Why should the Police be accountable --- even to the law?

Why should the Police be accountable, even to the law?  Here is a suggestion  from the Commissioner of the Metropolitan Police that the rules should change so that is made much harder to take legal action against the Police.  Given the undoubted influence that Senior Police Officers and ACPO have over government, are we now entering a time in which government will use their power to amend the law so that State Authorities are able to act against the ordinary citizen without without any fear of the consequences?  I hope not.  READ - The Guardian 10th October 2010.  Maybe, certain senior Police Officers are getting too big for their boots?  One may wonder just - (a) what the Home Secretary's immediate response will be and (b) what will happen "longer term".  Will government quietly accede to the Commissioner's request?

Addendum 11th October:  "Sir Paul Stephenson must not tolerate police abuse of power" - The Guardian, Fiona Murphy.  "The Cost of Poor Policing" - Jules Carey, Guardian 11th October.

Addendum 15th October:  Read the Solicitor's Journal regarding the story of barrister Colin Challenger who was arrested and handcuffed at the High Court.

Legal news items and some light relief ...

A number of other newsworthy legal stories were in the media this week.  There was a verdict in the Mark Saunders Inquest – see The Independent 8^th October 2010.    There was NOT a finding of unlawful killing by the Police.  However, both the jury and the Coroner were critical of aspects of the Police’s conduct – see Telegraph 8^th October.    

The Foreign Secretary addressed the Conservative Party Conference and promised the faithful a “sovereignty clause” in a Bill to be presented in the autumn.  He said that EU Directives would take effect in the UK only by the will of Parliament which could be withdrawn.  The idea has already been criticised as Monkeying with Sovereignty (article by barrister Carl Gardner) and as “Hague’s great ‘nonsense’ on Sovereignty” (Charon QC blog).  With respect to those learned writers, I tend to agree.  The principle (in EU law) of the Supremacy of EU Law is well-established by decisions of the Court of Justice of the EU (formerly called - the ECJ).  In fact it was established before the U.K. acceded to the "communities" in 1973.  The matter came to a head in the massively costly Factortame Cases when, by the Merchant Shipping Act 1988, the U.K. tried to exclude Spanish Fishermen from certain waters.  [As far as I could tell, neither side seemed to see the utter folly of over-fishing the sea! ].   Despite the EU doctrine, it remains the case that Sovereignty for the United Kingdom continues to rest with the "Queen in Parliament" and, in English legal theory, they can make or unmake any law they wish.   They could take us out of the EU and it is a legal fact that EU law making only has effect in the U.K. because the Q in P willed it to be so - European Communities Act 1972. We will await Hague's attempt to "square this circle" with interest.  (For more on the Supremacy of EU law see Lawobserver).

 The other address to the Conservative Conference was by Kenneth Clarke who, according to Joshua Rozenberg writing in The Guardian, revealed what cuts mean for the courts – “It’s not just using lawyers that Ministers want to discourage, it’s using the courts themselves”.  An emerging and recurrent theme on this blog is that “access to justice” is severely threatened.

For an enjoyable read and some “light relief” see “London Counsel” on The Baby Barista Blog.

Bonfire of the Quangos

Those public bodies known as “Quangos” – the acronym for “Quasi-autonomous non-governmental organisations” – are no longer flavour of the month within government circles even though many of them have important legal and/or regulatory roles.   There is to be a “Bonfire of the Quangos”.  The death warrants to begin this “auto da fé ” will be issued shortly.  However, when the dismantling costs are factored in, the amount of money to be saved in the early years is not as big as many would like or perhaps imagine - The Guardian 7^th October 2010 – “Government’s ‘bonfire of the quangos’ plan will cost as much as it saves”.   The "dismantling costs" relate to liabilities for pensions, redundancies and rental contracts.

The Guardian has also set down a list of those quangos which are either to be axed or reviewed – here. 

The government is pressing ahead with a Superannuation Bill which will place a cap on payments under the Civil Service Compensation Scheme - see Cabinet Office;  the Bill and Explanatory Notes.

Under review:

Many might be surprised that some of the bodies in the list even exist – e.g. why we  have an “Advisory Committee on Conscientious Objection” even if, for some individuals serving in the military, it may prove to be necessary – see here?   Other bodies listed for review include some which surely perform necessary functions: the Child Maintenance and Enforcement Commission; the Criminal Injuries Compensation Authority; the Law Commission and the Equality and Human Rights Commission.

To be abolished:

The abolition list includes the Audit Commission; the Human Fertilisation and Embryology Authority; Human Tissue Authority; Security Industry Authority; the Legal Services Commission; the Standards Board for England and Wales.  Many (arguably most) of these perform important functions which will still have to be performed somewhere.  Obviously, if the task remains then so do some of the costs.  

Mergers:

Bodies earmarked for merger include Advisory Committees on Justices of the Peace; the Crown Prosecution Service; various tribunals; the Gambling Commission; the National Lottery Commission; OFCOM etc.   Details of the mergers are yet to be announced but there are significant costs involved in mergers.

Is there a case for a more measured approach to reducing this large array of public bodies?   Is there a danger that the surgery will cause further difficult problems which will then have to be rectified at great costs?  There are certainly considerable risks in a too hasty wielding of the scalpel.  Just one final thought:  the reason for creating a quango has often been a Minister's desire to distance himself from the day-to-day issues for which he might be held accountable if the task remained in his department.  Remember the Michael Howard and Derek Lewis row?

See "Read before burning ...." - Institute for Government   Looks at how the accountability and effectiveness of quangos might be improved.  For a view that "Big Government" is here to stay despite the Spending Review - see here.

The Parliamentary Voting System and Constituencies Bill

The Political Party conferences are over and the House of Commons will begin sitting on Monday 11^th October.  On Tuesday 12^th, the Parliamentary Voting System and Constituencies Bill will be debated by a “Committee of the Whole House”.  Constitutionally, the Bill presents the possibility of yet another major change.

First, there will be a referendum – to be held on 5^th May 2011 – to see whether the electorate votes in favour of abolishing the present “first past the post” system of election and replacing it with the form of “Alternative Vote” included in the Bill.

Alternative Vote (AV) will permit each voter to indicate an order of preference for each of the candidates – 1, 2, 3 ... etc.  The voter may indicate just one preference.  However, a voter who does this may well limit his or her influence over the eventual outcome since the vote would not count if the chosen candidate failed to secure over 50% of the vote at the first count.

The size of the House of Commons will become limited to 600 members each one representing a new constituency.  [An exception to “new” constituencies is that, in Scotland, the Western Isles and Orkney-Shetland will remain as they currently are].   The task of drawing up the revised constituency boundaries will be undertaken by the four Boundary Commissions and they will have until the end of September 2013 to do so.

An interesting angle, somewhat hidden in the detail, relates to prisoners.  Those prisoners who are not eligible to vote in an election will not be able to vote in the referendum.  The government claims that this will not breach Protocol 1 to the European Convention on Human Rights since, they argue, the referendum is not an election concerning the choice of the legislature.  Article 3 of Protocol 1 states: “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.”

The key features of the alternative vote system set out in the Bill are that:

Voters rank candidates on the ballot paper in order of preference, using 1, 2, 3 etc.

Voters may express a preference for as many or as few candidates as they wish. This means that a voter may vote for one candidate only if they wish. This is known as an ‘optional preferential’ system.

If after the counting of voters’ first preferences, any candidate has more than 50% of the votes at this stage then he or she is declared the winner. 

If no candidate has more than 50% of the votes counted, then there would be a further round of counting. The candidate in last place is eliminated, and each vote originally allocated to the eliminated candidate is reallocated to a remaining candidate according to the next preference expressed on each ballot paper. 

Where there is no next preference given, the ballot paper cannot be reallocated and is no longer counted. If a candidate has more than 50% of the votes left in the count once this reallocation has taken place he or she is elected. If not, then a further round of counting will take place and the candidate now in last place is eliminated and their votes reallocated. This process continues until one candidate has more than 50% of the votes left in the count, and is elected. 

Other information:

The changes in the Bill were first set out in Coalition: Our Programme for Government

Explanatory Notes to the Bill are also available. 

The Electoral Reform Society website contains excellent information about AV 

AV – the case for reform – Guardian 7^th September 2010

Tribune Magazine – 20^th September 2010 arguing that Labour should oppose this Bill

“AV opens the door to a new political world in which coalitions become the norm, and single-party majority government a distant memory. Defeat for AV could quickly end the coalition. But success would bind it together – for a long time to come.” - Vernon Bogdanor

Equality Law

On 1st October 2010 much of the Equality Act 2010 came into force.  It is a large Act - 218 sections and 28 schedules.  In addition, there are several statutory instruments fleshing out various aspects of the law.  Much of the "equality / anti-discrimination" legislation passed over the last 40 years is replaced.  The Government Equalities Office website is a valuable resource of information.  Further information is available here.

A number of important aspects of the Equality Act 2010 have not yet been implemented and remain under consideration.  These include positive discrimination in recruitment and promotion as well as age discrimination in services and public functions.

The Equality and Human Rights Commission has also published Guidance and there is a Video Presentation.

Another important area is how the Act will affect charities.  Subject to a number of caveats, the Act gives charities an exemption so that they can restrict benefits to people who have a shared "protected characteristic" - (e.g. to provide benefits to old people).  The Charity Commission has issued some guidance in this area.

Dealing with persons appearing before courts and tribunals is a further aspect.  The Judicial Studies Board has issued - "Fairness in courts and tribunals: A summary of the Equal Treatment Bench Book".  This is essential reading for anyone involved in any capacity with courts and tribunals.

The Ian Tomlinson case - further controversy

In July, it was announced that no criminal charges were to be brought against the Police Officer (P.C. Harwood) who pushed Mr Ian Tomlinson - see here.  There has still to be an inquest into Mr Tomlinson's death and this is not likely to happen before May 2011.  There is also to be a Disciplinary Hearing against the officer - see post of 27th July.  It now appears that the Metropolitan Police are keen to get the Disciplinary hearing over with before the end of the year - report in The Guardian Monday 4th October 2010.  The Guardian comments as follows:

"One factor for the Met's decision to hold the hearing before the inquest is that it could be less damaging for its reputation if Harwood appears at the inquest as a former officer."

The actual source for that viewpoint is not stated but the sentence is very unsatisfactory since it might be read as suggesting that the outcome of the Disciplinary Hearing is already determined.

Given the problems involved with the various post-mortem examinations it would seem preferable that the disciplinary hearing is not held until after the inquest.  There is a clear conflict between the views of
Dr. Patel - who was (controversially) appointed to conduct the first post-mortem - and the other experts as to the cause of death.  It should also be noted that the CPS in making the decision not to prosecute ended their statement by saying - "At the conclusion of the inquest the matter will be reconsidered by the CPS in the light of any evidence which may be presented".  That is surely another factor pointing against holding the disciplinary hearing before the inquest since the holding of the disciplinary hearing might well go against any such reconsideration of the prosecution decision.  Ultimately, whilst the Metropolitan Police might well wish to move on from this matter, the public interest in getting the process right is overwhelming.

The Ministry of Justice: Turkey; Secure Training Centres

The U.K. Government supports Turkey's desire to become a member of the European Union - see, for example, David Cameron's speech 27th July 2010.  The Ministry of Justice, even in these times of cuts and national austerity, has been able to send Lord McNally (Minister of State) to Turkey to look at a probation project for young offenders.  The project involves Turkish officials working with "MoJ experts" to develop training programmes and manuals for staff working with young offenders - see Ministry of Justice 1st October 2010.  Given that legal aid here is being slashed to the bone, it would be good to know whether Turkey is bearing the cost of this and, if so, by what amount.

Restraint in Secure Training Centres:

 In England there are 4 Secure Training Centres (STC). There has been an on-going issue relating to the use of various methods of restraint on the young persons held in such centres.  Two manuals have now been issued by the Ministry of Justice to deal with "Physical Control in Care" and "Personal Protection" for personnel - see Ministry of Justice.

The deaths of Gareth Myatt and Adam Rickwood raised the public profile of this issue.   A Parliamentary Joint Committee on Human Rights examined the subject in the 2007-8 session and issued a detailed report.  In R(C) v Secretary of State for Justice [2008] EWCA Civ 882, the Court of Appeal quashed rules aimed at amending the Secure Training Centre Rules 1998.  In December 2008, the Ministry of Justice published a review report into restraint across Young Offenders Institutions, Secure Training Centres and Secure Children's Homes - see here.  In August 2010, it was reported that the Youth Justice Board was to offer "conflict resolution" training in an attempt to stem the use of restraint - see Children and Young Persons Now 10th August 2010.

In January to March 2009, restraint was used in England's 4 STCs on 478 occasions.   In April to June 2009 it was used 535 times - Children and Young People Now - 25th May 2010. 

Secure Training Centres date from the Criminal Justice and Public Order Act 1994 which provided for Secure Training Orders and enabled the management of the centres to be "contracted out".  Secure Training Orders were later renamed Detention and Training Orders.

It is a moot point whether the Ministry of Justice is still on top of the problems relating to STCs and, in particular, the use of restraint.  Perhaps the UK government might be better applying itself to putting our own house in order rather than spending time in Turkey?