House of Lords Reform - Bill introduced

The House of Lords Reform Bill has been published.  See the Bill as introduced - (pdf).

Some time ago, Law and Lawyers looked at House of Lords reform - Plantagenet Palliser - after 100 years, will Lords reform arrive?

A basic democratic principle is that those who make the law should be elected by the people through a system of universal franchise.  This is recognised by Protocol 1 to the European Convention on Human Rights:

ARTICLE 3 - Right to free elections

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.

Given that the House of Lords is wholly unelected, it fails to come anywhere near this basic democratic principle.  This is not to say that the Lords has failed to do a good job in terms of improving Bills and, on a number of occasions, the Lords has shown itself to be more supportive of civil liberties than the elected Commons.  This may be due to the abilities of many of the members who are often less fearful of the political party machinery.  However, for reasons which I hope

Financial penalty imposed on Barclays

Update - Addendum 2nd July

Update - Addendum 30th June 

On 27th June, the Financial Services Authority (FSA) announced the imposition of a penalty of £59.5 million on Barclays Bank plc for misconduct relating to the London Interbank Offered Rate (LIBOR) and the European Interbank Offered Rate (EURIBOR).   The power of the FSA to impose such a penalty is to be found in section 206 of the Financial Services and Markets Act 2000.

Barclays agreed to settle at an early stage of the FSA’s investigation and therefore qualified for a 30% discount under the FSA’s executive settlement procedures. Were it not for this discount, the FSA would have imposed a financial penalty of £85 million on Barclays.  The BBC has published an interesting article - How did the FSA calculate Barclay's fine? 

For those wishing to see the detail of this convoluted matter, the Final Notice (issued under s390 of the Financial Services and Markets Act 2000) is essential reading.

The LIBOR and EURIBOR are benchmark

Newly "elected" judges at Strasbourg

The Parliamentary Assembly of the Council of Europe has elected new judges to the European Court of Human Rights.  The new judges come from the Czech Republic, the Netherlands, Poland and the United Kingdom.  See Parliamentary Assembly announcement.  The appointees take up their judicial duties on 1st November 2012.

Three candidates were put forward from the United Kingdom - Raquel Agnello QC, Benedict Emmerson QC and Paul Mahoney.  Mr Mahoney was elected with 83 votes.  Mr Emmerson obtained 48 votes and Ms Agnello 27.

If this process is compared to a race, Mr Emmerson was "front-runner" as far as the legal profession was concerned and Mr Mahoney was the "outsider."

There are somewhat worrying signs that politics played more than a minor role in the whole process - see Joshua Rozenberg's article in The Guardian 27th June - "Politics trumps merit."  As ever, Mr Rozenberg's article merits serious consideration.  See also The Guardian 27th June - Owen Bowcott - where it is said that the appointment of Mr Mahoney followed a "Tory attack on his rival."  Whether true or false, the emerging picture fails to give one confidence in the process.

I do not propose to comment

The Twitter Joke Case

When enacting legislation, Parliament does not usually seek to define ordinary words of the English language.  Where Parliament wishes a word or phrase to have a special meaning, there will usually be an interpretation section.  Unfortunately, where a particular word is crucial to criminal liability, this can lead to difficulties as is well-illustrated by the long-running  "Twitter Joke" case.  The second appeal to the High Court in this case was heard on 27th June.   The facts of the case occurred on 6th January 2010. 

Previous proceedings:

The case was heard initially in the Magistrates' Court where a District Judge (Magistrates' Courts) found Mr Paul Chambers guilty of the offence under the Communications Act 2003 section 127(1) - sending a  "menacing" communication via a public electronic communications network (PECN).  Mr Chambers appealed against his conviction to the Crown Court and, this time, was found guilty by a judge sitting with two magistrates.  An appeal from the Magistrates' Court to the Crown Court is a re-hearing of the case.    The next step was an appeal - "known as Appeal by Case Stated" - to a Divisional Court of the Queen's Bench Division.  This form of appeal is concerned only with questions of law such as the interpretation of Acts of Parliament.  On this type of appeal, the Divisional Court will accept any findings of fact made by the lower court - (in this case, the Crown Court).  The appeal was heard by two judges who failed to agree. Hence the need for this second appeal which was heard by three judges including the Lord Chief Justice.

The legislation:

A matter of contempt

Another notable event this week was the finding by His Honour Judge Barry Cotter QC that the Home Secretary was in contempt of court for not abiding by an undertaking given to release a man (Mr Lamari) from a UK Detention Centre by a specified date.  The story can be read at UK Immigration Barristers.and see also the article in the Telegraph.

This is the second time in legal history that a Minister of the Crown has been held to be in contempt of court.  The first occasion was in 1991 when the Secretary of State for the Home Office was held in contempt.  (At the time, the office was held by Mr Kenneth Baker).  This led to the important constitutional law decision by the House of Lords in M v Home Office  [1994] 1 AC 377; [1993] UKHL 5 - Lords Keith, Templeman, Griffiths, Browne-Wilkinson and Woolf.

Nothing can be said to be certain, except death and taxes

Benjamin Franklin (1706-90) is reputed to have stated -

"In this world nothing can be said to be certain, except death and taxes."

 The Daily Mirror (22nd June 2012) published "Jimmy Carr gets roasted over 'dodgy' tax arrangements ...."  and also see BBC 21st June - "Jimmy Carr and the morality of tax avoidance"

The Mirror's headline followed a remark by Prime Minister David Cameron that comedian Jimmy Carr was "morally wrong" with regard to certain of his tax arrangements.  Subsequently, Mr Carr issued an apology for using the tax avoidance scheme in question.  Hardly surprisingly, the Daily Mirror commented about others whose tax arrangements might also be considered by some to be "morally wrong."

Few people ‘enjoy’ paying tax even though many recognise the necessity to pay some tax as the price of achieving and maintaining a civilised society. There is also a feeling of general unfairness when

Extradition ~ Right to family life

It is "Extradition week."  Along with the attempts by Julian Assange to escape extradition from the UK to Sweden, the Supreme Court has handed down judgments in cases where individuals claimed that they should not be extradited from the UK because of their family circumstances.  Should the fact that an individual has children be, in effect, a trump card preventing extradition?  Clearly not and the right to family life (in Article 8 of the European Convention on Human Rights) does not prevent extradition though, depending on the precise facts of the case, it may.

In BH and another v Lord Advocate [2012] UKSC 24, the Supreme Court heard a case brought from Scotland by virtue of the Scotland Act 1998 which enables the Supreme Court to rule on the question whether a decision of Scotland's High Court of Justiciary is compatible with the European Convention on Human Rights.  Mr and Mrs H are British citizens wanted by the USA

New UK Judge appointed to the Court of Justice of the EU

Christopher Vajda QC (currently of Monckton Chambers) has been appointed as the UK Judge to the Court of Justice of the European Union.  He will succeed Sir Konrad Schiemann who has been the UK's judge there since 2004.

Read the announcement by the Foreign and Commonwealth Office

In the public mind there is often confusion between the Court of Justice of the European Union  (based at Luxembourg) and the European Court of Human Rights (based at Strasbourg).

See also: Court of Justice of the European Union

Assange ~ Breach of Bail ~ Status of Embassies

It is reported (e.g. Guardian 20th June) that Mr Julian Assange has entered the Embassy of Ecuador .

Another article (BBC 20th June - Wikileaks founder Julian Assange faces arrest, police say ) comments: - "Our correspondent said that, as Mr Assange had broken the condition of his bail that he lived at a friend's house in Norfolk, a criminal offence had been committed."

General points about bail:

Persons granted bail are expected to abide by any conditions attached to that bail.  Common conditions include a requirement to live and sleep at a specified place; to report to the Police at a specified police station at specified times and so on.  Sometimes sureties come forward.  Also, sometimes, securities are taken.

A "surety" is a person who agrees that a sum

Justice and Security Bill ~ second reading in Lords

Secret Court - Keep Out

Updated 25th June

The Justice and Security Bill - which many consider to be more about security than justice - had its second reading in the House of Lords on 19th June.  The Bill survived this reading and is now committed to a Committee of the Whole House.  The debate can be read at Proceedings in Parliament 19th June 2012 - start at time 3.08pm and later at 6.27pm.

Liberty believes that the proposals are dangerous and unnecessary. They will not only overturn centuries of common law fair trial protections for those seeking to challenge the actions of the State, but also undermine the vital constitutional principle that no one is above the law, including the Government.

"LIBERTY" - Campaign "For their eyes only" and see their briefing paper on the bill. 

So, what do others have to say?

On 15th June, the Lords Constitution Committee issued a report critical of some aspects of the bill.  Interestingly, the Committee picked up on a point, also made in an earlier post on this blog, that Ministers would be granted Henry VIII powers to extend closed material procedure to inquests in Coroner's Courts.  A fuller analysis of the Constitution Committee's report may be read at UK Constitutional Law blog 25th June 2012.  The author (Jack Simson Caird) says that the Committee;s report demonstrates that key elements of the Bill ‘challenge’ two principles of the rule of law: open justice and natural justice and that the report’s analysis and conclusions on the constitutionality of the Bill are likely to have a major impact upon the scrutiny it receives in the committee and report stages in the Lords.

Next is the trenchant criticism from those lawyers

Crossing the Rubicon

Addendum 4:  The Marilyn Stowe blog - Tony Nicklinson: the right to die?


Addendum 3:  On 22nd August, the death of Mr Nicklinson was announced.  See the High Court's judgment of 16th August and comment in The Guardian.

Addendum 2:  See the post ~ "Locked-in" sufferer's challenge to ban voluntary euthenasia fails in the High Court" ~ Rosalind English on the UK Human Rights blog.  The article contains a link to the Administrative Court's judgment.


Addendum 1: See UK Human Rights blog - "British Columbia Supreme Court grasps the nettle in right to die cases"  the author, Rosalind English. comments -   "Whether or not it survives appeal to the Canadian Supreme Court, this deeply considered and humane judgment is an excellent source of comparative, ethical, medical and social material on the question of end of life decisions."

------------

In 2005, Mr Tony Nicklinson suffered a severe stroke which left him paralysed below the neck and unable to speak. He was a very active and outgoing man with a busy and active family, working and social life. He communicates by blinking or limited head movement. Initially, this was only by reference to a board with letters on it but he now also has an Eye Blink Computer.

Earlier this year, in Tony Nicklinson v Ministry of Justice and the DPP [2012] EWHC 304 QB, Charles J heard a motion to strike out an application for certain declarations brought by Mr Tony Nicklinson.  Essentially, Mr Nicklinson is seeking declarations that it is lawful for a doctor to terminate his life, with his consent and with him making the decision with full mental capacity.

At the hearing - (in February 2012) - before Charles J, the claimant's position was that three declarations would be sought:-

Court of Protection ~ Anorexic patient ~ Capacity to refuse treatment

Updated 19th June and 20th June

"We only live once – we are born once and we die once – and the difference between life and death is the biggest difference we know" - Peter Jackson J  


In the Court of Protection, Peter Jackson J has given judgment in A Local Authority v E [2012] EWHC 1639 (COP).  See The Guardian 15th June 2012 - "Anorexic woman should be fed against her wishes, judge rules" - and listen to Dr Tony Calland of the British Medical Association Ethics Committee.

Paul Bowen QC and Stephen Broach (of Doughty Street Chambers) appeared for the Local Authority; Christopher Johnston QC and Susanna Rickard (of 3 Serjeants Inn) were instructed by the Official Solicitor and represented the patient who is referred to as E.  The Health Authority was represented by Mark Mullins (Outer Temple Chambers).  E's parents represented themselves and, according to the judge, they "contributed significantly to the hearing without giving formal evidence, by giving their views and by asking well-chosen questions of the doctors." 

Doughty Street Chambers have a report on the case and a link to Peter Jackson J's judgment - here.  This is a very well-written judgment which merits a complete reading.  The judgment is an application to the particular case of existing law but a number of important points are made by the judge.  The judgment is also available via Bailii - Re E (Medical treatment: Anorexia).

The judge had to decide

Draft Communications Data Bill introduced

The Draft Communications Data Bill - already branded as a "snooper's charter" and likely to cost at least £1.8 billion over 10 years - has been put before Parliament.  A joint committee is to scrutinise the draft bill.  In addition, the Intelligence and Security Committee will report on the draft bill.

See the draft bill together with explanatory notes.   At a time of supposed financial stringency, the question of this massive cost suddenly does not seem to matter to government.  Furthermore, in a democratic society, the necessity for this degree of State intrusion into the communications of every person in the land will be seriously questioned in the weeks and months to come.

Citing the recent sexual grooming case in Rochdale, the Home Secretary Theresa May

Assange - Supreme Court rejects application to re-open

By way of a short statement, the Supreme Court has dismissed the application made by Julian Assange that his case be re-opened on the basis that a majority of their Lordships had decided the case on a basis which had not been argued before the court.

The grounds of the application were that the majority of the Court decided the appeal on a ground that Ms Rose QC, Mr Assange’s counsel, had not been given a fair opportunity to address. That ground was that article 31(3)(b) of the Vienna Convention on the Law of Treaties and the principle of public international law expressed in that article rendered admissible State practice as an aid to the interpretation of the Framework Decision.  When interpreting a treaty, Article 31(3)(b) permits consideration of "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; ..."

See the Supreme Court's announcement of 14th June 2012 and the earlier post on this blog of 30th May.

The seven Justices who

Children ~ Care Cases ~ Independent Experts

A Family Proceedings Court (FPC) made an order giving permission to the parties to jointly instruct an independent social worker (ISW) who would undertake a parenting assessment of parents. In A Local Authority v DS [2012] EWHC 1442 (Fam) the President of the Family Division (Sir Nicholas Wall) has issued guidance on handling of applications to the Legal Services Commission for the funding of ISWs.

ISWs do not come cheaply.  A solicitor in the case obtained quotes for the work.  One ISW wanted £4800 and another wanted £5229 plus VAT.  It is the Legal Services Commission (LSC) which would normally have to fund this.  If the court indicates the need for such a report, application is then made to the LSC for funding.  As part of the Family Justice Review, the courts are moving to a situation in which an expert report is only requested if it is necessary to resolve the case.  Any party wishing to instruct an expert is expected to explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children's Guardian.

Payments for such experts are governed by

Theresa May's latest lecture: Immigration rules

Revised Post - 12th June

Update 13th June

The Independent 10th June - Home Secretary Theresa May has "warned" judges that their powers to block the deportation of foreign criminals on human rights grounds may be curbed - if necessary by "primary legislation."  At this stage, Mrs May is seeking the backing of Parliament for new guidelines spelling out how the courts should apply the European Convention on Human Rights in such cases.  In particular, May is concerned about how the courts have applied Article 8 (Right to private and family life).

On this see Andrew Marr Show 10th June and the blogposts at UK Human Rights "Article 8 and a half" and at Tashalaw. 

So, just what is going on here?

The right to private and family life (Art.8) is subject to any limitations which are "in accordance with the law and which are necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The government is actually putting foward amendments to Immigration Rules.   The background

Treason

Sir Thomas More

In the recent post on "Marital Coercion", it was commented that "the law of treason is ancient, obscure, complex and extremely rarely used."   In 1940, during the second reading of the Treachery Bill, the Home Secretary of the day (Sir John Anderson 1882-1958) described the Treason Acts as "antiquated, excessively cumbrous .... " (see Hansard 22nd May 1940).   This whole area of law is a disgrace to our criminal law and reform is long overdue.  In a 1977 working paper, the Law Commission recommended that all treason statutes should be repealed and replaced with an offence of helping an enemy with whom this country is at war and a peacetime offence of aiming to overthrow constitutional government by force.

The law of treason dates from the Treason Act 1351 (25 Edward III c.2)     (The Act appears to be declaratory: stating that which was already understood to be treason).  The Act was originally written in Norman-French though the link supplied here also shows a translation.  Treason is based on the loyalty ("allegiance") due from subjects to rulers.  Only those owing allegiance to the Crown my be liable.

Over the centuries, by judicial interpretation of the 1351 Act, the scope of treason was extended considerably.  In effect, new treasons came

Forced Marriage

The government has announced that it wishes "forced marriage" to become a criminal offence - see No.10 Announcement and Home Office.

A forced marriage is one in which one or both spouses do not (or, in the case of some vulnerable adults, cannot) consent to the marriage but are coerced into it. It is not an arranged marriage. In an arranged marriage both parties have consented to the union but can still refuse to marry if they choose to.

The decision to create a specific offence of forced marriage follows a 12 week consultation which took views from the public, victims, charities and frontline agencies.  The Home Office consultation on forced marriage  (here) received 297 responses including 175 from the public - (here).  However, a response from

Odd Corners of the Criminal Law - Marital Coercion

Update 21st April 2014: The defence discussed in this post is to be abolished from 13th May 2014 though the abolition is not retrospective - Antisocial Behaviour, Crime and Policing Act 2014 section 177.

A defence to any criminal charge (other than treason or murder) - available only to women - is that of Marital Coercion.  The defence appears in the Criminal Justice Act 1925 section 47:

Abolition of presumption of coercion of married woman by husband.

Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

Hence, unlike the old common law. coercion of the wife is not to be presumed, but it may nevertheless be proved.

To establish the defence, the man and woman

Law has become a tool for the rich

The Law pages in The Times 31st May stated - "Law has become a tool for rich."   The article by Jonathan Ames stated the views of Lord Phillips of Sudbury who has been a qualified solicitor for 48 years.

Regulatory change is blasting through the legal profession and Alternative Business Structures (ABS) are being created as a result of the Legal Services Act 2007.  ABS allows private equity and other investors into law firms.  Their only interest will be making money.  "The profession has sold its soul," said Lord Phillips.  "You can be absolutely certain that if leading corporations get involved in ABS they will not do the work that is complex, difficult and under-rewarded; they will cherry pick."

The diminishing number of high street solicitors firms trying to service the whole population - and in particular the less well-off - will be knocked out of the market.  Then, the ABS outfits