Julian Assange, Ukip and Baron Mance in three-in-a-bed legal shocker

The Supreme Court’s fumbled judgment in the Julian Assange extradition case throws up an interesting anomaly. If you’re a fusty, old-fashioned, nation-state, Euro-sceptic, sovereignty of Parliament sort of chap you’ll be backing Assange, the freewheeling, libertarian Kremlin-supported citizen of the world and destroyer of national security.

Ukip politicians, for example, have rushed to the WikiLeaks founder’s cause since he is defending all they hold dear – or at least battling against all they despise: the European Union and internationalist regulation trampling on our treasured freedoms right back to Magna Carta.

Now Lord Mance has joined these strange bedfellows thanks to his minority judgment in the case.

To explain. This, in brief, is the majority view in the Supreme Court: prosecutors in Sweden have made an application to have Assange extradited to question him about sex allegations; UK law (Section 2(2) of the Extradition Act 2003) says extradition applications under the European arrest warrant (EAW) should be made by a judicial authority. The EU’s Framework Decision that governs EAWs also uses the words “judicial authority”.

Thus Article 1: “(1) The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person…”

But international practice has on occasions been that European arrest warrants have been accepted when issued by prosecutors – as in the case of Sweden’s against Assange. The issuing authority’s national laws allow that to happen so the responding states have accepted the warrants.

The result is that contradictory laws and procedures are in existence between member states that are supposed to be singing from the same songbook.

How to resolve this? Lord Phillips, backed by the majority in the Supreme Court Assange case, wheeled in the 1969 Vienna convention on the law of treaties (pdf).This says under Article 31(3) (on the “general rule of interpretation”) that in interpreting a treaty (such as the EU’s Framework Agreement on arrest warrants) “there shall be taken into account … (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

Since under The Framework Decision EAW’s had been accepted by some member states from prosecutors, not just judges, that principle now, in effect, becomes part of the treaty. It applies to all signatories even though they did not sign up to that principle – since it wasn’t there to sign up to!

The treaty has been modified, or if you prefer, clarified, by the way the treaty has been operated by some of its signatories. The rest must comply with, on the face of it, laxer standards applied post hoc by practices rather than the letter of the Framework Decision.

It is this argument that was put by Phillips in his judgment but not put to Assange’s lawyers earlier – hence a further delay in the case so they can have an opportunity to rebut it.

‘The definition of a ‘judicial authority’ is exactly that. In this country, it is the Bow Street magistrates’ court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant’ Bob Ainsworth

Lord Mance, however, did grapple with it and popped another complication into the pot. What about parliamentary sovereignty?

Broadly this doctrine would suggest that the law should be the law as passed by the sovereign British Parliament and according to the intentions of Parliament. Parliamentary sovereignty diehards would see that as the decisive argument. The British Act says “judicial authority” so British courts should only accept warrants from judicial authorities.

Mance introduced into the debate that old warhorse of purposive judicial interpretation, Pepper v Hart [1993] AC 593 to suggest that statements in Parliament could be used to clarify the Act wherever it is ambiguous.

So, Home Office minister Bob Ainsworth said on 9 January 2003: “We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country.”

On another occasion, pressed on the matter by MP Gwyneth Dunwoody, he said: “The definition of a ‘judicial authority’ is exactly that. In this country, it is the Bow Street magistrates’ court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant.”

It should therefore, the Mance argument runs, be possible to assume from those words, as well as the words of the act, that Parliament intended that European arrest warrants would be issued by judges, courts and the like, not prosecutors.

Lord Phillips denied the parliamentary statements were admissible under Pepper v Hart. He prefers the view “that the text of much European legislation is arrived at more through a process of political compromise, so that individual words may be chosen less for their legal certainty than for their political acceptability”.

And that is the nub of the issue. We are talking here about due process; a man’s freedom is in the balance. These matters should be decided, one would have thought, on the basis of deep-seated legal (and moral) principles, not on “words chosen less for their legal certainty than for political acceptability”.

Phillips is asking us to accept a bizarre fiction, that when the parliamentarians voted on this piece of legislation, they did not vote for the words on the face of the bill before them or on the basis of the minister’s words which confirmed the meaning of the Bill; they voted for the uncertain possibility that some authorities in some other legal jurisdictions might fabricate a new law between themselves, one that said that people other than judicial authorities would be able to issue and have accepted these warrants.

They were voting, apparently for a mystical invisible clause in the Bill that would suddenly become enacted and immediately in force when people in other member states happened to act in a particular way.

Lord Phillips is asking rather too much of our legislators to believe that, unbidden, they will have in mind Article 31(3) of the Vienna Convention whenever passing legislation relating to international relations. Lord Phillips is a man of profound legal understanding with a long and honourable legal career; parliamentarians for the most part are not. But even Lord Phillips arrived at this abstruse point only very late in the day (hence the renewed delay in the case) after having heard intense legal argument and after having wracked his brain to find some way of justifying sending this meddlesome Assange fellow to his Swedish fate.

Funnily enough, on this occasion the Government has not rushed to condemn this “unaccountable judge” trampling on the will of Parliament. When it comes to Assange, Lord Phillips and the Government seem to be as one.

David Hart QC writes in the UK Human Rights Blog here
Joshua Rozenberg’s view is here

Constitutional Reform Act 2005 amendments in the Crime and Courts Bill 2012

The Crime and Courts Bill 2012 has important amendments to Britain’s Constitutional Reform Act 2005 that reduce the independence from the Government of judicial appointments.

In particular the Secretary of State for Justice (aka Lord Chancellor) is to sit on the appointment commission for the President of the Supreme Court (while the sitting president would be removed) and on the appointment commission for the Lord Chief Justice; there is to be a new requirement that he be consulted on other senior judicial appointments; whole sections of the 2005 Act on judicial appointments procedure are to be removed; powers to decide how to replace those sections are given to the Secretary of State; as are powers to decide the make-up of the Judicial Appointments Commission (with a view to increasing the proportion of lay members compared with judicial members); the Secretary of State will have the power to repeal or amend those sections.

It is intended that the 12 Supreme Court justices should become a “maximum” of 12 (or full-time equivalents) with the Secretary of State deciding exactly what number is required.

There are also amendments intended to increase diversity such as provision for part-time judicial posts and a “tipping point” provision whereby diversity requirements can come into play if two judicial candidates are deemed of equal merit.

According to the Home Office publicity the bill will “reform the judicial appointments process to promote greater transparency and improve judicial diversity”.

What it nowhere mentions is that it will bring the Lord Chancellor into a direct role in appointing the President of the Supreme Court and Lord Chief Justice. The ancient title of Lord Chancellor, once the highest judicial figure in the land and ranking after princes of the blood and the Archbishop of Canterbury, now hides the face of a purely political ministerial appointee, the Secretary of State for Justice, currently Kenneth Clarke. So the result (and intention) of the legislation is to gain a political handle on judicial appointments, taken away from the political realm by the 2005 Constitutional Reform Act.

The public statement (see below) makes no mention of this. Nor does it mention that in future the Lord Chancellor will be given powers to change the judicial appointments procedure at will (with minimal and passive oversight by Parliament).

While the diversity provisions are modest, though welcome, the new powers for the Government on judicial appointment via the Secretary of State are a dangerous attack on judicial independence and on the principle of the separation of powers, established for the first time in the country’s history in the 2005 Act. The quasi-”Henry VIII” powers allowing the Secretary of State to in effect draft his own law on appointments procedure are particularly disturbing.

The Ministry of Justice seems to think what the Secretary of State is being given are not Henry VIII powers because they are not strictly to amend the 2005 Act.

This is disingenuous in the extreme. Since the provisions in the 2005 Act will be removed “from the face of the act”, the Lord Chancellor’s powers won’t be able to amend them – because there will be nothing there to amend! Instead the Lord Chancellor can come up with his own personalised legislation which will not need to go through Parliament in the way statutes normally do but instead by the “affirmative procedure” – just like “Henry VIII” secondary legislation. He can just pop it in among the other 3,000 statutory instruments a year that sit in Parliament but are not generally scrutinised.

One provision in the 2005 Act that is not being repealed or amended is S.3(1) which says: “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.” It looks as if the Lord Chancellor and the Government have put themselves in breach of this provision by bringing forward the changes in the Crime and Courts Act…

Note: Since it is often difficult to read back to the original Act on the basis of amendments, the relevant sections of the 2005 Act  have been stitched together with the amendments in the Crime and Courts Bill regarding judicial appointments and also diversity here: Amendments to 2005 Act

Note: MoJ public response to comments on its proposals (Pdf):
Report on response to consultation on Appointments and Diversity: A Judiciary for the 21st Century

These items may also be of interest:

A lesson from history: don’t politicise judicial appointments, says senior judge

Ken Clarke defends plans for government role in judicial appointments

Ken Clarke gets his Henry VIII clause into judicial appointments

Kate Malleson writes on the changes here

Cameron sacrifices Jeremy Hunt and the British constitution

The Jeremy Hunt affair in Britain has shown that the problem with being governed by ex-policy wonks and PR men rather than politicians is that they tend not to be imbued with a sense of the great historical struggle for liberty and a Parliament free and independent from the monarchy that has culminated in placing them in the positions of power they enjoy today. As a result they play fast and loose with the British constitution and let those great freedoms drain away for the sake of political expediency.

Take Article 9 of the Bill of Rights of 1689 for example. It says: “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.”

What Article 9 emphatically does not say is: “If the prime minister is in a tight spot and needs a bit of breathing space, he can pack his Culture Secretary off down the Road to the Royal Courts of Justice, there to hang him out to dry by having him cross-examined by Queen’s Counsel before one of her majesty’s most learned Lord Justices.”

Any such suggestion would be anathema to Prime Minister David Cameron’s forebears and it took several civil wars and the Glorious Revolution to ensure that, constitutionally, there should never be such a suggestion. Oddly, David Cameron himself  is generally rather opposed to “unaccountable judges” second-guessing the decisions of democratically accountable ministers (as pointed out here). He has made a special exception for Hunt.

Article 9 not only enshrines the parliamentary privilege of free speech but is taken as one of the sources of parliamentary sovereignty. Thus, if a parliamentary bill passes all its stages in the House of Commons and the House of Lords and is signed by the Monarch, it is indisputably law – it cannot be “impeached”, meaning criticised, countered or judged, for example in a court of law.

Among the privileges of the Houses of Parliament is the exclusive right to determine their own proceedings – Lord Simon

Nor can the process that went into passing it be examined, even if incorrect procedure is alleged. So in British Railways Board v Pickin (where Pickin alleged a private bill had been secured for BR in part by misleading Parliament), one of the Law Lords hearing the case, Simon L, declared: “Among the privileges of the Houses of Parliament is the exclusive right to determine their own proceedings.” The courts could therefore not adjudicate on the matter.

But by sending Hunt off to wriggle uncomfortably in front of the Leveson inquiry, the constitutional principle has been thrown away to save the Prime Minister’s skin. It will take the spotlight off him in the hope that when it turns back onto him, Mr Cameron will have thought of some sort of wheeze to get himself (though not necessarily Mr Hunt) off the hook. Or else the fickle press will have turned its attentions to something more interesting – the first drug scandals of the London Olympics, perhaps.

But the constitutional position bears examination. Mr Hunt serves at the pleasure of the Prime Minister. Mr Hunt’s activities in considering the bid by Murdoch’s News Corp for the BSkyB shares it doesn’t own was, broadly speaking, part of the proceedings of Parliament. It follows that it is no part of the duties of a judge sitting (albeit for convenience rather than officially) in one of her majesty’s courts to examine Mr Hunt’s performance of those duties. This is why ministers’ behaviour (when doing official duties) is governed, not by legislation, but by the ministerial code, of which the Prime Minister is the guardian.

If there is an allegation that Mr Hunt has done some wrong in exercising his ministerial responsibility, his behaviour cannot “be impeached or questioned in any court or place out of Parliament”. It is for the Prime Minister and ultimately Parliament itself to deal with its own members through it’s own processes.

Lord Justice Levenson knows this; Mr Cameron’s adviser on ministerial matters, Sir Alex Allan, knows this; whether or not Mr Cameron knows it, he ought to.

So it was perfectly correct that the Speaker should summon Mr Cameron to answer an urgent question on the Hunt affair. For there is another hard-won constitutional tradition in Britain: that the Prime Minister has a duty to keep Parliament informed of significant matters, not keep Andrew Marr thus informed. It follows that, if the Prime Minister wished to undertake a damage limitation exercise by admitting he did indeed talk to Rupert Murdoch about BSkyB at Rebekah Brooks’s Christmas party, he should do it from the parliamentary despatch box, not from Mr Marr’s comfy chair.

It was in this interview that Mr Cameron denied any “grand bargain” between himself and Murdoch. Murdoch offered him no incentive, no bribe of political support in order to get the BSkyB bid through, he declared. His words bring to mind the Humbert Wolfe barb, now appropriate for the British politician though originally aimed at the impossibility of bribing a British journalist:

“But seeing what the man will do
Unbribed there’s no occasion to”.

Note: Lord Morris in Pickin said (albeit in the context of the passing of legislation):
“It would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed.”

After Trayvon Martin, Britain’s ‘stand your ground’ law

Is the UK Parliament about to bolster the law on self-defence with a British version of the US “stand your ground” law implicated in the killing of Trayvon Martin? There is no doubt that the Prime Minister’s commitment to the Big Society would be boosted if he could recruit an army of volunteers willing to bring down criminals by private intervention – and bring down the crime rate too.

So here is clause 149 of the Legal Aid, Sentencing and Punishment of Offenders Bill [now Section 148 of the newly passed Act] which says that when assessing whether the degree of force used by a defendant claiming “private defence” (self-defence, defence of another or prevention of crime) was reasonable:

“a possibility that [he or she] could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat”.

Compare the Florida law cited by Trayvon’s killer, George Zimmerman, which says:

“a person is justified in the use of deadly force and does not have a duty to retreat if … he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

The new UK provision establishes that if you are attacked and fight back, you do not have to prove you first turned and ran to avoid the attack: you can stand your ground and defend yourself.

Now, most people when faced with a weapon-wielding crazy-man intent on doing serious physical harm would, in fact, retreat – and retreat as far and as fast as possible. But not in the Wild West Big Society have-a-go-hero fixated minds of the proponents of “stand your ground”. Instead it goes something like this: a swift upper-cut to the chin of the villain of the piece; a neat move to pinion him to the floor with a hand to the throat; the other hand pressing the cold barrel of a Colt 44 to his temple; give him over to the custody of the sheriff; get the girl in the final reel.

But legal powers don’t necessarily give you super powers. A more realistic scenario is that in R v Bird (1985), a leading case on self-defence. Here there was an argument between Debbie Bird and her ex-boyfriend; she poured a glass of Pernod over him; he responded by attacking her; she hit him in the face with a glass leading to the loss of an eye. The trial judge suggested that to rely on self-defence she should have shown evidence of not wanting to fight – not necessarily running away but certainly seeking to “temporise” in some way.

Bird was convicted but the conviction was quashed on appeal on the basis that the trial judge had got it wrong: there is no requirement for a defendant claiming self-defence to show she had “temporised”. So you can, indeed, stand your ground and respond with reasonable force. Lord Lane made the point thus: “Evidence that the defendant tried to retreat or tried to call off the fight may be a cast-iron method of casting doubt on the suggestion that he was the attacker or retaliator or the person trying to revenge himself. But it is not by any means the only method of doing that.” Some proof will be needed that you didn’t want to fight, but not necessarily “temporising” or running away.

The issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property  – Crispin Blunt

But it’s not just a matter of standing your ground. You may also, literally, walk into trouble – go anywhere it is lawful to go even though you know there is some ne’er-do-well ready to pounce on you. That principle was established in R v Field (1972). Despite the claim by Tim Larkin, US self-defence “guru” banned from Britain, that UK laws are lax on self-defence, in fact they are pretty strongly supportive of the victim who fights back.

So why is the new law needed?

The short answer is that it isn’t. The longer answer would involve looking at the pressing requirement politicians have to find problems in society so that they can then pass laws and say they have solved those problems.

As well as the self-defence issue, another such perceived problem is the notion that property is wholly naked and undefended by our laws. There is a folk memory of the Tony Martin case (R v Martin (Anthony) 2001), a feeling that his booby traps and shooting of intruders with a pump action shotgun should somehow have been allowed.

So the Legal Aid Bill adds a new “legitimate purpose” to the private defence provisions in s.76(10)(a) of the Criminal Justice and Immigration Act 2008 (CJIA). As well as self defence, defence of others and prevention of crime, it will be possible to plead private defence for “the purpose of defence of property under the common law”.

This, as the Bill’s sub-clause itself says, is already part of common law – but it is also part of statute law since s.76(10)(a)(ii) of the CJIA is about the right to use force to prevent crime. The right to “defence of property” is merely another way of saying the right to prevent crime involving property – whether theft, damage or burglary.

So, again, why is the new law needed?

When MP Elfyn Llwyd asked this question in the House of Commons, Crispin Blunt, Under-Secretary of State for Justice, said: “The issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property … we must send a clear signal from this place about whose side we are on.”

So the resources of Parliament, at great expense of time and money, have been put to the use, not of reforming the law (which does not change) but for sending a message, surely a matter far more suited to the no doubt highly competent government publicity machine.

But there is another interesting (and perhaps disturbing) twist to this story. There is a change regarding the defence of property: squatting of residential properties is being criminalized (as explained here.)

What once was a sometimes complex civil procedure for removing squatters from unoccupied residential property will now be a criminal matter.  So does that mean, armed with Mr Blunt’s crystal clear message of “defence of property” and “stand your ground”, an owner observing this criminal act in commission can go “where it is lawful to go” – into his own property – take a posse with him and use physical force to turf out the squatters?

In fact such action would require the assumption that the new law supersedes the law against such behaviour (in s.6 of the Criminal Law Act 1977). But presumably someone “defending property” against criminal squatters will have the blessing of Mr Blunt and his government since, in Wild West/Big Society Britain, he will be saving taxpayers’ money on expensive court services and policing. And after all, in this world, sometimes a man’s gotta do what a man’s gotta do.

Note: In R v Hussey (1924) a tenant was charged with wounding after his landlady and others armed with a hammer, poker and chisel attempted to illegally evict him by smashing down his door. Hussey shot through a broken panel of the door and wounded his landlady’s accomplices.
The Lord Chief Justice, granting Hussey’s appeal against conviction, said: “No sufficient notice had been given to the appellant to quit his room, and therefore he was in the position of a man who was defending his house.” A tenanted home is as much an Englishman’s castle as an owner’s home, after all.
He quoted Archbold (26th edition): “In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary.”

The new law on squatting gives no guidance about whether squatters should be given notice to leave their illegally occupied properties nor of what level of force might be acceptable in their removal or whether the police must do the job (though arrest will come under the Police and Criminal Evidence Act 1984 and will be limited to a uniformed officer – s.17(2)(a)). It may even be that squatters fighting back against private persons evicting them could claim  private defence. Particularly if they do not know they are squatters because some one has given them a fraudulent tenancy.  The possibilities for legal and physical wrangling are endless.

See also: Kenneth Clarke says stab a burglar. Is that reasonable?

And: Criminalisation of squatting will cause problems, not solve them

A good US legal analysis of “stand your ground” and “castle principle” laws is here: Sherry F Colb

Note: This piece was written before the Legal Aid &c Bill was enacted. It received royal assent on 1 May 2012 and is here

The Florida law:
Code 776.012: Use of force in defense of person. – A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

UK statute on private defence regarding prevention of crime
This is contained in common law, the 2008 Act and also the Criminal Law Act 1967, s.3:
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

R v Bird 1985
Judge at first instance: “You cannot wrap up an attack in the cloak of self-defence and it is necessary that a person claiming to exercise a right of self-defence should demonstrate by her action that she does not want to fight. At one time it was thought that in order to demonstrate that, that the person seeking to raise a question of self-defence had to retreat. That is not so any longer at all, but there is an obligation to see whether the person claiming to exercise the right of self-defence should have demonstrated that she does not want to fight at all.”

Lord Lane, on appeal, said the trial judge “put too high an obligation upon the appellant”. He approved the following passage from Smith and Hogan Criminal Law 5th Edition 1983:
“There were formerly technical rules about the duty to retreat before using force, or at least fatal force. This is now simply a factor to be taken into account in deciding whether it was necessary to use force, and whether the force was reasonable. If the only reasonable course is to retreat, then it would appear that to stand and fight must be to use unreasonable force.  There is, however, no rule of law that a person attacked is bound to run away if he can … A demonstration by [the defendant] at the time that he did not want to fight is, no doubt, the best evidence that he was acting reasonably and in good faith in self-defence; but it is no more than that. A person may in some circumstances so act without temporising, disengaging or withdrawing; and he should have a good defence.”

Criminalisation of squatting will cause problems, not solve them

It looks as if the UK Government will soon have its law criminalising squatting on the statute books, overturning a centuries-old legal principle and turning an estimated 20,000 people into criminals overnight.

The measure is hidden deep within the dark cloak of the Legal Aid, Sentencing and Punishment of Offenders Bill. Clause 145 on squatting [now enacted as Section 144] is the result of a late amendment to a bill that, as it’s name implies, has nothing to do with squatting. The amendment was added just before the bill headed to the House of Lords with only an hour and a half of Commons debate and only days after the Ministry of Justice published its paper on Options for Dealing with Squatting. 

Now you won’t read here any sentimental romanticism about the joy or justice of squatting. The trespassing of people’s homes, implying as it does an interference in their property, privacy and peace of mind, deserves no legal protection. That is why in another context those things are deemed breaches of human rights.

Instead, the argument is that Clause 145 is unnecessary, disproportionate and likely to harm, not to help, residents trying to get back into their homes.

Crispin Blunt, Under-Secretary of State for Justice, introducing the amendment, said: “It will protect those who are likely to suffer most from squatting – those whose homes are taken over by squatters.” He made something of the case of Dr Oliver Cockerell and his pregnant wife Kaltun, kept from their home by squatters. In fact such people are already well served by the criminal law.

The claim for new legislation is generally that because squatting is a civil offence (of trespass), the police refuse to intervene; that you can’t enter your own property while squatters are there because of so-called “squatters’ rights”; and their removal is a long-winded and expensive process through the civil courts.

If any of that is true in practice, it isn’t the fault of the current law, which already criminalises squatters who enter someone’s home. Not only are they committing offences if they do any damage (including changing locks) or use gas, electricity or Fairy Liquid, they are also committing a criminal offence if they refuse to leave when the legitimate occupier arrives. This is thanks to the Criminal Law Act 1977 (Section 12A) (which came into force in 2001). This law is designed to be a quick, easy and cheap remedy to the specific problem highlighted by the press of residents barred from their homes by trespassers. So here is how to get rid of squatters:

If you are a resident (owner, tenant, licensee or leaseholder) and come back from holiday, for example, and find squatters, you are immediately deemed to be a “displaced residential occupier”. You don’t have to go to court to gain that designation and it means that if the squatters don’t leave when you tell them who you are and ask them to go, they are committing a criminal offence. You may therefore seek police assistance. If there is any reluctance on the part of police to help, it is not the fault of the law. They may, as alleged by one Conservative MP, Mike Freer, say:“Sorry, guv, but it is nothing to do with us; it is a civil matter”; but if they do say that they are falling down on their duty to deal with a criminal matter brought to their attention. Dr and Mrs Cockerell were in this position and protected by this law (though reports suggest they pursued more complex civil procedures instead).

Similarly if you are planning to move into your home but haven’t occupied the property yet you become a “protected intending occupier”. You make out a written statement to say what your interest in the property is and declare your intention to occupy it. This is then signed by you in the presence of a Justice of the Peace or Commissioner of Oaths, who also signs it. You then show it to the squatters. You must, of course, tell the truth in the document – and it is a criminal offence if you lie.

This process is elegantly simple. It is not like getting a court order or anything complicated like that. It can be done pretty quickly if you can find a JP. You might want a lawyer, but you don’t have to have one.

Once you have the statement and show it to the squatters, they are acting criminally if they don’t leave – but they are not criminals up to that point unless they undertook criminal acts to get in in the first place or while they were there (which, in reality, they probably have).

‘We do not have the opportunity to scrutinise the legislation properly … the process of formulating the policy has been absurdly rushed’ – Andy Slaughter MP

Nor do squatters have any protection from the legitimate owner/resident entering the home while the squatters are there. You can even smash your door down to do so (don’t worry, it’s your door – you can do whatever you want with it). You must be a “displaced residential occupier” or “protected intending occupier” and you mustn’t threaten or perpetrate violence against the squatters themselves. This is thanks to the Criminal Justice and Public Order Act 1996 which exempts you from Section 6 of the 1977 Act which does criminalise violent entry while someone is inside (designed to protect people from dodgy landlords).

It is also still possible to go through the civil courts under Parts 55(1) and 55(3) of the Civil Procedure Rules (if you have a right of immediate occupation) and get an interim possession order. This has to be obeyed within 24 hours and it is a criminal offence to fail to do so under section 76 of the Criminal Justice and Public Order Act 1994, (though it may be challenged so may not be the best option).

So basically the state of the law is more or less what most householders/residents would like it to be but don’t realise that it already is. The police should help you get the squatters out, they can do it quickly without going to court first, and they should prosecute them if they broke in, if they damaged any of your property or stole it, or used electricity or gas or ate your food or soiled your bed linen or towels. Those are all criminal offences.

But generally residents simply want to get rid of the squatters – and that is what the law allows them to do, quickly and cheaply.

The beauty of the current system is that the intention of the squatters is irrelevant. You can remove them whether or not they think they have a tenancy, licence or a right to stay. They simply have to go to avoid committing an offence. Under the new law, to prosecute a squatter the burden of proof shifts to the prosecutor or complainant to prove the law has been broken. Before, the squatters were pretty well obliged to leave once the resident returned or had the JP-signed statement; now it may even benefit them to deny the offence and sit tight (since one assumes they remain innocent until found guilty). Legislation passed in haste will always allow lawyers to pick it apart at leisure.

The new law is of little use to the people who usually feature in the press, returning from holiday or setting up home. It will (theoretically) protect properties sitting empty – and empty for long and indefinite periods (a Lords amendment that the new law should only kick in if the home has been unoccupied for six months or more was rejected).

At the same time as criminalising squatting the government is curbing (to the point of negating) empty dwelling management orders which allowed local authorities to take over management of empty homes and bring them back into use. (A property will now have to stand empty for at least two years, rather than six months, before an order can be obtained.)

We must assume that the government is not the friend of residents and homeowners – they would prefer something put in place that ensures the current law works (perhaps something to make police treat illegal squatting as any other offence that is in the course of commission; or to ensure lawyers recommend the cheaper, quicker option before turning to the courts).

Nor is it the friend of the homeless since neither of these initiatives does anything to improve the supply of housing or deal with the crisis of single-person homlessness. Instead we must assume the government is the friend of pointlessly empty properties that could be people’s homes but aren’t.

Note: A further point is made here suggesting physical force by private individuals to remove squatters may now be lawful: After Trayvon, Britain’s ‘stand your ground’ law

Key points of clause 145 (now section 144 of the new 2012 Act):
Offence of squatting in a residential building
(1) A person commits an offence if—
(a) the person is in a residential building as a trespasser having entered it as a trespasser
(b) the person knows or ought to know that he or she is a trespasser,
(c) the person is living in the building or intends to live there for any period
…
(3) (a) “building” includes any structure or part of a structure (including a temporary or moveable structure), and
(b) a building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live.
4 For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.
…
(7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section.

Note: Clause 7 gives retrospective force to the new law hence criminalising the 20,000 estimated squatters instantly. Clause 4 deals with the scam whereby fraudulent tenancies are sold by crooks to unsuspecting victims who then become squatters without realising. These squatters will now also be deemed criminals.

Timeline
MoJ launches consultation paper on squatting 13 July 2011
21 July 2010: Legal Aid, Sentencing and Punishment of Offenders Bill’s first reading (without any mention of squatting)
Consultation on squatting ends 5 October 2011
MoJ final report on squatting 26 October 2011
Squatting clause introduced as clause 26 as an Amendment in the House of Commons 1 November 2011
Lords progress as clause 130 and 136 then finally 145: 23 November 2011 (Committees) – 26 March 2012 (Third reading)
Final consideration in the Commons 17 March 2012 (This is for amendments to the bill of which there were no successful ones from the Lords on the squatting clause)

The procedure by which the provision was included in the Bill prompted Labour MP Andy Slaughter to say: “We do not have the opportunity to scrutinise the legislation properly … the process of formulating the policy has been absurdly rushed.”

The Deputy Speaker, Nigel Evans, that evening had asked “for brevity from the Front Benchers and Back Benchers in these debates so that all the important matters before the House for decision today [on the Legal Aid etc Bill] can be properly considered”.

Judicial diversity: Lords call for positive discrimination and targets

The Lord Chancellor and Lord Chief Justice should be under an obligation to encourage diversity in Britain’s judicial appointments – and targets for women and ethnic minority appointments should be set if diversity is not improved within five years, according to a House of Lords Committee.

Minorities should be given priority when the choice of appointee is between equally qualified candidates, says the report by the Lords Constitution Committee. Dubbed the “tipping point” procedure by the Lord Chancellor, Kenneth Clarke, it would utilise Section 159 of the Equality Act 2010 which allows an element of positive discrimination where candidates are equally qualified. It cannot be used for judicial appointments, some argue, since judges must be appointed “solely on merit”, according to s.63 (2) of the 2005 Constitutional Reform Act (as explained here).

‘We do not consider that the concept of merit should be narrowly focused on intellectual rigour … a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself’ Lords Constitution Committee

The committee’s report wants changes in the career structure for the judiciary as well as in work conditions – allowing more part time working and careers breaks as well as encouraging non-barristers to apply for higher judicial posts. The committee, in a series of hearings (all reported on Alrich’s Weblog), has heard calls for a more structured career option for judges, drawing on the skills of lower tier tribunal judges and chairs as well as advocates and also putting in place formal appraisal procedures and career development. Retirement age for Court of Appeal and UK Supreme Court judges should rise to 75 in part to give opportunities later in life to those who haven’t followed a conventional career.

While reluctant to require targets, the committee says: “If there has been no significant increase in the numbers of women and BAME [Black, Asian and Minority Ethnic] judicial appointments in five years’ time, the Government should consider setting non-mandatory targets for the Judicial Appointments Commission to follow.” In January Ken Clarke suggested he might set targets if his own Ministry of Justice proposals to increase diversity failed.

The Lords committee, chaired by Baroness Jay, maintains that judicial appointments should be on merit but hints at the principal that diversity should be a component of merit, an the argument put by some of those in academia and the legal profession who appeard at its hearings. “We do not consider that the concept of merit should be narrowly focused on intellectual rigour”, it says. Being a member of an under-represented group will not in itself make someone a more meritorious candidate, but “a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself”. It can also increase public confidence in a judiciary.

On the issue of judicial independence the committee rules out anything other than a limited role for the Lord Chancellor. His right of veto for lower judicial posts should be transferred to the Lord Chief Justice, a proposal Mr Clarke has also made in the Ministry of Justice report on judicial appointments. The committee rejects any idea of US-style confirmation hearings “in order to ensure judges continue to have appropriate independence from Parliament”. It also rejects a proposal by the MoJ for the Lord Chancellor to be given a short list of candidates for the senior posts to select from (currently he gets one name to accept or reject). It notes:”The use of short lists would undermine judicial independence and be contrary to the principle of appointment on merit.”

Comment
Any talk of even non-mandatory targets and moderate tie-breaker “positive discrimination” will cause horror in some quarters, but many of the Constitution Committee proposals will amount to pushing on a semi-open door only lightly held back by the Ministry of Justice.

The Lord Chancellor, Ken Clarke, has said he already uses Section 159 “tipping point” process for (non-judicial) appointments within his ambit. The issue will merely be whether the “solely on merit” requirement for judges needs to be legislated away or whether the definition of merit can simply be expanded to encompass the wider requirements of a modern judiciary rather than a narrow old-fashioned view of barristerial excellence.

Clarke objects to targets but told the committee in January: “If these proposals [in the Ministry of Justice consultation paper] don’t work then let’s try targets.” He, like the committee, wants the bench to look more like the general population.

On judicial independence the Constitution Committee report also mirrors some of the points Clarke made to it. He wants to divest himself of a say in minor judicial appointments that he knows he cannot practically have a view on; like the committee, he wants the President of the Supreme Court excluded from appointing his own successor; he is no supporter of US-style confirmation hearings. He told the committee: “The American experience is shocking and wanting to get closer to that would be deplorable.”

But the far more real threat to judicial independence is not from Parliament but from greater government control: the Ministry of Justice proposals for the Lord Chancellor to have more say on appointing senior judges (rather than the current partial veto); a seat for him on the panel appointing the Supreme Court president and Lord Chief Justice; wide “Henry VIII” powers for him to be able to redraft appointment procedure with little parliamentary control.

The committee rightly rejected the idea that the Lord Chancellor be given a list of  applicants to choose his judges from – after all, if you can choose one of three, how can that guarantee the most meritorious one succeeding? More importantly it would allow the government to game the system and judges aspiring for promotion to make sure they were well in with the government in crowd by their public statements or behind the scenes.

Neither does the committee see any useful role for parliamentarians on selection committees. How would the parliamentarians be selected? Where would their loyalties lie? The implication, of course, is that the Lord Chancellor should not get his seat at the appointments table either – though that is not spelled out in the report.

The report opposes the idea of allowing the Lord Chancellor powers to issue directions to the Judicial Appointments Commission even on such worthy matters as diversity. After all, once you give him power to do “good” things, how can you stop him going further? “Such a power could lead to political interference and undermine the independence of the appointments procedure,” says the report.

Beyond one loosely secured door at the Ministry of Justice is a far more solid barrier behind which plans are being made to curb judicial independence. The Lords committee has begun to prise it open by asserting important principles. But in all these things, it’s the political battle that will really matter.

Note: All the hearings that led to the committee’s conclusions have been reported on Alrich’s Weblog. Browse them down the side or start from the last hearing here and work back through the links at the bottom.

Those interested in judicial independence may wish to view Ken Clarke gets his Henry VIII clause into judicial appointments

The Crime and Courts Bill of May 2012 includes an amendment to the 2005 Act introducing a ‘tipping point’ procedure:

Neither “solely” in subsection (2) [s.63 (2) of the 2005 Constitutional Reform Act], nor Part 5 of the Equality Act 2010
(public appointments etc), prevents the selecting body, where two persons are of equal merit, from preferring one of them over the
other for the purpose of increasing diversity within—
(a) the group of persons who hold offices for which there is selection under this Part, or
(b) a sub-group of that group.”

Additionally references to limits on numbers of judges are amended to “full-time equivalents” to offer opportunities to part-time judges.

Section 159 of the Equality Act 2010
Positive action: recruitment and promotion
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
(b) participate in that activity.
(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

Rebekah Brooks can’t get a fair trial? Tell it to the judge

It would be enough to make a Sun leader writer’s blood boil. If a gang embarked on illegal activities (allegedly); if it had at the centre of it (allegedly) a heartless flame-haired “criminal-in-chief” (as a former associate put it) allegedly linked (according to a deputy assistant commissioner of the Metropolitan Police no less) to “a network of corrupted officials” within an alleged “culture of illegal payments”; if this happened and they all got off on the basis of a loophole in the law, think how the Currant Bun would fulminate. You couldn’t make it up!

Unfortunately someone has, let’s say, been somewhat free with the legal actualité, throwing into doubt the chances of former Sun editor Rebekah Brooks (for it is she allegedly) and her colleagues ever receiving a fair trial for their (alleged) misdemeanours in the (so-called) hacking scandal.

The issue is that there has been “huge, dramatic and sensational” press coverage of the hacking story and particularly of the Leveson inquiry at more or less the same time as police have been stumbling towards the conclusion (one hopes) of their investigations into the matter. Anyone reading that coverage will be seriously prejudiced against Brooks et al. There is no jury in the land that would be able to give them a fair trial. This is the argument of Stephen Parkinson, Brooks’s solicitor. 

There is, of course, one jury that might have missed the “huge, dramatic and sensational” coverage: one made up from the many millions of good men and true (and women too) who read the Sun, since its coverage has been rather modest, restrained and unsensational. But leaving that aside, given the Leveson inquiry, can Rebekah Brooks get a fair trial?

The Attorney General, Dominic Grieve, has apparently been studying the Contempt of Court Act 1981 to see if he can work out what he must do in these tricky circumstances. It won’t help him because this is a situation without parallel and not one in which the answer lies in an Act of Parliament.

To the extent that the Contempt Act is enlightening, it tells us at what point the media must stop reporting the details of criminal allegations against individuals for fear of prejudicing their trial. The press risks being in contempt of court when the legal proceedings become “active”, which basically means when the alleged perpetrators have been arrested (see wording below). Arrests may occur because police are ready to charge the suspects or because further inquiries are necessary. In the latter case they may be bailed with conditions imposed. (How long bail can continue without charge has been muddied by the case of Paul Hookway but that’s another issue.)

On this reading the proceedings became active when Brooks and various others were arrested and bailed (as of 13 March). Actually Brooks was previously bailed as long ago as last July. In theory that means since then the media were restricted as to what they could say about the cases – name, ages, job, address and similarly unsensational facts – and no pictures.

But the Contempt of Court Act was passed when being on bail actually meant something. There was at least the social stigma plus the fact that a criminal charge could be “hourly expected”. Now it seems to be little more than an irritating interruption to the racing calendar. Or a chance to go down the nick for a periodic update on how the investigation is going from the lads you probably call friends (allegedly).

Before proceedings became active it would have been perfectly correct for anyone having evidence of any wrongdoing by Rebekah Brooks or her associates to tell someone about it – preferably the police, and certainly, if called upon, an inquiry chaired by a learned Lord Justice. Even, believe it or not, one of the popular prints that retail such sensational material.

The newspaper editors would take a view on which part of it was true and publish accordingly. The media are also wholly free to report the proceedings of the Leveson inquiry, held under privileged conditions.

Brooks and her lawyers must know this, not least, of course, because the papers of the sort she was in charge of regularly rely on exposés of paedophile priests, bung-ridden sportsmen and corrupt practitioners of all kinds, none of whom, when their cases come to court, can say “My case has been prejudiced by the ‘huge, dramatic and sensational’ coverage in the press.”

‘I have enough confidence in my fellow countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice’ Mr Justice Lawton

Mr Grieve should not waste his time with the Contempt of Court Act. Who would he prosecute? DAC Akers, Charlotte Church and all the other witnesses required to tell the truth (as they see it) at the Leveson inquiry? The media organisations throughout the country and around the world that published reports of what was said at the inquiry? The Guardian, whose doggedness brought these important matters of public interest to light (and thus, circuitously, to the attention of the police)?

So even if there were an issue of prejudice, it would be no different from any situation in which public exposure of scandal has ultimately led to court proceedings.

Judges are aware of these things and do their utmost to ensure trials go ahead and to minimise the possibility of prejudice in the jurors’ minds. They are interested in the actual risk of prejudice in the context of the case to be presented before them in the courtroom, not in any theoretical breach of the Contempt of Court Act.

The view of judges is generally that of Mr Justice (later Lord Justice) Lawton in R v Kray (1969): “I have enough confidence in my fellow countrymen to think that they have got newspapers sized up just as they have got other public institutions sized up, and they are capable in normal circumstances of looking at a matter fairly and without prejudice even though they have to disregard what they may have read in the newspaper.” So newspaper reports per se won’t prompt a judge to halt a trial even if on the face of it they look prejudicial.

It’s not always the case, of course. The murder conviction of Michelle and Lisa Taylor in 1992 was quashed by the Court of Appeal in part because “extensive, sensational and inaccurate press coverage of their trial had created a risk of prejudice”.

One front page headlined “Cheat’s Kiss” included a still from a wedding video showing an apparently lingering kiss between Michelle and the murdered woman’s husband – actually a mere passing wedding peck. Who was responsible for this egregiously bad example of prejudicial drama and sensationalism? It was the Sun what done it (of course).

Note: Since this posting Brooks, her husband and others have been charged over an alleged cover-up of phone-hacking evidence.

Michael Mansfield has also published a piece on the Guardian website on this issue. He writes: 

“There have been many such occasions, particularly where famous or notorious individuals have been involved. Clearly, the mere fact of favourable or unfavourable publicity is not enough [to halt a trial]. If it were, this would create a class of people immune to prosecution. On the whole, the UK courts have regarded the trial process itself as providing sufficient safeguards – for example, by warnings to jurors to ignore what they may have read, seen or heard in the media or on the internet. They take an oath to try defendants on the evidence presented to them. In exceptional cases at the start of proceedings, a judge may pose a question to establish whether a potential juror feels able to return an impartial verdict.” Rebekah Brooks needn’t worry about her right to a fair trial

Contempt of Court Act 1981

Proceedings are “active” according to Schedule 1 to the Act:
3 Subject to the following provisions of this Schedule, criminal proceedings are active from the relevant initial step specified in paragraph 4 [F1or 4A] until concluded as described in paragraph 5.

4 The initial steps of criminal proceedings are:—
(a) arrest without warrant;
(b) the issue, or in Scotland the grant, of a warrant for arrest;
(c) the issue of a summons to appear, or in Scotland the grant of a warrant to cite;
(d) the service of an indictment or other document specifying the charge;
(e)except in Scotland, oral charge.

Among events that conclude proceedings are the end of the court case and also:
7 (c) in the case of proceedings in England and Wales or Northern Ireland commenced by arrest without warrant, if the person arrested is released, otherwise than on bail, without having been charged.

Note: Media law writer David Banks has now made similar points to this posting here and quotes Lord Chief Justice Taylor in the Rose West case where media prejudice was argued:
“The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd.”

General Powers and Super Pickles: the new local heroes

So, what is the “general power of competence” that, at the sweep of a minister’s pen, can banish the courts from interfering with local authority affairs and bring religious harmony to our land? UK Communities Secretary Eric Pickles brandished his pen to sign into law ahead of schedule provisions of the Localism Act 2011 to deal with the Bideford Town Council prayers row. They give councils in England “general powers of competence”, powers that allow them “the same power to act that an individual generally has”. The idea is to free them to offer services in innovative ways. But Pickles has a wider agenda: to keep “unaccountable judges” out of politics.

Hitherto local authority powers have been constrained by Acts of Parliament – they could do what was laid out in those Acts (particularly the Local Government Act 1972) and no more.

A Communities Department introduction to the act says this: “Sometimes councils are wary of doing something new – even if they think it might be a good idea – because they are not sure whether they are allowed to in law, and are concerned about the possibility of being challenged in the courts.The Government has turned this assumption upside down. Instead of being able to act only where the law says they can, local authorities will be freed to do anything – provided they do not break other laws.”

In the past if councils went beyond their powers they faced judicial review on the basis of illegality – that their actions, in old legal parlance, were ultra vires. This was the case in the Bideford prayers affair.

Mr Justice Ouseley found that councils had no powers to hold prayer meetings as part of their business. Pickles hopes that rushing through the Localism Act provisions will knock that on the head: local authorities will be able to do anything they want as long as it isn’t unlawful.

Pickles has said that he has taken this approach rather than changes that would abolish the ultra vires principle. He said in written evidence: “Activities that individuals can undertake will no longer be able to be found to be ultra vires because they are not expressly provided for in legislation, or are of a type that are not normally associated with a local authority, or other public body.”

The intention is clear: to put local authority powers beyond judicial review, to keep the courts out of democratic decision-making. It is a power the government would also very much like for itself, as David Cameron indicated when the courts intervened in the Sharon Shoesmith affair – the argument being that if the Government has a democratic mandate, courts should not interfere in its decisions.

For students of public law it will mean some rewriting of the text books. Take the classic case of the wash houses and the laundry service, Attorney General v Fulham Corporation (1921) – used to illustrate the concept of illegality (ultra vires). The council was empowered to set up wash houses for residents to do their laundry. It decided to also run a paid-for laundry service. This was deemed beyond its powers. Now it would be welcomed – particularly if a bit of profit could be made. One of the things an individual (as a “legal person”) can do is set up companies, and this is what is intended for local authorities.

S. 4 (2) of the Localism Act says: “Where, in exercise of the general power, a local authority does things for a commercial purpose, the authority must do them through a company.” The ideal would be a series of semi-independent private companies offering services associated with local authority provision – or even services that have never been within councils’ purview – if you or I could do it, so can a local authority.

For example Essex County Council has used so-called well-being powers (a more restricted general competence introduce by Labour in the Local Government Act 2000) to set up a bank to lend to small businesses on the basis of local authority assets (it has since been wound up). It also created Essex Cares, wholly owned by the council, to provide social care. It transferred its 850 social care employees into the company – and also transferred legal liability. Several homes, run as separate subsidiaries, found themselves “unprofitable” and staff contracts were renegotiated – something that would have been difficult to do while the homes were absorbed within the council. This and the fact that there is nothing to stop local authorities selling off any of their businesses raises suspicion among trades unions that such local authority trading companies are simply a softening up stage towards privatisation.

If the Secretary of State thinks that a statutory provision (whenever passed or made) prevents or restricts local authorities from exercising the general power, the Secretary of State may by order amend, repeal, revoke or disapply that provision – S. 5 (1) Localism Act

The new law does not bar judicial review altogether since there are likely to be other cases for example based on procedural impropriety – failure to follow procedural rules. It is also a moot point whether Pickles’s action actually will allow councils to hold prayers, that is, to modify their procedures and undertake actions on what amounts to ideological grounds. In particular small Parish and Town Councils such as Bideford have to seek the general power of competence and may not want it or qualify for it (if more than a third of members are co-optees).

There are other areas likely to prove controversial. For example, will the companies councils set up be covered by human rights law? Local authority entities, as emanations of the state pursuing state aims, generally are so covered – but what about the new profit-making trading companies that do not even have to be providing traditional state services such as care or welfare?

In the case of YL v Birmingham Council (2007) judges decided that residents of a private home were not covered by the Human Rights Act even though they were placed and paid for by the council. The law had to be changed by the Labour Government to bring private homes within the ambit of human rights. The mood is very different now and the Government is most unlikely to extend human rights where it does not have to.

In fact it is more likely to cut down on legal requirements that might stand in the way of the operation of general competence – including perhaps those in the 2010 Equality Act. And Mr Pickles has given himself remarkable powers to remove such burdens. S.5 (1) of the Localism Act gives the Secretary of State “Henry VIII” powers (explained here) to repeal any part of another Parliamentary Act – whether past or future – that the Secretary of State thinks stands in the way of a local authority doing what it wants – or more correctly perhaps, what the Secretary of State wants. There is mention of consultation but basically Acts passed by the democratically elected Parliament can be amended or repealed by a single person. These are not the powers “any individual” normally has – they are super-powers. They cannot be challenged by judges and his decisions will have only the most cursory scrutiny by Parliament.

They are akin, to use another historical regal analogy, to James II’s “dispensing” power. It will be remembered that the 17^th century king got into some trouble by “dispensing with”, that is, disapplying, Parliamentary Acts he disapproved of – sometimes barely before the ink of his own signature on those acts was dry.

Pickles has given himself just such draconian powers whenever he “thinks” a Parliamentary Act stops councils doing things that he wants to see them do. In Pickles’s case, however, he doesn’t have the excuse of being a pre-democratic autocratic monarch with absolutist tendencies.

Alrich’s view of the Bideford affair is here

There is a discussion of the general powers issue on Lawthink here 

And here Andrew Le Sueur gives his view

This is a Communities Department guide to the Act

Notes

Localism Act 2011

Section 1: Local authority’s general power of competence
(1) A local authority has power to do anything that individuals generally may do.
(2) Subsection (1) applies to things that an individual may do even though they are in nature, extent or otherwise –
(a) unlike anything the authority may do apart from subsection (1), or
(b) unlike anything that other public bodies may do.
(3) In this section “individual” means an individual with full capacity.
(4) Where subsection (1) confers power on the authority to do something, it confers power (subject to sections 2 to 4) to do it in any way whatever, including –
(a) power to do it anywhere in the United Kingdom or elsewhere,
(b) power to do it for a commercial purpose or otherwise for a charge, or without charge, and
(c) power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area.

Section 5
(1) If the Secretary of State thinks that a statutory provision (whenever passed or made) prevents or restricts local authorities from exercising the general power, the Secretary of State may by order amend, repeal, revoke or disapply that provision.

Explanatory notes
10) Section 1 provides a general power of competence for local authorities in England. It gives these authorities the same power to act that an individual generally has and provides that the power may be used in innovative ways, that is, in doing things that are unlike anything that a local authority – or any other public body – has done before, or may currently do … the power does not need to be exercised for the benefit of any particular place or group, and can be exercised anywhere and in any way … The amendments to the Local Government Act 2000 mean that the well-being power provided in section 2 of that Act will no longer apply to English local authorities.

Note: The 2000 Local Government Act that created the “well-being power” imposed restrictions on it including this in S.3(1): “The power … does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made).” This ultra vires provision is in effect revoked by the new law.

Baroness Warsi and the holy alliance to capture the British constitution

Following Baroness Warsi’s returns from her spiritual sojourn in Rome and her crusade against “militant secularism”, the British constitution  itself has become the battleground for the struggle. History is being rewritten to dismiss secularists from the temple of democracy.

The Queen, in this Jubilee year, is seeking to rebrand the Protestant Established Church as an umbrella organisation – with her responsibility in it redesignated as “a duty to protect the freedom of all faiths in the country”.

Meanwhile, in a BBC Newsnight debate with Richard Dawkins, Michael Nazir-Ali, former Bishop of Rochester, has claimed Magna Carta and the 1689 Bill of Rights as Christian documents – along with other good things such as the abolition of slavery, industrial legislation and “reform of the nursing profession”.

Secularists have nothing to do with great beacons of British humanity and liberty, was his implication.

Well, up to a point, he’s not wrong. Christians were indeed instrumental, for example, in campaigning against slavery – just as Christians were deeply involved in the African slave trade.

Slavery was in fact abolished in England by William the Conqueror, who declared: “We forbid anyone to sell a Christian into a foreign land and especially to heathens. For let great care be taken lest their souls for which Christ gave His life be sold into damnation.”

All very Christian and, fortunately, allowing the trade in heathen Irish slaves to continue pretty well unimpeded. And justifying the later trade in heathen African slaves – many of whom were trafficked to utopian Christian colonies of the Americas. Among them was the Puritan colony of Providence Island in the West Indies. African slave labour was a crucial part of this new Eden, which had the support of 17^th century Puritan radicals such as John Pym and John Hampden. The struggles of these men for the Parliament and Puritanism culminated a generation later in the expulsion of the Catholic King of England, James II, in the Glorious Revolution – and Nazir-Ali’s beloved Bill of Rights.

So, yes, it was a Christian document – but one by which one Christian sect could ensure another Christian sect, the Roman Catholics, would never come to power in England again.

‘That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law’ – Bill of Rights 1689

So what was in this Christian document? The provision of most continuing relevance is Article 9: “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.”

This in effect enshrines parliamentary supremacy as well as free speech (in Parliament only, not throughout the country). So law courts cannot interfere with either the legislation that comes out of Parliament nor the procedures that arrived at it. And nor, importantly, can the Pope, regarded by Catholics as a higher authority than Parliament.

But beyond that the Bill of Rights is for the most part a series of complaints against James II, condemning his habit of suspending laws he didn’t like (generally those banning Catholics from public office), using the Ecclesiastical Court as his legal power base, raising non-parliamentary taxes, keeping a standing army.

There is nothing here that could be interpreted as an assertion of brotherly love or humane Christian values, no truths held to be self evident, no rights of man, not equality or fraternity – and only liberty for some.

Article 7 for example says: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” This meant defence against Catholics – because James, the document complains, caused “severall [meaning many] good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law”.

The Bill of Rights was a Christian document in the sense that it set the seal on the Protestant capture of the English state. The declaration of Rights, from which the Bill was derived, demands that England be ruled by Protestants in perpetuity by banning any monarchical marriage with papists. Parliament was to be Protestant, which is why 26 Church of England bishops continue in place in the House of Lords. Catholics were, as far as possible, banned from Parliament and public service, as were Dissenters. The state religion was to continue to be legally privileged as the Established Church.

If Nazir-Ali wishes to adopt the Bill of Rights as a great Christian document, he must accept its words, their meaning, and the historical baggage that comes with it. It is a narrow, sectarian document that institutes victor’s law and some of its unpleasant implications remain with us today. It is why the Queen is the Supreme Governor of the Church of England, not, on any reading of history or the British constitution, the representative of all religions.

Nazeer-Ali fails to see this and instead is seeking to claim for his Church the primary role in the political evolution of Britain – on the “Whig interpretation” that sees Magna Carta and the Bill of Rights as milestones on the road to democracy, and Anglican Protestantism as the highest stage of spiritual development.

He has said that the idea that Christian ideas are “embedded in our constitutional arrangements is no longer understood in the corridors of power. A disconnected view of history and the fog of multiculturalism have all but erased such memory from official consciousness.” He is seeking to fill the memory gap with his own fictionalised version of history.

One cannot but believe when a holy alliance is formed of a conservative Christian bishop, a Tory Muslim peer and the head of the Catholic Church, it is politics rather than religion that is behind it. But then, it was always politics that was behind religion.

Note: A legal view on the Bideford Town Council prayers ban is here

Bideford council prayers ruling fails to ban Christianity (shock)

Let us be clear. Britain remains a Christian nation, as Communities Secretary Eric Pickles has insisted – or just as much of a Christian nation as it was before Mr Justice Ouseley ruled that Bideford Town Council had no legal powers to hold prayers during council meetings.

Nor has there been any curtailing of “the right to worship … a fundamental and hard-fought British liberty,” as Pickles suggested. There is not, for example, any ban on Church of England clerics coming within five miles of London; no likelihood of vicars being burned at the stake; no exclusion of members of the Church of England from public office – all milestones (applied by the English state to Catholics and Dissenters) along the road towards establishing the “hard fought British liberty” of worshipping according to the rites of the Anglican state religion (in England, of course, not elsewhere in these islands, where there was a certain amount of resistance to having such British liberty imposed).

But enough of the rant. What actually has Mr Justice Ouseley done if he has not disestablished the Church of England and its communicants? What he has done is look at the powers of local authorities under the Local Government Act 1972 and found that they do not include the power to call elected representatives to a brief act of Christian worship. Such calls are, in the old terminology, ultra vires of the legislatively sanctioned powers of the Town Council.

It is true that Section 111 (1) of the Act (the focus of the judicial review under the Human Rights Act 1998 brought by former councillor, Clive Bone, backed by the National Secular Society) says: “a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.

But “any thing” is not the same as “anything”. It includes only those matters that form the duties or the discretionary powers of local authorities. As the judge put it: “The purpose of the meetings is to transact the business of the Council, which business is made up of the various express and implied functions, duties and powers, which it possesses”. Councils are not sovereign bodies and hence a vote by the council members is binding on nothing and nobody unless it is a vote on a matter within its legal competences.

That is a good thing, part of our “hard-fought British liberty”, since it would be an insupportable encroachment upon British freedoms if public bodies around the country, howsoever their members might be elected, could pass votes on anything and expect the result of those votes to be respected and actioned. Only Parliament can do that.

There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council – Mr Justice Ouseley

So the fact that Bideford council had voted to continue saying prayers at the beginning of meetings is a matter of no consequence since Bideford council is a public body regulated by parliamentary legislation. As the judge put it: “The Council has on two occasions by a majority voted to retain public prayers at its full meetings. But that does not give it power to do what it has no power to do.”

He noted further: ”The issue is solely about whether prayers can be said as a part of the formal business transacted by the Council at a meeting to which all Councillors are summoned. It is quite wrong for the Defendant [Bideford Council] to suggest that the Claimants would be introducing a bar on acts of worship before the meeting, thus hindering the exercise by Councillors who wished to pray of their right to do so.” So there is no ban on any hard-fought British rights to worship, privately or collectively, even within secular public property. Only as part of an official meeting of local authority members who are gathered to represent the people of Bideford, Christian and non-Christian, on a strictly limited set of issues laid down by law for a Town Council. “Pluralism does not mean that one religion is entitled to manifest itself on such occasions.”

The judge summed up the matter thus: ”There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council. I do not accept … that saying prayers is an act of such a nature that it does not require statutory authority, even by reference to s.111 of the 1972 Act. That provision is … the basis for all the implied powers which a Council might wish to exercise; the word ‘functions’ in s.111 embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it.”

There are numerous precedents for the doctrine that local authorities cannot step beyond their powers. Take Roberts v Hopwood (1925) in which Poplar Council had decided to pay a minimum of £4 a week to its staff – above market rates – and to pay men and women equally. The House of Lords ruled that the council had no powers to offer fair pay. Any discretion it might think it had was overridden by its Common Law fiduciary duties to the local rate-payers viz, to pay as little as it could get away with.

Lord Wrenbury put it thus: “A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so – he must generally exercise the discretion to do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”

A majority vote in council made no difference to that position. In paying fairly the council was “taking account of eccentric principles of socialistic philanthropy” and “feminist ambition to secure the equality of the sexes”, according to Lord Atkinson in the case. That would never do. Or not until Parliament passed legislation such as the National Minimum Wage Act and Equal Pay Act.

Eric Pickles should be well aware of the limits put on the powers of local councils. As Bradford Council leader in the 1980s he sought to institute a ticketing system to control who entered the public gallery for council meetings. It took a judge almost no time at all to declare the move ultra vires – and contrary to our fundamental and hard fought British liberty, to boot.

After the Bideford ruling Simon Calvert, spokesperson for the Christian Institute, complained that: “The logic of the ruling is that councils would also be going beyond the law if they took a vote and decided to start each formal council meeting with the national anthem.” Well yes, exactly. Nor could they take a vote to sing selections from Broadway shows or whistle Dixie. Because voting by members of public authorities does not make all things or any things possible. Only voting on things they have power through legislation to make possible makes things possible.

Note: This post should be read in conjunction with General Powers and Super Pickles, new local heroes on the “general power of competence”, which will change some of the law outlined above

A piece on the Constitutional implications of the religion v secularism debate is here

Note

This was the council clerk, Mr McLauchlan’s evidence on the Bideford prayers:

“Councillors and members of the public are not expected to participate in prayer and are free to leave the Council Chamber during the saying of prayers.  During prayers Councillors are seated. The prayer offered is a prayer led by a Christian Minister from one of the local churches.  In all there are about 8 Christian churches in Bideford and each have, at one time or another, been invited to say prayers. The prayer time normally takes about 2-3 minutes.”

This is Mr Bone’s:

“There was usually a short homily, followed by a prayer for the Council and its deliberations, sometimes ending with the Lord’s Prayer, in which those present were asked to join.  All prayers ended ‘Amen’.  No attempt was made to make it clear that Councillors who did not wish to participate could withdraw.”