Archive for January, 2010

Breaking What Law?

January 27th, 2010

If you murder someone, then wander into a police station and give a full confession of what you have done, you have broken the law.  Statutes says what murder is, that you shouldn’t do it and if you do, you are going to prison for life.

There is not a statute about war.  No checklist or procedure exists to decide how to make a war legal (academics will be waving their UN Charters’ around at this point, please stay with me, I am simplifying to prove a point) because there is not an international law statute book that we can check to find out.  International law has more in common with a darts club than criminal law.  The members of the club think of the rules, keep to the rules, interpret what the rules mean and decide what to do if a member breaks the rules.  Problems arise when the members disagree about what the rules mean, but no-one outside the darts club can help them interpret their own rules.   The same group of people who have the standing in law to make a credible declaration that the second Iraq was (il)legal could also be prompted to writing a doctoral thesis about whether international law exists at all.

Then there are lawyers.  Most professions find an answer.  Two competent doctors cannot simultaneously find the same patient to be perfectly healthy and sick.  However, two competent lawyers each make a living by going before a judge and arguing that the claimant is right or wrong, and the judge agrees with one or the other.  In law school, you learn to remove an emotional response to a situation and find a way to argue the law fits your presentation of the facts which is favourable to your client.  The Chilcot Enquiry today heard that a raft of foreign office lawyers came to one opinion, and Jack Straw (the foreign secretary at the time and a barrister before entering politics) came to another.  The media are determined to spin this into some sort of absolute right or wrong answer, but it simply does not exist.  In a year of studying international law I’ve read stacks of opinions and could quite contently make a case for or against the war depending on what you would like to hear, but no judge, lawyer or head of state can say I or Jack Straw is wrong with any certainty.

With hindsight, I doubt Tony Blair, Jack Straw or maybe even President Bush, if they could foresee the ending, would have been so eager for the beginning.  I wonder, in Britain, if Blair and Straw’s  legal training was a factor.  Where anyone else would have heard a team of lawyers say “no” and stopped, did Straw and Blair think “well, that’s one argument, but we have a better one”?  If Saddam Hussein’s palace had been stacked to the gills with long range biological weapons they would have been hailed as brave visionaries overruling the cautious government lawyers to protect their citizens.  As it turns out, it’s the government lawyers that get vindication.  There has also discussion of the idea that the FCO lawyers are specialists and Jack Straw was some over-promoted ambulance chaser.  This is nonsense, as illustrated by the darts club analogy.  Jack Straw and Tony Blair, as Foreign Secretary and Prime Minister, joined an elite club of international law makers and in that role, like leaders from Churchill back to Caesar, they are empowered to quite literally make international law up as they go along.

UPDATE: I thought I was being novel and thought-provoking by posting the above.  It seems Jack of Kent beat me to it by three hours – at least someone might agree with me.

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Daily Little Law Links

January 20th, 2010
  • An amusing employment hearing which goes to the heart of the legal profession (as the saying goes, the way to lawyer’s heart is through his claret… or something like that) is reported in The Telegraph today.  Do check with Charon QC for his incentive to those who are able to provide more details.  It really is no surprise; Middle Temple has a long history with “pirates” (as my Spanish friends insist on calling our honourable Mr. Drake)  – just look at where they got their cupboard.
  • Mr Hussain was not, contrary to some media reports, given a judicial seal of approval for his vigilantism today, as the appeal was dismissed yesterday.  He did have his custodial sentence suspended, allowing the media to claim that he was “set free”, which seems to miss the point.  Now everyone will be wanting to beat their burglars into mental wards… On the other hand, I suppose “mercy” may have been deserved as he did find a less monotonous use for a cricket bat than is the norm.

  • Congratulations to Big Brother Watch, who officially had their launch campaign this week.  This group is certainly one to watch for some of the research they provide links to.  I especially enjoyed the shocking evidence that body-scanners may not be perfect solution to airborne terrorism.
  • UPDATE:  I couldn’t let this pass, clearly The Telegraph’s law correspondents are on fire today.  Do read the full article, he was not really sent to prison for licking a chicken.

Finally, a brief apology for the quiet week, but blogging is very public admission that I am not revising for a Trusts exam.  Please return next week when normal service will resume and I will explain why placing cameras in courts is terrible idea, and nuclear weapons are good for international law (or at least my dissertation says so). Now off to re-read Vandervell…

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ECHR Puts a Stop to Police Stop & Search

January 12th, 2010

I am supposed to be writing a dissertation, but I will take a short break to perform a small dance of thanks and appreciation to the European Court of Human Rights.
Today the court ruled in Gillian & Quinton v. The United Kingdom that ss.44-47 of the Terrorism Act 2000 (the part that allows Police to detain and search individuals in the absence of the suspicion they have behaved or are about to behave unlawfully) was incompatible with Art. 8, which states:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

This is excellent. Of course, as with our home-grown version of house arrest, the government may simply ignore the ruling, but surely there is far less scope to do that here.

Sadly, although the court found in favour of the Art. 8 arguments put by the claimants, they did not consider the argument made in respect of Art. 10:

“The applicants further alleged that their rights to freedom of expression under Article 10, and freedom of assembly under Article 11, of the Convention were violated. It was argued that a stop and search which had the effect of delaying, even temporarily, contemporaneous reporting or filming of a protest amounted to an interference with Article 10 rights”

See the full judgement here and a hat-tip to Charon QC for saving me the effort of searching for it. Watch for a further analysis by him in the future.

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A Fair Vote

January 11th, 2010

I try to keep this blog vaguely non-partisan, so please forgive the source for a mainly political story, but it is also relevant to constitutional law.

“Let’s start with a simple comparison.  Imagine that at the coming election we win 40% of the vote, Labour 30%, the Liberals 18% and others 12% [The results in the overnight ICM poll].  All else being equal, we’d have a Commons majority of eight.

Now reverse those first two figures.  Imagine that Labour gain 40%, we take 30%, and the other two figures stay the same.  Labour would have a majority of 138 – an 130 seat difference on the same share of the vote, according to UK Polling Report.”

– From http://conservativehome.blogs.com/thetorydiary/2010/01/fairseats.html

Interestingly, this is written by a Conservative supporter.  It has to be observed that the Conservatives were far less interested in electoral reform pre-1997, presumably because back then the Conservatives would have struggled to form a coalition Government, whereas Labour and the Liberal Democrats were more obvious bedfellows.  Indeed, even this article expressly avoids the voting system and instead addresses seat reduction and boundary changes.  Also interesting was:

“Ed Balls’ failed attempt to stop the Boundary Commission’s changes to his seat, which went all the way to judicial review.”

When I studied constitutional law, I was never quite persuaded by The Electoral Reform Society’s case for a single transferable vote system, instead I preferred Alternative Vote Plus, with my own variation that the “plus” should fill the Lords rather than add to the Commons.

Do have a click around the ERS’s website, it is a great resource of non-partisan discussion about voting system.  Whichever system you prefer, the quote above surely is the only argument needed to show that there is very little democratic spirit in the current First-Past-The-Post system.

PS – No whining about AV being difficult to count unless you have actually counted one by hand… as I have. Yes, it did take while…

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Why Flying is Like My School

January 5th, 2010

I went to an average state comprehensive school.  When the teachers really got to the end of their rope there would be group punishment.  I vividly remember being kept late one Friday because a classmate had stolen the keys to my (recently qualified) geography teacher’s car.  This presented quite a problem for her getting home, and so we were all kept back until the culprit confessed or was given up by the class.

As the minutes ticked by, the injustice of the situation really made me angry.  I’d spent the lesson working and so had missed which of the four class clowns was responsible this time.  The tension built and the anger became quite a palpable shared experience.  It wasn’t directed at the culprit but at the teacher for what was seen as a large and unfair abuse of power.  All most of us had done was work diligently for an hour and we were now being punished because we could not rat out the baddie within our ranks.  I suppose the idea was that the culprit would ultimately be overcome by the guilt of inconveniencing his classmates and confess.  It never worked.

This is how I am beginning to feel about air travel.  I loved travelling when I was younger, especially the variety and potential of airports.   I still find something very exciting about the idea that you can go into these huge buildings with some money and a passport and in a matter of hours you can be almost anywhere else in the world.  Travel writers have nominated budget airlines as bearing responsibility for sapping the glamour from air travel, but I disagree.  Ryanair in particular facilitated a lot of my exploration of Europe in my late teens, disappearing over long weekends to Eastern Europe with a tent and a wallet full of dollars.  I was never really fixated on the flight, just the departing and arriving.  I think this greater airborne mobility is a good thing, even if we have lost the free in-flight bar, as it gets us to new places and exploring new cultures.

Image of Stansted Airport

Airport security after the attempted liquid bombings has tested my patience over the last few years.  I remember a mad dash back though a terminal after I had stupidly wrapped a very well sealed bottle of cognac in a carry-on bag (though many thanks to Spanish security who understood why the plane would go without me before I left it behind).  I hate queuing for things, I hate my stuff being pawed by strangers and since school, I have always hated being made to feel guilty by association or punished because of the actions of others.  Yes, air travel should be safe, but it should also be reasonably convenient, or I will set my travel ambitions closer to home, and businesses will (finally) properly implement the sort of IT systems that makes travel redundant as they cannot afford to have their employees lose half a day to airport security.

Rob’s Blog has another valid perspective, and he is quite right – these scanners were tested and side-lined because public reaction was so negative just a few months ago.  They won’t be any less oppressive three weeks from now.

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