You’ll know by now that Stuart Wheeler’s judicial review of the government’s refusal to hold a referendum on the Lisbon Treaty has failed: here’s the judgment. This is hardly a surprise: it was always a hopeless case. The real surprise will be if he decides to waste his wealth appealing.
And of course the wrath of Richards LJ about the government’s intention to continue the ratification process turns out to have been a bit of a storm in a teacup.
Sorry you’ve heard so little of me recently: it’s been a busy week, what with lecturing, second marking, visiting philosophy-of-lawyers from Cambridge and other personal stuff. I’ll say a thing or two later today, though.
The Lords’ judgment in the case of In Re P (Northern Ireland) is an important one on the relationship between the UK courts applying the Human Rights Act 1998 on the one hand, and the European Court of Human Rights applying the European Convention on Human Rights on the other.
The issue at stake is about adoption in Northern Ireland, where secondary legislation permits adoption by couples – but only if they are married. Does this discriminate against unmarried couples, contrary to the article 14 Convention right? The Lords have concluded by four to one that it does, and that the courts in Northern Ireland must consider unmarried couples, regardless of the secondary legislation. Lord Walker was the dissenter.
The really interesting point though came about because Lady Hale saw the issue as at least arguably within the “margin of appreciation” allowed to states by the ECtHR, as a result of the judgment in Fretté v France in 2002, in which the court accepted that France’s refusal to allow a gay man to adopt was within its margin of appreciation. If Strasbourg permits that, is a domestic court obliged to permit it too? Or can Britain apply a high standard than the lower limit permitted by the margin of appreciation? If the latter, is it for the courts to decide this, or for Parliament? Lady Hale sets out her dilemma at paragraph 117 of her speech.
Lords Hoffman, Hope and Mance had less difficulty with this, though, partly because the judgment in EB v France suggests Strasbourg has moved on since Fretté; and partly because, as Lord Hoffman argued (paras. 29-38 of his speech), there is no legal reason why British institutions should not go further than Strasbourg within the margin of appreciation, or why the courts should defer to Parliament in that situation. To cite his paragraph 37,
In such a case, it for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch.
Why on earth is anyone waiting anxiously for the result of the run-off “election” in Zimbabwe? If people there are brave enough to dare to vote for the MDC (and resourceful enough to get round all the barriers Mugabe will put in their way), and the MDC actually wins, then of course I’ll be delighted. But I don’t remotely expect, even if they do, that the Zimbabwe Election Commission will actually say that’s the result; and even if it did, I don’t expect Mugabe actually to go anywhere. Sure, like everyome else I hope for a miracle – but I don’t really believe in them.
I agree with what Peter Hain said at PMQs today. It’s no good insisting on election monitors to ensure a free and fair election – that’s what we did last time. What Britain and the international community should really do is insist on acceptance of the result of the first election, and (and her I think I’m going further than what Peter Hain said, though perhaps not further than what he thinks) recognise the legitimate MDC government it produced.
Following his successful appeal in April, it’s being reported now that Abu Qatada is about to be released on bail.
I wouldn’t have thought you’re likely to bump into him in the street, though, since he’s got to stay at home for 22 hours a day. He’s also banned from reading Head of Legal (or any other website).
I can’t link to the Court of Appeal judgment yet: I will when it’s available. But Samina Malik’s conviction under section 58 of the Terrorism Act 2000 has been quashed, on the basis that the jury may have become confused about the scope of the provision. Some of the evidence put before them was material that would not actually have helped any terrorist, but was simply propaganda: the Court of Appeal has said that the provision does not catch “information” of that kind.
That’s all fair enough; but I do wonder about the CPS’s decision to let the matter now drop, presumably on the basis that there is no public interest in pursuing a conviction. Is it really all that clear that a court would give her a non-custodial sentence, bearing in mind the CPS would present evidence that she possessed the al-Qaeda Manual, the Terrorist’s Handbook and the Mujahideen Poisons Handbook? And even if it would, can it ever be right for the CPS to drop a terrorism prosecution if it claims it has clear evidence of guilt? I’d have thought the more proper course would have been to seek a retrial, but not oppose bail.
The Employment Appeal Tribunal has given an important judgment about tips, service charges and the national minimum wage: it has ruled that restaurant employers who make inadequate wages up to the minimum wage level by redistributing service charges and tips to waiting staff via a “tronc” system act unlawfully.
Essentially a tronc works by tips and service charges being collected and then held on trust by a member of staff, who then distributes it to colleagues. Many employers count those sums towards the minimum wage, but HMRC believed that was unlawful (HMRC being the enforcement authority for the minimum wage – none of this has anything to do with tax).
Initially HMRC lost in the Employment Tribunal – the ET thought the employer effectively controlled the tronc, so that the tronc system satisfies section 1(1) of the National Minimum Wage Act 1998:
A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.
The key words being, of course, “by his employer”. The EAT has disagreed and reversed the judgment: it sees the money as being owned and distributed by the troncmaster; so a person paid in this way is, to the extent of that payment, not “remunerated by his employer”. In other words, the remuneration he does get from the employer is less than the minimum wage.
I’m pleased about this – it’s high time the restaurant and bar business entered the real world (and yes, I am happy to pay more for my scoff). I’m only sorry the legal position as set out by the EAT may allow for the possibility of redesigning the tronc system so that it complies. I won’t explain how: I don’t want to help employers like Annabel’s. Further legislation may eventually be needed to take this tronc nonsense off the menu once and for all.
If I had John Hutton’s job (he’s the minister in charge of this) I’d want to outlaw service charges too, as they have done in France.
David Miliband’s statement in the Commons yesterday was quite revealing, and confirms the accuracy of the story leaked to the Sunday Times suggesting that, privately, the government believes Lisbon is dead. Most of the statement and reactions to it was predictable; the one thing that stood out was David Miliband’s clear statement that he’s opposed to renegotiating the Treaty. Here was his answer to former agriculture minister Douglas Hogg, for instance:
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Just a few answers ago, the Foreign Secretary said that renegotiation was not an option. If that is true, in reality the treaty is dead, and if that is the case why on earth is the House of Lords debating the Bill’s Third Reading on Wednesday?
David Miliband: I repeat that I do not support renegotiation, I do not support a two-tier Europe, and I do not support the new Convention that is being proposed. That does not seem to me to negate the fact that, 95 per cent. of the way through the process, it is right for us to complete the passage of the legislation so that the British Parliament can express a clear view that we can take into European discussions. That has been urged on us throughout Europe, and the Irish have made it clear that they would respect countries that took such action.
Opposing renegotiation can only mean the government rejects any attempt to tweak the Lisbon Treaty and put it to the Irish again; and since Miliband also made it clear he opposes another long period of institutional discussions, it seems clear the government’s real view is the same as mine – that a considerable period of silence on all this would now be welcome.
I hope he and Gordon Brown will be arguing that position strongly at the coming European Council.
The two opinion pieces that have most closely reflected my views are those by John Rentoul in the “Sindy“ yesterday and Hugo Brady at Comment is Free. I think John Rentoul is right that
When the voters of France and the Netherlands threw out the constitution in the summer of 2005, that should have been the end of it. Instead, the corpse sat up in the bath.
They’re both right that Lisbon is dead and I agree with Hugo Brady that a more low-key, pragmatic approach from leaders is needed in future. I might surprise one or two people when I say I also agree with his implication at least that some of the Lisbon changes could and even arguably should be brought in piecemeal anyway: I see no outrage in this as long as they limit the EU’s power.
This FT reaction at least recognised that political leaders bear some responsibility for the “crisis”, but I despair when I read pieces like this from Jackie Ashley and these in Le Monde and Le Figaro.
I’ve also been contributing to quite a sharp debate at Jon Worth’s Euroblog.
In all the excitement over 42 days and the Lisbon Treaty last week I missed the fact that the Home Secretary successfully defended a judicial review challenge from the police over their pay settlement. She did not act unlawfully in deciding not to implement the pay board’s recommendation.