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Archive for January 26th, 2010

Social media / Twitter et al… can do the business… I found this tweet  most amusing…  Blackwater is not that popular in Iraq… I suspect that some other Brits not be either

Beau Bo D’Or – is always worth looking at for a ‘take on our modern lives….

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I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post. I would have been required to support and maintain the Government’s position in international fora. The rules of international law on the use of force by States are at the heart of international law. Collective security, as opposed to unilateral military action, is a central purpose of the Charter of the United Nations. Acting contrary to the Charter, as I perceived the Government to be doing, would have the consequence of damaging the United Kingdom’s reputation as a State committed to the rule of law in international relations and to the United Nations.

Elizabeth Wilmshurst, former Deputy Legal Adviser to the FCO
18 January 2010

What an extraordinary session of the Iraq Inquiry.  I watched all the testimony of Sir Michael Wood, David Brummell and Elizabeth Wilmshurst.  I was struck by much of the evidence, but two statements by Sir Michael Wood stood out.

“He (Straw, who was then Foreign secretary) took the view that I was being very dogmatic and that international law was pretty vague and that he wasn’t used to people taking such a firm position,” said Wood.

“When he had been at the Home Office, he had often been advised things were unlawful but he had gone ahead anyway and won in the courts.”

Sir Michael Wood said this was “probably the first and only occasion” that a minister rejected his legal advice in this way.

The Guardian report gives a flavour of the proceedings: Guardian

While the main event on the legal side will be Lord Goldsmith’s testimony tomorrow it is already clear that the principal legal adviser to the Foreign & Commonwealth Office, Sir Michael Wood, maintained a consistent line of advice that war with Iraq without a second UN resolution was illegal and that he had rejected the government’s argument that resolution 1441 – passed in November 2002 – requiring Saddam Hussein to disarm was a sufficient basis for military action.

It is very clear that this advice was not to Jack Straw’s taste and, equally clear that it was not to the prime minister’s taste.  Lord Goldsmith, effectively, had to intervene to say that government lawyers were perfectly entitled to give advice inconsistent with government policy!  We know that Lord Goldsmith is believed to have changed his mind, but more particularly, Elizabeth Wilmshurst highlighted the fact that the government seemed to be reluctant to call for formal advice until very late in the run up to the war – when, she suggested, it would then be  difficult for the Attorney to have advised the government that the  conflict was unlawful without a second resolution at that stage . It would, she said, have handed Saddam a massive PR advantage.

Elizabeth Wilmshurst did state there was no substantive difference between her views and the attorney general’s pre-7 March. I did enjoy Wilmshurt’s response when Sir John Chilcot asked  if it made  a difference that Jack Straw himself is a qualified lawyer?.  Elizabeth Wilmshurt replied…“He is not an International Lawyer”. Rather sums it up, I think?

Note for the “Send Blair to The Hague” brigade

Unfortunately for those who wish to see Tony Blair led away in handcuffs to stand trial – this is unlikely to happen. Elizabeth Wilmshurst stated that while the ICC has jurisdiction now in relations to ‘crimes of aggression’, it cannot be applied retrospectively. [See: #Iraqinquiryblog ]

I am doing a podcast with Carl Gardner, ex government lawyer in Tony Blair’s administration and author of the Head of Legal blog following Lord Goldsmith’s evidence tomorrow.

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In the grand scheme of things, the overclaim by prospective Chancellor Osborne is not one of the great sagas. it is, however,  a bit surprising that such a senior member of the shadow Cabinet, with a good university education and who puts himself forward as the next Chancellor, should take ‘flawed advice’ and make an error of this nature (He overclaimed £1666 ). The Independent has the report

There have been rumblings in the Tory blogs and press about Osborne’s competence and Labour, clearly, are targeting him.  The Indie reports that his rating has, in fact, gone up in the light of recent events. I find Hague and Clarke rather more compelling and believable in the role of  ‘Prospective Chancellor’ – as, I suspect, do many.

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It is a pretty shocking indictment of our law, our values, our mores… that a loving mother has to resort to grinding up drugs in a pestle and injecting air into the bloodstream of her daughter to give her daughter relief from the misery that became her life. It is even more shocking that she is then hauled before the courts and is now the subject of national and, possibly, international comment.  There will be many who will decry the compassionate judgment of the jury in acquitting her of attempted murder, there will be many who will pray some god in aid as justification for their view that all killing is wrong and there will be many who will say that we need new laws.  The law does seem to be in a bit of a mess. Perhaps the solution is to keep the law, the guidelines put forward by the DPP, but give the judges more discretion?  Perhaps – let us be radical in these early days of the 21st Century – we need to have a law of controlled and medically supervised assisted dying?

I favour a change in the law of assisted dying. If an individual chooses to die because life is, for them, no longer tenable, no longer sustainable – surely it is barbaric to insist that they live and suffer to salve the conscience and conscientious objections of those who take a different view?   For my part – it is none of their business.  I am not interested in the views of any religious leader, praying in aid beliefs and ‘deities’ from 2000 or more years ago. I am interested in rational, philosophical and moralo-ethical analysis. We should, as a civilised and moral and honest society permit those who wish to die to do so with dignity and die humanely.  It goes without saying – before the ravening crowd pile in with their outrage, ‘moral compasses’ and other assorted ‘mumbo-jumbery’ –  that we need to think through compassionate laws to ensure that decisions are taken by the person who wishes to die without ‘undue influence’ from others and having taken an accurate medical prognosis to ensure that consent is truly ‘informed’.

I applaud the judge, Mr Justice Bean, who said: “I do not normally comment on the verdicts of juries but in this case their decision, if I may say so, shows that common sense, decency and humanity which makes jury trials so important in a case of this kind.”

I agree with Mr Justice Bean on both counts. I also applaud Mrs Gilderdale for being a real Mother.  It must have been the most difficult thing she  had to do in her life. What do you think? Please feel free to use the comments section below as always.

As the Guardian reported: “The case has drawn parallels with that of Frances Inglis, the mother jailed at the Old Bailey last week for injecting her brain-damaged son with a lethal dose of heroin. Is there really, such a substantial difference?  Lawyers will be able to pick subtle legalo-factual distinctions – consent to name but one.  Is there really such a ‘moral’ difference?   In neither case, of course, do we, as readers of newspaper reports, see or listen to all the evidence.  we are, therefore, reliant on accurate reporting.  This, it has to be said, is not always reliable. But..going on what is available to us all in the press.. what do you think?

Barristers ‘gearing up for a revolution in the way they provide their services’

Barristers in England and Wales are preparing themselves for major changes in the ways they provide legal services, the new Chairman of the Bar Council Nicholas Green QC has said. Barristers are ‘gearing up for a revolution in the way they provide their services’. His remarks come as the Bar Council runs a series of nation-wide road shows following the historic decision of the Bar Standards Board (BSB) in November 2009 to liberalise the Bar’s practice rules in the light of the Legal Services Act 2007.

These changes, which will need to be approved by the Legal Services Board, could see barristers, among other things, working in partnership with other lawyers, or forming specialist procurement companies through which to deliver their services on a cost-effective basis.

Nicholas Green QC:

The Bar has major advantages in terms of quality and cost. Barristers have a great opportunity because they are both specialised in advocacy and advice, and often in particular areas of law. At the same time, because of chambers’ significantly lower overheads, barristers’ services are considerably cheaper than those of solicitors. ‘There is also an excellent opportunity for clients and consumers to benefit from the expert services of the Bar in different ways and at less cost. This will provide an important response to the recent review of costs in civil justice, by Lord Justice Jackson, which warned of the need to reduce the cost of going to court.’

I hope to have a fellow user of Twitter, a barrister, doing a guest post on this issue shortly…

Iraq inquiry: Government legal official will disclose advice given to ministers

The Times reports: ” Sir Michael Wood, the former top legal adviser at the Foreign and Commonwealth Office, has been given permission from the Attorney-General to break with protocol and disclose advice given to ministers in the build-up to the Iraq war.”

I shall certainly be watching this appearance.  Let us hope that Sir Roderic Lyne opens the batting on this one.  Baroness Prashar of Runnymede, despite her appointment as Chairman of the Judicial Appointments Commission, is not one of the sharpest of questioners on current performance, at any rate.

CoL launches online GDL

The Lawyer reports that The College of Law  “has fired another shot in the battle to become the UK’s top legal education provider by launching a new fast-track part-time Graduate Diploma in Law (GDL). The school has launched an online part-time GDL, which has a January start date and allows students to complete the course in 18 months rather than the usual two years.

CoL’s director of vocational programmes Scott Slorach said: “We anticipate most students choosing this mode will have work or family commitments. It gives them a better work/life/study balance by allowing them to choose their own study times and also reduces the travel and accommodation costs that students undertaking the traditional part-time courses may have to meet.”

No doubt BPP will pop up with a variant on this before too long. The GDL is a tough course, providing as it does coverage of the eight core subjects required by the profession before a candidate may take the LPC or the BPTC.  Part-time students tend to take their studies seriously and this initiative will certainly widen access to education. There are dangers, of course, that this is just another stage in the dumbing down of legal education and that young lawyers are being commoditised, to use a noun that used to be a verb and a concept beloved of the sayers of legal sooths.

I am fairly enthusiastic about the use of new media and technology in legal education but remain skeptical about standards. Neither the SRA nor the BSB appear to have much appetite for rigorous inspection of law schools and, short of the nuclear option of withdrawing accreditation, do not appear to have many teeth to ensure that law schools keep to the standards required and observe the rules.  (The report into BPP’s over subscription has still not been released.  I am advised that it will be soon.)

I am writing a couple more long posts on legal education (here is my first: Law Review: Law Student Special – From here to eternity… (Part I)) and will return to the issue of standards in legal education then. The comments at the foot of The Lawyer article are worth reading.  I have some sympathy with some of the views expressed by students.  I liked the one where a student said… “Makes you wonder why you pay eight grand for a reading list and a library card.”

And finally…

Yale law professor Robert Solomon, director of clinical studies at the institution, is plaintiff’s counsel in a lawsuit filed late last year contending that it is a violation of Connecticut consumer protection law for McDonald’s, Burger King and Friendly’s not to disclose to customers that their grilled chicken contains naturally occurring carcinogens (as do a wide variety of grilled, charred and barbecued food) [From PointofLaw ]

See?… with tall that legal knowledge and opportunity… it is worth it… you too could end up filing lawsuits about carcinogenic chickens.


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