Published on Halsbury's Law Exchange here.
At the time of writing, British aircraft and ships of the Royal Air Force and Royal Navy are engaged in enforcing a “no fly zone” over Libya pursuant to UN Resolution 1973. The resolution authorises “all necessary measures” to prevent a humanitarian disaster. By a lay definition, flying military jets into a sovereign territory and attacking its forces might also be called "war".
Either way, the governments of all the forces engaged in Libya have been at pains to stress that they are acting, and only will act, in accordance with Resolution 1973, and hence are abiding by international law.
There is no doubt that all participants will be eager to avoid repeating mistakes made in the US-led invasion of Iraq, and the legality of the actions in the eyes of the United Nations is one example. In the case of the United Kingdom, the decision to invade Iraq has been reviewed by the Chilcot Inquiry, whose final report is still awaited. Although the inquiry is not an international law tribunal, its findings on the Attorney-General’s advice will be considered authoritative. At this point it is fair to say that the UK Government’s position that the war was legal remains controversial.
If, however, one casts one's mind back to an earlier conflict of the most recent Labour Administration, one finds something rather striking with the Kosovo War of 1999. The United Nations charter authorises military action only in accordance with a Security Council resolution or in self-defence. No resolution was ever obtained with regard to the Kosovan conflict and NATO could not claim to have been acting in self defence.
The legality of the war was never subsequently ruled upon by an international tribunal such as the International Court of Justice. But it was studied in detail by the House of Commons Select Committee on Foreign Affairs, which can be considered to express the received view of the United Kingdom government on the point. The committee concluded that the war was of “dubious legality” under international law, although it went on to maintain that it was justified on moral grounds, in order to prevent a humanitarian disaster.
Such a claim can only be made because the aftermath of the war has been judged a success by the court of public opinion. If the result had been bloodshed on the scale of Iraq, then any good intentions or counter-scenario would have quickly been dismissed. Conversely, had Iraq somehow ended quickly with a stable, respected local government in place, no inquiry would have been called seven years later; instead the politicians responsible would have been feted as visionary international statesmen, as I argued in the New Law Journal last year (07 May 2010, Vol 160, Issue 7416), and international law issues have long been brushed aside.
Precisely the same factors apply to Libya. The intervention was prompted by fears of a bloodbath if Gaddafi’s forces had moved into rebel-held Benghazi. The authorising resolution is very broad in its terms – “all necessary measures” short of an occupying force. At least arguably, this does not even rule out the use of ground troops, provided that they withdraw in short order, or indeed if they are invited in by a putative sovereign authority (that is, rebel-held areas that purport to secede from Gaddafi’s regime). The question remains however as to whether the resolution permits – or even obliges – the international forces to intervene if rebel Libyan forces, emboldened to strike against Gaddafi’s depleted forces, start to inflict significant collateral damage in the form of civilian casualties.
From the perspective of international law, therefore, the intervention can be said to be legitimate as prosecuted to date. If the civil war is concluded swiftly and with few civilian casualties, the UN action will be acclaimed. If, however, it all goes wrong then the UN approval will be a flimsy defence for the reputation of the politicians responsible for involving British forces. It may be that civilian casualties will reach unacceptable levels, forcing an end to the campaign. Or a stalemate may ensue, but one or both sides will then inflict human rights abuses against anyone thought to have sided with their opponents. Or something no-one has yet thought of may occur. The only law that is prevalent in every war is the law of unforeseen consequences.
Arguably the greatest Western postwar general has been David Petraeus. Famously he turned to an embedded reporter at the start of the invasion of Iraq in 2003 (at the time Petraeus commanded the 101st Airborne Division) and precisely formulated the question which needs to be asked above all others by any politician or General contemplating military action: “Tell me how this ends.” This morning, according to both the Daily Telegraph and the Washington Post, the answer is not clear.
Wednesday, 23 March 2011
Tuesday, 22 March 2011
Lord Neuberger MR on Open Justice
Published on Halsbury's Law Exchange here.
On 16 March, Lord Neuberger MR delivered the Judicial Studies Board Annual Lecture 2011, entitled “Open Justice Unbound?” The speech contained his usual mixture of high erudition and a strong sense of practical justice, and deserves wide dissemination.
This post will be confined to the first part of the speech, which dealt with the form of judgments. This is something on which I have been published recently with a former colleague, Alexander Horne, in the New Law Journal (16 December 2010, Vol 160, p1735). I am relieved to be able to report that the article's conclusions were substantially consistent with Lord Neuberger's speech, and therefore rather than engage in repetition I will simply offer some observations on his Lordship’s points.
There can be no arguing with the overarching goal of clarity, as a sort of CPR 1.1 for judgment writing. Lord Neuberger overstates the case, however, when he says that it is necessary for judgments to be clear not just to lawyers but non-lawyers as well. The fact is that law is a learned profession, just as with, for example, medicine. The only way that a paper on, say, new heart transplant techniques could be rendered intelligible would be if the reader had studied the subject — and was hence no longer a member of “the public” — or if the paper were simplified to the point where it was more or less completely unhelpful to a surgeon. The same goes for a large majority of judgments. For cases of public interest other courts could adopt the Supreme Court’s practice of issuing a separate press release.
I share Lord Neuberger’s concerns about the length of judgments, something which has increased almost inexorably over the past two decades. He is certainly correct about one of the reasons, namely that “in recent years, there has been ... a sustained and justified outcry at the inexorable volume, the tedious length, and the inept drafting of many of the Acts of Parliament that have found their way onto the statute book”. Few areas of law have been immune but the tax system must be a contender for the worst example.
That said, the case for shorter judgments can be overstated. It was once said that first instance judgments should ideally be “brief courteous and wrong”, which wasn’t to say that appellate judgments should be “long-winded, rude and right”, though there are many examples of both. Much depends on whether a case raises a point of general importance: if so, some general guidance will be appropriate and expected, as Lord Neuberger states at para 15.
Another problematic aspect is the desire of the court to do justice in the individual case, but at the same time in accordance with the law. Sometimes the twain simply will never meet, however much intellectual agility the judge deploys. Lord Neuberger’s warning here is sound: endless exceptions to general principles in order to engineer what a judge regards as a fair outcome leads to complexity and confusion, which in turn generates future injustice of its own. As he says, if hard cases make bad law, it is equally true that bad law makes hard cases. But the subject of legal reasoning is one filling many textbooks and no further elaboration will be attempted here.
Lord Neuberger’s conclusion is that some form of training in judgment writing would be appropriate. It is a suggestion that would have offended some of his predecessors (and perhaps a few of his contemporaries), but, as he points out, barristers all go through extensive advocacy training, and advocacy is just as case-specific and individualistic as judgment writing.
I do not think that there is any need to follow the practice of the European Court of Justice or the European Court of Human Rights in having a uniform structure for judgments, but at the same time Lord Neuberger is surely correct that it would be a useful exercise for the Judicial Studies Board to define some fundamental principles of good judgments.
One is the need clearly to separate holdings that are fact-specific, those which the judge considers of general application and those which are obiter. Another is condensing facts to an appropriate degree (see Jones v Jones [2011] All ER (D) 231 (Jan) for an unfortunate example of a first instance judge going wrong in this respect). Often this will depend on the judge’s experience – or that of counsel – in the applicable area of law, but not always. A third factor is the aforementioned issue of multiple appellate judgments (on which see the NLJ article, supra).
Any aspiring judge looking for guidance on how to write a judgment could learn from studying examples of Lord Brown’s incisiveness, the clarity of Lord Hoffmann, or, going back a generation, the ability of Lords Reid, Diplock or Wilberforce to issue clear and practical general guidance.
On 16 March, Lord Neuberger MR delivered the Judicial Studies Board Annual Lecture 2011, entitled “Open Justice Unbound?” The speech contained his usual mixture of high erudition and a strong sense of practical justice, and deserves wide dissemination.
This post will be confined to the first part of the speech, which dealt with the form of judgments. This is something on which I have been published recently with a former colleague, Alexander Horne, in the New Law Journal (16 December 2010, Vol 160, p1735). I am relieved to be able to report that the article's conclusions were substantially consistent with Lord Neuberger's speech, and therefore rather than engage in repetition I will simply offer some observations on his Lordship’s points.
There can be no arguing with the overarching goal of clarity, as a sort of CPR 1.1 for judgment writing. Lord Neuberger overstates the case, however, when he says that it is necessary for judgments to be clear not just to lawyers but non-lawyers as well. The fact is that law is a learned profession, just as with, for example, medicine. The only way that a paper on, say, new heart transplant techniques could be rendered intelligible would be if the reader had studied the subject — and was hence no longer a member of “the public” — or if the paper were simplified to the point where it was more or less completely unhelpful to a surgeon. The same goes for a large majority of judgments. For cases of public interest other courts could adopt the Supreme Court’s practice of issuing a separate press release.
I share Lord Neuberger’s concerns about the length of judgments, something which has increased almost inexorably over the past two decades. He is certainly correct about one of the reasons, namely that “in recent years, there has been ... a sustained and justified outcry at the inexorable volume, the tedious length, and the inept drafting of many of the Acts of Parliament that have found their way onto the statute book”. Few areas of law have been immune but the tax system must be a contender for the worst example.
That said, the case for shorter judgments can be overstated. It was once said that first instance judgments should ideally be “brief courteous and wrong”, which wasn’t to say that appellate judgments should be “long-winded, rude and right”, though there are many examples of both. Much depends on whether a case raises a point of general importance: if so, some general guidance will be appropriate and expected, as Lord Neuberger states at para 15.
Another problematic aspect is the desire of the court to do justice in the individual case, but at the same time in accordance with the law. Sometimes the twain simply will never meet, however much intellectual agility the judge deploys. Lord Neuberger’s warning here is sound: endless exceptions to general principles in order to engineer what a judge regards as a fair outcome leads to complexity and confusion, which in turn generates future injustice of its own. As he says, if hard cases make bad law, it is equally true that bad law makes hard cases. But the subject of legal reasoning is one filling many textbooks and no further elaboration will be attempted here.
Lord Neuberger’s conclusion is that some form of training in judgment writing would be appropriate. It is a suggestion that would have offended some of his predecessors (and perhaps a few of his contemporaries), but, as he points out, barristers all go through extensive advocacy training, and advocacy is just as case-specific and individualistic as judgment writing.
I do not think that there is any need to follow the practice of the European Court of Justice or the European Court of Human Rights in having a uniform structure for judgments, but at the same time Lord Neuberger is surely correct that it would be a useful exercise for the Judicial Studies Board to define some fundamental principles of good judgments.
One is the need clearly to separate holdings that are fact-specific, those which the judge considers of general application and those which are obiter. Another is condensing facts to an appropriate degree (see Jones v Jones [2011] All ER (D) 231 (Jan) for an unfortunate example of a first instance judge going wrong in this respect). Often this will depend on the judge’s experience – or that of counsel – in the applicable area of law, but not always. A third factor is the aforementioned issue of multiple appellate judgments (on which see the NLJ article, supra).
Any aspiring judge looking for guidance on how to write a judgment could learn from studying examples of Lord Brown’s incisiveness, the clarity of Lord Hoffmann, or, going back a generation, the ability of Lords Reid, Diplock or Wilberforce to issue clear and practical general guidance.
Tuesday, 15 March 2011
Civil partnerships and the law
Published on Halsbury's Law Exchange here.
The question of religion and the law marches on. Yet another example concerns impending changes to the Civil Partnership Act 2004. These are intended to enable the registration of civil partnerships to take place on religious premises. More detail of the incoming law and its implications can be found on this post on the UK Human Rights Blog.
There are at least three competing rights: first, the property rights of the owner of any premises on which ceremonies are conducted; second, the right of sexual equality for prospective couples; and third, the right of religious freedom for all. The proprietor may wish to allow or exclude different forms of ceremonies according to his or her beliefs; couples of any description will not expect to be turned away on the ground of their religious beliefs or their sexuality or gender; and religious bodies will wish to sanction their own ceremonies in accordance with their own beliefs and not otherwise.
First one may consider the proprietor. By choosing to offer services to the public he or she must do so within the framework of the law of the land, including equality laws. That was the point which precluded the Christian B&B owners in other well-known proceedings from arguing that they should be permitted to exclude guests on the ground that the B&B was also their home. Equally, if the state licenses an activity such as the provision of marriage ceremony services then it will do so under the applicable equality laws.
Accordingly, the second right would ‘trump’ the first in so far as the proprietor could be said to be dealing with the public. If on the other hand he was holding a private function he could invite whomsoever he pleased and the second right would not be engaged.
Assume, though, that the provision of marriage services is a service to the public, as with opening a restaurant or running a hotel. Then, one meets the objection that a religious organisation wishing to hold only its own ceremonies should be entitled to do just that, and all the more so when it is being held on its own premises too. If the state is to wield the full force of the equality laws, and decide that no discrimination in the provision of marriage services is permissible, then freedom of religion is in for a thin time.
Under the 2004 Act, however, no religious organisation is to be forced to do anything in this regard. Nor is there any prospect of Strasbourg compelling a change: the European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria ((Schalk and Kopf v Austria (App. No. 30141/04)). All that is in the offing is that religious institutions will no longer be prevented from holding civil partnerships, which on any view is an expansion of everyone’s freedom. What is not on the cards is the ability of any prospective couple to compel an institution to register their partnership, by arguing that a refusal constitutes unlawful discrimination.
Nevertheless, one cannot rule out the prospect of future change. Perhaps a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved, since the ceremony would be akin to a private party or religious observance - no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets.
There remains a residual point concerning the word “marriage”, which in law is still confined to male and female unions. I leave it to readers to decide if the principles I have set out above require a change. I would however note three things. First, if there is no actual difference in the legal status of marriage and civil partnerships, being unable to use the term in official documents is of no actual consequence. Secondly, it may be that over time opposition to merging the terms will fade in any event, as have so many formerly hotly contested equality issues. Thirdly, any change ought to come from a free vote in the House of Commons, not through the courts.
The question of religion and the law marches on. Yet another example concerns impending changes to the Civil Partnership Act 2004. These are intended to enable the registration of civil partnerships to take place on religious premises. More detail of the incoming law and its implications can be found on this post on the UK Human Rights Blog.
There are at least three competing rights: first, the property rights of the owner of any premises on which ceremonies are conducted; second, the right of sexual equality for prospective couples; and third, the right of religious freedom for all. The proprietor may wish to allow or exclude different forms of ceremonies according to his or her beliefs; couples of any description will not expect to be turned away on the ground of their religious beliefs or their sexuality or gender; and religious bodies will wish to sanction their own ceremonies in accordance with their own beliefs and not otherwise.
First one may consider the proprietor. By choosing to offer services to the public he or she must do so within the framework of the law of the land, including equality laws. That was the point which precluded the Christian B&B owners in other well-known proceedings from arguing that they should be permitted to exclude guests on the ground that the B&B was also their home. Equally, if the state licenses an activity such as the provision of marriage ceremony services then it will do so under the applicable equality laws.
Accordingly, the second right would ‘trump’ the first in so far as the proprietor could be said to be dealing with the public. If on the other hand he was holding a private function he could invite whomsoever he pleased and the second right would not be engaged.
Assume, though, that the provision of marriage services is a service to the public, as with opening a restaurant or running a hotel. Then, one meets the objection that a religious organisation wishing to hold only its own ceremonies should be entitled to do just that, and all the more so when it is being held on its own premises too. If the state is to wield the full force of the equality laws, and decide that no discrimination in the provision of marriage services is permissible, then freedom of religion is in for a thin time.
Under the 2004 Act, however, no religious organisation is to be forced to do anything in this regard. Nor is there any prospect of Strasbourg compelling a change: the European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria ((Schalk and Kopf v Austria (App. No. 30141/04)). All that is in the offing is that religious institutions will no longer be prevented from holding civil partnerships, which on any view is an expansion of everyone’s freedom. What is not on the cards is the ability of any prospective couple to compel an institution to register their partnership, by arguing that a refusal constitutes unlawful discrimination.
Nevertheless, one cannot rule out the prospect of future change. Perhaps a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved, since the ceremony would be akin to a private party or religious observance - no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets.
There remains a residual point concerning the word “marriage”, which in law is still confined to male and female unions. I leave it to readers to decide if the principles I have set out above require a change. I would however note three things. First, if there is no actual difference in the legal status of marriage and civil partnerships, being unable to use the term in official documents is of no actual consequence. Secondly, it may be that over time opposition to merging the terms will fade in any event, as have so many formerly hotly contested equality issues. Thirdly, any change ought to come from a free vote in the House of Commons, not through the courts.
Monday, 14 March 2011
Religion and equality
Published on Halsbury's Law Exchange here.
Lord Denning once wrote “Without religion there is no morality, and without morality there is no law.” It is safe to say that today’s judiciary would not likely agree.
On 10 March Paul Diamond, the barrister who has appeared in a number of recent cases on the issue, appeared with Lord Falkner QC on Radio 4. Mr Diamond argued that recent cases showed the courts trumping the right of religious freedom with the right of sexual equality. He said that religion was a “core” human right which should not be suppressed by “enforced morality”.
Immediately he was forced to concede that there were limits to freedom of religion, such as recognising polygamy (I interpolate that it is not clearly justifiable to ban polygamy where it involves consenting adults), or if some zealot tried to prevent a female child from being educated.
Mr Diamond argued nevertheless that there were far too many restrictions in Britain at present, and that Parliament needed to step in to correct wayward judges.
The answer to Mr Diamond’s concerns is that one is entitled to respect for one’s beliefs – but not respect for those beliefs themselves. Or, to put it another way, one can practice any religion, but not demand that the taxpayer fund that practice, or that employers grant exemptions from duties or requirements on religious grounds (unless the employer and employee freely agree), or that schools grant exemptions from uniform policies or class attendance. Most certainly one cannot expect on religious grounds a different application of the criminal law (see Criminal Law & Justice Weekly, 2011, Vol 175, p 124).
Thus Mr Diamond railed against the British Airways’ ban on a member of staff wearing a crucifix, without acknowledging that the airline had the right to set its own uniform requirements. If one disagreed with the rules, one shouldn’t accept employment there. The only time the state should interfere with the airline’s policy would be if the airline was requiring indecent clothing, or clothing with racially offensive slogans on them, or some other such extreme and improbable example. This would avoid arguments over which symbols are religious as opposed to cultural or anything else, and whether one religion was receiving favourable treatment. Having said that, it does seem unfair that the airline permitted other religious symbols but not the crucifix, and it can hardly be said that the crucifix was likely to have offended any passengers and thereby damaged the airline’s business.
The same goes for the protection of religious – or any other – belief system in the context of employment. Presently the law on that issue is needlessly complex. Instead the law should provide that employees can only be hired, fired, promoted or disciplined according to conduct relevant to their employment.
Ordinarily relevant conduct would not include religious beliefs or many other belief systems. For example, the religious or political or scientific beliefs of a tax accountant would usually bear no relation to her employment, so any adverse treatment resulting from those beliefs would be unfair and potentially actionable. On the other hand, if she were suddenly persuaded after reading a political tract that all taxation was theft, and therefore it was a moral duty not to pay any, dismissal on the ground of her beliefs might well be justifiable. It would also be reasonable for a religious organisation hiring someone to give sermons to inquire into their beliefs ... All too often the present law seems to comprise the usual English method of overly complex regulation with overly complex exemptions, rather than application of principle.
The liberal approach advocated above would be the answer to another case in the news this week, namely the claim of a hunt saboteur that his anti-hunting beliefs should be protected from discrimination in the same way as religion. If he had been employed as a Master of Foxhounds then his beliefs would be relevant to his employment, and his employer could hardly be expected to permit him not to carry out any lawful duties because of his beliefs. If they were not relevant then the employer would be acting unreasonably and unlawfully by taking his views into account in hiring or dismissing him. There is no need for law makers to get bogged down in trying to define “religion”, and what secular philosophies or values deserve equivalent status to religious beliefs.
Of course there inevitably remain grey areas, and the question of whether a local authority should consider the views of prospective foster parents is a good example, though in this respect Mr Diamond went too far in his claimed consequences of the recent case on point. All that was established in that decision was that the authority was entitled to take parents’ views into account, though save in the most extreme cases it should be of little or no relevance.
Lord Denning once wrote “Without religion there is no morality, and without morality there is no law.” It is safe to say that today’s judiciary would not likely agree.
On 10 March Paul Diamond, the barrister who has appeared in a number of recent cases on the issue, appeared with Lord Falkner QC on Radio 4. Mr Diamond argued that recent cases showed the courts trumping the right of religious freedom with the right of sexual equality. He said that religion was a “core” human right which should not be suppressed by “enforced morality”.
Immediately he was forced to concede that there were limits to freedom of religion, such as recognising polygamy (I interpolate that it is not clearly justifiable to ban polygamy where it involves consenting adults), or if some zealot tried to prevent a female child from being educated.
Mr Diamond argued nevertheless that there were far too many restrictions in Britain at present, and that Parliament needed to step in to correct wayward judges.
The answer to Mr Diamond’s concerns is that one is entitled to respect for one’s beliefs – but not respect for those beliefs themselves. Or, to put it another way, one can practice any religion, but not demand that the taxpayer fund that practice, or that employers grant exemptions from duties or requirements on religious grounds (unless the employer and employee freely agree), or that schools grant exemptions from uniform policies or class attendance. Most certainly one cannot expect on religious grounds a different application of the criminal law (see Criminal Law & Justice Weekly, 2011, Vol 175, p 124).
Thus Mr Diamond railed against the British Airways’ ban on a member of staff wearing a crucifix, without acknowledging that the airline had the right to set its own uniform requirements. If one disagreed with the rules, one shouldn’t accept employment there. The only time the state should interfere with the airline’s policy would be if the airline was requiring indecent clothing, or clothing with racially offensive slogans on them, or some other such extreme and improbable example. This would avoid arguments over which symbols are religious as opposed to cultural or anything else, and whether one religion was receiving favourable treatment. Having said that, it does seem unfair that the airline permitted other religious symbols but not the crucifix, and it can hardly be said that the crucifix was likely to have offended any passengers and thereby damaged the airline’s business.
The same goes for the protection of religious – or any other – belief system in the context of employment. Presently the law on that issue is needlessly complex. Instead the law should provide that employees can only be hired, fired, promoted or disciplined according to conduct relevant to their employment.
Ordinarily relevant conduct would not include religious beliefs or many other belief systems. For example, the religious or political or scientific beliefs of a tax accountant would usually bear no relation to her employment, so any adverse treatment resulting from those beliefs would be unfair and potentially actionable. On the other hand, if she were suddenly persuaded after reading a political tract that all taxation was theft, and therefore it was a moral duty not to pay any, dismissal on the ground of her beliefs might well be justifiable. It would also be reasonable for a religious organisation hiring someone to give sermons to inquire into their beliefs ... All too often the present law seems to comprise the usual English method of overly complex regulation with overly complex exemptions, rather than application of principle.
The liberal approach advocated above would be the answer to another case in the news this week, namely the claim of a hunt saboteur that his anti-hunting beliefs should be protected from discrimination in the same way as religion. If he had been employed as a Master of Foxhounds then his beliefs would be relevant to his employment, and his employer could hardly be expected to permit him not to carry out any lawful duties because of his beliefs. If they were not relevant then the employer would be acting unreasonably and unlawfully by taking his views into account in hiring or dismissing him. There is no need for law makers to get bogged down in trying to define “religion”, and what secular philosophies or values deserve equivalent status to religious beliefs.
Of course there inevitably remain grey areas, and the question of whether a local authority should consider the views of prospective foster parents is a good example, though in this respect Mr Diamond went too far in his claimed consequences of the recent case on point. All that was established in that decision was that the authority was entitled to take parents’ views into account, though save in the most extreme cases it should be of little or no relevance.
The Reduced Law Dictionary, by Roderick Ramage
Published in the New Law Journal, vol 161, 11 March 2011, p 366
Readers of this journal have long been entertained by the “snippets” column, consisting of anecdotes and observations, each one exactly 101 words long, which one finds scattered across the pages from time to time. The author of these pieces is Mr Roderick Ramage.
Someone obviously jabbed Mr Ramage in the ribs recently and told him that he ought to compile a few of them into a book, for that is what he has now done. Naturally he has selected 101 of them. The reason for the fixation with the number 101 is explained at the start of the book, which I will leave readers to learn for themselves. He has given the collection the rather fetching title The Reduced Law Dictionary.
For some but not all of the snippets Mr Ramage has details of the sources at the back of the book. Most of his cited cases come with references too. The snippets themselves are drawn from a very wide range of subject areas, and form an entirely random collection accordingly. Some are succinct points of law, some rather jejune, some amuse, while others give cause for regret. For example, no. 43 tells us that an attempt was made by Parliament back in the 1930s to do something about the grey squirrel invasion, an effort which we can now say with hindsight was, sadly, largely futile. We also learn in no. 38 about elephant farming in Scotland ...
Other scattered historical gems include the "brickbat" of Norman French (Mr Ramage prefers "dog French") of no. 49, and an explanation of "deed poll" in no. 48.
Then there are the outright controversial. Number 92 rails against “Tesco Law”, the opening up of legal services to a much wider range of potential suppliers, including the eponymous supermarket chain. Mr Ramage thinks any such supplier will pay lip service to traditional professional standards but insists that “in reality ... directors will continue to perform their company law duty to maximise profits.”
Well in reality they probably will, but another feature of reality is that even in traditional firms nowadays Mr Ramage will find fewer colleagues suffused with the tradition of service than in his youth, and rather more that are suffused with the modern tradition of making money. The steady trail of downfallen greedy solicitors through the Solicitors’ Disciplinary Tribunal each year confirms as much. But Mr Ramage is right to draw attention to how the Solicitors’ Code of Conduct will be reconciled with directors’ duties that do not apply to a traditional solicitors’ partnership.
Rather more inflammatory is no. 82, where Mr Ramage tells us that attacks on the Archbishop of Canterbury’s well-known speech about some adoption of Sharia law being “inevitable” was all a misunderstanding; that the Archbishop was only advocating some private law arrangements which might be recognised along with other arbitration agreements.
In fact that was the one thing the Archbishop and his apologists conspicuously failed to understand, particularly when making the inapposite comparison with the Beth Din. It is a fundamental feature of the common law principle of freedom of contract that parties may resolve disputes in a method of their choosing – and if they choose a foreign system of law, recognition of the outcome involves no “accommodation” of that system within English law, still less a “parallel system”. Indeed, in the case of Jewish law procedures, they are expressly stated to be subject to the law of the land. The Archbishop would have done well also to have acknowledged the possibility of private forms of dispute resolution falling foul of English public policy and being unenforceable accordingly.
None of this, however, is necessarily a bad thing in the context of the book, which isn’t purporting to be a political tract or a serious legal textbook but rather an amusing potpourri, or an olla podrida as Francis Bennion used to call his column in Criminal Law & Justice Weekly. In that respect firing off provocative remarks here and there adds to the interest – as evidenced by the fact that I have just found rather more than 202 words to say about the 202 words of no’s 82 and 92.
Mr Ramage says that he started compiling the snippets as a means of light relief from his day job (he is a solicitor). He can take extra satisfaction from the fact that through the original column and now this book he has often provided light relief for the rest of us as well.
Readers of this journal have long been entertained by the “snippets” column, consisting of anecdotes and observations, each one exactly 101 words long, which one finds scattered across the pages from time to time. The author of these pieces is Mr Roderick Ramage.
Someone obviously jabbed Mr Ramage in the ribs recently and told him that he ought to compile a few of them into a book, for that is what he has now done. Naturally he has selected 101 of them. The reason for the fixation with the number 101 is explained at the start of the book, which I will leave readers to learn for themselves. He has given the collection the rather fetching title The Reduced Law Dictionary.
For some but not all of the snippets Mr Ramage has details of the sources at the back of the book. Most of his cited cases come with references too. The snippets themselves are drawn from a very wide range of subject areas, and form an entirely random collection accordingly. Some are succinct points of law, some rather jejune, some amuse, while others give cause for regret. For example, no. 43 tells us that an attempt was made by Parliament back in the 1930s to do something about the grey squirrel invasion, an effort which we can now say with hindsight was, sadly, largely futile. We also learn in no. 38 about elephant farming in Scotland ...
Other scattered historical gems include the "brickbat" of Norman French (Mr Ramage prefers "dog French") of no. 49, and an explanation of "deed poll" in no. 48.
Then there are the outright controversial. Number 92 rails against “Tesco Law”, the opening up of legal services to a much wider range of potential suppliers, including the eponymous supermarket chain. Mr Ramage thinks any such supplier will pay lip service to traditional professional standards but insists that “in reality ... directors will continue to perform their company law duty to maximise profits.”
Well in reality they probably will, but another feature of reality is that even in traditional firms nowadays Mr Ramage will find fewer colleagues suffused with the tradition of service than in his youth, and rather more that are suffused with the modern tradition of making money. The steady trail of downfallen greedy solicitors through the Solicitors’ Disciplinary Tribunal each year confirms as much. But Mr Ramage is right to draw attention to how the Solicitors’ Code of Conduct will be reconciled with directors’ duties that do not apply to a traditional solicitors’ partnership.
Rather more inflammatory is no. 82, where Mr Ramage tells us that attacks on the Archbishop of Canterbury’s well-known speech about some adoption of Sharia law being “inevitable” was all a misunderstanding; that the Archbishop was only advocating some private law arrangements which might be recognised along with other arbitration agreements.
In fact that was the one thing the Archbishop and his apologists conspicuously failed to understand, particularly when making the inapposite comparison with the Beth Din. It is a fundamental feature of the common law principle of freedom of contract that parties may resolve disputes in a method of their choosing – and if they choose a foreign system of law, recognition of the outcome involves no “accommodation” of that system within English law, still less a “parallel system”. Indeed, in the case of Jewish law procedures, they are expressly stated to be subject to the law of the land. The Archbishop would have done well also to have acknowledged the possibility of private forms of dispute resolution falling foul of English public policy and being unenforceable accordingly.
None of this, however, is necessarily a bad thing in the context of the book, which isn’t purporting to be a political tract or a serious legal textbook but rather an amusing potpourri, or an olla podrida as Francis Bennion used to call his column in Criminal Law & Justice Weekly. In that respect firing off provocative remarks here and there adds to the interest – as evidenced by the fact that I have just found rather more than 202 words to say about the 202 words of no’s 82 and 92.
Mr Ramage says that he started compiling the snippets as a means of light relief from his day job (he is a solicitor). He can take extra satisfaction from the fact that through the original column and now this book he has often provided light relief for the rest of us as well.
Thursday, 3 March 2011
Foster care and religion: the legal debate
Published on Halsbury's Law Exchange here.
In a previous post I considered the case of a Christian couple whose views on homosexuality rendered them unsuitable in the eyes of their local authority to foster children. This week a different couple were also unsuccessful in seeking to challenge their local authority on the same issue (R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) [2011] All ER (D) 292 (Feb)), and predictably the same strident debate in the media has followed.
The judges held that there was a need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty did not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child's parents and the wider family, any of whom might be homosexual. In those circumstances, it was impossible to maintain that a local authority was not entitled to consider prospective foster carers’ views on sexuality, least of all when it was apparent that the views held and expressed might well affect their behaviour as foster carers. The authority was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them.
I am a firm advocate of both sexual equality and a complete separation of Church and state, and sympathise with the authority's view accordingly. But the situation is quite complex.
The first question - not considered anywhere in the judgment or much in the literature - is whether or not the same test should apply for placing children with foster parents as for removing children from their original parents.
If the test were to be the same, then it would have to be far less intrusive than the current foster parent investigation, unless we were prepared to have the Orwellian spectre of local authorities investigating all parents and interrogating them regularly as to every aspect of their social and political views.
Given, therefore, that it is an unavoidable fact that there are millions of religious parents and they are not being deemed ipso facto unsuitable, it might be asked why the authority should concern itself with the religious beliefs of prospective foster parents. On the other hand, placing any children, still less ethnic minority children, with devout adherents of the former Dutch Reform Church would be unreasonable to say the least, as would be the case if the parents were open admirers of Osama Bin Laden who expressed the desire to swell the ranks of martyrs. One could imagine many others.
It does not therefore seem right to allow carte blanche foster placement with no investigation of the views of prospective parents.
What, therefore, should that investigation entail? Rosalind English in the UK Human Rights Blog considers that religion by definition requires a narrow minded approach to matters such as sexual orientation, blasphemy, the status of women and so on, and therefore the chances of any admitted religious adherent passing the authority's muster must be slim. They will therefore have to lie about their beliefs or not bother.
That may now be the law, but despite agreeing with Ms English that a religion almost by definition must require adherence to its own tenets and some (at least implicit) denigration of non-believers or other deviants (though not necessarily for all religions - and indeed one further point is how to define a religion), I am not persuaded that this should indeed be the law.
I return to the previous post, in which I argued that given we still (fortunately) have freedom of religion and freedom of thought, a wide mesh for tolerable views should be applied. After all, a child has to be educated in the state run or state-approved school system and it is idle to assume that children will not encounter all manner of views, good, bad, arguable and indifferent in all aspects of their life. If that school system does its job properly the children will learn to question, debate and investigate views including those of their parents. Indeed, if the state is concerned about unacceptably narrow views it should question the very concept of religious schools, which in my view are simply not compatible with the goal of a diverse, tolerant society, however excellent their academic results or disciplinary record.
There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.
One final point. A question was raised that the prospective carers in the instant case “would not take a Muslim child in their care to a mosque”. Children should not be considered to have a religion of their own, they should be allowed – and encouraged – to investigate and question all matters of faith and to make their own mind up in due course.
In a previous post I considered the case of a Christian couple whose views on homosexuality rendered them unsuitable in the eyes of their local authority to foster children. This week a different couple were also unsuccessful in seeking to challenge their local authority on the same issue (R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) [2011] All ER (D) 292 (Feb)), and predictably the same strident debate in the media has followed.
The judges held that there was a need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty did not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child's parents and the wider family, any of whom might be homosexual. In those circumstances, it was impossible to maintain that a local authority was not entitled to consider prospective foster carers’ views on sexuality, least of all when it was apparent that the views held and expressed might well affect their behaviour as foster carers. The authority was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them.
I am a firm advocate of both sexual equality and a complete separation of Church and state, and sympathise with the authority's view accordingly. But the situation is quite complex.
The first question - not considered anywhere in the judgment or much in the literature - is whether or not the same test should apply for placing children with foster parents as for removing children from their original parents.
If the test were to be the same, then it would have to be far less intrusive than the current foster parent investigation, unless we were prepared to have the Orwellian spectre of local authorities investigating all parents and interrogating them regularly as to every aspect of their social and political views.
Given, therefore, that it is an unavoidable fact that there are millions of religious parents and they are not being deemed ipso facto unsuitable, it might be asked why the authority should concern itself with the religious beliefs of prospective foster parents. On the other hand, placing any children, still less ethnic minority children, with devout adherents of the former Dutch Reform Church would be unreasonable to say the least, as would be the case if the parents were open admirers of Osama Bin Laden who expressed the desire to swell the ranks of martyrs. One could imagine many others.
It does not therefore seem right to allow carte blanche foster placement with no investigation of the views of prospective parents.
What, therefore, should that investigation entail? Rosalind English in the UK Human Rights Blog considers that religion by definition requires a narrow minded approach to matters such as sexual orientation, blasphemy, the status of women and so on, and therefore the chances of any admitted religious adherent passing the authority's muster must be slim. They will therefore have to lie about their beliefs or not bother.
That may now be the law, but despite agreeing with Ms English that a religion almost by definition must require adherence to its own tenets and some (at least implicit) denigration of non-believers or other deviants (though not necessarily for all religions - and indeed one further point is how to define a religion), I am not persuaded that this should indeed be the law.
I return to the previous post, in which I argued that given we still (fortunately) have freedom of religion and freedom of thought, a wide mesh for tolerable views should be applied. After all, a child has to be educated in the state run or state-approved school system and it is idle to assume that children will not encounter all manner of views, good, bad, arguable and indifferent in all aspects of their life. If that school system does its job properly the children will learn to question, debate and investigate views including those of their parents. Indeed, if the state is concerned about unacceptably narrow views it should question the very concept of religious schools, which in my view are simply not compatible with the goal of a diverse, tolerant society, however excellent their academic results or disciplinary record.
There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.
One final point. A question was raised that the prospective carers in the instant case “would not take a Muslim child in their care to a mosque”. Children should not be considered to have a religion of their own, they should be allowed – and encouraged – to investigate and question all matters of faith and to make their own mind up in due course.
Tuesday, 1 March 2011
Litigants in person
Published on Halsbury's Law Exchange here.
It was once said that justice, like the Ritz, is open to all. That was a variation on the old joke about French law being equal because it prevents the rich as well as the poor from sleeping under bridges. Since the advent of public funding, it has been more common to say that justice is only available to the very rich or the very poor ...
Whatever the truth of any of that, there is no doubt that any restrictions on legal aid (as presently being considered) will have some effect on access to justice. A second consequence, however, is that there are likely to be significantly more litigants in person. According to the BBC:
“The Judges' Council, which is chaired by Lord Igor Judge, the head of the judiciary, has warned that government plans to remove £350m from the legal aid budget could result in a surge of amateur barristers clogging up the system.
The Ministry of Justice (MoJ) insists there is "little substantive evidence" that litigants in person delay proceedings and that any increase should not significantly impact proceedings.”
The MoJ’s insistence deserves a response. The reason there is “little substantive evidence” is that properly researched statistics would be hard to come by. One would need to start by dividing hearings into those with the same cause of action – such as, for example, cases under s 288 of the Town and Country Planning Act 1990, ancillary relief cases, child custody hearings, road traffic prosecutions – and then compare the average length of hearings where both sides, one side or neither were represented. Then one would have to consider the factual and legal complexity of each individual case – which might differ significantly even between different examples of the same cause of action. Next one would have to take account of the different judges involved: some naturally progress cases quicker than others. To an extent that is dependent on the degree of familiarity the judge has with the particular subject matter – few judges could deal as expeditiously with planning cases as Sullivan LJ, for example.
One can therefore see the difficulty in compiling objective statistics simply from the duration of particular hearings. And the absence of such statistics on the subject means that there is equally little substantive evidence both for and against the MoJ’s proposition.
Having said that, however, the Judges’ Council is surely in an authoritative position to make at least a broadly accurate generalisation, given that it is able to draw upon the collective experience of those who actually conduct all the hearings. Its conclusion that hearings involving one unrepresented party almost always take longer than when both are represented is correct in the experience of the All England Law Reporters, who have covered countless hearings in the courts of record involving both represented and unrepresented parties over the years. There are several reasons why.
First, it is generally necessary for the litigant to be assisted with court procedure. Secondly, few have the skill of distilling relevant from irrelevant issues. Thirdly, even highly educated litigants in person are generally quite out of their depth in discussing any relevant authorities, statutes or points of principle, which therefore have to be explained at least to some extent (and even then the full significance is often not grasped). Fourthly, it is the duty of the other side’s barrister to draw all relevant authorities to the court’s attention and identify arguable points which the litigant might have missed, and this usually takes longer as the judge will want to be satisfied that that duty has been discharged. (It may also add to the (often unrecoverable) costs of the other side). Fifthly, judgments often take longer as the judges feel obliged to include more detail, with little homilies explaining points of law which ordinarily would not be necessary.
The Judges' Council's point is therefore sound. The point remains secondary, however, to the fundamental point of justice being done – and equally being seen to be done. If there is a basic inequality between representation of the parties, one is entitled to question whether the standard of the trial process will always be maintained. Law is a learned profession, as with, say, medicine or architecture, and it is idle to expect that a lay person could undertake even a straightforward medical diagnosis or design a simple building as well as a professional. It is equally expecting too much of lay people to assume they can competently represent themselves in court.
It was once said that justice, like the Ritz, is open to all. That was a variation on the old joke about French law being equal because it prevents the rich as well as the poor from sleeping under bridges. Since the advent of public funding, it has been more common to say that justice is only available to the very rich or the very poor ...
Whatever the truth of any of that, there is no doubt that any restrictions on legal aid (as presently being considered) will have some effect on access to justice. A second consequence, however, is that there are likely to be significantly more litigants in person. According to the BBC:
“The Judges' Council, which is chaired by Lord Igor Judge, the head of the judiciary, has warned that government plans to remove £350m from the legal aid budget could result in a surge of amateur barristers clogging up the system.
The Ministry of Justice (MoJ) insists there is "little substantive evidence" that litigants in person delay proceedings and that any increase should not significantly impact proceedings.”
The MoJ’s insistence deserves a response. The reason there is “little substantive evidence” is that properly researched statistics would be hard to come by. One would need to start by dividing hearings into those with the same cause of action – such as, for example, cases under s 288 of the Town and Country Planning Act 1990, ancillary relief cases, child custody hearings, road traffic prosecutions – and then compare the average length of hearings where both sides, one side or neither were represented. Then one would have to consider the factual and legal complexity of each individual case – which might differ significantly even between different examples of the same cause of action. Next one would have to take account of the different judges involved: some naturally progress cases quicker than others. To an extent that is dependent on the degree of familiarity the judge has with the particular subject matter – few judges could deal as expeditiously with planning cases as Sullivan LJ, for example.
One can therefore see the difficulty in compiling objective statistics simply from the duration of particular hearings. And the absence of such statistics on the subject means that there is equally little substantive evidence both for and against the MoJ’s proposition.
Having said that, however, the Judges’ Council is surely in an authoritative position to make at least a broadly accurate generalisation, given that it is able to draw upon the collective experience of those who actually conduct all the hearings. Its conclusion that hearings involving one unrepresented party almost always take longer than when both are represented is correct in the experience of the All England Law Reporters, who have covered countless hearings in the courts of record involving both represented and unrepresented parties over the years. There are several reasons why.
First, it is generally necessary for the litigant to be assisted with court procedure. Secondly, few have the skill of distilling relevant from irrelevant issues. Thirdly, even highly educated litigants in person are generally quite out of their depth in discussing any relevant authorities, statutes or points of principle, which therefore have to be explained at least to some extent (and even then the full significance is often not grasped). Fourthly, it is the duty of the other side’s barrister to draw all relevant authorities to the court’s attention and identify arguable points which the litigant might have missed, and this usually takes longer as the judge will want to be satisfied that that duty has been discharged. (It may also add to the (often unrecoverable) costs of the other side). Fifthly, judgments often take longer as the judges feel obliged to include more detail, with little homilies explaining points of law which ordinarily would not be necessary.
The Judges' Council's point is therefore sound. The point remains secondary, however, to the fundamental point of justice being done – and equally being seen to be done. If there is a basic inequality between representation of the parties, one is entitled to question whether the standard of the trial process will always be maintained. Law is a learned profession, as with, say, medicine or architecture, and it is idle to expect that a lay person could undertake even a straightforward medical diagnosis or design a simple building as well as a professional. It is equally expecting too much of lay people to assume they can competently represent themselves in court.
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