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Can Boris Johnson defy a commons vote of no confidence?

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For those British MPs wanting to stop a no-deal Brexit, the options are running out. Among  avenues apparently blocked, according to some, is a motion of no confidence in Boris Johnson’s government. The prime minister’s senior adviser, Dominic Cummings, has declared it is too late for such a motion to halt Brexit on 31 October. Even if he loses a motion of no confidence, Johnson can, according to Cummings, refuse to make way for a new Prime Minister and stay on until he decides to have a General Election – probably during or after Brexit on 31 October.

Meanwhile, the bad news for the ant-Brexit proponents of the “government of national unity” is that, even if Johnson follows correct procedure and quits, it is Jeremy Corbyn who should most likely be invited to set up a new government, not a cross-party coalition. There is no parliamentary mechanism for such a coalition to take power unless it is led by Labour.
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Right to rent ruled discriminatory – an innovative judgment

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If ever there was a petty-minded, oppressive and irrational notion it was former British prime minister David Cameron’s “right to rent” crackdown on illegal immigration, now ruled incompatible with the European Convention on Human Rights by the High Court. The 2014 legislation turned everyone letting residential property into an arm of the UK Border Agency – or an unprofessional and arbitrary backstop when the immigration authorities had failed. It even sought to give landlords supra-legal powers of eviction, to throw tenants out without a court process if the tenants could not prove their immigration status was in order (see this Al’s Law piece).

And of course landlords were likely to take the easy option of renting only to those who could produce a British passport – hence the legal claim that the whole scheme was had discriminatory effects and was therefore contrary to the ECHR.

But the judgment raises the intriguing issue of how far legislation, not in itself discriminatory or unlawful, can be deemed discriminatory when it simply prompts the discriminatory (and unlawful) behaviour of others – the landlords meant to operate the scheme.

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Is Jeremy Corbyn’s no confidence vote ‘stunt’ a bigger deal than he realises?

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Could Britain’s Labour Party leader Jeremy Corbyn inadvertently stumble into achieving what he has so far balked at even attempting: bringing down the Theresa May government? He has tabled a “symbolic” motion of no confidence in her personally while shying away from a motion under the Fixed-term Parliaments Act 2011 that could actually produce a general election.

He may not realise it but his motion could actually bring down the Government – if enough Tories become desperate enough to ditch May and put Brexit on hold.

Corbyn said the motion was to “put pressure” on May to name a date for the “meaningful vote” on her Brexit deal – and when she did name a date, he pressed on regardless. This vote has certainly been spun as merely symbolic: that’s how the Guardian saw it , presumably after talking to Labour sources:

“The form of the motion is such that it would not lead to a general election or even the ousting of Theresa May if she were to be defeated – rather it would amount to a symbolic defeat of the prime minister.”

Coincidentally, though, a week earlier, a report from the Commons Public Administration and Constitutional Affairs Committee was released here (pdf) on the very subject of confidence votes in the House – with this dire warning: “Any clear expression of ‘no confidence’ could topple Government”. Read the rest of this entry

Grenfell effigy bonfire and Section 4A – a flawed piece of legislation

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Was a criminal offence committed when a group of friends took it into their head to mock up a Grenfell Tower cardboard effigy and set it ablaze on Bonfire Night? The short answer would seem to be … it’s complex – and that the law six of them have been arrested on is deeply flawed and potentially oppressive.

The question for the police is: did their action amount to causing intentional harassment, alarm or distress according to Section 4A of the Public Order Act 1986? This says:

  1. A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—
    (a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
    (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
    thereby causing that or another person harassment, alarm or distress.

The cardboard Grenfell Tower is a “visible representation” and setting it alight is “behaviour”. But the issue is the motivation of those doing it. Leaving aside the social media issue, the burning of the effigy was in a private garden – possibly among like-minded friends. Can the police show intention to cause  harassment, alarm or distress to a particularly defined group? Can they also show that such harm was, in fact, caused?

The Section 4A provision of the Act that the police are using is something of a confused botch-up. Significant parts of the Public Order Act are very much about public, open places or public buildings. It is about avoiding public disorder: riot, affray, provocation of violence; that sort of thing.

But Section 4A was introduced in the Criminal Justice and Public Order Act 1994, at a time when a new sense of public threat was abroad under a tough new Home Secretary, Michael Howard (the 1994 Act also cracks down on trespassers and squatters). The political focus was on victims and toughening up the law dealing with the remarkably subjective harms of “harassment, alarm or distress” (wording also in Section 5, and controversially so; see Harvey v DPP 2011; see here) but not explicitly in a there-and-then public space.

In contrast, Section 4 (part of the original Act) on provocation uses similar wording, criminalising threatening, abusive and insulting words and behaviour and visible representations etc but only insofar as there is “intent to cause that person [the victim] to believe that immediate unlawful violence will be used against him or another by any person”.

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‘Inaccurate and misleading’: Judge rejects Legal Aid Agency’s attack on eviction advice service

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A High Court judge has delivered a devastating crtitique of the UK Legal Aid Agency over its moves to change the way people facing eviction or repossession of their homes receive legal help. A crucial part of his argument for the change was based on a claim that was “both inaccurate and misleading” – or, as will be seen (and thankfully this blogpost can be less circumspect in its language), what is commonly known as “untrue”. The LAA had claimed two lawyers organisations backed the changes. In fact they had not been asked for their view.

The arguments of the Ministry of Justice and the Legal Aid Agency used to justify the change were “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers [of the legal services]”, said Mrs Justice Andrews, hearing a judicial review application brought by the Law Centres Network (pdf) in the High Court.

The matter at issue was the Housing Possession Court Duty (HPCD) schemes that seek to ensure on-the-day legal advice and representation for people in court facing repossession and eviction. They are largely funded by legal aid to the tune of £3.6m a year – 0.2% of the legal aid total – and in many cases not-for-profit organisations, including local law centres, have the contracts to do the work.

Around 2014 the Legal Aid Agency suggested the schemes should be subject to price competition for the first time and re-tendered in a more consolidated form – ie a reduced number of schemes covering wider areas rather than focused on local courts. (At around this time there were were 117 HPCD schemes covering 167 courts; this was to be reduced to less than 50).

The argument was that some providers had withdrawn from offering schemes for economic reasons and  the change would promote “sustainability” (that weasel word meaning anything and nothing). But Andrews found no evidence for either contention. Read the rest of this entry

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: Read the rest of this entry

A question of standing: Grayling’s new attack on Judicial Review

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How do you decide what is in the public interest? Just ask the government. That, apparently, is UK Justice Secretary Chris Grayling’s view in his latest proposals to curb judicial review.

There have been too many judicial reviews in the public interest, is what his argument amounts to. In the latest consultation on curbing JRs he says: “The concern is based on the principle that Parliament and the elected Government are best placed to determine what is in the public interest.” It doesn’t need judges, organisations or even ordinary people to do the job for them. “L’intérêt public, c’est moi”.

Among the matters in the public interest that Grayling draws attention to, one assumes because he would rather not have seen them brought to court, was an issue of whether Taliban suspects should have been transferred from the British authorities in Afghanistan to the Afghan government – putting them at risk of severe abuse. Grayling complains that their case was brought by a peace activist, Maya Evans, who was not a member of the Taliban nor a prisoner in Afghanistan – and so had no direct interest in the matter at all.

The judge in the case allowed her to bring it (in other words gave her standing) because of her expertise in such issues of human rights and the fact that Britain’s treatment of prisoners abroad is a matter of public interest.

But that is not good enough for Grayling. He suggests only people with a “direct” interest be allowed to bring such cases – the Taliban prisoners themselves perhaps. Read the rest of this entry

David Miranda Schedule 7 detention: Arbitrary or Alice in Wonderland?

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Schedule 7 to the Terrorism Act, under which a Guardian journalist’s partner, David Miranda, was held for nine hours at Heathrow, is an odd piece of legislation – not least because, unusually for criminal law, it deals with people who are for the most part wholly innocent. It is drafted with the intent – and has clearly had the effect – of detaining large numbers of innocent people to ask them about their terrorist activities.

As a result about 70,000 people were detained under Schedule 7 in 2011-12 – of whom only 24 were then arrested for terrorist related offences.

The authorities are perfectly happy with this appalling hit rate. The official guidance to officers when they use Schedule 7 is as follows: “Examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity … All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.” (Examining Officers under the Terrorism Act 2000 pdf)

The advice points out that “The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers.”

This may seem somewhat bizarre: a crucial anti-terrorism power that needs not even the tiniest scintilla of evidence of a person’s involvement in terrorism before it is operated against that person; and a clear acknowledgment that, for the most part, the examining officer will be wasting his own and the traveller’s time. Read the rest of this entry

Joan Edwards’ will: whose money is it anyway?

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Joan Edwards was obviously one of those kindly but naïve souls who believe that governments do good and are capable, when using their discretion, of making good decisions about the use of other people’s money.

Her will, which left a £520,000 bequest to the UK government, shows her trusting nature – but did she make the intention of her bequest clear? Apparently not since the two governing parties were initially happy to split the money between them and then, within half a day of the bequest being publicised in the Daily Mail, somewhat miserably to hand it back.

But to whom should the money actually go? This seems, in modern American parlance, to be Trust Law 101: uncertainty of intention, risking making the bequest void – which would return it to the Edwards estate for a difficult decision about who the actual final recipient should be. Read the rest of this entry

Theresa May and the European Arrest Warrant: Assange awaits her decision

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British Tory MPs are furious that the Home Secretary Theresa May has gone soft on the European Arrest Warrant. Among others also annoyed at the UK Government’s U-turn, backing a new version of the EAW, will be Julian Assange – one of the victims of the measure that makes it easier to extradite alleged criminals without too much legal protection in their host countries. Assange, as explained below, might have benefited from a more nationalistic, less Eurocentric extradition regime.

The EAW is one of the 133 European Union law and order measures in the European Union Lisbon Treaty that May opted out of – and also one of 35 she wants to opt right back into, though in a reformed version. The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned by human rights issues. Enfield North MP Nick de Bois for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. (Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? Read the rest of this entry

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