Detention of terrorist suspects: Liberty’s dodgy factoids

December 18 2007

I stopped in my tracks the other day on Borough High Street when I saw a poster from Liberty telling me the UK detains terrorist suspects longer than anywhere in the western world. Not because I was shocked at the apparent lack of freedom here, but at the slackness and irresponsibility of this campaign.

I would vote against a further extension of detention, were I in Parliament. But I’m fed up with people citing spurious factoids from http://www.gooakley.com/ foreign jurisdictions in this debate, and I strongly agree with David Aaronovitch in yesterday’s Times that Liberty are being economical with the actualité on this. Tellingly, he cites the case of the people detained in Italy in connection with Meredith Kercher’s murder. How long has that been, now?

The same point can equally be made about France, where terrorist suspects can be held for three days without access to a lawyer; have the right to see their lawyer (who isn’t told details of the evidence) for half and hour only on each of the fourth, fifth and sixth days; and who can then be detained for up to four years before trial on the basis of a lower evidential test than is required for a charge in England. I reckon the French test works more like the threshold test I blogged about yesterday.

And it’s not just me and David Aaronovitch. The Home Affairs Committee recently accepted the government’s argument on this, and that Liberty are not comparing like with like.

2017-03-20T10:35:36+00:00Tags: , , , |

The Human Rights Act and Care Homes: the rightsists strike back

December 18 2007

I’ve just heard Andrew Dismore, chair of the Joint Committee on Human Rights, speak in support of his ten minute rule bill which aims to “clarify” the meaning of “public function” of the Human Rights Act 1998. What he actually wants to do is reverse the effect of the Lords’ judgment in YL v Birmingham earlier this year, which ruled that private care homes do not have to act compatibly with the Convention rights of their residents.

I’m not surprised by this in the slightest: Andrew Dismore and people like him think it obvious that the HRA should apply, and probably see me as a Thatcherite stonyheart. But the point isn’t whether vulnerable people should be protected – Dismore kept referring in his speech to abuse, and vulnerability, using an emotional argument http://www.gooakley.com/ rather than a rational one. The point is how they should be protected. Dismore criticised government guidance to local authorities on how to contract with care homes, saying the guidance was “vague”. But if they were subject to the HRA, the duties of care homes to residents would also be vague, and care homes would have to invest in human rights law advice, which is not cheap or necessarily very certain.

Fundamentally, this is about the circumstances in which care homes should be able to close, or give residents notice to quit. In my view, vulnerable people would be better served if rather than enabling residents and their families to enforce a right to respect for their home, and leaving it to judges to decide cheap oakley whether or not a closure respects this right, Dismore tabled amendments to the government’s Health and Social Care Bill to make specific provision for when homes should be permitted to evict residents, and when not.

I’m afraid, though, that tabling such an amendment would require serious, detailed policy thought about what the content of those rules should be. Much easier, isn’t it, to just impose vague legalistic duties on everyone?

2017-03-20T10:35:58+00:00Tags: , , |

Falconer’s conversion: an explanation?

December 18 2007

On The World At One yesterday (you can listen again for a while) Lord Falconer justified his conversion from pro-90 days Lord Chancellor to 28 days-and-no-further backbencher oddly forgotten by Peter Hain yesterday. To be fair, he was honest enough to admit he had supported 90 days “personally and privately”, not just because of collective responsibility.

He argued that his change of mind is because of the DPP’s guidelines to prosecutors and the “threshold test” that can be applied when considering a charge, under paragraphs 3.9 and 3.10. The threshold test is neatly explained in the Code for Crown Prosecutors. What is means is that, where the police are holding a suspect and do not have enough evidence to charge him according to the normal evidential standard (is there a reasonable prospect of conviction?) then, if it’d normally be inappropriate to grant bail if he were charged (as it would be in most terrorist cases) the CPS or police can charge him on the basis of reasonable suspicion pending further evidence coming in. It’s this power that led Sir Ken McDonald to say to the Home Affairs Committee the other week that 28 days is enough.

Well, that’s a half-decent justification from Charlie although the threshold test, as he admitted, has been around for a couple of years. It’s true there’s been some http://www.gooakley.com/ confusion about whether it applied in terrorist cases (though I can’t think why anyone thought it didn’t), a confusion Ken McDonald removed in his evidence to the the Home Affairs committee. Falconer explained that it’s only fairly recently become clear that the threshold test was relevant and part of the solution to the pre-charge detention issue. This report from the Joint Committee on Human Rights in summer 2006 testifies to the confusion; but also shows that everyone was clear well before Lord Falconer left office that the threshold test does apply.

So why no recantation before now?

2017-03-20T10:36:12+00:00Tags: , , |

Worst legal system in the world – update

December 17 2007

Apparently the Saudi King has pardoned the woman sentenced for being raped (sic) a few weeks ago. Forgive me if I don’t jump up and down making http://www.gooakley.com/ whooping sounds – this is the very minimum he could have done, and even this gesture is marred by the spin coming from Saudi that this doesn’t mean he thinks the sentence was wrong. What?

As I’ve said before, but as I’ll keep saying as long as this kind of incident occurs, Sharia simply can’t be sensibly talked about as a legal system at all a system as wicked and stupid as this has been thrown into history’s dustbin. It’s a joke; and if there is any god or any devil, it’s obvious which one’s in charge of it.

2017-03-20T10:36:18+00:00Tags: , , |

One step forward…

December 15 2007

I agree with Benazir Bhutto that the lifting of the emergency in Pakistan is an important step forward. But what’s really needed is a step backwards, the release of those still detained such as the Supreme Court Chief Justice Chaudhry, and the http://www.gooakley.com/ restoration of judges to their posts.

I reckon Benazir Bhutto’s approach to all this is the key: that’s why I’m disappointed by this post on Pakistan Politics. The report in Dawn of what she said gives a slightly more nuanced version, but still, I’m not with her. Fair enough for a new parliament to make a fresh constitutional start, but I think they shouldn’t start from here. The first step should be to restore the pre-November 3rd situation, and then consider what changes should be made, democratically and constitutionally, to the judiciary. With luck the still-protesting lawyers’ movement will force this.

2017-03-20T10:36:25+00:00Tags: , |

Lord Falconer’s against it, too! Now

December 15 2007

More bad news for Jacqui Smith, now it turns out that Lord Falconer is against extending detention for terrorist suspects beyond 28 days, joining the DPP, the former Attorney General and apparently even the serving Law Officers in opposition to her proposals.

Especially surprising, this apparently late conversion to the liberal cause: look at this interview with Andrew Marr in 2005 for instance, in which Lord Falconer while in government gave a quite brilliant impression of a man fully and firmly behind extension to 90 days. Well, he can argue he was subject to collective responsibility at the time, of course. I won’t buy it, though. Lord Goldsmith too opposed the 90 day proposal, and just about stayed in government, as he recently told the Home Affairs select committee. But to be fair, I don’t remember him giving http://www.gooakley.com/ important interviews on the BBC in support of 90 days.

Lord Falconer’s political death-bed conversion and well-timed knife insertion is quite remarkable. On an entirely separate issue, has there been any progress in negotiations about his pension, I wonder?

If you’re interested in Lord Falconer’s broader views on terrorism, try reading his pretty vacuous speech at RUSI earlier this year.

2017-03-20T10:36:38+00:00Tags: , , |

Strikes must be justified in free movement law: the ECJ’s ruling in Viking Line

December 13 2007

Earlier this week the ECJ gave its ruling in case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line – often simply called the Viking Line case. It’s the case Lord Wedderburn was worried about back in October, and it’s an important judgment, about the extent to which trade union activity, such as strikes and strike threats, are compatible with EU law. Lord Wedderburn seemed to be concerned that the case would lay down an enforceable right to strike; it doesn’t, although it does recognise that trade union action is in principle legitimate. But it’s more important because it means trade union activity is now in effect subject to review on EU law grounds, a development that must have the trade union giants of the past turning industrially in their graves.

In short, Viking Line wanted to free itself from the terms of the collective agreement with the Finnish union which applied to its Finnish-registered ships, so it wanted to “re-flag” them as Estonian. That’d mean being able to pay Estonian seamen lower wages. The FSU understandably objected, fearing Finnish http://www.gooakley.com/ redundancies: it threatened to strike and got the ITWF involved, which told its member unions not to negotiate a new, Estonian agreement with Viking Line. The result being aimed at was, of course, to stop Viking Line exercising its right to establish in Estonia – a fundamental EU freedom under article 43 of the EC Treaty. The facts get very complex after that, involving undertakings and various court proceedings; but the key point is that Viking Line went to the High Court in London, seeking an injunction to prevent the Union’s actions, which it claimed unlawfully restricted its freedom of establishment. That case then went to the Court of Appeal, which referred the matter for a ruling from Luxembourg.

The Court of Appeal asked lots of complex questions, but the ECJ has answered as it so often does, more simply. There were basically three questions: first, does EU freedom of establishment law apply to strikes at all? Or is union activity in a specially immune legal category? Second, do the rules on freedom of establishment apply horizontally – in other words, can an employer use EU law in court to stop a union from striking? Or do the rules only stop governments doing things that prevent free movement? And third, if strikes can restrict free movement, and employers can complain about that, in what circumstances can strike action be justified in EU law?

On the first question, the ECJ ruled that free movement law does not apply only to the actions of public authorities but also to rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services; and cheap oakley sunglasses limiting the scope of free movement law to acts of a public authority would risk creating inequality in its application. Strikes, then, are covered.

And on the second question – really just an aspect of the first, and flowing logically from it – the ECJ built on its “indirect horizontal effect” rulings in cases C‑265/95 Commission v France (the Spanish Strawberries case) and C‑112/00 Schmidberger. Those cases were complaints about the failure of the state to intervene to prevent restrictions on free movement caused by private individuals, but the ECJ goes on to rule that that article 43 EC is capable of conferring rights on a private undertaking which may be relied on against a trade union or an association of trade unions.

Some people, in both unions and in business, will think this a radical step; I remember arguing with City lawyers about it in the past when they told me their view was that article 43 only governed the actions of states. But I think that approach fails to reckon with the radical nature of EU internal market law. How many mini-Factortame moments will be needed before we realise EU law aims at abolishing all unjustified barriers to cross-border trade – whatever their nature? The ECJ had no difficulty in ruling that the union action restricted free movement: its very aim to was stop re-flagging.

Finally, on the trickiest question of all – whether strikes and union action like this is justified in EU law – the ECJ predictably bottled out, largely, saying it was for the national court to determine this. But it did give some guidance. First, it suggests union action will only be justified where cheap oakley jobs and conditions really are at risk; if an employer has made legally-binding undertakings protecting workers, further restrictive action may be legally unjustifiable. And secondly, it suggests that blanket policies like that of the ITWF which ask members to block re-flagging operations regardless of the effect on conditions are probably unjustified. The court was concerned about the fact that the ITWF’s policy of blocking re-flagging and renegotiation applies even where where that would lead to a higher level of social protection for workers.

So, an important step in EU law. Union action, say against incoming foreign firms, or against outsourcing of work to eastern Europe, will be reviewable by the courts on the basis of EU law. I don’t expect a huge rush of attempts by employers to obtain injunctions, but I do expect some to be obtained. And this may become one more reason why old-fashioned union activity starts to become the preserve of the public sector, which is of course less mobile that private business.

2017-03-20T10:37:05+00:00Tags: , , , |

R (Al Jedda) v Defence Secretary: detention in Iraq does not breach human rights

December 12 2007

The legality or otherwise of the invasion and occupation of Iraq in 2003 has been the biggest international legal issue of our time – and it continues to cause division and disagreement not only in the Dog and Duck but also in the House of Lords, as today’s Lords judgment in this case shows.

Mr. Al Jedda was born in Iraq, but successfully claimed asylum in Britain in 1992 and then obtained British citizenship. From about 2000 it seems from reading the judgments in the Divisional Court and the Court of Appeal that while claiming benefit in Britain he travelled widely in the middle east, claiming to be running a honey business and buying cars in Dubai to resell them in Iraq. He was imprisoned in Syria for almost a year, and married two wives, before being arrested in Baghdad in September 2004 on suspicion of involvement in terrorism and detained by British troops in Basra – http://www.gooakley.com/ where he’s been kept ever since. I mention these facts for two reasons: first, because I think it’s important to bear in mind the real-life background to major terrorism cases, as far as we can know them; and second because, if it’s true as the government claims that this man is such a threat, there are real questions to be answered about why the UK has been quite so welcoming towards him, and financially supportive of him after that. This case has ended up in Basra but seems to have begun in Londonistan.

Mr. Al Jedda complained that his continuing preventative detention breached the article 5 Convention right to liberty, but he lost at first instance and on appeal: each court decided that the UK’s obligations under the UN Security Council Resolutions authorising the role of the multinational force in Iraq effectively trump the provisions of the ECHR and the Human Rights Act. The appeal to the Lords dealt not only with this point, but with an additional point not argued below, but arising from the decision of the European Court of Human Rights in the Behrami and Saramati case in May: whether the detention is, in international law, not in fact the responsibility of the UK, but of the UN which has authorised it. In Behrami, the ECtHR had decided that actions of French troops acting in Kosovo as part of KFOR were not the responsibility of France, but of the UN. The case against France was thrown out – and the British government argued that Mr. Al Jedda’s claim against the government should be dismissed on the same basis. It’s clear that Security Council Resolution 1546 authorises UK troops to intern people where necessary for imperative reasons of security, but the Lords were divided on whether this meant the UN was legally responsible for internment.

Lord Bingham, Lady Hale and Lord Carswell thought any comparison with Kosovo failed entirely: in their view, the fact that the occupation of Iraq was only authorised or regularised by the UN retrospectively meant the legal position was quite different. UK troops are not acting on behalf of the UN or controlled by it, so the UK remains cheap oakley responsible. Lord Brown thought the matter more complex, but in the end agreed with them that the position is materially different from that in Kosovo. Only Lord Rodger though the position exactly analagous to Behrami: in his view the fact that the initial occupation of Iraq was not authorised by the UN is legally irrelevant because internment was authorised by the UN – with the result that UK troops were obliged in international law to intern people where truly imperative – before the arrest of Mr. Al Jedda. It’s difficult not to detect, underlying this disagreement, broader questions of the political legitimacy of UK action in Iraq – the question people have been disagreeing about for four years or more. The government lost by four Law Lords to one on this, which may show they’re not always so out of touch with public opinion as people think.

The government did win, ultimately, though: the Lords unanimously agreed that Convention rights are qualified or displaced by the UN authorisation – obligation, even, in appropriate circumstances – to intern those considered a real threat. Lady Hale was clearly uneasy with this outcome, though she didn’t dissent from it: see paragraphs 128-129 of her speech. But Lords Brown and Carswell agreed with Lord Bingham that article 5 does not prevent UK troops exercising the power to detain Mr. Al Jedda under the UN Resolution. Lord Rodger also agreed the authority of the UN Resolution prevails.

Lord Carswell’s reasoning is clearest, at paragraphs 132-136 of his speech: the effect of article 103 of the UN Charter:

In the event cheap oakley sunglasses of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail

together with paragraph 10 of UNSCR 1546 which authorises, in accordance with a letter (by the then US Secretary of State Colin Powell) annexed to it

internment where this is necessary for imperative reasons of security

means that despite article 5 and the Human Rights Act, UK forces may lawfully intern Mr. Al Jedda in Iraq if that is imperative for security reasons. The four Lords in the majority all agreed that there must be safeguards to ensure the power to intern is exercised in a way which minimises the infringement of the detainee’s article 5 rights.

There was a third legal issue: but an easy one to resolve. All the Lords agreed ordinary Iraqi civil law, not the English law of tort, governs the actions of UK forces in Iraq.

2017-03-20T03:48:24+00:00Tags: , , , , |

What’s happening now in Pakistan?

December 11 2007

Pakistan’s fallen out the the headlines here in Britain. Even worse, we just get the odd snippet of news – Musharraf quits as army chief; Musharraf promises elections in January; Musharraf announces the emergency will end on 15 December – which might make it seem as though Pakistan were returning to consitutionalism and that everything’s back to normal. It’s not.

It’s true that Musharraf’s going to hold elections, end the emergency and so on, and that he’s now a civilian president. But as the emergency comes towards its end it’s become absolutely clear that all of this – the restrictions, the detentions – was aimed simply at getting round the threat to http://www.gooakley.com/ Musharraf’s rule that had been posed by the Supreme Court of Pakistan. Now he has the ruling he needed from his puppet court he can revert to constitutionalism, but intends to leave his hand-picked Supreme Court in place. The big issue now is whether he’ll get away with this – he’s trying to buy off the sacked judges with pensions – or whether pressure from lawyers and others will force him to restore sacked judges to their positions and return to the true status quo ante.

Lawyers and judges are still in detention, including former Chief Justice Chaudhury and President of the Supreme Court Bar Association, Aitzaz Ahsan, who it seems from Pakistaniat.com wrote to lawyers recently proposing a political strategy in the event that the main parties do not cheap oakley boycott the elections – which seems to be coming to pass now the Muslim League apparently will field candidates, though not Nawaz Sharif. His proposed strategy includes continuing the boycotts lawyers are carrying out of Musharraf’s puppet judges, who are in regional high courts as well as the Supreme Court – there must now be considerable backlogs in cases in some courts, including the Supreme Court. And he proposes pressing candidates to take public oaths promising to restore sacked judges and the pre-November 3rd position. Lawyers and others are continuing to protest, as can be seen from these news items from Dawn.

So Musharraf’s not got this stitched up by a long way.

2017-03-20T03:48:44+00:00Tags: , |

Former US Attorney General goes into the music business

December 11 2007

It seems the former U.S. Attorney General Janet Reno has produced (well, sort of) a 3-CD collection of songs telling the story of her country. Song of America will feature covers http://www.gooakley.com/ of famous tunes like Dixie’s Land and The Times, They Are A-Changin’.

I wonder whether Lord Goldsmith will be entering this market? By all means let me know what popular classics you think he’d pick.

2017-03-20T03:48:53+00:00Tags: , |
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