At times it appears as if the courts are the only place an increasingly powerful executive can be held to account. As a leading Fleet Street reporter said to me shortly after the Public First ruling, ‘the opposition can’t lay a glove on the government. We struggle to, too. Only the courts seem able to stop Johnson.’
The TRIPS Agreement came into effect in 1995 as part of a broad new suite of trade agreements resulting from the Uruguay Round of multilateral negotiations that led to the creation of the WTO. The agreements were treated as a ‘single undertaking’. States had to sign up to all of them if they wanted to join the new organisation. On its own, the TRIPS Agreement was a strikingly bad deal for most states, especially in relation to the expanded patent regime it established.
Derek Chauvin murdered George Floyd. A Minnesota jury yesterday found the former Minneapolis police officer guilty on three counts – second-degree murder, third-degree murder and manslaughter – for kneeling on Floyd’s neck as he suffocated and died on 25 May last year. In the days following Floyd’s death the world watched him gasp ‘I can’t breathe’ and knew, long before the jury was empanelled, that Chauvin had killed him, in public and in cold blood. That a jury found him criminally responsible may mark a historic moment for the United States. Such verdicts are vanishingly rare. In Britain, they are even rarer.
In May 2020, one of my clients asked the local authority – her landlord – when essential maintenance work would start at her home. Damp and mould had made her daughter’s bedroom uninhabitable. ‘It seems to us that you have not given a moment’s attention to present realities,’ the landlord responded. ‘Staff are low in numbers across many of the council’s departments due to personnel self-isolating.’ I told her not to be disheartened, everything was slower in the lockdown. The works would be delayed but they would happen. I was less sanguine when I saw the same excuse being given in letters written in August and September, when even bowling alleys and casinos were open.
The 1819 Seditious Meetings Act fell into disuse but remained on the statute book until its repeal by the Public Order Act of 1986. Now it is being revived in the Police, Crime, Sentencing and Courts Bill. This monstrous piece of legislation is intended to make it a crime to do something in public that causes, or risks causing, ‘serious annoyance’ or ‘serious inconvenience’.
Marc Lopez and his wife have four grandchildren, aged between two and ten, who have been detained with their mother in a camp in north-east Syria for nearly three years. There are around eighty French women and two hundred children detained in camps in Rojava, the Kurdish-controlled region near the Iraqi border. All the women, alleged to have joined Islamic State, are wanted on an international arrest warrant issued by French magistrates. On 21 February, a dozen of them began a hunger strike ‘to protest against the stubborn refusal of the French authorities to organise their repatriation and the repatriation of their children’, according to a statement issued by their solicitors, Marie Dosé and Ludovic Rivière. They say the women ‘are only asking for one thing: to be put on trial for what they have done’.
The common law doctrine of joint enterprise allows for the conviction of ‘secondary parties’ to a crime committed by another, ‘principal’ offender. It can afford the courts a proper degree of subtlety: the getaway driver can be answerable for the bank robbery, not just a parking ticket. It’s a blunter instrument when the collective nature of the offence is less clear. Researchers at Manchester Metropolitan University recently published a report into the criminalisation of women convicted under joint enterprise.
The Covid-19 regulations are draconian, inconsistent, obscure and inconvenient, but they are not unconscionable. They do not require me to do things that the state should never make its citizens do. They are proportionate to the threat that the virus poses to health services, and necessary to slow the spread of the disease and protect those services: or at least, they are arguably so. The law and the reasons for it make sense. The regulations are contained within statutory instruments. They alone are the law. They are the ‘rules’. They can be enforced with criminal sanctions. Guidance and advice are not rules and cannot be legally enforced.
‘A good jury turns into a little community,’ Baroness Hale has said, ‘working together in the interests of justice.’ As a jury advocate for over thirty years, I have always been impressed, and often humbled, by the care and dedication they give to their work. Academic research supports the experience of criminal lawyers that juries are fair, and do their utmost to bring in the right result. In every case, it isn’t just the defendant on trial: the state itself is on trial, too, in public, before its citizens. Can it prove its case to the high standard the law requires? Has it used its coercive powers wisely and lawfully? Have its operatives in the courtroom – the judge and the lawyers – conducted themselves properly?
The criminal courts and the jails that feed and are fed by them are ideal incubators of Covid-19. It comes as no surprise that an elderly prisoner has died today, either from or with the virus, and he won’t be the last. Courts bring people together in small spaces for hours or days at a time, in the courtrooms, the cells, and the jury rooms, not to mention the offices where the staff work. In the basement cell area of a court I attended recently, a single air-conditioning unit blew the same air through all the cells and into the interview and staff rooms. My colleagues have been complaining for years about broken plumbing, absence of soap and towels, and frequently filthy conditions.
The last 16 people on trial for allegedly masterminding the 2013 Gezi Park protests were acquitted by an Istanbul court on Tuesday. On Monday, 230 Gezi activists in the small Thracian city of Kırklareli had already seen their charges quashed. It had seemed too much to hope for a similar decision in Istanbul. Outside the hearing, Republican Party (CHP) leaders waited, apparently ready to pronounce another day in the death of Turkish democracy. When the verdict came, Atatürk’s party seemed to find itself, once again, wrong-footed by the AKP. At least this time the surprise was a pleasant one. Within hours of his release, however, one of the 16, the businessman and philanthropist Osman Kavala, was arrested on a new warrant, accused of involvement in the coup attempt of July 2016. Others had old charges against them reinstated.
The Conservatives have been in power since 2010: if there is a flaw in the sentencing rules, it is their fault. Those rules aren’t the root problem, though. Sudesh Amman, on the government’s new proposal, would have been released a year or so later, just as eager to kill. More important is what happens after a sentence is passed, in prison and on probation.
Last October, the Independent Inquiry into Child Sexual Abuse (IICSA) held public hearings on sexual abuse at UK specialist music schools. The inquiry primarily covers what are often called ‘historic’ incidents, from the 1970s, 1980s and 1990s. Allegations of sexual abuse at Chetham’s School of Music, in Manchester, first hit the news in 2013, when Michael Brewer, a choirmaster and former director of music at the school, was jailed for six years for indecently assaulting a pupil. She committed suicide days after testifying against him. Over the following months, a picture emerged of widespread abuse at UK music schools in the 1970s and 1980s.
Since last September, Monday to Friday, City of London Magistrates’ Court has been filled by Extinction Rebellion defendants from around the country. XR court supporters are on hand with vegan snacks, hugs and advice, within limits. We’re not legally trained but we’re learning, recording arguments and outcomes, watching for patterns. It’s gumming up the system: the trials, single or in batches, may occupy all three courtrooms all day. At the end, the district judge typically commends the defendants for their high-minded unselfishness (a pleasant change, one said, from the usual lot), expresses personal sympathy with their concerns – and finds them guilty as charged.
Brenda Hale, the president of the United Kingdom Supreme Court, will retire in January 2020. She took an atypical route to the summit of the judiciary, having been appointed to the High Court from an academic career (she was a professor of law at Manchester University) rather than practice at the Bar. Her speciality was family law, considered by some in the profession as a poor relation, which it may be in terms of earnings, and intellectually soft, which it isn’t. Family cases throw up enormously complex and important legal issues, such as the rights of parents and children as against local authorities, cross-border disputes over children and property, and the ethics of medical treatment against parental wishes. Hale’s academic and judicial work has also focused on social welfare and mental health law, subjects far removed from the bloodless commercial work that fills the CVs of most senior judges.
We expect the government to be able to retain the confidence of the Commons. If it cannot do so, that is a political problem (certainly for the government) but not a constitutional one. It is a situation that the principle of parliamentary supremacy anticipates. When push comes to shove, the constitutional position is clear: Parliament, not government, is supreme.
The home secretary, Sajid Javid, has revoked Shamima Begum’s British citizenship. Begum left the UK with two friends four years ago, at the age of 15, to join Daesh. She now finds herself stateless, with a newborn and possibly British baby in a Syrian refugee camp. Public sympathy in the UK has been limited. Begum has said she wasn’t ‘fazed’ by the sight of severed heads in bins, and suggested that the Manchester Arena bombing was payback for airstrikes against Daesh territory. She has regrets, but little remorse. Still, she was born and grew up in the UK, and when she left as a child she had been groomed online by a criminal organisation.
The use of an administrative process to strip Begum of her nationality sets a worrying precedent, if you value the rule of law and are concerned that citizens be protected from tyranny.
Seven years ago, earthquakes in Blackpool led the coalition government to place a moratorium on hydraulic fracturing for shale gas in UK rock formations. Drilling resumed late last year. Opposition has always been resolute and well organised, especially in Lancashire and Yorkshire. In a court hearing last autumn, the fracking company Cuadrilla announced that each day of delay at its Preston New Road operation saw it incur losses of £94,000. The figure was meant to cajole the courts, but may have had the unintended consequence of motivating protesters. By barricading roads, climbing aboard delivery trucks and taking legal action, campaigners have harried Cuadrilla and other firms every step of the way, shutting down fracking sites for days at a time.
A group of Oxford students are petitioning to have John Finnis, emeritus professor of law and legal philosophy, 'removed from his academic position' on account of his 'discriminatory views against many groups of disadvantaged people'. In his published writings, Finnis has claimed that gay sex is an 'immoral sexual act' akin to bestiality, that being gay should count ‘at least as a negative factor, if not a disqualification’ for adopting children, and that governments should 'discourage' citizens from homosexuality. The petition has its problems.
The Stansted 15 – non-violent protesters who stopped an aircraft taking off with deportees to Ghana, Nigeria and Sierra Leone in March 2017 – have joined the ranks of highly motivated people willing to risk jail to stop a perceived injustice. The passengers on the flight included deportees who were subject to the Home Office’s then policy of ‘deport first, appeal later’, which the Supreme Court later ruled to be unlawful. The 15 got through the airport fence and blocked the path of the plane, causing the flight to be cancelled. Some of the deportees subsequently won the right to remain the UK. The 15 were found guilty under the Aviation and Maritime Security Act 1990 of ‘disrup[ting] the services of … an aerodrome, in such a way as to endanger or be likely to endanger the safe operation of the aerodrome or the safety of persons at the aerodrome’. They are awaiting sentence. The maximum is life imprisonment, but the question for the court is likely to be whether to give them a prison sentence at all.
On 19 November, Airbnb announced that it had removed from its website around 200 properties in Israeli settlements in the occupied West Bank. The global travel agency explained that it had decided to 'act responsibly' after considering the settlements’ 'disputed' character and their contribution to 'human suffering'.
Canada legalised marijuana last month. On the way home from the optician on legalisation day, I decided to call into the Sunshine Wellness pot shop I’ve been visiting for the past few years to stock up on CBD oil. Pure CBD oil has no THC (the ingredient that makes you high) and is very useful for inflammation, pain, insomnia and dismay.
Earlier this month, the Republic of the Philippines’ Commission on Human Rights held public hearings in London for its inquiry into the responsibility of the ‘carbon majors’ (Chevron, Exxon Mobil, BP, Shell etc) for global warming. The petitioners are Filipino citizens and civil rights organisations who claim that the effects of the carbon dioxide and methane emissions for which the carbon majors are responsible violate their human rights. Typhoon Haiyan hit the Philippines five years ago. It was one of the strongest tropical cyclones ever recorded, with maximum sustained winds of more than 145 mph as it made landfall over Eastern Samar in the early hours of 8 November 2013. It killed 6201 people, injured more than 27,000, and displaced nearly four million. The Philippines are hit by more than twenty tropical storms a year.
Hun Sen, whose Cambodian People’s Party took every seat in the national assembly in last month’s elections, is the world’s longest-serving prime minister (since 1985). His recent electoral victory was assured in November 2017, when Cambodia’s Supreme Court dissolved the main opposition party after the government filed a lawsuit accusing it of conspiring with foreign powers to stage a revolution. Forty years ago Hun Sen was a Khmer Rouge battalion commander. Fearing a purge, he fled to Vietnam in 1977; he returned in 1979 with Cambodian rebel forces and the Vietnamese Army which overthrew Pol Pot’s regime. The Extraordinary Chambers in the Courts of Cambodia was set up in 1997 to try ‘the most senior’ surviving Khmer Rouge leaders, or those ‘who were most responsible’ for the atrocities committed under Pol Pot.
Alexanda Kotey and El Shafee Elsheikh are said to have been part of the terrorist cell that beheaded numerous British and American citizens, including the journalist James Foley. The pair, currently detained in Syria by Kurdish forces, are likely to stand trial for these crimes in the United States. Part of the reason Guantánamo Bay remains open is that it can be extremely difficult to secure convictions in such cases; the US will want as much evidence as possible, and the UK, which has been gathering intelligence for years, will have a lot.
On 8 December 2005, after a four-day case involving 19 barristers, the Appellate Committee of the House of Lords (as the forerunner to the Supreme Court was unglamorously known) gave judgment in A and Others v Secretary of State for the Home Department (No 2). The seven law lords laid down a rule of seemingly great importance: that evidence which was – or was likely to have been – obtained by torture was never to be admissible in legal proceedings. The secretary of state had argued strongly that such evidence should be allowed to be used, but he was soundly defeated. ‘From its very earliest days the common law of England set its face firmly against the use of torture,’ the senior law lord, Lord Bingham, declared; as a 19th-century jurist had put it, the practice is ‘totally repugnant to the fundamental principles of English law’ and ‘repugnant to reason, justice and humanity’.
An enraged President Trump, surrounded by uniformed military leaders, used the same press conference last week to condemn a raid on the office of his personal attorney, Michael Cohen, and announce that he was ‘making a decision as to what we do with respect to the horrible attack that was made near Damascus’. ‘In our world,’ Trump said, ‘we can’t let atrocities like we all witnessed’ happen, and ‘because of the power of our country – we’re able to stop it.’ That is the image, and the language, it will be necessary to keep in mind during the coming months if we are to understand the relationship between domestic crisis, foreign relations, the rule of law, military force, authoritarian populism and visual culture that is poised to reshape the international order.
In a death row appeal soon to come before the US Supreme Court, Robert McCoy will ask whether it is unconstitutional for defence counsel to tell a jury that his client is guilty, in defiance of the accused’s express instructions that he is innocent. McCoy’s lawyer did this in his 2011 murder trial in Louisiana, in a misguided attempt to get his client life imprisonment instead of the death penalty. The lawyer had rejected the opinions of psychiatrists who had found McCoy fit for trial, believing that he was insane and delusional, and that the only way to save his life was to tell the jury he had committed the three murders with which he was charged, in the hope of leniency. The jury promptly convicted McCoy of first-degree murder, and he was sentenced to death.
On 29 March 2019, unless the European Council unanimously decides otherwise, the United Kingdom will leave the European Union and a new trading arrangement between the EU and the UK will come into effect. If no bespoke deal is approved, trading arrangements will be conducted on World Trade Organisation terms. The UK will also lose any arrangements to which it is a party through the EU: there are more than 750. This is one reason the UK’s negotiating position with the EU is asymmetrical: even if ‘no deal’ harms both sides’ trade, it will be much worse for the UK.
As posturing over Brexit has given way to negotiations, the European Court of Justice is looming large. The prospects for EU citizens resident in the UK, uncertain enough to begin with, have been obscured by the government’s insistence that ECJ judges won’t be determining their rights. Even the court’s regulatory role over nuclear research is one judicial pretension too many for London: Theresa May has committed the UK to withdrawing from the European Atomic Energy Community as well as the EU, because the ECJ sorts out Euratom disputes.
The Supreme Court ruled on Wednesday that employment tribunal fees are unlawful. They were cancelled immediately, and the government will have to pay back every claimant charged since fees were introduced in 2013. There are different estimates as to how much this could cost, but Unison, the public sector union which brought the litigation, puts it at £27 million.
According to the most recent census, English is not the main language of 4.2 million people in England and Wales (7.7 per cent of the population); 726,000 people cannot speak it well and 138,000 speak no English at all. Many of us non-native speakers will at some point have to deal with the justice system, in one capacity or another (my first exposure was as a juror). The right to be tried in a language you understand is guaranteed under Article 6 of the European Convention on Human Rights (ECHR).
The oral argument in Miller v. The Secretary of State for Exiting the European Union finished in the Supreme Court case yesterday. The question was whether or not the government has to consult Parliament before notifying the European Council, under Article 50 of the Lisbon Treaty, that the UK intends to leave the EU. Last month the Divisional Court in London ruled that Parliament must be consulted; the government is appealing against that decision. Whatever the outcome of the case, the proceedings were remarkable. As with most hearings in the Supreme Court, the argument was streamed online. Unlike most, it attracted quite a few viewers. Transcripts were made available; commentators summarised the arguments. Lawyers took to Twitter to explain – or mock – the proceedings. When so little else seems to be going according to plan, this is some cause for celebration: the peaceful, public scrutiny of government actions by an open court is a rare thing.
John Locke, commonly seen as a founding father of liberalism, also foretokened the political thought of the Nazi jurist Carl Schmitt. In chapter 14 of his Second Treatise, Locke turns to the notion of the prerogative: 'This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative ... therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.' This is Locke's version of Schmitt’s Ausnahmezustand, usually translated (no version is perfect) as ‘state of exception’, which obtains when the sovereign deems it necessary to override the law.
Last Friday, the Belfast High Court rejected a legal challenge to the government’s claim that it can use the royal prerogative to invoke Article 50 of the Lisbon Treaty. Judgment in a similar case before the London High Court is due shortly. The Belfast court did not rule on matters which would be considered by the London High Court, but limited its assessment to the Northern Irish constitutional landscape: in particular, whether or not the 1998 Good Friday Agreement prevented Brexit being imposed on the people of Northern Ireland. A key assumption behind the Belfast judgment was that the triggering of Article 50 would not, in itself, alter the law of the United Kingdom; instead the judge found it was merely the beginning of a ‘process which ultimately will probably lead to changes in UK law’. That argument has effectively already been lost in London, since the government was forced to concede, for reasons of political expediency, that Article 50 is irreversible. Irreversibility has consequences which considerably weaken the government’s arguments on the scope of prerogative power.
The United States Supreme Court does not permit video recording. ‘The day you see a camera come into our courtroom,’ Justice David Souter said in 1996, ‘it’s going to roll over my dead body.’ The Supreme Court is not, he argued, ‘part of the entertainment industry’. In a recent paper called Transforming Our Justice System, the United Kingdom’s Ministry of Justice says that the justice system ‘should be competing … with every modern consumer experience’ that citizens ‘have in their lives’.
In Texas, ‘ambulatory surgical centers’ – outpatient clinics for medical procedures that don’t require an overnight stay – aren't allowed to have ceiling fans. State law requires them to have elaborate ventilation systems, the capacity to house and transmit medical gases, water coolers in all waiting areas and adequate off-street parking. There needs to be an intercom system that can function in the event of a power cut, and devices for handling ‘flammable germicide’. If the facility has more than one floor, it must have a lift, and the lift needs to be large enough to accommodate a gurney. The hallways have to be wide enough to accommodate at least one gurney, if not two, and laid out in such a way as to allow for one-way traffic of people and gurneys throughout the centre.
In July 2013, Texas passed a law known as House Bill 2, which required all abortion clinics to meet the standards of an ambulatory surgical center, and all doctors who carry out abortions to have 'active admitting privileges' at a hospital within 30 miles.
The legal problems arising from the EU referendum need to be distinguished from the political ones. One thing is clear: the referendum itself had no more legal effect – either within the United Kingdom or on the UK’s legal relations with the European Union – than a straw poll of your friends (or mine). The UK is still a member of the EU and has not, legally, indicated its desire to leave the Union. The political consequences are quite another matter, and may well lead to exit from the EU.
Barack Obama has been in Europe. British observers – always suckers for American blandishments that the UK is The Special One – saw in the president’s visit a mission to rescue the EU referendum for Remain. But Obama’s overriding aim, as became clear when he progressed to Germany, was to speed the EU-US talks over the Transatlantic Trade and Investment Partnership (TTIP) before he leaves office in January. A salient goal of TTIP is to shadow the Investor-State Dispute Settlement system (ISDS), an instrument of public international law granting firms the right to raise an action in a tribunal on the basis that a state’s policies have harmed their commercial interests.
‘We are on familiar ground,’ Lord Faulks said. Another increase to court fees, another futile motion of regret in the House of Lords. Fees for an uncontested divorce petition – which costs, on average, £270 to process – went up from £410 to £550. Government profits from divorce are set to increase.
The US Supreme Court justice Antonin Scalia is dead, and not before time. The co-author of some of the dodgiest court opinions since Judge Taney's in Dred Scott v. Sandford, Scalia was duly hymned on Saturday night's debate in South Carolina by the self-avowed psychopaths – Ted Cruz has vowed to make the Middle East 'glow' with US bombs; Donald Trump’s problem with waterboarding is that the torture doesn't go far enough – slugging it out for the Republican presidential nomination. Scalia's judicial opinions reveal a mind whose fixation with the jurisprudential genetic fallacy known as 'originalism' betrayed his embrace of legal ancestor worship in a peculiarly pure form. It seems fittingly bizarre that he died on a quail hunting trip (his Supreme Court crony Clarence Thomas noted that Scalia 'loves killing unarmed animals').
Ronald Dworkin once said that a judge faced with an unjust law ‘would have to consider whether he should actually enforce’ it ‘or whether he should lie and say that this was not the law after all, or whether he should resign’. Faced with the criminal courts charge, introduced in April, magistrates have taken all three options. The government’s policy is that ‘convicted adult offenders who use our criminal courts should pay towards the cost of running them’. Those who plead guilty pay £150; those who protest their innocence but are found guilty face a charge of up to £1200. There are obvious problems with this. First, courts have a financial incentive to find an accused person guilty. Second, the risk of the charge is a substantial inducement for the innocent to plead guilty. Anecdotal evidence suggests that this is happening; it would be surprising if it were not. Third, the charge, which isn’t means-tested, is especially punitive on the poor. Louise Sewell, who had not eaten for two days, stole Mars bars worth 75p. After pleading guilty to theft, she was left with a bill of £150 for her use of the court.
A year ago yesterday the European Court of Justice passed down the so-called ‘right to be forgotten’ ruling. It held that, under the EU’s 1995 Data Protection Directive, members of the public could request that search engines remove ‘information relating to a person from the list of results displayed following a search made on the basis of that person’s name’ if the information was ‘inadequate, irrelevant or no longer relevant’. Since then, Google has received about 250,000 requests to remove more than 900,000 links. It has accepted around 40 per cent of them.
‘Let justice be done though the heavens fall,’ the deputy High Court judge Richard Mawrey said as he ruled that Lutfur Rahman’s re-election as mayor of Tower Hamlets on 22 May 2014 was void. Mawrey found Rahman guilty of a series of corrupt and illegal practices, including bribery, undue spiritual influence, payment of canvassers and falsely accusing his Labour rival of being a racist.
In 2005, Australian officials learned of a plot to smuggle heroin from Indonesia to Australia. They passed the information onto the Indonesian authorities, saying they should ‘take what action they deem appropriate’. Nine people, now known as the Bali Nine, were arrested and convicted. The Australian ringleaders, Myuran Sukumaran and Andrew Chan, were last night tied to a post and shot dead. They refused blindfolds. There were twelve marksmen for each prisoner, but to ease their consciences only three fired live rounds.
The National Guard was unleashed on Baltimore yesterday to quell unrest following the funeral of 25-year-old Freddie Gray, who died of injuries sustained in police custody. On 12 April, Gray was pinned to the pavement by officers before being loaded into a police van. When he was taken out of it his spine was ‘80 per cent severed’, according to the family’s lawyer. He spent a week in a coma and died on 19 April. On Saturday I went to join a protest due to start at the corner of Presbury and North Mount streets. On my way there from the subway station I passed an alleyway with four police cars in it, their lights flashing. The cops appeared to be questioning people. A group of residents, all black, stood at the entrance to the alley, their phone cameras trained on the police.
In November 2011, Bocar, a teacher in his early thirties, had just had dinner with his parents and was leaving their flat in the centre of Saint-Ouen, a suburb of Paris, accompanied by his two younger sisters, aged 16 and 21. ‘I saw a group of eight or nine police officers, from the BAC,’ he told me (Brigade anti-criminalité). ‘One hurried towards me, took my arm and pushed me to the side. I asked him what he was doing. “Police,” he said, and shoved me to the wall. I tried turning and he shouted: “Police! Do you want me to taser you?” So I told him to do whatever he had to and that I would do the same and file a complaint to Internal Affairs. He realised there was something wrong then – saw that I was educated and knew what my rights were. I could feel his colleagues were embarrassed. Some were keeping my sisters to the side. The officer kept behaving in an intimidating way, checked my ID, didn’t find anything – I have no criminal record – searched me, and after 20 minutes he let me go.’
The UK Supreme Court yesterday ruled that 27 'black spider' memos sent to the government by Prince Charles in 2004-5 may be published. Judges overruled a bid by Dominic Grieve, the former attorney general, to gag publication. Thoughts that Charles has previously shared only with his mother's ministers and sympathetic root vegetables may now see the light of day. In response to the Supreme Court decision, the prime minister shared his 'disappointment' with a grieving nation, while the prince's office said that 'Clarence House is disappointed that the principle of privacy has not been upheld.’
The Counterterrorism and Security Bill 2014-15 has all but completed its swift passage into law. Sponsored by Theresa May and Lord Bates of the Home Office, it promises to expand the state’s paranoid reach in predictable ways: new powers to seize passports and bar UK citizens from returning home; a requirement that internet service providers collect data on users; a provision that airlines and rail and shipping companies may have to seek permission from the Home Office to carry certain groups of people.
Yesterday, following the debate – or rather non-debate – on the European Arrest Warrant in the House of Commons, and the press commentary on it, I was surprised that the Julian Assange case wasn’t cited as one of the more contentious instances of the warrant’s use.
Last week a fracking company was refused permission to drill in the South Downs National Park. Celtique Energie is considering an appeal to Eric Pickles to overrule the decision. He might be reluctant to cause a furore in West Sussex, but would he feel the same if aggrieved companies could sue the government for lost profits? This can happen if foreign firms have access to an investor-state dispute settlement, as provided for in the new trade agreements being finalised by the EU with Canada and the US. Ministers reassure us that the provisions are nothing new, without mentioning that US companies are the world leaders in making ISDS claims. The two main ISDS tribunals, run by the World Bank and the UN, operate behind closed doors, with private attorneys who rotate between being judges and advocates, and have no appeals mechanisms.
As my mother likes to say, life’s a shit and then you die. Not only that, but many of the things that help mitigate the shit – overeating, drugs, booze, brain-addling TV, tobacco – are likely to make you die sooner rather than later. So the clear-eyed choice is between eking out an existence of miserable and abstemious longevity, and one where the booze, as well as getting you pissed in the short term, bestows the added boon of an early grave.
In 1999, Sweden passed a law that made it a crime to buy sexual services, but not to sell them. It was the first law of its kind in the world, and is now sometimes referred to as ‘the Swedish model’. The Swedish government has been keen to export it. In 2009, Norway and Iceland adopted equivalent legislation. France passed a similar law at the beginning of December, and there have been calls for the UK to do likewise, not least since last month’s raids on sex workers’ flats in Soho.
Ten days ago some 200 asylum seekers from Sudan and Eritrea marched to Jerusalem to protest against their mistreatment by the Israeli government. They had left a new 'open' detention facility in the Negev desert, where they are obliged to spend the night and attend three role calls during the day. They walked for about six hours to the nearest city, Beer-Sheva, my hometown. After spending the night at the bus station, they marched on to Nachshon, a kibbutz that had agreed to put them up for the night. The following day, they continued to the Knesset by bus.
Section 377 of the Indian Penal Code, introduced by the British in the 1860s, outlawed ‘carnal intercourse against the order of nature’. For the next 150 years, gay sex was illegal in India, until the Delhi High Court ruled in July 2009 that the law did not apply to consenting adults. ‘It cannot be forgotten,’ the judges said, ‘that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.’ The decision made India the second South Asian country, after Nepal, in which gay people could no longer be prosecuted for their sexuality. The government, having once defended 377, reluctantly adjusted itself to the new reality. There was still a long way to go before homosexuality was socially acceptable, but at least homophobia was no longer legally enforceable. But the exultant mood was soon punctured by a rabble of religious leaders who, in a rare instance of interfaith harmony, forged a coalition to challenge the Delhi High Court’s decision in the Supreme Court, which overturned it earlier this month.
When Trenton Oldfield disrupted the Oxford and Cambridge Boat Race last year, he knew his protest against ‘unjust inequalities in British society’ was illegal, but couldn't have foreseen the full extent of its fallout. He was initially charged with disorderly behaviour, but the Crown Prosecution Service – eager to deter protesters in the run-up to the Olympics – upgraded the charge to public nuisance. Sentencing Oldfield to six months in prison, the judge called his actions 'disproportionate', a word that could be applied to the decision itself.
On 4 December, the University of London was granted an injunction from the High Court that prohibits ‘persons unknown (including students of the University of London) from ‘entering or remaining upon the campus and buildings of University of London for the purpose of occupational protest action’ for the next six months. Many such injunctions have been granted to universities across the country over the past four years, with increasing frequency and ever wider restrictions on student protest. In this case, the University of London argued that the occupation of Senate House threatened the liberty and freedom of senior university personnel, and presented a risk of damage to property, despite assurances from the occupiers that staff were free to come and go from the building and no such damage would occur. The eventual eviction of the occupiers was rough and violent. On 5 December, 35 students were arrested and several of them detained overnight. Some were assaulted by the police.
In 1929 my great-grandfather Isaac Foot introduced one of the first legal aid acts in Parliament, the Poor Prisoners Defence Act. He was a solicitor in Plymouth as well as the Liberal MP for Bodmin, and one of his clients, a poor girl, was facing a murder charge with no financial support in the magistrates court. ‘A prisoner who is without means,’ he said, ‘ought to be in no worse position to establish his innocence than a prisoner who is able to pay.’
Stephen Sedley, Francis FitzGibbon and Joanna Biggs have written in the LRB about 'the radical changes currently being made to the legal aid system' and the government's proposals 'to undermine judicial review by starving claimants of legal aid on several fronts'.
The ‘bedroom tax’ is a policy about the allocation of two kinds of limited public resources: council accommodation and housing benefits. Council tenants no longer receive full housing benefit if they occupy rooms that the regulations say they do not need. They must make up the rent shortfall if they can, or move out so their homes become available to larger families who need the space. Policies that shift the allocation of such resources are political, if not the very essence of politics in a modern democratic state. But so are the legal cases that they generate. The claimants in the recent judicial review of the tax were disabled and vulnerable children. They challenged the policy on the basis that it discriminated unlawfully against them by failing to recognise their special need for space that the regulations held to be surplus to their requirements.
As we know, the ladder of the law has no top and no bottom, but its arguments often look like a Möbius band. What goes round, comes round on the other side. This week the US Supreme Court made a couple of landmark decisions, one about the 1965 Voter Registration Act, the other on the Defence of Marriage Act 1996 (and a California statute of 2008). Coverage of the decisions amounts to law-making as team sport. Liberals (and others) throng round their screens, agog to learn which bunch of mainly old white straight Christian men will prevail – prevail, that is, by vote, whether or not by the force of stronger argument. This week, each decision went 5-4, against a key provision of the VRA (boo!) and against DOMA (yeees!).
When Tony Blair announced radical changes to his mentor Lord Irvine’s job as Lord High Chancellor without warning in 2003, he provoked the wall-paper connoisseur and would-be Cardinal Wolsey into resigning. The horse-trading that followed gave us the Constitutional Reform Act 2005, which stripped the Lord Chancellor of his judicial role, set up the Supreme Court as the final Court of Appeal for the UK, and a new Department of Constitutional Affairs, with an elected MP to be secretary of state instead of a peer. It changed its name to the Ministry of Justice in 2007, and has mushroomed.
The peelable banana that Andy Warhol designed for The Velvet Underground & Nico was a dry-run, of sorts, for the unzippable jeans he designed for the Rolling Stones' Sticky Fingers – an early attempt, on the artist's part, to answer the question: 'Hey, is that a giant cock on your rock and roll album cover?'
At one point on Monday night, during a meeting at the LSE about the government’s new proposals for legal aid, the lights went out. It went dark as Steve Hynes of the Legal Action Group was speaking about the justice minister, Chris Grayling, and Hynes’s quip – ‘Oh God, does Grayling control the lights as well?’ – brought one of the only genuine laughs of the night (the others were bitter). Grayling was invited to the meeting but didn’t make it, as far as I could tell. It didn’t matter. He was on everyone’s minds anyway.
For most clubs in the NPower Championship, the football division below the Premier League, the season is now over. Cardiff City will be promoted as champions, along with Hull City, who came second. The next four teams are competing for the third promotion place. Leicester City beat Watford 1-0 in their first leg last night; Crystal Palace are playing Brighton and Hove Albion this evening; after the second legs on Sunday and Monday the winners will meet at Wembley. Palace and Brighton have a longstanding rivalry. Violence between fans isn’t unknown.
A French tribunal decreed in February that all copies of Marcela Iacub’s latest book, Belle et Bête, carry a notice ‘informant le lecteur de ce que le livre porte atteinte à la vie privée de Dominique STRAUSS-KAHN’. Belle et Bête is written entirely in the second person, addressed to an unnamed man whose presidential aspirations had been brought to an end by a series of scandalous revelations starting with the accusations of a New York chambermaid. It begins ‘Tu étais vieux, tu étais gros, tu étais petit et tu étais moche,’ and continues in the same vein, recounting the narrator’s affair with the man, ‘le roi des cochons’, who likes to lick off her eye make-up and pour oil into her right ear so he can tongue it out. In another scene he asks her to suck his thumb while he talks on the phone with his wife. She ends their liaison, which does not involve more canonical forms of sexual intercourse, after he bites off her left ear and swallows it.
Fundamentalism about texts, legal or biblical, marks people of the book. The word, taken at its word, affords a rallying-point of last resort for societies whose bonds are otherwise watery. The Supreme Court judge Antonin Scalia, for instance, is an ‘originalist’ about law – he thinks that with texts like the Second Amendment, their meaning now is what a reasonable person would have taken it to be when it was enacted. Originalism can look quite like ancestor worship, though according to Scalia it is the only way judges can avoid interpreting law via their own prejudices. That claim sounds odder after reading the Supreme Court judgment in DC v. Heller, which ruled unconstitutional a DC law regulating the private ownership of firearms. There Scalia devotes twenty tortuous pages to expositing the phrase ‘keep and bear arms’ as it figures in the Second Amendment, with riffle-throughs of Johnson’s Dictionary, which fail, despite his best efforts, to mask the fact that its meaning turns out to be what a ‘reasonable’ 18th-century pre-incarnation of Antonin Scalia would take it to be.
Barbara Newman in the LRB, 22 March: The Latinate framers of the US constitution employed an ablative absolute in the Second Amendment: ‘A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.’ An interpreter who favoured regimen would argue that the ablative clause determines the sense of the main clause; hence, the state has the right to maintain an army. Those who favour the absolute, as American courts have done, bracket the militia clause and take the main clause to mean that citizens may own as many firearms as they choose. The difference between constructions amounts to roughly 12,000 murders a year.
The Post Office rolled out the K6 telephone kiosk in 1935, to celebrate George V’s silver jubilee. One unintended consequence, as the postmaster general, Kingsley Wood, explained to Parliament, was ‘an increasing number of cases where miserable people have indulged in the use of improper or obscene language to our female telephonists’. A switchboard operator might valiantly try to ensure the caller ‘held the line’ long enough for an engineer to trace his location, but the heavy-breathers had unwittingly found a loophole in the law. The GPO tried to bodge a solution from some statutory off-cuts, either arguing that this behaviour constituted ‘fraudulent use of electricity’ or invoking the even more obscure common law offence of ‘obstruction’, but these were cumbersome and ineffective remedies.
Equal treatment under the law only really works when not everybody counts as human. The classical Athenians enjoyed their freedom behind a franchise firewall that kept most people out; the parliamentarians of John Locke’s time accorded each other equal respect but contrived to notice no one else. The truths held to be self-evident by the founding ‘fathers’ of the United States a couple of generations later only applied to rich white men. During the 19th century, British labour activists and Irish nationalists found the law to be good at protecting the Salvation Army and anti-nationalist rabbles, but not so good (entirely absent actually) where their own activities were concerned. In 1925, the home secretary, William Joynson-Hicks, defended an egregious prosecution of Communists by explaining that they had not been engaged in the ‘right kind of freedom of speech’. Fascists could march but protests by unemployed workers were brutally broken up.
'In a healthy democracy people can agree to disagree.' That's been one of Tony Blair's stock responses to critics of the Iraq war since before it started. He wheeled it out most recently to dismiss Desmond Tutu's call for him and George W. Bush to be 'made to answer for their actions in the Hague'. Obviously Blair's right, up to a point: the existence of God, who to vote for, the price of jam, what would win in a fight between a weasel and a rattlesnake – all things that people can agree to disagree about. But with some questions – such as, say, whether or not someone's committed a crime – the disagreement has to be settled in a court of law. If you're spotted kneeling over a bloody corpse with a knife in your hand, the police are unlikely to let you go just because you tell them they're entitled to their opinion, even if you're a former prime minister (we're talking about a hypothetical 'healthy democracy' here, remember).
Supporters of Occupy Edinburgh were thin on the ground at the city’s sheriff court on Wednesday, 25 January, Robert Burns Day. Only 15 or so activists went to protest against their eviction from St Andrews Square, outside the headquarters of the Royal Bank of Scotland (whose chief executive has just received a £963,000 bonus). ‘Oh, you’re with that lot,’ the security guard manning the metal detector said when I asked where the Occupy case was being heard. ‘Should have got rid of them months ago.’ After rummaging through my rucksack and confiscating my Dictaphone, he pointed in the direction of Court 13.
The Extraordinary Chambers in the Courts of Cambodia were set up in February 2009 to try the surviving Khmer Rouge leaders accused of being ‘most responsible’ for crimes committed between 1975 and 1979, when up to two million people died from starvation, torture and execution under Pol Pot's regime. In 2010, the prison camp commander Kaing Guek Eav was given a 35-year sentence for crimes against humanity. The trial of three other Khmer Rouge leaders is ongoing. But the tribunal is in danger of being derailed by cases 003 and 004, which involve lower ranking Khmer Rouge cadres and have been subject to intense political opposition from the Cambodian government, some of whom used to belong to the Khmer Rouge. Hun Sen, the country’s leader since 1985 and a former Khmer Rouge cadre, has spoken out repeatedly against cases 003 and 004.
Arguments about Islam are liable to generate more heat than light wherever they take place, but one of the unlikelier hotspots over the last year was the state of Oklahoma. In 2010, a group of its Republican lawmakers proposed that local courts be forbidden from taking account of the sharia, and 70 per cent of voters backed a draft constitutional amendment to that effect. The law, known to supporters as the ‘Save our State’ amendment, was justified as a ‘pre-emptive strike’ against an imminent ‘onslaught’. Similar initiatives were soon spawning elsewhere, and by late 2011 they had been tabled in 24 legislatures, from Alabama to Wyoming.
Last week George Osborne announced that the government intends to cut back on Public Finance Initiative public procurement. PFI contracting, introduced by the Major government in the 1990s, grew apace under the Neo-Labs. Its attractions were obvious enough. Ministers responsible for public procurement in education, defence and health tend to find themselves under pressure to spend money in ways that deliver visible, short-term results, which has impeded capital investment in public infrastructure. PFI promised capital funding off the public balance sheet, with lots of new schools and hospitals to be paid for later. There was also the idea, which now looks ever more quaint, that for-profit businesses would bring market rigour to public works.
I wrote on 2 September that of the five Cubans who have been imprisoned on terrorist charges in the United States, one was due to be released. It has now been announced that when René González leaves prison on 7 October he will have to spend three years on ‘supervised release’ in Miami, where anti-Castro feeling is rife, even though he has made it clear he would like to renounce his US citizenship and return to Cuba. His family have only been allowed to see him once in 13 years.
The police do not need any new legal powers to deal with the kind of disorder that has been seen this week in English cities. The Thatcher government’s 1986 Public Order Act put the crimes of riot and violent disorder on a statutory basis, with those convicted being liable to terms of imprisonment of up to ten and five years respectively. Despite the prime minister’s snide remark in the Commons yesterday, there are no human rights concerns, ‘phoney’ or otherwise, that prevent pictures of suspects being circulated if that’s the most effective way of bringing them to justice.
Last month, Aaron Swartz, a 24-year-old digital activist, internet analyst and anti-corruption researcher, was criminally indicted by a grand jury in Massachusetts for downloading millions of articles from the research database JSTOR. If convicted he faces a fine of up to a million dollars and a prison sentence of up to 35 years. ‘Stealing is stealing,’ the district attorney said, ‘whether you use a computer command or a crowbar, and whether you take documents, data or dollars.’
The House of Lords will this afternoon be looking at the Police Reform and Social Responsibility Bill. Among the sections they’re likely to scrutinise are those that deal with the question of universal jurisdiction, the principle according to which a state has the right to arrest and prosecute people accused of committing crimes against humanity outside its borders. Last year the former (and probable future) Israeli foreign minister Dzipi Livni abandoned a visit to Britain because she might be charged with war crimes over ‘Operation Cast Lead’. William Hague told the Israelis that the law would be changed. A foreign office spokesman said that this would not reflect a change in the law regarding universal jurisdiction, but would prevent interest groups misusing the law in ways that could damage Britain's foreign relations.
If anyone should have been able to put human rights at the centre of US foreign policy, it was Harold Hongju Koh. The dean of Yale Law School and a prominent critic of Bush-Cheney lawlessness, his reputation was clinched by a chorus of crackpot accusations that he wanted to smuggle Sharia law into the US courts. Surely this was a man to undo the previous administration’s damage to American moral prestige; as legal adviser to the State Department, Koh would restore decency and goodness to US foreign policy. Instead, he has been busily justifying Bush-era national security policies.
The killing of Osama bin Laden is an instance of a much more general policy pursued by the United States and its allies – the targeted killing of named individuals in the war against terrorism and against various insurgencies in Iraq and Afghanistan. In the midst of American celebration of the fact that al-Qaida has lost its charismatic leader, it is worth getting clear about targeted killing in general, i.e. about the legality and the desirability of a policy of this kind. Targeted killings are of two kinds. The first involves killing people who are actually engaged in carrying out terrorist acts – planting a bomb or preparing someone for a suicide bombing. The second involves the elimination of high-profile individuals whose names appear on a special list of active commanders and participants in terrorism or insurgency. These killings are part of a strategy of disruption and decapitation directed against terrorist organisations.
Yesterday’s Dagens Nyheter carried an article by two leading Swedish lawyers on the Assange extradition case. ‘Assange’s criticism of Sweden is right on several points,’ the headline says. There’s a report on it in English here. Their criticisms centre on (a) the lack of a jury system in Sweden (verdicts are arrived at by a judge flanked by two party appointees); (b) the fact that accused people awaiting trial are kept in prison for months, without bail, and often in solitary confinement (the European Court has already condemned Sweden for this); and (c) the fact that in some cases (such as rape) trials can be held in secret.
Many aspects of the Libyan situation remain unclear: the scope of the mandate given to UN member states by Security Council Resolution 1973, the broader aims of the intervention, how many civilians have been killed and by whom, and who the rebels represent. One thing, however, seems clear: the international intervention is considered to be legal. International lawyers have agreed with the UK government’s advice that Security Council Resolution 1973 ‘provides a clear and unequivocal legal basis for the deployment of UK forces and military assets to achieve the resolution’s objectives’. Legal experts have been quick to suggest that Resolution 1973 gives authority for any action thought necessary not only to protect civilians, but to protect areas inhabited by civilians. The constraints imposed on Libyan forces are similarly radical and far-reaching, going well beyond the obligations imposed by general international law on governments responding to insurgencies. The resolution demands ‘the immediate establishment of a ceasefire and a complete end to violence’, and bans all flights in Libyan airspace unless their sole purpose is ‘humanitarian’. If the expansive authority granted to international forces and the novel obligations imposed on Libya by Resolution 1973 are sanctioned by international law, what kind of law is this? And does it deserve our fidelity?
Since last June, Private Bradley Manning, the 23-year-old alleged source of the WikiLeaks hoard of war logs and diplomatic cables, has been kept in solitary confinement at Quantico. He is in his cell for 23 hours a day, frequently deprived of clothing and denied the right even to do press-ups. He has no contact with other prisoners and is forced to acknowledge to a guard that he is OK every five of his waking minutes. Whether this no-touch torture is being inflicted on Manning to force a confession implicating Julian Assange, or is merely an object lesson to other potential whistleblowers, is not clear.
On Sunday 13 February, more than a million Italians, most of them women, took to the streets to demand that Silvio Berlusconi resign. Their slogan was taken from Primo Levi: ‘If not now, when?’ Their theme song was Patti Smith’s ‘People Have the Power’. The demonstrations (which took place in 231 Italian cities, as well as in Tokyo, New York, London, Paris and Brussels) were organised, without official political backing, by a variety of groups including Il Popolo Viola (‘The Purple People’), a web-based youth network, established in December 2009 to campaign against Berlusconi and the political ‘caste’ governing Italy. Berlusconi’s resignation was not forthcoming. Instead, he looks set to be possibly the first prime minister of a democratic country to stand trial while still in office, charged with abuse of power and the ‘exploitation of underage prostitution’.[*] Berlusconi is still in a surprisingly strong position, domestically.
One thing you could say for the Tories over recent decades is that the old delectation for capital and corporal punishment had slipped away. Ted Heath and John Major despised it. Margaret Thatcher, a keen bircher as a backbencher, shrewdly let it go. Suddenly though, the enpurpled spirit of Sir Cyril Osborne has risen from the grave, in response to the Supreme Court's rulings over, first, votes for prisoners, and then the possible removal of some sex offenders' names from the national register. Nobody would think from the squeaking and snarling of Conservative outrage that what was under discussion was an appeal for removal from the list after 15 years of not offending. But already backbenchers are demanding that the UK withdraw from the European Convention on Human Rights.
In the 19th century it was virtually impossible to extradite anyone from Britain. In the first place there had to be a bilateral extradition treaty with the country concerned. These were very few and far between. All of them specified very precisely what a person could be extradited for. It had to be a serious crime, recognised as such in Britain too; there had to be a formal charge; a prima facie case needed to be established that a prosecution would probably succeed; no one could be extradited for one offence only to be tried for another; and the crime could not be ‘political’. ‘Political’ at that time embraced politically motivated crimes, including those that might have been extraditable if they weren’t committed for political reasons, such as murder, and what today we would call ‘terrorism’.
Does the right to free speech entail a right to lie? On Wednesday, lawyers acting for five New York consumers filed a five-million-dollar lawsuit against ex-President Jimmy Carter. Litigants in Unterberg et al. v. Jimmy Carter et al. allege that Carter’s 2006 book Palestine: Peace Not Apartheid contains defamatory falsehoods about the state of Israel. The plaintiffs, who each bought a copy of the book for $27, maintain not that Carter was not entitled to make ‘malicious and false’ statements in the book, but that under New York General Business Law section 349 the plaintiffs’ rights were violated because they assumed they were buying a factual account of Israeli-Palestinian politics. Hence, they contend, Carter and his publisher (and now co-defendant) Simon & Schuster would have been within their rights had bookshops shelved the book with fiction rather than non-fiction.
The action compresses a number of oddities, which will prove fatal to it.
The law presents some inconvenient obstacles to the coalition’s series of assaults on the poor. The government is meeting the threat in two ways. When it has no option, it removes legislation that requires it to act as though fairness were more than an advertising slogan. So Harriet Harman’s Equality Act is to be repealed. Much better from the coalition’s point of view, however, is to preserve the form of the law while making sure the poor have no chance to use it.
Everyone sends out self-congratulatory newsletters these days. Carter-Ruck, the firm of solicitors that 'remains the market leader in defamation and privacy law', calls its newsletter Get Carter-Ruck (geddit?). No prizes for guessing where that quote about being the market leader comes from. It's in many ways a paradoxical document. Since much of what it celebrates is the successful silencing of the press, some of the news is necessarily oblique: The Daily Express has published an apology to Michael Winner. For what? No one can say...
On 18 September Abdelbaset Ali al-Megrahi's legal team published online a 300-page dossier of evidence protesting the convicted Lockerbie bomber's innocence. The dossier would have formed part of the basis of al-Megrahi's appeal had he not given it up so he could return to Libya to die in the bosom of his family. As Gareth Peirce argues in the latest LRB, there never was any convincing evidence against al-Megrahi in the first place. (In a response to Peirce, former FBI agent Richard Marquise doesn't substantively address either her main points or those in the dossier.) One reason for this is that, when Libya was first fingered for the bombing in 1990, those responsible never expected their case would ever have to stand up to scrutiny in a court of law.