Head of Legal – Page 74 – legal comment from Carl Gardner

42 days: nonsense and compromise

Carl Gardner June 3 2008

Jacqui Smith seems to have persuaded some Labour MPs at the meeting of backbenchers last night – though to be honest, listening to some of the converts I wonder whether they had understood the legislation before now. Nick Robinson now seems to think the government may just about get their way on this (he said that on the news last night): though I wouldn’t count on that yet.

As readers will know, I’m no supporter of 42 days; but one intervention I feel bound to comment on is that of the Council of Europe’s human rights commissioner, Thomas Hammarberg, who has written or is about to write to Gordon Brown suggesting the 42 day proposal would put the UK out of line in Europe and might breach the European Convention on human rights.

What utter, utter tosh! I’m afraid this is a return to the dodgy factoids I’ve mentioned before that are occasionally wheeled out in this debate and that just cannot be allowed to pass unchallenged, even if they suit your side of the argument. To compare the British system with that of, say, France, simply on the basis of when something that can be called a “charge” is made is just misleading. The kind of charge which, in France, justifies very long detention, is based on a lower level of evidence than that applicable in England.

I’m glad to say that Lord Carlile firmly criticised Hammarberg on The World At One yesterday, making the same points I have. In fact, his was the best defence of 42 days I’ve yet heard: he said that ideally he’d get rid of the threshold test for charging at 28 days precisely because he thinks it allows easier charging than is required under the traditional approach; and that he’d rather permit longer pre-charge detention so long as the higher charging standard is maintained.

It has something to be said for it, this. However, the threshold test isn’t going away, and like the DPP, Lord Goldsmith and Lord Falconer, I see it as perhaps the key reason why 42 days isn’t needed.

Carl Gardner2008-06-03T16:47:00+00:00Tags: detention, human rights, terrorism|

42 days: ministers on the run

Carl Gardner May 30 2008

It was always obvious (wasn’t it?) that the government’s insistence on trying to extend detention of terrorist suspects beyond 28 days was political madness. Even if they do manage to get it through Parliament, the public won’t thank them, or at least, the silent majority Gordon Brown may suspect backs him on this is, I think, more silent and less of a majority. And rather than demonstrating his strength – which I think must be what the Prime Minister is trying to achieve here – the whole saga shows up his weakness.

This latest promised concession simply confirms that. It’s not much of a concession, really: if Parliament ever did permit detention beyond 28 days it’s perfectly obvious that the police would go immediately to court to apply for it. Cutting the time-limit for them to do so to 30 days makes no practical difference whatever. If Labour backbenchers fall for this, it’ll show how truly pathetic they are. I don’t expect they will – I expect further concessions, desperate concessions. Anything, to allow ministers to say they “got the 42 days”. But still I think they risk humiliating defeat. Madness, pure madness, this.

I still agree with my old boss Lord Goldsmith on this. I’m not sure it’d have the impact on Muslim opinion he fears, but he’s right that the case hasn’t been made.

Carl Gardner2008-05-30T14:11:00+00:00Tags: human rights, terrorism|

American Council of the Blind v Secretary of the Treasury

Carl Gardner May 29 2008

I’ve landed, I’m now with computer, and my sleep patterns are nearly normal, but for my first post-holiday post I’m going to stick with the States. If you’ve ever been there and fumbled in your wallet for a dollar, only to bring out a $20 bill, it’ll have occurred to you that the various American bills are very difficult to distinguish from each other – they’re all green, and all the same size. It must be a nightmare for the blind, I mentioned to my cousin Cara in Vegas.

And guess what? Just before I left the US Treasury failed in its appeal against a ruling that its current practice is in breach of disability discrimination legislation, namely section 504 of the Rehabilitation Act. Here’s the judgment of the US Court of Appeals (DC Circuit), here’s the report in the New York Times, and here’s an NPR report to listen to.

Carl Gardner2008-05-29T16:20:00+00:00Tags: disability, discrimination, money, united states|

I am back…

Carl Gardner May 26 2008

and nearly over the jet-lag. But unfortunately my return has coincided with the total and apparently very final expiration of my computer. Bear with me: normal service will resume once I’ve decided whether I can afford the MacAir or not.

Carl Gardner2008-05-26T18:27:00+00:00Tags: blawging|

United States v Williams

Carl Gardner May 22 2008

Before I leave the Big Apple, a leader in today’s New York Times drew my attention to this US Supreme Court case in which a federal law on child pornography has been upheld as constitutional.

The Times clearly thinks the judgment goes too far in pandering to child protection, and risks limiting free speech. I’ll let you make up your own mind; but would simply say that most Europeans would I think find it surprising that the right to free speech can be invoked to protect to any extent the trade in sexual interest in children. The European Court of Human Rights in Strasbourg would certainly, in my view, uphold a national law like this as consistent with the article 10 freedom of expression.

Carl Gardner2008-05-22T05:11:00+00:00Tags: children, freedom of expression, US constitution, US Supreme Court|

Dept. of Revenue of Kentucky v Davis

Carl Gardner May 20 2008

Before I end my blog holiday and come back from New York, I thought you might just be slightly interested in this US Supreme Court case showing that non-discriminatory inter-state commerce is protected in a way analogous to (thought different from, obviously) free movement law in the EU. Here, a discriminatory tax provision was saved because the Supreme Court thought judges ill-placed to rule on whether its benefits outweigh its burdens. Not quite the same thing as the EU approach (rule of reason plus proportionality) – but not a million miles away, either.

Carl Gardner2008-05-20T15:17:00+00:00Tags: business, free movement, US Supreme Court|

California: gay people have right to marry

Carl Gardner May 16 2008

I’m blogging lite, as you know, but must while in the U.S. of A. mention the decision of the California Supreme Court, which has ruled that gay people have a constitutional right to marry their same-sex partners, just as opposite-sex couples do.

The responses of the candidates for the White House are interesting: I have sympathy for McCain’s view that this should be a matter for political decision, not for judges; but also for the view of Obama and Clinton, that civil unions equivalent to marriage would be a good way forward, as the UK and many other European countries have already found. The difference between them is subtle, but clear – while McCain would simply leave this to the States (a much more liberal position than many Republicans would take, many of them wanting a constitutional amendment to prohibit gay marriage), his Democratic opponents would encourage civil unions. The question for social liberal is, how hard would they encourage them?

Carl Gardner2008-05-16T00:30:00+00:00Tags: discrimination, family, human rights, sexual orientation, US constitution|

Baze v Rees: Supreme Court judgment on lethal injection

Carl Gardner May 12 2008

I did say there might be some blawging lite from the US, where I’m currently staying with my cousin Cara in Las Vegas (that’s right!), so here is an all-American caffeine-and sugar-free post, with the judgment (given a few weeks ago now, but very appropriate now given my transatlantic holidaying) of the US Supreme Court in the case of Baze v Rees (Kentucky Dept. of Corrections). You may remember I posted about this case back in January just after the hearing.

The Court has affirmed the Kentucky Supreme Court’s judgment below, holding by a majority (or a plurality, as the judges themselves express it) that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.

Justice Scalia thought, in his concurring opinion in which Justice Thomas joined, that a punishment would only violate the Constitution if intended to inflict pain; Justice Stevens, in an extraordinary opinion, argues that the death penalty in itself violates the Constitution but nonetheless joins the majority in ruling Kentucky’s lethal injection system lawful, based on precedent. I find that hard to understand, I must say: either he believes in a legal analysis that precludes capital punishment – in which case why accept precedent? Or he doesn’t, in which case, where does his reasoning come from? Justice Ginsburg, in whose dissenting opinion Justice Souter joined, thought Kentucky’s method lacks basic safeguards to confirm that an inmate is unconscious before injection of the second and third drugs: he wanted to send the case back to the Kentucky courts to apply to the facts a test of whether there was an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

So, lethal injection continues to be lawful in the US, at least under Kentucky’s method.

Carl Gardner2008-05-12T23:05:00+00:00Tags: human rights, US constitution, US Supreme Court|

Back from Austria (briefly)

Carl Gardner May 8 2008

I’ve had a very, very nice blawg break, cycling among the mountains of Austria, swimming, doing the tango, drinking Weißbier and playing German word games, among other things. Not really thinking about law, and not blogging.

If you read German though, you might be interested in this article by the editor of the daily Der Standard arguing for restraint and respect for human rights in reporting cases like that of Josef F. in Amstetten. The Austrian quality papers, Der Standard and Die Presse, and the news magazine Profil, all simply call him Josef F. so as to protect the identities of his victims. You can read his name quite openly in British papers, as I discovered on reading the Guardian on my return to Blighty.

I’m not really back: I’m living the high, jet-setting blogger’s life at the moment and, having been released from both marking and lecturing until later in May have decided to off the the States this weekend… There may be some blogging lite from there – but I wouldn’t count on it.

Carl Gardner2008-05-08T11:30:00+00:00Tags: blawging, human rights|

Even law bloggers have holidays…

Carl Gardner April 28 2008

And I mean to have one now – I’m off to Austria for a week, then visiting friends and resting for a little while after that so, in a turn of phrase that sounds familiar from drafting classes some years ago, I will be blawging inadequately or not at all for at least a week, probably more like two weeks. You have to have breaks every now and then or a blogger becomes a pale, thin and wretched thing with very sore fingers, unable to face the light of day.

But expect normal Head of Legal service to resume in the second half of May!

Carl Gardner2008-04-28T15:47:00+00:00Tags: blawging|