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Tag Archives: Politics

So-called Article 61 of Magna Carta – and the so-called right to rebel

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Protesters who occupied Edinburgh Castle have claimed they are doing it under “Article 61” of Magna Carta – in reality Chapter 61. This, they would presumably argue, offers a “right to rebellion” against the monarch. Of course that is nonsense, not least because Chapter 61 was an agreement between King John and his magnates – the barons whose rebellion led to the signing (or rather sealing) of Magna Carta in 1215. It was an acceptance that those barons could rebel – or temporarily abandon their fealty to the monarch – but return to the fold without loss of their feudal estates once the issue at hand was resolved. It was not a carte blanche for hoi polloi to rise up and seize royal castles.

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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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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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The Karen Buck Bill: Has the Government got developers off the hook?

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Has the UK Government done a devious deal to protect its favoured business interests among property developers and construction firms from a post-Grenfell crackdown on dangerous homes? Suspicious minds might think so.

After some years of prevarication and filibustering by the Tories, the Government has agreed to back a Private Member’s Bill from Labour MP Karen Buck requiring homes to be “fit for human habitation”. With one proviso: a single simple clause that would do most to help people living in potential Grenfell Towers – catastrophically dangerous homes – has been removed.

In its original form the Buck bill included a provision that would have had a huge and positive benefit: simply to bring into effect a piece of legislation that is already on the statute books and has been sitting there for more than 30 years.

If it were implemented by the Government,  Section 38 of the Building Act 1984 would make it much easier for tenants to sue for breaches in building regulations – the very issue that (it is alleged by some) may have led to the disaster at Grenfell Tower with 71 people killed by the fire.

The Government seems to have headed off Karen Buck’s calls for reform by backing her bill but with the clause that would have implemented Section 38 excluded. That 1984 legislation will remain uselessly in limbo.

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Home Office plays the long – and costly – game to deport 70-year-old widow

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In these straitened times the Ministry of Justice has had to crack down on the costs of the UK legal system. But there is one area where apparently money is no object: chasing 70-year-old Pakistani widows from Britain’s shores.

Even when their chums at the Home Office are on a two-year losing streak during which judges twice rejected the case for removing Razia Begum as “disproportionate” given she retains no ties in Pakistan, one last desperate (and expensive) throw of the dice was bankrolled by the public purse. 

Thus it was that Home Office lawyers fetched up at the Court of Appeal a couple of weeks ago demanding another go at removing Mrs Begum, even though they had missed an appeal deadline a year and a half ago – owing to “mere oversight”. Their claim for an extension was based on the notion that they “had a good case” against Mrs Begum.

But “the need for litigation to be conducted efficiently and at proportionate cost” is a principle of legal procedure far pre-dating current MoJ rigours. So the notion that the Home Office could, at great expense, lay out its case before two Lord Justices to persuade them it was good enough for it to proceed, then at some later point lay out the whole case again before yet more learned justices during the substantive appeal was not one likely to find favour in the Court.
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Libel juries: How Tim Yeo and Warby J buried the Seven Bishops

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It is ironic – and perhaps a little shocking – that an early high-profile beneficiary of Britain’s abolition of the right for juries to try libel cases should be a Member of Parliament – one who will doubtless have supported the Defamation Act 2013 that removed the long-standing right. So, step forward Tim Yeo, who will not (thanks to the new law and a sympathetic judge) have 12 jurors facing him in court who need to be persuaded that he did not show willingness “to abuse his position in Parliament to further his own financial and business interests in preference to the public interest“.*

Yeo succeeded in challenging Times Newspapers’ attempt to have a jury empanelled – but might be mortified that Mr Justice Warby in Tim Yeo MP v Times Newspapers decided the case could do without a jury because Yeo is just not an important enough figure to warrant one. Some public figures (government ministers or judges, perhaps, rather than footballers or celebs) might have to face a libel trial jury, but the moderately high and not-so-mighty-now Mr Yeo doesn’t quite cut the mustard.

More significantly, Warby’s decision about a jury has ditched centuries of legal and constitutional  principle, denying any public interest right for defamation cases involving senior public servants to be tried by those representatives of the public who constitute juries. But some background is needed.

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Should veils be banned in court? It’s a question of evidence

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The issue of whether Muslim women should be allowed to wear the veil, niqab or burqa when giving evidence in court is a matter of tiny importance yet, seemingly, of great significance. Tiny because there are so few women in Britain wearing full face coverings for religious reasons, of whom even tinier numbers are likely to give evidence in court.

But court scenarios are where the arguments about veiling (whether or not part of a “national debate”, as per Liberal Democrat minister Jeremy Browne) seem to play well for the veil banners since they can tap into Britain’s great traditions of justice and notions of the fair trial. What they don’t tap into is any actual evidence about how or under what circumstances veil wearing might harm a fair trial.

Judge Peter Murphy has considered this issue in the case of R v D(R) (though stressing his view should not be part of the wider debate) and concluded a defendant should give evidence unveiled. (His full decision is here pdf)

There is some evidence (see below) that doesn’t necessarily support the view that juries pick up important clues from watching the facial features of witnesses, but first the context. 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

Schedule 7: High Court rejects Sylvie Beghal human rights case

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Note: A European Court of Human Rights judgment has now (February 2019) declared a violation in this case. See below Beghal v UK.

The British High Court has called for a legislative change to “Schedule 7” terrorism powers under which David Miranda, partner of Guardian journalist Glenn Greenwald, was held for questioning.

However, the judge has ruled that the Schedule 7 regime is legally acceptable and that Sylvie Beghal, held under Schedule 7, did not have her right to liberty under European Convention law breached. Nor was her right to a private life breached by the obligation under Schedule 7 to answer any questions put by security officers – however personal.

Lord Justice Gross in his conclusion said: “In short, the balance struck between individual rights and the public interest in protection against terrorism does not violate the fundamental human rights in question.”

The judges recommended the law be changed to bar the use of admissions gained at a Schedule 7 questioning being used against the individual at any subsequent criminal trial. Schedule 7 questioning is not accompanied by the usual protections for suspects including the (qualified) right to silence and the absolute right to a lawyer. Read the rest of this entry

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