Zimbabwe’s lawyers should emulate Pakistan’s

April 1 2008

The reason the Pakistani situation caught my interest, and why I thought it was right to cover it to some extent in this blawg, was not just the central importance in that crisis of the Supreme Court, but also the inspiring role of Pakistani lawyers, who have emerged as an important power in the land capable of opposing the military and standing up for the rule of law and democratic constitutionalism. In other countries and at other times we’ve seen journalists, trade unionists and churches take similar stands. I don’t say lawyers are more important than them, or should be seen as in the lead, but I do say that wherever democracy and the rule of law are threatened, lawyers especially have a responsibility to take a stand – the Pakistani example has been an important one. We should all take this duty as seriously as doctors take their Hippocratic oath.
So now, Zimbabwe. I’m afraid there’s unlikely to be a Zimbabwean equivalent of the pakistani Chief Justice Chaudhry: the judiciary has long been a target of Mugabe, with independent judges being forced out and others subjected to pressure. This website goes so far as to call Muagbe’s judicial appointees

bootlickers of the Mugabe regime.

But there are other impressive figures like Beatrice Mtetwa, who’s now President of the Zimbabwe Law Society. Lawyers went on strike as recently as December, so they’re clearly prepared to take action. I doubt Ms. Mtetwa needs any urging from me, but it’d be terrific if Zimbabwe’s lawyers could emulate Pakistan’s. I hope they do.

2008-04-01T12:39:00+00:00Tags: , |

Secret "people’s justices" plan

April 1 2008

Justice Secretary Jack Straw is proposing that the Supreme Court, when it starts work in October 2009, should be expanded from the twelve Justices originally proposed: he’s suggesting the appointment of a number of “people’s justices” from outside the normal judicial establishment.

In a leaked e-mail to the Lord Chief Justice, Lord Phillips, he’s put forward a number of possible candidates, to be made life peers in the next New Year’s honours list: Lady Chakrabarti, currently head of Liberty; Lord Anderson, former barrister and presenter of Radio 4’s Unreliable Evidence; the authors Lady Hegarty and Lord Barnes; Memery Crystal partner Lord Moore; TV performer and personality Lord Brown; former solicitor Lord Mortimer; Jefferson Crabtree partner Lady Gupta; and the barrister and leading academic Baroness McLoughlin of Meols.

Full details of the leaked e-mail are here.

2008-04-01T01:22:00+00:00Tags: |

The image of young lawyers: an expression of genuine concern

March 31 2008

It’s been brought to my attention by someone who has time for things other than blogging that BBC TV’s Sir Alan Sugar, in his search for yet another Apprentice, has been landed with three lawyers in this year’s crop of hopefuls. This one fortunately was slapped out with a wet fish in the first round but to be honest, I’m concerned about the public image of young lawyers.

So we’re left with Sara and Shazia, who at least can claim a victory over Allen & Overy in her legal career. If you watch the “meet the girls” video here, though, you may feel less than inspired by them.

I can think of four of five trainees or recently qualifieds who’d be stars if they went on this show, and might even persuade Sir Alan that lawyers can do more than the arrogance rap. I’m a bit worried that unless one of them appears on this show soon, “qualified lawyer” will become some sort of euphemism implying a general self-regarding uselessness. Am I behind the curve?

2008-03-31T15:04:00+00:00Tags: |

It’s an ill wind…

March 31 2008

I was a bit puzzled at first by the headline to this Times piece: a lawyer would be the last person I’d ask to guess the economic fallout from the credit crunch. But litigation is the fallout they mean. No doubt there will be lots of that against banks and hedge funds, litigation of the Sue, Grabbit & Runn kind that makes you sorry someone has to win. If, as a City partner is quoted,

You look at some of these deals and think, ‘Why would you have agreed to that?’

then presumably some people will be suing their solicitors, too.

2008-03-31T13:56:00+00:00Tags: , , |

Pakistan: the restoration must be completed

March 31 2008

I’ve not blogged about Pakistan for a while, but of course I’m delighted that there’s now a new government under Prime Minister Yusuf Raza Gilani, and that following his first order, political prisoners including deposed Chief Justice Iftihkhar Chaudhry have now been released, and that he and other released leaders of the lawyers’ movement, like Aitzaz Ahsan, can now move freely and address their supporters.

There’s still a lot too play for, though. The government is not yet complete, and although Gilani’s coalition has said it will restore the sacked judges, that does not seem to be among Gilani’s top priorities. Very disappointing, this, and it makes me wonder whaat bickering is going on about it between the parties or between Gilani and President Musharraf. Some will be concerned, too, about Gilani’s dismantling the National Accountability Bureau, which in theory at least fights corruption. Surely Pakistan needs a genuinely untouchable anti-corruption agency rather than relying on the normal courts and police.

Parliament should restore the deposed judiciary without further delay.

2008-03-31T13:18:00+00:00Tags: , |

What’s consequential, and what’s inconsequential

March 27 2008

This post from SpyBlog about clause 43 of the draft Constitutional Renewal Bill has attracted a lot of attention today – Guido Fawkes, Iain Dale and Dizzy have all picked up on it. But it’s nowhere near as outrageous as they fear.

Clause 43 simply gives ministers a power to make consequential amendments: in other words, amendments which follow as a consequence of the Act. Clauses like that are pretty common in legislation: section 159 of the Health and Social Care Bill, for example, makes similar provision, as does section 116 of the Pensions Bill.

Ministers will only be able to use this power to amend Acts to the extent they reasonably think need to be amended as a consequence of Parliament passing this Bill. In order to make those amendments, both houses of Parliament need to pass a resolution positively supporting those amendments. And, if ministers have gone too far in judging what amendments follow from the Bill, then their consequential amendments can be challenged by judicial review. If the courts think they;ve gone too far in deciding what’s consequential, they’ll quash the amendments.

Much ado about inconsequential consequentials, then.

2008-03-27T15:42:00+00:00Tags: |

Insult, injury and information: Speaker Martin should now resign

March 26 2008

Speaker Martin is making matters worse by applying the sub judice rule to his own appeal against the Information Tribunal’s ruling. The one place, therefore, that there can be no discussion of this incredible appeal is in the Commons itself among its members.

This is in my view an unreasonable and abusive exercise of his discretion as regards sub judice: he should now resign.

Sub judice isn’t a rule of law; legally, Parliament can discuss whatever it likes. Unlike the media, it need not fear that the Attorney General will try to injunct it to prevent contempt of court; nor can anyone else take action against it for what member say, whether under libel laws or any other cause of action. The rule is in effect a self-denying ordinance, through which Parliament seeks to respect judicial independence and the separation of powers, and avoid any unfairness to the public that might otherwise arise from its complete legal freedom of speech. And it’s quite clear, looking at the latest, 2001 resolution in which Parliament restated the rule, (see this illuminating report from Richard Kelly of the House of Commons library – the resolution is on page 14) the rule is not absolute. How it applies is a matter for the Chair’s discretion, and the resolution says that where a ministerial decision is in question, or something which in the Chair’s opinion is a matter of national importance, reference to the issues may be made.

Now, as well as protecting Parliament’s legal freedom of speech, one of the effects of the Bill of Rights 1688, article 9, which provides

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament

is that no one can challenge the lawfulness of the Speaker’s sub judice ruling. But if you apply normal public law principles to it – the principles that would apply to any ministerial decision – it is in my view plainly an unlawful one. It would be irrational and perverse for the Speaker to think this is not a matter of national importance: it clearly is. Given what the resolution says about such cases, therefore, it must be unreasonable for him to exercise his discretion against free mention of the issues, especially since there is no serious risk that High Court judges will be influenced, in their view of the legal issues (remember, this is an appeal on a point of law only to the High Court), by anything any MP might say.

What’s more, the Speaker has in effect acted as judge in his own cause in this ruling: he himself has decided MPs cannot debate, discuss or criticise his decision. This must give rise to at the very least the appearance of bias, and that he has abused his power to protect himself from criticism. He’s in the same position as the former Attorney General was in relation to cash-for-honours prosecutions, of appearing to have power to keep himself free from harm, but whereas Lord Goldsmith had the sense to make arrangements to limit, as far as the law allowed, his own role in any decision in that case (a decision that never had to be made, of course) the Speaker seems to have taken the decision himself. What he clearly should have done was ask members to avoid discussion of the issues pending an urgent consultation of all parties and ruling by committee chaired by a Deputy Speaker or even another MP.

It’s an unreasonable decision, tainted by procedural impropriety and the appearance of bias: were it judicially reviewable, in my view it would be quashed as an abuse of power.

So, at the risk of being locked up by the High Court of Parliament for breach of article 9 of the Bill of Rights, I certainly question what the Speaker has done. He should resign.

2008-03-26T16:35:00+00:00Tags: , , |

An insult to the public

March 26 2008

I’m astonished by the news that the Speaker has decided, apparently based on new legal advice, to appeal against the decision of the Information Tribunal that certain details of the expenses of fourteen named MPs must be disclosed. An appeal has to be on a point of law; all I can think is that the Speaker will argue the Tribunal erred in its approach to balancing the public interest in disclosure against the MPs’ private interest in confidentiality, so that the Commissioner’s original decision, which was more favourable to MPs, should be restored.

What’s insulting is the suggestion coming from the Parliamentary authorities that this appeal is made because of concerns about security and the confidentiality of MPs’ addresses. If this was so vital, why didn’t Parliament provide the Tribunal with any substantial evidence about the security risk (see paras. 83-85 of the Tribunal’s ruling)? The truth is that the Tribunal considered the evidence that was put before it, and did decide to exempt details of security measures taken at MPs’ homes, and even the address of a second home where there are specific reasons for thinking security would be at risk.

I think the real motivation is a general desire to keep these details secret, and that the Speaker has shopped round London’s public law silks until he got advice that there was just enough chance of success to justify spending public money on an appeal. But in my view the appeal is hopeless: the Tribunal’s ruling already takes account of the security concerns Parliament put to it, and the idea that elected public servants have a legitimate interest in keeping secret the amounts of public money they spend on private residences, a private interest that outweighs the public interest even in retrospective disclosure – I find it incredible that anyone can think public servants have any such interest in a modern democratic society. It’s a scandal, and an insult to the public, that the Speaker can spend our money arguing it.

In putting the Speaker and apparently Parliament so firmly on the side of the devils, it’s also a political mistake. Speaker Martin’s last?

2008-03-26T11:53:00+00:00Tags: |
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