I've been planning a move to Wordpress for some time - and to a new domain, headoflegal.com. It's not perfect, but it is good enough now I think to tell you about the move, and make the change now it's August.
It feels like moving home - it is moving home in a way. I'm very sad to leave this old blogspot place behind, and you may be as fond of it as I am. Possibly. But new is good, onwards and upwards, all that. I know the new site looks a little bit stark at the moment - again, it feels like an empty house, even though all your comments are there. But it will develop over the coming weeks and months. I hope you like it.
The logic behind the move is to be on a "platform" that will allow me more flexibility in future, as well as generally to be more souped up. You'll see the new site gives a bit more info about me, for instance, which I'm egotistical enough to think you might want. I quite like the new logo too, what I designed myself.
I'll be posting at headoflegal.com from now on, not here - so please change your RSS feeds!
Wednesday, 5 August 2009
Tuesday, 4 August 2009
Ballots, figures and the right to strike
Last week's Court of Appeal judgment in Metrobus v UNITE must make frustrating reading for the union's officials: it upholds King J's grant of an injunction preventing bus drivers from striking in Croydon, Crawley and Orpington last autumn on the basis, firstly that UNITE had not promptly informed Metrobus of the result of its strike ballot, and secondly that its strike notice did not give Metrobus sufficient information to work out how many drivers at each depot would be called out.
Three arguments had persuaded King J to grant the injunction. First, although the strike ballot had closed at noon on 1st September, a mix-up between UNITE and Electoral Reform Services involving a missing fax was at least in part the cause of the union's only telling Metrobus the outcome almost 48 hours later. That was too long. Second, the union's correspondence did not properly explain how it arrived at its figures for how many drivers would be called out from which depots - although the Court of Appeal judges all disagreed about how the relevant legislation applied, the majority ruled that insufficient explanation was given. I expect unions are already drawing up guidance for officials about how to comply with this I think quite demanding requirement. The only point on which the majority in the Court of Appeal disagreed with King J was the importance of a statistical typing error - a UNITE secretary, Sandra Evans, had at one point typed 766 instead of 776. The Court of Appeal, surely rightly, thought this error far too trivial to justify an injunction.
The other interesting point about the case is that the Court of Appeal saw all the relevant legislation as compatible with the article 11 Convention right to join a trade union.
Three arguments had persuaded King J to grant the injunction. First, although the strike ballot had closed at noon on 1st September, a mix-up between UNITE and Electoral Reform Services involving a missing fax was at least in part the cause of the union's only telling Metrobus the outcome almost 48 hours later. That was too long. Second, the union's correspondence did not properly explain how it arrived at its figures for how many drivers would be called out from which depots - although the Court of Appeal judges all disagreed about how the relevant legislation applied, the majority ruled that insufficient explanation was given. I expect unions are already drawing up guidance for officials about how to comply with this I think quite demanding requirement. The only point on which the majority in the Court of Appeal disagreed with King J was the importance of a statistical typing error - a UNITE secretary, Sandra Evans, had at one point typed 766 instead of 776. The Court of Appeal, surely rightly, thought this error far too trivial to justify an injunction.
The other interesting point about the case is that the Court of Appeal saw all the relevant legislation as compatible with the article 11 Convention right to join a trade union.
Friday, 31 July 2009
Charon QC podcast: Lord Falconer on assisted dying and the Supreme Court
Earlier this week Charon interviewed Lord Falconer about his attempt to amend the law to legalise assisted suicide in some cases - they also discussed the new Supreme Court. It's a good listen, timed perfectly for this week with the Purdy judgment being the Law Lords' last.
You can hear the podcast here.
You can hear the podcast here.
Debbie Purdy, the Lords and assisted suicide: the easy way out?
I've been slow in reacting to the Lords' final judgment yesterday in R (Purdy) v DPP, partly because I was in Cambridge, but partly because I've been worrying at the judgment since I heard the news reports yesterday, and even more so since I read it. I've been worrying about what's wrong with it. Because I think something is wrong, though I admit I've not found it easy to pin down.
For the avoidance of any doubt, let me make it clear that I'm very sympathetic to Debbie Purdy, am in favour of legalising assisted suicide in some circumstances in this country, was attracted by Lord Falconer's recent attempt to amend the law and wish it had succeeded. Charon interviewed Lord Falconer about it earlier this week. But none of that means I think the Law Lords have reached the right legal solution in the case before them yesterday; in fact I think the ruling is a classic fudge which conveniently takes the pressure off Parliament and government - and off the judges themselves - in this morally contested area.
The essence of the judgment is that the legal uncertainty facing Debbie Purdy and her husband - could he be prosecuted after her death if he helps her end her life in Switzerland? - is a breach of her Convention right to respect for private life, a breach which can be remedied by a policy statement by the DPP. The offence of assisting suicide in section 2(1) of the Suicide Act 1961, which creates a blanket ban in all circumstances, interferes with the article 8 Convention right, as held by the European Court of Human Rights in Pretty v UK; although in that case the ECtHR ruled the ban does not breach article 8, because justified, it did not consider whether the ban was "in accordance with the law". But (see Lord Hope's speech at paras. 40-53) the offence does not meet that requirement since in the absence of detailed, specific guidance from the DPP, you cannot regulate your behaviour so as to be confident of avoiding prosecution.
It hangs together reasonably well, this analysis. The analysis of Debbie Purdy's uncertainty in terms of the principle of legality is seductive. But if the blanket ban in the Suicide Act does not meet the Convention test of legality, then the Suicide Act itself must be contrary to article 8. How can the uncertainty caused by the breadth of the law be cured by intervention from the DPP? He is no legislator. Nor does he have power to change the law. As their Lordships stressed more than once, their judgment does not purport to alter the law.
Not do I think their Lordships' human rights analysis was really about uncertainty - at least, not uncertainty alone. Underlying the speeches is an assumption - in my view a correct assumption - that there are some circumstances which may be criminalised by the Suicide Act, read on its face, but where prosecution would breach article 8. See for instance paragraphs 59 and 68 in Lady Hale's speech, and paragraph 74 in Lord Brown's. It is inconceivable that the Lords think the DPP's guidance might say he will prosecute every case including Debbie Purdy's husband, yet if the only issue really is uncertainty that might be a lawful outcome. The truth, surely, is that the Lords see the broad ban on the face of the Suicide Act as problematic in its substance.
Once you are of the view that section 2(1) on its face goes too wide and would breach article 8 if so widely enforced, then in terms of the Human Rights Act the alternatives are as follows. Either it is a fundamental feature of the legislation that it should criminalise conduct so broadly - in which case the legislation itself is incompatible with article 8, and the Lords could make a declaration to that effect. Otherwise, the provision can and must be read down under section 3 so as to be compatible with article 8. But none of their Lordships talked of possible incompatibility at all, or even considered section 3. Why not?
Had the Lords ruled the Suicide Act incompatible with article 8, they'd have set off a political and moral storm. The Act would have remained untouched; Debbie Purdy would have remained in the same position; Parliament would have been forced to confront the possibility of doing something. It would have been brave of the Lords, since it would be obvious they disagreed with the ECtHR which ruled the Suicide Act complies with article 8. They do disagree with it anyway, of course, because they say the ECtHR missed the "accordance with law" trick.
Had the Lords read the Suicide Act down, saying section 2(1) does not apply in Debbie Purdy's situation, that would have been brave, too: there'd have been a storm of criticism that the Lords were legislating rather than interpreting law, usurping Parliament's functions and indulging in unwarranted judicial activism. But that approach would seem to me perfectly defensible in terms of the Human Rights Act. If Parliament disagreed, it could amend the Suicide Act to restore its breadth.
But they've preferred a "third way". I think the Lords were faced here with a situation in which their judgment might have had dramatic ramifications: but they've avoided them by alighting on an easy way out. Just as Parliament is afraid of this issue and would prefer it to be sorted out by judges, so the judges have shown themselves nervous of it too. And rather than smash the ball back into Parliament's court, which I think a more rigorous application of the Human Rights Act would have required - whether or not their Lordships felt able to read the Suicide Act down - the judges have preferred to pass the moral parcel to the DPP, who is, in reality, given the task of coming up with new and better legislation. In doing so he will conveniently relieve the judges of the awkward task of interpreting the law clearly, and Parliament of the awkward task of revising it.
It'll be interesting to see whether the DPP's guidance will itself be challenged: that'd be a good thing as it would shift the focus where I think it should be, on what substantive law we need in this area. If on the other hand the DPP manages to come up with a policy no one wants to challenge, he'll have performed his part brilliantly in what may be the very best kind of establishment fudge.
Some of their Lordships considered the fundamental question whether it's an offence at all to do anything in England to assist a suicide that will take place abroad; Lord Phillips even considered whether assisting a suicide abroad might be murder in the law of England and Wales. Those seem to me important questions that I wish their Lordships had invited argument on and decided - again, their reluctance to do so was understandable, but arguably showed a lack of courage.
The Purdy judgment worries me. In finding a way of seeming not to change the law, the Lords has indirectly wished such a change into being by handing inappropriate power to an official. It's cleverly avoided apparent politicisation, and come up with a way forward that might suit if not everyone, then many people including Parliament and government. There's a good case for judges being braver, more naively legalistic and less politically sensitive than this. I fear a bench with such political nous.
For the avoidance of any doubt, let me make it clear that I'm very sympathetic to Debbie Purdy, am in favour of legalising assisted suicide in some circumstances in this country, was attracted by Lord Falconer's recent attempt to amend the law and wish it had succeeded. Charon interviewed Lord Falconer about it earlier this week. But none of that means I think the Law Lords have reached the right legal solution in the case before them yesterday; in fact I think the ruling is a classic fudge which conveniently takes the pressure off Parliament and government - and off the judges themselves - in this morally contested area.
The essence of the judgment is that the legal uncertainty facing Debbie Purdy and her husband - could he be prosecuted after her death if he helps her end her life in Switzerland? - is a breach of her Convention right to respect for private life, a breach which can be remedied by a policy statement by the DPP. The offence of assisting suicide in section 2(1) of the Suicide Act 1961, which creates a blanket ban in all circumstances, interferes with the article 8 Convention right, as held by the European Court of Human Rights in Pretty v UK; although in that case the ECtHR ruled the ban does not breach article 8, because justified, it did not consider whether the ban was "in accordance with the law". But (see Lord Hope's speech at paras. 40-53) the offence does not meet that requirement since in the absence of detailed, specific guidance from the DPP, you cannot regulate your behaviour so as to be confident of avoiding prosecution.
It hangs together reasonably well, this analysis. The analysis of Debbie Purdy's uncertainty in terms of the principle of legality is seductive. But if the blanket ban in the Suicide Act does not meet the Convention test of legality, then the Suicide Act itself must be contrary to article 8. How can the uncertainty caused by the breadth of the law be cured by intervention from the DPP? He is no legislator. Nor does he have power to change the law. As their Lordships stressed more than once, their judgment does not purport to alter the law.
Not do I think their Lordships' human rights analysis was really about uncertainty - at least, not uncertainty alone. Underlying the speeches is an assumption - in my view a correct assumption - that there are some circumstances which may be criminalised by the Suicide Act, read on its face, but where prosecution would breach article 8. See for instance paragraphs 59 and 68 in Lady Hale's speech, and paragraph 74 in Lord Brown's. It is inconceivable that the Lords think the DPP's guidance might say he will prosecute every case including Debbie Purdy's husband, yet if the only issue really is uncertainty that might be a lawful outcome. The truth, surely, is that the Lords see the broad ban on the face of the Suicide Act as problematic in its substance.
Once you are of the view that section 2(1) on its face goes too wide and would breach article 8 if so widely enforced, then in terms of the Human Rights Act the alternatives are as follows. Either it is a fundamental feature of the legislation that it should criminalise conduct so broadly - in which case the legislation itself is incompatible with article 8, and the Lords could make a declaration to that effect. Otherwise, the provision can and must be read down under section 3 so as to be compatible with article 8. But none of their Lordships talked of possible incompatibility at all, or even considered section 3. Why not?
Had the Lords ruled the Suicide Act incompatible with article 8, they'd have set off a political and moral storm. The Act would have remained untouched; Debbie Purdy would have remained in the same position; Parliament would have been forced to confront the possibility of doing something. It would have been brave of the Lords, since it would be obvious they disagreed with the ECtHR which ruled the Suicide Act complies with article 8. They do disagree with it anyway, of course, because they say the ECtHR missed the "accordance with law" trick.
Had the Lords read the Suicide Act down, saying section 2(1) does not apply in Debbie Purdy's situation, that would have been brave, too: there'd have been a storm of criticism that the Lords were legislating rather than interpreting law, usurping Parliament's functions and indulging in unwarranted judicial activism. But that approach would seem to me perfectly defensible in terms of the Human Rights Act. If Parliament disagreed, it could amend the Suicide Act to restore its breadth.
But they've preferred a "third way". I think the Lords were faced here with a situation in which their judgment might have had dramatic ramifications: but they've avoided them by alighting on an easy way out. Just as Parliament is afraid of this issue and would prefer it to be sorted out by judges, so the judges have shown themselves nervous of it too. And rather than smash the ball back into Parliament's court, which I think a more rigorous application of the Human Rights Act would have required - whether or not their Lordships felt able to read the Suicide Act down - the judges have preferred to pass the moral parcel to the DPP, who is, in reality, given the task of coming up with new and better legislation. In doing so he will conveniently relieve the judges of the awkward task of interpreting the law clearly, and Parliament of the awkward task of revising it.
It'll be interesting to see whether the DPP's guidance will itself be challenged: that'd be a good thing as it would shift the focus where I think it should be, on what substantive law we need in this area. If on the other hand the DPP manages to come up with a policy no one wants to challenge, he'll have performed his part brilliantly in what may be the very best kind of establishment fudge.
Some of their Lordships considered the fundamental question whether it's an offence at all to do anything in England to assist a suicide that will take place abroad; Lord Phillips even considered whether assisting a suicide abroad might be murder in the law of England and Wales. Those seem to me important questions that I wish their Lordships had invited argument on and decided - again, their reluctance to do so was understandable, but arguably showed a lack of courage.
The Purdy judgment worries me. In finding a way of seeming not to change the law, the Lords has indirectly wished such a change into being by handing inappropriate power to an official. It's cleverly avoided apparent politicisation, and come up with a way forward that might suit if not everyone, then many people including Parliament and government. There's a good case for judges being braver, more naively legalistic and less politically sensitive than this. I fear a bench with such political nous.
Wednesday, 29 July 2009
McDougal v Liverpool City Council
Liverpool City council has claimed that the population of the city has now stabilised after decades of decline - but this case last week shows the effects of that decline still cause problems, as the Council had to decide which of a number of schools to close. It also shows the limitations of judicial review and human rights, which are not necessarily the trump cards local campaigners sometimes hope.
The Council decided to close the worst-performing of its city-centre schools to deal with a surplus of school places; that also happened to be a non-religious school. After the closure, the area would be left with only one such school, together with boys' and girls' Catholic schools. The legal complaint was, firstly that the Council erred in assuming it could not get government funding for a plan including a future for the closed school; and secondly, whether the closure breached human rights - the right not to be discriminated against, and the rights to an education.
Silber J dismissed the claim. The Council was right to assume it could not get government funding to include the school; and in so far as human rights law applied, the decision to close was justified.
Judicial review and human rights can look like extremely powerful weapons in some types of case: in individual cases for instance about the treatment of an individual prisoner, say (although campaigners for prisoners' rights will be very aware of the limitations of public law). In challenging "polycentric", strategic decisions such as which of several schools to close, however - decisions involving the allocation of scarce public resources - judicial review is more difficult.
The Council decided to close the worst-performing of its city-centre schools to deal with a surplus of school places; that also happened to be a non-religious school. After the closure, the area would be left with only one such school, together with boys' and girls' Catholic schools. The legal complaint was, firstly that the Council erred in assuming it could not get government funding for a plan including a future for the closed school; and secondly, whether the closure breached human rights - the right not to be discriminated against, and the rights to an education.
Silber J dismissed the claim. The Council was right to assume it could not get government funding to include the school; and in so far as human rights law applied, the decision to close was justified.
Judicial review and human rights can look like extremely powerful weapons in some types of case: in individual cases for instance about the treatment of an individual prisoner, say (although campaigners for prisoners' rights will be very aware of the limitations of public law). In challenging "polycentric", strategic decisions such as which of several schools to close, however - decisions involving the allocation of scarce public resources - judicial review is more difficult.
Awards, polls and all that
I'm delighted to say that LawMinx has awarded me one of her "blawggies" for being even better than Melvyn Bragg, which is very nice indeed. I have to thank Blogger (even though I'm going to desert them as soon as I can work Thesis for Wordpress), Gray's Inn library, my agent, my parents, my toy cat and you, dear reader.
While I'm self-indulgently on distinctions for this blog, let me also remind you about the TotalPolitics Best Blogs Poll, which closes at the end of this week - feel free to put Head of Legal on your list.
While I'm self-indulgently on distinctions for this blog, let me also remind you about the TotalPolitics Best Blogs Poll, which closes at the end of this week - feel free to put Head of Legal on your list.
Tuesday, 28 July 2009
Lord Lester: my life as a goat
Lord Lester, writing in the Guardian today, explains why he resigned as the government's independent adviser on constitutional change. I have some sympathy for Lord Lester - he had the experience (that many civil servants have had) of finding out his role and position was in reality quite different from the one he was offered, and of discovering that ministers were not so committed to constitutional change as he'd thought. But I see it through different lenses. While I agree with a number of Lord Lester's ideas, I certainly don't agree with all of them: I think a War Powers Act is unnecessary; I do not share the fashionable view that the Attorney General's role must be significantly reformed; and I think adopting a written constitution would be a historic blunder.
I see this as a story of constitutional whimmery, alighted on by a new Prime Minister in search of purpose - a whimmery that has slowly retreated as the relative sense of Jack Straw, Baroness Scotland and their allies have won the arguments. Two things Lord Lester says I agree strongly with, however.
First, he's right that the Consitutional Reform and Governance Bill is "a mouse". I said it was watered down to a homeopathic degree. Second, he's right to say that the government has no mandate for constitutional reform. That does raise the question of what Lord Lester thought he was doing pressing it to make radical changes, and why he says it had the "opportunity of a generation" - but in any case, I'm glad it's given up on the more controversial, less sensible of its earlier ideas.
By the way, I find one of the things Lord Lester says a little mysterious. He talks of
a modern democratic system of government... and a new constitutional framework... That would strengthen... our bargaining position within the EU.
I'm not sure how he thinks constitutional reform could strengthen our hand in European negotiations, unless he means the UK should have compulsory referenda for all new EU treaties - as Ireland does.
I see this as a story of constitutional whimmery, alighted on by a new Prime Minister in search of purpose - a whimmery that has slowly retreated as the relative sense of Jack Straw, Baroness Scotland and their allies have won the arguments. Two things Lord Lester says I agree strongly with, however.
First, he's right that the Consitutional Reform and Governance Bill is "a mouse". I said it was watered down to a homeopathic degree. Second, he's right to say that the government has no mandate for constitutional reform. That does raise the question of what Lord Lester thought he was doing pressing it to make radical changes, and why he says it had the "opportunity of a generation" - but in any case, I'm glad it's given up on the more controversial, less sensible of its earlier ideas.
By the way, I find one of the things Lord Lester says a little mysterious. He talks of
a modern democratic system of government... and a new constitutional framework... That would strengthen... our bargaining position within the EU.
I'm not sure how he thinks constitutional reform could strengthen our hand in European negotiations, unless he means the UK should have compulsory referenda for all new EU treaties - as Ireland does.
The Northern Rock case in the Court of Appeal
The Court of Appeal has given judgment today in SRM Global Master Fund v HM Treasury - the human rights challenge by Northern Rock shareholders to the government's compensation scheme on nationalisation.
The complaint was based on the article 1 Protocol 1 Convention right to protection of property. The system for calculating compensation, so the argument went, was set up under section 5(4) of the Banking (Special Provisions) Act 2008 in such a way that shareholders were bound to receive nothing or virtually nothing from the government - even though Northern Rock still had considerable assets. This, it was argued, failed to strike the fair balance required by article 1 of Protocol 1 between the private rights of the shareholders, and the public interest.
Laws LJ giving the lead judgment rejects the argument entirely, I'm glad to say. He accepts that the shares were in truth worthless in the absence of government support; or at least, Parliament was entitled to take that view within the margin of discretion allowed to it under human rights law. Its approach was certainly not "manifestly without reasonable foundation".
I have two thoughts about this judgment, apart from the fact that it's obviously right. First, although I have no problem with the idea that companies enjoy Convention rights, and it's important to recognise that this case involved small shareholders as well as hedge funds, there is a certain absurdity in the idea of a hedge fund based in the Cayman Islands claiming its human rights have been violated. It's the kind of claim that brings human rights into disrepute.
Second, this is a prime example of the kind of case which shows how unfair it could be, and how contrary to the public interest, if the government's legal advice, such as Law Officers' advice, were unilaterally published. It would mean that SRM Global Master Fund was at a distinct advantage in the case, in that it would be able to supplement its arguments with points it may not have thought of, but which the government had considered; and it would be able to focus its arguments on points which the government, in writing, had admitted were the most doubtful parts of its case. It would be very difficult for the government to argue convincingly for a particular proposition - even if it believed it to be right - if the court had in front of it papers showing some government lawyers had doubts about the point. All this would skew the case in favour of the hedge fund: I say unfairly, because they might know their own case was pathetically weak in its entirety, but would not be forced into any such disclosure.
The complaint was based on the article 1 Protocol 1 Convention right to protection of property. The system for calculating compensation, so the argument went, was set up under section 5(4) of the Banking (Special Provisions) Act 2008 in such a way that shareholders were bound to receive nothing or virtually nothing from the government - even though Northern Rock still had considerable assets. This, it was argued, failed to strike the fair balance required by article 1 of Protocol 1 between the private rights of the shareholders, and the public interest.
Laws LJ giving the lead judgment rejects the argument entirely, I'm glad to say. He accepts that the shares were in truth worthless in the absence of government support; or at least, Parliament was entitled to take that view within the margin of discretion allowed to it under human rights law. Its approach was certainly not "manifestly without reasonable foundation".
I have two thoughts about this judgment, apart from the fact that it's obviously right. First, although I have no problem with the idea that companies enjoy Convention rights, and it's important to recognise that this case involved small shareholders as well as hedge funds, there is a certain absurdity in the idea of a hedge fund based in the Cayman Islands claiming its human rights have been violated. It's the kind of claim that brings human rights into disrepute.
Second, this is a prime example of the kind of case which shows how unfair it could be, and how contrary to the public interest, if the government's legal advice, such as Law Officers' advice, were unilaterally published. It would mean that SRM Global Master Fund was at a distinct advantage in the case, in that it would be able to supplement its arguments with points it may not have thought of, but which the government had considered; and it would be able to focus its arguments on points which the government, in writing, had admitted were the most doubtful parts of its case. It would be very difficult for the government to argue convincingly for a particular proposition - even if it believed it to be right - if the court had in front of it papers showing some government lawyers had doubts about the point. All this would skew the case in favour of the hedge fund: I say unfairly, because they might know their own case was pathetically weak in its entirety, but would not be forced into any such disclosure.
Saturday, 25 July 2009
TotalPolitics best blogs poll
I'm encouraging readers to vote for their fave political blogs in TotalPolitics magazine's poll - there's a button on the right to make it even easier. You have to name ten blogs in order of preference, so it needs a bit of thinking about.
And TotalPolitics sees law as a subcategory in its political blogs directory, so you can even vote for Head of Legal if you like. I notice CharonQC is in there too, but being listed isn't (I think) required, so there are many law blogs you could choose. No doubt many of you read plenty of straightforwardly political blogs, too.
Anyway, do vote: you're the blog readers and you're what we exist for, so make your views count.
And TotalPolitics sees law as a subcategory in its political blogs directory, so you can even vote for Head of Legal if you like. I notice CharonQC is in there too, but being listed isn't (I think) required, so there are many law blogs you could choose. No doubt many of you read plenty of straightforwardly political blogs, too.
Anyway, do vote: you're the blog readers and you're what we exist for, so make your views count.
Friday, 24 July 2009
Directive 2004/38: Commision skirts the gay marriage issue
Last month, when talking about the big Californian case about Proposition 8, I mentioned the unexploded bomb created by articles 2, 3 and 4 of Directive 2004/38 on the free movement rights of EU citizens and their families: 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.
I don't think anyone intended it, and I'm not sure many people are aware of the issue, but I think read purposively (as it must be) the Directive extends to same-sex spouses married in countries like the Netherlands - thus forcing the UK to recognise such marriages at least for EU law purposes. I'm okay with that - I'm in favour of gay marriage. But I can imagine some people won't be okay with it - and this might become a big row.
It may be that the issue never arises in litigation - if the gay spouses of EU citizens are given all the rights that are enjoyed by British married couples. I think the government must be crossing its fingers and hoping that happens, so that the problem is resolved silently. But if a married gay couple from Europe is not treated equally with traditional married couples within the scope of EU law - for instance in terms of employment rights, benefits, housing and so on, as they affect free movement - then the equal treatment provision in article 24 of the Directive may allow them to make a legal claim which will draw attention to all this.
Anyway, the point that interests me is that, in its guidance on implementing the Directive adopted recently (I'm grateful to EU law blog for drawing attention to them) the Commission has been silent on the question of who is a spouse. Not by accident, perhaps.
I don't think anyone intended it, and I'm not sure many people are aware of the issue, but I think read purposively (as it must be) the Directive extends to same-sex spouses married in countries like the Netherlands - thus forcing the UK to recognise such marriages at least for EU law purposes. I'm okay with that - I'm in favour of gay marriage. But I can imagine some people won't be okay with it - and this might become a big row.
It may be that the issue never arises in litigation - if the gay spouses of EU citizens are given all the rights that are enjoyed by British married couples. I think the government must be crossing its fingers and hoping that happens, so that the problem is resolved silently. But if a married gay couple from Europe is not treated equally with traditional married couples within the scope of EU law - for instance in terms of employment rights, benefits, housing and so on, as they affect free movement - then the equal treatment provision in article 24 of the Directive may allow them to make a legal claim which will draw attention to all this.
Anyway, the point that interests me is that, in its guidance on implementing the Directive adopted recently (I'm grateful to EU law blog for drawing attention to them) the Commission has been silent on the question of who is a spouse. Not by accident, perhaps.
Thursday, 23 July 2009
Charon podcast: the Supreme Court, and publishing Law Officers' advice
Charon interviewed me today: we spoke about the Supreme Court, its origins and what we expect from it, and whether the superficial change from House of Lords to Supreme Court will bring with it more significant changes, such as the politicisation of appointments, Sotomayor-style confirmation hearings before the Justice Select Committee, and increased judicial assertiveness as against Parliament and the executive.
In other words, in spite of the clear differences, will the UK Supreme Court become just a little more like the US Supreme Court? The difference between the two is one of the things discussed at the new joint Anglo-American blog Charon (under his secret identity, Mike) is writing with Colin Samuels - Unsilent Partners. I think that's a great idea - we lawyers tend to be too parochially national, but we should know more about other legal systems, and certainly British lawyers could do with knowing more about US law.
So both Charon and I are very interested in what happens from October when the Supreme Court opens for business - and we'll be keeping a close watch.
We also spoke about the transparency of the new Court and of Law Officers' advice to government.
Listen to the podcast here.
In other words, in spite of the clear differences, will the UK Supreme Court become just a little more like the US Supreme Court? The difference between the two is one of the things discussed at the new joint Anglo-American blog Charon (under his secret identity, Mike) is writing with Colin Samuels - Unsilent Partners. I think that's a great idea - we lawyers tend to be too parochially national, but we should know more about other legal systems, and certainly British lawyers could do with knowing more about US law.
So both Charon and I are very interested in what happens from October when the Supreme Court opens for business - and we'll be keeping a close watch.
We also spoke about the transparency of the new Court and of Law Officers' advice to government.
Listen to the podcast here.
Constitutional Reform and Governance Bill
I seriously dislike the word governance. Okay, it has some reasonable uses: in the phrase corporate governance, for instance, in which it has a useful sense of oversight from on high. Otherwise, it's unbearably pompous. I also suspect politicians who use it have reached the "statesman" stage in which they're more interested in their international contacts and memoirs than in achieving anything in government. So this Bill annoys me before I even look inside it.
It's pretty harmless on the whole. Part 1 makes some fairly unobjectionable provision about the civil service. But why on earth has the opportunity not been taken to pick up the provisions of Andrew Dismore's Crown Employment (Nationality) Bill? Those provisions are much needed, are uncontroversial (the opposition have promoted a very similar if not identical bill in the past) and should wait no longer. And clause 9, giving civil servants a right to complain about being ordered to breach the civil service code, will only be of use to civil servants who are being sacked or forced to resign. The idea that a civil servant could make such a complaint and retain any career hopes is just laughable.
Part 2 will give Parliament a chance to object to the ratification of new treaties - which sounds fine, and is unobjectionable, except that clause 23 gives ministers a second bite at persuading the Commons and the power to override the Lords; and clause 24 creates exceptions.
And in Part 3, clauses 29 and 30 will in effect allow peers to resign from the Lords, disclaim their peerages and, under clause 30(6) and (7), be free to stand for election to the Commons. This is the one seriously objectionable proposal in the Bill. It sounds nice, fair and modern, but when we eventually get an elected or mainly elected House of Lords, one of the worst things that could happen is if it is filled with party hacks trying to work their way up to the more glamorous and powerful Commons. We have enough elected institutions filled with those people - all councils, and the European Parliament, are examples. One valuable thing about the Lords at the moment is that the bar on members standing for the Commons means the House is made up of people who are not planning any significant future political career, and who are therefore more independent. To throw away that huge advantage is a mistake: you might as well abolish the Lords altogether if it's going to be a House of whipped wannabes.
I don't think the Bill does anything else of note. The government's original consitutional reform plans were insufficiently radical to justify their billing two years ago. With this Bill, we can see they've been watered down almost to a homeopathic degree. I'm pleased: this government all too often proposes instant constitutional change as the answer to all manner of passing policy problems, and I'm glad the urge to remodel has been replaced with masterly inactivity. But it does show what a fuss and nonsense they've made about the consitution.
I agree with Steve Richards.
It's pretty harmless on the whole. Part 1 makes some fairly unobjectionable provision about the civil service. But why on earth has the opportunity not been taken to pick up the provisions of Andrew Dismore's Crown Employment (Nationality) Bill? Those provisions are much needed, are uncontroversial (the opposition have promoted a very similar if not identical bill in the past) and should wait no longer. And clause 9, giving civil servants a right to complain about being ordered to breach the civil service code, will only be of use to civil servants who are being sacked or forced to resign. The idea that a civil servant could make such a complaint and retain any career hopes is just laughable.
Part 2 will give Parliament a chance to object to the ratification of new treaties - which sounds fine, and is unobjectionable, except that clause 23 gives ministers a second bite at persuading the Commons and the power to override the Lords; and clause 24 creates exceptions.
And in Part 3, clauses 29 and 30 will in effect allow peers to resign from the Lords, disclaim their peerages and, under clause 30(6) and (7), be free to stand for election to the Commons. This is the one seriously objectionable proposal in the Bill. It sounds nice, fair and modern, but when we eventually get an elected or mainly elected House of Lords, one of the worst things that could happen is if it is filled with party hacks trying to work their way up to the more glamorous and powerful Commons. We have enough elected institutions filled with those people - all councils, and the European Parliament, are examples. One valuable thing about the Lords at the moment is that the bar on members standing for the Commons means the House is made up of people who are not planning any significant future political career, and who are therefore more independent. To throw away that huge advantage is a mistake: you might as well abolish the Lords altogether if it's going to be a House of whipped wannabes.
I don't think the Bill does anything else of note. The government's original consitutional reform plans were insufficiently radical to justify their billing two years ago. With this Bill, we can see they've been watered down almost to a homeopathic degree. I'm pleased: this government all too often proposes instant constitutional change as the answer to all manner of passing policy problems, and I'm glad the urge to remodel has been replaced with masterly inactivity. But it does show what a fuss and nonsense they've made about the consitution.
I agree with Steve Richards.
Wednesday, 22 July 2009
Sharia delusions
I often agree with John Bolch about sharia law; always, in fact. So it's no surprise I should agree with his post yesterday about the claim made by an Islamic "scholar" that sharia law doesn't discriminate against women. The fact that such a claim can even be made is enough to make you shake your head, or sigh.
I think John's quite right to call this chap deluded if he can't see the inequality that's indisputably proved by the chart on his wall. I also think John may be right that there's just no reasoning with this kind of person.
I think John's quite right to call this chap deluded if he can't see the inequality that's indisputably proved by the chart on his wall. I also think John may be right that there's just no reasoning with this kind of person.
Transparency, and the Law Officers' advice
A couple of years ago, it was all the rage to worry about the role of the Attorney General, and the government even consulted on the possibility of publishing the Law Officers' advice. You can see the results of the consultation here, from paragraph 84. Most respondents said there shouldn't be publication, generally speaking - a view I agree with - although it might be fair to say that many of that majority seemed to come from within government itself. As it turns out, the government's doing nothing on that in its Constitutional Reform and Governance Bill - of which more in a later post.
But it's worth noting this judgment yesterday from Blake J, in which the government successfully appealed against a decision by the Information tribunal ordering the disclosure not of Law Officers' advice itself, but of whether or not they advised in relation to the bill that became the Financial Services and Markets Act 2000.
It's quite a success for the government, this, I'd say: they've argued successfully that if you want to know whether the Law Officers have advised on a certain matter you must establish that there is a weighty public interest in such disclosure. In effect I think the ruling puts the burden on applicants to show the public interest in disclosure outweighs the public interest in non-disclosure - since Blake J says the starting point is to give weight to that except in very rare cases.
I think this is a sensible approach - though whether it's really what Parliament intended in the Freedom of Information Act 2000, I'm less sure. What I think this shows, though, again, is that it would be much better for the freedom of information regime to set out clearly the circumstances in which the fact of Law Officers' advice - and the content of that advice - should and should not be disclosed. It's not good enough just for the government, the Information Commissioner and the Tribunal to make these decisions by weighing up two very airy and general idea of the public interest in disclosure and the public interest in non-disclosure. From what he says at paragraph 66 of his judgment, I suspect Blake J may agree.
The case also shows, though, of course, that neither the fact nor the content of the Law Officers' advice can always be kept confidential. A weighty public interest can mean disclosure is required.
But it's worth noting this judgment yesterday from Blake J, in which the government successfully appealed against a decision by the Information tribunal ordering the disclosure not of Law Officers' advice itself, but of whether or not they advised in relation to the bill that became the Financial Services and Markets Act 2000.
It's quite a success for the government, this, I'd say: they've argued successfully that if you want to know whether the Law Officers have advised on a certain matter you must establish that there is a weighty public interest in such disclosure. In effect I think the ruling puts the burden on applicants to show the public interest in disclosure outweighs the public interest in non-disclosure - since Blake J says the starting point is to give weight to that except in very rare cases.
I think this is a sensible approach - though whether it's really what Parliament intended in the Freedom of Information Act 2000, I'm less sure. What I think this shows, though, again, is that it would be much better for the freedom of information regime to set out clearly the circumstances in which the fact of Law Officers' advice - and the content of that advice - should and should not be disclosed. It's not good enough just for the government, the Information Commissioner and the Tribunal to make these decisions by weighing up two very airy and general idea of the public interest in disclosure and the public interest in non-disclosure. From what he says at paragraph 66 of his judgment, I suspect Blake J may agree.
The case also shows, though, of course, that neither the fact nor the content of the Law Officers' advice can always be kept confidential. A weighty public interest can mean disclosure is required.
Tuesday, 21 July 2009
News International and Tom Watson MP
The Culture, Media and Sport committee, inquiring into allegations about the News of the World's hacking into people's voicemail, is hearing evidence from its editor today; proceedings have been livened up somewhat by News International's lawyer's objection to Tom Watson's participation in the inquiry. The argument is that, since he is currently suing News International, his participation is unfair: it breaches "natural justice", is ocntrary to the article 6 Convention right, and breaches Parliament's own rules. News International says it will complain to the Parliamentary Commissioner for Standards about Watson's taking part. There's likely to be a fair amount of anger about this in the blogosphere - from Labour -supporting blogs at any rate. But I think News International's stance is quite reasonable.
I think the natural justice point is a bit of a vague one, and I think it's well over the top to bring human rights into it - I don't see how the inquiry will determine News International's civil rights for article 6 purposes. Making bogus human rights points like that is the kind of thing that brings the Human Rights Act into disrepute.
But it's quite true that Parliament's own rules make his participation questionable. MP's Code of Conduct, paragraph 83, second bullet, says (citing a 1992 report):
...when a member of a Committee, particularly the Chairman, has a financial interest which is directly affected by a particular inquiry or when he or she considers that a personal interest may reflect upon the work of the Committee or its subsequent Report, the Member should stand aside from the Committee proceedings relating to it.
I don't know the details of his lawsuit, but on what we do know, Watson does indeed seem to me arguably to have a personal interest that may affect the report here. In addition, the sixth principle of public life suggests not only that Watson should declare any private interests relating to his public duties, but also that he should
take steps to resolve any conflicts arising in a way that protects the public interest.
I don't think it's good enough for him and the chairman simply to brush this aside, or accuse the witnesses of acting improperly by raising it. They may well have had advice from Speaker's Counsel that Watson can lawfully carry on if the chairman is content his views would not be affected - that must be right as a matter of strict law - but to stand on that seems to me quite arrogant.
I'm not sympathetic to News International: I'm with Max Mosley on privacy. I don't have anything against Tom Watson. Not do I want to limit freedom of speech in Parliament: Watson can say what he likes about News International in the House, and be safe from legal action. That's as it should be. But for him to take part in an inquiry and report which is likely to influence the views of other members, when to an observer there is an appearance of bias, I think is questionable, and News International make a fair point. Note that they are not refusing to answer MPs' questions (which would I think have been wrong) but will simply complain.
Were this a local authority, a quango or any other kind of public body, it would be widely criticised for this kind of apparent unfairness - if Parliament wants to increase our respect for it, it needs in my view to come into line with general standards of fairness to which voters are held in their own professional lives.
I think the natural justice point is a bit of a vague one, and I think it's well over the top to bring human rights into it - I don't see how the inquiry will determine News International's civil rights for article 6 purposes. Making bogus human rights points like that is the kind of thing that brings the Human Rights Act into disrepute.
But it's quite true that Parliament's own rules make his participation questionable. MP's Code of Conduct, paragraph 83, second bullet, says (citing a 1992 report):
...when a member of a Committee, particularly the Chairman, has a financial interest which is directly affected by a particular inquiry or when he or she considers that a personal interest may reflect upon the work of the Committee or its subsequent Report, the Member should stand aside from the Committee proceedings relating to it.
I don't know the details of his lawsuit, but on what we do know, Watson does indeed seem to me arguably to have a personal interest that may affect the report here. In addition, the sixth principle of public life suggests not only that Watson should declare any private interests relating to his public duties, but also that he should
take steps to resolve any conflicts arising in a way that protects the public interest.
I don't think it's good enough for him and the chairman simply to brush this aside, or accuse the witnesses of acting improperly by raising it. They may well have had advice from Speaker's Counsel that Watson can lawfully carry on if the chairman is content his views would not be affected - that must be right as a matter of strict law - but to stand on that seems to me quite arrogant.
I'm not sympathetic to News International: I'm with Max Mosley on privacy. I don't have anything against Tom Watson. Not do I want to limit freedom of speech in Parliament: Watson can say what he likes about News International in the House, and be safe from legal action. That's as it should be. But for him to take part in an inquiry and report which is likely to influence the views of other members, when to an observer there is an appearance of bias, I think is questionable, and News International make a fair point. Note that they are not refusing to answer MPs' questions (which would I think have been wrong) but will simply complain.
Were this a local authority, a quango or any other kind of public body, it would be widely criticised for this kind of apparent unfairness - if Parliament wants to increase our respect for it, it needs in my view to come into line with general standards of fairness to which voters are held in their own professional lives.
Friday, 10 July 2009
Phone hacking: offences, and other legal issues
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.
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, 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.
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