Friday, 30 July 2010
Tuesday, 27 July 2010
ROYAL PREROGATIVE TO BE CURTAILED
I have been complaining about the lack of Bills issuing forth from the Coalition after the Queen's Speech.
Well one momentous Bill has now been published.
The Coalition does not want to be destabilised by a vote of no confidence in the Commons. The Queen and hence the PM has hitherto had an unfettered power to dissolve Parliament. The only limit was Septennial Act 1715 which despite its title and after amendment in 1911 requires Parliaments to end after 5 years. The Queen's powers are confirmed by section 7 Succession to the Crown Act 1707:
The Govt is rightly concerned that it would be easy for a simple majority of MPs (disaffected Lib Dems and Tories voting with Labour etc.) to vote no confidence in the coalition and convention would then require a resignation and a new general election.
In an interesting quid pro quo the Queen (in effect the PM) will give up the right to dissolve Parliament on a whim and at a time of her (his) choosing and in return the Commons will only be able to remove a Govt and obtain a dissolution (and a new general election) if 2/3rds of them vote for such an outcome. In other words there will only be a dissolution if 5 years are up or if 2/3rd of MPs vote for it: see clause 3 of the Bill:
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Indeed section 7 of the 1707 Act above is amended by the Bill:
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I don't want to debate the rights and wrongs of this politically - I merely want to observe that this is yet another momentous constitutional change which only requires a majority of both Houses of Parliament (or indeed just the Commons if the Lords prove recalcitrant - as they might) to come into force and which is clearly driven by political expediency.
If another nation changed its constitution merely to keep its Govt in power and could do so - so easily - by relying upon its majority in the legislature - we would all laugh about such corruption. But without an entrenched constitution which requires special majorities and procedures to protect it from amendment (say a referendum for changes of this size and importance) we are left with a system which allows Govts to change the constitution to keep themselves in power.
Whilst it always remained a theoretical possibility that the Monarch might sack her Prime Minister and dissolve Parliament of his or her own motion: It remains an important psychological safeguard against an otherwise unconstrained executive. The Queen will now be left with the power to sack her Govt of her own motion but without the power to dissolve Parliament - unless the Commons obliges with the necessary motion. It is just that sort of anomaly which could be and should be put right in a written constitution presaged by a national debate and a referendum - as opposed to this damaging and expedient piecemeal reform.
Friday, 23 July 2010
Members of the Jury
This case involves an alleged assault by a Police Officer of an innocent member of the Public during the G20 riots on 1st April 2009.
You have seen video footage of the incident (see left)
I will now direct you as to the law:
The Officer is charged under the following statute
This is known as ABH and it requires the unlawful touching of a person which interferes with the health or comfort of the [victim]' (R v Miller [1954] 2 QB 282, Lynskey J @ 292).
It is an either way offence, and therefore unlike common assault, can be prosecuted at any time in either the Magistrates' Court or the Crown Court (subject to any delay becoming an abuse of the process, but that does not arise in this case because of the legitimate public interest in a prosecution in this very serious case).
This case has not been heard in the Magistrates' Court because of the seriousness of the allegation that a Police Officer assaulted a member of the public without cause.
Members of the Jury, the Crown Prosecution Service does not encourage, in its national charging guidelines, that this charge is brought where there are no serious injuries which require treatment (and as the cause of death is disputed, there were no immediate serious injuries, which can be said with certainty to have been caused by the initial assault) and the CPS might have brought a charge of common assault, which does not require any proof of actual bodily harm, but they have quite properly brought an ABH charge in this case, contrary to their own guidelines, because the delay in them and the IPCC considering this case, has caused a lesser charge of common assault to be unavailable. I commend the DPP in breaching his own guidelines in the public interest and in the interests of justice.
The Crown also considered manslaughter but properly concluded that they could not prosecute because of a dispute over the medical cause of death.
So members of the jury, you have seen the video and you have been directed as to the law...would you like to retire to consider your verdict..............
I will now direct you as to the law:
The Officer is charged under the following statute
Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . . . to [imprisonment for five years].
This is known as ABH and it requires the unlawful touching of a person which interferes with the health or comfort of the [victim]' (R v Miller [1954] 2 QB 282, Lynskey J @ 292).
It is an either way offence, and therefore unlike common assault, can be prosecuted at any time in either the Magistrates' Court or the Crown Court (subject to any delay becoming an abuse of the process, but that does not arise in this case because of the legitimate public interest in a prosecution in this very serious case).
This case has not been heard in the Magistrates' Court because of the seriousness of the allegation that a Police Officer assaulted a member of the public without cause.
Members of the Jury, the Crown Prosecution Service does not encourage, in its national charging guidelines, that this charge is brought where there are no serious injuries which require treatment (and as the cause of death is disputed, there were no immediate serious injuries, which can be said with certainty to have been caused by the initial assault) and the CPS might have brought a charge of common assault, which does not require any proof of actual bodily harm, but they have quite properly brought an ABH charge in this case, contrary to their own guidelines, because the delay in them and the IPCC considering this case, has caused a lesser charge of common assault to be unavailable. I commend the DPP in breaching his own guidelines in the public interest and in the interests of justice.
The Crown also considered manslaughter but properly concluded that they could not prosecute because of a dispute over the medical cause of death.
So members of the jury, you have seen the video and you have been directed as to the law...would you like to retire to consider your verdict..............
Thursday, 22 July 2010
JUST A FEW FURTHER MATTERS..
This is a brilliant blog post about the Libyan bomber affair - http://www.firmmagazine.com/features/765/Online_exclusive:_Editor's_blog-_Bomber,_bomber,.html
The Judges at Mayor's and City Court are not allowed to urge you to write to the MoJ to persuade the civil servants not to axe the country's oldest civil court...but I am...and I urge you to write to them ASAP. The best point is that the Court's buildings, utilities and costs are entirely met by the Corporation of London and not the Court Service...making it the cheapest as well as the oldest civil court. It is truly a local court - local to the City and earns lots of court fees issuing claims for local City firms where the High Court's heavier jurisdiction is not required and it is much more user friendly and efficient than the nightmare that is the Central London Civil Justice Centre and County Court. Please, please save Mayor's and City! See my earlier post and this is the address to send your protest about M and CC to: Ian.Priston@hmcourts-service.gsi.gov.uk
So the Iraq War was illegal - in the personal opinion of the Dep Prime Minister - not the opinion of HMG you understand - which is waiting for the Chilcot Inquiry finding - although the Chilcot Inquiry says it is not going to rule on illegaility....all clear?
And Michael Howard became a Lord - just had to post the video of that momentous if not slightly scary occasion: see here
Friday, 16 July 2010
I HAVE AN APOLOGY TO MAKE TO THE PAYMASTER GENERAL
3. The Bill places upper limits on payments under the Civil Service Compensation Scheme (CSCS), a scheme made under the Superannuation Act 1972. The CSCS sets out the tariffs which may apply when the employment of civil servants is terminated prematurely. The terms of the CSCS were amended in February 2010, but those amendments were quashed in judicial review proceedings brought by the Public and Commercial Service Union, so that the former compensation terms have now revived. For many civil servants, the former terms produced more generous outcomes than did the February 2010 terms.
4. The former CSCS terms, as now revived, generally provide a service and age-related payment for people aged under 50 and enhanced early retirement terms for people aged between 50 and 60. The amount of the payment varies depending on the tariff, with the tariff applying on compulsory redundancy providing payments of up to 3 years’ pay and enhanced early retirement packages which can cost employers 6 years’ pay. Redundancy terms for certain employees who joined before 1987 can lead to higher costs for employers.
5.
The Bill caps compensation payable under the CSCS at a maximum of 12 months’ pensionable earnings for compulsory exits, and 15 months’ pensionable earnings for voluntary exits. The Bill also contains a ‘sunset’ clause, whereby clause 1 (which imposes the caps) will expire after 12 months, unless repealed earlier by order-making powers, or extended or revived using order-making powers. The Government’s intention is that new and more long-term amendments will be made to the CSCS timed to dovetail with the expiry of clause 1. The CSCS amendments will be made after consultation with trade unions.
The Bill caps compensation payable under the CSCS at a maximum of 12 months’ pensionable earnings for compulsory exits, and 15 months’ pensionable earnings for voluntary exits. The Bill also contains a ‘sunset’ clause, whereby clause 1 (which imposes the caps) will expire after 12 months, unless repealed earlier by order-making powers, or extended or revived using order-making powers. The Government’s intention is that new and more long-term amendments will be made to the CSCS timed to dovetail with the expiry of clause 1. The CSCS amendments will be made after consultation with trade unions.
How did the PCS react - with a warm welcome to the Bill? No...fighting talk: Quite how an Act of Parliament is going to be found illegal (save for a human rights challenge....or by offending EU Law) is slightly beyond me......I do note that the new Bill does not expressly repeal the need for Union consent - will PCS and HMG have an express/implied repeal debate in the Admin Court some time soon?
Cuts to civil service redundancy pay could be illegal
15 July 2010
Following legal advice, the union is urging MPs to question the validity of the ‘money bill’ laid in parliament today by Cabinet Office minister Francis Maude.
Plans to cut the accrued rights of existing civil and public servants could also be challenged on human rights grounds, the union believes.
The High Court has ruled twice in PCS’s favour that the previous government acted unlawfully when it tried to cut redundancy terms without the union’s agreement
The High Court has ruled twice in PCS’s favour that the previous government acted unlawfully when it tried to cut redundancy terms without the union’s agreement.
The union also says the Cabinet Office’s claim that civil servants can receive six years’ pay on being made redundant is highly misleading because this applies to almost none of the existing workforce.
Nor is it accurate to say that the ‘average’ payout is three years’ salary. Only staff with 20 years’ service would qualify for this, but the average length of service for admin officers - who make up 47% of the civil service - is just seven years, rising to 14 years for executive officers.
PCS general secretary Mark Serwotka said: “We will be studying the proposed legislation in detail, but our advice suggests the government might be repeating the mistakes of the previous administration in acting outside the law, simply to make it easier and cheaper to cuts tens of thousands of jobs.
“We fundamentally reject the need for these cuts and, as well as challenging them in parliament and the courts if necessary, we will pursue every avenue to oppose them in towns and cities across the UK.”
Tuesday, 13 July 2010
Circuit Judge goes.....
It is not often that a Circuit Judge is removed from office - this one seems to have missed that fate by the skin of his teeth: from the Office of Judicial Complaints
“Gerald Price QC, a Circuit Judge who was appointed to the Wales Circuit in 2000, has resigned from judicial office following an investigation into allegations about his conduct originally published in the media in June 2009.
“Whilst the media reported a number of allegations against Judge Price, the judicial investigation only focused on those that had an impact on his role as a judge. The investigation found that his actions brought the judiciary into disrepute, rendering his position untenable. In the light of the investigation, the Lord Chancellor and Lord Chief Justice informed the judge in December 2009 that they considered his behaviour merited removal from office.
“In accordance with the judicial discipline regulations, Judge Price was entitled to ask for their decision to be reviewed by a Review Body panel. He did so and the panel was chaired by Lady Justice Smith. The panel agreed with the original decision of the Lord Chief Justice and Lord Chancellor and recommended that Judge Price should be removed from office. The judge has, however, resigned before the disciplinary process was formally concluded. His resignation took effect from 30 June 2010.”
As to the prurient details -
David Redvers Tomlinson to be a Circuit Judge
Peter Anthony Stanfield Barrie to be a Circuit Judge
Robin Godfrey Spencer, Esq., Q.C., to be a Justice of the High Court with effect from 14 July 2010
Michael Alan Supperstone, Esq., Q.C., to be a Justice of the High Court with effect from 14 July 2010
“Gerald Price QC, a Circuit Judge who was appointed to the Wales Circuit in 2000, has resigned from judicial office following an investigation into allegations about his conduct originally published in the media in June 2009.
“Whilst the media reported a number of allegations against Judge Price, the judicial investigation only focused on those that had an impact on his role as a judge. The investigation found that his actions brought the judiciary into disrepute, rendering his position untenable. In the light of the investigation, the Lord Chancellor and Lord Chief Justice informed the judge in December 2009 that they considered his behaviour merited removal from office.
“In accordance with the judicial discipline regulations, Judge Price was entitled to ask for their decision to be reviewed by a Review Body panel. He did so and the panel was chaired by Lady Justice Smith. The panel agreed with the original decision of the Lord Chief Justice and Lord Chancellor and recommended that Judge Price should be removed from office. The judge has, however, resigned before the disciplinary process was formally concluded. His resignation took effect from 30 June 2010.”
As to the prurient details -
WalesOnline - News - Wales News - Judge in ‘rent boy’ claims quits
Still lots of new judges to take his place:
David Redvers Tomlinson to be a Circuit Judge
Peter Anthony Stanfield Barrie to be a Circuit Judge
Robin Godfrey Spencer, Esq., Q.C., to be a Justice of the High Court with effect from 14 July 2010
Michael Alan Supperstone, Esq., Q.C., to be a Justice of the High Court with effect from 14 July 2010
CIVIL SERVICE REDUNDANCY TO BE CUT...OR IS IT
The Govt wants to cut civil service redundancy and early retirement pay. Apparently they do get a lot of money when they leave and we have no money at the moment.
The last Govt tried to make the cuts but came a cropper in May this year because the Admin Court (Sales J) held that the unions had to consent to any reduction: R(PCS) v Minister for the Civil Service - judgment here.
Section 2(3) Superannuation Act 1972 was the problem:
(3) No scheme under the said section 1 shall make any provision which would have the effect of reducing the amount of any pension, allowance or gratuity, in so far as that amount is calculated by reference to service rendered before the coming into operation of the scheme, or of reducing the length of any service so rendered, unless the persons consulted in accordance with section 1(3) of this Act have agreed to the inclusion of that provision.Section 1(3) says: (3) Before making any scheme under this section the Minister, or, if the Minister so directs in relation to a particular scheme, another Minister of the Crown specified in the direction, shall consult with persons appearing to the Minister or that other Minister, as the case may be, to represent persons likely to be affected by the proposed scheme or with the last-mentioned persons.
- In other words the Unions consulted originally have to agree to any reduction in pension, allowance or gratuity.
Nice to see a good old fashioned fight between am almost tory govt and a old labour trade union.
& STILL NO BILLS!
This is what I have said before.
Below is the list of proposed Govt. Bills. The list of Bills before Parliament is here. Compare the two. Still only those in red below are actually before Parliament: Have civil servants gone on a go slow due to cuts or is coalition Govt just very slow and we are not used to it? Is the Govt waiting until it has got its Finance Bill through? But nearly 3 months since the Queen's Speech and no Bills????
Office for Budget Responsibility Bill
National Insurance Contributions Bill
Welfare Reform Bill
Pensions and Savings Bill
Financial Services Regulation Bill
Equitable Life Payments Scheme Bill
Airports Economic Regulation Bill
Postal Services Bill
Energy Security and Green Economy Bill
Academies Bill
Education and Children’s Bill
Health Bill
Police Reform and Social Responsibility Bill
Public Bodies (Reform) Bill
Decentralisation and Localism Bill
Local Government Bill
Parliamentary Reform Bill
Parliamentary Privilege (Draft Bill)
Freedom (Great Repeal) Bill
Identity Documents Bill
Scotland Bill
European Communities (Amendment) Referendum Lock Bill
Armed Forces Bill
Terrorist Asset Freezing Bill
Saturday, 3 July 2010
COURT FINDS LAST GOVT BROKE CONSTITUTION
AT LAST!
The last Govt was constantly using secondary legislation to make fundamental changes to our legal and constitutional arrangements.
The Divisional Court has struck down one such outrageous act.
Essentially the old Govt was planning to means test defendants in the Crown Court. This would mean that more defendants had to pay for their legal representation. The knock on effect was that when these additional private paying defendants were acquitted they would apply for the state to pay their lawyer's costs (Defendant's Costs Order from Central Funds). The state paying out much more money to privately funded lawyers was threatening to be the unintended consequence of stopping providing legal aid to such defendants and indeed threatened to wipe out any savings in legal aid.
Accordingly there had to be action - so the Lord Chancellor (Straw) decided to make a statutory instrument (under a power designed to set moderate limits to the amount of privately paid costs which could be recovered) to end the right to full (well full subject to taxation) recovery of costs by limiting that recovery to no more which could have been recovered by way of legal aid. This meant that those from whom the State had taken away legal aid would have to stump up the cash to meet the shortfall between legal aid rates and private paid lawyers' rates if they had the good fortune to defeat the prosecuting state and be acquitted.
Solicitors got very upset because the old Govt justified the changes by saying that hopefully it would drive down private paying solicitors' rates to legal aid rates and change the whole market:
Because some small legal aid firms were only holding on to their business because every now again they recovered full private rates on an acquittal of a rich defendant - these reforms basically meant doom for many firms - so their professional body - the Law Society- decided to awake from slumber and take on Jack Straw and indeed they have won their judicial review -
Elias LJ was having none of it:
The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.
In other words - only Parliament can take away important rights to compensation when a citizen is acquitted of the state's charges - and the Govt can't just erase those rights by delegated legislation.
Hurray for innocent criminal defendants!
Hurray for legal aid solicitors!
Hurray for our Constitution!
New Govt Take Note!
Full Judgment here
The last Govt was constantly using secondary legislation to make fundamental changes to our legal and constitutional arrangements.
The Divisional Court has struck down one such outrageous act.
Essentially the old Govt was planning to means test defendants in the Crown Court. This would mean that more defendants had to pay for their legal representation. The knock on effect was that when these additional private paying defendants were acquitted they would apply for the state to pay their lawyer's costs (Defendant's Costs Order from Central Funds). The state paying out much more money to privately funded lawyers was threatening to be the unintended consequence of stopping providing legal aid to such defendants and indeed threatened to wipe out any savings in legal aid.
Solicitors got very upset because the old Govt justified the changes by saying that hopefully it would drive down private paying solicitors' rates to legal aid rates and change the whole market:
“21. Under this option, individual defendants and defendant companies would be liable for any difference between the refund of costs at legal aid rates and their actual expenditure on their case at the private rate they had negotiated with their solicitor and/or barrister. We estimate that in the magistrates’ court this could average in the region of £1,000, being the difference between the estimated average privately funded case (£1,500) and the average legally aided case (£500). In the Crown Court, we estimate that this could average in the region of £16,700, being the difference between the estimated average privately funded case (£19,500) and the average legally aided case (£2,800). In very high cost cases, this sum could be much higher. As illustrated by the example above, the difference could be as much as £11 million. While companies do not have access to legal aid and so have no choice but to pay privately for their defence, the impact may be mitigated if they have taken out insurance to protect them against such an action.
22. The impact on individual defendants may also be mitigated if implementation of the proposal resulted in downward pressure on private rates. Competition between providers for private clients and individual negotiations over rates could see private rates moving more closely into line with those available under legal aid, but we are unable to quantify the effect. This would result in a reduction in income for solicitors, barristers and firms. We cannot quantify the impact since we have no reliable data on private rates, although from research conducted in the magistrates’ court, based on a sample of bills paid from Central Funds we understand that they are in the region of three times more expensive than legal aid rates.”Elias LJ was having none of it:
The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.
In other words - only Parliament can take away important rights to compensation when a citizen is acquitted of the state's charges - and the Govt can't just erase those rights by delegated legislation.
Hurray for innocent criminal defendants!
Hurray for legal aid solicitors!
Hurray for our Constitution!
New Govt Take Note!
Full Judgment here
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