"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Thursday, 25 February 2010

Falklands again

In Monday's Times one Martin Cross argues that Britain now lacks the "financial capacity, manpower and equipment to defend the Falklands".

This is only so if Britain is again naive enough not to anticipate an Argentine invasion. Otherwise the British hunter-killer nuclear submarine fleet would be eminently able to exclude completely any seaborne invasion attempt, and it is more than doubtful whether the Argentine air force has the capacity to mount and sustain an air invasion.

Even if it does, since the cause of the strain on Britain's forces has been the very serious commitment to US-led invasions of Iraq and Afghanistan, on the basis of the much-discussed "special relationship", I wondered if there would be a chance of the US lending us the assistance of one of its eleven carrier battle groups.

On 25 February the US gave the answer: No.

The "special relationship" remains as special as ever.

Wednesday, 24 February 2010

The new (as opposed to the existing) Supreme Court

This blog has now been published here.

The Supreme Court has been with us since October 2009, and it has now begun delivering judgment in cases heard before it rather than the House of Lords. It therefore seems appropriate to offer some views on its performance to date.

Ordinarily, assessing the performance of a new public body would involve measuring its results against the stated reasons for its existence. In the case of the Supreme Court, however, reasons given for its creation were slim. In particular, no problem had been identified with the actual performance of its predecessor, the Appellate Committee of the House of Lords, namely the quality of its judgments or the method by which they were delivered. No difference in either respect has been identified in how the Supreme Court operates. Accordingly, the substance of its performance can be expected to be unchanged. We are therefore entitled to ask why Parliament bothered.

The only reason offered as to why the court was necessary was a vague argument that the Appellate Committee of the House of Lords did not conform with the notion of separation of powers. Lord Falconer QC, then Secretary of State for Constitutional Affairs and Lord Chancellor, in a document somewhat dubiously entitled “Doing Law Differently”, stated:

“Clarification of our constitutional arrangements is also being extended to the separation of the courts from the legislature and the executive. The final court of appeal, the body that makes the most difficult and controversial decisions, is currently the Appellate Committee of the House of Lords. To make the final court of appeal more visible with a clear division between the judges and Parliament, the jurisdiction of the Appellate Committee will be transferred to a new Supreme Court for the United Kingdom”

I suspect Lord Falconer may have had one eye on Strasbourg and our obligations under the European Convention on Human Rights. The reality, however, is that the influence of the rest of the House on its Appellate Committee was nil. The last time a non-law Lord sat on the Appellate Committee was in the nineteenth century, and his opinion was ignored.

No-one had thought to challenge the Appellate Committee’s legitimacy before Strasbourg, although art 6 of the Convention has formal requirements for an independent judiciary and there is ample precedent for challenges to judicial bodies on those grounds. The reason no–one thought to do so is that any such challenge in relation to the Appellate Committee would have been certain to fail.

In fact not only did Lord Falconer provide no reason to doubt the above, he gave every reason to support it, stating that “We have an independent judiciary of the highest probity and quality. Across the world, there is recognition that a decision from an English court will have the hallmarks of both judicial excellence and judicial integrity.”

It might be added that the Appellate Committee’s decisions were at one time followed almost as a matter of course throughout the Commonwealth, even by countries that had dispensed with the Privy Council as the final court of appeal. That may not be the case any longer, but the Appellate Committee still commanded high international respect and it cannot be assumed that the Supreme Court will automatically carry the same gravitas.

In other words, the stated reasons for the introduction of the Supreme Court are in reality compelling reasons against it. As an authoritative commentator, Francis Bennion, has put it: “if it ain’t broke, don’t fix it”.

It is also highly questionable whether Lord Falconer’s aim of “clarification” has been achieved; I would suggest the opposite. The name “Supreme Court” has already been in use since 1873, in reference to the High Court, as appears in the Supreme Court Act 1981 and on every solicitor’s practising certificate. That name has not been abolished, though the Supreme Court Costs Office has renamed itself the Superior Court Costs Office. Far from assisting clarification, therefore, the new court has introduced confusion, much as when the office of Mayor of London was introduced seemingly without any acknowledgement of the rather more long-standing office of Lord Mayor of London.

One senior member of the judiciary held similar misgivings. According to the Times:

"The creation of a UK Supreme Court verges on “frivolous” tinkering with the constitution and may have dangerous unintended consequences, Lord Neuberger, the Master of the Rolls has warned.

Lord Neuberger, a former law lord who declined to move to the Supreme Court, said changes to the UK legal system that led to the creation of the Supreme Court appeared to have been dreamt up “over a glass of whisky” by former Prime Minister Tony Blair.

“To change... the law lords into the Supreme Court as a result of what appears to have been a last-minute decision over a glass of whisky seems to me to verge on the frivolous,” Lord Neuberger told [a] BBC Radio 4 programme.

“The danger is you muck around with a constitution at your peril, because you don’t know what the consequences of any change will be.”

Blair’s announcement, six years ago, of plans to create a Supreme Court surprised many judges who were not consulted in advance."

Frivolous the exercise was indeed, but the cost was not. The modifications (somewhat controversial themselves) to the chosen building (the old Middlesex Guildhall) alone cost approximately £60m. There were surely more deserving causes. The building could have been retained in its former role as a much-needed Crown Court. More judicial assistants could have been hired for the Court of Appeal and the Appellant Committee, which may indeed have led to an improvement in the quality of judgments. One could go on.

All that said, however, the aforementioned whisky drinkers had their way and the Supreme Court duly came into being. Despite my opposition I wondered if they’d take the opportunity formally to reform one unsatisfactory feature that appeared all too often in the Appellate Committee, namely the failure to provide a single majority decision (something I have recently spoken about in the Times).

Time and again lawyers have been left frustrated when three, four or even five different opinions are produced, all concurring in the result but with separate and not always consistent reasoning. I wonder how many chargeable hours have been frittered away in composing advice or pleadings, and arguing in court, by the necessity to determine what precisely was agreed by the majority (if anything).

The point could not have been lost on the Law Lords themselves. Lord Bingham of Cornhill said ex cathedra a few years ago:

First, whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio. Without that, no one can know what the law is . . .

Which is precisely the point, but Lord Bingham has since retired and, as the recent high profile case of R (on the application of E ) v Governing Body of JFS [2009] UKSC 15, [2009] All ER (D) 163 (Dec) shows, the Supreme Court Justices seem to take a different view. Nine justices sat on the case. Five decided that the appeal would be dismissed. And all five wrote separate opinions. Lady Hale (the former Baroness Hale of Richmond) offered that all of them were essentially in agreement, which on the one hand is helpful but on the other hand immediately raises the question of why they bothered.

No doubt separately reasoned opinions have some value in giving law reformers and academics the benefit of the justices’ opinions, particularly when those contain suggestions for reform. Dissenting judgments add that value as well. But that benefit could easily be retained if it was made clear as a matter of course (as it often is, but not often enough) that Justice X’s decision represents the majority, and the separate concurring opinions are being added as obiter in case Parliament wishes to reconsider the matter. It should then be incumbent on the authors of such concurring judgments to identify precisely the points on which they are at variance with the majority decision (which in turn might make it easier to understand exactly what the majority meant).

The European Court of Human Rights follows a similar process, as does the judicial committee of the Privy Council. That judicial body only ever issues one opinion, written by one judge (though on the basis of a discussion amongst all of them, who all check the opinion before it is issued), with the occasional dissenting opinion published as well.

Doing so would be much more beneficial than the one step towards clarity which the Supreme Court has already – and in my view only marginally usefully – done, which is to issue an accompanying press release for every judgment. This functions as a rudimentary headnote, though it has no authority, and indeed specifically states that it does not form part of the judgment. It is not stated whether the press releases are authored (presumably they are not) or approved (presumably they are) by the justices themselves. But as well as lacking any authority, the best that a press release (or indeed a proper headnote) can do when there are separate majority judgments is identify the separate holdings. The inconsistencies or infelicities or other lack of clarity therein will remain.

In the first judgment given by the Court on a case heard before it, rather than the Appellate Committee, six judges were in the majority, with one dissenting. Three judges agreed upon one judgment. The press release called that the “lead judgment”. Given that three of six in the majority agreed, it could fairly be said to represent the ratio, but it would have been far better if the judgment had been formally stated as the leading judgment by the judges themselves.

One final point concerns the method of appointment to the new court. It was bandied about at the time of the court’s creation that a broader range of people might be considered, perhaps even lawyers who had never been judges. It seemed to me that this would be a mistake, on the ground that it would dissuade eminent practitioners from accepting appointments to the High Court in the hope of a direct promotion to the Supreme Court. According to the Times, the person considered a likely candidate for such direct promotion, Jonathan Sumption QC, eventually withdrew after concerted opposition from the judiciary on that and other grounds. The whole episode was an embarrassing farrago.

As with the whole decision to divert resources to the Supreme Court, the notion that a candidate could be appointed directly from the bar or elsewhere without first having to work his or her judicial passage stems from a failure to appreciate the equal (in some ways greater) importance of the lower courts. To be sure, the best candidates (whatever the criteria) should eventually hold the highest office, but to circumvent the lower courts is to ignore the fact that the vast majority of cases are heard there, and never come close to the Supreme Court. It is the High Court and Court of Appeal where most judge-made law is in fact made. That alone provides a justification for requiring all potential Supreme Court justices to spend some time – even the majority of their judicial careers – in the lower courts.

There is certainly a case for revising the process by which all judges are appointed (for an authoritative recent discussion, see Horne, A The Changing Constitution: A Case for Judicial Confirmation Hearings?, Study of Parliament Group, Paper 1, January 2010, and also here), but again, this is a complex matter requiring detailed consideration of the type that seems to have been lacking in the Supreme Court reform process.

Lord Neuberger predicted dangerous consequences, and disassociated himself from the Supreme Court accordingly (undertaking a Denning-esque move downwards to become MR instead). He has yet to be proven wrong.

Post script: This article contains much interesting and relevant discussion of the issues, but, with respect, has the same problem as most commentary on the Supreme Court – stating that there were various problems with the Lords and that the Supreme Court might take a different approach, but nothing certain about what that approach might be and why it would be better.

Post post script: the more recent Supreme Court case of Norris (Appellant) v Government of the United States of America (Respondent) [2010] UKSC 9 follows precisely the course which I advocate above. The lead judgment is by Lord Phillips and the other judges all specifically state that they are in agreement with him. Let us hope that this is now the model for all future SC judgments.

Tuesday, 23 February 2010

Employment and religious beliefs: Nicholson v Grainger

Another internal post:

It was, I suppose, a fairly uncontroversial move in the first instance to try and outlaw religious discrimination in the workplace. Someone shouldn’t be fired or otherwise discriminated simply because of their personal religious beliefs, at least on the assumption that those beliefs don’t interfere with their ability to do their job. Unfortunately, as the recent Employment Appeal Tribunal case of Nicholson v Grainger plc [2009] All ER (D) 59 (Nov) demonstrates, it is one thing to have an uncontroversial idea, quite another to transpose it into uncontroversial regulation.

Parliament’s effort in this regard is represented by the Employment Equality (Religion or Belief) Regulations 2003 (EER 2003). Paragraph 2(1) provides: “(1) In these Regulations – i. “religion” means any religion, ii. “belief” means any religious or philosophical belief, iii. a reference to religion includes a reference to lack of religion, and iv. a reference to belief includes a reference to lack of belief.”

One can imagine the thought process which led to para 2(1). The starting point no doubt was the notion I referred to above, namely not discriminating against a particular religion (human history being riddled with odious examples of religious minorities being persecuted). Secularists objected to religion receiving apparently preferential treatment, hence the definition of belief was extended to include absence of belief, however inaccurately that may define atheism.

It is, however, illogical to single out religious beliefs (and the positive absence thereof) for special protection. In the United States in the 1960s, if one could prove to the authorities’ satisfaction that one was a practising Quaker, then, without more, one might gain exemption from the Vietnam War draft. Yet Mohammed Ali, who made the entirely cogent secular argument that he objected to fighting a war on behalf of a country which subjected him to racial discrimination, against an opponent who had never harmed or threatened him personally, was answered with a sentence of imprisonment. So too would someone who had, say, written a brilliant Harvard Phd on pacifism, yet it is entirely unclear why either the hypothetical Harvard scholar or Ali had a weaker case for exemption than a Quaker.

Therefore the definition for the purposes of the UK regulation was extended to include philosophical beliefs, presumably to cover secular philosophies as pacifism, and it was under this aspect of the definition that Mr Nicholson alleged that his climate change principles fell. He contended that he believed that “we must urgently cut carbon emissions to avoid catastrophic climate change.”

The objection is that such a contention doesn’t really amount to a philosophy, but a view on a disputed area of science. Indeed, proponents of the anthropological global warming theory (AGW) were anxious that it not be classified alongside philosophy or religion, or its scientific credibility might be undermined. Either the greenhouse gas emissions from industrial or other human activities are having a significant detrimental effect on the atmosphere or they are not. Such is to be proved or disproved like any other scientific theory.

Mr Justice Burton was not troubled by that point. He said:

In my judgment, if a person can establish that he holds a philosophical belief which is based on science, as opposed, for example, to religion, then there is no reason to disqualify it from protection by the Regulations. The Employment Judge drew attention to the existence of empiricist philosophers, no doubt such as Hume and Locke. The best example, as it seems to me, which was canvassed during the course of the hearing, is by reference to the clash of two such philosophies, exemplified in the play Inherit the Wind, i.e. one not simply between those who supported Creationism and those who did not, but between those who positively supported, and wished to teach, only Creationism and those who positively supported, and wished to teach, only Darwinism. Darwinism must plainly be capable of being a philosophical belief, albeit that it may be based entirely on scientific conclusions (not all of which may be uncontroversial).

I do not see how it can be argued that Darwinism is a philosophical belief – either it is true we are evolved from other forms of life or it is not. It may not be possible to prove it to every scientist’s satisfaction, but that does not move the theory into the realms of philosophy, it simply leaves it as an unproven scientific theory, as for example the tectonic plate theory once was. Nevertheless, for the purposes of the regulations, discriminating against someone because of their acceptance of the theory of evolution is at least as objectionable as discriminating against them because of their philosophical beliefs, so for that reason I suppose it is arguable that we should live with Darwinism and climate change being lumped in with “philosophy” however objectionable that might be to a scientist. Unless, of course, the definition is altered yet again to include “scientific belief” as well.

We seem to be heading therefore to a regulation that covers pretty much any sort of belief whatsoever. During the course of the judgment Burton J also stated that “philosophical belief” could include political belief. This seems unobjectionable: Marxism, or the theories of John Rawls, or Robert Nozick, can properly be described as philosophy.

At various points Burton J caught himself short on two grounds: first, that some religions or belief systems are objectionable, such as discriminating against women, other ethnicities and so on; and secondly, some might be seen as trivial (he specifically mentioned the Jedi religion to which many in the last census purported to subscribe). Having reviewed various authorities he came up with the following mesh to sift out offending belief systems: (i) the belief had to be genuinely held; (ii) it had to be a belief and not an opinion or viewpoint based on the present state of information available; (iii) it had to be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it had to attain a certain level of cogency, seriousness, cohesion and importance; and (v) it had to be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

In other words it has to be a belief system of which the state approves. We can I suppose simply be grateful that the present state of the United Kingdom is fairly tolerant by historical standards in that regard.

There remains, however, some confusion about the consequences of belief protection. Fair enough that someone should not be fired because they hold certain beliefs, but there is a problem if they start to contend that their beliefs impose positive requirements on their employer. For example, they might argue that they need prayer facilities at the employer’s expense, time out for prayer during the day and religious festivals (without any obligation to make up the time later), and to be excused from doing certain tasks on the ground that their religion precludes it, for example selling meat if they are a vegetarian.

The answer is, or at least should be, that the obligation in a free society is that one is required to respect a person’s right to their beliefs, but not to respect the beliefs themselves. So it would be perfectly acceptable for employee A to hold her religious beliefs, but not for that to impose any cost on her employer or her fellow employees. Otherwise it is compelling them at least partly to accept those beliefs, which might of course be contrary to their own. Employee A should not therefore take on the job in the first place, or should negotiate the terms before she starts.

Sovereignty once more

Internal blog once more:

In a previous blog commenting on the case of Secretary of State for the Home Department v AF and other appeals (Justice intervening) [2009] All ER (D) 84 (Jun), I suggested that the judicial committee of the House of Lords found itself in a position analogous to the unfortunate Fortunato in Poe’s The Cask of Amontillado, since they were faced with a decision of Strasbourg with which they patently disagreed, yet considered themselves powerless to do anything about it. Admittedly it wasn’t quite on the same scale as the decision which Fortunato didn’t like – being chained to a dungeon wall and immured – but they obviously felt about as powerless.

In the story Fortunato, who was tricked into entering the catacombs when drunk, sobers up pretty quickly once he realises his predicament and makes a few attempts to escape. Similarly, now their Lordships have turned into the Supreme Court, they are indulging in a bit of chain-rattling themselves. In R v Horncastle and another [2009] All ER (D) 88 (Dec), the Justices had this to say about the suggestion they should follow another wrong Strasbourg judgment:

The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.

In other words, Strasbourg just doesn’t understand, so we will kindly give them the chance to mend their ways.

It remains to be seen whether the Europeans will have any of this. In the story, of course, Fortunato’s efforts came to nothing and his body remained in the same place fifty years later. I have a similar suspicion about the Supreme Court vis a vis Europe.

The Great War

A few thoughts on WWI, written in response to another's internal blog:

First, numbers:

Approximately 3,000 death sentences were passed but only about 10% were actually carried out (266 British and colonial soldiers were shot for desertion, 18 for cowardice, seven for quitting their posts and two for casting away their arms: 293 in all. The other executions were for offences of a different nature, such as murder). Some 80,000 were diagnosed with shell shock at the war's end. The actual number of sufferers must have been many times greater over the conflict.

The fact that very few soldiers at all were executed (far fewer than the French army as well) indicates that the story is more complex than brutal officers ruthlessly and cruelly executing the innocent merely as an example to the rest. There must have been countless occasions of shell-shocked soldiers losing touch with their units but being ushered back without punishment by Military Police and then not receiving punishment from their actual officers.

Secondly - the strategists tried hard throughout to devise new methods of attack and warfare generally, they weren't doing it just because they were concerned about the odd mutiny, but because they were trying hard to win the war.

Thirdly - have to disagree with this sentence: "When the chance of being killed in action ticks over from possible to probable, it seems, you might just as well take your chances with the firing squad." 74% of British soldiers on the Somme didn't get a scratch; that isn't a probability of being killed in action at all. Incidentally per unit casualties for the Normandy campaign in 1944 were higher, yet that action is always considered a success rather than reckless slaughter.
Final point: I have always wondered why the only names etched into the public conscience are those of the defeats, or stalemates, or seemingly pyrrhic victories for the allies: the likes of Loos, Verdun, Gallipoli, the Somme, Passchendale and Ypres. Conversely, the defeat of Operation Michel (substantially on the moonscape of the Somme battlegrounds) and other German offensives of 1918, followed by the "100 days" in which the British surged to victory, constitute perhaps the most significant land victories in British history. Coming as they did only a couple of years after the creation of a giant new army from virtually nothing, pitched against a German army bolstered significantly by the end of the war in the East, they represent an astonishing victory by any measure.

Moreover, they represent the only occasion on which the British (or rather British and Empire) army could be said to have been the strongest field army in the world.

The equivalent might be Northern American states remembering the Civil War only in the battles of Bull Run, Fredericksburg and Chancellorsville; with Antietam, Gettysburg and all others forgotten. Or perhaps Americans in general recalling only Pearl Harbour rather than Coral Sea and Midway; or Russians the German invasion up to (but not including) Stalingrad.

"In the actual performance of the duties of the employment"

Second internal blog, from June 2009:

One might define 'democratic accountability' in different ways, but one facet I would have thought would be that the government is subject to the same rules as the governed. Some hope, as reflected in the case of Revenue and Customs Commissioners v Banerjee [2009] All ER (D) 203 (Jun), which calls to mind the leading news story of the past month or so. I refer, of course, to the ongoing public dispute about expenses incurred by the (questionably) honourable Members of Parliament, to which I presume readers might have seen the odd reference, unless you've just been on a particularly long and particularly exotic holiday.

The usual defence offered by the impugned Members has been that they were playing "within the rules." So that's alright then.

As it happens I dispute that they were within the rules,* but let's accept the argument for the moment. MPs have received money in addition to their basic salary via expenses. What happens to the ordinary citizen in those circumstances? One was Dr Banerjee, who worked for the overworked NHS as a consultant dermatologist. Her employment contract contained a training clause requireing her to attend meetings, courses and conferfences 'in carrying out the duties of her employment' as prescribed by her supervisor. Attend meetings etc she did, and claimed the cost on expenses. She recorded all this for income tax purposes.

The Revenue wasn't having that. They considered the expenses received constituted income, and taxed her accordingly. They relied on the forthright provision of s 198 of the Income and Corporation Taxes Act 1988, which at the material time for some of the claims provided that:

"(1) If the holder of an office or employment is necessarily obliged to incur and defray out of the emoluments of that office or employment the expenses of travelling in the performance of the duties of the office or employment or otherwise to expend money wholly, exclusively and necessarily in the performance of those duties there may be deducted from the emoluments to be assessed the expenses so necessarily incurred and defrayed."

I am pleased to report that Dr Banerjee's claim, which seems eminently reasonable, was allowed on appeal. When it reached the High Court, Henderson J said that the requirements of s 198 were 'notoriously difficult to satisfy'. He said that deduction claimed by the taxpayer had to be related to an objective necessity imposed by the duties of the employment itself, in the sense that, irrespective of what the employer might prescribe, the duties themselves involved the particular outlay. Further, the expenditure had to have been incurred in the actual performance of the duties of the employment, and it also had to have been wholly and exclusively so incurred.
As mentioned, Dr Banerjee's claims eventually satisfied that notoriously difficult test, but one is left wondering exactly how many of the well publicised indulgences of the Honourable Members would do so. It would be intriguing to know how the cost of a bath plug might have been "incurred in the actual performance of the duties of the employment", and given the family nature of this blog I won't even speculate about some of the others.

In a fair world, therefore, even if received 'within the rules' of Parliament, most MPs' claims would scarcely stand a chance of getting past the beady eye of the taxman. Except, of course, that in the unfair real world it's a different set of rules for them, so that's alright then.
*MPs think they weren't breaking the rules. The said rules are contained in the Parliamentary Green Book (the name, readers will immediately spot, being a cheap rip-off of a rather more august Lexis Nexis publication). It contains a large number of detailed rules. Presumably these are the rules with which MPs think they complied. They are, however, made subject to overriding principles, which the Green Book states must be adhered to when making claims. These include: that claims should be above reproach; that claims must only be made for expenditure that it was necessary for an MP to incur to ensure that he or she could properly perform his or her parliamentary duties; that MPs must ensure that claims do not give rise to, or give the appearance of giving rise to, an improper personal financial benefit to themselves or anyone else; that MPs are committed to openness about what expenditure has been incurred and for what purposes; and that MPs should avoid purchases which could be seen as extravagant or luxurious." (One might add "or ludicrous" which would have tripped up the 1p phone call, Lembit Opik's wig and the kit kat.)

Amontillado, Argentoratum and AF: the end of national sovereignty

First of a few posts written for an internal company blog:

Anyone labouring under the illusion that as a sovereign nation Britain is the master of its own destiny should read the judgment of the House of Lords in Secretary of State for the Home Department v AF and other appeals (Justice intervening) [2009] All ER (D) 84 (Jun). The House of Lords, once the judicial body followed almost as a matter of course by other jurisdictions irrespective of whether it was technically their highest court, now seems to find itself in a position analogous to the unfortunate Fortunato at the end of Poe’s The Cask of Amontillado.

At issue in the AF case was the procedure which had resulted in the making of the control order against suspected terrorists, and in particular whether the procedure satisfied the subject's right to a fair hearing as guaranteed by art 6 of the European Convention on Human Rights. The House of Lords held that, whatever they might wish to decide for themselves, the decision of the European Court of Human Rights in A and others v United Kingdom [2009] All ER (D) 203 (Feb) had already settled the issue.

Their Lordships did not do so without misgivings, however. According to Lord Hoffmann:

I agree that the judgment of the European Court of Human Rights (ECtHR) in A v United Kingdom ... requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that s 2(1)(a) of the Human Rights Act 1998 requires us only to “take into account” decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.”

Lord Rodger, evidently of the same view, quoted and adapted a maxim from that other European Union, Pax Romana:

Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.”

Monday, 22 February 2010

Supreme Court and Majority Judgments

A variation on a theme: being quoted in the Times (from http://timesonline.typepad.com/law/2010/02/supreme-court-of-majority-judgments-and-press-releases.html):

At least one disappointed Supreme Court watcher after last week's judgments lifting anonymity orders on terrorist suspects - and declaring that the order freezing their assets was unlawfully obtained.

James Wilson, Managing Editor, All England Reporter, is disappointed that despite Lord Phillips of Worth Matravers' (President) wish to have more majority judgments, there was not one in this case.

He said: "It is unfortunate that the Supreme Court in its first judgment of a case actually heard before it rather than the House of Lords did not take the opportunity to deliver a single majority judgment. Instead there is what the press release calls a "lead judgment", but this is endorsed only by three judges out of seven.

The lack of a single majority judgment renders it much more difficult for the Court to fulfil its core duties of explaining to the parties why each has won or lost, and to clarify the law. As Lord Bingham of Cornhill said in a speech a few years ago:

"First, whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio. Without that, no one can know what the law is . . . "

The press release is a new and welcome innovation however. But for law reporters, this can create its own problems. Wilson notes: "This functions as a rudimentary headnote, though it has no authority, and indeed specifically states that it does not form part of the judgment. It is not stated whether the press releases are authored (presumably they are not) or approved (presumably they are) by the justices themselves.

"But the best that a press release (or indeed a proper headnote) can do when there are separate majority judgments is identify the separate holdings. The inconsistencies or other lack of clarity therein will remain. It is to be hoped that in future the Supreme Court will follow the practice of the Judicial Committee of the Privy Council and issue one leading judgment only, with any separate concurring opinion specifically identified as such."

British emerald green

Letter 13:

From http://www.timesonline.co.uk/tol/comment/letters/article6995535.ece

January 20, 2010

Sir, Gareth Tarr (letter, Jan 19) writes about the origin of the term “Silver Arrows”, supposedly the result of the Mercedes F1 team removing all paint before a Grand Prix in 1934 to meet the weight regulations. The story is almost certainly apocryphal: there is no contemporary source, and it first appeared in the autobiography of a former team manager, Alfred Neubauer, in 1958. Further, the name “Silver Arrows” had been used in a radio broadcast as early as 1932 in reference to a German racing car.

British racing green was adopted for the Gordon Bennett Cup because the usual British colours of red, white and blue had already been taken; green was chosen out of respect for the Irish hosts of the 1902 event. This decision had the approbation of the manufacturer of the British entrant, Napier, as it had used the colour previously (albeit olive green). The first instances of British racing green were, therefore, emerald green, rather than the darker hue of later years.

Cricketing honours

Letter 12:

From: http://www.timesonline.co.uk/tol/comment/letters/article6978152.ece

January 07, 2010

Sir, The criticisms of the New Year Honours system (letters, Jan 5) are all valid, but nothing new. The system has long been no more than a mixture of tokenism, a substitute for paying civil servants a competitive wage and a means for the incumbent government to signify it is in touch with popular sentiment.

The decision to award all of the men’s cricket team MBEs in 2005 is a good example of the last, rather than simply bias against women. Geraint Jones received an MBE for his services as wicketkeeper in the 2005 Ashes. By contrast, both Alan Knott and Bob Taylor, whom one might respectfully suggest had rather more distinguished careers as English wicketkeepers, never received an honour between them. Paul Collingwood’s award was on the basis of a single appearance in the fifth Test, in which he contributed an important 10 in the second innings; Graham Thorpe did not receive an MBE until he had played 100 tests and Mark Butcher, who played 71 tests, has never received a thing.

Perhaps it is better to recognise that the system, like that of MPs’ expenses, is fundamentally flawed rather than simply flawed in execution, and do away with it accordingly.

Defence priorities

Letter 11:

From http://www.timesonline.co.uk/tol/comment/letters/article6843406.ece

September 22, 2009

Sir, The first and last consideration in defence procurement (letters, Sept 18) should be obtaining the best quality equipment for our Forces given the resources available, not in providing a substitute for unemployment benefit for the incumbent government’s marginal constituencies. I would far rather have to inform a factory worker that he or she is being made redundant than have to explain to a soldier’s parents that their child has been killed because of inadequate equipment. That it has taken four decades to produce a worthy partly British-built combat jet is an argument against, not for, attempting any such folly in future.

The only actual combat role that it is possible to conceive the Eurofighter undertaking is that of supporting ground troops against insurgents. Such a role can be carried out more effectively — and cheaply — by drones and attack helicopters.

Strategic bombing would be more effective, cheaper, and far less risky to personnel if undertaken by cruise missiles (or stealth aircraft, which the Eurofighter is not) rather than by conventional fast jets.

The US military budget exceeds the next largest by a factor virtually unprecedented in history, and the cost-effectiveness of purchasing American equipment often corresponds. Further, there is no chance of Britain undertaking significant combat operations without at least some American equipment and assistance or — it might as well be conceded — political approbation.

Vulcan's Victory

Letter 09:

(from http://www.timesonline.co.uk/tol/comment/letters/article1744259.ece)

Sir, Ian Mitchell (letter, May 3) argues that the significance of the Vulcan attacks on Port Stanley has been overrated. Roland White, in his book Vulcan 607 (Corgi, 2006), contends that there were three direct results of the Vulcan raid: Any remaining plans for fast-jet operations by the Argentinians from Stanley were cancelled; the Mirage jets were removed to the north of Argentina to defend targets that were not on the British list; and, most significantly, the Argentine Navy put to sea because it thought that the Black Buck raids were a prelude to invasion. That led to the Belgrano sinking and the consequent withdrawal of the entire Argentine Navy.

Hugh Bucheno’s Razor’s Edge: The Unofficial History of the Falklands War (Phoenix, 2007) points out the effect of the raids on Argentine morale and that, although the Royal Navy and the RAF could have lost the war had they failed in their roles, only the troops on the ground could actually win it. One of the most important lessons of this war is that inter-Service rivalry may jeopardise an entire operation.

Wine as art

Letter 08:

Sir, Professor Ian Fells (letter, April 13 ) complains about the price of a Château Pétrus, claiming that it is “a triumph of branding and salesmanship and very little to do with quality”.

With respect, Professor Fells misses the point. Fine wine is like art or music. The prices commanded by works by, say, Picasso and Van Gogh over countless others may have little to do with superior skill of the artist, still less the intrinsic value of the materials used, and everything to do with the preferences of the buyer.

While there might be broad agreement over what constitutes technical skill in winemaking, music and art, the value placed on individual examples by the market involves many more intangible factors, some perhaps quite irrational. Ultimately a bottle of wine is worth whatever anyone is prepared to pay for it, no more, no less.

The Belgrano sinking

Letter 07:

April 7, 2007

Sir, Magnus Linklater (comment, April 4), writes of the Falklands War: “Famously, the Belgrano was attacked by the nuclear submarine Conqueror when it was heading away from the task force, a fact concealed in the House of Commons. . . ” and refers to “the subsequent decision by the war Cabinet to sink the Argentine battleship”.

First, the Belgrano was a cruiser. More importantly, the Cabinet was unaware of the Belgrano’s change of course before the cruiser was attacked. The decision to sink her was not that of the Cabinet but of the task force commander, Admiral Sandy Woodward, who subsequently wrote: “The speed and direction of an enemy ship can be irrelevant, because both can change quickly. What counts is his position, his capability and what I believe to be his intention.” The Cabinet acceded to the request of Admiral Woodward because it was well aware of the danger of playing armchair generals 8,000 miles from the conflict.

In retrospect it can be seen that the sinking was the decisive action of the war. The Argentine Navy retreated to port thereafter, for the duration of the conflict.

Gender neutrality

Letter 06:

From http://www.timesonline.co.uk/tol/comment/letters/article759305.ece

December 21, 2006


Sir, In seeking a name for his androgynous snowman, Robert Vincent is not the only one to struggle with gender-neutral language (letter, Dec 20). Some years ago in Auckland there was a lawyer by the name of Guy Chapman. In order to avoid offending his colleagues, it was suggested he might be known instead as Person Personperson.

Plain English legislation

Letter 05:

From http://www.timesonline.co.uk/tol/comment/letters/article675605.ece

June 17, 2006

Plain English can find a place in legislation

Sir, The Constitutional Affairs Minister Harriet Harman seems to have forgotten that legislation is complex because human activity, which it seeks to regulate, is also complex, and as a result law is a specialist subject, just as with architecture or medicine. The only way that a paper on 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 example you give of an apparently plain English provision bears this out. You report that the Offences Against the Persons Act 1861 states: “It is an offence to cause a riot.”
Perfectly plain, until someone is charged under the section and it has to be determined what “caused” and “riot” mean in context.

Passing judgement

Letter 04:

From http://www.timesonline.co.uk/tol/comment/letters/article704083.ece

April 11, 2006

We should not pass judgment

Sir, Trevor Harvey (letter, Apr 7) is right to infer that we should not attempt to pass judgment on events in our distant past, such as the execution of Harry Farr. Already the case has taken up valuable judicial resources, as indeed have other recent reviews of long ago cases such as those of Derek Bentley, Ruth Ellis and James Hanratty. In all of these cases judicial proceedings only came about because the deceased had living relatives. We should not expend public resources on cases which turn on that happenstance.

Debating whether the likes of Private Farr suffered shell-shock is a matter of interest for medical historians, but we should hesitate before proposing to pass judgment on events as far removed as the Great War. It is fashionable to dismiss the generals of the day as “donkeys” and to rail against the supposed brutality of shooting for deserters. But it should also be recalled that of all the armies involved in the war from the outset, only the British did not suffer a collapse of morale at any point, as well, of course, as emerging victorious.

Cricket and terrorism

Letter 03:

From http://www.timesonline.co.uk/tol/comment/letters/article544416.ece

July 16, 2005

The joys of cricket

From Mr James Wilson

Sir, William Rees-Mogg asks of his enjoyment of a county cricket match two days after the London bombs: “What right did we have to be so happy, so exceptionally happy, at such a time?” The answer is: every right. Not to continue with our way of life is to hand victory to the terrorists.

Sunday, 21 February 2010

This blog

I am a legal author and editor by profession, but also the occasional writer of letters to the editor. I actually set this blog up for the fairly uninspiring reason that it seemed necessary in order to comment on a friend's blog, but having done so I will post a few of my published letters and blogs. I have no ambition for it other than a place for my own convenience, rather like the Clive Davis' old Spectator blog which was only read by him and the occasional staff member. The differences are that I have no intention or pretention otherwise, and I don't get paid for my efforts! (This is harsh on Clive, but not unfair ...)