UK Liberty

Where are we going with this, and where do we want to end up? (Part 3)

(Part 3 of an ongoing, indefinite series of ‘observations’.)

I’ve so far touched on erosions to the right to trial by jury, inquests, diversions away from the courts, unnecessary law, lowering and unreasonably reversing the burden of proof, and all sorts of civil orders that in fact may amount to criminal sanctions, and whether or not we are living in a surveillance state.

But how do such objectionable proposals get to the statute book in the first place?

Ideally you could do with an army of loyal and unthinking drones.

It also helps to have MPs who can vote on the bill but who won’t be affected by it because their constituencies are in a different nation – hello Scotland. 

But sometimes they aren’t quite enough, so here are a few other methods for the aspiring Government Minister.

You could create a really objectionable proposal that makes you look extremely ‘tough’ on something people are fearful of, say, terrorism – e.g. proposing to detain people suspected of terrorism for 90 days. You know that it is unlikely to get through Parliament and that there will be loads of opponents who will make a big fuss about it.  

This is brilliant, because:

1.  You will look ‘tough on terror’ and all the fuss will get you tons of favourable publicity in popular national newspapers, such as the Sun and the Daily Mail;

2.  Your opponents will look like airy-fairy, sandal-wearing, yoghurt-knitting,  intellectual pygmy, commie-pinko beardy liberals who clearly support terrorists;

3. You can offer lots of ‘concessions’ and ‘safeguards’, which will make you look fair and magnanimous (it’s like being a market trader, starting at a high price but being content to sell for less);

4.  In other words, you don’t particularly mind being haggled down to 28 days, say, because you still look tough, and you can always propose another extension in the future, where you will put Parliament and the country through a similar process.

And hardly anyone will notice if such a power will even be commenced (i.e. actually come into effect) despite you banging on about the urgency of it before we all get blown up on our way to work.

Another way of getting an objectionable proposal is the “red rag and smuggle”. Beardless but liberal David Howarth MP explains:

red rag is a provision in a Bill that is designed to attract the attention of hot-headed Members of this House, and about which the Government do not, in reality, care very much either way, while they smuggle in, largely unnoticed and unchallenged, a lot of significant stuff that otherwise might attract severe criticism.

It helps if the Bill is a relatively long, supermarket trolley of provisions and if you haven’t allowed Parliament enough time to scrutinise them all.  The Coroners and Justice Bill is a case in point: the ‘red rag’ is the inquest without jury and specially appointed coroner bit; while the ‘smuggle’ is the data sharing bit, toward the end of a 232 page bill consisting of 161 clauses and 21 schedules.

And of course there are machinations and broken promises, such as the allegations of dishonesty in relation to the Fraud Trials (without jury) Bill.  Hansard possibly only records the tip of the iceberg.

Why bother troubling Parliament at all?

Of course the above may seem like a lot of bother.  Sometimes you just want to be able to do things without troubling Parliament with the specifics. So here are a couple of ways to do that.

There’s a handy type of legislation for this: so-called ‘enabling’ legislation.  What you need to get through Parliament is legislation with broadly drawn provisions (in the form of principles rather than clauses relating to specifics) that allow you, the Government Minister, to draft secondary legislation that will de facto get on to the statute book by default. An infamous example of this was the first draft of the Legislative and Regulatory Reform Bill – it was quite ridiculous in scope and power. But there are lots more like this, including the Coroners and Justice Bill data sharing provisions.

So here you need your army of drones and provisions that don’t sound scary, indeed quite boring.

Alternatively you could launder policy through a client (i.e. you fund it) organisation, such as ACPO. ACPO is a private company (and therefore exempt from the Freedom of Information Act) and funded by Home Office grant (and therefore somewhat beholden to it), unaccountable to the public. But of course we can blame that organisation if anything bad happens.

What sort of policies might we launder, you may ask.  DNA, fingerprint, and cell sample retention is a good example.  All the law says is that samples may be retained.  There is no detail about what they may be retained in, for how long, and under what circumstances, and who will have access, and so on.  In other words, there is no statutory basis in law for the DNA database. There has been no bill followed by scrutiny in Parliament – it exists apparently because of the policy of our unaccountable client organisation. The situation is similar with the protestor database held by the National Extremism Unit (Netcu), a branch of ACPO – again no statutory basis.  And no doubt many more.

You can also launder policy via organisations outside the country, for example the European Union.  An example of this is the European Data Directive, which has resulted in our Intercept Modernisation Programme, recording the details of our phone calls, emails and internet access.  The advantage of this method should be clear: people against such policies are likely to blame evil Europe and those Johnny Foreigners trying to run our country, rather than the people who actually pushed this through Europe via the Council of Ministers, such as our old friend Charles Clarke, then Home Secretary, when the UK was President of the Council (and again there were a number of machinations here).

and yet another criminal justice bill!

Posted in Fraud (Trials Without a Jury) Bill, law and order by ukliberty on May 14, 2007

The Times:

The 60th

Sixtieth!

In ten years!

parliamentary bill on crime and justice under Blair will bring in new laws to tackle antisocial behaviour. It will include proposals for community-based punishments for young offenders, powers to tackle rowdy neighbours

Of course, there is already legislation that deals with rowdy neighbours.

and the scrapping of juries in serious fraud trials.

Er… that last proposal was thrown out fairly recently.

It will be the first piece of legislation to be presented by the Ministry of Justice and opponents fear that it may also be used to change sentencing laws to help ease prison overcrowding.

Hang on, didn’t the Times recently report that Tony rejected such a proposal for “sending out the wrong signal“?

The Home Office will also unveil a terrorism bill to “tidy up” existing legislation.

Lords say no to Fraud (Trials without a jury) Bill

Posted in Fraud (Trials Without a Jury) Bill by ukliberty on March 22, 2007

The BBC:

Peers have effectively killed off the government’s plans to restrict trial by jury in complex fraud cases.

Lords have continued a 10-year battle with ministers by voting to delay further debate on the Fraud (Trials Without a Jury) Bill for six months.

MPs agreed the plans in January – amid strong opposition.

Yes, that was an interesting and close fought battle, with a majority of only 35 (281 to 246): among other things, the Tories and LibDems accused the Government of breaking promises made during the passage of the Criminal Justice Bill (as it was) 2003, with an argument over whether a ‘seminar’ hosted by the Attorney General constituted a ‘consultation’.

At the time, in attempting to move an amendment that would allow ‘special juries’ on fraud cases, Dominic Grieve MP (Beaconsfield, Conservative) summed up the situation as follows:

An assurance was given in 2003, as the right hon. Gentleman [he was responding to an intervention from Keith Vaz (Leicester East, Labour)] will recollect, that the provisions of section 43 of the Criminal Justice Act 2003, which could not be implemented without a resolution of both Houses of Parliament, would not be brought in, and that the Government would look to bring in further primary legislation and would carry out consultations before they did so.

The right hon. Gentleman may also be aware that there is considerable disagreement between the Opposition and the Government as to whether consultation ever took place. The Government’s understanding of the consultation was a one morning-long seminar to which people were invited without appreciating that that was the only formal consultation that would take place. …

That was not a productive process. The Government then announced that they would proceed by trying to get the affirmative resolutions on section 43. When they tried to do that, the Lords indicated that that was in breach of the undertakings given in 2003 and that they would not go along with it. Following that, negotiations took place.

I put it on record that the Attorney-General held meetings on two occasions with myself and other hon. Members, and that we had the opportunity to discuss in his chambers in Buckingham Palace Gate the issues surrounding the options, but without the wider consultation that I expected as a result of the assurances given in 2003 by the then Home Secretary,
the right hon. Member for Sheffield, Brightside (Mr. Blunkett).

Back to the BBC:

Attorney General Lord Goldsmith has threatened to use the Parliament Act to force the bill onto the statute book in the next Parliamentary session.

Critics of the bill say the centuries-old right to trial by jury is a bedrock of the criminal justice system.

But the government says major trials put too much pressure on jurors – several high profile cases have collapsed, such as the £60m Jubilee Line case, which lasted 21 months.

They have been trying to persuade peers of the need to deal with the backlog of lengthy fraud cases, since coming to power in 1997.

The motion to delay the bill – highly unusual at this stage of a bill’s passage through Parliament – was approved by 216 votes to 143.

Labour’s Lord Brooke criticised the amendment, saying: “We have here a totally unelected House, which is flying in the face of what the elected people in the Commons have perceived to be the correct way forward.”

I’m not sure how, with a majority of only 35, such a claim can be made with a straight face. Or to put it another way, nearly half of those MPs who voted, voted against the Bill.

No, in my view such arguments are spurious at best.

Led by shadow lord chancellor Lord Kingsland, it means the Bill has effectively been seen off for the duration of this Parliament.

The bill had been approved by MPs, but peers argued that the commitment to change fraud trials was not in Labour’s manifesto, therefore they are not “bound by a constitutional convention”.

Moving the amendment, Lord Kingsland said: “Jury trial has been the central component in the conduct of all serious criminal trials for about the last 700 years.

“The contribution it has made to the preservation of the liberty of the individual and the legitimacy of government is quite incalculable in particular.”

He was backed by Liberal Democrat peer Lord Maclennan, who questioned why the government was persisting with legislation “in the face of the very grave anxieties” of MPs, lawyers and campaigners.

And Labour’s Baroness Mallalieu, QC, said the bill was fundamentally flawed, “which, in reality, sticks a knife into the main artery of our criminal justice system”.

Ministers want to allow prosecution lawyers to apply to the judge for trial without jury, subject to the agreement of the Lord Chief Justice.

Lib Dem Lord Thomas, a deputy High Court judge, warned: “If this (Bill) goes through, it won’t be long before there will be pressure to try any case that’s likely to last more than six weeks or three months by a judge alone.”

But Lord Goldsmith said it would apply to only “a small category of cases” adding: “This bill is not an attack on the jury system and, however constantly that proposition is repeated, it doesn’t make it true.

He said it would apply to only half a dozen a year. But even so, there are other cases that are as (if not more) burdensome than fraud, such as terrorism. It is entirely conceivable that an argument will be advanced that as terrorism is more serious than fraud, why can’t prosecutors apply for trials without jury in cases of terrorism?

“It is ultimately about justice, about ensuring that those who are responsible for fraud on the grander scale can be brought to account. We want the sharks to be caught and not just the minnows.”

He reiterated the government’s intention to force the bill through in the next Parliamentary session, using the Parliament Act.

But Lib Dem peer and practising barrister Lord Carlile of Berriew said: “By the time we reach the next session of Parliament we shall have a new prime minister, new priorities, new views and possibly new personnel in various offices.”

Other than the above I can add nothing to Not Saussure’s excellent article.

MPs say aye to Fraud (Trials Without A Jury) Bill

Posted in Fraud (Trials Without a Jury) Bill by ukliberty on January 26, 2007

The BBC:

MPs have voted to end trial by jury in complex fraud cases, despite strong opposition to the government’s plans.

The Fraud (Trials Without A Jury) Bill passed its third reading in the House of Commons, although the government’s majority was nearly halved.

It will now go to the Lords, where it is expected to face fierce opposition.

Critics say the right to trial by jury is a bedrock of the criminal justice system. But the government says major trials put too much pressure on jurors.

The Third Reading debate can be read on Theyworkforyou. In my opinion some of the arguments were disingenuous.

And I am fed up with MPs who don’t support Bills but vote for them regardless. Or those who abstain.

Remember, the Government’s contention is that some fraud trials are “complex” and “serious” and can be too much of a “burden”. Not of course that they are too “complex” and “serious” for the layman.

Jurors believe ordinary people are capable of coping with complex trials

Posted in Fraud (Trials Without a Jury) Bill by ukliberty on January 25, 2007

You may recall that the Government wants to get rid of jury trials, starting with the Fraud (Trials without a Jury) Bill.

The Times:

Jurors in a trial that collapsed at a cost of £60 million after 21 months have strongly backed the ability of ordinary people to cope with complex frauds.

In an unprecedented research study [96Kb] into what jurors think, the inquiry reveals jurors’ experiences in the Jubilee Line fraud trial fiasco that led to moves by the Government to scrap juries in such cases altogether.

A quote from the study:

The jury taken as a whole did not appear to have had difficulty understanding the evidence or the essentials of the case as presented to it. …

In the afternoon discussion with the group, led by Stephen Myers, the jurors showed quite impressive familiarity with the charges, issues and evidence, despite the length of time that had elapsed; the fact that they did not have their notes or access to documents nor an opportunity to think back and refresh their memories; and the fact that they had not heard all the evidence, arguments and summing up.