Impeaching Musharraf

August 7 2008

It sounds like good news on the face of it, that Pakistan’s governing parties are considering starting impeachment proceedings in Parliament against President Musharraf. I’m not against it. But much more important is the issue of reinstating judges sacked by Musharraf when he suspended the constitution, and issue the parties have been in deadlock over – stupidly and small-mindedly – for some time. That’s such a weakness for the government that Musharraf is able to outmanoeuvre them using the issue of restoring judges. I’m with the PML-N on this, I think: there should be full restoration with no compromise. But reaching some comprehensive agreement is a matter of urgency. My fear is that impeachment is a diversion rather than any sort of closure.

2008-08-07T13:10:00+00:00Tags: , |

German Consitutional Court: smoking bans disproportionate

August 6 2008

I’m afraid you need to read German in order to read the recent judgment of the Federal Constitutional Court in which it has ruled unconstitutional smoking bans in Berlin and Baden-Württemberg. There is also a press release which explains the judgment in slightly less dense German, and a Deutsche Welle article in English which gives the background. The Länder have competence in this area since the Federal legislature the Bundestag has not acted – the DW article refers to criticism of the government for leaving this issue to regional governments.

The first thing to make clear is that the judgment does not mean smoking can’t be banned in German pubs: in fact, the court made it clear that Berlin and Baden-Württemberg could lawfully have brought in a total ban on smoking in bars and restaurants. Only Judge Masing thought that would be disproportionate (while dissenting from the ruling overall). So this isn’t the great victory for the smoking lobby that it might at first appear. What the court has decided is essentially that the exemptions contained in these laws are not rationally connected to the policy aim in that they do not properly protect non-smokers or workers, and that they are unfair to small one-room pubs and to discos. The Baden-Württemberg legislation for instance entirely exempted beer tents, those emblematic German institutions, an exemption the court couldn’t understand, as people need protection from smoking there as much as anywhere. It also permits smoking “annexes” – smoking rooms sealed off from the rest of the pub, but does not allow discos to take advantage of the exemption. It was argued successfully that that approach is unfair both to small, one-room pubs – how can they provide a separate smoking room? – and of course to discos. By a 6-2 majority the court held that this regime of exemptions was disproportionate “in the narrow sense” and so contrary to article 12 of the Constitution (the second sentence in effect governing regulation of business) read together with the article 3 guarantee of equality before the law.

The laws remain in force until the end of 2009, but the court has read the provisions down to avoid unfairness in the interim, and has given the Länder clear guidance on the legislative options open to them, which effecively boil down to (a) a total ban in all pubs and restaurants or (b) a partial ban exempting at least some one-room pubs and treating adult-only discos the same as other establishments. This is an approach ministers say they’d like from the courts in this country – but I wonder if they’d really like the extreme intensity of this kind of judicial review.

2008-08-06T13:47:00+00:00Tags: , , , |

The Karadzic Indictment

August 1 2008

In a busy week for judgments I’ve not yet mentioned the arrest of Radovan Karadzic and his transfer to the International Criminal Tribunal for the Former Yugoslavia. But I’m as pleased as anyone else about it. Of course leaders like Milosevic and perhaps Karadzic can make the proceedings look like a charade, and of course a conviction does very little to produce anything that can be called justice. But we now live in a world where brutal political careers are increasingly likely to end in court and in prison: that’s a historical shift that’s very welcome.

Here’s general information on his case, and here’s the 2000 indictment.

2008-08-01T00:08:00+00:00Tags: , |

Lords judgment: R (Baiai) v Home Secretary

July 31 2008

The other interesting judgment from the Lords in what Joshua Rozenberg thinks must have been a record output yesterday was in R (Baiai) v Home Secretary. This case is about section 19 of the Asylum and Immigration (Treatment of Claimants) Act 2004 and the government’s attempts to prevent “sham marriages” – those entered into in order to avoid immigration restrictions, for instance where an EU citizen marries a non-EU citizen who might otherwise not be able to stay in the UK. Section 19 requires that a person subject to immigration control must get the Home Secretary’s permission before a registrar can marry them.

We knew section 19 would have to change, in any event: the government had already accepted the judgment of the courts below that it discriminates contrary to the article 14 Convention right and within the ambit of the article 12 right to marry, because it only requires permission for those not marrying in the Church of England.

Well, section 19 survives; the Lords have decided that requiring prior permission for those subject to immigration control is compatible with the right to marry. But the Lords have found compatibility by reading section 19 in a way that outlaws what the government’s practical policy has been so far.

What the government had done was issue instructions telling officials to refuse permission unless applicants had been granted leave to enter or remain for at least 6 months, and had at least 3 months of that leave remaining. The idea was, as the government admitted, not to investigate to find out whether any proposed marriage was genuine or sham, but to deter sham marriages by the procedural hurdle of having to seek permission (and by charging a pretty substantial fee), and to apply a rule of thumb intended to weed out most sham marriages.

Lord Bingham said that article 12 protects genuine marriage, not the right to secure personal advantage via a marriage ceremony. But the government’s policy breached article 12 because it gave or denied permission applying criteria that did not relate to the genuineness or otherwise of the marriage in question. As Lady Hale said (in another “heart on sleeve” speech in which she was clearly unsympathetic to the government and managed to bring in Auden and Thomas Mann), the rule of thumb was not rationally aimed at the government’s target.

Paragraph 32 is where Lord Bingham sets out what section 19 must be read as meaning; he doesn’t mention section 3 of the Human Rights Act, but presumably it’s what he’s relying on to read the Act in that way.

I’m quite interested in this. First, because, applying the leading case of Ghaidan v Godin-Mendoza, I don’t think it’s really necessary to spell out in terms what you might call the “amended language” of a section as it needs to be read. Lord Bingham could simply have said it permitted refusal only on the grounds that the marriage appeared to be sham.

Second, I think the same legal result could have been achieved without the Human Rights Act. Wasn’t Lady Hale also saying (whether or not she meant to) that the policy was irrational, under normal judicial review principles, in the way the rule of thumb missed the target? And because the 2004 Act was clearly intended to prevent sham marriages, wouldn’t the principle in Padfield, that a minister must exercise discretionary powers in way which promotes, and does not thwart the policy and object of the Act which confers them (see Lord Reid’s speech especially), mean that permission needs to be granted or refused on grounds relating to the genuineness of the marriage? Just a thought.

2008-07-31T17:38:00+00:00Tags: , , , , |

Lords judgment: R (Corner House) v SFO

July 30 2008

Today the Lords has given judgment bringing to an end the challenge by Corner House and the Campaign Against the Arms Trade to the SFO Director’s decision in December 2006 to discontinue the investigation into alleged corruption by BAe Systems in relation to the Al Yamamah defence contract with Saudi Arabia. I’ve written about this case a number of times before.

The Lords have unanimously reversed the judgment in the Administrative Court (this was a leap-frog appeal straight to the Lords, by-passing the Court of Appeal) and have vindicated the SFO completely. The decision of the SFO Director at the time, Robert Wardle, was lawful; he was entitled to come to the conclusion that the public interest in avoiding danger to the public outweighed the public interest in continuing the investigation.

Lord Bingham’s speech is the main one. He rightly puts the case in the context of the public interest test prosecutors are bound to take into account before prosecuting, and remind us that the article 2 Convention right to life is also a relevant part of the background here: the SFO cannot simply ignore real dangers to the lives of citizens on the street. Lord Bingham says that the principle adopted by the Administrative Court, which had held it was unlawful for a decision-maker to submit to threats from a foreign state unless there is no alternative, was not supported by authority; the cases the Administrative Court had relied on were not on all fours with this situation as they did not involve cases where one public interest consideration (here, public safety and national security) was in competition with another (here, the rule of law and need to combat corruption). The court had therefore applied the wrong test. The question was not what else the SFO could or should have done, but whether the Director was entitled to weigh the public interest considerations in the way he did. On this, Lord Bingham has no doubt. Applying normal principles, the result is straightforward:

In the opinion of the House the Director’s decision was one he was lawfully entitled to make. It may indeed be doubted whether a responsible decision-maker could, on the facts before the Director, have decided otherwise. ―§42

I think it’s fair to say that this comes very near to endorsing the SFO decision, not merely ruling that it was lawful. Even Lady Hale, who as so often wears her liberal heart on her sleeve, concurring in the judgment reluctantly, agreed with Lord Bingham that the Director’s decision was a courageous one:

A lesser person might have taken the easy way out and agreed with the Attorney General that it would be difficult on the evidence to prove every element of the offence. But he did not.―§55

So the Lords had little difficulty with the key issue in the case: Robert Wardle must feel entirely vindicated; Lord Goldsmith too must be pleased with the outcome.

The other interesting sub-issue in the case was the justiciability and interpretation of the OECD Anti-bribery Convention. Does it preclude states from taking into account national security? And could the SFO Decision be ruled unlawful on that basis? Lord Bingham addresses this, but Lord Brown’s speech is I think the best place to look for the Lords’ reasoning as to why it thought it should neither interpret the Convention nor review the SFO Decision on the basis of the Convention. The Convention is not justiciable, at least not in the way the claimants contended for, under the Launder and Kebilene line of authority: those cases are distinguished because they involved no dispute about the meaning of a Convention which does provide for judicial rulings and on which there is substantial case law. The OECD Convention on the other hand does not provide for judicial rulings and the Lords’ unilateral decision to do so would limit the UK government’s ability to participate in the OECD working group that is charged under the Convention with attempting to reach a common interpretation. In any event, at least where the Director’s view that his decision was compatible with the Convention was tenable, Launder and Kebilene do not entitle the court to review his decision on the basis of its own interpretation where only the Director’s expression of that view brings the Convention within the court’s jurisdiction at all.

The issues in this case have shifted quite a bit since I pooh-poohed the challenge early on, but still, I feel a bit vindicated in my pooh-pooh; and in my qualms about the Administrative Court decision.

2009-12-03T01:23:15+00:00Tags: , , , , |

R (Watkins-Singh) v Aberdare Girls’ High School

July 29 2008

Sarika Watkins-Singh has today won her race and religious discrimination case against her school for refusing to allow her to wear the kara, a Sikh bracelet, and for excluding her for breaching the school’s no-jewellery uniform policy. Silber J’s judgment in this case is an important development in the law relating to the wearing of religious dress and symbols. Given my instinctive secularism and my extremely critical views of some other analogous cases, it may come as a surprise to readers when I say that I welcome this sensible and principled ruling.

It’s a race discrimination, as well as religious discrimination, case because Sikhs constitute a racial group for the purposes of the Race Relations Act 1976, according to the House of Lords in its 1983 judgment in Mandla v Dowell Lee.

Silber J considers the importance for Sikhs of wearing the kara, a thin, 50 millimetre-wide steel band that according to the evidence is invisible if Sarika wears long sleeves. He concluded that, although Sikhism does not require her to wear the kara, she has a belief, justified by objective evidence, that wearing it is a matter of exceptional importance as an expression of her race and culture. In those circumstances, she suffers a disadvantage or detriment compared to other girls who might want to wear jewellery but have no similar strong religious and cultural wish to do so. Silber J did not see the school’s refusal to make an exception to its uniform policy as justified: he thought the issue of allowing the kara quite different from the issue of the hard-line Muslim jilbab or niqab which have been raised in other cases. The kara is hardly visible, and Silber J rejected the idea that permitting it would “open the floodgates”: applying his “exceptional importance” test, he implied, was a rational approach to taking account of religious needs, and would open no floodgates at all. There being no justification for the school’s approach, Sarika has been indirectly discriminated against under section 1(1A) of the Race Relations Act, and under sections 45(3) and 49(1) of the Equality Act 2006.

Silber J also found that the school had failed totally to fulfil its duties under section 71 of the Race Relations Act to have “due regard” in considering its uniform policy to the need to end unlawful racial discrimination and promote equal opportunity and good relations between persons of different racial groups.

Why do I welcome the judgment? Because it lays down clear and sensible principles identifying exceptional situations where prohibiting the wearing of religious dress will amount to indirect discrimination, drawing a clear distinction between just anything a religious believer might want to wear, and serious cases like this. But, critically, it also adopts a sensible approach to justification according to which the size and visibility of the item in question is of key importance.

There’s also something else which is not discussed in the judgment, but I think is important when you think about how this approach applies more broadly. There is nothing about the kara that is repugnant to the principle of sex equality, or which treats girls as not to be seen in public. Refusal of any item that did embody counter-cultural ideas like that would i think be capable of justification according to Silber J’s approach.

The very hardest of hard-line secularists may be dismayed about the ruling, but I think examination of the judgment should allay reasonable fears. If religious and race discrimination law is to have any application at all in situations like this, then this seems to me a reasonable and clear framework of principles which can be applied in a way that permits secularism unless it truly goes over the top, that satisfies most genuine and moderate religious believers (rather than extremists and campaigners) and that retains safeguards against the sexist religious practice of covering girls up.

And finally: the legal analysis in this judgment is hard to fault. It rightly compares Sarika with pupils of other races and religions – not with other pupils complaining of discrimination on other grounds; and it rightly sees her complaint as involving not direct, but indirect discrimination capable, if the school had had good reasons for what it did, of being justified. Silber J unsurprisingly has not made any of the obvious errors of the tribunal in the Ladele case.

2010-01-19T21:47:39+00:00Tags: , , |

Provocation: sentencing is the real issue

July 29 2008

Julie Bindel in today’s Guardian (it’s been a Guardian week for me so far) welcomes in an anticipatory way proposals that are expected from the government to reform the law of provocation as it applies to murder.

Well, all right. I dare say I’ll support these proposals; I certainly won’t oppose them. I accept that the provocation defence has often been used by men in questionable circumstances, and that the way the defence works now may be unfairly biased in favour of some defendants (often men) and against others (often women).

But all the convoluted need to design defences so as to allow the courts to be lenient with battered wives who kill their husbands and others is purely, solely and simply a perverse outcome of the wrong-headed mandatory life sentence for murder. The varieties of murder are endless; and murderers come in so many shapes that the courts need to be able to show extreme clemency with some, and extreme rigour with others.

The one thing that does not make sense is to have a mandatory sentence set by law in all cases; it’s a prime example of over-regulation in the criminal justice system. I cannot understand why liberal reformers don’t put more energy into trying to get the mandatory sentence removed: fiddling about with the details of defences to homicide would then be so much less necessary.

2008-07-29T01:24:00+00:00Tags: , , |

The Southall Black Sisters case

July 28 2008

Rahila Gupta in today’s Guardian writes about the victory of Southall Black Sisters in its judicial review a couple of weeks ago: Ealing Council had wanted to cut its support for the organisation in order to fund another means of domestic violence provision not targeted at black and Asian women. Well, it looks as though Ealing went about this the wrong way procedurally and without properly carrying out its legal duty to carry out a race equality impact assessment. Ealing withdrew from the hearing, and will now have to continue to fund SBS at elast until it has come up with a legally watertight alternative policy.

I’m not going to comment on the merits of the case, except to say that since statutory duties do seem to have been ignored, it looks as though SBS had a good claim, and Ealing was right to give up. And I think there’s no doubt SBS does good work. So I’ve no problem with the legal outcome and I’ve no problem with SBS receiving continued funding.

There is another way of looking at this, though, from a broader constitutional perspective rather than a narrow public law one. Local government is, to most voters, simply a bureaucratic machine collecting money and doling it out in ways they don’t understand and can’t influence. People don’t know what party runs their council, or who the leaders are, and only a minority of people vote in council elections. How are we ever going to revive local government if its actions are so hemmed in by law that elected councillors can be forced to spend council tax money supporting an individual organisation, however worthy? This isn’t a case about the council trying to close SBS, after all, even if in reality SBS will close without public funds. This is about how the council chooses to spend its budget. If local political action is so circumscribed by statutory duties of all kinds that not even policy choices like this are possible, no wonder ambitious people in politics regard local government as a stepping stone at most; and that voters see little point in voting.

2008-07-28T12:23:00+00:00Tags: , , |

Charon podcast: breach of privacy and the Max Mosley judgment

July 26 2008

Charon interviewed me this morning about the Max Mosley case. We spoke about the development from old-style breach of confidence to what’s effectively a British privacy law, with the new extended right of action for breach of privacy, and the way the courts now determine whether someone’s privacy has been breached. We spoke about the judgment’s effect on freedom of the press, about exemplary damages and a bit, too, about what the judgment says about the “law of sex”.

You can listen to the podcast here.

2008-07-26T13:56:00+00:00Tags: , , |
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