Archive | November, 2012

“Well, I Wouldn’t Start From Here”

26 Nov

It cannot be the case that Labour-run Rotherham Council thought that it would be a useful way to get a sly dig in at UKIP (the UK Independence Party) by taking some foster(ish) children away from some UKIP-supporting parents – because the parents supported UKIP having (it is said) defected from Labour – ahead of the by-election there.

There are at least three reasons for us to be sure of this:

(1) It has backfired spectacularly, with UKIP Leader Nigel Farage enjoying himself immensely in his new ‘victim’ status;

(2) Even a carefully-courteous radio interview on the BBC Today Programme evidently hadn’t been planned very well;

(3) As everyone involved seemed to agree, that would be a grave abuse of power – and one’d not expect politicians to have so much influence over Social Services.

For the Government it was a win-win too, since Michael Gove the Education Secretary was (it is reported) adopted himself, and so is getting a more sympathetic hearing from the Press at the moment and on this topic than he usually does.

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How Many People Have to be Following You for You Still to be Leading ?

24 Nov

(Prof) Gavin Phillipson contributes a rather depressed post to the UK Constitutional Law Group’s Blog. In short, the good Prof found BBC Question Time rather unhappy viewing for the coverage it gave (and didn’t) to the Abu Qatada affair. From the comments he cites – and experience teaches one to expect further comment from the good Prof himself – one can see why.

The writer ventures a few suggestions.

Firstly, that a certain amount of what was said was indeed ‘for the audience.’ However, that changes things rather than makes them better. If Harriet Harman’s comments are partly excused as ‘playing to the room,’ then what of Chris Grayling’s line – which was surely rather more measured than what had been (said to be) expected of him when he was appointed – that he would eat every Human Rights lawyer’s babies for breakfast ? (I exaggerate slightly) Was that show of relative moderation ‘just for the room’ ? Were the gloomy comments on his appointment likewise, for that matter ? Hmm…

Secondly, these are difficult cases, so it may be unfair to gauge popular views of Human Rights too much by these responses. The view a Human Rights lawyer may reach by subtle weighings of interests may be reached by a more average voter intuitively – and be the same. (It may have the same weight at an election, of course)

Thirdly, the difficulty may be one of too little time spent inculcating a ‘human rights culture’ amongst the voters at large – I say this with 20-20 hindsight. If they accept the general values of Human Rights – and the writer is not sure that they do not – then one would expect the ‘hard cases’ like Abu Qatada to be accepted eventually – with grumbling, yes – recall McCann & ‘Death on the Rock’ – but accepted all the same.

Of course, that acceptance is not going to happen if – if it has not yet happened or is not yet secure (the better view ?) – a chorus of ‘The horror ! The horror !’ on Question Time is as far as our leaders are prepared to go in explaining and communicating the values behind Human Rights rules to the people at large. At least to that extent, the good Prof’s depression can be shared. Perhaps more communication in the easy cases would help ?

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A Reader Writes …

23 Nov

A Reader Writes ...

One of the pleasures of blogging is the correspondence from overseas. Our story about Mr Cameron’s intervention in the Church of England General Synod’s difficulties puzzled – I’ll call him – Benny from (guessing from his web address) Venezuela. Benny asks …

“Is this David Cameron the tireless promoter of woman bishops (see left) any relation to David Cameron the tiresome demoter of woman ministers ? (see right)”

Benny thinks that we should be told. Any advice from readers welcome, as always…

‘Detonating Credibility’ – a Category Mistake ?

21 Nov

The writer has been following with curiosity the story of the Church of England General Synod’s decision about women bishops (negative – for now). As usual, the writer shares President Obama’s view that some questions are ‘above his pay bracket,’ but is intrigued by the way that the General Synod and its workings are constructed, and by the comments made about them. Are they, the writer wonders, illustrations of Category Mistakes ?

This seems agreed to be a theological question – but it is made by a mostly-elected body, whose popular element evidently regards itself as entitled to overrule the rest, but whose elected nature of course invites campaigns in relation to membership. Indeed, to change the basic rules of the body requires a two-thirds majority. That the Prime Minister comments on it in the House of Commons, telling the Church to be more modern, completes the impression that this is being treated as a matter of politics (indeed, of Consti).

The writer does not claim to have any advice to offer – but is rather surprised. Some worry about the bishops over-influencing the House of Lords. Has the reverse happened instead ?

The First Thing We Do…

19 Nov

Mr Cameron remarked recently to the CBI (a business pressure group) that the country needs a wartime spirit of ‘circumventing the rules’ in order to get things done – and he singled out the phenomenon of Judicial Review in particular. Apparently applications for Judicial Review – for a Judge to check the lawfulness of a given Government decision – are really annoying him and holding up the Recovery. The Ministry of Justice has the -er- details. Listen to our new Lord Chancellor in the one-minute video and see how ‘suitably qualified’ for his post you think him – referring to Judicial Review as ‘JR’ (its practitioner nickname) was a nice touch, the writer will admit. Since the Lord Chancellor is the Minister statutorily responsible for upholding the Rule of Law, controversy could be expected…

… and duly occurred. The Human Rights Blog mocked with a Churchill picture and The Guardian records the generally outraged reaction of lawyers – and the stats to back up the point, too. Prof Jeffrey Jowell contributes an appalled piece.

The writer is curious: what was Mr Cameron up to ? The stats show that the explosion in JR is mostly in Immigration cases: is that his real point ? It is certainly true that the stats ignore the impact of tactical applications and the threats of applications  – and the low success rate might suggest he has a point about ‘too many’ – one says similar about the ECHR. But why this, why now ? A link to the ECHR and Prisoner Votes, perhaps ? Sniffing the wind to see what the public make of some Judge-bashing in case the Commons throw out any compromise ? Watch this space …

Exporting Exceptionalism ?

17 Nov

A wise colleague fills us in a bit on the idea of ‘Exceptionalism’ and links it to both Abu Qatada and Mitt Romney. The writer hopes not to summarise unfairly if he summarises his understanding thus – that Exceptionalism is the idea that a given state/nation is (1) different to all the rest, and (2) has a God-given mission to require the rest (including by the use of force) to be more like it. We learn that one of many reasons to be glad of Mr Obama’s re-election is that he does not share this view of the United States of America – or at least not so strongly as Mr Romney does, which may not be quite the same thing as not sharing it at all.

The respective merits of Mr Romney and Mr Obama are of course well above this writer’s remuneratory bracket – as Mr Obama himself might have put it. This writer’s interest was piqued by a couple of points of detail.

Firstly, this is not the only possible meaning of exceptionalism. A thoughtful article in the University of St Thomas Law Journal (3 (2005-6) U St Thomas LJ 175 [use HeinOnline]) by Robert Merry – evidently the  opening address of a symposium on American Exceptionalism – notes that belief (1) above does not necessarily entail (2). Merry – a distinguished US political journalist – recalls as a contrast the Roman version: certainly the Romans thought themselves special, but they did not exactly require their subject peoples to Romanise, nor the nations around them: if they (the one) behaved themselves and (the other) didn’t cause too much trouble, that was enough. Since Merry’s subtitle is ‘Avoiding the Hazards,’ we can perhaps guess his view.

But – secondly – where does Abu Qatada fit in ?

Well, we (ie SIAC) seem to be saying to the Jordanians:

(1) Please don’t torture people;

(2) Please don’t torture witnesses;

(3) Please don’t use evidence actually obtained by torture;

AND

(4) Please don’t use evidence that might have been obtained by torture;

(5) In fact, the possibility that you might use evidence that might have been obtained by torture – that puts your legal system beyond the ECHR pale.

Er – isn’t there a possibility that the Jordanians will make some comments about being a bit rude and nosey at some point here ? And something about double standards given Mr Hamza’s fate in (they say) ADX Florence ‘supermax’ prison in the USA ? Is that the trick the Jordanians have missed ? After all, since US officials have seemed unsure whether waterboarding is torture …

Light the Blue Touch Paper

12 Nov

There are three alternative topics for today:

(1) Abu Qatada has won another ruling that he might be faced with evidence obtained by torture if he is returned to Jordan. The full judgement from the Special Immigration Appeals Commission is here. Comment from the BBC is here, calling it ‘a difficult decision’ – presumably because the Government will now be even more determined that prisoners will get the vote over its dead bodies – and from Carl Gardner here;

(2) Speaking of the BBC, the new Director-General quit after a torrid interview on the programme on which he’d allegedly neglected properly to manage ineptitude and suppression of stories. By now moving far beyond satire, the BBC website has created a Q&A list for the affair, and some difficulty is being experienced getting back in control of the news agenda …;

(3) Meanwhile, (Prof) Conor Gearty has some thoughts on blogging …;

I’ll go with the third – wouldn’t you ?

We’ve Been Here Before ?

7 Nov

Joshua Rozenberg writes in The Guardian of the UK’s relationship with the ECHR (he says, more correctly, the Council of Europe) reaching a turning point soon. This is primarily about Prisoner Votes, although as his article implies there’s a general accumulation of ‘UK loses again’ rulings recently too.

This writer’s view is that no-one really knows what will happen if/when the latest ‘do something‘ deadline passes without action. Joshua – and doubtless others who value the UK’s membership of the Council/ECHR system – are making helpful suggestions along the lines of ‘OK, you don’t like it, PM, but all we really need to do is …’ These have the merit of indeed addressing the immediate point, but not the bigger picture – what seems a general sense in Government of ‘ECHR fatigue.’ Thus Sir Edward Garnier QC’s surely-perceptive remarks quoted in the article. Of course, there’s also the question of whether the ECHR is beginning to feel ‘UK fatigue’ …

A Sense of Irony and a Strong Stomach …

6 Nov

… are recommended as Reading Aids for one of this week’s Human Rights cases, Redfearn v UK (2012) (ECHR) <click left for link>.See here for the Human Rights Blog’s admirably rational summary <click left>.

The Applicant was a BNP (British National Party) Councillor in Bradford. After this came to his employer’s knowledge, he was dismissed in 2004 citing Health & Safety grounds, although it seems reasonably clear that the real issues were: (1) the Applicant’s politics, and (2) Bradford’s substantial Asian communities, with whom the Applicant’s work for Serco brought him into contact.

Some years later he ends up in the ECHR – we said you needed a sense of irony – and succeeded in the Fourth Section of the ECHR on an Article 11 Freedom of Association complaint, by a bare majority, the UK Judge Sir Nicolas Bratza dissenting.

The original Strasbourg hearing is here in January 2009, following a UK Court of Appeal case in March 2006 Serco Ltd v Redfearn [2006] EWCA Civ 659 (CA). The time taken is striking – possibly no-one was in much of a hurry. The CA pay tribute to the barristers’ endeavours …

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