If a court takes a decision you don’t like, what should you do about it?

Asks the BBC’s Martin Rosenbaum:

If a court takes a decision you don’t like, what should you do about it?

One possible response is to tell everyone to ignore it, although that’s probably not the reaction you’d expect from the Ministry of Justice, the government department which oversees the country’s judicial system.

Yet that’s what it’s been doing, according to Maurice Frankel of the Campaign for Freedom of Information in a speech given to the FOILive conference yesterday. He drew attention to several cases where MoJ guidance on how to process FOI requests appears to conflict with Information Tribunal decisions.

For example, does the time taken to redact information count when deciding if a request is too costly to process? The MoJ says yes, the Tribunal says no.

See the section of Frankel’s presentation (3.73 Mb PDF) entitled Adopting Case Law.

Belinda Crowe of the MoJ responded to Frankel by saying that the MoJ was sticking to its position where it thought the Tribunal had misinterpreted the law.

I think she prevaricates rather more than that, but essentially, yes, ignore the decisions.

However my guess would be that officials who tell the Information Commissioner that they decided to follow the MoJ’s interpretation of the law in preference to the Tribunal’s are unlikely to impress him.

I should hope so.

Michael Wills, Minister at the Ministry of Justice with responsibility for Freedom of Information, was only the day saying how “proud” he was of it all.  Trebles all round.

Worth looking at the FOILive conference stuff by the way.

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Safeguards are still inadequate

says the JHCR in another report (307 Kb PDF, 59 pages) on the Counter-Terrorism Bill:

The Committee has already reported several times on the main human rights issues raised by the Counter-Terrorism Bill. The main purpose of this Report is to comment on the adequacy of the additional safeguards which the Government has indicated it intends to bring forward to meet the human rights concerns about its proposal to extend the maximum period of pre-charge detention to 42 days. The report explains the Committee’s conclusion that the additional safeguards are inadequate to protect individuals against the risk of arbitrary detention (paragraphs 1-2).

Ministers at first argued that this proposal was justified by the high level of the terrorist threat. Now they argue that the threat is growing. But the Committee has still not seen any evidence which demonstrates that the threat is growing. It recommends that the Government provide Parliament with the evidence on which it relies when it says that the threat from terrorism is growing (paragraphs 4-9).

…

In any event, as the Committee has explained in earlier reports, no amount of additional parliamentary or judicial safeguards can render the proposal for a reserve power of 42 days’ pre-charge detention compatible with the right of a terrorism suspect to be informed “promptly” of the charge against him under Article 5(2) ECHR. The Bill is therefore incompatible with Article 5(2) on its face and a derogation from the UK’s obligations under Article 5 would be required to make such a power available (paragraphs 42-44).

This bit is particularly interesting:

Both the ECHR and the HRA … already provide for the possibility, in principle, of extending the period of pre-charge detention in a genuine emergency, in the form of the power to derogate from the right to liberty in Article 5 to the extent strictly required by the particular emergency. We remain firmly of the view that if there is a genuine emergency within the terms of Article 15 of the ECHR the Government should make its case for such a derogation and not seek new legislation.

There is precedent for such a derogation.

It is well worth reading the report.

There is a consensus, Home Secretary – but you’re not in it

The BBC:

On Wednesday she criticised opposition parties for not backing her amendments saying: “Frankly, it is pretty hard to build a consensus if nobody else is going to move.”

42 days doesn’t add up

writes Philippe Sands in the Times:

On his own account, the Prime Minister abandons the one principle that matters: decent evidence. What seems to have happened is that early on in his premiership Mr Brown took a punt on a number – an arbitrary 42 days – and is now stuck with it. The policy was fixed on the basis of an ill-conceived political objective – tough on terror – and not on the basis of the evidence or any proper consultation. Consequently, the principles now invoked by the Prime Minister seem almost absurd.

“There should always be a maximum limit.” Terrifically reassuring.

…

The 42-day debacle would be much less worrisome if it stood in splendid isolation. Let him have his 42 days, some might say, and then we can move on. Unfortunately, the Prime Minister’s muddled and dangerous thinking on this issue is part of a wider pattern. Mr Blair launched an unremitting assault on the rule of law. He caused Britain to be the only one of the members of the Council of Europe to derogate from the European Convention on Human Rights to allow indefinite detention without charge or trial of certain non-nationals. The courts struck that down.

According to the JCHR, the UK is the only country out of 45 in the Council of Europe to have derogated from Article 5; the only country in the world to have derogated from Article 9 of the International Covenant on Civil and Political Rights; and, except for the USA, the only country to have resorted to the indefinite detention of people suspected of terrorism.

In legal proceedings in England he wanted to be able to rely on evidence that may have been obtained by torture in legal proceedings in England. The courts struck that down too. After the July 7 bombings Mr Blair’s Home Secretary boldly stated that the Government “would not be constrained by international conventions or by the way the judiciary interpreted them”.

Many hoped that those days of Labour’s broken relationship with the rule of law and evidence-based decision-making had ended with the arrival of a new prime minister. Sadly, they have not. …