his “arrogance and amorality”. You can read the full lecture here, but here’s the opening of the Daily Mail editor’s attack:

inexorably, and insidiously, the British Press is having a privacy law imposed on it, which – apart from allowing the corrupt and the crooked to sleep easily in their beds – is, I would argue, undermining the ability of mass-circulation newspapers to sell newspapers in an ever more difficult market.

This law is not coming from Parliament – no, that would smack of democracy – but from the arrogant and amoral judgements – words I use very deliberately – of one man.

I am referring, of course, to Justice David Eady who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.

Dacre goes on to criticise specifically Eady J’s judgment in the Max Mosley case, which I’ve written and spoken about at some length before, and which in Dacre’s view involved “unimaginable sexual depravity”:

Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Justice Eady. To him such behaviour was merely “unconventional”. Nor in his mind was there anything wrong in a man of such wealth using his money to exploit women in this way.

He argues that Eady J has unprecedented power and is personally biased,

But surely the greatest scandal is that while London boasts scores of eminent judges, one man is given a virtual monopoly of all cases against the media enabling him to bring in a privacy law by the back door…. The freedom of the press, I would argue, is far too important to be left to the somewhat desiccated values of a single judge who clearly has an animus against the popular press and the right of people to freedom of expression.

and that the law has been changed sneakily and without Parliamentary approval,

If Gordon Brown wanted to force a privacy law, he would have to set out a bill, arguing his case in both Houses of Parliament, withstand public scrutiny and win a series of votes. Now, thanks to the wretched Human Rights Act, one Judge with a subjective and highly relativist moral sense can do the same with a stroke of his pen.

I’m not going to mince words: this outburst is laughably excessive, self-serving and misleading. It is not just nonsense, but binged-up intoxicated happy-hour nonsense in the way it lashes out angrily at someone just doing his job.

I could go on and on about what’s wrong with Dacre’s views. Fortunately, you can instead listen to a debate on Today in which Lord Falconer made all the key points and I thought argued his opponent into a quivering pulp. I agree with absolutely every word he said. But let me make a couple of points myself.

First, Dacre’s view of morality seems to me to smell at best of the 1950s, if not the Victorian era, an aspect of this that should not be lost sight of. I can well understand people disapproving of Mosley’s sex life, but to call it unimaginable depravity? Heavens. He also calls adultery a “proper cause for public condemnation” – another cry from the past, surely.

Second: Eady J at no point in his judgment says that there’s “nothing wrong” with what Mosley did. The judgment is – as it should be – about legality, not morality. Dacre’s charges of amorality and relativism are simply wrong.

Thirdly, it’s just false to suggest that the development of the law here is down to one man. The House of Lords has also contributed to developments in this area – and Eady J’s judgments are subject to appeal, like any other judge’s. The truth is that it’s difficult to fault his judgments in law (whether you agree with him that Mosley’s party wasn’t in fact a “Nazi orgy” is another matter), and that may be why Dacre and his friends prefer to scythe the man down from behind, all studs showing, rather than kicking off in the Court of Appeal.

Fourth, Dacre fails (how odd!) to mention how friendly the Mosley judgment is to the press – Eady J floated the idea that newspapers should be able to rely on a defence of “responsible journalism”, something the higher courts may pick up on if newspapers dare appeal and risk something worse than the nurse Dacre is throwing his toys at. The reason Eady J did not base his judgment on responsible journalism is that, far than being the arrogant figure of Dacre’s imagination, he was conscious he could rely on no authoritative precedent for it. What’s more, Eady J rejected the idea that exemplary damages should be available against newspapers in privacy cases – a ruling that’s been criticised, by me anyway, as unduly favourable to newspapers.

Fifth, he fails to mention that the Mosely judgment leaves plenty of room for newspapers to expose wrongdoing where they have public interest justification for doing so. What it actually limits is exposure of private behaviour where there is no good reason for the exposure. It’s the freedom to do that that Dacre is mourning.

Finally, as for the idea that all this has happened by stealth – give me strength! Dacre only thinks a law of privacy is “being” introduced by the back door because he is ten years behind the curve, as they say. Everyone who was paying attention at the time knew that the Human Rights Act 1998 – 1998 – gave effect to the right to respect for private life, and the press certainly knew it, because they fought for and obtained concessions from the government during the bill’s passage. Never was there a clearer case of Parliament having legislated in full knowledge of what it was doing.

In reality, Dacre is the one who’s out of touch, over-mighty and pursuing his own personal moral agenda. The sound of his voice seems to me to be the gloriously nostalgic whine of someone who was once above the law and is now pained by the revelation that it is above him.

Lord Lester’s resignation

November 7 2008

You hardly mention Lord Lester for ages, then suddenly two posts about him come in the same week. He resigned the other day as the government’s adviser on constitutional stuff, which news gives me another chance to kick the government about its bill of rights and responsibilities. You might also be interested in the Joint Committee on Human Rights’s report on a bill of rights, which gives you a pretty good idea where Lord Lester’s coming from.

I won’t grump on and on and on about it – you’ve heard it all before – but this bill really was doomed to disaster from the start. It was bound to displease the human rights lobby (Lord Lester) and human-rights-ophobes (Jacqui Smith) because the government seemed to want to use it both to extend and limit human rights at the same time. Jack Straw shouldn’t of course be surprised by any of this, as he’ll remember the original human rights bill – yes, that one – was taken away from the Lord Chancellor’s Department (or was it DCA by then? I can’t remember) and given to the Home Office (prop. J. Straw), presumably to make sure it didn’t go too far. Jacqui’s only doing now what Jack did back then.

Jack Straw, mind, is starting to make a habit out of backing grand consitutional wheezes to “simplify” things and win voters’ hearts and minds, but that turn round and bite him when interest groups get a grip on them. Remember this?

Oh, Lord Lester got his way on the Employment Bill, by the way.

Rozenberg on the culture of PI

November 6 2008

I strongly agree with Joshua Rozenberg’s attack on tribalism in the personal injury world: he’s right that it’s outrageous to criticise a lawyer’s nomination for an award on the grounds that you don’t like the outcome he’s achieved in a case. I’ve never been attracted to PI work myself (I’ve always thought the drafting dull, the personal stories harrowing and the process of converting disaster into money somewhat grotesque) on either side, but I’m certainly repelled by the attitude, shared by many, that one side in PI law always represents truth and justice while the other represents lies and wickedness. Interestingly, while trade unionists may often assume claimant lawyers are angels and defendant lawyers devils, doctors tend to see things the other way, believing that lawyers making medical negligence claims are vampires out to drain the NHS of funds.

2008-11-06T12:03:00+00:00Tags: , |

Rights and responsibilities: it’s crunch time

November 6 2008

Both the Guardian and the Telegraph have reported this week that the government’s plans for a “Bill of Rights and Responsibilities” is facing a Cabinet revolt, led by Jacqui Smith. I’m not at all surprised that it’s running into trouble – I’ve long thought this is a nonsensical proposal and that nothing about it had been thought through at all, neither the politics nor the policy.

Clearly some minister has told these newspapers that Home Office lawyers somehow back the opposition to the bill. That can’t quite be right, or shouldn’t be: government lawyers have no business backing or opposing policy options. What they can and should properly do is point out the difficulties the bill would involve, and give their views of how it might work if passed. I’ve absolutely no doubt Home Office lawyers can think of many potential problems with it, and that that advice is being used by Home Office ministers to back their own views. It may also be – this would be sad but all too credible – that officials and lawyers have been captured by institutional departmental views (a wide-eyed pro-rights view from Minijust, and a Scroogelike anti-rights grumpiness from Home Office) and that legal advice is being too influenced by them.

I’m not constrained in my views of course, no longer being a civil servant (hooray!). If I were a minister, I’d be against this bill: I don’t think Minijust has ever been clear what it’s supposed to do – “clarify” the Human Rights Act or try to limit it (which would be doing David Cameron’s work for him), somehow cheerleading for it, which would be a waste of time, or adding rights to it, which I agree would risk giving judges vague and excessive power which neither they nor the public want. This bill should just be scrapped.

Bagehot on the American Presidential system

November 5 2008

On the day after Barack Obama’s election, I thought you might be interested in what Walter Bagehot said about the presidential form of government, in his famous 19th century work, The English Constitution:

the first election of Mr. Lincoln… was a characteristic instance of the natural working of such a government upon a great occasion. And what was that working? It may be summed up–it was government by an UNKNOWN QUANTITY. Hardly any one in America had any living idea what Mr. Lincoln was like, or any definite notion what he would do. The leading statesmen under the system of Cabinet government are not only household words, but household IDEAS. A conception, not, perhaps, in all respects a true but a most vivid conception of what Mr. Gladstone is like, or what Lord Palmerston is like, runs through society. We have simply no notion what it would be to be left with the visible sovereignty in the hands of an unknown man. The notion of employing a man of unknown smallness at a crisis of unknown greatness is to our minds simply ludicrous. Mr. Lincoln, it is true, happened to be a man, if not of eminent ability, yet of eminent justness. There was an inner depth of Puritan nature which came out under suffering, and was very attractive. But success in a lottery is no argument for lotteries. What were the chances against a person of Lincoln’s antecedents, elected as he was, proving to be what he was? Such an incident is, however, natural to a Presidential government. The President is elected by processes which forbid the election of known men, except at peculiar conjunctures, and in moments when public opinion is excited and despotic; and consequently if a crisis comes upon us soon after he is elected, inevitably we have government by an unknown quantity–the superintendence of that crisis by what our great satirist would have called “Statesman X”. Even in quiet times, government by a President, is, for the several various reasons which have been stated, inferior to government by a Cabinet; but the difficulty of quiet times is nothing as compared with the difficulty of unquiet times. The comparative deficiencies of the regular, common operation of a Presidential government are far less than the comparative deficiencies in time of sudden trouble–the want of elasticity, the impossibility of a dictatorship, the total absence of a REVOLUTIONARY RESERVE. This contrast explains why the characteristic quality of Cabinet Governments–the fusion of the executive power with the legislative power–is of such cardinal importance.

I’m not sure “dictatorship” is a word we’d use today as part of this argument, but this remains a strong case for the British parliamentary style of government over the American system – which, to British eyes, looks like a version of our own constitution but frozen in the 18th century, with an elected rather than a hereditary King. Reading Bagehot now, what’s interesting is how right he was proved about the British system by the war and the emergence of Churchill as Prime Minister; and how true it still remains that a new President elected in a time of hope, like Obama, is an unknown quantity.

Against Bagehot, though, you could argue that the American system has proved itself capable of removing a bad President, at least, in Nixon’s case; and that we British hardly felt we knew Gordon Brown when he became PM, even after ten years of him in government. Margaret Thatcher was also a largely unknown quantity when she reached No. 10, and how she would react to the Falklands invasion was just as unknown as how President Bush was going to react to 9/11.

You’re welcome to e-mail in essays discussing all this, but I don’t promise to mark them. If you’re interested in Bagehot’s work, you can read The English Constitution for free, here, here or here.

2008-11-05T16:02:00+00:00Tags: , , |

Will Obama be the 44th U.S. President?

November 5 2008

I’m not a day late with this post; and yes, I do realise what happened last night. I’m pretty confident Obama will be inaugurated as 44th president on January 20.

Constitutionally, though, he’s not even been elected yet because as you’ll no doubt know, the President is officially elected by the electoral college when it meets on December 15. Or rather when it doesn‘t meet: the electors gather in their state capitals, send certificates recording their votes to Washington, and then on 6 January 2009 a joint session of Congress counts the certified votes and declares who will be President and Vice President. The procedures are set out in the 12th amendment to the US Constitution, and you can find out more about the electoral college here.

The truly amazing thing is that in many states, there is no legal requirement for electors – that is, members of the electoral college – to respect the popular vote in their states. So if the electors of New York, Pennsylvania, Illinois (somewhat unlikely, this, I admit) and New Jersey were all to vote for McCain instead of Obama…

It seems like the stuff of fiction rather than reality – but then, who’d have believed how the Presidency was settled in 2000? It’s worth musing on circumstances in which the electors might one day feel obliged to cut loose from their pledges – say, if a President-elect is involved in some sort of scandal or disgrace following election day. I bet it happens in my lifetime.

2008-11-05T14:20:00+00:00Tags: |

Lord Lester’s amendment

November 4 2008

The Commons votes today on the third reading of the Employment Bill, the main interest in which is what’s now clause 19, which amends section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 in order to permit unions to bar or expel members of the BNP. The amendment flows from the ruling of the European Court of Human Rights last year in ASLEF v UK, which decided that the 1992 Act, which the Employment Appeal Tribunal had read as preventing the train drivers’ union from expelling one of its members on grounds of BNP membership, was in breach of ASLEF’s article 11 Convention right to freedom of association.

At first blush that might seem a paradoxical judgment: how can the right to free association have the result that people should be denied union membership? Actually it makes sense, though: as the ECtHR explained at paragraph 39 of its judgment,

Article 11 cannot be interpreted as imposing an obligation on associations or organisations to admit whosoever wishes to join. Where associations are formed by people, who, espousing particular values or ideals, intend to pursue common goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership.

The government had planned a simple amendment, just permitting explusion on grounds of membership of political parties, but a small spat has broken out over clause 19, which takes its present form as the result of an amendment proposed by Lord Lester and backed by the Lords, which includes a number of safeguards for the union member at risk of explusion – for instance, that the union must amend its rule book to allow for such explusions, and must give the member a right to make representations. Lord Lester’s got those safeguards from paragraph 43 of the ASLEF judgment. Here’s a BBC report explaining the issues, and here you can listen to a short discussion on Today between Lord Lester and Tony Lloyd about the amendment. You might also be interested in the scrutiny report by the Joint Committee on Human Rights from April this year, which unsurprisingly backed Lord Lester.

This is interesting politically of course, and I think Lord Lester’s reading of the ASLEF judgment is more or less right: a union would go further than article 11 permits, and would breach its member’s right of association, if it expelled him or her contrary to its own rule book or in a way that is procedurally unfair. I’m not sure that really requires the rule book to be amended in advance – but that’s a minor quibble. What’s interesting on an extremely nerdish legalistic level is that none of this legislative dispute really matters. Even if the government gets its way, sections 2 and 3 of the Human Rights Act mean tribunals will need to read the new legislation taking account of ASLEF, and will read in the pargraph 43 safeguards. I would have thought Lord Lester’s best argument is simply that his text puts them clearly on the face of the statute.

Jacqui gives it up

October 15 2008

So finally, the government has given up on its plan to extend police powers to detain terror suspects without charge to a maximum of 42 days: the Home Secretary has said she’ll drop the clauses from the Bill when it comes back to the Commons. This of course follows the government’s defeat in the Lords, a defeat I predicted back in June – not that that was the most difficult piece of prognostication ever – but which was more massive than expected, the government mustering less than half the votes of its opponents. I’m not surprised the government has realised it’s now time simply to fold; if it’s not prepared to use the Parliament Acts – and that would have been outrageous given the split in its own ranks and the state of public opinion – then it can never get its way on this.

And like buses, government towels may be delayed, but sometimes come at once, because Jacqui Smith has also decided to shelve her proposals for a new power for her to be able to order an inquest to take place without a jury in the “public interest”, an awful idea I warned about in April. That concession, mind, is only temporary: it may pop up again next year. I hope not, though.

At the weekend I went to the pictures to see How to Lose Friends and Alienate People, a film that turned out to be a slightly satirical rom-com starring Simon Pegg and Kirsten Dunst; though from its title it might just as well have been about the content and conduct of the Counter-Terrorism Bill as brought to you by Gordon Brown and Jacqui Smith.

2008-10-15T17:11:00+00:00Tags: , , |
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