The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: May, 2010

Libs Dems to not scrap human rights

I have always believed that the Conservative criticism of the Human Rights Act and support for a Bill of Rights is a clever bit of double think that allows them to blame Labour for unpopular decisions but not appear entirely fascist if someone criticises them for wanting to get rid of human rights. To that end I don’t really believe anything will actually change now they’re in power but grudging kudos to whoever thought of that campaign slogan.

I don’t think the Conservatives can really come up with a bundle of fundamental freedoms that didn’t occur to the drafters of the UN declaration or the European convention. There are genuine European substantive law issues that limit what they could say but, more to the point, once you get beyond rights to life and a fair trial; freedom of expression and gathering; and freedom from torture and so on you’re limited in what you can really put out as a human right anyway. “Broadband internet” is hardly human rights material, for example.

The main problem clouding this whole issue is that there is some woeful misreporting of the juicy HRA stories – at the previous election David Davis campaigned with the anecdote of a inmate who went to court seeking to enforce his human right to hardcore pornography. This is true, it happened. However what also happened is the judge laughed in his face and told him to get back to prison. That bit doesn’t make so much news. We risk repealing a piece of our constitutional framework because some people we don’t like have the temerity to go to court and unsuccessfully try to use it.

The current news is that two terror suspects can’t be deported because they face torture if they go back. The problem is that the authorities only suspect they’re terrorists but can’t convince any court that they are. That’s what suspected means. Basically some detective has a hunch. Detectives get hunches all the time, some times it’s just something they ate.

We have no idea what evidence failed to convince a judge that they were terrorists because the evidence, and the trial it was heard in, is secret. The reason given is that they don’t want to reveal their sources and I suspect that’s probably true. I just don’t know if it that’s because it’s a rubbish source that’s given ridiculously poor evidence that’s been pulled out of an orifice or if it really is some impossibly dashing secret agent bedding femme fatales while drinking martinis and driving fast cars. We wouldn’t get to hear about the evidence either way. The question in my mind has boiled down to “is the government more likely to employ James Bond or Mr Bean?” This is what I’m reduced to in trying to evaluate my own country’s counter-terrorism policy.

In the absence of an open trial process we’re left having to take the people who can’t grit the roads or tender building contracts properly at their word when they say they genuinely have caught a bad person. Even crazier is that the person they say they’ve caught has to take their word on this too because they aren’t told what they did or what the evidence is either. I never understood that — what sort of secret are you protecting by not telling them, surely they already found out when they did it in the first place?

The immigration tribunal service is not a shining example of common sense — it once told an homosexual Iranian it wanted to deport that it was safe to be gay in Iran as long as you don’t tell anyone (the authorities had recently decided to hang the man’s partner from a lamppost) — and should simply not be treated with implicit confidence in abilities that they don’t demonstrate.

You certainly don’t need to throw the baby of the Human Rights Act out with the bathwater of the Daily Mail.

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Blogging

XKCD has a good reminder not to overthink the blogging thing today. There’s a lot of people who will sell you the social media web package but really what you’re looking for is what the guy in the crowd thinks.

XKCD #741: "Blogging"

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Unite loses to BA in High Court… again

A trade union has one purpose, to back you up if you have a dispute with your employer. That’s literally its job. Some of the trade union Unite’s members have a dispute with their employer, a lot of people are scratching their head about what the complaint is actually about (Ryanair makes BA’s conditions look immensely generous, for example) but they have a dispute nonetheless.

One of the most potent tools that trade unions have always had is the ability to withdraw their labour. Anyone can strike without a trade union – you just don’t work, however it leaves you at extreme risk of being made unemployed because “you didn’t come to work” is often fairly safe grounds for dismissal. The trade union gives you security because, firstly, if everyone strikes at the same time it gives you greater bargaining power but secondly they can’t get everyone and recent labour law statutes mean that they can’t get you for striking. Early trade unionists in Glasgow were routinely beaten to the point of permanent injury or death because strikes could be so damaging to employers, we’ve progressed a lot since then and now you need to take a vote of your members and give the employers fair notice. No employer likes employees who go on wildcat strikes and this is the balance we’ve struck.

Central to this is the trade union which becomes immensely powerful because it is the gatekeeper to the ability to strike. It’s basically what a trade union does – you pay your sub to your union so that, if you have an employment problem, they’ll back you up with bigger guns than you can muster alone.

Unite’s BA members want a strike, they absolutely, definitely do but Unite has failed to arrange it properly twice. I thought that Unite would be careful with the i’s that need dotted and the t’s that need crossed because it’s a high profile dispute. I thought that when BA managed to interdict the strike that their lawyer was a genius who had absolutely earned his fee but said, and these are the exact words I used at the time:

They’ll never manage to do that again

I thought it was a masterful, albeit desparate, strike by an employer using a sneaky technical point in the hope of staving off the damage that a strike would cause. I naturally assumed that Unite would turn around and immediately call another vote and this time cross every t they could possibly think of. If it was me I would have even considered hiring BA’s lawyer to check I was crossing all the t’s.

Unite have had another injunction granted against them stopping their next series of strikes for voting irregularities. This isn’t cool Unite, your members are relying on you. Yes ballots for industrial action are fiddly, highly technical things but you are an organisation that does ballots for industrial action. Souffle is fiddly to do too but if you want to be an organisation who makes souffle you just have to learn how to do them.

Third time’s the charm?

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Democracy

We have a new Prime Minister, so election fever is pretty much over for now but I was listening to an address on human rights by Aharon Barak yesterday that really puts voting into perspective.

In September 1999, an expanded panel of nine judges of the Supreme Court of Israel unanimously repealed the former governmental guidelines regarding use of physical means during interrogations, this is part of what Judge Aharon Barak said:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties

Nuremberg defence comes to the 2010 general election

The Nuremberg Defence is “I was only following orders” – it’s what a number of the accused at the Nuremberg Trials plead after World War II to explain why they had run concentration camps, invaded Poland and committed the Holocaust. The defence was strengthened because the reason they followed orders is that they, and possibly their families, would have been killed by the Nazis if they had refused.

The modern day equivalent is the crazy jobsworth (it’s one way in which good and bad things today are a pale shadow of the past), there is no prospect that anybody will have their families shot and they’re just following orders because they’re on a power trip. It’s a mentality that seeps into lots of areas – train conductors and traffic wardens are common examples but it can occur anywhere someone has a little power that they cynically eke the most out of. It is not the best look for anyone.

The recent General Election in Britain saw a 4% higher turnout than last time, not an all time high or anything, and naturally polling stations were utterly swamped as a result. Instead of, for example, putting their hands up and saying “yeah, our bad, we didn’t think you’d all want to vote” a number of presiding officers went to the press to point out that it was the dirty, unwashed masses’ fault for not following the rules and spoiling their nice, tidy election. People wanting proof that the customer service ethic in Britain is dead could do worse than polling stations complaining about voters. It’s not only the Slackoisie who like to bunk off 5 minutes early even if their work isn’t finished.

It’s not all bad – in Sheffield, returning officer John Mothersole apologised to voters who were turned away, said “We got this wrong” – this is technically true except that he as returning officer potentially made the decision but the apology is good. Even better, a number of stations weren’t stupid enough to get it wrong in the first place and handed out polling cards to those queueing and bringing people inside the polling station before closing the doors (so as to obey the rule to close but not turn people away). These polling stations – one in Lewisham and two in Newcastle deserve considerable applause.

However, Nick Baldev, who is the specific crazy jobsworth I’m writing about just now, showed a remarkable amount of gall and told the BBC:

“Many did not have their polling cards, which significantly adds time. Some people went to the wrong polling station. And… the absolute laziness from the elector by not joining queues when they arrive, returning at a later time only to find a longer line and re-turning at 2200 BST, which, as it clearly states, is closing time.”

I would note that this apparent nutter in charge of a polling station speaks in military time, so that doesn’t bode well anyway (another term for the crazy jobsworth is the “Little Hitler”) but it’s not conclusive proof of jobworth-ness, however he puts the blame on the voters for making their job harder, calls them lazy and points out that rules are rules. These are stereotypical jobsworths actions and shows a thoroughly detestable attitude.

There are some arguments that there are rules and the rules are there for a reason and so on but it’s an unusual situation because these rules are stopping people taking part in the democratic process. Democracy isn’t the only way to make laws but it’s the way we’ve chosen to do it so we should follow it. The reason that we are expected to obey the law set down by a democratic Parliament is we had some role in setting up the system in the first place so if you’re stopping people voting the rules that you’re expecting them to obey (because they stop them voting) don’t represent them. The Americans fought a war over this issue.

Also, “the rules are there for a reason” is exactly what you’d expect a crazy jobsworth to say whereas a non-crazy non-jobsworth would say what the reason is. The problem here is the reason for the rule that the polling stations stop work at 10 is “so everyone can get home.” I’m big fan of getting home myself but it’s not really going to let you send hundreds of voters away. The idea is to stop voters arriving at midnight when the count is taking place rather than to send the people who are waiting in the queue away.

Geoffery Robertson points out that the right to take part in the democratic process is a human right and urges people turned away to claim for compensation, he puts a figure of about £750 on it. Interestingly human rights is one area where there is relatively little difference between Scotland and England & Wales. I agree with him and also urge that people were turned away by the crazy jobworths in England and Wales should contact Liberty which is campaigning that this never happens again.

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McClaren to pay damages for pram owners

I know McClaren as a luxury car manfacturer but it turns out that they also make other things – like buggies for children.

The problem I have with the claims – that if your child’s hand gets caught in the moving parts it may lose a finger is not that it happened (it did) nor that it is horrible (it totally is), what amazes me is that at least 47 parents responded to their pram being hard to open and their child starting to cry is to force the pram open and amputate their flesh and blood’s finger. That seems horrible to me. Certainly it was wrong to design sharp edges which scissor together when the product is used but I don’t buy Richard Langton’s quote in the Express today – “we are delighted to get the agreement within three months of being instructed to act, and it proves the adult opening the buggy is not in any way at fault.”

I think we should instead look to the old legal proverb handed down through the ages – “if you manage to saw off your own child’s finger it is ok to feel guilty about it.”

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