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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

‘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

Contractual rights are property rights: Government blunder on feed-in tariffs

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The UK Government faces a bill for up to £200m in compensation to green energy installers that suffered losses as a result of former energy secretary Chris Huhne’s 2011 announcement on proposed cuts in environmental subsidies. The announcement led to many organisations and individuals dropping plans to install solar power with feed-in tariff (FIT) equipment that feeds electricity generated by small-scale solar panel systems into the grid, producing a payment.

A legal ruling in the High Court (Breyer Group plc & Others v DECC issued 9 July 2014 ) is the second time in a week that the government has been show to have fallen foul of the principle that the law should not be retrospectively changed if it damages people’s interests. (See the Poundland case: UK Human Rights Blog)

Are contracts property?
The High Court established in its ruling on preliminary legal issues that pre-existing contracts to supply the solar micro-generation equipment constitute “property” for the purposes of protection of property rights under the European Convention on Human Rights. Furthermore, Huhne’s announcement, which proposed bringing forward a reduction of the subsidised payment, constituted an “interference” with those property rights. This should potentially be compensated, said Mr Justice Coulson.

The 31 October 2011 announcement that cuts in the feed-in payment might be brought forward amounted to a retrospective change in legislation without passing new legislation through Parliament. “The proposal would have taken away existing entitlements without statutory authority.” The announcement damaged businesses and hit consumers who had planned to install the equipment on the basis of the higher payments. As such it breached ECHR Article 1 Protocol 1 (A1P1) on protection of property rights regarding contracts concluded on or before the day of the announcement.

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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

Iain Duncan Smith needs to put on a new benefits thinking cap

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It seems that Britain’s Work and Pensions Secretary Iain Duncan Smith has solved a conundrum that has baffled and befuddled philosophers for millenia: how do we know what we know? He has cut through the Kant and ditched Descartes for this elegantly simple formulation: “I think, therefore it is”.

This, in sum, is his view of how his welfare changes will pan out; they will pan out just as he thinks they will pan out. Thus, when the Office for National Statistics suggested the figures did not bear out his assertion that the benefit cap of £26,000 would encourage people into work he told John Humphrys on the BBC Today programme: “Yes, but by the way, you can’t disprove what I said either” – a classic response of the sceptic school of epistemology. He went on: “I believe this to be right; I believe that we are already seeing people going back to work who were not going to go back to work.”

He has no evidence; indeed he has been told that the evidence he thought he had was not in fact evidence; but he believes he is right so he must be right.

Others who contradict him, such as Haringey Council in London, are “politically motivated”, whereas Iain Duncan Smith, Tory member for Chingford and Woodford Green and one time leader of the Conservative Party is, of course, not politically motivated.

All this is good news, not least because IDS has also said that his welfare changes won’t lead to people becoming homeless or being driven out of London. He has said it; he presumably believes it; and hence, cogito ergo est: it must be true.

Which is odd, because some of those on whom people rely for their homes, the housing associations of England and Wales, have in effect contradicted Duncan Smith’s position. They certainly believe that the welfare changes will lead them to evict their tenants, and they believe they may have to do it using the much criticised and draconian Ground 8 possession procedure. Read the rest of this entry

We need a judicial review into who’s killing JR

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Here’s a riddle wrapped up in a paradox: could judges using the power of judicial review strike down David Cameron’s attempts to curb the use of judicial review?

The British Prime Minister has complained at people exercising their right to hold the executive to account. He wants to “reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting”.

Now let us remind ourselves of the chilling threat issued by Baron Steyn, of Swafield in the County of Norfolk. In R (Jackson) v Attorney General (House of Lords case 2006) he said on the supremacy of Parliament:

The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”

He is saying that if Parliament sought to abolish judicial review, courts would have to defy Parliament even though Parliament is sovereign. The rationale for his position is that there exists in Britain the rule of law. You know the one: the rule that says the Government is subject to the law, just like everyone else. The one the Government, and particularly the Prime Minister, David Cameron, keeps forgetting.

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Pleb or posh – the UK Cabinet’s class position analysed

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The  Andrew Mitchell row over the abuse allegedly hurled at police by the UK Government’s chief whip, and whether or not he called them plebs, brings the political focus back on to whether Britain is being governed by a bunch of out of touch posh boys. Here is a guide to the essential information to allow you to make up your mind. (Definitions and analysis are given below.) Included is information on the nature of Cabinet members’ work before they became MPs, which speaks to the issue of how out of touch they may or may not be.

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Parliamentary boundary changes: Liberal Democrats fight for the moral low ground

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On the face of it, the Liberal Democrats, in seeking to veto boundary changes in revenge for lost House of Lords democratisation, have deserted their preferred moral high ground for low politics. The legislation to equalise voters in each constituency and reduce Commons constituencies from 650 to 600 was duly passed by Parliament and the Boundary Commission is doing the work to produce the new set-up by the next election in 2015. (Note: since publication we have actually had two elections under the old system – and who knows, could have another shortly …)

Liberal Democrat opposition to the outcome will involve standing against the will of Parliament as expressed in that legislation, countering the crucial independence of the Boundary Commission and, paradoxically, Lib Dem ministers undermining what is in effect their own legislation.

Given their illiberal and undemocratic stance in their opposition to equalisation of constituencies and reduction in parliamentary seats, do they have any strong moral argument to justify it?

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Alvi immigration case: Supreme Court rejects Home Office codes of practice

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The Home Office has been found to be in breach of the law by excluding migrants from Britain using “rules” in codes of practice that have not been sanctioned by Parliament.

The Supreme Court rejected the notion that material in the codes used to control immigration fell within the Royal Prerogative under Common Law (and hence beyond the ambit of parliamentary immigration legislation). The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.

The court has also suggested that 40-year old procedures for passing immigration rules through Parliament are no longer fit for purpose.

In what looks like a panic measure, the Home Office has sought to counter the ruling by putting a statement on immigration rule changes, including the codes of practice, before parliament on Thursday 19 July to come into force on Friday 20 July.

The debacle has occurred because new immigration rules, according to the 1971 Immigration Act S.3(2) are supposed to be laid before both Houses of Parliament. If the rules, in effect statutory instruments issued by Governments, are “disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying”, then the Secretary of State must take them back and make suitable amendments. (the so-called “negative procedure” explained here)

But in the case of the Occupation Codes of Practice used to exclude physiotherapy assistant Hussain Zulfiqar Alvi, a Pakistani national, even this far from rigorous procedure was not used. Instead the document was issued by the Secretary of State to the UK Border Agency (UKBA) without parliamentary scrutiny and posted on UKBA’s website. It lists skilled occupations and salaries that immigrants must have to qualify to be sponsored by employers to work in Britain.

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Libor libel: has George Osborne defamed Ed Balls?

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Following UK Chancellor George Osborne’s apparent fingering of former Labour Government figures over the Libor affair – and his failure to either apologise or substantiate the claims, the question arises, has Osborne libelled his opposite number Ed Balls or members of the previous Labour Government?

Baroness (Shriti) Vadera has acted to ensure the media does not imply her involvement in pressing Barclays to reduce its Libor Panel submissions (she was former financial adviser to the Labour government in 2008 and had legitimately expressed the need for Libor to come down) and she has gained the deletion of a section of Question Time in which journalist Dominic Lawson repeated the Osborne claim.

Basically Osborne’s allegation is that people close to former prime minister Gordon Brown “were clearly involved” in the Libor issue – and the interview in the Spectator suggests he means they were involved in pressing for Barclays to reduce its Libor Panel submission so Libor would fall with a beneficial effect on interest rates generally.

The truth of the matter is that the Government was indeed worried about Libor and Barclays’ high submissions – and considered perfectly legitimate assistance to bring it down (explained in The still missing killer email). There is no evidence of wrongful pressure brought on Barclays by Vadera or Balls (who was Children’s Secretary at the time, not with the Treasury).

Libel is a defamatory statement in a permanent form – including broadcast in these iPlayer, YouTube days. The BBC would not be liable for Dominic Lawson’s live statement “as the broadcaster of a live programme containing the statement in circumstances in which he has no effective control over the maker of the statement” (S.1(3)(d) of the Defamation Act 1996) but probably would be liable if it kept it on a BBC website.

To prove libel it has to be shown that the statement was defamatory, that it was published and that it referred to the complainant (including that the person is identifiable if unnamed). To avoid liability the defendant must then prove it is true or “fair comment on a matter of public interest” or was covered by privilege – as Osborne’s comments in Parliament were, though not those to the Spectator. Defamation is an untrue statement that injures someone’s reputation including lowering him or her in the esteem of right-thinking members of society. On the face of it suggesting illegitimate pressure on Barclays would damage the reputations of those against whom the allegation is made.

Osborne, since the most recent revelations and testimony that fail to support his apparent implication has not elaborated or apologised, simply repeating that Balls “has questions to answer”.

Here, to give context, are some extracts from the Spectator article. It makes clear that Osborne was in a good mood as a result of the Libor scandal: “He saw almost instantly that a story that started with 14 big boys at Barclays trying to make a profit by hook or by crook could fast turn into something that threatens to destroy reputations in Westminster as well as in the City.” (Trashing reputations is what gets George Osborne up in the morning – even at the expense of a trashed economy all around him.*)

This element of the story is about failed regulation from 2006-08 when the Barclays boys were trying to manipulate Libor for profit. It is arguably fair enough to make political hay out of this sort of thing on the grounds that it happened on Labour’s watch and under Labour regulations – it is fair comment on a matter of public interest.

‘They were clearly involved and we just haven’t heard the full facts, I don’t think, of who knew what when’ – Spectator’s ‘bombshell’ Osborne quote

But the article goes further, focusing on late 2008 when the Government and the Bank of England wanted interest rates down and were concerned that Barclays was keeping them up through its Libor submissions. The article has Osborne first blaming the regulatory system for Barclays’ 2006-08 behaviour but it then goes on:

But suddenly, and far more explosively, he moves on to the political efforts to keep Libor low during the financial crisis of 2008.As for the role of the Labour government and the people around Gordon Brown, well I think there are questions to be asked of them’, he says. He starts to discuss reports that those in the Brown circle were pressuring Barclays to manipulate the Libor rate it was paying. Then he drops a bombshell: ‘They were clearly involved and we just haven’t heard the full facts, I don’t think, of who knew what when’.”

This, the Spectator goes on to say, “is a remarkable charge” – “But Osborne does not stop there.”

He continues: ‘My opposite number was the City minister for part of this period [May 2006 to June 2007] and Gordon Brown’s right-hand man for all of it, so he has questions to answer as well. That’s Ed Balls, by the way’.” For these last words, Osborne leaned close to the reporter’s microphone, we are told.

Thus the two issues become conflated, apparent failure of regulation, alleged pressure on Barclays to manipulate Libor. The Spectator is clear that none of this is “the usual political point-scoring” but “crucial to Osborne’s electoral ambitions”.

The potential libel, then, is specifically about 2008 and centres on the words “they were clearly involved”, meaning Labour Government figures. The Spectator wonders whether Osborne “intended to bring into question Balls’s defence that he couldn’t have known about any-rate fixing as he was Secretary of State for Children at the time”.

No defence
The fact that Osborne has not named those “clearly involved” would be no defence to a libel action if people such as Vadera or Balls were clearly identifiable as the target of the allegation. Vadera
is, arguably, identifiable, which, one might assume, is why she has taken action against the media to stop repetition of the untrue claim – libellous if deemed to be damaging to her reputation.

Balls, given his Children’s brief at the time, is less identifiable – except that Osborne seems to bring him into the frame as Brown’s “right-hand man for all of it” – meaning the whole period of 2006 to 2008. The Spectator suggests Osborne is seeking to undermine Balls’s Children’s Secretary defence – but that is not the same as Osborne actually pointing the finger at Balls regarding alleged government manipulation attempts.

This leaves Alrich in some difficulty. The burden of the allegations has been reproduced here. Repetition of someone else’s libels is still libel – even, in many cases, if you make clear you don’t believe it. All being well, though, a defence of “fair comment on a matter of public interest” will put paid to that.

There is, however, also a danger of suggesting that the Spectator, rather than Osborne, has committed a libel by its contextualising commentary on what Osborne said – implying it was directed at Balls by undermining his Children’s Secretary defence and implying it relates to the untrue claim of government pressure on Barclays rather than the just the regulatory background to Barclays’ Libor manipulation.

The answer to that would be that the man on the Clapham omnibus reading the Spectator (if he still bothers, rather than picking up a free copy of Metro like most people) would indeed draw that conclusion from the words published.

If Osborne did mean to point the finger at Balls, the Spectator’s implications that he did are not untrue – but the substantive allegation remains (we believe) untrue. The Spectator would be on the hook for publishing the claims even though they are Osborne’s. On this reading, the “bombshell” bit of what Osborne said was libellous and the Speccie should not have published it.

One suspects Osborne will rely on some of this for his own defence. He will insist that nothing he actually said explicitly or impliedly suggests Balls approached Barclays or was involved in a decision to approach Barclays to push down Libor. His attack was more of a scattergun affair justified as political knockabout or “fair comment on a matter of public interest” ie comment on the regulatory failure.

However, he has had ample opportunity to clarify which allegation he is making and has failed to do so. So what can be concluded with any safety? Perhaps we may use Osborne’s own formulation: the whole issue leaves him with questions to answer.

*Note: This, on the face of it, shocking suggestion – that Osborne cares more about scoring points against his opponents than dealing with bankruptcies, unemployment and rising poverty in Britain. It qualifies as a statemnt likely to bring him into “hatred,  ridicule and contempt”, according to the libel law formulation. Fortunately we are able to ridicule politicians, not merely because they are very often ridiculous, but also because “mere vulgar abuse” is accepted and excepted under libel law.

A more detailed look at the legal issues, including relevant cases, is here
See also the Defamation Bill 2012 PDF version, 113KB

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