New appointees to the High Court bench are, it turns out, embarrassingly white, male, public-schooly and barristerial. I wish I could argue that true appointment on merit may or may not result in more black and women appointees, more solicitors, etc. – so why expect that it must do so?
But my heart’s not in it; I think this is about old, old attitudes proving very hard to root out.
Charon QC spoke to me this weekend about Peter Hain, the Counter-Terrorism Bill, the committee stage of the EU (Amendment) Bill and Pakistan – listen to the podcast here – and don’t miss his weekly review.
I’m a bit disheartened by this story. I entirely agree that bail conditions should be properly enforced: the fact that Adam Swellings felt able to return to Warrington immediately after being bailed on condition he shouldn’t return there shows that offenders hold the conditional bail system in contempt – something I knew years ago when my criminal clients used to talk as though bail conditions didn’t exist.
But the Garry Newlove murder is not a story about the availability of bail. Two other people murdered him; they weren’t on bail at all. And unless you think people accused of assault should be locked up till death, Swellings would have been on the streets somewhere, some time. He might have attacked someone in Crewe, where he lived.
The truth is, Garry Newlove’s murder is about a culture of drugs, drunkenness and menace among young men; and about inadequate policing. I hope this bail sidelight doesn’t blind people to that. I fear that politicians and the police will be happy if it does.
The Tory MP for Shrewsbury, Daniel Kawczynski, has tabled an interesting amendment which would require the government to renegotiate the Lisbon treaty to insert a declaration that the EU is based on its Christian faith, heritage, culture and history. Where have we heard this before? The Polish government gave up, in the end, on the attempt to get Christianity into the treaty; but the member for Poland – sorry, Shrewsbury – is obviously going to mount a last stand.
In that same amendment paper are amendments tabled by a number of Labour MPs, including failed deputry leadership candidate Jon Cruddas and former health secretary Frank Dobson, which aim in effect at protecting the NHS from the impact of EU law: I sense a highly traditionalist Labour Europsceptic argument behind this. It’s not obvious exactly what the amendments are aimed at achieving (Parliamentary control of EU rules on the NHS? or a complete exemption for the NHS?), though it must be this sort of thing that these MPs fear. But surely they agree that EU laws like the working time directive should apply in the NHS, as they do at the moment. What about the workers?
The Counter-Terrorism Bill has now been published, with explanatory notes. Clause 22 and Schedule 1 are what everyone’s been waiting for: the proposed extension of pre-charge detention beyond 28 days.
The idea under the amendments brought in by Schedule 1 is that the normal maximum detention will remain at 28 days, but that the Home Secretary should be able to make an order allowing for longer detention if she receives a report from the DPP and a Chief Constable saying it’s needed. If she makes the order, the DPP can then apply for extended detention; the Home Secretary then has to refer the issue to Parliament: both houses must vote to back her order, or else extended detention powers cease being available after 30 days. And if either house votes her down within that time, the power to detain further also ceases. Any detention in the meantime remains lawful, of course.
Equally interesting though is clause 23, which permits post-charge questioning on the basis of a new PACE code of practice. It’s difficult to imagine, given this important new power, together with the threshold test for charging in terrorist cases, why the reserve power to extend pre-charge detention would ever be necessary. If I were a backbench Labour MP, I wouldn’t understand why longer pre-charge detention is needed against that background.
Incidentally, clause 23 is a not very pleasant application of Parliamentary Counsel’s new “gender neutral” drafting practice. I’m in favour of this change, although the Interpretation Act 1978 means it’s legally unnecessary; but I hope replacing “he” with “they” will not become standard. I’d have preferred “she or he”. Even simply calling everyone “she” would have worked, under the Interpretation Act.
I heard via Charon QC, while checking my blawg feeds between teaching freedom of the person and free movement of persons, the news that Peter Hain has resigned from the Cabinet following the Electoral Commission’s decision to refer his case to the police. Here’s the Electoral Commission’s statement; and here’s the statement Peter Hain made this afternoon.
The Electoral Commission says it has discussed the case with the CPS and the police, and that it’s now referred the case to the police to consider “whether an investigation should take place”. But surely this means the CPS and the police both think, based on what the Electoral Commission have said, that there is at least a reasonable suspicion that Hain has committed an offence under paragraph 12(1) of Schedule 7 to the Political Parties, Elections and Referendums Act 2000. That offence relates solely to the non-reporting of donations: much political flak is flying about the channelling of donations through the Progressive Policies Forum, but that in itself does not break the law.
The next step can only be for the police to interview him under caution as a suspect – I’m not sure they’ll really need to arrest him. Following that, they’ll pass the papers to the CPS for advice and, depending on what its legal view is, charge. Given his full cooperation with the Commission so far, however, I think they must feel his explanation does not amount to the defence under paragraph 12(3) that he took all reasonable steps and exercised all due diligence. Or at least, that it’s far from clear that it does. Unless fresh evidence emerges at this stage, therefore, or at least something makes the police see Hain’s explanation in a new light, it’s difficult to imagine that a charge (or if the police don’t think they need to arrest and bail him, a summons) will not follow in due course.
Presumably he’d appear in the Magistrates’ Court – City of Westminister Magistrates’ Court, I presume, at Horseferry Road – and the Magistrates would decide, following his plea, whether their sentencing powers (up to a £5000 fine, or 6 months in prison, under Schedule 20) are sufficient, or whether the case needs to be sent to the Crown Court for trial or (if he pleads guilty) sentencing. I suppose it’s possible they’d think a man recently on a Cabinet minister’s salary might need to be fined more that £5000.
I’ve said before that I feel a bit sorry for Peter Hain – it seems to me he’s in the unfortunate position of being caught by legislation that that imposes personal criminal liability on him – I’m not sure entirely appropriately. And whatever happens now, this looks and sounds like the end of his political career. Others have actually sinned worse and been less politically damaged, you might feel, and the legal trouble he’s in, about non-reporting, isn’t quite on all fours with the political trouble he’s in over the PPF. But I’m also pleased that the Electoral Commission has shown it’s prepared to refer a front-line politician to the criminal justice authorities: I doubt we will ever again see a case of a politician appearing not to take PPERA seriously.
I’ve not seen a lot of coverage of this, but the FCO has lost in its attempt to withhold disclosure of a draft of the “dodgy dossier” published before the invasion of Iraq. There’ll be a few glum faces in Whitehall over this: but it’s the Freedom of Information Act’s finest hour so far. Here’s the latest post about this at the Iraq dossier blog by Chris Ames, who fought the FCO in the Information Tribunal; and here’s Iain Dale’s blog post about this today, in which he links to a documentary film by Chris Ames.
The Law Lords are back with their first judgments of the new year – in a private international law Lugano Convention case, Phillips v Syme, and in a VAT case, Fleming and Condé Nast v HMRC.
The doughty, determined, slightly hatstand doyen of English Tory Euroscepticism, Bill Cash MP, has tabled an amendment paper making provision for a referendum. No surprise there.
The opposition front bench has tabled a series of amendments to the bill: here they are. They seem designed simply to trigger debate particularly on the Common Foreign and Security Policy, though they’ve also tabled amendments which would require a referendum. David Heathcoat-Amory, I think perhaps the most persuasive and knowledgeable backbench Tory Eurosceptic, having served on the Convention that drafted the original European Constitution, has also tabled amendments, notable on the Charter of Fundamental Rights.
Here’s the bill again, so you can figure out how all the amendments work… I know you’re dying to.
And here’s yesterday’s debate.
Finally, here’s EU Law Blog’s take on our beginning the ratification process.