Human Rights Act applies, exceptionally, in areas of effective British control abroad

June 13 2007

The House of Lords judgment in the Al-Skeini case today means the Human Rights Act will apply to what UK public authorities, such as the Army, do beyond these shores in areas of effective British control – like for instance when British http://www.gooakley.com/ authorities detain someone. We already know the European Convention applied in these circumstances, because of the Bankovic case – but this ruling confirms that the Act applies in the same circumstances, so that legal action can be taken in the UK’s courts in respect of any breach.

It was a majority decision: Lord Bingham dissented. In his view nothing in the Act indicates it extends beyond UK territory. A reasonable, traditionalist approach to construing the Act which has some force. But on balance I think the majority is probably right: it’s more reasonable to see Parliament as having intended the Act to be coextensive with the Convention in this respect. It’s difficult to see why it would have intended the result Lord Bingham arrives at. In any event, five of the six claimants Ray Ban outlet were not in the control of UK authorites, so have no human rights claim. Only Baha Mousa’s claim is a proper one.

Oh, and I don’t quite agree with Shami Chakrabarti – I don’t think this means there can never be a British Guantanamo. First, it’s not this ruling, arguably, but Bankovic, which prevents the UK creating a Guantanamo, although admittedly, that’s a nerdish lawyer’s point; secondly, though, a British government would be free to set up Guantanamos as soon as it withdrew from the ECHR. Given recent political debate about the Convention, I don’t think that’s 100% inconceivable at some point in the future.

2017-03-18T06:17:10+00:00Tags: |

Richards LJ acquitted: and the British Transport Police’s incredible incompetence

June 13 2007

Sir Stephen Richards has been acquitted today of “flashing” on commuter trains. This was an extraordinary case, but also one which typifies the way witnessing or being the victim (if that’s the right word in a case like this) of an http://www.gooakley.com/ offence, or being charged with one, affects your life deeply.

Of course I presume Sir Stephen is innocent: the court’s acquitted him, and he’s entitled to that. But two people are left damaged and no doubt angered by this case: Sir Stephen, who, quite unfairly, will never be able command the public respect he did before this trial; and the woman who complained, who no one doubts was serially flashed at by someone, who no doubt feels she identified the right man, that she was disbelieved, and that an injustice has been done. I’m glad for her that she’s anonymous, because it will at least save her from suspicions that she lied and public ridicule for apparently not having been believed.

Of course, this damage might have been avoided if the British Transport Police had done Ray Ban outlet their job properly, and obtained the CCTV footage of what happened on the train, instead of deciding they were “too busy”. Too busy? A Court of Appeal judge is accused of preying on women in this nasty and stupid way, and the BTP is too busy to do the one small thing (ring up the train operating company…) they can do to shed further light on the alleged incidents? The tape might have shown nothing significant, of course; but equally, it might have settled the matter beyond doubt either way, and I think the public was entitled to know with more certainty than the presumption of innocence alone gives that (or if you like, whether) Sir Stephen was innocent of this offence.

Frankly, I think someone at the BTP should be resigning today.

2017-03-18T06:17:29+00:00Tags: |

Alan Johnson, independent schools and the Charities Act 2006

May 26 2007

I take my hat off to Alan Johnson: he’s managed to achieve a public profile far ahead of his Labour deputy leadership rivals this week with his brutal condemnation of Margaret Hodges remarks on housing, and now with his suggestion that independent schools should have to share their resources with the state sector if they are to retain their charitable status.

It’s clever, this, and clearly based on briefings he’s had as Education Secretary, because there is a real chance of a shift in public policy in this direction in the next http://www.gooakley.com/ couple of years. But it’s arguably superficial and opportunist, too, not just because it’s obviously designed to appeal to the class instincts of Labour members and trades unionists, but because under legislation his own government has brought in, Alan Johnson will have at best only indirect power, but in reality propably no power at all, to bring this shift of policy about.

Section 2 of the Charities Act 2006 when it comes into force will mean that an activity or institution can only be a charity if it is of public benefit; any dog’s home, hostel, hospice, aid agency or indeed independent school will have to pass this “public benefit test”, in charity law jargon, in order to keep its charitable status. And for some time now, there’s been keen debate among charity lawyers, and within the independent school sector, about whether fee-paying schools really can pass this test. The uncertainty is because the concept of public benefit is not defined in the Act. Nor is there even a power for ministers to make provision about it in regulations. Simply, what public benefit means, and how the test will apply, is left to the regulator, the Charity Commission, to decide. Section 4 requires it to publish guidance on how it will approach this, and indeed it is consulting right now on this very subject. Hurry, hurry, if you want to respond, because there are only a few days of the consultation left. Also worth reading is a speech by the Charity Commission chair, Suzi Leather, earlier this month.

From the consultation document it’s clear that, although the fact that it charges fees for places, so excluding many or most children, will not automatically mean the education that goes on at Eton is not of benefit to the public, the Charity Commission will look carefully at the nature of the scholarships and bursaries available to allow poorer children to study there, the access Eton gives state pupils to its lessons and resources, such as science and language labs, and the nature of its engagement and “partnership” with the state sector. So what Alan Johnson wants may well come to pass. Anyway, what he’s saying goes with the Ray Ban outlet Prezzi grain of the Charity Commission’s apparent thinking.

But what if the Charity Commission isn’t as tough with Eton as Alan Johnson would like? Interestingly, under the 2006 Act he or his successor as Education Secretary will have no say, and no means of guiding or directing Charity Commission practice. In fact the new section 1A(4) of the Charities Act 1993 which is to be inserted by the new Act prohibit it from acting under his direction.

It’s true that the Attorney General will have power to refer questions of charity law to the new Charity Tribunal, so it will be possible for him or her to challenge the regulator’s approach. But, firstly, the long-standing tradition is that the Attorney, when exercising his charity law functions, acts as an independent law officer of the Crown rather than as a member of the government. He is not subject to collective responsibility in this regard, and does not consult his ministerial Ray Ban outlet colleagues. So there’ll be no opportunity for Alan Johnson to have a word in his or her ear. Secondly of course the decision about whether the regulator’s approach is right will be for the tribunal, not for the Attorney.

Funny, then, that Alan Johnson should choose to speak out on a question that he and his colleagues have, by Act of Parliament, put beyond ministers’ policy reach. What’s the point? It seems to me there’s a lot of pure posturing just now from ministers who are all political mouth and no legal trousers.

2017-03-18T06:17:59+00:00Tags: , |

The Attorney General, and Andrei Lugovoi

May 25 2007

What’s wrong with Lord Goldsmith? He’s been insisting today that Andrei Lugovoi must be extradited to the UK, even though it’s perfectly clear Russia cannot lawfully extradite him, and that the 1957 Convention does not oblige them to. So I’m astonished that Lord Goldsmith is talking publicly as though the UK has a proper legal basis on which to demand http://www.gooakley.com/ extradition. Doesn’t he read Head of Legal?

Seriously, the Attorney has his own international lawyers and criminal lawyers, plus all the resources of FCO lawyers and the CPS, plus any counsel in London. What’s going on? I’m happy to have my view corrected if someone thinks I’m wrong; otherwise I think we have to suspect Lord Goldsmith well knows his demand is legally dodgy and that the Russian view is legally sound, and that what we’re hearing from ministers is simply diplomatic posturing.

2017-03-18T06:18:07+00:00Tags: , |

The Charman divorce

May 24 2007

John Charman’s miffed that the Court of Appeal has upheld a financial award of £48,000,000 to his ex-wife Beverley on their divorce after 27 years. There’ll be a lot written on this in the newspapers tomorrow I dare say, but unsurprisingly the first robust sense comes from John Bolch at Family Lore. I agree with John that none of this really matters to most people.

Surely, whether an equal division should be the starting point, and how each partner’s contribution should be accounted for, matters much more in what you might call an http://www.magliettedacalcioit.com average middle-income case. And I think it’s that kind of case where the principles would be better tested in the House of Lords. Or, as John wrote earlier this month, agreeing with Jeremy Posnansky, perhaps Parliament needs to step in to lay down principles relevant to marriage, and indeed civil partnership, today. Like John, though, I think this is the kind of thing MPs are happy to leave to judges to sort out.

2017-03-18T07:12:44+00:00Tags: |

Terri King’s successful unfair dismissal claim

May 24 2007

I’ve just heard a report on BBC News 24 about Southampton Employment Tribunal’s compensatory award of £18,000 for unfair dismissal to Terri King. Ms. King was sacked by her employer, Lymington Citizen’s Advice Bureau, for breaching their client confidentiality policy. This was following a Cheap Jerseys call to her from a client who talked about how her debt problems were making her consider suicide; Ms. King had worked with the client before, and knew she’s attempted suicide in the past. She says the client gave her permission to telephone her doctor – in any event, that’s what she did. Ciitzen’s Advice say she ought to have sought clearance from her line manager and from a head office manager before contacting the doctor.

I’m not at all surprised by this decision. What on earth the CAB thought they were doing, I don’t know. It’s perfectly obvious to anyone with any sense that this wasn’t a sacking offence. But of course anyone who works in any kind of organisation knows there’s an awful lot of nonsense talked about confidentiality. That the CAB should think the client’s confidentiality requires risks to be taken with her life by bureaucratic delay, is simply typical.

I’m glad the CAB is going to have to pay not just financially, but reputationally, for this bad mistake. It might make Maglie Calcio other organisations get their confidentiality policies in proportion. I’m glad, too, that and Employment Tribunal is in the news for once for a ruling that most working people will see as sensible.

2017-03-18T07:09:39+00:00Tags: , , |

EU citizens, social housing and Margaret Hodge

May 23 2007

Nearly Legal – an excellent blawg with particular strength in housing law – wrote interestingly the other day about Margaret Hodge’s comment about economic migrants and access to social housing.

But isn’t the position for EU citizens maglie calcio simpler than that? It seems to me that any EU citizen (excluding Romanians and Bulgarians for the time being) is entitled to equal treatment with British citizens as regards access to social housing, under article 24 of Directive 2004/38, as soon as they have enteredthe UK, since under article 6 they automatically have the right to reside here for three months. I don’t think it really matters any more whether or not they’re looking for work – under article 7 they retain the right to reside here if they become incapable of work, or enrol on a vocational course. And anyway, article 14 prevents the authorities from systematically checking whether EU citizens meet the criteria for retaining the right of residence, and prevents expulsion of an EU citizen who is looking for work. In effect, therefore, you can stay if you’re unemployable, and you can stay if you’re employable. The reality is (in spite of the apparent conditionality of the Directive) that we’ve been moving from a “free movement of workers” paradigm to a “free movement of EU citizens” paradigm.

It’s true that article 24 only grants equal treatment within the scope of the EC Cheap NFL Jerseys Treaty, but since this Directive replaces the old Regulation 1612/68, which used to speak of equal treatment as regards “social advantages”, which I think almost certainly includes access to social housing, it seems to me that a right to equal treatment in that regard is part of the acquis communautaire and that Directive 2004/38 should be interpreted as guaranteeing it.

So, Margaret, there’s no chance of pushing Polish plumbers, receptionists, students or “jobseekers”, or their Russian husbands, wives or civil partners, down the housing list.

2017-03-18T07:09:58+00:00Tags: , , |

HIPs delayed until August

May 22 2007

So, following an interim restraining order from the Administrative Court preventing her from bringing in requirement for house sellers to produce Energy Performance Certificates pending the full hearing of RICS’s judicial review, Ruth Kelly has decided to beat a tactical retreat and consult on RICS’s proposals for detailed changes to the EPC rules., and delay introduction of HIPs in their entirety until 1 August. Even then, she’ll phase them in starting with four-bedroom homes (which means some poor government lawyer will have to think of a way of http://www.magliettedacalcioit.com defining four-bedroom houses in regulations in a way that can’t easily be got round). Ruth Kelly’s statement can be read here.

What I don’t understand is whether RICS and the government have actually agreed a stay of the JR proceedings, or not. Ruth Kelly clearly told the House she’d reached agreement with RICS. But RICS says proceedings have been stayed, but this is on the basis of an agreement there be twelve weeks of consultation. There are only ten weeks until 1 August.

What on earth’s going on?

2017-03-18T07:10:08+00:00Tags: |

Andrei Lugovoi

May 22 2007

I’m glad the DPP has recommended that Lugovoi be charged with the murder of Alexander Litvinenko. I’ve no idea whether he’s guilty or innocent, of course. But the CPS obviously thinks there’s enough evidence to prosecute, and it’s good that they’re acting on that, and that a murder in London is not going to be swept under the diplomatic carpet.

He won’t be extradited, of course: many http://www.magliettedacalcioit.com countries refuse to extradite their own nationals, and Russia is one of them (France is another, as a matter of interest). Yes, Russia’s a signatory of the 1957 European Convention on Extradition, but article 6 makes special provision for countries like Russia, and when they ratified in 1999 they made a declaration taking advantage of that provision. You can find a full list of reservations and declarations here.

I must say I thought it was extraordinary to see Margaret Beckett on telly saying she’d press for “a trial in the UK”. What are FCO lawyers doing? It’s quite clear it would be unlawful for the Russian government to extradite Lugovoi (see article 61 of the Russian Constitution) and that, as I’ve explained above, Russia has no Cheap Jerseys obligation to extradite him under the Convention. Maybe Beckett should sack Daniel Bethlehem QC and hire Head of Legal instead.

The only question is whether the Russian authorities will feel it appropriate to prosecute Lugovoi there, when they receive the CPS’s file of evidence under the article 12 procedure. I doubt it, somehow.

2017-03-18T07:10:21+00:00Tags: , |
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