Saturday 29 May 2010

The House of Lords Bill

One of the Bills not referred to in The Queen's Speech was the House of Lords Reform Bill.  This is a private member's bill introduced by Lord Steel of Aikwood.

It will create a Commission to consider individuals for Life Peerages.  Names could be put forward to the Commission who will assess them against criteria which will include "conspicuous merit" and "willingness and capacity" to contribute to the Lords but the Commission will be able to propose additional criteria.  In making any proposal for additional criteria they will have to consider the "diversity of the population of the U.K".  Any criteria must be "laid before" Parliament and could be annulled by a resolution of each House.  Surely, an affirmative vote ought to be required to bring them into force?  The Commission will present names to the Prime Minister who is then the only person who may recommend names to the Crown.  Whether the P.M. will have any say (e.g. veto) over the names is unclear on the face of the Bill.

The Commission will have 9 members who will be nominated jointly by the Speaker of the House of Commons and the Lord Speaker of the House of Lords.  There will have to be 4 members independent of political parties and there must be 4 Privy Councillors.  The Bill provides for some disqualification from being a Commissioner - e.g. having made a donation to a political party within the last 2 years.

The new Commission procedure appears to remove the right of a Prime Minister to simply nominate someone for a peerage.  Prime Ministers have frequently nominated new peers - e.g. upon dissolution of parliament.  [See the latest list].

The Bill provides for the final phasing out of the hereditary peers who were allowed to remain under the House of Lords Act 1999.  As each dies, he or she will not be replaced.

A further long overdue reform is that a peer could lose membership of the House of Lords if found guilty of and imprisoned for more than one year for a criminal offence.  [The wording of the Bill on this is matter ought to clarify whether suspended sentences of imprisonment are included].  Whether Lord Steel's bill will reach the statute book must be doubtful given that the new government are setting up a committee to examine reform of the House of Lords (including election) and tasking the committee to prepare proposals by the end of 2010.

Thursday 27 May 2010

A solicitor tells of his experience as a juror

 The Law Society Gazette for 27th May has published an article by a solicitor who served as a juror in the Crown Court.  He says that it was a genuine privilege and a hugely enlightening experience.  His article is well written and is definitely worth reading.

Wednesday 26 May 2010

Criminal liability of Children and their trials

Two boys (now aged 10 and 11) have been convicted of attempted rape - see The Independent 24th May 2010. The trial was held at the Old Bailey and has sparked outrage in some quarters (especially children's charities) - see the BBC report.  The age of criminal responsibility in England and Wales is 10.  This is among the lowest in Europe and the United Nations has recommended that the age be raised -see House of Commons Briefing Paper February 2009.   Law and Lawyers looked at this back in March 2010. when, with rather unfortunate timing, the Children's Commissioner raised the issue.  Scotland is considering raising the age to 12 years.

The method of trying children and young persons in the Crown Court for serious crimes is crying out for radical reform. [In April, Law and Lawyers looked at the trial protocol to enable trial of serious sexual offences within youth courts].  It is now 17 years since the trial of Robert Thompson and Jon Venables for the murder of James Bulger.  In 1999 their cases were considered by the European Court of Human Rights (Grand Chamber) which was critical of the trial process used - see the judgements - T v UK and V v UK.  Since the trial of Thompson and Venables there has been considerable improvement, particularly with regard to "special measures" to enable child witnesses (and other vulnerable witnesses) to give their evidence.  Nevertheless, a child must still be subjected to live cross-examination which, of course, may be a considerable time after the events in issue.  There is little doubt that "special measures" have been (generally-speaking) beneficial to the trial process but the serious question remains as to whether different processes and procedures are required.

This is a complex issue but it should be examined with some urgency.  Former D.P.P. Sir Kenneth MacDonald has said - "..., we've been witnessing a spectacle that has no place in an intelligent society: very young children do not belong in criminal courts."  He must be right.

See also - "Children and Young People Now" - 25th May 2010

Scotland - a rather different approach:

Interestingly, since 1971, Scotland has used a system of Childrens Hearings to which those under age 16 (sometimes under 18) can be referred unless the Procurator Fiscal considers the seriousness of the case to justify trial by the Sheriff's Court or the High Court of Justiciary. It cannot however be claimed that everything about the Scottish Youth Justice system is perfect though the Childrens Hearing system is generally well regarded.  The Scottish system came out of the Kilbrandon Report of 1964. 

For an interesting article see "The Politicization of Youth Crime in Scotland .." (Laura Piacentini and Reece Walters) and see The Guardian 26th May for a useful article about the Scottish system (author Douglas Bulloch, a former Chairman of the Scottish Children's Reporter Administration).

Centre for Crime and Justice Studies - "10 years of Labour's Youth Justice Reforms" - May 2008.

Addendum - 7th June 2010:  Paul Mendelle QC, the Chairman of the Criminal Bar Association, has called for the age of criminal responsibility to be raised.   See Telegraph 7th June.

The Queen's Speech - a lot to do

The State Opening of Parliament was held on Tuesday 25th May with the usual pomp and pageantry.  The real business of Parliament now begins and interesting days lie ahead.  The Queen's Speech contained 23 Bills (and one draft Bill) - see Number 10 for a list of the Bills and The Guardian 26th May Many of the Bills are concerned with implementing economic policy (e.g. Office for Budget Responsibility Bill; Financial Reform Bill; Welfare Reform Bill etc).  Of particular interest to Law and Lawyers will be the Parliamentary Reform Bill, Scotland Bill (aimed at implementing recommendations of the Calman Commission); Police Reform and Social Responsibility Bill; Freedom Bill; Terrorist (Asset - Freezing) Bill; European Union Bill and the draft Parliamentary Privilege Bill.

To the relief of many, there is no blockbuster Criminal Justice Bill - (as such).  Relief is likely to be temporary since there are many areas of the criminal law and the criminal justice system which ought to be improved.   Similarly with civil cases - e.g. the very pressing issue of costs.  Legal Aid is a major issue for both criminal and civil justice.

The Freedom Bill perhaps comes closest to a criminal justice bill since it will deal with a range of matters such as the DNA Database, peaceful protest, trial by jury etc. This Bill will also address reform of the libel laws.  Also, Lord Lester of Herne Hill QC has introduced a Private Member's Bill on Defamation reform.  Lord Lester's proposals merit very serious consideration.

This is a big legislative programme and it is to be wondered just how much detailed scrutiny will actually be applied to each Bill.  The progress of the various bills can be see via the Parliament website.  In addition to the legislative programme, there is a massive amount of work to be done in other areas.  Some 22 such areas are listed on the Downing Street website.

Thursday 20 May 2010

Governmental News and Reviews but not all will be plain sailing

The State Opening of Parliament will be on 25th May.   This is one of the State occasions when the full panoply of Her Majesty The Queen attending Parliament can be seen.  The "Queen in Parliament" is the U.K's legislative body.  Any Bill must, in order to become law, pass both Houses of Parliament and receive the Royal Assent though, in practice, the latter is a formality.  The Queen will read the "Queen's Speech" setting out the plans for the forthcoming session of Parliament.  The speech is followed by debate in the House of Commons.  The detail of the speech is eagerly awaited and this is particularly the case with the first speech of a new Parliament.
The Ministry of Justice - [now headed by Kenneth Clarke] - has announced the responsibilities of the Ministerial Team.  Significantly, responsibility for Youth Justice is now entirely with the Ministry of Justice instead of the previous division between MoJ and Education.

Some 27 Policy Reviews have been announced in the full version of the Coalition Agreement.  The Civil Liberties proposals are in section 3 of the agreement; Policing is at paragraph 6 and Justice at paragraph 20.  This is a very full programme over the entire range of government activity.  The reviews will look at important topics such as the Human Rights Act 1998; the Extradition Act 2003; House of Lords Reform and Sentencing Policy.   The Extradition Act 2003 has been particularly criticised because of the arrangements between the U.K. and the U.S.A.  The Gary MacKinnon case exemplifies these arrangements.

Also, there will be a review of legal aid aimed at making it work more efficiently.  Proceeds from the "Victim Surcharge" will be used to deliver up to 15 new rape crisis centres as well as putting those which exist on a more stable basis.  A further and unexpected announcement is that anonymity will be extended to defendants in rape cases.  This is likely to be extremely controversial - see The Guardian 20th May.  Under the Sexual Offences (Amendment) Act 1976 s.6, defendants had anonymity but this was removed by the Criminal Justice Act 1988 s158(5).

The Electoral Commission has been looking at the problems with voting at the General Election on 6th May.  See their announcement and report.  The HUMAN RIGHTS BLOG has a good article on this.  LIBERTY has responded to the Commission's report.

Tuesday 18 May 2010

Costs: "Bordering on Despair"

Litigation can be hideously expensive.  This seems especially so in actions for Defamation (Slander and Libel) and in Boundary Disputes.  The previous government had a commitment to looking at reform of libel actions and the present government has stated a wish to take forward reform (including costs).  Work done by the Ministry of Justice may be seen at March 2010 report.  See also BBC 3rd March 2010.

Boundary disputes between neighbours are another area where some reform of procedure should be considered so as to reduce costs.  Perhaps a mandatory requirement to refer the dispute to alternative dispute resolution such as binding arbitration.  A very good article on these disputes may be read at "Loathe Thy Neighbour".  In a recent case - Charalambous v Welding [2009] EWCA Civ 1578 - the dispute was over a few feet of land worth about £5000 but the costs were almost £250,000.  One judge has stated - " ... boundary disputes can be fought with a passion which seems out of all proportion to the importance of what is involved in practical terms."

Lord Justice Jackson's Review of Costs may be seen here.

The Daily Mail 18th May offer another example of this litigation madness.

Addendum 24th May 2010:  The Times 24th May has published an item by Lord Lester of Herne-Hill QC who is introducing a Private Member's Bill dealing with Defamation Reform.  Lord Lester argues that the current law stifles free speech and the use of Conditional Fee Agreements (CFAs) allows lawyers acting for claimants to be enriched at the expense of writers and publishers.  The present government is committed to taking forward some reform in this area of the law.  Lord Lester's Bill may assist in this process.

Addendum 27th May 2010:  Here is a link to Lord Lester's Defamation Bill. Some analysis of it - here.

Monday 17 May 2010

House of Lords - Reform

An unelected House of Parliament stands in contradiction to the democratic idea of a parliament elected by the people.  Whilst most modern politicians appear to accept that position, reform of the House of Lords is proving to be a difficult issue.

The agreement between the Conservatives and the Liberal Democrats envisages setting up a committee to look at reforming the House of Lords into a "wholly or mainly elected upper chamber on the basis of proportional representation".  No alternative name for the reformed chamber has been suggested (e.g. Senate).  The committee will report by December 2010.  It is interesting that the agreement referred to "single long terms of office" and a "grandfathering system for current peers".  The very terms of the agreement appear to have already limited the terms of reference of the committee.

We await details of what is a "long term of office" though it is believed that a term as long as 12 years may be on the cards.  Would it not be preferable to limit the length of a term of office to 5 years but permit the person to be re-elected a maximum number of times (e.g. once or twice)?

It appears that the coalition government is about to create 100 new Conservative/Liberal Democrat peers - The Times 17th May - so that the House of Lords membership more accurately reflects the results of the recent general election.  Of course, the aim of creating so many new peers is to remove the majority in the Lords which Labour has enjoyed since 2005.  In addition, further peers will be appointed as a result of the Dissolution Honours and obviously many of those will take the Labour whip.

It would seem that all of these appointees would enjoy the "grandfather rights" referred to in the coalition agreement and it would therefore take many years before they disappear from a supposedly reformed upper house.

Little of this seems very satisfactory.  To avoid a reformed Lords becoming unwieldy, it would necessarily require a sensible maximum number of members.  The retention of large numbers of appointed peers would limit the number of persons who could be elected and would slow down the pace of reform.  Their retention would also result in two classes of members - those with peerages and those without (assuming that elected members would not receive peerages).

Would it be preferable to grasp the nettle, make a fresh start and move to a fully elected second chamber at the earliest date possible?   To achieve that would entail the appointed peers being removed in the way that the majority of the hereditary peers were removed by the House of Lords Act 1999.

Addendum 18th May:   The Guardian comments that some 170 new "Coalition" peers would be needed.  Between them, the Conservatives and Liberal Democrats already have a significant political majority in the Lords (260 to Labour's 211 - with crossbenchers, bishops and a few others making up the rest of the House).  The Times also points out that well in excess of 100 peers would be required if the Lords is to mirror the result of the last election.  They ask: what if the next election produces a dramatically different result?  Would the new government then appoint further peers to achieve a further rebalancing?

The possible consquences of this make the case for reform urgent and unarguable.  A democratic upper chamber will never be achieved if things continue in this vein.

Addendum 24th May:  The Times 20th May published a suggestion of Professor Dawn Oliver that the House of Lords be replaced by a new "Commission for Executive Scrutiny".  I would acknowledge that this is a suggestion from an eminent source.  The proposed Commission would not be part of parliament but would examine bills and propose amendments and might even have power to impose delay.  There are enormous advantages to having a BICAMERAL Parliament since one House acts as a check on the other.  A UNICAMERAL Parliament could, for example, extend its own lifetime and, with a large enough government majority, might engage in all sorts of "excesses".  For my part, I would not wish to see an Executive Scrutiny Commission.  A mostly elected and reformed upper house - (Senate) - is surely preferable and would be a true part of our national parliament

Saturday 15 May 2010

Corners of the Criminal Law 1 - Strict Liability - is it fair?

A basic rule in English criminal law is that, in order to convict a person, it is necessary to prove mens rea (i.e. either intention of recklessness) or, for a limited number of offences, negligence.  In the event that none of those things has to be proved in respect of one or more elements of an offence, the offence is referred to as a Strict Liability Offence (SLO).  Strict liability offences are usually created by statute and it is a question of interpretation whether strict liability applies.  Of course, in an ideal world, parliament would clearly state what must be proved.

An example of a strict liability offence is driving with excess alcohol (Road Traffic Act 1988 s5).  The driver is liable even if he is not responsible for his condition (e.g. because his drink was "laced").  [The latter may result in no disqualification].

How then do the courts decide whether a particular offence is a SLO?

A useful starting point is to remember that there is a presumption that mens rea applies - Sweet v Parsley 1970 (House of Lords).  This has been confirmed in many subsequent cases - e.g. Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong 1985; Pharmaceutical Society v Storkwain 1986, B (A Minor) v DPP 2000 etc.  However, the presumption of mens rea can be displaced if it is necessarily the implication of the statute.

The cases reveal a number of factors which may indicate that parliament intended strict liability.  No single factor is conclusive.

1.  Other sections in the same statute use words requiring mens rea but the section under consideration does not.
2.  What is the purpose of the statutory provision.  In Storkwain, the purpose was to prevent persons obtaining drugs from chemists by presenting forged prescriptions.  Chemists were therefore required to take considerable care to check prescriptions.
3.  What is the social context?  For example, does the provision apply only to a limited class of persons such as those in a particular trade where considerable care is required- (e.g. food production and retail, sale of intoxicating drink etc).
4.  What is the danger involved?  Driving is a potentially dangerous activity and this helps to explain why offences such as excess alcohol are strict liability.  
5.  Severity of punishment.  The more severe the penalty the less likely it is that there will be a SLO though this is not conclusive since Firearms Act 1968 s(1)(a) is a SLO carrying a maximum offence of 5 years imprisonment.
6.  Will the imposition of strict liability encourage greater care and vigilance?
7.  The enactment of a "due diligence defence" (sometimes coupled with "act of a third party") points to a SLO.

For a case where the House of Lords applied the presumption of mens rea see DPP v Collins [2006] UKHL 40.   The speeches were not too lengthy and it is worth reading.  The case concerned the Communications Act 2003 s.127.  A recent prosecution under this section is that of Mr. Paul Chambers who, acting out of frustration at an airport closure due to snow, sent a rather ill-advised "tweet" - see The Guardian 11th May.  Those interested in further views on this actual case are referred to Jack of Kent.

It is claimed that strict liability is justifiable because it protects against risks and improves standards.  However, if harm could not be prevented by even the exercise of all due care, the prosecution of the blamelessly inadvertent person achieves little and could discourage others from engaging in the activity.

Interestingly, Australia and Canada have developed a common law "due diligence" defence but there has been no similar development in England and Wales.  Maybe there should be?

Thursday 13 May 2010

A Tsunami of Law

In the period 1998 to 2010, some 480 Public Acts of Parliament were passed.  These have made major changes to the constitution, to the criminal law, to civil liberties and to many other areas of the law.  If the 480 Acts are combined with the many thousands of Statutory Instruments through which Acts are implemented and the detail filled in then the nation has been subjected to an absolute tsunami of legislation.  Almost no area of either the law or our lives has been left alone.  This tsunami is largely home grown.  A slow down combined with better thought out and scutinised legislation would be welcome.  I am not holding my breath !

A proposal containing major difficulties

The new Coalition government has announced that they will legislate for fixed term Parliaments of 5 years.  (See here).  The rationale for this seems to come from a desire by the parties forming the coalition to lock themselves into a fixed term arrangement for government.  A fixed term parliament would take away the Prime Minister's nuclear option of controlling the election date but, even if one accepts that fixed term parliaments are a good idea, there ought still to be a debate about whether the term should be 5 years or 4.  Most parliaments seem to be running out of steam at around 4 years.

The Coalition's proposal goes on to say that the legislation will "also provide for dissolution if 55% or more of the House votes in favour".  This part of the proposal certainly requires a great deal more thought and explanation.  For example, in view of the coalition arrangement, is the proposal limited to this parliament or is it intended to be a permanent change?  On the face of it, there could be many possible problems and perhaps not all of them can be identified at the present time.  Even if the parties to the coalition government wish to lock into a 55% arrangement (should they wish to propose a dissolution) it would seem wise to retain the traditional "no confidence rule" - i.e. that if the government loses a vote of confidence by at least 50% + 1 then the P.M. must resign and thereafter a general election is called.

For further analysis on this see the blogs Head of Legal and Charon QC.

Addendum 14th May 2010:  See Daily Mail - "Revolt looms over 5 year parliament "stitch-up" that Liberal Democrats demanded" and also see BBC 14th May.

Further addendum 14th May 2010: - Now that the possible implications of the 55% proposal are being realised, many politicians are speaking out against it.   The Times 14th May.

Wednesday 12 May 2010

The Coalition Government: the agreement: Next election 7th May 2015

The agreement between the parties forming the coalition government has been published - see here or here  (A final coalition agreement is to be published later)

Paragraph 10 is important since it seeks to "reverse the substantial erosion of civil liberties under the Labour government." 

There will be a Freedom or Great Repeal Bill - (no specific detail of its contents as yet)

ID cards, the national ID register will be scrapped as will the next generation of biometric passports and the Contact Point Database

It will become unlawful to fingerprint children at school without parental consent

The scope of the Freedom of Information Act will be extended

The DNA database will have similar protections to the Scottish model - [the difference between Scotland and the rest of the UK was a point made by the European Court of Human Rights in the Marper case]

Defend trial by jury

Restore rights to NON-violent protest

Review libel laws to protect freedom of speech

Prevent misuse of anti-terrorism legislation

Further regulation of CCTV

End storage of internet and e-mail without good reason

A new mechanism to prevent proliferation of unnecessary new criminal offences

Other sections of the document are also important.  There will be legislation to have fixed term parliaments of 5 years - (thereby removing the Prime Minister's traditional nuclear option of controlling the election date); legislation to bring about the Alternative Vote system of elections for the Commons; recall of MPs guilty of serious wrongdoing; a committee to consider House of Lords reform and to bring forward proposals by December 2010; a committee to consider the "West Lothian Question"; a referendum lock to prevent further transfer of powers to the EU.  The agreement contains these and many other ideas.

Whilst many of the details are yet to emerge, the agreement appears to offer a major legislative programme for a full parliament.

Addendum 17th May:  Work is beginning on reversing the ban on "intercept evidence" in criminal proceedings - see The Guardian 17th May.

A new Coalition Government: the legal eagles!

Wartime apart, coalition government in the U.K. has been rare.  One example is the government headed by David Lloyd-George which lasted from December 1916 until 1922 - (even that commenced in wartime).  A further example is the so-called "National Government" from 1931-1940 under Ramsay MacDonald, Stanley Baldwin and Neville Chamberlain.  This makes the Coalition government of Conservatives and Liberal-Democrats quite remarkable and nobody is pretending that it will be easy to make it work successfully.

The Coalition emerged following the 6th May election which did not give any party an overall majority in the House of Commons.  The nation went through almost 5 days of uncertainty as deals were being negotiated.  In the new coalition, David Cameron is Prime Minister and Nick Clegg is Deputy P.M.  The new Secretary of State for Justice and Lord Chancellor is Kenneth Clarke QC.  The new Home Secretary is Theresa May.  Mrs May will also hold the portfolio of "Women and Equality"

The new Attorney-General is Mr Dominic Grieve QC and he will be the first Attorney-General to sit in the House of Commons since July 1999.  This role is an immensely important one since the Attorney is chief legal adviser to the government and the role is likely to have enhanced importance in a coalition government.  At the time of writing it is not clear who will become Solicitor General - (the second "Law Officer of the Crown").  The Liberal-Democrat peer Lord Carlile of Berriew QC has been the independent reviewer of terrorism legislation.  Under the coalition he would not appear to be independent and therefore a new appointee in that role can be expected.  Following the Attorney-Generalship of Lord Goldsmith QC, there were many calls for reform of the role of Attorney-General but these have not been taken forward and seem to have been resisted by Baroness Scotland QC.  It will be interesting to see whether the ideas re-emerge.

Government appointments

Addendum 14th May:  The Solicitor General is Edward Garnier QC
Law Society Gazette - Ministers in the Ministry of Justice - 13th May 2010

Advocate General in Scotland

Monday 10 May 2010

Electoral Reform: How the election might have turned out

The Electoral Reform Society has been looking at what the House of Commons might have looked like if alternative systems of voting had been in place.  Their simulation results offer a rough indication by way of illustration, indicating the extent to which a different system might have produced a different result - see here for more detail.

First Past the Post:   Conservative 307;  Labour 258 and Liberal Democrat 57
Alternative Vote:      Conservative 281; Labour 262 and Liberal Democrat 79
Alternative Vote +   Conservative 275; Labour 234 and Liberal Democrat 110
Single Transferable Vote (STV)   Conservative 246; Labour 207 and Liberal Democrat 162

Clearly, FPTP delivered the best possible outcome for the Conservatives since all the other systems would have given them fewer seats.  AV would have given Labour a slightly better result than they achieved under FPTP.  STV would give the Liberal Democrats the best result.  FPTP produced a hung parliament and all the other systems would have done so as well.   It is argued that FPTP produces strong "single-party" government though, on this occasion, it has not done so.  In fact, as in 1997, FPTP can hand a single party such an enormous majority that the executive is more or less able to do what it pleases without thorough parliamentary scrutiny.  Any system other than FPTP will undoubtedly produce hung parliaments far more often and that will necessitate more dealing between parties in the formation of a workable government.

Gordon Brown announced that he would stand down as Prime Minister - see The Guardian 10th May.

Saturday 8 May 2010

VE Day + 65 years

As the politicians discuss the possibilities for forming a government, VE Day offers a timely reminder of the value of democracy and the fact that it was never given to us easily and must never be taken for granted.

Winston Churchill on 8th May 1945 going to the House of Commons.

Youtube Video of VE Day

The Court of Public Opinion: Governmental Possibilities

Harriet Harman MP, speaking in relation to the former Chief Executive of the Royal Bank of Scotland, referred to the "Court of Public Opinion".  On 6th May, the people were finally permitted their say in the General Election and their "verdict" will be subjected to analysis for the days and months to come.

As widely forecast, the result was a "Hung Parliament" and the recently issued Cabinet Manual Guidance clicked into operation.  This guidance is not based on rules set out in a formal constitution.  It is based on a number of historical precedents such as Edward Heath in 1974.  It permits the incumbent Prime Minister to remain in place even in a situation in which his Party does not have the largest number of seats in the House of Commons and even when his Party did not capture the largest share of the vote.

There are a number of possibilities.  [1] the Conservatives and Liberal Democrats combine in some way.  This could be either (a) a coalition arrangement or (b) a "Confidence and Supply" arrangement.  The question of electoral reform is likely to be a major obstacle to this possibility.  [2] the Labour Party and Liberal Democrats combine in some way in order to exclude the possibility of a Conservative government.  This has been described as a "Coalition of Losers" but some commentators have seen it as a more likely outcome in policy terms than [1] though, due to personalities (Clegg v Brown), it may prove to be impracticable.  A third possibility is that the Conservatives try to form a minority government but that would be unlikely to offer the political stability which the country requires in the present state of international finance etc.  This could not come about without the resignation of the Prime Minister (e.g. if he is unable to achieve possibility 2 and form a government able to command the confidence of the House of Commons) whereupon Her Majesty could ask David Cameron to form a government.  The fascination of all this is that possibilities 1, 2 and 3 may not be the only ones since there are some 29 MPs from other parties and they may be in a strong position to make demands as a price for supporting whatever government emerges.

The Cabinet Office is known to have made facilities available to assist with discussions but an important feature is that Her Majesty is not involved in any of the negotiations.  .  That is essential in a "constitutional monarchy" in which the Crown has a limited role in the formation of "Her Majesty's Government".

Queen's Speech:  From the legal viewpoint, there will be many interesting days ahead as the policies and legislative programme of any new government emerge.  The programme cannot be based solely on any single one of the Party Manifestos but will have to reflect the arrangements agreed between the parties.   The eventual Queen's Speech at the State Opening of Parliament will therefore be of major importance.

Addendum 1: Election Outcome:

Seats:                Conservative 305; Labour 258; Liberal Democrats 57 and Others 29
Votes:                Conservative 10.68 million; Labour 8.6 million, Lib Dem 6.81 million; Others 3.51 million
% of vote:         Conservative 36.1%; Labour 29%; Lib Dem 23%; Others 11.9%

Addendum 2: An undemocratic Possibility?

There has been a suggestion that Labour might "ditch" Gordon Brown and form a (minority) government with Lib. Dem. support.  Surely, such an outcome would surely be profoundly undemocratic.  It is one thing to argue that, according to the Cabinet Guidance, an incumbent P.M. can remain whilst matters are sorted out.  It is quite another to argue that the incumbent P.M. could resign but his Party continue under a new leader as the major player in a power-sharing minority government.  After all, Labour have been decisively rejected (Scotland excepted) in the polls.

Addendum 3 (10th May):   Gordon Brown stated that he would be resigning once a new Labour leader was elected.  This would appear to make the option of a Labour/Lib Dem arrangement more likely.

Addendum 4 (11th May):  Talks between the Liberal Democrats and the Labour Party took place but there was no agreement.   Interestingly, a number of senior Labour Party figures had said that such a deal would lack legitimacy - see Politicshome.  Consequently, Gordon Brown resigned as Prime Minister and then H.M. The Queen requested David Campbell to form a government.  The twists and turns of the period 6th May to 11th May 2010 and the various personalities involved will interest political commentators for a long time to come.  See, for example, "Big Beasts turn on Mandelson and Campbell" and "Labour infighting killed coalition hopes".

General Election May 2010 - The right to vote: denied - Ubi jus, ibi remedium

The European Convention on Human Rights (First Protocol) states in Article 3 -"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."  Those words do a great deal more than impose a duty on States to hold parliamentary elections.  In the case of Mathieu-Mohin v Belgium (1988) 10 EHRR 1, the European Court of Human Rights held that Article 3 implicitly requires a right to vote in an election for the legislature.  The denial of that right to many hundreds of people has brought shame upon our democratic process.  It was described by one Sheffield lady voter as "terribly undemocratic" and an elderly lady in Manchester's Withington Constituency said she had been "disenfranchised". 

Those who encountered problems at Polling Stations should consider informing the Electoral Commission and LIBERTY of their experience. Mr Geoffrey Robinson QC has suggested that those denied a vote could be entitled to compensation - see Express.  This must be correct.  The European Convention on Human Rights is about rights being effective and not illusory.  An ancient principle of law is that where there is a right there is a remedy ("ubi jus ibi remedium") - see Ashby v White (1703) 92 ER 126 (Holt CJ).  The civil rights organisation LIBERTY also wishes to hear from anyone who was aggrieved.

See The Guardian 7th May 2010.
See Timesonline 9th May 2010 - "Turned away voters told to demand a rerun" -  Comment: For anyone other than the seriously rich, this advice - (from the leader of the Returning Officers) - is a non-starter.

Addendum 14th May:  See the view of Joshua Rozenberg - Law Society Gazette

Wednesday 5 May 2010

Special advocates: Closed Procedure: Secret Hearings

The term Special Advocate was unheard of in the courts of England and Wales until the Special Immigration Appeals Commission Act 1997 created the Special Immigration Appeals Commission (SIAC) and a system of "Special Advocates".  SIAC hears a specified range of appeals - e.g. where a "control order" is made by the Home Secretary.  For cases heard by SIAC, the 1997 Act abrogated many of the usual rights which appellants have before the courts.  An appellant may appoint his own legal representative but the Attorney-General may appoint an advocate to represent the interests of the appellant.  The evidence against the appellant is only shown to the "Special Advocate" and the appellant and his appointed legal representative may be excluded from the proceedings.  Although the special advocate is engaged to protect the interests of the appellant, he or she does not actually act for and cannot normally take instructions from the appellant.

The use of "Special Advocates" has been extended to other areas where it is argued that disclosure of evidence might harm "the public interest" - (i.e. national security; international relations; detection and prevention of crime etc).  Examples of the growing use of Special Advocates may be found in: Prevention of Terrorism Act 2005 Schedule 1; Counter-Terrorism Act 2008 Schedule 7; Parole Board Rules 2004; Employment Tribunals Regulations 2004 Rule 54(2).

In all instances where Special Advocates are used, there is statutory authority for their use. However, in Al Rawi and others v Security Service and others [2009] EWHC 2959 (QB) Mr Justice Silber ruled that special advocates could be used in civil claims for damages.  That decision has now been very firmly overruled by the Court of Appeal in Al Rawi and others v Security Service and others [2010] EWCA (Civ) 482

For the time being, there will be no special advocates in civil cases outside of the statutory schemes.  Their use hides the process of justice from the public view and cuts across one of the oldest precepts of the law that "Justice must not only be done: but must be seen to be done".  Jeremy Bentham once said that - "In the darkness of secrecy sinister interest and evil in every shape have full swing."  In connection with the special advocates system that might be taking things rather too far - (e.g. SIAC publishes judgments) - but there is considerable reason for concern about the growth of this procedure.  My guess is that it will not be long before some statutory scheme is introduced for civil cases unless, of course, the Supreme Court overrules the Court of Appeal.

See also Attorney-General's Office
See Offensive against closed justice

Tuesday 4 May 2010

Coroners: A voice for grieving relatives

One of the oldest offices known to the law is that of Coroner.  Writing in The Times 1st May, Frances Gibb drew attention to how Coroners have become the voice of grieving relatives seeking to expose systemic failings which may have contributed to their loved one's deaths.  There can be little doubt that many governmental failings relating to provision for the Armed Forces would not have come to light but for the inquest system - see Andrew Walker, Coroner.

Under the Coroners and Justice Act 2009, the entire system relating to Coroners is going to receive a complete overhaul and many of the structural reforms will (generally) be welcomed.  Whilst the Bill was in Parliament, there were some attempts by the government to enable the Secretary of State for Justice to direct that an inquest be held in secret.  These did not succeed BUT there is section 11.  This blandly states that "Schedule 1 is to have effect".  When you delve into Schedule 1 there is a power to suspend an inquest pending an Inquiry under the Inquiries Act 2005.  Further, such an inquest would not normally be resumed since the Inquiry would substitute for the inquest.  Turning to section 19 of the 2005 Act there are extensive powers for Ministers to restrict public access to an inquiry - e.g. on grounds of national security.

It would appear that, in the years to come, the Coroner's voice may be heard rather less than previously.

Partisan gain appears to be all that matters

The United Kingdom was able to claim that elections were conducted fairly.  This is now open to serious question.

In 2005, Mr Richard Mawrey QC adjudicated on a disputed local government election held in Birmingham.  His judgment, later described by the Court of Appeal as a "model of clarity",  found that there had been general and personal corruption on the part of three Bordesley Green Labour Party respondents and two others from Aston Labour Party.  At the heart of the case was the unrestricted option to vote by post which was introduced in 2001.  Richard Mawrey described the postal voting system as something which would disgrace a "Banana Republic".  [The Guardian 2005]

Court of Appeal R (Afzal) v Election Court [2005] EWCA Civ 64

Since 2005, little has been done to ensure that the postal voting system is made less liable to corruption.  In particular the postal voting system has not been reformed.  It is claimed that it is far too easy to register "bogus voters"; that there are no proper identification checks; that political activists are collecting in voting papers and, most worryingly, that the police are reluctant to investigate complaints if they arise in areas where suggestions of "racism" might be raised.

See The Times 4th May 2010 and Daily Mail 4th May 2010.

There should be a return to voting in person with exceptions only permitted where strictly necessary.  As things stand, our electoral system shames democracy.

More information:  Those wishing to see more information regarding the background to postal voting (and proxy voting) - see House of Commons Research Paper; Representation of the People Act 2000 and explanatory notes.

Saturday 1 May 2010

Under the Radar: the Stockholm Plan for Justice

What has hardly been seen but is sneaking in under the radar of the British general Election?  British politicians have said little about it and there has been no worthwhile presentation to the British people.  The answer is the highly ambitious "Stockholm Programme" which is essentially a 5 year plan for justice within the European Union.  The broad plan was agreed by Ministers in December 2009 and the European Commission has now issued more of the detail.   There are so many aspects to this that it is best, at this stage, to draw the reader's attention to it and reserve comment until later.  Nevertheless, only the most Eurosceptic among us would fail to welcome many of the initiatives.  I would be interested in any immediate reaction or views.  Perhaps we might ask our local candidates in the election just what they know about it.  My guess would be, in most cases, very little.

See Statewatch Comments and Statewatch Analysis.  See Law Society Gazette and Building a Citizen's Europe and European Parliament.