If the Guardian's right that News Group Newspapers have illegally hacked, or paid investigators to illegally hack, the mobile phone messages of celebrities, then those investigators and journalists may have committed the offence of unlawful interception under section 1 of the Regulation of Investigatory Powers Act 2000. On the face of it the offence seems to cover only the intentional interception without lawful authority of any public telecommunication in the course of its transmission; the intention of section 2(7) seems however to be to include the interception of voicemail, though it looks to me unfortunately and obscurely drafted.
The maximum sentence is two years, or an unlimited fine, under section 1(7); under section 1(8), the DPP would have to give consent for any prosecution.
The journalists may have committed the offence themselves under section 8 of the Accessories and Abettors Act 1861, by having procured illegal hacking by investigators; alternatively they may be guilty of conspiring to unlawfully intercept communications, under section 1(1) of the Criminal Law Act 1977. Any editors who agreed to illegal hacking would also be guilty as conspirators. Under section 3(3) of the 1977 Act, the maximum penalty for such a conspiracy would be the same two years imprisonment; plus the court would also have a power to fine anyone found guilty, under section 127 of the Powers of Criminal Courts (Sentencing) Act 2000.
Another legal aspect of this scandal that's worth examining is the talk there's been of News Group's lawyers having "sealed the court file" after settlement was reached in Gordon Taylor's claim against them. I can't claim to be a master of the minutiae of civil procedure, but sealing the court file sounds an American concept to me. What News Group may have done is persuade Master Moncaster on an application under rule 5.4C(4) of the Civil Procedure Rules to restrict non-parties' access to the claim and defence in the case. Regardless of any such order, non-parties to the case would in any event have had to apply to the court in for permission to see, for instance, lists of the documents each side disclosed; so I don't think the entire chain of documentary evidence thrown up by the case would be public in the normal way of things. But it's quite true that that such an order makes it more difficult to find out what was alleged in the case, and what was admitted. We should know on what basis the application was made, and on what basis it was granted.
Finally, Andrew Neil at least is interested in whether News Group might now fear a "class action", presumably for breach of confidence or invasion of privacy, on behalf of the hundreds of people it's alleged had their phones hacked. Well, a "class action" in the true American sense - of one person claiming on behalf of an abstract, unidentified class and obtaining a judgment that could potentially apply to anyone in that class - isn't possible in England and Wales; but there are procedures that enable a group of people to save costs at least to some extent in taking on a powerful defendant like News Group. Representative actions are possible, in which one person takes the lead if a number of identified claimants do actually claim for invasion of privacy; or if there were large numbers of claimants they could apply for a group litigation order as a way of handling the litigation. This 2006 article by the Herbert Smith lawyer Simon Clarke explains a bit more about representative actions and GLOs, and how they differ from American class actions.
Friday, 10 July 2009
Friday, 3 July 2009
Mrinal Patel case dropped
Harrow Council has abandoned its prosecution of Mrinal Patel today. No surprise there, then. I expressed myself in moderate terms while criminal proceedings were under way, but summonsing her under the Fraud Act 2006 always looked dodgy - it's difficult to see how you can really call a school place property.
I agree with Harrow Council that some offence needs to be drafted to cover this. As I explained in my last post on this, the sanction of withdrawing a school place a council thinks has been gained by fraud is not enough. In spite of what civil libertarians might say, it's important to ensure the threat of strong action deters people from anti-social behaviour such as unfairly gaining their children a school place that should by rights go to another child.
But I think questions need to be asked, too, about what Harrow thought it was doing here. Clearly it's given up now because it thought, presumably on counsel's advice, that it did not have a reasonable prospect of conviction, or indeed of commital to the Crown Court - in other words, than the courts were unlikely to accept their "school place=property" argument, and interpret the Fraud Act as applying here. But if I was saying that a month ago, Harrow's lawyers must have been alive to the problem by then. Harrow have been working on the case since at least May. And given that this is such a high-profile case, it'd be strange if they took the decision to prosecute without counsel's advice. So how did Harrow come to believe, until today, that a prosecution was appropriate?
If its lawyers genuinely advised, until a few days ago, that the prosecution was likely to succeed, and changed their mind this week - I think it's strange, but fair enough. But it'd be a scandal if Harrow decided to proceed with this in full knowledge of the legal difficulty they've now acknowledged, with the purpose of gaining publicity for their campaign to get new legislation. Avoiding that kind of unjustified prosecution is the whole purpose of requiring a lawyer to make the decision to prosecute based on the evidential test laid down in the Code for Crown Prosecutors (which I've no doubt local authorities apply).
I agree with Harrow Council that some offence needs to be drafted to cover this. As I explained in my last post on this, the sanction of withdrawing a school place a council thinks has been gained by fraud is not enough. In spite of what civil libertarians might say, it's important to ensure the threat of strong action deters people from anti-social behaviour such as unfairly gaining their children a school place that should by rights go to another child.
But I think questions need to be asked, too, about what Harrow thought it was doing here. Clearly it's given up now because it thought, presumably on counsel's advice, that it did not have a reasonable prospect of conviction, or indeed of commital to the Crown Court - in other words, than the courts were unlikely to accept their "school place=property" argument, and interpret the Fraud Act as applying here. But if I was saying that a month ago, Harrow's lawyers must have been alive to the problem by then. Harrow have been working on the case since at least May. And given that this is such a high-profile case, it'd be strange if they took the decision to prosecute without counsel's advice. So how did Harrow come to believe, until today, that a prosecution was appropriate?
If its lawyers genuinely advised, until a few days ago, that the prosecution was likely to succeed, and changed their mind this week - I think it's strange, but fair enough. But it'd be a scandal if Harrow decided to proceed with this in full knowledge of the legal difficulty they've now acknowledged, with the purpose of gaining publicity for their campaign to get new legislation. Avoiding that kind of unjustified prosecution is the whole purpose of requiring a lawyer to make the decision to prosecute based on the evidential test laid down in the Code for Crown Prosecutors (which I've no doubt local authorities apply).
Ronald Biggs, and the real ale of English freedom
It's been widely reported that Jack Straw has turned down parole for Ronald Biggs.
For the parole board to recommend his release may be humane in the individual case, but it would not be right in the broader public interest to release him: I agree with the decision Jack Straw has taken. As he's rightly said, Biggs would have been free long ago, and could walk into any pub in Margate or anywhere else, had he not escaped from prison in 1965. The freedom he wants now is the liberty he took between then and 2001 - from Harold Wilson to Tony Blair, from Bobby Moore to David Beckham and from the Beatles to Robbie Williams - when he preferred the cold lager of Brazil. He stole three decades from the public, and he still owes us plenty. He may never pay his debt in full, but the one thing he can do to make up for his crime is to serve every day possible of his outstanding sentence - and I think he should do so. That will seem harsh to some, but today's armed robbers need to know that justice is remorseless in circumstances like these. That's why Biggs should not taste the real ale of English freedom.
The ability and indeed duty of elected politicians to make decisions on that broader basis seems to me the best argument for their having the power Jack Straw has exercised; there is a real danger that cutting that power out of the system would result in the public's interest in the matter being ignored.
For the parole board to recommend his release may be humane in the individual case, but it would not be right in the broader public interest to release him: I agree with the decision Jack Straw has taken. As he's rightly said, Biggs would have been free long ago, and could walk into any pub in Margate or anywhere else, had he not escaped from prison in 1965. The freedom he wants now is the liberty he took between then and 2001 - from Harold Wilson to Tony Blair, from Bobby Moore to David Beckham and from the Beatles to Robbie Williams - when he preferred the cold lager of Brazil. He stole three decades from the public, and he still owes us plenty. He may never pay his debt in full, but the one thing he can do to make up for his crime is to serve every day possible of his outstanding sentence - and I think he should do so. That will seem harsh to some, but today's armed robbers need to know that justice is remorseless in circumstances like these. That's why Biggs should not taste the real ale of English freedom.
The ability and indeed duty of elected politicians to make decisions on that broader basis seems to me the best argument for their having the power Jack Straw has exercised; there is a real danger that cutting that power out of the system would result in the public's interest in the matter being ignored.
Thursday, 2 July 2009
German Constitutional Court approves Lisbon - with provisos
On Tuesday the Federal Constitutional Court ruled that the Lisbon Treaty is fundamentally compatible with the German Constitution - the Grundgesetz or Basic Law. The judgment is vast and verbose (German/English) but here's a (still quite verbose) summary of it (German/English).
The court sees Lisbon as substantially increasing EU competence, but not to such a point as to extinguish German sovereignty. But because the EU's structures are not fully democratic - Europe is not a real political society - it's essential that national democratic institutions play a full part in European decision-making. For that reason, although Lisbon as a whole is okay, some of its provisions - in particular the new simplified procedure for amending the EU Treaties and the "passerelle" clauses by which member states will be able to give up the veto and move to qualified majority voting without specific Treaty amendment - can only be relied on constitutionally if both houses of the German Parliament, Bundestag and Bundesrat, give specific assent to their use.
The judgment is significant in several respects. First, the German Court is making clear that EU law can only be agreed to and operated by Germany to the extent that it is compatible with the Grundgesetz, and that it will be the judge of compatibility. It stresses that in its view this does not conflict with the EU law doctrine of the supremacy of EU law. Second, Lisbon passes that compatibility test - by far the most practically significant aspect of the decision, and something Angela Merkel will be mightily relieved by. Third, it creates a political problem for her and other pro-Lisbon leaders in that German ratification must now be delayed until laws are drafted to guarantee the relevant functions of the Bundestag and Bundesrat; that's unwelcome, as it eases the pressure on Irish voters and Polish and Czech opponents of Lisbon, but a setback Merkel no doubt gladly accepts as the price for Lisbon's approval. Here's a report about political reactions in Germany.
Finally, though, and potentially most significantly, the judgment confirms and further elaborates the legal theory of conditional acceptance of EU law first established by the German Court in its famous Solange I and Solange II judgments, according to which Germany will only accept the supremacy of EU law "so long" as EU law guarantees the fundamental rights laid down in the Grundgesetz; and developed by the Court in its Maastricht judgment, according to which there is a theoretical limit to the EU's power, defined in terms of its impact on national democratic sovereignty. This 2007 paper by Julio Baquero Cruz gives a good summary of those important earlier judgments: I agree with him that the Maastricht decision established an alternative paradigm of the relationship between the state and the EU which claims higher legitimacy that the EU's own paradigm of supremacy; this Lisbon decision confirms that paradigm, which could be the foundation of reformist (some would say Eurosceptic) European legal thinking.
The real questions are whether the German Court would ever have the courage actually to rule against EU law on the basis of this theory; and whether EU leaders will believe in its readiness to do, at least sufficiently to be deterred from grabbing too much power. Only time will tell. But the German Constitutional Court is certainly the most powerful institution capable of asserting national power against that of the EU, and I've no doubt EU leaders take the risk of its displeasure much more seriously than they do the displeasure of voters in European Parliament elections or indeed in referendums.
The court sees Lisbon as substantially increasing EU competence, but not to such a point as to extinguish German sovereignty. But because the EU's structures are not fully democratic - Europe is not a real political society - it's essential that national democratic institutions play a full part in European decision-making. For that reason, although Lisbon as a whole is okay, some of its provisions - in particular the new simplified procedure for amending the EU Treaties and the "passerelle" clauses by which member states will be able to give up the veto and move to qualified majority voting without specific Treaty amendment - can only be relied on constitutionally if both houses of the German Parliament, Bundestag and Bundesrat, give specific assent to their use.
The judgment is significant in several respects. First, the German Court is making clear that EU law can only be agreed to and operated by Germany to the extent that it is compatible with the Grundgesetz, and that it will be the judge of compatibility. It stresses that in its view this does not conflict with the EU law doctrine of the supremacy of EU law. Second, Lisbon passes that compatibility test - by far the most practically significant aspect of the decision, and something Angela Merkel will be mightily relieved by. Third, it creates a political problem for her and other pro-Lisbon leaders in that German ratification must now be delayed until laws are drafted to guarantee the relevant functions of the Bundestag and Bundesrat; that's unwelcome, as it eases the pressure on Irish voters and Polish and Czech opponents of Lisbon, but a setback Merkel no doubt gladly accepts as the price for Lisbon's approval. Here's a report about political reactions in Germany.
Finally, though, and potentially most significantly, the judgment confirms and further elaborates the legal theory of conditional acceptance of EU law first established by the German Court in its famous Solange I and Solange II judgments, according to which Germany will only accept the supremacy of EU law "so long" as EU law guarantees the fundamental rights laid down in the Grundgesetz; and developed by the Court in its Maastricht judgment, according to which there is a theoretical limit to the EU's power, defined in terms of its impact on national democratic sovereignty. This 2007 paper by Julio Baquero Cruz gives a good summary of those important earlier judgments: I agree with him that the Maastricht decision established an alternative paradigm of the relationship between the state and the EU which claims higher legitimacy that the EU's own paradigm of supremacy; this Lisbon decision confirms that paradigm, which could be the foundation of reformist (some would say Eurosceptic) European legal thinking.
The real questions are whether the German Court would ever have the courage actually to rule against EU law on the basis of this theory; and whether EU leaders will believe in its readiness to do, at least sufficiently to be deterred from grabbing too much power. Only time will tell. But the German Constitutional Court is certainly the most powerful institution capable of asserting national power against that of the EU, and I've no doubt EU leaders take the risk of its displeasure much more seriously than they do the displeasure of voters in European Parliament elections or indeed in referendums.
Wednesday, 1 July 2009
Baroness Deech and the Cohabitation Bill
I'm grateful to John Bolch (again) for his reminder last week about what happened to Lord Lester's Cohabitation Bill: it ran out of time, basically, after committee stage in the Lords on 30 April, and since the government opposes it, it's not going anywhere.
John and I disagree sharply on this Bill: since I was always against it, I'm delighted it ran into the sand. And perhaps it's not surprising that we differ, too, in our attitudes to the committee stage debate. John quotes an article in Resolution's magazine saying the debate was not reasoned, but wrecking; and he fingers Baroness Deech as wrecker in chief.
Well, obviously I agree with Baroness Deech's opposition to the Bill, so perhaps I'm biased, but looking at the amendments and the debate, I think her approach was legitimate, and I applaud her. Yes, she wanted to wreck the Bill. The authors of the Resolution article talk as though that's a bad thing - but then they start from the assumption that the Bill was good. Her amendments and the criticisms she made of the Bill were sensible - I don't agree with her about the need to protect cohabiting siblings, but it's not a bonkers point, and her arguments about retrospectivity were important and right, I think, and certainly addressed real issues rather than pettifogging procedures. In any event, Lord Lester himself tabled 32 amendments - twice as many as Baroness Deech, and since in the event their Lordships only debated 3, his list alone was more than enough to have used up all the time. And his agreement to amendment 1 shows he was already on the run and felt he needed to make a serious concession to his opponents. I agree that more time ought to be available to discuss private members' bills; it's not good enough that time just ran out like this. But I don't think the unsatisfactory position as regards time means opponents of a bill like this have a duty not to oppose. That way would lead to less scrutiny, and more bad legislation, than we have already.
Good riddance to a bad proposal.
John and I disagree sharply on this Bill: since I was always against it, I'm delighted it ran into the sand. And perhaps it's not surprising that we differ, too, in our attitudes to the committee stage debate. John quotes an article in Resolution's magazine saying the debate was not reasoned, but wrecking; and he fingers Baroness Deech as wrecker in chief.
Well, obviously I agree with Baroness Deech's opposition to the Bill, so perhaps I'm biased, but looking at the amendments and the debate, I think her approach was legitimate, and I applaud her. Yes, she wanted to wreck the Bill. The authors of the Resolution article talk as though that's a bad thing - but then they start from the assumption that the Bill was good. Her amendments and the criticisms she made of the Bill were sensible - I don't agree with her about the need to protect cohabiting siblings, but it's not a bonkers point, and her arguments about retrospectivity were important and right, I think, and certainly addressed real issues rather than pettifogging procedures. In any event, Lord Lester himself tabled 32 amendments - twice as many as Baroness Deech, and since in the event their Lordships only debated 3, his list alone was more than enough to have used up all the time. And his agreement to amendment 1 shows he was already on the run and felt he needed to make a serious concession to his opponents. I agree that more time ought to be available to discuss private members' bills; it's not good enough that time just ran out like this. But I don't think the unsatisfactory position as regards time means opponents of a bill like this have a duty not to oppose. That way would lead to less scrutiny, and more bad legislation, than we have already.
Good riddance to a bad proposal.
Tuesday, 30 June 2009
Parliamentary Standards Bill: crying wolf about human rights
I'm always amused when anyone - often it's some kind of campaign group - claims that this or that Parliamentary bill "could" breach human rights. As often as not, it's simply a tactical claim: whoever it is opposes the measure on political grounds (which is entirely fair enough) and tries to use a legal objection to back their opposition. The worst recent example of this was the CEHR's threats about the Counter-Terrorism Bill.
And now, Parliament's Joint Committee on Human Rights has said that the Parliamentary Standards Bill - the one that aims at bringing in independent scrutiny of MPs expenses - would breach human rights in that it would deny MPs a fair hearing. Here's the JCHR report. Note that the JCHR goes further than the usual "could breach human rights!" scare tactics. The Committee says the Bill would breach the article 6 Convention right to a fair hearing and that it would only be a question of time before the European Court made such a finding.
This seems to me a crazy stance to take politically: nothing could be less attractive than MPs trying to use human rights law to cause trouble for the government's plans to bring in independent scrutiny.
But I'm more interested in the legal merits. So would the Bill breach article 6? I think not. The JCHR has form for crying wolf on human rights. It thought the smoking ban could breach human rights - a very silly view to take indeed, in my view, and one shown to be silly since the ban was brought in. I think this latest view is on much the same level, to be honest.
To raise some questions about the procedures, to argue for stronger safeguards and to recommend changes would have been one thing. But the JCHR's conclusions are extreme, and in my view untenable. The committee concludes far too readily that article 6 applies at all: I think the government is probably right that, based on cases such as Pierre-Bloch v France, it doesn't apply to Parliamentary discipline.
And the JCHR says an MP who is investigated must have the benefit of a high standard of proof - beyond reasonable doubt - if the disciplinary charge against him or her amounts to a criminal charge. Well, first, it seems to me quite a jump to assume that, even if an MPs' behaviour may amount to a fraud, it follows that disciplinary procedures based on that same conduct constitute criminal charges for article 6 purposes. It ain't necessarily so. But anyway, article 6 does not require our domestic criminal reasonable doubt standard of proof at all. That cannot be necessary for human rights compliance.
The JCHR compounds that by going even further over the top, with the claim that article 6 requires an appeal, which they think should be to the Privy Council. But article 6 does not require a right of appeal. It requires a fair hearing. If the independent regulator's procedures are fair, article 6 is satisfied - no appeal is necessary. The JCHR's demand for an appeal is a red herring. By the way, they do not say the appeal should be on a point of law: it seems they think the Privy Council should rehear the case on its merits - so that MPs would have two fair hearings, not just one. But in any event I think MPs may well have a right to challenge decisions of the independent authority in court: I see nothing in the Bill that excludes judicial review. Again, therefore, the JHCR's recommendations are extreme, and unwarranted.
So how could the JCHR have come to such an extreme view? It has three legal advisers, for heaven's sake! Well, one reason is just that the JCHR can get things badly wrong, as with smoking.
It might also be worth mentioning, though, that the majority of the members who agreed the report - the chair Andrew Dismore, John Austin, Evan Harris, Virendra Sharma and Richard Shepherd - were all named in the Telegraph recently in connection with their expenses. That may, of course, simply be coincidence.
And now, Parliament's Joint Committee on Human Rights has said that the Parliamentary Standards Bill - the one that aims at bringing in independent scrutiny of MPs expenses - would breach human rights in that it would deny MPs a fair hearing. Here's the JCHR report. Note that the JCHR goes further than the usual "could breach human rights!" scare tactics. The Committee says the Bill would breach the article 6 Convention right to a fair hearing and that it would only be a question of time before the European Court made such a finding.
This seems to me a crazy stance to take politically: nothing could be less attractive than MPs trying to use human rights law to cause trouble for the government's plans to bring in independent scrutiny.
But I'm more interested in the legal merits. So would the Bill breach article 6? I think not. The JCHR has form for crying wolf on human rights. It thought the smoking ban could breach human rights - a very silly view to take indeed, in my view, and one shown to be silly since the ban was brought in. I think this latest view is on much the same level, to be honest.
To raise some questions about the procedures, to argue for stronger safeguards and to recommend changes would have been one thing. But the JCHR's conclusions are extreme, and in my view untenable. The committee concludes far too readily that article 6 applies at all: I think the government is probably right that, based on cases such as Pierre-Bloch v France, it doesn't apply to Parliamentary discipline.
And the JCHR says an MP who is investigated must have the benefit of a high standard of proof - beyond reasonable doubt - if the disciplinary charge against him or her amounts to a criminal charge. Well, first, it seems to me quite a jump to assume that, even if an MPs' behaviour may amount to a fraud, it follows that disciplinary procedures based on that same conduct constitute criminal charges for article 6 purposes. It ain't necessarily so. But anyway, article 6 does not require our domestic criminal reasonable doubt standard of proof at all. That cannot be necessary for human rights compliance.
The JCHR compounds that by going even further over the top, with the claim that article 6 requires an appeal, which they think should be to the Privy Council. But article 6 does not require a right of appeal. It requires a fair hearing. If the independent regulator's procedures are fair, article 6 is satisfied - no appeal is necessary. The JCHR's demand for an appeal is a red herring. By the way, they do not say the appeal should be on a point of law: it seems they think the Privy Council should rehear the case on its merits - so that MPs would have two fair hearings, not just one. But in any event I think MPs may well have a right to challenge decisions of the independent authority in court: I see nothing in the Bill that excludes judicial review. Again, therefore, the JHCR's recommendations are extreme, and unwarranted.
So how could the JCHR have come to such an extreme view? It has three legal advisers, for heaven's sake! Well, one reason is just that the JCHR can get things badly wrong, as with smoking.
It might also be worth mentioning, though, that the majority of the members who agreed the report - the chair Andrew Dismore, John Austin, Evan Harris, Virendra Sharma and Richard Shepherd - were all named in the Telegraph recently in connection with their expenses. That may, of course, simply be coincidence.
Sunday, 28 June 2009
Lords judgment: AG's reference no. 3 of 1999 - application by the BBC
I don't propose to comment at any length on this Lords judgment from the week before last. It has interesting facts, and signals that the BBC are planning to screen an interesting programme about possible "wrong acquittals", which in my view are miscarriages of justice just as serious as wrongful convictions. But the human rights principles applied in it are unremarkable.
The case makes me think about DNA databases again, though. I support the national DNA database, and though I wouldn't go as far as Sedley LJ, I do think a wide database is a good idea and regret the decision of the ECtHR in S and Marper, which I think far too interventionist. Reading this Lords judgment should bring home to critics of the DNA database what the practical consequences of their stance are: a case like "D"'s will in future lead to no charge for rape.
I must say, I personally find it difficult to see how anyone can square concern about rape conviction figures with opposition to the use of DNA evidence in this type of case. I know most rapes are not committed by strangers, so that identity is in issue in a minority of cases. But that point is a diversion. The important point is that DNA evidence would help obtain reliable convictions for rape in a number of cases - if we allow ourselves to use it. How can we or Strasbourg allow purely theoretical civil liberties worries to rule it out?
Isn't the rape conviction rate a serious human rights issue?
The case makes me think about DNA databases again, though. I support the national DNA database, and though I wouldn't go as far as Sedley LJ, I do think a wide database is a good idea and regret the decision of the ECtHR in S and Marper, which I think far too interventionist. Reading this Lords judgment should bring home to critics of the DNA database what the practical consequences of their stance are: a case like "D"'s will in future lead to no charge for rape.
I must say, I personally find it difficult to see how anyone can square concern about rape conviction figures with opposition to the use of DNA evidence in this type of case. I know most rapes are not committed by strangers, so that identity is in issue in a minority of cases. But that point is a diversion. The important point is that DNA evidence would help obtain reliable convictions for rape in a number of cases - if we allow ourselves to use it. How can we or Strasbourg allow purely theoretical civil liberties worries to rule it out?
Isn't the rape conviction rate a serious human rights issue?
Thursday, 18 June 2009
Lords judgment: Gray v Thames Trains
Yesterday's judgment in this case is interesting: their Lordships have decided that Kerrie Gray, who was injured in the Ladbroke Grove rail crash of 1999, cannot recover damages in negligence from Thames Trains and Network Rail for the consequences of his own criminal acts. Following the crash he suffered from post-traumatic stress disorder and depression; one night he stabbed a man to death. He was convicted of manslaughter and detained under section 37 of the Mental Health Act 1983.
Mr. Gray wanted damages for his loss of earnings while detained and for his feelings of guilt, and to be indemnified against any damages claim against him by the family of his victim. An outrageous, loonily litigious claim of the kind taxi-drivers often associate with the Human Rights Act. Note that that legislation plays no part in the case. But the Lords have dished him, led by Lord Hoffmann who makes it clear that the law is against him since there is a principle based on public policy that you can't recover damages which flow from a sentence lawfully imposed on you for your own unlawful act. This is Lord Hoffmann's "narrow rule", and deals with the loss of earnings claim. Lord Hoffmann also says there is a wider rule of public policy that you cannot recover for damage which is the consequence of your own criminal act. He explains at paragraph 32 why he distinguishes between the wide and the narrow rules; the wider rule comes into play, since it precludes damages for guilty feelings, and the indemnity.
This is an obviously sound, common sense judgment, and many members of the public will be astonished, I think, that these points needed to be decided in our highest court rather than being the sort of elementary point dealt with at a lower level. I'm glad human rights points were not argued in favour of the claims (there might conceivably have been an uphill argument based on Z v UK (see paras. 91-104) that Lord Hoffmann's rules are "exlusionary" and in breach of article 6) and dread to think what Lord Hoffmann would have said if they had been.
Mr. Gray wanted damages for his loss of earnings while detained and for his feelings of guilt, and to be indemnified against any damages claim against him by the family of his victim. An outrageous, loonily litigious claim of the kind taxi-drivers often associate with the Human Rights Act. Note that that legislation plays no part in the case. But the Lords have dished him, led by Lord Hoffmann who makes it clear that the law is against him since there is a principle based on public policy that you can't recover damages which flow from a sentence lawfully imposed on you for your own unlawful act. This is Lord Hoffmann's "narrow rule", and deals with the loss of earnings claim. Lord Hoffmann also says there is a wider rule of public policy that you cannot recover for damage which is the consequence of your own criminal act. He explains at paragraph 32 why he distinguishes between the wide and the narrow rules; the wider rule comes into play, since it precludes damages for guilty feelings, and the indemnity.
This is an obviously sound, common sense judgment, and many members of the public will be astonished, I think, that these points needed to be decided in our highest court rather than being the sort of elementary point dealt with at a lower level. I'm glad human rights points were not argued in favour of the claims (there might conceivably have been an uphill argument based on Z v UK (see paras. 91-104) that Lord Hoffmann's rules are "exlusionary" and in breach of article 6) and dread to think what Lord Hoffmann would have said if they had been.
Wednesday, 17 June 2009
NightJack: the Times should be ashamed
I admire and respect the professional mainstream press; but the behaviour of the Times in "outing" the Orwell Prize winning blogger NightJack has dented that respect considerably. Here's Eady J's judgment, refusing the injunction the blogger sought.
I don't blame Eady J; I think his ruling may well be sound in law, although if he is right that the identity of an anonymous "whistle-blowing" blog is not by its nature confidential, then I think the law of confidence should be changed. Those who want to expose anonymous bloggers who arguably inform the public of important matters and the grass roots views of public servants should at least need to establish a public interest justification for doing so. On the precedent of this case, no such public interest is necessary. It's difficult to see, for instance, that the law would prevent the Times from exposing Iranian opposition bloggers. I think they can proudly boast they have established a legal precedent that permits them to do so.
I blame the Times: specifically its reporter Patrick Foster, and its editor James Harding. They have closed down an important, award-winning blog, and caused a much more chilling effect on free expression in this country than any judge, lawyer or privacy law can do. They are a disgrace to their profession.
Surely journalists are supposed to protect the anonymity of sources, not expose them. If the Times can do this, then can it not, equally, expose the identity of any source who, in the Times's view, is defying the rules of a public sector employer? That would include, for instance, a civil servant who leaks, such as Chris Galley. Anyone thinking of giving information to the Times must now assume it could appear on the front page. What, after all, is to stop this?
Which brings me to the Times's hypocrisy. If it's in the public interest for NightJack to be exposed - as the Times argued in court (see para. 19 of the judgment) - then it must be in the public interest to expose, rather than keep concealed, the identity of any public servant giving unauthorised information, say to a journalist. That would include not only police officers here in the UK but intelligence officials, judges and police officers in other countries such as Italy and France, and even civil servants in Iran who express political views to the press. Just to be clear, my previous sentence links to no less than ten stories in the Times and Sunday Times this year quoting anonymous police sources - I could have linked to more similar articles - plus four other stories which raise analogous issues involving other public sector sources here or abroad. According to the Times's argument in the NightJack case, it believes the public interest requires these sources to be named; yet it is clearly content to use such sources and protect them.
I don't doubt for a moment that the Times protects these sources because it thinks to do so is both ethical and in the public interest. But the NightJack case shows it is prepared to cast ethics and the public interest aside where they conflict with its own narrow commercial interest.
Professional journalists who work to these double standards don't deserve bloggers' respect.
I don't blame Eady J; I think his ruling may well be sound in law, although if he is right that the identity of an anonymous "whistle-blowing" blog is not by its nature confidential, then I think the law of confidence should be changed. Those who want to expose anonymous bloggers who arguably inform the public of important matters and the grass roots views of public servants should at least need to establish a public interest justification for doing so. On the precedent of this case, no such public interest is necessary. It's difficult to see, for instance, that the law would prevent the Times from exposing Iranian opposition bloggers. I think they can proudly boast they have established a legal precedent that permits them to do so.
I blame the Times: specifically its reporter Patrick Foster, and its editor James Harding. They have closed down an important, award-winning blog, and caused a much more chilling effect on free expression in this country than any judge, lawyer or privacy law can do. They are a disgrace to their profession.
Surely journalists are supposed to protect the anonymity of sources, not expose them. If the Times can do this, then can it not, equally, expose the identity of any source who, in the Times's view, is defying the rules of a public sector employer? That would include, for instance, a civil servant who leaks, such as Chris Galley. Anyone thinking of giving information to the Times must now assume it could appear on the front page. What, after all, is to stop this?
Which brings me to the Times's hypocrisy. If it's in the public interest for NightJack to be exposed - as the Times argued in court (see para. 19 of the judgment) - then it must be in the public interest to expose, rather than keep concealed, the identity of any public servant giving unauthorised information, say to a journalist. That would include not only police officers here in the UK but intelligence officials, judges and police officers in other countries such as Italy and France, and even civil servants in Iran who express political views to the press. Just to be clear, my previous sentence links to no less than ten stories in the Times and Sunday Times this year quoting anonymous police sources - I could have linked to more similar articles - plus four other stories which raise analogous issues involving other public sector sources here or abroad. According to the Times's argument in the NightJack case, it believes the public interest requires these sources to be named; yet it is clearly content to use such sources and protect them.
I don't doubt for a moment that the Times protects these sources because it thinks to do so is both ethical and in the public interest. But the NightJack case shows it is prepared to cast ethics and the public interest aside where they conflict with its own narrow commercial interest.
Professional journalists who work to these double standards don't deserve bloggers' respect.
Lords judgment: Home Secretary v AF
I said I'd write about the case; and now, finally, I am doing. Here's last week's judgment about control order. There's also the podcast I recorded with Charon QC about it, don't forget.
I must admit, I was surprised by this judgment: I wrote eighteen months ago about a similar case, also involving one of these appellants (AF), which at the time I thought had much the same result as last week's case - ruling that an appeal to SIAC from a control order is in breach of the right to a fair hearing if the case against the controllee is mainly based on secret material. It seems I was wrong in reading the case that way, because three of their Lordships who were involved in both cases - Lady Hale, Lord Carswell and Lord Brown - say that's not what they meant. Oh, well. I take comfort in the fact that they needed to explain that, and that Lady Hale admits that whatever it was she wanted to say in MB, she didn't say it clearly enough.
This time there can be no doubt the Lords have decided - nine of them, unanimously - that a controlee must be gven sufficient information about the allegations against him if his appeal to SIAC under the Prevention of Terrorism Act 2005 is to be fair. They were applying the European Court of Human Rights in A v UK, which laid down that principle in a case involving the legislation that preceded the 2005 Act - and which was ruled incompatible with Convention rights by the Lords in 2004.
I say the Lords were unanimous, and indeed they were: all agreed A v UK must be followed. But Lord Hoffmann said in terms that he thinks Strasbourg has got this wrong; I think he's right to say this if he thinks so, although I also think the logic of that is that he should also decline to follow Strasbourg - since the Human Rights Act only obliges him to take A v UK into account. His approach is interesting, though, and I especially liked the way he brought God into it (see paragraph 72). I have to say I have a fair amount of sympathy with him and with the Home Secretary's probable frustration with this ruling. While it is almost certainly safe to disclose more than the Home Office currently does (I reckon this is almost always true), there must also be a risk that disclosure will give away details of informants or of information that is not known to the security services, and so endanger lives.
The judgment certainly makes it difficult to maintain the current control orders regime. But I expect several further rounds of litigation. Why? Because to say that controlees must be told enough about the allegations against them to be able to instruct lawyers is not the same as saying exactly how much needs to be disclosed in order to achieve that. If the Home Office decides to make further disclosures, I expect controlees to claim the material is insufficient; and I think it would be cowardly for the Lords, or the Supreme Court as it will be by then, to decline to give clear guidance. If AF has to go back to them a third time, that will be bad enough; to risk his having to come a fourth time would be judicial irresponsibility.
One more thought: I'm not satisfied by the way the Lords have dealt with interpretation under section 3 of the Human Rights Act. In the original case I criticised them for this, but they seem not to be reading (why not?) because they've gone and made the same mistake again. Lord Scott is the only one of them (see para. 95) to consider whether the special advocate procedure and withholding of secret material might be a fundamental feature of the 2005 Act, and so not capable of being "read down". I don't think his approach is correct: he seems to think the language of the provisions determines how they must be read (which, though it sounds paradoxical, is the wrong approach according to the leading case, Ghaidan). And he allows the parties to decide the issue for him. But the others are surely wrong not even to think about the point.
I must admit, I was surprised by this judgment: I wrote eighteen months ago about a similar case, also involving one of these appellants (AF), which at the time I thought had much the same result as last week's case - ruling that an appeal to SIAC from a control order is in breach of the right to a fair hearing if the case against the controllee is mainly based on secret material. It seems I was wrong in reading the case that way, because three of their Lordships who were involved in both cases - Lady Hale, Lord Carswell and Lord Brown - say that's not what they meant. Oh, well. I take comfort in the fact that they needed to explain that, and that Lady Hale admits that whatever it was she wanted to say in MB, she didn't say it clearly enough.
This time there can be no doubt the Lords have decided - nine of them, unanimously - that a controlee must be gven sufficient information about the allegations against him if his appeal to SIAC under the Prevention of Terrorism Act 2005 is to be fair. They were applying the European Court of Human Rights in A v UK, which laid down that principle in a case involving the legislation that preceded the 2005 Act - and which was ruled incompatible with Convention rights by the Lords in 2004.
I say the Lords were unanimous, and indeed they were: all agreed A v UK must be followed. But Lord Hoffmann said in terms that he thinks Strasbourg has got this wrong; I think he's right to say this if he thinks so, although I also think the logic of that is that he should also decline to follow Strasbourg - since the Human Rights Act only obliges him to take A v UK into account. His approach is interesting, though, and I especially liked the way he brought God into it (see paragraph 72). I have to say I have a fair amount of sympathy with him and with the Home Secretary's probable frustration with this ruling. While it is almost certainly safe to disclose more than the Home Office currently does (I reckon this is almost always true), there must also be a risk that disclosure will give away details of informants or of information that is not known to the security services, and so endanger lives.
The judgment certainly makes it difficult to maintain the current control orders regime. But I expect several further rounds of litigation. Why? Because to say that controlees must be told enough about the allegations against them to be able to instruct lawyers is not the same as saying exactly how much needs to be disclosed in order to achieve that. If the Home Office decides to make further disclosures, I expect controlees to claim the material is insufficient; and I think it would be cowardly for the Lords, or the Supreme Court as it will be by then, to decline to give clear guidance. If AF has to go back to them a third time, that will be bad enough; to risk his having to come a fourth time would be judicial irresponsibility.
One more thought: I'm not satisfied by the way the Lords have dealt with interpretation under section 3 of the Human Rights Act. In the original case I criticised them for this, but they seem not to be reading (why not?) because they've gone and made the same mistake again. Lord Scott is the only one of them (see para. 95) to consider whether the special advocate procedure and withholding of secret material might be a fundamental feature of the 2005 Act, and so not capable of being "read down". I don't think his approach is correct: he seems to think the language of the provisions determines how they must be read (which, though it sounds paradoxical, is the wrong approach according to the leading case, Ghaidan). And he allows the parties to decide the issue for him. But the others are surely wrong not even to think about the point.
Saturday, 13 June 2009
Charon QC podcast: Home Secretary v AF
Charon interviewed me this morning about Wednesday's House of Lords judgment in Home Secretary v AF, in which they ruled, applying the ECtHR judgment in A v UK, that there is a breach of the article 6 Convention right in proceedings under the Prevention of Terrorism Act 2005 if a control order is imposed and, on appeal to the Special Immigration Appeals Commission a "controlee" is unable to effectively to challenge the order because the essence of the case against him is kept secret for reasons of national security.
I'll write about the judgment, probably tomorrow evening (apologies - work commitments have kept me away); in the meantime, listen to the podcast here.
I'll write about the judgment, probably tomorrow evening (apologies - work commitments have kept me away); in the meantime, listen to the podcast here.
Thursday, 4 June 2009
Reporting crime
I must post briefly on something that's annoyed me: George Alagiah just said, summarising the day's headlines on BBC News, that the murderers Sonnex and Farmer were sentenced to 40 and 35 years respectively. They weren't. They were sentenced to serve a minimum of 40 and of 35 years respectively. They could serve longer. I can understand the parents feeling even that's not enough, but it'd be great, wouldn't it, if broadcasters at least reported the sentences accurately.
UPDATE: I'm glad to say he got it right just before half past, saying they'd got "at least" 40 and 35 years.
UPDATE: I'm glad to say he got it right just before half past, saying they'd got "at least" 40 and 35 years.
Vodafone 2 v HMRC
I'm quite interested in the Court of Appeal's recent decision in this tax case, about Vodafone's attempt to structure its takeover of Mannesman in the most tax-efficient way, using a Luxembourg-registered holding company to take advantage of lower rates in that country. The issue was whether the British tax legislation on "controlled foreign companies", designed to enable the taxman to collect tax here in any event (minus the tax paid in Luxembourg) had to be disapplied as incompatible with EU law on freedom of establishment in the light of the ECJ's ruling in C-196/04 Cadbury-Schweppes. The Court decided it should not be disapplied, as it can be read consistently with EU obligations so long as an exception from British taxation is read in for genuine, economically active European companies rather than merely artificial arrangements. Quite interesting from a tax point of view.
More interesting from a broader public law perspective is the way the Court approaches its task of interpretation. In deciding it could properly read an exception in to the tax legislation, applying the EU Marleasing principle of consistent interpretation, ultimately as a result of section 2(4) of the European communities Act 1972, the Court was guided by the law on interpretation under section 3 of the Human Rights Act, the Chancellor Sir Andrew Morritt explaining (para. 41) that
The terms of that section are in substance the same as the terms of s.2(4) ECA 1972 although the consequence of an inability to find a conforming interpretation is a declaration of incompatibility not disapplication in the manner I have explained.
He must be right: the similarity of the two provisions was pointed out by Lord Steyn in the leading human rights interpretation case, Ghaidan, which is referred to in the judgment. In the early days of the Human Rights Act, lawyers would look to EU law on consistent interpretation to construct arguments about what was possible under section 3 of the Human Rights Act; now the analogy seems to be the other way.
More interesting from a broader public law perspective is the way the Court approaches its task of interpretation. In deciding it could properly read an exception in to the tax legislation, applying the EU Marleasing principle of consistent interpretation, ultimately as a result of section 2(4) of the European communities Act 1972, the Court was guided by the law on interpretation under section 3 of the Human Rights Act, the Chancellor Sir Andrew Morritt explaining (para. 41) that
The terms of that section are in substance the same as the terms of s.2(4) ECA 1972 although the consequence of an inability to find a conforming interpretation is a declaration of incompatibility not disapplication in the manner I have explained.
He must be right: the similarity of the two provisions was pointed out by Lord Steyn in the leading human rights interpretation case, Ghaidan, which is referred to in the judgment. In the early days of the Human Rights Act, lawyers would look to EU law on consistent interpretation to construct arguments about what was possible under section 3 of the Human Rights Act; now the analogy seems to be the other way.
Wednesday, 3 June 2009
Toying with the constitution
Chris Hawes at The Wardman Wire has written an excellent piece today on constitutional reform arguing against some of the fads of the moment, like proportional representation and fixed-term parliaments. I've already written about fixed terms; and I agree with him about PR, too. The right place for it in our system would be in the House of Lords. To have the Commons elected by PR would risk a politicians' politics of permanent coalition, in which MPs, not voters, choose who will govern, where we will be unable to sack the government, and where our influence over it will be smaller even than it is now. What PR can usefully do, though, is prevent the tyranny of the majority; that's why it's perfect for a revising and delaying chamber.
I'm not against all constitutional change. Devolution is a good thing, I think (although there is an English dimension yet to be resolved - I'd have only English/English & Welsh MPs voting on purely English/English & Welsh matters), and I back the Human Rights Act and freedom of information. I wouldn't oppose a bit more use of the referendum, open primaries for Parliamentary selection, or a recall mechanism as long as it's triggered by some independent finding of misconduct in office, rather than just political opposition. Tinkering is good.
But what Britain faces now is a political crisis, not a constitutional one, and politicians desperate to cling on to power should not be allowed to use it to toy with the constitution in their own narrow interests. If Alan Johnson is Prime Minister next week, he should not take that as any sort of mandate to bring in PR: that would be an obviously self-serving move from a Labour Party whose best hope of avoiding years or wilderness could be to offer this sacrifice, and coalition, to the LibDems.
Meanwhile, this week's Prime Minister has launched a laughable "Council on Democratic Renewal" which seems to consist of ministers themselves plus a few great and good invited speakers. The only purpose of this stunt is to allow Brown to pose as "ahead of the curve". It is the least democratic possible way to propose any reform, and this fag-packet "council" should meet as little as possible.
In particular, the suggestion Britain should have a written constitution is especially dangerous. It may be a superficially attractive idea: it sounds so "modern", doesn't it? But many people fail to realise it would mean a total constitutional revolution, abandoning what's long been the keystone of our democracy: Parliamentary sovereignty. In countries with written consitutions, it is that written document which is sovereign - not democratic institutions nor, ultimately, the people who elect them. In countries like the US and Germany it is unelected judges who determine policy on smoking bans, abortion and gun ownership; in the States, it's beyond doubt that Justice Scalia is one of the most powerful people in the country. Who elected him? It would be a disaster if Lord Phillips were as powerful here.
I'm a great admirer of the German and American constitutions, believe it or not: both countries had good reasons for adopting written consitutions at the moment they did, each is about as good a system as can be consciously devised by men, and each has stood the test of time. Americans are rightly proud of a system that has worked so well for two hundred years. But Britain's constitution in the 21st century should not be based on the political ideas of the eighteenth; nor do we need arrangements designed above all to prevent the return of fascist dictatorship. Our constitution has the advantage of having evolved over time - and it has indeed evolved since King and Parliament vied for power, a contest that's still built in to the American constitution's frozen music. We've moved on since then.
Parliamentary sovereignty is a good, soundly democratic principle. People here would miss it, and only realise what they had when it'd gone. Politicians should stop toying with the fundamentals of the constitution.
I'm not against all constitutional change. Devolution is a good thing, I think (although there is an English dimension yet to be resolved - I'd have only English/English & Welsh MPs voting on purely English/English & Welsh matters), and I back the Human Rights Act and freedom of information. I wouldn't oppose a bit more use of the referendum, open primaries for Parliamentary selection, or a recall mechanism as long as it's triggered by some independent finding of misconduct in office, rather than just political opposition. Tinkering is good.
But what Britain faces now is a political crisis, not a constitutional one, and politicians desperate to cling on to power should not be allowed to use it to toy with the constitution in their own narrow interests. If Alan Johnson is Prime Minister next week, he should not take that as any sort of mandate to bring in PR: that would be an obviously self-serving move from a Labour Party whose best hope of avoiding years or wilderness could be to offer this sacrifice, and coalition, to the LibDems.
Meanwhile, this week's Prime Minister has launched a laughable "Council on Democratic Renewal" which seems to consist of ministers themselves plus a few great and good invited speakers. The only purpose of this stunt is to allow Brown to pose as "ahead of the curve". It is the least democratic possible way to propose any reform, and this fag-packet "council" should meet as little as possible.
In particular, the suggestion Britain should have a written constitution is especially dangerous. It may be a superficially attractive idea: it sounds so "modern", doesn't it? But many people fail to realise it would mean a total constitutional revolution, abandoning what's long been the keystone of our democracy: Parliamentary sovereignty. In countries with written consitutions, it is that written document which is sovereign - not democratic institutions nor, ultimately, the people who elect them. In countries like the US and Germany it is unelected judges who determine policy on smoking bans, abortion and gun ownership; in the States, it's beyond doubt that Justice Scalia is one of the most powerful people in the country. Who elected him? It would be a disaster if Lord Phillips were as powerful here.
I'm a great admirer of the German and American constitutions, believe it or not: both countries had good reasons for adopting written consitutions at the moment they did, each is about as good a system as can be consciously devised by men, and each has stood the test of time. Americans are rightly proud of a system that has worked so well for two hundred years. But Britain's constitution in the 21st century should not be based on the political ideas of the eighteenth; nor do we need arrangements designed above all to prevent the return of fascist dictatorship. Our constitution has the advantage of having evolved over time - and it has indeed evolved since King and Parliament vied for power, a contest that's still built in to the American constitution's frozen music. We've moved on since then.
Parliamentary sovereignty is a good, soundly democratic principle. People here would miss it, and only realise what they had when it'd gone. Politicians should stop toying with the fundamentals of the constitution.
Tuesday, 2 June 2009
Mrinal Patel and the Fraud Act 2006
You may remember that last week Mrs. Patel appeared at Harrow Magistrates' Court; she's being prosecuted by Harrow Council under section 2 of the Fraud Act 2006, the accusation being that she gave a false address in order to get her son into a particular school. She's pleaded not guilty, and says she was genuinely living at her mother's at the relevant time.
First of all, aside from this particular case, let me say I have no difficulty in principle with this kind of prosecution. I can well imagine that parents do lie sometimes to gain places at desirable schools, and I disagree that merely rescinding the place is enough to tackle this. If that's all councils did about it, then parents who cheat would be no worse off for their cheating; you might as well cheat, because the very worst possible outcome would be the same as if you'd acted honestly in the first place. I wouldn't be at all happy with that, and (unpopular though it is at the moment) I'd much rather allow councils to use legal powers to investigate - if need be by surveillance - and prosecute any offences, than to see social advantage gained by lies. Because if you're relaxed about this sort of parental behaviour, it means you're relaxed about the fact that the children of honest parents are as a result sent to worse schools and perhaps worse lives. Compared to that injustice, the impact of councils' action on the civil liberties of a few parents is laughably insignificant.
But legally, I'm interested in the charge here. Under section 2, fraud is only committed if a false representation is made with intent to gain, or cause loss to another; and section 5 makes clear that means gain or loss in money or other property. To convict, then, in a case like this, the council must succeed in arguing that a school place is some sort of property (even assuming it can prove any false representation has been made in the first place, which Mrs. Patel denies of course). But is it? Property needn't be a tangible thing - copyright is a form of property, for instance - but it seems a stretch to see a school place as an enforceable right or entitlement akin to property. The alternative would be to argue that wrongly allocating a school place would somehow mean the council lost money - but surely it costs the same to allocate a place to one child as it does another.
No wonder there'll be legal argument at the hearing on 8 July.
First of all, aside from this particular case, let me say I have no difficulty in principle with this kind of prosecution. I can well imagine that parents do lie sometimes to gain places at desirable schools, and I disagree that merely rescinding the place is enough to tackle this. If that's all councils did about it, then parents who cheat would be no worse off for their cheating; you might as well cheat, because the very worst possible outcome would be the same as if you'd acted honestly in the first place. I wouldn't be at all happy with that, and (unpopular though it is at the moment) I'd much rather allow councils to use legal powers to investigate - if need be by surveillance - and prosecute any offences, than to see social advantage gained by lies. Because if you're relaxed about this sort of parental behaviour, it means you're relaxed about the fact that the children of honest parents are as a result sent to worse schools and perhaps worse lives. Compared to that injustice, the impact of councils' action on the civil liberties of a few parents is laughably insignificant.
But legally, I'm interested in the charge here. Under section 2, fraud is only committed if a false representation is made with intent to gain, or cause loss to another; and section 5 makes clear that means gain or loss in money or other property. To convict, then, in a case like this, the council must succeed in arguing that a school place is some sort of property (even assuming it can prove any false representation has been made in the first place, which Mrs. Patel denies of course). But is it? Property needn't be a tangible thing - copyright is a form of property, for instance - but it seems a stretch to see a school place as an enforceable right or entitlement akin to property. The alternative would be to argue that wrongly allocating a school place would somehow mean the council lost money - but surely it costs the same to allocate a place to one child as it does another.
No wonder there'll be legal argument at the hearing on 8 July.
Monday, 1 June 2009
Thoughts on Proposition 8
Last Tuesday, the California Supreme Court decided to uphold "Proposition 8", an amendment to the state's constitution passed by a referendum last November. Here's the opinion, and a press release summarising it. Proposition 8 amends the constitution so as to restrict marriage to opposite-sex couples; it was a response to last year's decision by the court giving gay couple a constitutional right to marry, and has successfully removed that right. Dick Carpenter at Volokh Conspiracy was among those who successfully predicted this outcome.
The arguments were as follows. First, it was said Proposition 8 was not valid as it amounted to a revision rather than a mere amendment to the state constitution. Second, it was argued equality is an inalienable right under the constitution, so that it can't be amended out, at least without some compelling public interest. Finally it was argued that the amendment violates the separation of powers doctrine fundamental to American constitutional thinking, by re-adjudicating, in effect, the issue that the court decided a year ago, i.e. whether gay couples have a constitutional right to marry. The 6-1 majority rejected all these arguments. Proposition 8 is indeed an amendment rather than a wholesale constitutional revision; the constitution's description of certain rights as inalienable does not preclude constitutional amendments to them; and the constitutional right of the people to amend the constitution does not usurp the function of the judiciary. However, Proposition 8 is prospective rather than retrospective, so that gay marriages entered into before in came into force remain valid.
I don't claim any expertise in the constitution of California, but the opinion looks to me obviously sound. If changing the rules on who can marry were a revision of the constitution, rather than an amendment, it raises serious questions about how the court could have gone so far as to revise the constitution last year. But anyway, the change is clearly not of such a scale. The other two grounds of challenge seem to me just to be ways of trying to defeat the clear constitutional provision provision for amendment by public initiative. From the point of view of a British public lawyer, anyway, the complaint seemed founded on hopeless creativity. Equally, the application of the interpretative presumption against retroactivity also seems unimpeachable.
I have a number of thoughts leading from this.
Let me make it clear I support gay marriage; in that sense, I'm sorry California will no longer allow it. But I'm glad the court has decided the way it has, firstly because I think it's legally correct, and secondly, because in general I think it's preferable for social changes like gay marriage to come in through the ballot-box and legislation, rather than through judicial decision. I can see that some advocates of minority rights might say my approach would mean slower progress in a liberal direction: cases like Roe v Wade achieved things that never would have come about by legislation. That's a strong point. My answer is that trusting in a written consitutions and in judges to interpret them may lead to Roe v Wade, but it may also lead to District of Columbia v Heller, which hardly represented progress. My preference is really just the traditional British preference for Parliamentary sovereignty and an unwritten consitution, two things that go together inseparably.
Second, some British writers (I'm thinking of Alastair Campbell) have criticised the opinion as though it shows California were somehow behind Britain in terms of gay unions - but I don't think that's right. California has already legislated for domestic partnerships. I realise they're not the same as marriage; but then British civil partnerships, although nearer to equality with marriage, aren't exactly the same either. California is ahead of us in simply having a debate about treating gay and straight couples equally in all respects.
Finally, I think this debate will come to us in the UK before long, and unfortunately it will come in the form of litigation. Wilson and Kitzinger may have failed in their attempt to have their Canadian marriage declared valid in the UK, but the European Convention on Human Rights is a "living instrument", to be interpreted in the light of changing social conditions - there is no Scalia-style originalism in Strasbourg. So the more European countries provide for gay marriages or recognise such marriages entered into abroad, the more difficult it will be for the UK to refuse recognition.
Finally, the unexploded, ticking bomb here is EU Directive 2004/38 on the free movement rights of EU citizens and their families. Look at articles 2, 3 and 4: they give an unconditional right of free movement within Europe not only to every EU citizen but to his or her spouse - a term which is undefined. But there can be no doubt that the parties to a same-sex marriage contracted in, say, the Netherlands, are spouses, not registered partners; and interpreting the Directive purposively and against the background of the general EU law principle of equal treatment, it seems to me impossible to read it in a way which excludes some spouses on the basis of their sex or sexuality. At some point, someone's same-sex spouse is going to establish the right of entry, say to a conservative country like Malta; and it will be clear that the UK, too, must recognise gay marriages as such, at least for EU law purposes.
The arguments were as follows. First, it was said Proposition 8 was not valid as it amounted to a revision rather than a mere amendment to the state constitution. Second, it was argued equality is an inalienable right under the constitution, so that it can't be amended out, at least without some compelling public interest. Finally it was argued that the amendment violates the separation of powers doctrine fundamental to American constitutional thinking, by re-adjudicating, in effect, the issue that the court decided a year ago, i.e. whether gay couples have a constitutional right to marry. The 6-1 majority rejected all these arguments. Proposition 8 is indeed an amendment rather than a wholesale constitutional revision; the constitution's description of certain rights as inalienable does not preclude constitutional amendments to them; and the constitutional right of the people to amend the constitution does not usurp the function of the judiciary. However, Proposition 8 is prospective rather than retrospective, so that gay marriages entered into before in came into force remain valid.
I don't claim any expertise in the constitution of California, but the opinion looks to me obviously sound. If changing the rules on who can marry were a revision of the constitution, rather than an amendment, it raises serious questions about how the court could have gone so far as to revise the constitution last year. But anyway, the change is clearly not of such a scale. The other two grounds of challenge seem to me just to be ways of trying to defeat the clear constitutional provision provision for amendment by public initiative. From the point of view of a British public lawyer, anyway, the complaint seemed founded on hopeless creativity. Equally, the application of the interpretative presumption against retroactivity also seems unimpeachable.
I have a number of thoughts leading from this.
Let me make it clear I support gay marriage; in that sense, I'm sorry California will no longer allow it. But I'm glad the court has decided the way it has, firstly because I think it's legally correct, and secondly, because in general I think it's preferable for social changes like gay marriage to come in through the ballot-box and legislation, rather than through judicial decision. I can see that some advocates of minority rights might say my approach would mean slower progress in a liberal direction: cases like Roe v Wade achieved things that never would have come about by legislation. That's a strong point. My answer is that trusting in a written consitutions and in judges to interpret them may lead to Roe v Wade, but it may also lead to District of Columbia v Heller, which hardly represented progress. My preference is really just the traditional British preference for Parliamentary sovereignty and an unwritten consitution, two things that go together inseparably.
Second, some British writers (I'm thinking of Alastair Campbell) have criticised the opinion as though it shows California were somehow behind Britain in terms of gay unions - but I don't think that's right. California has already legislated for domestic partnerships. I realise they're not the same as marriage; but then British civil partnerships, although nearer to equality with marriage, aren't exactly the same either. California is ahead of us in simply having a debate about treating gay and straight couples equally in all respects.
Finally, I think this debate will come to us in the UK before long, and unfortunately it will come in the form of litigation. Wilson and Kitzinger may have failed in their attempt to have their Canadian marriage declared valid in the UK, but the European Convention on Human Rights is a "living instrument", to be interpreted in the light of changing social conditions - there is no Scalia-style originalism in Strasbourg. So the more European countries provide for gay marriages or recognise such marriages entered into abroad, the more difficult it will be for the UK to refuse recognition.
Finally, the unexploded, ticking bomb here is EU Directive 2004/38 on the free movement rights of EU citizens and their families. Look at articles 2, 3 and 4: they give an unconditional right of free movement within Europe not only to every EU citizen but to his or her spouse - a term which is undefined. But there can be no doubt that the parties to a same-sex marriage contracted in, say, the Netherlands, are spouses, not registered partners; and interpreting the Directive purposively and against the background of the general EU law principle of equal treatment, it seems to me impossible to read it in a way which excludes some spouses on the basis of their sex or sexuality. At some point, someone's same-sex spouse is going to establish the right of entry, say to a conservative country like Malta; and it will be clear that the UK, too, must recognise gay marriages as such, at least for EU law purposes.
Thursday, 28 May 2009
Fixed-term Parliaments: not the answer
One of the strangest aspects of the MP's expenses scandal has been the way politicians have tried to move public discussion on to questions of sweeping constitutional reform. It seems to me it was the greed of MPs themselves - though not all of them, of course - and the laxness of the system they created for themselves, that caused this abuse of public funds, and that it was the attempt by some of them, including the Speaker, to cover up the abuse that has made public anger even worse. Nothing about it points to the need for deep constitutional reform.
That doesn't mean the ideas people are floating don't have merit: some of them certainly do.
But an idea I'm definitely not in favour of is one David Cameron has now said he'll consider: fixed-term Parliaments. The first thing to say about this is that it's entirely at odds with Cameron's desire for there to be a general election now. This contradiction in itself seems to me to make David Cameron's new suggestion laughable. But I'm not for it on its merits, either.
We already have fixed-term Parliaments in the sense that Parliament has a fixed maximum term, under the Septennial Act 1715 (a silly bit of drafting, that - surely the 1715 Act ought to have been repealed and replaced, rather than simply amended). Parliament lasts a maximum of five years. What the reformers mean of course is that the Prime Minister should no longer have power to ask the Queen for a dissolution within five years, or a shortened four-year term.
But if you applied that rule strictly, as in David Howarth's bill, then Parliament could not be dissolved (see clause 2(4)), and no new election could be held, even if a government lost its majority and was defeated in a vote of confidence. If the government resigned, a new administration would have to be formed by the opposition, or by a coalition of parties, without there being any possibility of the public having their say in a general election. Nothing could be less democratic. Britain would suffer either from lame-duck governments, staggering on but not governing, in a Parliament unable either to legislate or dissolve itself, or else from an even worse evil, changes of government without general elections. People complain enough about Gordon Brown becoming PM without holding an election soon after; what they'd say about getting David Cameron without an election, I don't know.
So, some people say, we must have an exception in the event of a government losing a confidence vote. In those circumstances, the PM would be able to ask for a dissolution. Well, all right. But then the government would simply be able to vote itself out of office, as Gerhard Schröder's red-green coalition did in Germany in 2005, whenever it thought an election convenient. The exception would ride a coach and horses through the rule.
So you can't really ensure power changes hands by elections, and remove the PM's power to cut and run. Is there anything in the idea simply of reducing Parliaments to four-year terms in place of the current five years? I don't think so. British government is short-termist enough as it is. I wouldn't want to exacerbate that problem by forcing a shorter time-horizon on it.
Really, what most people mean at the moment when they talk about fixed-term Parliaments is that they think after four years, this government's had it and they want an election now. Well, if people want Labour out, they need to vote for someone else on June 4 - and hope to force a crisis at the top of government. Or else simply wait for the chance to sack ministers next year.
What makes no sense is to say that the inability to force an early election on Gordon Brown now means we should remove the possibility of an early general election ever being held in future.
That doesn't mean the ideas people are floating don't have merit: some of them certainly do.
But an idea I'm definitely not in favour of is one David Cameron has now said he'll consider: fixed-term Parliaments. The first thing to say about this is that it's entirely at odds with Cameron's desire for there to be a general election now. This contradiction in itself seems to me to make David Cameron's new suggestion laughable. But I'm not for it on its merits, either.
We already have fixed-term Parliaments in the sense that Parliament has a fixed maximum term, under the Septennial Act 1715 (a silly bit of drafting, that - surely the 1715 Act ought to have been repealed and replaced, rather than simply amended). Parliament lasts a maximum of five years. What the reformers mean of course is that the Prime Minister should no longer have power to ask the Queen for a dissolution within five years, or a shortened four-year term.
But if you applied that rule strictly, as in David Howarth's bill, then Parliament could not be dissolved (see clause 2(4)), and no new election could be held, even if a government lost its majority and was defeated in a vote of confidence. If the government resigned, a new administration would have to be formed by the opposition, or by a coalition of parties, without there being any possibility of the public having their say in a general election. Nothing could be less democratic. Britain would suffer either from lame-duck governments, staggering on but not governing, in a Parliament unable either to legislate or dissolve itself, or else from an even worse evil, changes of government without general elections. People complain enough about Gordon Brown becoming PM without holding an election soon after; what they'd say about getting David Cameron without an election, I don't know.
So, some people say, we must have an exception in the event of a government losing a confidence vote. In those circumstances, the PM would be able to ask for a dissolution. Well, all right. But then the government would simply be able to vote itself out of office, as Gerhard Schröder's red-green coalition did in Germany in 2005, whenever it thought an election convenient. The exception would ride a coach and horses through the rule.
So you can't really ensure power changes hands by elections, and remove the PM's power to cut and run. Is there anything in the idea simply of reducing Parliaments to four-year terms in place of the current five years? I don't think so. British government is short-termist enough as it is. I wouldn't want to exacerbate that problem by forcing a shorter time-horizon on it.
Really, what most people mean at the moment when they talk about fixed-term Parliaments is that they think after four years, this government's had it and they want an election now. Well, if people want Labour out, they need to vote for someone else on June 4 - and hope to force a crisis at the top of government. Or else simply wait for the chance to sack ministers next year.
What makes no sense is to say that the inability to force an early election on Gordon Brown now means we should remove the possibility of an early general election ever being held in future.
R (Smith) v Defence Secretary: a judicial frolic
Since last week's judgment in Smith - in which the Court of Appeal ruled that the Human Rights Act, in particular article 2, applies to British troops even on the battlefield, I've been thinking about the judgment (one reason why I've not blogged for several days) and I'm troubled by it. The Court's conclusion - that British forces themselves are always personally within British jurisdiction, regardless of whether they're within an area subject to British authority, and are therefore protected by the ECHR from violations by the UK, including breaches of the right to life on the battlefield - may be vindicated one day in Strasbourg. I'm not sure. But the real puzzle here is why the Administrative Court and the Court of Appeal have thought fit to make such a ruling themselves in this case, and how they've come to the conclusion they have. The point is entirely hypothetical, and it's neither necessary nor desirable for the courts to rule on it now. They've departed from authority, too.
The case is about the death of Private Jason Smith, who died of heatstroke on a British base in Basra. He was not killed on the battlefield or in conflict. The government concedes that in these circumstances, the article 2 Convention right to life applied to him, based on the decisions of the ECtHR in Bankovic and the House of Lords in Al-Skeini. The UK is clearly has authority and control on UK bases abroad; therefore, the inquest into Private Smith's death should comply with the procedural requirement of an investigation following a death subject to article 2. So much was agreed in the Administrative Court - and you might think that was the end of the case.
But no. At first instance, Collins J was persuaded by counsel for Private Smith's mother to decide whether British forces enjoy Convention rights wherever they might be - even though on the facts of the case the point is entirely academic. He decided, in a poorly reasoned passage (paras. 7-20 of his judgment) that they do. I say "poorly reasoned" because, firstly, Collins J does not explain why he considers it desirable to answer the question; secondly because the parallels he draws with employment law (para. 16) and courts martial (para. 17) are not good ones. In the employment situation we are normally dealing with contracts subject to domestic law, and courts martial always necessarily take place where the UK military courts have authority.
It also seems to me his ruling on the point is wrong, and arguably per incuriam in that it's clearly at odds with the approach of the House of Lords in Al-Skeini. In that case the Lords, while divided on the scope of application of the Human Rights Act, unanimously took the view that it was wrong for a British court to extend the scope of application of the ECHR beyond what Strasbourg case-law clearly requires in a way that would affect other states. The best possible example of such a ruling would be to apply the ECHR on a personal basis to troops wherever they are in the world, even in conflict - as Collins J did. Extraordinarily, he cited Lord Rodger's speech in Al-Skeini in support of his approach, although it's clear that, at the relevant point in his speech (paras. 37-59) Lord Rodger was dealing with a different point, namely whether the Human Rights Act can apply at all in Iraq. It's quite clear that Lord Rodger's approach to Bankovic (paras. 60-81) does not support Collins J; on the contrary.
An unnecessary and bad decision, then. Yet the Court of Appeal has compounded the difficulty. Again, it cites Lord Rodger in Al-Skeini in support of its judgment, yet it ignores the key passage in his speech in which he rejected any extension of Strasbourg's essentially territorial approach to the application of the Convention. The Court of Appeal considers itself bound by Lord Brown's analysis of Bankovic (see para. 21 of the Court of Appeal's judgment) at para. 109 of his speech, yet it ignores paras. 105-107 and 127-129 of his speech, which clearly reject anything other than a narrow, territorial approach to jurisdiction. The Court of Appeal's support for a personal basis of jurisdiction simply cannot be reconciled with the clear reasoning of the House of Lords in Al-Skeini; and in the face of that authority it is simply not good enough for the Court of Appeal to say it is answering the relevant questions in a broad and commonsense way (para. 28). The resort to that kind of justification in itself demonstrates that the Court of Appeal has fallen well below the level of legal analysis required.
And quite apart from the bad legal analysis both courts have relied on, the utterly absurd nature of this judicial exercise is shown by paragraph 27 of its judgment, in which the Court says it is assuming for the purposes of its judgment that Private Smith - contrary to the true facts - died outside a British base.
The upshot is that we have a badly-reasoned, wrong appeal ruling on a purely hypothetical legal point which has never actually arisen. Nothing could be more Dickensian. This is an unjustified, wrong-headed judicial frolic, and I hope the Lords puts the genie back in its box. The question whether troops are entitled to human rights protection in battle should be settled when a real case arises, and preferably in Strasbourg.
Something else I've been thinking about is the precedent value of the Court of Appeal's judgment as it stands, pending the Lords appeal. I've already said I think it may be per incuriam; if I'm right about that, it's no precedent at all. Some might say the per incuriam rule doesn't strictly apply, as the Court was neither ignorant nor forgetful of Al Skeini but purported, however wrongly, to apply it. Fair enough. In any event, though, as was once written by Professor Llewellyn (as cited in Cross and Harris's Precedent in English Law):
There is a distinction between the ratio decidendi, the court's own version of the rule of the case, and the true rule of the case, to wit what it will be made to stand for by another later court.
And as the editors of that book say on the previous page:
There are... many instances in which the rule of law forming the basis of a decision ceases to be the rule of law for which the case is binding authority because judges in later cases have... [interpreted]... the decision in the light of the facts of the case and other relevant judgments. .... The process of interpretation is most likely to occur when the original ratio decidendi was a wide one for, to quite Professor Glanville Williams, "Courts do not accord to their predecessors an unlimited power of laying down wide rules".
No doubt the Court of Appeal's version of its own ratio is the wide rule that British troops are always personally subject to the ECHR; in the light of the facts of the case itself and all other applicable authorities, however, that simply cannot be maintained as the true rule of the case. Before the House of Lords rules, and with any luck reverses it, the wide rule laid down in the appeal judgment should not be followed.
The case is about the death of Private Jason Smith, who died of heatstroke on a British base in Basra. He was not killed on the battlefield or in conflict. The government concedes that in these circumstances, the article 2 Convention right to life applied to him, based on the decisions of the ECtHR in Bankovic and the House of Lords in Al-Skeini. The UK is clearly has authority and control on UK bases abroad; therefore, the inquest into Private Smith's death should comply with the procedural requirement of an investigation following a death subject to article 2. So much was agreed in the Administrative Court - and you might think that was the end of the case.
But no. At first instance, Collins J was persuaded by counsel for Private Smith's mother to decide whether British forces enjoy Convention rights wherever they might be - even though on the facts of the case the point is entirely academic. He decided, in a poorly reasoned passage (paras. 7-20 of his judgment) that they do. I say "poorly reasoned" because, firstly, Collins J does not explain why he considers it desirable to answer the question; secondly because the parallels he draws with employment law (para. 16) and courts martial (para. 17) are not good ones. In the employment situation we are normally dealing with contracts subject to domestic law, and courts martial always necessarily take place where the UK military courts have authority.
It also seems to me his ruling on the point is wrong, and arguably per incuriam in that it's clearly at odds with the approach of the House of Lords in Al-Skeini. In that case the Lords, while divided on the scope of application of the Human Rights Act, unanimously took the view that it was wrong for a British court to extend the scope of application of the ECHR beyond what Strasbourg case-law clearly requires in a way that would affect other states. The best possible example of such a ruling would be to apply the ECHR on a personal basis to troops wherever they are in the world, even in conflict - as Collins J did. Extraordinarily, he cited Lord Rodger's speech in Al-Skeini in support of his approach, although it's clear that, at the relevant point in his speech (paras. 37-59) Lord Rodger was dealing with a different point, namely whether the Human Rights Act can apply at all in Iraq. It's quite clear that Lord Rodger's approach to Bankovic (paras. 60-81) does not support Collins J; on the contrary.
An unnecessary and bad decision, then. Yet the Court of Appeal has compounded the difficulty. Again, it cites Lord Rodger in Al-Skeini in support of its judgment, yet it ignores the key passage in his speech in which he rejected any extension of Strasbourg's essentially territorial approach to the application of the Convention. The Court of Appeal considers itself bound by Lord Brown's analysis of Bankovic (see para. 21 of the Court of Appeal's judgment) at para. 109 of his speech, yet it ignores paras. 105-107 and 127-129 of his speech, which clearly reject anything other than a narrow, territorial approach to jurisdiction. The Court of Appeal's support for a personal basis of jurisdiction simply cannot be reconciled with the clear reasoning of the House of Lords in Al-Skeini; and in the face of that authority it is simply not good enough for the Court of Appeal to say it is answering the relevant questions in a broad and commonsense way (para. 28). The resort to that kind of justification in itself demonstrates that the Court of Appeal has fallen well below the level of legal analysis required.
And quite apart from the bad legal analysis both courts have relied on, the utterly absurd nature of this judicial exercise is shown by paragraph 27 of its judgment, in which the Court says it is assuming for the purposes of its judgment that Private Smith - contrary to the true facts - died outside a British base.
The upshot is that we have a badly-reasoned, wrong appeal ruling on a purely hypothetical legal point which has never actually arisen. Nothing could be more Dickensian. This is an unjustified, wrong-headed judicial frolic, and I hope the Lords puts the genie back in its box. The question whether troops are entitled to human rights protection in battle should be settled when a real case arises, and preferably in Strasbourg.
Something else I've been thinking about is the precedent value of the Court of Appeal's judgment as it stands, pending the Lords appeal. I've already said I think it may be per incuriam; if I'm right about that, it's no precedent at all. Some might say the per incuriam rule doesn't strictly apply, as the Court was neither ignorant nor forgetful of Al Skeini but purported, however wrongly, to apply it. Fair enough. In any event, though, as was once written by Professor Llewellyn (as cited in Cross and Harris's Precedent in English Law):
There is a distinction between the ratio decidendi, the court's own version of the rule of the case, and the true rule of the case, to wit what it will be made to stand for by another later court.
And as the editors of that book say on the previous page:
There are... many instances in which the rule of law forming the basis of a decision ceases to be the rule of law for which the case is binding authority because judges in later cases have... [interpreted]... the decision in the light of the facts of the case and other relevant judgments. .... The process of interpretation is most likely to occur when the original ratio decidendi was a wide one for, to quite Professor Glanville Williams, "Courts do not accord to their predecessors an unlimited power of laying down wide rules".
No doubt the Court of Appeal's version of its own ratio is the wide rule that British troops are always personally subject to the ECHR; in the light of the facts of the case itself and all other applicable authorities, however, that simply cannot be maintained as the true rule of the case. Before the House of Lords rules, and with any luck reverses it, the wide rule laid down in the appeal judgment should not be followed.
Monday, 18 May 2009
The Speaker: wholly inadequate
The Speaker's statement today was an embarrassing affair: he read an apology to the public over MPs' expenses, saying words that seemed not to come from his heart. He then said he'd act by summoning yet another meeting, weeks if not months too late, before proceeding to ignore entirely the issue of his own future. In responding to members' points of order - no actual questions being permitted - he chose to hide behind procedures, saying Douglas Carswell MP's motion of confidence in him could not be debated because technically it's an "early day motion".
I thought he should have resigned a year ago when he refused to allow debate on his own decision to appeal the Information Tribunal's decision on - guess what - MPs' expenses. Since then, he's blamed the Serjeant-at-Arms for the search of Damian Green's office in a cowardly statement in December, and he's called the police in, not to investigate MPs but, incredibly, the leak to the Daily Telegraph. It was clear this morning that he is not the person to lead the Commons out of this awful expenses affair, and that he's lost the confidence of many members. But now his shocking performance this afternoon has made his departure inevitable.
The statement was wholly inadequate. Martin is too small for this job, especially now, and surely must go. If he has any sense he'll resign before he's defenestrated.
I thought he should have resigned a year ago when he refused to allow debate on his own decision to appeal the Information Tribunal's decision on - guess what - MPs' expenses. Since then, he's blamed the Serjeant-at-Arms for the search of Damian Green's office in a cowardly statement in December, and he's called the police in, not to investigate MPs but, incredibly, the leak to the Daily Telegraph. It was clear this morning that he is not the person to lead the Commons out of this awful expenses affair, and that he's lost the confidence of many members. But now his shocking performance this afternoon has made his departure inevitable.
The statement was wholly inadequate. Martin is too small for this job, especially now, and surely must go. If he has any sense he'll resign before he's defenestrated.
Thursday, 14 May 2009
Charon QC podcast: MPs' expenses and the Speaker
Charon interviewed me today about the MPs' offences scandal - including potential criminal liability under the Fraud Act 2006 - and about the Speaker's decision to call in the police, not to investigate MPs' claims but astonishingly to investigate the leak to the Telegraph. Listen to the podcast here.
Subscribe to:
Posts (Atom)
