Tag Archives: current-events

The Colston Four and ‘perverse’ jury verdicts: a very English tradition

The UK “Colston Four” trial of various people involved in removing the statue of the slave trader (and “philanthropist”) Edwin Colston from the streets of Bristol has focused attention on so-called “perverse” court verdicts and what, if anything, to do about them. Those lovers of England’s Common Law, Britain’s “rule of law”, trial by jury and Magna Carta (from which English jury trial may be seen to have derived) feel there is something wrong when that system allows protesters to apparently flout the law for political purpose.

Yet “perverse” verdicts are part of the great English legal tradition with almost constitutional import, greatly admired as a way of spurring social progress or resisting an overwheening authority. The believers of our great British traditions and the rule of law might perhaps be proud of the fact that occasionally a defiant jury has achieved a result of social importance through wholly legal means (bringing in a verdict).

The Seven Bishops case
A jury’s verdict does not set a precedent. Each case is on the facts; the jury’s decision cannot (in a legal sense) be impugned (unlike the rulings of judges or their summings up for juries in criminal cases).  But a  jury did set a precedent of sorts once – the ultimate precedent, that juries shall not be browbeaten by the authorities into giving the “correct” verdict. It is the precedent that underlined that juries should come to their own view on the cases before them, however angry it makes the authorities (or, in the present day, the newspaper people even before they were able to read the judge’s comments in the Colston case). The pride the British people have in the jury system (as enunciated in centuries of good old-fashioned Angolo-centric British history, none of your “woke” quasi-Marxist stuff) derives from that case: the Trial of the Seven Bishops.
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Priti Patel and bullying: what is the law?

Can a person whose behaviour constitutes bullying really be exonerated if there was “no intention” to bully, as the case of Priti Patel, UK Home Secrtary, suggests? The answer is fundamentally no – but overwhelmingly, yes, since workplace bullies throughout the country claim this defence in disciplinary proceedings – and usually successfully when their management is willing to give them the benefit of the doubt.

Can the bully be exonerated because she is working in a “challenging” job with people resistent to change, as Patel claimed? Again the answer is no. If you resort to bullying in these circumstances that would be bullying as a technique of management – and hence intentional; or you’ve simply lost it and should be moved from your post or at the very least get some retraining. But again the answer is “yes” since blaming the victims is always a good ploy for a manager facing a sympathetic disciplinary chair.

One hesitates to say that the Patel bullying scandal has set back the rights of employees making bullying allegations since the two excuses – “I didn’t mean it” and “they drove me to it” are standard tropes when such allegations are made. They have no basis in logic or law yet employers use them to find against staff making bullying claims or mitigate the offence to the extent that throwing in a bit of anger management is deemed sufficient to show something is being done.

The prime minister, Boris Johnson, is in the lucky position of having arbitrary powers under the Ministerial Code to throw out allegations however well founded. Employers have to show themselves acting more fairly and rationally in such cases and must have somewhat stricter codes of conduct, anti-bullying policies and disciplinary procedures. Nevertheless, whatever the rules, the complainant is at a disadvantage whenever an employer backs a bullying manager. Continue reading

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UK Parliament or Executive: which is top dog in Britain’s constitution?

The recent Brexit-related goings-on in the [2019] UK Parliament seem, in some minds at least, to have thrown up a crucial question: is Britain’s “sovereign” Parliament as important – or as sovereign – as we assume? There can be heard the steady drumbeat of those who think Parliament is a secondary part of the British constitution – and should stand aside to let the Government govern.

This is in contrast to, say, the barrister Lord Pannick in the second constitutional case launched by Gina Miller (R (Miller) v The Prime Minister 2019) on Boris Johnson’ prorogation of Parliament. Pannick was at pains to suggest, contrary to the generally held constitutional view, that Parliament (rather than simply laws passed by Parliament) was sovereign and so the Prime Minister’s power to prorogue (end the parliamentary session, dismissing MPs and peers until a new session is called) should be open to judicial oversight regarding the legality of its use, like most actions of the Executive.  

The argument against Parliament
So the question arises, which is the premier body in the British constitution, which is top dog: the Executive or the Legislature? As it happens, the historian Robert Tombs had answered this question to his own satisfaction in the Times some weeks before in a piece headlined: Parliament has no right to plot a Brexit coup.

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A ‘sovereign’ Parliament hamstrung over Brexit – or taking control?

The UK Parliament is sovereign – but do those who know of and respect this constitutional principle really understand how limited Parliament’s sovereignty is? Much has been said of parliamentary sovereignty in light of Brexit: by those who wish to leave the European Union to reestablish UK parliamentary sovereignty; but also by those who feel Parliament could wrest decision-making about how the UK actually leaves from the flailing Government.

In fact Parliament is not sovereign in the sense that the collective will of MPs and/or Peers in the House of Lords holds sway. It is parliamentary legislation that is, in effect, sovereign. In the traditional formulation “the Crown in Parliament” is sovereign, meaning legislation having passed its three stages in the Commons, Lords and Royal Assent will be recognised by the courts. And, for the most part, it is the Government that brings legislation to Parliament, not individual MPs or Peers (though there are exceptions: see below).

One thing MPs can do is bring down the Government in a vote of no confidence. The assumption is that this leads to a General Election (under the Fixed-term Parliaments Act) – but there is also a useful traditional power for MPs to vote out the Government – and replace it without an election. This might be a handy ploy if there is enough cross-party opposition the Government’s Brexit approach – though it would amount to a parliamentary coup. The implications are looked at below (subhead: Bringing down the Government) and here in mor detail: Government of national unity? Possibly.

But generally in the great Brexit debate, Parliament has found itself somewhat constrained – hence some of the innovative procedural schemes that have come forward thanks to Dominic Grieve and others to allow backbenchers to “take back control”.

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What are the perceived problems with the European Arrest Warrant?

The EAW is one of those strange areas in which Conservatives and others on the Eurosceptic right are deeply concerned about human rights issues. Enfield North MP Nick de Bois, for example, has summed up the EAW issue by saying “cooperation and expediency must not take precedence at the expense of fundamental judicial fairness, fairness and human rights”. Nick de Bois MP pdf)

Gerard Batten, UKIP MEP calls the EAW “a tick-box defendant transfer form-filling exercise that neuters the discretion any national judge may have had over extradition to European Union countries”.

So what exactly are the perceived problems with the European Arrest Warrant? The issues that come up again and again are:  Continue reading

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The Prime Minister’s prerogative: Iraq, Syria – and war with Spain

The UK Parliament’s Syria vote offered (and lost) by David Cameron in 2013 suggests that former Prime Minister Tony Blair may have left a remarkable constitutional legacy as a result of the Iraq war – one that affects the United States and possibly even France as well as Britain. Even though British Prime Ministers can declare war and deploy troops abroad under Royal prerogative without any Parliamentary approval, in 2003 Blair sought the backing of Parliament for the Iraq venture. For the first time since the 1950 Korean conflict Parliament had a say (albeit “consultative”) prior to the engagement.

So what is the history of the prerogative power to make war, and has Britain now created a new constitutional precedent that amounts to a new convention?

The prerogative power to make war is one of a number of monarchical powers retained by the Crown as the medieval representative parliamentary system (which began as a means of legitimising tax-raising beyond the Crown’s traditional levies, particularly for wars) grew into a qualified democracy. Those prerogative powers that remain (including appointing governments and the dissolution of Parliament – until the change in the Coalition agreement in 2010) are mostly held by the Prime Minister in the name of the Crown and the relevant Secretaries of State: the Defence Secretary for war-making, the Foreign Secretary for treaty-making and regulating foreign relations (though treaties often have a parliamentary passage of some sort; see below). The Executive (Government) decides on military deployments, not the Legislature (Parliament).

The US President is Commander in Chief of the Armed Forces; the UK Prime Minister derives his/her powers from the Queen who is also Commander in Chief. The fiction is that the Queen’s powers are not exercised by the Prime Minister and Secretaries of State as such but that she is likely to be bound by their advice on such matters so they in effect hold the power.

‘Methinks it’s a very strange thing for a king to consult with his subjects what war he means to undertake. This were the means for his enemies to know what he intends to do’ – Commons Speaker, 1621

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Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.

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