Ministerial Responsibility

Jim Sheridan, a Scots Labour MP and Defence PPS, has resigned from the Government over its Middle East policy. Whilst one is glad always to see Ministerial Responsibility in action, one is also aware that one's first reaction was 'Jim who ?' followed 'Isn't he the one who ... ?'*

The SNP reaction (see article for Angus Robertson quote) may seem over-the-top - "first major crack" etc.

*For the avoidance of writs, the Court's view recently taken - let us make clear, and subject to appeals - was that Tommy Sheridan of the Scots Socialists didn't.

Speaking of radical socialists -

- which we may have been in that previous post - Mr Walter Wolfgang, who famously fled fascist tyranny in his youth only to be ejected from the 2005 Labour Party Conference for shouting 'nonsense' during a speech by the then Foreign Secretary Jack Straw (and then barred as a suspected 80-year-old terrorist) - has been elected to Labour's National Executive Committee (NEC).

One can say that this is unlikely to achieve very much, but as with the Iraq Families' Party the question is probably more about what it represents and will represent rather than any question of a direct impact on Government policies. Someone with web design skills may wish to offer their talents to Military Families Against War (link to website).

House of Lords Reform - very, er, 'radical'

The Guardian newspaper has got hold of a leaked Cabinet document on proposals for Refrom of the House of Lords. For those unfamiliar with the question, the problem may be summarised as a universal (or as near as Consti gets) agreement that:

1. something needs to be done, especially about the hereditary peers
2. but the House of Lords does quite a good job, which needs to continue
3. yet without threatening too much the primacy of the Commons

Unfortunately, fulfilling all three propositions does not make for a coherent reform plan. The Government's idea seems to be to abolish the current system whereby the remaining hereditaries are replaced (ironically, by election), so that as the present 92 hereditary peers die then one by one their presence in the Lords will diminish. (Except the Earl Marshal and Lord Great Chamberlain ?). In the circumstances, The Guardian is remarkably restrained over this.

Judges and Ministers - the Afghan Hijack case

The Court of Appeal has now given judgement in the Afghan Hijack case - S [Safi ?] and Others v Secretary of State for the Home Department [2006] EWCA Civ 1157, as it's better(?) known. This was on appeal from Mr Justice Sullivan's ruling earlier this year.

The judgments are in fairly ferocious terms (justly, so far as I can gauge) about the Home Office's handling of the case. It looks very much as though the Home Office had decided (one guesses on instructions from ministerial level - no civil servant would take such a politically sensitive decision) that the hijackers were going to be booted out, and then cast around with increasing desperation for some legal means of doing so without going through Parliament. Just how desperate they got is reflected in the Judge's award of Indemnity Costs against the HO.

The law was in principle clear enough - as soon as the hijackers claimed (or were expected to claim) asylum, Jack Straw said something helpful like 'Not in a thousand years - not ever,' which had every administrative lawyer I know groaning - Fettering Discretion by a refusal to consider the merits. There was then a problem with the criminal trials - the courts do not often have to consider the defence of duress in hijack cases - but in any case the hijackers largely served their sentences before release.

What then seems to have happened was that the Home Office realised a little late that the gap exposed by the Chahal line of cases had not been fully plugged - what of non-terrorist 'undesirables,' especially ones who for whatever reason had not got the expected criminal convictions against their name ?

As the Judges explained, this could have been sorted out by Parliament. However, the Home Office seem to have preferred (one suspects that speed was the problem) to promulgate new rules 'explaining' (my way to put it) their use of some Immigration Act 1971 powers in such a way as to fit this. Subject to Their Lordships, the courts have now rejected this attempt to apply the Immigration Act in this sort of case - because it wasn't meant for it, a point somewhat analogous to the problem in A, X and Y v S of S HD [2004] (HL) ['Belmarsh'] re suspected international terrorists from overseas.

The further question is how the Press will handle this. One does not really expect Dr John Reid to wish to grasp publicly the nuances of the Court of Appeal ruling - but what about the Press ? Curiously, the Daily Mail seems less incandescent than I would expect, tho' the comments do not suggest that their readership has followed the case (whose 'big picture' undeniably seems odd) very carefully, one comment about 'grandstanding' apart. I would also have to accept that the Sun's summary is sound enough. Curious ...

Civil Partnerships Act 2004 - implications ?

Sir Mark Potter, the President of the Family Division of the High Court, has just issued an important judgement on the compatibility of the Civil Partnerships Act 2004 (CPA) with the ECHR. The reference was Wilkinson v Kitzinger, Her Majesty's Attorney-General and the Lord Chancellor [2006] EWHC 2022 (Fam).

The argument was, in short, that the CPA discriminates by not calling a civil partnership a 'marriage' - Article 8, 12 and 14 were cited. The argument was expected, and an appeal must be certain to occur.

Again, watch this space.

Control Orders in the Court of Appeal

The Court of Appeal (CA) have been very quick off the mark - and a very 'strong' Court of Appeal at that - with the appeals by the Home Secretary from Sullivan J's quashing of the Control Orders.

Mr Justice Sullivan, it will be recalled, had quashed them as contrary to Articles 5 and 6 ECHR. Like him, the CA has given two separate judgements.

A (very) swift reading summarises thus:

1. Sullivan J's reasoning about Article 5 was sound: S of S HD v JJ and others [2006] EWCA Civ 1141
2. Sullivan J's reasoning about Article 6 was unsound, and would need to be reconsidered: S of S HD v MB [2006] EWCA Civ 1140

This is not a situation where 'half marks is good enough,' but at least swats away these remarks of the Judge:

"96. Standing back and looking at the overall picture, there can be only one conclusion. To say that the Act does not give the respondent in this case, against whom a non-derogating control order has been made by the Secretary of State, a fair hearing in the determination of his rights under Article 8 of the Convention would be an understatement. The court would be failing in its duty under the 1998 Act, a duty imposed upon the court by Parliament, if it did not say, loud and clear, that the procedure under the Act whereby the court merely reviews the lawfulness of the Secretary of State's decision to make the order upon the basis of the material available to him at that earlier stage are conspicuously unfair. The thin veneer of legality which is sought to be applied by section 3 of the Act cannot disguise the reality. That controlees' rights under the Convention are being determined not by an independent court in compliance with Article 6.1, but by executive decision-making, untrammelled by any prospect of effective judicial supervision."

Appeals to the House of Lords may be regarded (including on Article 6 after that has been reconsidered and appealed again) as a racing certainty.

Watch this space.