So – they got it

But only by a scrape. Gordon Brown and Jacqui Smith won their commons vote on the reserve power to extend terror suspects’ detention up to 42 days. They got the votes of a few vital Labour backbenchers and of the DUP – at what cost? I expect announcements in the next few weeks about water charges in Northern Ireland and compensation for mesothelioma.

And now? The Counter-Terrorism Bill passes to the Lords, of course – where I expect it to be defeated. A fair number of Tory Lords will be sympathetic to the government, but I think they’ll be very disciplined, conscious that from a party political view they’d be mad not to strike against the government if they can. The LibDems will have a clear line (unlike in the Lisbon Treaty debate yesterday when they voted against a referendum – their counterparts in the Commons having abstained), and Labour dissenters will be less subject to pressure. And because the actual debate matters a little more than in the Commons, I think many will be persuaded by, for instance, Lords Goldsmith and Falconer.

Counter-Terrorism Bill: today’s debate

I’ve had the debate on in the background this afternoon (while marking a never-ending pile of exam papers on free movement of goods and persons) – and it’s not been a bad one. Bill Cash has obsessively been intervening to talk about habeas corpus, I’m not sure to what point, and Michael Mates I thought made a fool of himself by suggesting that the government’s proposed Parliamentary trigger for a 42 day detention power, followed by an application to a judge for an actual extension of detention in a specific case, somehow offers less protection than an application to a judge alone. Dari Taylor and Gordon Marsden were pretty unimpressive Labour loyalists, too, Dari Taylor in particular being assailed by inverventions and challenges from her colleagues.

There have been quite a few good speeches too, though. Chris Huhne was good for the LibDems, but his old leader Sir Ming deserves praise for his serious speech, in which he criticised the government for scrambling around trying to buy votes, and urged members to look to their political consciences. Best of all today though has been Diane Abbott, who passionately laid in not only to the provisions, but still more effectively to the government’s motives in bringing back proposals to extend detention after they were rejected earlier this Parliament. She ridiculed the government’s whipping operation and the backroom negotiations and wound up with an intense plea to defend the liberty of the marginalised which may even, just, have influenced a Labour member or two.

There’s not been too much legalism I’m glad to say. A pity the Lords debate on the Lisbon Treaty is going on at the same time.

UPDATE: Mark Durkan, the SDLP member for Foyle, has just given a short speech that runs Diane Abbot close – drawing on the experience of internment in Northern Ireland he called the government’s proposals “madness” and urged the House not to feed what it wants to fight.

In Re B: lions, dogs and the civil standard of proof

The Lords have given quite an interesting judgment today on the standard of proof in care proceedings under the Children Act 1989, which I think in principle applies across the board in civil proceedings. They’ve cut through the confusion that’s built up over the years around the idea that some kinds of allegations require more proof, or a higher standard of proof, than others: the more serious the allegation, the more cogent the evidence required to overcome its inherent improbability. Some cases have suggested that a heightened standard of proof is needed which is indistinguishable from the criminal standard.

No, the Lords have said: there is one civil standard of proof – whether on the balance of probabilities something happened or not. The inherent likeliness or unlikeliness of something may be a common sense factor in evaluating evidence in a case – but no more than that (see para. 70 of Lady Hale’s speech). There is no rule of law that inherently unlikely events need to be proved more conclusively than other events.

I think this has to be right: the temptation to require more proof of apparently incredible allegations is actually a dangerous one that needs to be resisted. As Lady Hale says, murder is not inherently unlikely, and violence happens all too often. Particularly in the case of child abuse, the temptation to incredulity must be put aside.

If you’re wondering about the reference to lions and dogs – look at para. 72 of Lady Hale’s speech. I would have said “grass”, myself, rather than “greensward”.

2008-06-11T13:18:00+00:00Tags: , , , |

42 days: the crunch vote

Jacqui Smith is on her feet as I write, opening the third reading debate on the Counter-Terrorism Bill: at about 7 o’clock tonight MPs will finally vote on the government’s proposed reserve power to extend detention of terror suspects without charge beyond 28 days, up to a maximum of 42.

Nick Robinson thinks the government will get its way tonight: it’s obvious from what ministers have been saying today that horse trading is going on like mad behind the scenes. The DUP MP Gregory Campbell said on Sky News not long ago that his party hadn’t yet made up its mind how to vote – they may end up being decisive.

At PMQs, Nick Clegg picked up on the CRE’s threat of legal action, and argued that the government was wasting its time in the House because the courts would ensure this bill can never be put into effect. If that were really right, he and other defenders of civil liberties could just relax about the bill, couldn’t they?

Counter-Terrorism Bill: compatible with Convention rights?

It was probably predictable that at some point the public and political debate about this bill, and the proposed extension of pre-charge detention of terror suspects to a potential maximum of 42 days, would be diverted away from the merits into a discussion of whether the provisions comply with Convention rights. That’s happened now, as the Commission for Equality and Human Rights has threatened legal action if the bill is passed. Interestingly it’s merely said on its own website that it’ll consider taking legal action; some of the quality press is reporting that they definitely will go to court.

Anyone who reads this blog will know I oppose the government’s proposals; but I’m also opposed to bogus arguments on either side, and have to say I deplore this intervention by Trevor Phillips. It’s clearly an attempt to influence Parliament’s key vote on Wednesday at third reading, and not by means of pure persuasion (I had no problem with Shami Chakrabarti’s lobbying MPs, even though I think some of her arguments have been misleading) but by making portentous technical legal threats. I really don’t think a publicly-funded body should be doing this sort of thing. They should shut up now, and launch a legal challenge later if they want to; but to huff and puff about about it now as a lobbying tactic is something else, especially when they may not be committed to doing it. They may think better.

Because in my view, the CEHR’s view has little to it. There isn’t Strasbourg case law requiring a charge to be laid at any particular time – a suspect must simply be informed “promptly” of the case against him – and I suspect Rabinder Singh’s and Aileen McColgan’s advice of the kind of wishful thinking that often turns lawyers’ opposition to the merits of a proposal into a misguided conclusion that it’s unlawful.

Here’s the advice. I’ll let you know what I think of it when I’ve had a good look at it later today.

In the meantime, Jacqui Smith is fighting back, saying she’s written to Trevor Phillips to set him straight. I can’t link you to that letter yet, but nowadays the government includes in the explanatory notes it publishes with any bill its own views on human rights compatibility: they’re here, from paragraph 269. Not a very clear or ringing defence, but then these notes tend to be quite dull. I think they’re right, though.

MPs should vote on the merits of the bill; not be swayed by the threats of lawyers and lobbyists.

2008-06-10T10:20:00+00:00Tags: , , |

Are the Irish about to kill the Lisbon Treaty?

It’s not been a big news story, but if you think about it, it could be one of the biggest political stories of 2008: on Thursday, Irish voters choose in a referendum whether or not to approve the Treaty of Lisbon, replacing the doomed European Constitution and reforming the existing EU treaties.

It’s always been doubtful which way this would go. As early as last November polls were showing low enthusiasm for the Treaty – and a big majority of don’t yet knows. European internal market Commissioner Charlie McCreevy has admitted the Treaty is a difficult sell and even two weeks ago, when polls showed the Yes camp slightly ahead, the suggestion was being raised that Ireland might be about to say No. While many people are still undecided, the latest Irish Times poll suggests that the Noes may now be a few points ahead. It’s close.

This is massive: if Ireland says no, even by a decimal point, the Treaty will be dead. Well, if not dead legally then at least in a vegetative state: all member states must ratify for the Treaty to take effect. But I think it will be dead politically, and with its demise EU will be in its biggest crisis so far. The wrong response from politicians – I think even supporters of the Treaty would reject it, and they certainly should – would be to plan for a second referendum at some point to try and get the right answer. It’s been done before, and I think that tactic should be consigned to Europe’s past. Europe and the Treaty have already lost respect because of politicians’ obvious decision to ignore the results of the French and Dutch referendums in 2005, and EU leaders need to start listening to European citizens.

The right response would be to accept that the entire “Future of Europe” Constitution project was probably a mistake from the start, certainly went badly off the rails in 2003 (if not earlier) and that the EU should simply get on with its actual job and forget about institutional change for at least ten years.

There’s an executive blogreader’s summary of the campaign and polls at Wikipedia; and here are a few links to help you follow the campaign. First, the Yes to Lisbon website. Second, Libertas, which is campaigning against the Treaty. And finally, the Irish Referendum Commission’s official site. You can listen to an RTE radio debate on the Treaty from yesterday, here, and RTE has webpages dedicated to the campaign and a Lisbon Treaty blog.

2008-06-10T03:39:00+00:00Tags: , , |

The sixth amendment and confrontation of witnesses

The trial of Al Qaeda suspects in the US big news at the moment of course – with Khalid Sheikh Muhammad and others having appeared before a military tribunal on Friday. I’m interested, though, in this Federal Court of Appeals case involving another suspect and US citizen Ahmed Omar Abu Ali – he, at least, is being prosecuted in the ordinary civil courts.

Abu Omar claims he was tortured in Saudi Arabia before confessing to various terrorist offences – his Saudi confessions were key evidence in his trial. Both the court below and the Appeals Court rejected his torture claims and admitted the evidence, but Abu Omar also argued that, because his Saudi interrogators did not appear in court to give evidence about his confession – they gave evidence from Saudi via a two-way video link – his trial breached the sixth amendment to the Consitution, which says that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

Discussion of this issue starts at page 32 of the appeal judgment. The court ruled that it was lawful to admit the evidence via videolink, relying on the Supreme Court’s ruling in Maryland v Craig which permits departure from physical face-to-face cross-examination in the defendant’s presence, in some circumstances, and that the trial judge adopted procedures that protected Abu Ali’s right to be confronted by witnesses to the greatest extent possible.

I’m not sure the videolink was quite good enough to allow everyone to be heard, both ways, as well as seen, but it strikes me that a link that really was as good as that might well actually be confrontation – not a permissible derogation from it. And in fact the right to be confronted is a one-way right, applying the text strictly; it’s not the same as a right to confront. So why isn’t a one-way link enough to satisfy the amendment in full?

More trouble in France

The other French story concerns Sarko’s legal axewoman Rachida Dati, the very sexy but somewhat dangerous minister of justice. She’s got herself into trouble by initially defending the judgment of a court in Lille, which granted annulment of a marriage on the basis that the wife, who had claimed to be a virgin, had lied. As it happens, both parties were Muslims.

Dati had to backtrack quickly when it turned out that the whole of France including her boss disagreed with her, and thought the judgment outrageous. And then yesterday she raised the temperature by attacking the opposition socialists (there’s a video here), and the failure of their integration policies. Phew! Sarko is standing by her: it looks as though she’s safe.

It seems part of her motivation has been that at least this type of ruling frees girls from marriages they may want out of. Dati herself got out of a marriage by means of an annulment earlier in her life, it seems. The whole business was discussed on Woman’s Hour this morning.

2008-06-04T14:49:00+00:00Tags: , , |

A cautionary tale from France

Two stories from France today: first, that of Brigitte Bardot and her conviction by the Paris Tribunal Correctionnel for incitement of hatred towards Muslims. It wasn’t her first conviction, either. This time (the offence goes back to 2006) she wrote on her website, referring to Muslim method of slaughtering animals, to which she objects on grounds of cruelty:

Il y en a marre d’être menés par le bout du nez par toute cette population qui nous détruit, détruit notre pays en imposant ses actes.

The relevant legislation is article 24 of the law of 29 July 1881 on freedom of the press (seriously); it’s been amended recently to cover electronic publication. It punishes among other things incitement to discrimination, hatred or violence towards any person or group because of their origin, their belonging to or not belonging to any ethnic group, nation, race or religion. The maximum penalty is a €4500 fine or a year on prison, or both. Bardot was fined €1500.

I see this conviction as ridiculous, to be honest, and it shows why the National Secular Society among others were right to oppose our own government over its proposed racial and religious hatred bill a couple of years ago. That Bill did get through of course, but an offence is only committed if it can be proved that someone intended to stir up hatred.

Animal rights activists are a prime example of the kind of person who might legitimately want to strongly criticise religious practices – and I don’t see why they shouldn’t do so. This case illustrates how religious extremists and other misguided people are able to use legislation like this. I also wonder where are the prosecutions of mad Muslim preachers, many of whom, I’ve no doubt, often harshly criticise people for not belonging to Islam.

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