MORE ON PARLIAMENTARY PRIVILEGE

Lord Millett (retd Law Lord, 2004) joins the debate in the Times letter pages today:


Sir, Memory is fallible, but I seem to remember being taught, more than 50 years ago, that parliamentary privilege, which may of course be invoked by individual members of either House when faced with civil or criminal proceedings, nevertheless belongs to Parliament and not to the Member (letters, Feb 8). If this is correct, then two things follow. First, Parliament can waive it. This would not require legislation; a simple resolution of the appropriate House would be sufficient.


Second, its Privileges Committee could rule whether any proposed proceedings would constitute a breach of privilege. It could not, of course, extend the scope of the privilege, but it could limit its application.


Waiving the privilege would not constitute a breach of the Member’s human rights, since it is a privilege not a right and (if the premise is correct) does not belong to him. Nor would it amount to a retrospective change in the law, since it would not be retrospective but affect a trial that has not yet taken place, and would not change the law but give effect to it.


Lord Millett
House of Lords


Lord Millett is right on waiver (see Lord Browne-Wilkinson in Hamilton v Al-Fayed in 2000: The privileges of the House are just that. They all belong to the House and not to the individual.) 


I am not sure, however, he has quite got article 7 ECHR right - any retrospectivity is repugnant at the date of commission of the offence not the date of trial for the offence - 'at the time when it was committed' is what article 7 says. 


There are other interesting things to read on this:


This blog is very good:

Administratively constitutional law, or What is Parliament’s privilege? 

I have also dug up this from 1998 - evidence of the CPS to a Parliamentary Committee considering privilege:

Not quite on point for the expenses scandal, but interestingly it says this:

The experience of the CPS is that Article 9 of the Bill of Rights acts as a serious impediment in the effective prosecution of corruption when the allegation is that the defendant has acted corruptly in connection with his or her duties as a Member of Parliament. If Members of Parliament are to be successfully prosecuted for corrupt conduct, the protection conferred by Article 9 must be either narrower in scope, or qualified.

and this:

Article 9 of the Bill of Rights presently affords the protection of parliamentary privilege to "proceedings in Parliament". The evidence supporting an allegation of corrupt conduct on the part of a Member in connection with his or her duties in that capacity may come from a wide variety of documentary evidence, much of which will not necessarily be closely associated with the primary functions of Parliament. The exact scope of the phrase "proceedings in Parliament" is far from clear. Accordingly, it is very difficult to assess the evidential sufficiency of any particular case.

This is also an interesting Parliamentary Paper on the subject.

There is also the Duncan Sandys case:

On 27 June 1938, Duncan Sandys raised on the floor of the House, the fact that he had been asked by the Attorney General about the sources of information Mr Sandys had used to draft a parliamentary question. The Attorney General had, Mr Sandys, said, threatened him with prosecution under the Official Secrets Acts. This was denied by the Attorney General. The detail of Mr Sandys allegations and the general question of the applicability of the Official Secrets Acts to Members was referred to a special select committee, the Select Committee on the Official Secrets Act. This issued a first report in September 193835 and a further report in April 1939.36 These concluded that the soliciting or receipt of information was not a proceeding in Parliament, but that it would be inadvisable to attempt to define “the extent of immunity from prosecution under the Official Secrets Act to which Members of Parliament are or ought to be entitled.

The advice of the then Attorney General, Sir Donald Somerville  is interesting and is set out below (and was adopted by the Attorney General in 1998) 

Sir Donald Somervell's memorandum (1939) 

  I received from your Secretary a letter in which he gave me a general indication of the form which the Committee would desire this Memorandum to take. I have endeavoured to follow this direction. I set out first the main provisions and effect of the Offical Secrets Acts. I follow this with a statement as to the nature of Parliamentary Privilege and in particular the Privilege of Freedom of Speech. I then give my views as to the effect of Privilege on action by Members of Parliament which but for the existence of Privilege would render them liable to proceedings under the Acts.

  Summary of the provisions of the Official Secrets Acts, 1911 and 1920. I should make it clear that I set out below in general terms the main effect of the relevant sections, omitting a good deal of detail.

(a)  Section 1 of the Act of 1911 as amended by the Act of 1920. Marginal note. "Penalties for spying." This section makes it a felony for any person to obtain or communicate secret documents or information for a purpose prejudicial to the safety or interests of the State, the documents or information being such as might be useful to an enemy.

(b)  Section 2 of the Act of 1911 as amended by the Act of 1920. Marginal note. "Wrongful communication etc of information." This section makes it a misdemeanour:

(i)  for those holding or having held office under His Majesty or for Government contractors or their employees to communicate without authorisation official documents or information in their possession.
(ii)  for others to receive such information voluntarily if they have reason to believe it is being communicated to them in contravention of the Act.
(iii)  for others having received information as in (ii) above to communicate it without authorisation to any person other than a person to whom it is their duty in the interests of the State to communicate it.

  Broadly speaking this section covers all cases of unauthorised disclosure of official information in which the espionage purpose is absent. It is of course possible to think of very serious cases connected with foreign affairs, financial or other secrets which would come under this section.

(c)  Section 7 of the Act of 1920 makes it an offence to solicit or incite a person to commit an offence under the Act.

(d)  Section 6 of the Act of 1920. Marginal note: "Duty of giving information as to commission of offences." This section imposes a duty on every person to give on demand to a Chief Officer of Police or other specified person any information in his power relating to an offence or suspected offence under the Acts.

  It provides for the attendance of persons on payment of their reasonable expenses and makes a failure to attend or to give the information a misdemeanour.

  The Acts, like the rest of the Criminal Law, apply to Members of Parliament apart from Privilege. Parliamentary Privilege is of course part of the law of the land. The disputes that have taken place between Parliament and the Courts have been as to the extent of Privilege and not as to its character as law. Cases involving Privilege may come before the ordinary Courts. They may also be decided and are normally decided by whichever House of Parliament is concerned, and punishment may in a proper case be inflicted by the House. In dealing with cases of Privilege the House is expounding and applying as a Court the law of Parliament as found in existing principles and precedents. The Law of Privilege is to be found partly in Acts of Parliament defining Privileges, partly in the declarations and decisions of Parliament dealing with Privilege, and partly in decisions of the Courts in cases involving points of Privilege. As long ago as 1704 a Resolution of the House of Lords was assented to by the House of Commons to this effect:

"That neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges not warranted by the known laws and customs of Parliament."

  The cases which I am asked to consider are those in which words are spoken or written which, if not protected by Privilege, would be punishable as an offence against the Official Secrets Acts. The relevant Privilege is that usually referred to as the Privilege of Freedom of Speech, though it does not merely apply to spoken words. It is a privilege which was asserted and recognised at a very early stage in the history of Parliament. Although older than the Bill of Rights it is declared therein as follows:

"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament."

  Parliament itself can of course control the exercise of the right in any way it thinks proper. "But, although by the ancient custom of Parliament and the law, a Member may not be questioned out of Parliament, he is liable to censure and punishment by the House itself of which he is a Member." (Erskine May p 107.)

  I will consider the case of a Member who in the course of debate or proceedings in Parliament made a disclosure which, apart from Privilege, would constitute an offence under the Acts. The hypothetical disclosure might, for example, be by a Member who was holding or had held office under the Crown, of information which he had obtained in that capacity. It might be by a Member who, without holding or having held such an office, had reasonable ground to believe that the information which he was disclosing had been obtained in contravention of the Acts. 

  Such statements could not in my view be made the subject of proceedings in the Courts. To do so would I think be to question in a "Court or place out of Parliament" "debates and proceedings in Parliament".

  Issues of Privilege of a somewhat different kind might in certain circumstances arise under section 6. That section is only of course brought into operation if it is clear or thought to be clear, first that a person has information relevant to the investigation of an offence or suspected offence, and secondly that he is unwilling to give the information voluntarily. Assume that it was clear from a speech made by a Member in Parliament that he had information relevant to an offence which on inquiry he refused to volunteer. Would he be protected by Privilege from the operation of section 6?

  If he refused to answer and proceedings were taken to punish him for refusal the prosecution might fail to show that he had relevant information unless they could give evidence of his statement in Parliament. The authorities are not clear but it may well be that, without the permission of Parliament, there would be difficulty in getting this evidence before the Court. There is however a further point quite apart from this difficulty. Could it be said that such proceedings were precluded in principle by the Privilege of Freedom of Speech? It might be said on the one hand that the prosecution was not "impeaching" or "questioning" anything done in Parliament. It was proceeding against the Member for failing to fulfil out of Parliament the duty of giving the information which Parliament itself had directed should be given.

  It might be said on the other hand that the Member found himself interrogated by the Police and subsequently in the dock as a result, though an indirect result, of what he said in debate and that this was contrary to the principal of freedom of speech as formulated in the Bill of Rights and illustrated by the precedents.

  How the Court or either House might decide this question should it ever arise is a question on which owing to its difficulty I ought not to be dogmatic. If such a case should ever arise and the authorities felt that the Member was not or might not be protected by Privilege, I find it difficult to imagine the Police being authorised to interrogate unless the very gravest issues were involved.

  I have done my best to set out concisely the principle which appear to me to be applicable to this matter in a form which I hope is that desired by the Committee. There has so far as I know been no prosecution of a Member of Parliament under the Official Secrets Acts. The question might arise whether acts done by a Member contrary to the Statute but not protected by Privilege might be so related to his duties as to make a prosecution improper or oppressive. It would I think, for reasons which the Committee will appreciate, be inappropriate for me to propound hypothetical circumstances and then state what decision I think should be come to upon them. Assuming however that in such a case the machinery for the consideration of proceedings was set in motion, the consent of the Attorney-General in England or the Lord Advocate in Scotland would have to be obtained. It would be impossible to formulate in a precise form all the circumstances which would fall to be considered but should such an issue ever be placed before an Attorney-General, it would clearly be proper and inevitable for him to have due regard to the special position and duties of a Member of Parliament.

D B Somervell

Law Officers' Department

27 January 1939

Papering over the Cracks

As I blogged on Friday - the Supreme Court is forcing the Government to apply the rule of law.  This Bill was introduced on Friday and will be law by tomorrow.  

There is a link to the parliamentary privilege issue on which I have also commented.  The Bill has to have retrospective effect  (although bizarrely the Bill only gives this protection from 4th February 2010 [the date the SC quashed the orders concerned] - although as the SC explained the orders were not ultra vires when the SC said they were and quashed them  -they were utlra vires on the day they were made - Lord Phillips made this clear at paras 4 and 5 of the judgment) to ensure that the Banks which seized the money have protection because they did so illegally.  So the Bill is as set out below  - note the last bit in bold - that's because you cannot make criminal that which was not criminal at the time the offence was committed - article 7 ECHR - just like you probably can't take away parliamentary privilege (if it applies) retrospectively from the 'alleged MP expenses malefactors'.


Protection of things done or omitted in interim period
(1) The following provisions have effect in relation to things done or omitted in the
period beginning with 4 February 2010 and ending with the coming into force
of this Act.
(2) Anything done or omitted by a person other than the Treasury that would be
valid, lawful or effectual if—
(a) the Terrorism (United Nations Measures) Order 2001 (S.I. 2001/3365),
(b) the Terrorism (United Nations Measures) Order 2006 (S.I. 2006/2657),
and
(c) the Terrorism (United Nations Measures) Order 2009 (S.I. 2009/1747),
had been validly made under, and every provision of those Orders had been
within the power conferred by, section 1 of the United Nations Act 1946, is
deemed to be valid, lawful or effectual as if those Orders had been so made and
every provision of them had been within that power.
(3) Subsection (2) applies to an act or omission notwithstanding that it is done or
omitted in reliance on or in consequence of something done or omitted by the
Treasury (whether during or before the period mentioned in subsection (1)).
(4) Nothing in this section affects proceedings in respect of anything that is
susceptible to legal challenge on a ground independent of the question
whether any of those Orders was validly made under, or any of its provisions
was within the power conferred by, section 1 of the United Nations Act 1946.
(5) This section does not—
(a) affect any liability of the Treasury in respect of an act or omission that
would be unlawful if this section had not been enacted; or
(b) give rise to any criminal liability.

RETROSPECTIVE RESTRICTION ON PARLIAMENTARY PRIVILEGE OR IMPEACH THE LOT OF THEM?

David Cameron will today accuse Gordon Brown of tolerating the “disgusting sight of Labour MPs \ parliamentary privilege”. The Tory leader will say that he would introduce legislation preventing further attempts by MPs to use immunities designed to guarantee freedom of speech “to evade justice”.


Says today's Times - Expenses MP Jim Devine says he was told ‘to move money around’ - Times Online


Plus the letters page has some correspondents crying out for impeachment and attainder:Criminal courts or trial by Parliament for errant MPs? -Times Online


Firstly someone should tell Mr Cameron that Article 7 European Convention on Human Rights says - No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. 


So Parliament probably can't retrospectively take away a defence such as Article IX Bill of Rights, which (arguably) had the effect of preventing an offence being committed/prosecuted at the time of its alleged commission.  


As to impeachment and attainder - attainder would seem a little over the top - last used in 1798, it involves a Bill being passed by both Houses of Parliament forfeiting the property and rights of inheritance of a wrong doer (usually reserved for high treason although it could be used for lesser offences).  


Impeachment was last used in 1806 (an allegation of misappropriating money from the Admiralty - Viscount Melville was acquitted)  and can be used by any MP to accuse a person of wrong doing.  A motion and evidence is voted on by the Commons and if passed Black Rod arrests the accused and the trial takes place in the Lords.  The Lords are the jury and the Commons the prosecution (we are no longer sure who the Judge is given that the Lord Chancellor no longer presides over the Lords  - and indeed is no longer neither a Lord or necessarily a properly qualified lawyer).  The Lords then pass judgment (by simple majority vote) which can include penalties such as imprisonment and fines.  


There was an attempt in 2004 to impeach Tony Blair and the then leader of the House, Peter Hain said that impeachment was obsolete,  This did not appear to be the opinion of the authorities of the House of Commons at the time and furthermore I am not sure by what legal mechanism (short of repeal by statute) impeachment could become obsolete.  Laws in England and Wales do not become obsolete through lack of use (desuetude) (see Ashford v. Thornton (1818) 1 B.& ALD 405 - where the Court says that law remains until repealed).  In that case the Court granted the ancient right of trial by combat which was abolished the next year by Parliament - now that would be an interesting way of settling the MPs' expenses prosecution - Jim Devine in the Red Corner - Keir Starmer in the blue........ ....

What are the privileges of Parliament?

So the MPs facing prosecution (see this excellent blog for more detail - Law and Lawyers) want to rely on parliamentary privilege.


This is very clever because nobody actually has a clue about how far parliamentary privilege goes.  Don't try looking in Erskine May because the relevant section provides more questions than answers.  In the recent case of an MP's room in the Commons being searched it became apparent that lawyers found it difficult to say whether or not there had been a breach of privilege (see the memo of the Clerk of the House).  I suspect that the expenses prosecutions will all centre around the definition of ' proceeding' in article IX of the Bill of Rights - this was the Privy Council trying to work it out in 1963 ([1963] A.C. 103 Page 121):

What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a "proceeding in Parliament"? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words "proceedings in Parliament" is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm. & M., Sess. 2, c. 2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his "real" or "essential" function as a member? For, given the proper anxiety of the House to confine its own or its members' privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member's true function.  Thus, even in recent years, this question has come under debate: in the Sandys case1 in 1938, in the Allighan case,2 and the Strauss case3 since the last war; and, though the occasion does not seem to be noticed in the current edition of Erskine May, in Henderson's case4 in 1945. It would not be useful to examine those debates or proceedings in any detail, since it would be impossible to extract from them any settled constitutional principle that could be regarded as governing the circumstances of this appeal. Views to some extent in conflict with each other have been expressed on different occasions and in the most recent, the Strauss case, the vote of the House was not in accordance with the opinion of its Committee of Privileges or of that of the Select Committee which considered the Sandys case in connection with the Official Secrets Act. The most, perhaps, that can be said is that, despite reluctance to treat a member's privilege as going beyond anything that is essential, it is generally recognised that it is impossible to regard his only proper functions as a member as being confined to what he does on the floor of the House itself.

So is the act of claiming expenses and all that is consequent and ancillary thereto caught by the phrase 'proceeding in parliament'?  We will wait and see..........

We will also have to see if the Speaker appoints counsel to intervene in any criminal prosecution to uphold the privileges of Parliament (as has been done before) or whether he will leave the defendants to the mercy of the Crown Court Judge.


Accused MPs argue they are above the law - Times Online

HMG ASK SUPREME COURT TO HELP THEM OUT OF A HOLE AND SUPREME COURT SAYS: 'NO - WE HAVE THE RULE OF THE LAW IN THIS COUNTRY'

Consider this

So HMG is upset that the Supreme Court has found its 'alleged terrorist' freezing orders utlra vires and therefore asked the Court to suspend its quashing orders whilst it brings in correcting legislation so that the banks holding the money are put off from handing it back to the 'alleged threats' to national security.  


And the Court says - 'how have we got the power to render lawful a bank's obedience to freezing orders which we have declared and which are unlawful.  They are unlawful whether we quash them or not'.  


And that's because of the rule of law - which seems to have escaped HMG in making this application? 


And now see this 
Measures to freeze assets of terror suspect to be lifted immediately - Times Online

Supreme ambition, jealousy and outrage - Times Online

Supreme ambition, jealousy and outrage - Times Online


Following my post earlier about the 12th Justice - now see the above in the Times today.


Should Lord Mance have intervened in a recruitment process in which his wife (Arden LJ) was apparently a candidate?


Should those LJs who are candidates for the job be consulted on who should be appointed to the SC?


I know that some LCJs/MRs (as Life Peers) and retired Law Lords have sat with the Law Lords as Lords of Appeal (as opposed to full time Lords of Appeal in Ordinary). I also think that Lord Cook of Thorndon sat with the Law Lords as a Life Peer from 1996-2001. 
But has there been any other recent modern examples of Judicial Life Peers sitting on the Appellate Committee apart from Lord Clarke?  
Why was Lord Clarke given a life peerage and why did he sit with the Law Lords (whilst still Master of the Rolls) prior to his appointment as a Justice of the SC commencing?  
Note the wording of the MoJ statement on when the ban on Justices of the SC getting peerages would commence:


All new judges appointed to the Supreme Court after its creation will not be members of the House of Lords; they will become Justices of the Supreme Court.


The chronology in respect of Lord Clarke is recorded on wikkipedia as:


it was announced that Clarke would be granted a life peerage^[2], and he was subsequently created Baron Clarke of Stone-cum-Ebony, of Stone-cum-Ebony in the County ofKent, on 29 May 2009,^[3] and took his seat in the House of Lords on 1 June 2009.^[4] It was announced on 20 April 2009 that he was to be appointed to the Supreme Court with effect from 1 October 2009.^[5]

Was this all done because of the Mance Memo to Straw?


11/2/10 - A CODA  FROM FRANCES GIBB
Meanwhile, in an interesting coda to the Sumption Supreme Court scandal,  it emerges that the shortlisted candidates for the job the first time round, who included the Liberal Democrat peer Lord Carlile of Berriew, QC; leading human rights solicitor Stephen Grosz and the former chief parliamentary draftsman Sir Geoffrey Bowman, were told that there were to be no interviews. However an interview was held, with Sumption, Sir Anthony Clarke and Lord Justice Collins - although these were to be "confirmatory": in other words, the choice had been made. 

A WRITTEN CONSTITUTION?

Yesterday the Prime Minister said this:

There is a wider issue – the question of a written constitution - an issue on which I hope all parties can work together in a spirit of partnership and patriotism.

I can announce today that I have asked the Cabinet Secretary to lead work to consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.

In the summer I announced that we would consult on the question of codifying our constitution as part of the consultation exercise on the British Bill of Rights and Responsibilities. There is, however, no consensus on what a codified constitution would be for, on what it would encompass and on what its status would be.

But if we are to go ahead with a written constitution we clearly have to debate also what aspects of law and relationships between each part of the state and between the state and the citizen should be deemed ‘constitutional’.  I can therefore also announce today that a group will be set up to identify those principles and i hereby issue an invitation to all parties to be represented on this group.  And if we are to decide to have a written constitution the time for its completion should be the 800th anniversary of the signing of the Magna Carta in Runneymede in 1215.

But what does he mean? Does he mean an Constitutional Act of Parliament which would be subject to Parliamentary sovereignty (like Magna Carta, the Bill of Rights 1689, the Acts of Union/Settlement) or does he mean an entrenched instrument which could only be amended by referendum or by a specified majority in Parliament.  If the latter - can Parliament actually promulgate such an instrument (one Parliament cannot bind the next) - or will there be another British and bloodless revolution by which the Constitution is promulgated by the people by referendum (like the 5th French Republic)?  And will the Supreme Court be able to strike down Acts of Parliament which do not conform with the Constitution (as it can do with Scottish Acts)?  

The best summary of our present constitutional arrangments in to be found in the judgment of Laws LJ in Thoburn v Sunderland.

The supremacy of Parliament died, de facto, when we joined the EU and the idea that the rule of law is satisfied by Judges politely reminding the Executive to comply with the Human Rights Act 1998 by making non-binding declarations of incompatibility makes our present constitutional arrangements laughable.  

Saying that they are quaint and particularly British is no defence.    I look forward to us being a normal western democracy and having an entrenched Constitution.  I do not look forward to another Constitutional Reform Act which keeps the judges tamed and which continues to live in the fantasy land that Parliament is supreme in its sovereignty.  

GOOD NEWS FOR BUY TO LET TENANTS

In most cases, if a mortgagor (the landlord) has not sought the consent of his mortgagee (the bank) to put a tenant in the property, the tenancy will not be binding against the bank when it seeks repossession for arrears.

A private members' bill was supported by the Government yesterday which whilst not actually making 'unauthorised' tenancies binding on mortgagees (that would be opposed by the banks because it would weaken their security - remember most such banks and their security are owned by HMG) - the bill does allow the Court to give tenants a 2 month breathing space to allow them to move out before possession has to be given back to the bank.  The bill has passed second reading (rare for a private members' bill) and is now sent to Committee.  With Government support it may pass.

See here.

WHO WILL BE THE NEW JUSTICE OF THE SUPREME COURT?

There has to be 12 Justices of the Supreme Court.  The 12 existing Law Lords were going to take over - Lord Scott was going to retire and be replaced by Lord Clarke.  But Lord Clarke was succeeded as Master of the Rolls by Lord Neuberger leaving only 11 Justices.  So who will be the 12th?  It is currently predicted that Lord Justice Dyson will be appointed.  


But will he get a peerage?  Peerages cannot be given out under the Appellate Jurisdiction Act 1876 any more because the Constitutional Reform Act 2005 repealed it.  He could be given a Life Peerage.  Lord Clarke was given a life peerage in June 2009 before becoming a Justice of the Supreme Court in October 2009.  Life Peerages are usually also given to the Lord Chief Justice if he is already not a peer (Lord Judge for example)  


But the Government has said this:


All new judges appointed to the Supreme Court after its creation will not be members of the House of Lords; they will become Justices of the Supreme Court.


There was an idea that new Justices would not get a peerage but would be entitled to be called Lord and Lady as senior judges in Scotland are.  But we have not heard anymore about this.  So it looks more likely that the new Justice - will be Rt Hon SIr John Dyson, who will have to sit with his Baron and Baroness brother and sister judges as a mere Knight Bachelor.  


It then looks likely that the Court will be stable for a while -until Lord Saville retires in 2 years time (although he has yet to sit in the Supreme Court - having only been an active Law Lord for 1 year before he was appointed to the Bloody Sunday Inquiry for 11 years - he is due to deliver his report and starting sitting in the Supreme Court this year).

THIS IS EXCELLENT NEWS

Speaking as someone who once appealed a wheel clamping release charge to an internal appeal service within the wheel clamping firm and did not receive even rough justice -news that a statutory Tribunal is going to be set up by HMG to hear such appeals is excellent news.  See the story on the BBC:

http://news.bbc.co.uk/1/hi/uk/8486492.stm

I also recommend reading this:

http://www.independent.co.uk/opinion/commentators/anthony-scrivener-a-lawyers-view-of-goldsmiths-evidence-1881328.html

IS JACK STRAW A QUALIFIED LAWYER?

Charon QC as ever provides excellent coverage of the Iraq Inquiry.  He notes the following exchange between the Chair and today's witness:

 I did enjoy Wilmshurt’s response when Sir John Chilcot asked  if it made  a difference that Jack Straw himself is a qualified lawyer?.  Elizabeth Wilmshurt replied…“He is not an International Lawyer”. Rather sums it up, I think?


I understand that Straw was a practising barrister from 1972 to 1974 only.  He remains a door tenant of Valios Boardman Chambers at 4 Bream Buildings (or at least he appears on their door as such).  He became special adviser to Barbara Castle in 1974 and I note that from 1971 to 1974 he was a member of the Inner London Education Authority and Deputy Leader from 1973 to 1974.


He therefore probably did not practice very much in his limited 2 year career.  


This probably puts a gloss on the idea that the former Foreign Secretary and current Lord Chancellor is to be considered a qualified lawyer.


Also this deserves reading: http://www.headoflegal.com/2010/01/27/the-legality-of-the-iraq-war/

LET'S HOPE THERE'S NO DOUBLE DIP RECESSION

The recession ends today (0.1% growth in the last quarter?).  Let's hope it doesn't come back because on 1st October 2011 the Government will throw a spanner in the works of that recession life blood of a business saver - the agency worker.  When times get tough you can recruit lots of agency workers who you can get rid of without having to worry about their employment law rights.  Not from 1st October 2011 when this little baby comes into force:


5.—(1) Subject to regulation 7, an agency worker (A) shall be entitled to the same basic working
and employment conditions as A would be entitled to for doing the same job had A been recruited
by the hirer—
(a) other than by using the services of a temporary work agency; and
(b) at the time the qualifying period commenced.
(2) For the purposes of paragraph (1), the basic working and employment conditions are —
(a) where A would have been recruited as an employee, the relevant terms and conditions
that are ordinarily included in the contracts of employees of the hirer;
(b) where A would have been recruited as a worker, the relevant terms and conditions that
are ordinarily included in the contracts of workers of the hirer,

The agency worker gets those rights after 12 continuous weeks with the hirer.

And then basically they are an employee and after 12 months you can't get rid of them without following anti-unfair dismissal procedures and after 2 years they obtain redundancy rights.  Good bye flexibility; good bye recovery; hello recession again.  But good news for agency workers!

THIS IS WHY WE HAVE LAW

There has been a lot of inaccurate things said about self-defence and the case of Munir Hussein lately.
His case has nothing to with self-defence but about allowing our justice system to punish criminals rather than taking 'the law into your own hands'.
The judge at first instance got it right:
It may be that some members of the public or media commentators will assert that the man Salem deserved what happened to him at the hands of you and the two others involved and that you should not have been prosecuted and need not be punished.

However, if persons were permitted to take the law into their own hands and inflict their own instant and violent punishment on an apprehended offender rather than letting justice run its course, then the rule of law which are the hallmarks of a civilised society, would collapse. The courts must make it clear that such conduct is criminal and unacceptable.

Commentators should also note that the valiant Mr Hussein was found by the jury to have lied to them about his lack of involvement at all in the attack:


Of course, it is to be noted that it was never suggested by you or on your behalf in the trial that there was any justification for the attack upon Salem. You simply claimed that you were not involved in it.

The jury was sure that you were involved and convicted you of this serious offence of causing grievous bodily harm with intent to cause such harm.

MR AND MRS ORAMS

MELETIOS APOSTOLIDES (Appellant) v (1) DAVID CHARLES ORAMS (2) LINDA ELIZABETH ORAMS (Respondents) & BRITISH RESIDENTS' SOCIETY (Intervener) (2010)

[2010] EWCA Civ 9

CA (Civ Div) (Pill LJ, Lloyd LJ, Sir Paul Kennedy) 19/1/2010 

Mr and Mrs Orams bought a holiday home in Northern Cyprus.  Its alleged former Greek owner obtained the following judgment from a Court in the Republic of Cyprus (the southern part of the island):
1. Demolish the Villa, pool and fencing.
2.Give possession of the land
3.Pay £11,514.28 in damages
4.Pay £442.85 a month until delivery up
5.Interest and costs

The Court of Appeal, following a judgment of the ECJ say that this is now enforcable in England and Wales. 

This has been reported as the Court of Appeal ordering Mr and Mrs Orams to demolish the villa, the pool and the fencing and to give possession of the land back to Mr Aposolides.  Obviously the Court of Appeal can't and hasn't ordered any such thing.  It has ordered that the judgment from a court in Greek Cyprus (and member of the EU) is enforcable in England and Wales,  although clearly the only bit enforcable is the order to pay special damages, mesne profits and interest.  An English Sheriff has no power to go enforcing Southern Cypriot possession orders in Northern Cyprus.  He would probably need a small invasion army to assist him and may meet resistance from UN peace keepers.  The non-money and possession orders will remain unenforcable until Turkish Northern Cyprus recognises and enforces the judgments of Greek Southern Cyprus.  The Turkish Government of Northern Cyprus said this:

“The British court will have to decide how to implement its ruling. We will not implement it,” Turkish Cypriot leader Mehmet Ali Talat’s spokesman Hasan Ercakica told the Mail, adding: “If Apostolides really wants his property back, he can apply to the property commission”.

Which probably means it is a while before Mr and Mrs Orams will have to give up their lovely holiday home.  Indeed does Mr Apostolidies want his property back?  Does he, can he return to live in Northern Cyprus.? Or does he just want the cash?

ARISE DAME NICOLA VELFOR DAVIES DBE

The Queen has been pleased to approve the appointment

 of Miss Nicola Velfor Davies, Q.C., to be a Justice of 

the High Court with effect from 22 January on 

the elevation of Mr. Justice Pitchford to the 

Court of Appeal.  The Lord Chief Justice will assign 

Miss Davies to the Queen’s Bench Division.

Surely the first Dame from Bridgend Girls’ Grammar School?

The doyen of the GMC defence bar: defender of 

Shipman, Meadow and many many other infamous 

doctors, guilty and innocent & now she may hear HIgh Court 

appeals against the GMC's decisions.  She does not suffer 

fools gladly.  She carries big black hand bags.   

You have been warned. 

Congratulations to Pitchford J, now LJ, too.  

HELLO NEW SUPREME COURT OF NEW ZEALAND

Prince William of Wales has opened the new building of the Supreme Court of New Zealand.

It certainly looks slightly more modern than our own Supreme Court.

The SC of NZ actually opened for business on 1st July 2004 (Prince W is only opening a new building and not a new court) when it replaced the Privy Council as NZ's final court of appeal.  Like our own novice SC of UK, NZ's SC is one of those few Supreme Courts which can't actually do anything useful like strike down legislation.

GOOD BYE SEDITION

This came into force today (section 73 Coroners and Justice Act 2009)

73 Abolition of common law libel offences etc

The following offences under the common law of England and Wales and the common law of Northern Ireland are abolished—

(a)     the offences of sedition and seditious libel;

(b)     the offence of defamatory libel;

(c)     the offence of obscene libel.

So that means that it is no longer a criminal offence (unless covered by some other offence) to

•   
  (1)     to bring into hatred or contempt, or to excite disaffection against, the Sovereign or the government and constitution of the United Kingdom or either House of Parliament, or the administration of justice; or
•   
  (2)     to excite the Sovereign's subjects to attempt, otherwise than by lawful means, the alteration of any matter in church or state by law established; or
•   
  (3)     to incite persons to commit any crime in disturbance of the peace; or
•   
  (4)     to raise discontent or disaffection amongst the Sovereign's subjects; or
•   
  (5)     to promote feelings of ill-will and hostility between different classes of those subjects.

The act or words must also have a tendency to incite public disorder and violence.

SHED A TEAR FOR JUSTICE

THE CENTRAL CRIMINAL COURT
SITTING AT THE ROYAL COURTS OF JUSTICE
COURT 35
Before MR JUSTICE TREACY
Tuesday, 12th January 2010
At half past 10
T20047275 R v Twomey
T20057472 R v Blake
T20067051 R v Twomey
T20067187 R v Hibberd
T20067304 R v Hibberd
T20077124 R v Cameron

There it is - the first trial on indictment without a jury in England and Wales in about 400 years.  It starts today.

See here for how it came to this.

A sad day.

MORE COMMON SENSE

Mrs Parker (on a winter holiday) was told by her tour operator's representatives no to proceed beyond a red light on a toboggan run. She did and was injured and she sued.  She thought that there ought to have been a member of staff on hand to prevent her from proceeding past the red light.  The Trial Judge (the ever sound and excellent HHJ Simpkiss of Brighton County Court and DCJ for Surrey, Sussex and Kent) dismissed her claim.

As did the Court of Appeal Longmore LJ:

I cannot bring myself to hold that it is the duty of a tour operator dealing with rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and the relative safety of snow at its side.  So to hold would only encourage potential claimants to believe that whenever an injury occurs someone must be to blame. That is not what the law of negligence is about.

Common sense prevailed again.

Parker v TUI:   Follow the link

[2009] EWCA Civ 1261