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Paul Weller’s children: another brick in the wall of privacy law

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The judgment in the privacy case of three of pop singer Paul Weller’s children (Weller v Associated Newspapers has caused a little confusion – not least among some of the press who might be expected to need to understand it best.


Mr Justice Dingemans has perhaps added another small brick in the developing English law of privacy – clarifying when pictures of stars can and cannot be published when they are going about their private lives. Here’s a brief rundown.


There is no tort of invasion of privacy in England. You can, in general, take pictures of whomever you want so long as you aren’t invading property rights to do so. Nor, broadly speaking, are their specific rights to those images belonging to the people who feature in them.


However, Dingemans notes: “After the enactment of the Human Rights Act 1998, claims for misuse of private information were absorbed into the established claim for breach confidence; see A v B plc [2002] EWCA Civ 337 at paragraph 4. In paragraph 53 of Douglas and others v Hello! Ltd and others (No.3) [2005] EWCA Civ 595 Lord Phillips said “we cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action for breach of confidence claims for publication of unauthorised photographs of a private occasion”. (Para 20)


In other words a privacy law is being bit by bit put together by the courts from the old Common Law of confidence (ie misuse of confidential information) and the European Convention on Human Rights – balancing Article 8 (right to family life) with Article 10 (freedom of expression including right to publish photographs of people).


This is, of course, unsatisfactory, but politicians, who are often willing to bash “unaccountable judges” for apparently making up laws they don’t like, seem singularly unwilling to grasp this particular nettle and legislate to resolve the problems of this hybrid law-making. The first Culture and Media Secretary to suggest legislating on privacy would soon have his/her dirty private linen pored over (and pawed over) by the yellow press and hung out to dry in 108pt bold extended san serif to prove exactly what our privileged governing classes want to hide.  Former Sun editor Kelvin MacKenzie couldn’t help making the same sort of claims against silk-knicker-wearing judges (male) wanting to keep their  predilections and preferences for briefs private.


So where does the new judgment take us? At the heart of the issue is the question of “whether someone has a legitimate expectation of privacy” in particular circumstances.


In Campbell v Mirror Group  such an expectation was found to exist when pictures of the supermodel Naomi Campbell outside a drug clinic were published – not because she had a right to hide her addiction (she had lied about it and the press asserted a right to expose those lies) but because the cameraman held in his hands material that was clearly confidential: “the information conveyed by the photographs was private information”. (Campbell para 30). But, as Baroness Hale noted in Campbell:


“The activity photographed must be private. If this had been, and had been presented as, a picture of Naomi Campbell going about her business in a public street, there could have been no complaint.” (para 154)


This, in part, is because Campbell is a model and makes a living looking gorgeous – and so it may be assumed she will maintain that image in public when not strictly on shift. And, in these censorious Heat and Sidebar of Shame times, the public has a right to assess how well she does at this. (Hale does not quite put it like that.) So what of an ageing pop star out and about with three of his children? Do they have a “reasonable expectation of privacy”?


The issues that need addressing are these: “the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher, see Murray v Express Newspapers (2007) at paragraph 36”. (Weller para 27)


The pictures were taken in Santa Monica. Something was made of the pictures having been taken in America where the First Amendment on free speech applies. This would be considered but not in any overriding way, implied Dingemans. The publication within the British jurisdiction is what matters.


On the issue of whether “a private life exists in a public setting” the distinguishing factor here (compared with Campbell) is the children:


The decided cases establish that the position of a child claimant is different from that of an adult claimant. The courts have recognised the importance of the rights of children in many different contexts, as has the international community by the United Nations Convention on the Rights of the Child.”


Some suggestion was made that Weller had sought to present an image as a devoted father (of numerous children) with references to his family in published interviews. Weller himself said “he didn’t really have a public image as a musician and artist, and he wasn’t interested in promoting his image”. (para 90)


Something too was made of his wife, Hannah, using Twitter and making references to her family. And something was made of Dylan, now 17, being described as a model – perhaps to bring here within Hale’s definition of a public person. She had only ever done one modelling shoot at 14. And she had once attended a launch party for a brand of sunglasses.


But none of this amounted to the children’s exposing their private lives freely for the use and profit of the media. So:


“In my judgment the photographs were published in circumstances where Dylan, Bowie and John Paul had a reasonable expectation of privacy. This was because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father going shopping and to a café and they were identified by surname.”


However extraordinary their father (some like his music, some don’t), the ensemble gathered in Santa Monica was an ordinary family on an ordinary day out together. “The photographs showed how Dylan, Bowie and John Paul looked, as children of Paul Weller. The photographs also showed how Dylan, Bowie and John Paul looked on a family day out with their father.” (Paras 170-1)


They did not contribute to “a current debate of general interest” (ie public interest) the test in Von Hannover No 2. Despite public focus on the couple as proud parents, such full-face photos of the children going about their ordinary lives had not been published before – so could not be defended on “prior conduct” grounds.


There is a sense that Weller did not like profit being made by the Mail out of his children who could not assert copyright over the images. Publication from the Mail’s point of view helped in “maintaining public interest in the Mail Online and therefore profitability”. The implication of the judgment is that this is not a matter of public interest, though the press argues that such activity helps maintain the press, attracting readers and enhancing press survivability and hence diversity of opinion and freedom of speech.


Adding this up, Dingemans concluded:


“Publishing photographs of the children’s faces, and the range of emotions that were displayed, and identifying them by surname, was an important engagement of their article 8 rights, even though such a publication would have been lawful in California.”


Crucially damages were given to the children, not to their father. Quite different conditions might apply to him, as to Naomi Campbell on a shopping jaunt. Hence the irritation of at least one legal commentator at press headlines along the lines of “Paul Weller wins privacy damages over children’s photos on Mail Online” (see Jack of Kent’s increasingly despairing tweets). He didn’t. They did.


When no clear public interest can be seen in publishing pictures, English courts are drawing up battle lines for protagonists based on legitimate expectation of privacy. The issue then becomes: has the famous complainant foregone that expectation. So evidence will be adduced about the public profile of the complainant. When we are talking about children that evidence may include such personal (yet also public) material as pictures on Twitter or Facebook or interviews in which proud parents declare their pride in their children. It would be a very great interference with family life were such statements, thoroughly to be expected of all parents, to be treated as if they were forgoing all rights to privacy for their children thenceforth.


Certainly a star’s attempt to prove himself a family man if in fact he is an adulterer and general scumbag might come under the heading of “public interest” if hypocrisy is being exposed. But it would be a terrible thing if stars cannot talk about their children – and perhaps release authorised pictures to the world – for fear that they will be giving up their legitimate expectation of privacy.


 This judgment in effect supports that point. It gives famous families a certain leeway to pursue their lives – even, to some extent their children’s nascent careers, without those lives being plastered all over the papers.


Twitter: alrich0660

An in-depth (and long) barrister’s view of the case is on Inforrm’s Blog here

Other Posts on privacy: 

Privacy and judicial underwear 

Hannover: How big a victory for freedom of expression?

Leveson: Kiss goodby to kiss and tell 


Nigel Evans legal fees: thank the Tories we don’t have to pay

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Friends of Nigel Evans, the British House of Commons deputy speaker cleared of nine sexual offences, have complained that he has been financially wiped out by £130,000 of defence costs in the court case. And wags of a legal disposition have pointed out that he has only his own Tory-led Government to blame.

Conservative MP for Northampton South Brian Binley,  a friend and flatmate of Evans, and Tory Bob Stewart have both pointed out Evans must pay his defence costs even though he was acquitted of all charges – and the Crown Prosecution Service criticised for pursuing them. And Evans himself now says the state should pay. But none of them has made the link with Section 16A of the Prosecution of Offences Act, added by amendment to the act by the notorious Legal Aid Act (LASPO) in 2012.

This stops defence costs being awarded for those not legally aided except under limited circumstances. Costs can be awarded:

  • when a charge has not been proceeded with or it is dismissed by magistrates (S16(1));
  • when someone convicted by magistrates has the conviction set aside on appeal to the Crown Court or is given a less severe punishment (S16(3));
  • where the Court of Appeal allows a verdict of not guilty by reason of insanity or allows an appeal in cases of insanity or unfitness to plead under the Criminal Appeal Act 1968 (S16(4));
  • and where the legal costs were incurred pursuant to proceedings in the Supreme Court (S16A(5)).

This leaves one or two big gaps – in particular for someone who is as innocent as the driven snow (as Evans surely is) and has proved the point thanks to excellent (and expensive) legal assistance in the Crown Court before a jury of his peers. The situation is summed up in this legal note:

For proceedings in the Magistrates’ Court, it will remain the case that legal costs for an acquitted individual can be included in a DCO [Defendants Costs Order]. However, in proceedings in the Crown Court, legal costs can only be included in a DCO when the proceedings form an appeal of conviction or sentence, to the Crown from the Magistrates’ Court. Where the proceedings in question are proceedings before the Crown Court on indictment, legal costs cannot be included in a DCO.” (St Ives Chambers: When legal costs can be included pdf)

Rape is one of many serious charges that are dealt with by the Crown Court rather than magistrates. An acquitted suspect cannot get his costs back. This seems unfair and illogical – and seemed so to Plaid Cymru MP Elfyn Llwyd when he sought to amend LASPO on S 16A to remove the exclusion.

Jonathan Djanogly, Parliamentary Under-Secretary of State for Justice, rejected the amendment saying: “Legal costs are lawyers’ fees and disbursements, including expert witness costs. The cost to the taxpayer of the amendment would be about £40 million.” He added: “We intend to strike a fair balance between refunding legal costs to acquitted defendants or successful appellants who have paid privately and protecting the taxpayer from picking up the bill for legal costs, which on average are three to four times more expensive than legal aid costs; in some cases, the difference is even more.”

This even though the Conservative Attorney General, Dominic Grieve, said in opposition: “If a person wishes to be represented privately or has to be, then they are entitled at the end of criminal proceedings in which they are acquitted to recover their reasonable costs in exactly the same way as they would be able to do in civil proceedings.” He means that in civil proceedings costs can be recovered from the losing party – and so they should be when the state’s prosecuting authority in effect lose their case.

Djanogly said simply the Government, once in office, had changed its mind. We can’t afford to pay expensive lawyers hired at two or three times legal aid rates, and in particular “we cannot afford to fund the dream team defence when someone wealthy has engaged top lawyers to defend relatively minor cases at rates many times higher than legal aid”.

Llwyd made the point that cost orders were in the past strictly vetted to ensure they were not exorbitant. Previously (for cases commencing before 1 October 2012) cost orders could be made by judges for “costs reasonably incurred”. But the Government’s view seems to be couched in terms of an attack on rich people luxuriating in their innocence at vast expense to the public purse. Sadly, of course, not all those who appear for the defence in the Crown Court are Silk-style dream teams, nor are all cases as high profile as Evans’s. Many ordinary folk do not qualify for legal aid – and a deputy speaker’s salary of £102,098 doesn’t go far these days – even with all those expenses on top. (Evans has lost £30,000-odd of that salary when he resigned as deputy speaker – just as many “ordianary” people take a financial hit when they are accused of crimes.)

What can be done? As it happens LASPO allows the Secretary of State for Justice enormous “Henry the Eighth” powers to change pretty much all of the provisions on defence costs (S16A(6) of the substantive act). But it’s unlikely he’ll risk it after the expenses battering over Maria Miller. So friends of Nigel Evans may have to simply dig deep into their own pockets to help him out.

Twitter: alrich0660

A barrister, Jon Mack, has written to Bob Stewart explaining the situation here. He quotes former Lord Chancellor Ken Clarke thus:

“I do not believe the public understand a system that can pay out millions of pounds from taxpayer- provided central funds to compensate acquitted companies and wealthy people for their legal costs, whether that involves the £21 million paid to the firms in the Hatfield rail crash case, the £18 million paid to a number of pharmaceutical firms accused of price fixing, or the hundreds of thousands of pounds that have on occasion gone to celebrities accused of affray, assault and other crimes. Part 2 of [LASPO] therefore establishes that defendants who decline legal aid and pay privately in the higher criminal courts will no longer be able to recover the costs of an expensive private lawyer if acquitted[...]” (HC Debate, 29 Jun 2011, c995 – with one Nigel Evans in the Speaker’s chair…)

Head of Legal knocks on the head the idea that Evans’s prosecution was a manifest error  here

See also: Maria Miller and parliamentary privilege.
For more political sexual shenanigans: Rennard could and should have been put through a disciplinary procedure.
On Henry VIII clauses: Lord Chancellor gets his claws into judicial appointments.

Lord Rennard: Women should beware of slapping Old Goats

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Following the allegations of inappropriate sexual behaviour against the Liberal Democrats’ former chief executive Lord Rennard, some dangerous advice has been going the rounds. Basically women are told: if your chief executive touches you and you don’t like it – just slap him. Or throw drink in his face. Or give him a Chinese burn. This is the advice from Sarah Vine, Daily Mail columnist – and it is wrong. Slapping a chief executive is both a criminal and a sacking offence.

Now we must be careful. Lord Rennard has insisted no inappropriate conduct has taken place on his part. So for illustrative purposes we are going to assume that at some time, somewhere some chief executive or another has inappropriately touched a woman’s knee, rubbed another woman’s leg or put his hands down another couple of women’s backs “and places where they had absolutely no business being. We shall call our fictional chief executive “the Old Goat”.

The idea of slapping such a man seems to be based on a fanciful 1950s notion of morality. Our male lead (rather handsome with jutting jaw – so different from our own oleaginous, balding fifty-something fictional chief executive) gets a little fresh with our rather prim heroine. She delivers the slap; it knocks sense into him; he admires her feisty qualities; lust turns to love. There are flowers, a dinner date, a proposal of marriage.

None of those outcomes in reality is likely to occur – nor are they likely to be desired by the victim of our Old Goat’s attentions. The danger of resorting to violence is that it prompts only violence, and Sarah Vine is asking women who have been wronged in this way (touching people without consent and a sexual motive is a sexual assault: see Section 3 of the Sexual Offences Act 2003) to expose themselves to increased violence.

But say the Old Goat keeps his head and decides to pursue legal action instead. One might assume that the woman involved could claim the slap (or the kick – Vine adds kicking to her offensive armoury against Old Goats) was self-defence. It’s not so cut and dried. In fact she could well be charged with common assault (technically a “battery) – or even assault occasioning actual bodily harm if she successfully administered a Chinese burn or bruises his leg with the kick. This is a more serious charge under Section 47 of the Offences Against the Person Act 1861 involving “any hurt or injury calculated to interfere with the health or comfort of the victim”. R v Donovan [1934] 2KB 498. This might be “bruisings, grazes, the causing of tenderness” (R v Reigate Justices ex parte Counsell [1984] 148 JP 193) – which any really good Chinese burn would cause – and a really good slap might also.

‘For this purpose, we think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling’ – Swift J in R v Donovan

On the positive side she would not necessarily have to prove that her self-defence response was objectively reasonable in the circumstances. The reasonableness of self-defence depends on the victim’s perception of the threat to herself. The Old Goat (and many of the commentators) tend to downplay the significance of a hand on the knee etc. But if the victim honestly fears that is the start of a more serious molestation she is entitled to resort to any necessary violent action that will protect her. Never mind slaps, perhaps heavy vases or lamps or maybe the champagne bottle he might have been seeking to impress her with – all would be reasonable defensive weapons if she truly anticipated a serious attack.

That’s assuming her perception hasn’t been warped by the voluntary consumption of alcohol. If it’s the booze talking (perhaps the champagne bottle is empty by now) then she’s in trouble. An objective standard will be applied: was her response actually reasonable given the circumstances?

A further problem for the Old Goat’s victim is that the violent response must be self-defence, not some attempt to punish the groper, not simply revenge, nor even something that will make him see sense. A court might ask, therefore, what the purpose of the slap (or Chinese burn or kick) actually was. If it was the sort of action that could prevent a further attack by the Old Goat, then it’s self-defence. If it was simply outrage and an opportunity to give him something to think about, then it’s not. The victim becomes the villain: she has committed common assault or ABH.

Incidentally, the glass of wine in the face is just as much a battery as an actual blow. In R v Savage [1992] 1 AC 699 it was established that throwing beer in someone’s face was an unlawful act. She’d also be on the hook for criminal damage if there was a cost to the Old Goat in dry-cleaning his suit.

If the Old Goat prefers to have his victim sacked for her attack on him, her position before a workplace disciplinary hearing may be even worse. At least in court the offence against her has to be proved beyond reasonable doubt. In an employment situation she has only the right to a reasonable procedure giving her a right to defend herself – but the disciplinary panel has no particular standard of proof to adhere to. If it decides that the slap/kick/Chinese burn is an overreaction to a very minor incursion into her private space – or that the incursion never happened – then it can find against her. She might be disciplined or even sacked (since violence in the workplace is a serious matter – and the more senior the victim, the more seriously a company might consider it, one assumes) and be left outside the building trying to vindicate herself via an industrial tribunal.

So in any attempt to leave justice to a physical response, one side is going to come off worse – in all likelihood the least powerful one. That’s why we did away with trial by combat because the least powerful one is not necessarily the wrong one. And power, of course, is not always just physical. Men are, on average, more powerful in both senses of the word than women. The reality is that a woman who slaps her boss would find herself persona non-grata, her career in shreds and high on a list when redundancies next come round.

The cod-feminism of people like Sarah Vine or Paddy Ashdown, who claim that we are all equal now and so women must “toughen up” for this more equal world, is in the real, unequal world, a nonsense.

Blaming the victim in such cases for lack of robustness suggests an attempt to keep women subservient despite (because of?) their career aspirations and notional equality – to keep the world safe for men and for their flailing middle-aged fantasies.

Twitter: alrich0660

Note: A detailed analysis of Rennard’s legal position and why the Lib Dems could have and should have put him through a disciplinary procedure is in the previous post here

For a look at the law on self-defence see Ken Clarke says stab a burglar. Is he right?

For a discussion of the confusing definition of common assault see: Saatchi and Nigella: Exactly what offence has been admitted?

Lib Dems could – and should – have put Rennard through disciplinary procedure

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Liberal Democrat leader Nick Clegg has apologised and said his party “did not respond in the right way” to the allegations of inappropriate sexual behaviour against the party’s former chief executive Lord Rennard. Nick Clegg might be well advised to say nothing more. It is possible that the Lib Dems could be on the hook for this debacle – with the matter being bloodily and expensively fought out in court.

If the Lib Dems want to feel a particular chill running down their spine they might look at the recent Supreme Court De La Salle case (The Catholic Child Welfare Society and others [2012] UKSC 56 Judgment (PDF) ) where vicarious liability for sex abuse was extended to a Catholic organisation, the Brothers of the Christian Schools, who supplied the head and other teachers to an approved school.

The organisation was deemed liable even though it did not employ those teachers – they were members, not employees, of the Brothers. The principle established was that liability for members’ actions may extend to an unincorporated society. Rennard is a member (not employee) of the Lib Dems and a political party is an unincorporated society, arguably with “corporate features, including a hierarchy of authority” as described in the De La Salle case. The position is further explained below, but some legal background is useful first.

The problem: Liberal Democrats’ disciplinary procedure

The legal key to the crisis for the Lib Dems is in the party disciplinary procedure that apparently fails to protect staff and party members from other members, particularly in situations like those alleged against Rennard.

Rennard, as Lib Dem chief executive, was not an employee so his case did not come within employment law where a disciplinary process can assess such allegations on the basis of reasonableness – and sack the perpetrator if necessary. A proper disciplinary procedure is required but no high standard of proof is needed since protection of other employees and the functioning of the organisation are paramount.

Rennard was instead covered by a disciplinary procedure for members that requires a criminal standard of proof for any allegations (“beyond reasonable doubt”) and doesn’t even envisage the possibility of inappropriate sexual behaviour directed against party staff or young political hopefuls. Disciplinary Flow Chart – The Liberal Democrats

Instead it talks of offences such as “bringing the party into disrepute” or members having “material disagreements” with the party or working for another party. It’s notorious criminal standard of proof offers huge protection in cases of inappropriate behaviour to an accused perpetrator and little to a victim. It is arguable, in fact, that the party has no effective procedure to deal with sexual violations at all.

The party has not pursued Rennard under any disciplinary procedure. Instead it got a barrister, Alistair Webster, QC, to look at the affair based on documents (and no interviews or cross-examination). His report has not been published but even his short carefully worded statement on it raises significant questions.

The criminal standard of proof
Webster considered that Rennard’s accusers offered “broadly credible” evidence that Rennard’s behaviour “violated the personal space and autonomy of the [four] complainants”. But he goes on to say:
It is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way. Without proof of such an intention, I do not consider that such a charge would be tenable.”

Webster’s report is not a finding. Yet it seems to have stymied any disciplinary action that might have been undertaken because of this one point: it is unlikely that a sexual motive to Rennard’s alleged behaviour could be proved.

Webster knew that the Metropolitan Police had dropped a criminal investigation in September 2013. The police said: “Following reports in the media in February, officers from the Specialist Crime and Operations Command launched an investigation into allegations of sexual touching … Those inquiries have now concluded that there is insufficient evidence to support a prosecution.” (Emphasis added.)

The term “sexual touching” suggests the police investigated this under Section 3 of the Sexual Offences Act 2003.

This defines the offence thus:
1) A person (A) commits an offence if –
(a) he intentionally touches another person (B),
(b) the touching is sexual
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.”

So there are several defences inherent in this definition even if it is found as a fact that touching occurred: it wasn’t intentional; it wasn’t sexual; there was consent; the perpetrator did not know there was no consent (and his belief was reasonable).

That’s a whole lot of hurdles to jump and Webster looks as if he has used Section 3 as the template for his own report. Once the police had decided the standard of proof could not be met then one might think Webster’s view was pretty much a foregone conclusion.

An alternative approach?
But if he did not “consider that
such a charge would be tenable” (ie a sexual one), could some other case have been pursued? That Rennard’s alleged behaviour was simply unacceptable as between the chief executive and employees of the party, for example? Whether any touching was “sexual” or not, touching women (without consent) is simply wrong. And unlawful (see below).

There is no specific mention of a category that inappropriate touching would fall under in the disciplinary procedure but it might well fall under “bringing the party into disrepute”. This is argued by Liberal Democrat MP David Howarth (who has a legal background). He has writted:

“Bringing the party into disrepute has to mean acting in a way incompatible with the party’s aims and values. That would include, for example, abuse of power … The use of political power for seriously improper, including sexual, purposes should fall very firmly within the definition of bringing the party into disrepute.”

To argue this would have at least brought Rennard’s case within the parameters of the disciplinary procedure. If “inappropriate behaviour” or “inappropriate touching” had been the core of the disciplinary charge against Rennard (without needing to prove any sexual element), then Webster could have considered whether it might probably (ie with more than his self-imposed 50% probability) be proved beyond reasonable doubt (ie to the near 100% criminal standard). Without knowing of any internal wranglings one might suggest the party could, and probably should (in fairness to the alleged victims), have put Rennard through a disciplinary process even if the outcome was his exoneration.

Legal issues
Touching can be intentional and unwanted without being sexual. That could amount to the criminal offence and civil tort of trespass against the person or “battery” (commonly known as “assault”, as explained here

It requires no actual bodily harm, no inflicting of pain, no sexual motive – just the intentional application of “force” without consent – and force can be as little as mere touching. The law is intended to protect bodily integrity and dignity. As a tort it is actionable per se – no damage need be proved – because “every person’s body is inviolate” except for contact that is “generally acceptable in the ordinary conduct of life” (Goff LJ in Collins v Wilcock 1984). No motive, whether sexual or other, need be established as long as the perpetrator intended to touch (even if he did not intend to breach the law).

The civil tort of battery may be proved at a lower standard than a crime: “on the balance of probabilities” (broadly, on a more-than 50% chance of the allegation being true). This puts Rennard in what former Nick Clegg adviser Bridget Harris, one of the alleged victims, calls a conundrum. He cannot apologise since he says he has done nothing wrong – and apology could be seen as an admission, if not of the full Section 3-type offence, at least of some action that would be covered by the tort of trespass to the person (Webster’s “violation of personal space” perhaps). Harris has not said an apology would be enough for her to desist from legal action, telling Newsnight: “In terms of civil action how can I possibly say… what I would or wouldn’t do, depending on the circumstances?”

The “balance of probabilities” standard of proof coupled with the lack of a need to prove a (sexual or other) motive would put alleged victims in a far stronger position than the Lib Dems’ inadequate disciplinary procedure. However, no damages payment is guaranteed and it is uncertain what remedy could be sought. Additionally such a case may be time-barred since a tort claim is subject to a six-year limitation Harris’s allegation goes back to 2003, for example.

De La Salle case
But there remains the danger for the Liberal Democrat party. Nick Clegg has said the party got it wrong and the
De La Salle case (PDF) case might suggest a political party can be liable for its members’ behaviour.

This was about child abuse (so the facts are far worse than anything alleged against Rennard) many years before the case was brought. The judgment states:

Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant [the Brothers] and the tortfeasor [the abusers] and the acts of abuse thus involves a strong causative link.”

To disentangle: the defendant is the Institute of the Brothers of the Christian Schools who supplied the head and other teachers to an approved school. The Brothers may be deemed to have shared vicarious liability for the individual acts of the staff against the children as long as there is a close connection between the body and the individual offenders. Furthermore it is possible for unincorporated associations (such as political parties) to be vicariously liable for the wrongful acts of their members – there does not have to be a contractual employment relationship. But the offences must occur within the context of work being done for the association – not in the perpetrator’s spare time or when he is “on a frolic of his own”.

It is complex law and of course depends on its being established on a balance of probabilities that Rennard was guilty of the actions alleged against him and which he denies. If that were established, it might still take some nifty legal footwork to bring the Lib Dems within the principles of De La Salle – and there are layers of defence against such vicarious liability claims there is no space (or time) to consider. The party’s guilt should not be inferred from what is written here. But Nick Clegg should be a bit more circumspect with his mea culpa from now on.

Twitter: alrich0660

Note: This, along with all posts on this blog, should be considered a piece of commentary/analysis and speculation, not as an authoritative statement on the law or any sort of advice. In particular it only scrapes the surface of the vicarious liability issue.

Head of Legal looks closely at the disciplinary procedure here
This by barrister Sarah Parks also bears out the view that injustice has been done to the women in this affair: here


This piece in the Guardian outlines in general terms allegations against Rennard: The allegations

The Catholic Welfare Court of Appeal case (ie the one appealed to the Supreme Court) is here

Police statement 26 September 2012
Following reports in the media in February, officers from the Specialist Crime and Operations Command launched an investigation into allegations of sexual touching. Various inquiries were conducted – including meeting with officials from the Liberal Democrat Party – and a number of individuals were spoken to as part of the investigation. Those inquiries have now concluded that there is insufficient evidence to support a prosecution; a decision which has been made by police.

There was early investigative consultation with the Crown Prosecution Service (CPS), but in accordance with the DPP’s guidance on charging, the police did not refer the case for full CPS advice to decide the outcome. As part of the investigation a 52-year-old man voluntarily attended a south London police station by appointment on 16 June and was interviewed under caution.

It was agreed from the outset that any internal misconduct matters would be referred back to the Liberal Democrat Party for their consideration.”

Part of Webster’s statement on his report
It is important to understand that I was required, by the rules, to consider the evidence in the form of written statements. As such I have not made any findings of fact, but rather I offer my considered view on the likelihood that the allegations against Lord Rennard could be proved beyond reasonable doubt.

I received witness statements from a large number of people, male and female, from all parts of the Party, this included both Lord Rennard and complainants.

I do not consider it appropriate to publish the evidence which I received, which was obtained on terms of confidentiality. However, given the public interest which this case has aroused, and out of fairness to all parties, I have asked that this statement of my conclusions be made public.

My view, judging the evidence as a whole, is that there is a less than 50% chance that a charge against Lord Rennard could be proved to the requisite standard.

In my opinion, the evidence of behaviour which violated the personal space and autonomy of the complainants was broadly credible. However, it is my judgment, considering all of the evidence collected, that it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way. Without proof of such an intention, I do not consider that such a charge would be tenable.

I stress that I am not finding that the evidence of the complainants was unreliable. I have specifically discounted suggestions made during the investigation that the incidents had been invented as part of a political campaign against Lord Rennard.

It is my view that Lord Rennard ought to reflect upon the effect that his behaviour has had and the distress which it caused and that an apology would be appropriate, as would a commitment to change his behaviour in future.”

Sanctions under Lib Dem rules against members:
(Membership Rule 7.10). You may:
(a) Revoke membership;
(b) Bar the person from any or any particular Party Office permanently, for a specific period or pending training;
(c) Bar the person from standing for any or any specific political office in the name of the Party permanently, for a specific period or pending training;
(d) Bar access to Membership data permanently, for a specific period or pending training;
(e) Reprimand the member.

Conservatives’ Bill of Rights: suddenly they are all relativists now

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Quick, we need some long-held, deeply felt convictions – and we need them fast. You know: stuff we can bung in a written UK constitution based on centuries of history, shared values and culture – that sort of thing. Why? Because that way we can keep the European Court of Human Rights off our backs.

The Conservative Party, you see, has noticed that the Strasbourg court – known for riding roughshod over UK government actions – is sometimes willing to let countries get away with things. But only if those countries have long-held, deeply felt convictions that emerge from their history, shared values and culture – and are written into their constitution.

Britain doesn’t have a written constitution, hence the new “UK Bill of Rights and Responsibilities” that the Conservatives are working on to present to the electorate before the 2015 election.

The rationale being used for the new Bill of Rights – that human rights are relative, not absolute – would not be out of place if uttered by a 1970s leftie lecturer at a bog-standard polytechnic. Here is arch-Tory Charlie Elphicke introducing his Bill of Rights (which will be the basis of the official Conservative Party version) in a parliamentary Private Member’s Bill last year:

The Bill is intended to help rebalance the approach to human rights towards a more subjective application to particular cases with the aim of ensuring that justice and fairness are not trumped by the rigid objective view that has characterised the jurisprudence of the European Court of Human Rights.”

So Strasbourg judges have been too objective, apparently. Elphicke is wholly insistent on this subjectivity point, rejecting the principle that judges should come to decisions on a straightforward objective reading of the law. They should take account of each country’s history, shared values and culture before making decisions on their governments’ alleged breaches of human rights.

‘The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative’ – Charlie Elphicke

This is where Elphicke qua poly lecturer comes in: human rights, as far as he is concerned, are “relative” – not universal, not international, not agreed by all, but, he might well have said in the parlance of the post-modernist academic, complex, contingent and contested.

This is strange for Conservatives, usually so opposed to relativist approaches to moral values. But apparently human rights are not absolute, Elphicke believes. “The British think one thing, the Spanish think another. There is no way of resolving it, because it is purely relative.” What human rights you should expect depends on context, where you are in the world and when.

This is shocking for a member of a governing party in one of the world’s great liberal democracies not least because it abandons any idea that Europe and its Convention might be a beacon to other countries around the world. It allows the Egyptians or the Chinese to say: your ways are not ours; it is purely relative; you think one thing, we think another and there is no way of resolving it.

But the Tories have also noticed that the Strasbourg court is willing on occasions to take a subjective, relativistic approach by operating the “margin of appreciation”: “the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights”.

This recognises the “diverse cultural and legal traditions embraced by each Member State” and accepts that the move to uniform standards of human rights protection must be gradual. The issue is discussed in the ECHR case of Handyside v United Kingdom (see below). In this 1976 case, the court rejected an Article 10 freedom of expression claim over an obscenity court ruling and forfeiture order against the Little Red School Book, which contained sexual material for schoolchildren. The book had been published in Denmark but the court ruled that there was no single standard of European morality so the UK authorities had the right to act on a strictly British conception of moral values.

It may seem paradoxical that the Tories are using hated European law to craft their arguments for a British Bill of Rights, all the more so because the case that really excites them comes from the reviled European Union rather than from the ECHR – though the principle of the “margin of appreciation” is the same.

This is explained by Conservative barrister Jonathan Fisher, arguing for a Bill of Rights incorporating civil obligations. He notes:

A recent illustration of the significance afforded to a provision in a written Constitution was afforded in the Omega Spielhallen case where the European Court of Justice declined to strike down legislation passed by the German Parliament which prohibited the commercial exploitation of a shooting game involving the simulated killing of human beings. The European Court was much influenced by the fact that the German Parliament had taken the view that the prohibited activity constituted a threat to public policy because ‘it infringed a fundamental value enshrined in the national Constitution, namely human dignity’.”

This was a case about free markets and freedom to provide services rather than free speech as such, brought on the principle that products or services acceptable in one EU country should be acceptable in all. The Luxembourg judges, however, accepted “human dignity” was a legitimate European Community aim and one can imagine it might be particularly important to Germany given its Nazi past and its attempts to fashion a new democratic consensus around rejection of Nazi values. So simulated slaughter might be deemed as not being conducive to “human dignity” and so in this case “human dignity” could legitimately justify restrictions on Community obligations.

‘It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals.’ European Court of Justice

But Fisher’s argument is pretty specious. He is saying that Britain lacks a written constitution, but if it had one, containing deeply held British values based on Britain’s history and traditions, then human rights courts would pay due deference to those values along the lines of the European (EU and ECHR) “margin of appreciation”.

But the EU court deferred to Germany’s constitutional adherence to “dignity” because there was a real reason for it – it arose as a response to traumatic events in its recent history. It wasn’t just cobbled together to give the government a fighting chance in the European courts. What, after all, will Britain’s principles be? Apparently that we don’t like immigrants and hence want to crack down on them – so Theresa May’s political problems trump more welcoming traditions going back centuries to the Huguenots and forward to the Empire Windrush – or from Marx to Miliband Sr.

Apparently we have a deeply held feeling requiring a citizen/subject to “render help to other persons who are in need of assistance, where reasonable and to the best of his ability” (Article 23 of Elphicke’s Bill) – even though the English Common Law tradition has always been to reject such obligations (in contrast to the French under article 223–6 of the Criminal Code for example) and there are plenty of cases confirming that amoral but stoutly libertarian principle.

In other words, the Conservatives, in drafting their legislation will be simply making it up as they go along (albeit basing part on an edited version of the ECHR), putting anything in that satisfies the particular bees in the particular bonnets they wear at this particular time. They will seek to impose wholly new obligations on British subjects, never before required of them, seeking to create and preserve some Tory Utopia in aspic – wholly against historic British principles of progress and liberty and against the European Convention position that, however much the “margin of appreciation” operates now, the world should slowly advance towards a set of universally accepted human rights. None of the Conservatives’ “principles” will equate with Germany’s special desire to promote human dignity.

Passing legislation tricked out as a “Bill of Rights” which simply repeals another bit of legislation, the Human Rights Act, that the current governing party does not like is nothing like establishing a set of deeply embedded constitutional principles. It’s just politics as usual. It’s a cod constitution intended to shift power from the people in favour of the governing classes. 

Twitter: alrich0660

Note: A dissection, article by article, of the probable Conservative Bill of Rights and comparison with the ECHR appears on Thinking Legally: Conservative bill of Rights: The State v The People

See also:
Lord Judge-made law without the ECHR bits  
The holy alliance to capture the British constitution  for thoughts on the original 1689 Bill of Rights

This by Roger Masterman (The Mirror Crack’d) considers the “mirror principle” (that UK courts should follow, not merely consider ECHR jurisprudence – see R v Special Adjudicator ep Ullah (2004) and has a useful list of cases in which courts have considered exceptions to it.

Neuberger’s view
Lord Neuberger, president of the UK Supreme Court, has now (February 2014) weighed into the debate using the Cambridge Freshfields Annual Law Lecture 2014 to consider Britain’s (or at least England’s) reluctance to accept foreign judicial authority. He sees such qualms as being based in the country’s history – island nation, protestantism and national religion, democracy without  revolution, parliamentary sovereignty, common law (rather than civil code) system, world empire and Commonwealth, “special relationship” with USA etc.

Echoing the Conservative argument above he says: “the fact that Germany has a Constitution enables a German court to say that German law sometimes trumps EU law. This is an option which is much more rarely, if at all, open to a UK court as we have no constitution to invoke”. He notes that the Common Law has had to engage with Europe so that: “the Common Law has not just had to accommodate respect for privacy and family life [ie via "horizontality", explained here]; it has also had to accommodate a positive right to freedom of expression, freedom of religion, freedom to marry, and much more besides”. There has been a more “principled” approach to judicial decisionmaking , reflecting the European civil law tradition as opposed to Common Law pragmatism.

He notes, however, the European (Norman French) origin of Common Law and Equity and the fact that England’s admiralty law was based on a civil system. (The latter was intended as a system of international law and purposely constructed as a civil system to attract legal business to English courts.) “So the idea that English law developed as a self-contained system is quite misconceived.” Thus Neuberger has set out reasons, though not justifications (he accepts) for a sense of English exceptionalism but also evidence of Anglo-European legal engagement and cross-fertilisation over the centuries – producing a hybrid (my word, not his) legal system.

He says: “Those who favour pulling out of the European venture, or at least reducing the UK’s involvement in Europe, would no doubt rely on the fact that the UK’s historic and cultural DNA includes many genes which encode for separation and exceptionalism” – the Conservative argument above. But he adds: “Those committed to Europe would rely on the fact that the UK has never been disengaged from Europe, and that the current European ventures involve no more than a natural evolution, so that no genetic manipulation is needed.”

Mark Elliott considers Lord Neuberger’s contentioin that Britain has no constitution here

Handyside v United Kingdom
The distributor of the “Little Red Schoolbook” complained on Article 9 (freedom of thought) or Article 10 (freedom of expression) grounds of a magistrate’s court conviction for obscenity and a forfeiture order for the books. The book contained information on sex including addresses for advice. The matter complained of was not obscene in itself but suggested children might be sleeping with their boyfriends or girlfriends and that they might find “good ideas” by looking at pornography. Mention was made of “pictures of intercourse with animals or pictures of people hurting each other in various ways”. The magistrates deemed it likely to deprave and corrupt despite some good features of the book.

The issue for the European Court was whether the restrictions on publication were “necessary in a democratic society”, “for the protection of morals” as per the Art 10(2) qualification of the right of free expression. It was held that Art 10(2) “leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (ie it is “prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force”.

So: “It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”

This is the principle that the Conservatives seek to exploit by producing a whole set of British beliefs in written form. They will be a distinctively “British” conception of human rights and so, the argument goes, amenable to the margin of appreciation. The Strasbourg court will give them due deference and so make it not worth anyone’s while taking matters to Strasbourg once the UK Supreme Court has given judgment on them.

University segregation need not be a divisive issue

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UK Prime Minister David Cameron has another bee in his bonnet – sorry: deeply held conviction. This time it is segregation of women from men in talks given by Muslims or in an Islamic context on university premises.

He found guidance issued by Universities UK on this issue (that segregation should only be voluntary and mixed areas be allowed if people want them) to be inadequate given his own passionate belief in human rights especially for Muslim women.

Segregation on grounds of sex is naturally anathema to this product of Eton (where boys all learn together whatever their gender) and the Bullingdon club (girls always welcome in some capacity).

We can’t be sure what Cameron’s exact views are since he has not spoken publicly, but it looks as if he is so opposed to segregation that he rejects UUK’s voluntarist approach and would seem to want to force those attending these talks to sit boy-girl-boy-girl whether they like it or not. Maybe he will draft in some of the police currently suppressing student protests to enforce his emphatic liberal position?

It’s a matter of free speech, according to a Downing Street spokesperson, and Cameron feels very strongly about it. Certainly universities are governed by the 1986 Education (No 2) Act, Section 43(1)  on free speech, which says:

“Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.”

This was Tory legislation to curb students’ “anti-Zionist” and “No platform for fascists” movements. Paradoxically it is now protecting fundamentalist Muslims. But it is very unclear what the segregation issue has to do with free speech as such. Is Cameron suggesting that women in general and Muslim women of western leanings will be put off from going to important talks by ultra-orthodox Muslim speakers? Does “free speech” extend to “free listening to speech”? The talks can go ahead without those women (thus protecting the S.43 rights of “visiting speakers”) and one can’t believe that Cameron really thinks those talks are of such vital significance that the women who opt to boycott them will be missing very much.

The legal position
It is important to stress these are not lectures that are a direct part of the students’ academic studies. There is arguably no particular disadvantage to anyone not hearing such talks (whereas there is a clear disadvantage to being barred as a girl from Eton – just look at the schooling of the current Cabinet to see how useful such an education is).

Barrister Fenella Morris QC, asked to provide advice on UUK’s guidance, points out that the relevant law against segregation derives from the Equality Act 2010 (a piece of Labour legislation that Cameron and Co loathe with a venom) and is outlined in Technical Guidance on Further and Higher Education issued by the Equality & Human Rights Commission. This points out that the issue regarding segregation is one of “less favourable treatment”. At paragraph 4.8 it notes that deliberately segregating a student or group of students from others of a different race automatically amounts to “less favourable treatment”, which is illegal. It would be offensive, demeaning and clearly not in the interests of the racial minority thus set apart. And one cannot think of any scenario in which it would be advantageous to a racial minority. In contrast paragraph 4.9 notes that “segregation linked to other protected characteristics [ie other than race] may be direct discrimination. However, it is necessary to show that it amounts to less favourable treatment.”

Protected characteristics are the characteristic such as gender, age, disability, race and others that are protected by law because of the likelihood of discrimination. (See the Equality and Human Rights Commission guidance.)

Thus one can imagine scenarios in which there might be a distinct benefit in segregation, for some disabled people perhaps. Deaf people in one corner with a signer would be advantaged rather than disadvantaged. But under this heading disadvantage must be shown.

So, even if we think these ultra-orthodox Islamic talks are of some benefit to western-minded women, aiding their studies by giving an insight into such opinions, the UUK guidance would seem to acknowledge the issue of “less favourable treatment” by offering something to everyone: you can go to the talks if you agree with segregation or if you don’t, simply by choosing the part of the room you prefer; putting women at the back would be banned (because that would be like segregating black people – demeaning and automatically “less favourable treatment”); segregation as part of religious belief (rather than the speaker’s personal view) could be satisfied as required by Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion). If the speaker insisted on total segregation and refused to come, it is unlikely that a court would find his S.43 rights had been breached as long as the university had engaged with the matter and gone through the balancing procedure. (See reply to comment below.)

As Fenella Morris notes, considering the matter in this way would show the universities have attempted to balance a range of different and competing interests (she sees ECHR Articles 9, 10, 11 and 14 being engaged on different sides of the issue plus S.43). In so doing it could be strongly argued that they have fulfilled their legal duties.

But legality and reasonable balance seems to be far from Cameron’s mind. He demanded the UUK guidance be withdrawn and so it has been, perhaps pending a court’s view on the matter. 

Comment: A philosophical issue
The UUK guidance asks: “Can any steps be taken to ensure segregation is voluntary?” This is partly a practical question (how do you police the lecture hall to ensure the agreed rules are followed?) but also a very big philosophical one.

When a Muslim woman enters the lecture theatre and takes her place in segregated seats, is she acting voluntarily (perhaps even having thought about it and decided it is the best thing to do)? Or is she acting on the basis of years of ideological and institutional pressure? Maybe she “believes”, in a way that a modern, liberal western woman wouldn’t, that women are second class citizens or that they are an unacceptable sexual temptation to men who should be concentrating on the words of the wise and learned speaker. Or maybe she acts automatically without thinking at all, simply because, in her world, it is the way it has always been.

“While segregation on the grounds of sex is not automatically discriminatory, a requirement to sit separately which is not accepted and is then enforced may be a detriment. The question in any case of indirect discrimination will be whether any disadvantage is justified and/or outweighed by the other considerations involved such as freedom of speech and the manifestation of religious belief” – Fenella Morris QC

Some would say she is suffering false consciousness – that there is an actual and absolute best option for her that she is depriving herself of because of the values in which she has been brought up from birth. Fenella Morris makes this point: “It would not be right for a university simply to treat a genuine wish for voluntary segregation as evidence of false consciousness on the part of members of the group that seek it, and then prohibit or otherwise inhibit it.”

Why would it not be right? Because it would be as if we in a modern western liberal democracy have access to absolute truth (or at least are closer to that truth in some progressive evolutionary way) so “we” know what a woman’s best option would be if she were truly free to make it.

As it happens, those who provide Cameron’s own liberal/neo-liberal philosophical underpinnings have a way of dealing with false consciousness, in particular in the market system. They ignore it. Thus if a sausage roll full of transfats or a packet of cigarettes seem good and pleasurable things to the purchaser, you don’t look into their background to decide why they think bad things are good. As long as those people want them and are willing to spend their marginal pound on them rather than on some other less desired item (however good it might be for their health), then those items are what give them satisfaction (or “utility” in the economic jargon) in their own estimation. Their decision must be respected and their false consciousness disregarded.

Why would a lecture hall be any different? The guidance suggests offering three areas in such talks when segregation is requested: for men, women and anyone who is happy to sit in a mixed group. It’s like a free market and the people coming to the market can make their choice – whether based on “our” enlightened values or “their” false consciousness.

So why, in that lecture theatre, but not in people’s homes, not in their mosques, (or synagogues) not in their private places, must the problems faced by Muslim women, and their false consciousness be solved – by force (Section 43(4) of the 1986 Act talks of disciplinary measures) but only for the duration of the talk and in that particular space?

The reason, looking at the various pieces of commentary, seems to be something to do with the symbolism of that space – that it is in an academic building and hence an idealised notion of British values must reign within its boundaries. To represent our tolerance and belief in freedom of expression we must insist that foreign ways are not introduced into that domain. A little bit of totalitarian liberalism must be imposed.

The guidance sought instead to deal with a complex issue in a complex way, distinguishing between, for example, a talk where the lecturer simply requires for his own purposes that listeners be segregated, and one where there is voluntary segregation, possibly a “manifestation of a religious belief which is specifically protected by Article 9 of the ECHR”. It seeks to “balance a number of competing rights and interests” and to arrive at “practical and mutually-acceptable solutions to situations of competing rights”, according to Morris.

This seems the correct position in a tolerant western liberal multicultural society. Cameron’s view (whatever it is) does not.

Twitter: alrich0660

See also:
Why Ken Clarke is wrong on the veil
Should veils be banned in court?

Declan O’Dempsey has written for Halsbury’s Law Exchange on the issue here. Interestingly he throws into the mix the UN Convention on Elimination of Discrimination against Women – which Britain is signed up to. It says: “States parties are therefore obliged to work towards the modification of social and cultural patterns of individual conduct in order to eliminate ‘prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (article 5).”
But see how the Tories respond to their UN duties here: The bedroom tax and Raquel Rolnik

Note: The previous UUK guidance is here (pdf): External speakers in higher education institutions though it does not contain the Ultra-orthodox speaker scenario and guidance that has worried the press and been withdrawn. That scenario (which Morris addressed) is as follows:

“A representative of an ultra-orthodox religious group has been invited to speak at an event to discuss faith in the modern world. The event is part of four different speeches taking place over the course of a month exploring different approaches to religion. The initial speaker request has been approved but the speaker has since made clear that he wishes for the event to be segregated according to gender. The event organizer has followed agreed processes and raised the issue with university management. The event has been widely advertised and interest levels are high. The segregation request is not yet in the public domain but the students’ union has an active feminist society which is likely to protest against the segregation request. Other societies are likely to express similar concerns. The event is also due to take place a few days after a number of campus-based activities to coincide with International Women’s Day.”

Note: The Technical Guidance gives this example of voluntary segregation:
“At an event run by the college where all students are welcome, if black students choose to separate themselves from white students, taking part in different activities or simply standing in a group, as this is a choice of the students and not an enforced policy of the club, it would not amount to segregation and would not be unlawful.”

Twitter joke and Lord Judge-made law – without the ECHR bits

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It seems that giving the European Convention on Human Rights a good kicking is all the fashion at the moment. One expects the bully-boys of the Conservative Party to give the ECHR a bit of a bashing, aided at times by members of the rival UKIP gang. But when three well-dressed mature gentlemen with fob watches and silver handled canes hoved into view, surely one might have thought the bovver boys would flee, the decent old coves pick up the poor battered fellow, dust him down, press a half crown into his begrimed palm and send him peaceably on his way.

But no. Instead Lords Judge and Sumption and Laws LJ (for it was they) launched their hand-finished Grensons in a few well-aimed kicks at the supine body of law that is Strasbourg jurisprudence then stood back to let the nasty parties finish the job.

Former Lord Chief Justice Lord Judge is latest to give his view and his UCL lecture is here: Constitutional change; unfinished business. Lord Judge’s intervention has given rise to a curious suggestion – that in at least one case, Paul Chambers v DPP, (the Twitter joke trial) barristers deliberately avoided making ECHR Article 10 (freedom of expression) points as they knew he was “unfavourable” to them. Read the rest of this entry

Why Ken Clarke is wrong on the veil in court

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Picture the scene. The UK Prime Minister, David Cameron, has called Ken Clarke in on Sunday morning for an important and urgent job. He is without portfolio but that doesn’t mean is without his uses.

“What ho, prime minister! Not chillaxing today?” asks the jovial former Lord Chancellor.

“No, Ken. There’s important business afoot. We need a little air cover. We want you to dominate the news headlines.”

“I’m the man for the job,” beams Ken, he of the “some rapes are more serious than others” claim.

“Great,” says Cameron. “Now, go out and say something about veils. Any old b– – – will do.”

Ken duly complies. It is not certain why he needs to do this important job. It may be a precursor to justice secretary Chris Grayling coming over all “tough on veils” by announcing a ban on them for witnesses giving evidence in court (though a ban is not really within his immediate powers); or it may be to deflect attention from the embarrassing U-turn on migrant visa bonds.

Whatever it is, Ken rises to the challenge. How did he approach this sensitive subject? By blundering in with his size 10 Hush Puppies. In passing he denigrated the attitude of women who wear veils as archaic and strange: “It’s a most peculiar costume for people to adopt in the 21st century.” Read the rest of this entry

Bedroom tax circular HB U7/2013: Duncan Smith’s vindictive, money-wasting ploy

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Could the bedroom tax saga get more bizarre? Try this: The Government has issued a circular asking (or demanding, in somewhat hysterical terms) that local authorities “urgently” set aside any other priorities and send details of bedroom tax tribunal decisions to Iain Duncan Smith’s Department of Work and Pensions.

The strong implication is that Duncan Smith now has at his disposal a crack team of top government lawyers ready to swoop whenever judges come up with the wrong decisions on these cases – ie those allowing people to stay in their homes without benefit cuts for “spare bedrooms”.

The document, HB U7/2013, says:

“The Department for Work and Pensions (DWP) may opt to join an appeal or in some cases will take appeals forward where LAs [Local Authorities] have chosen not to do this … LAs are therefore asked to notify DWP of all FtT [First-tier Tribunal] decisions relating to this subject regardless of whether the decision is overturned or whether you intend to appeal adverse decisions.”

This highlights a rather tricky legal issue for Duncan Smith – that nobody has any interest in the success of his mad policy except him. As the circular (order? demand?) notes, if the First-tier Tribunal hearing a bedroom tax case finds for the tenant “generally local authorities initiate appeals to the Upper Tribunal in HB cases”.

And generally local authorities wouldn’t bother because they couldn’t care less. This is because they get no benefit whatsoever from the “removal of the spare room subsidy”, only hassle – and cost. The money saved by cutting the benefit does not go into their coffers. It is simply deducted from the housing benefit grant the government sends them.

Worse, of course, because if tenants can’t afford the bedroom tax, councils then have to apply resources to sorting the problem out. This might ultimately mean legal action for eviction as a result of arrears and, particularly absurdly, dealing with at least some of those they have just evicted under their obligations to the statutorily homeless (as explained here: Bedroom tax and unintentional homelessness).

So, with a First-tier ruling under its belt that says it must continue to pay housing benefit in a particular case, there is no reason why a local authority would pursue the matter in the Upper Tribunal. One might indeed consider it a culpable waste of council tax payers’ money to do so.

But culpable waste of public money is no object as far as IDS is concerned. He needs his policy to be a success which means it must be as draconian as possible. Which means judge’s decisions must be challenged. Which in turn means he is willing to double up on lawyers taking appeals by sending his team in as “interveners” (usually interveners are those lefty expert busybodies who join themselves in cases “in the public interest” as per Chris Grayling, but here they are, of course, a “good thing”).

And it means that even if local authorities consider nothing will be served by pursuing cases, IDS will not be baulked thus. He will take the appeals himself generating big legal bills for the public to pay in lawyers’ and judges’ time and vindictively spreading misery among some of the poorest people in the country.

Nice one Dunc!

Twitter: alrich0660

Other bedroom tax posts:
Iain Duncan Smith needs to put on a new benefits thinking cap
What Raquel Rolnik really said – and why
Bedroom tax and unintentional homelessness 

On circular HB U7/2013:
Nearly Legal: Trust No one
See also SPeye generally

Sharon Shoesmith pay-off: politicians to blame

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So exactly how much has been handed in compensation to Sharon Shoesmith, Director of Children’s Services at Haringey when Baby P died? And why was it so much? The answer lies in the complex legal issues – but certainly Haringey’s refusal to sack Shoesmith with a lawful procedure ramped up the pay-out as well as legal costs.

BBC’s Newsnight was quick to withdraw it’s claim that the payment was £600,000, saying within half an hour or so of broadcasting it that that was a “total” figure and that what she would actually receive would be rather less (presumably after her legal costs). If Haringey had not insisted it would pay her nothing, it would have been less still – as little as £35,000.

The legal situation is complicated, not least because Shoesmith chose to pursue a judicial review against the then Secretary of State Ed Balls and Haringey Council for her summary “sacking by TV” rather than a tribunal case. Her dismissal was announced at a live press conference on 1 December 2008 after a damning Ofsted report into 17-month-old Peter Connelly’s death in 2007 and Balls’s direction that she should be replaced. Shoesmith found out about it as a result of that broadcast.

The Court of Appeal in 2011 accepted that Balls’ direction was unlawful and hence so was the dismissal by Haringey, even though the council was acting on the Secretary of State’s order.

The court’s finding, though, was not a finding of “unfair dismissal” as would have been available before an Employment Tribunal nor one of “wrongful dismissal” – dismissal contrary to contractual terms, actionable through the civil courts. Read the rest of this entry


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