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Archive for February, 2011

We have had the wisdom of Parliament in the form of 234 MPs voting against proposals to comply with the European Court of Human Rights judgment on prisoner votes. We have had a rather surprising intervention from the leading judge of that court, Jean-Paul Costa, stating that  Britain will be resorting to the tactics of the Greek colonels in 1967 if it does not comply with ECHR ruling and now we have Home Secretary Theresa May stating that the  Government is “appalled” by sex offender ruling.”   British politicians have now attacked the European Court of Human Rights and our own judiciary and, it would seem, they are going for the triple crown by setting up a Commission to look into the establishment of a British Bill of Rights.

Obiter J has a considered view on this matter which is worth reading and The UK Human Rights blog, also.

What is of interest to me in this post is the public perception being built up that we are at the mercy of ‘unelected judges’, European and home grown, and that somehow that these laws we signed up to are being foisted on us by dark forces elsewhere. This is not the case and it is worrying that public statements by politicians, all of whom should know better, are becoming increasingly ‘economical with the truth’ in the race to win hearts and minds of voters.

Obiter J makes the valid (and important) point: “Even allowing for political rhetoric, such an inaccurate statement about the role of the courts is disappointing.  There is no question that it is Parliament which makes the law.  Parliament has told the judges to apply the European Convention and Parliament has permitted judges to make a declaration that a legislative provision is incompatible with the Convention.  The judges have not granted themselves such powers and such powers do not exist in the English common law system.”

I have made the point before, a point well known to all lawyers and many non-lawyers, that Parliament is at the pinnacle of law making in this country and is supreme in the sense that it may legislate to come out of the European Convention and even the European Union itself if it so chooses.

In the meantime a degree of honesty in public statements and briefings to the press, and responsible and accurate reporting by the press, is not an unreasonable request to make given the importance of these issues.  We do have a right to be told the truth?

I hope regular readers will forgive me for repeating ‘the bleedin obvious’,  but it appears that some politicians don’t really know what they are talking about and if they do, they are misleading the public on the true position.  Unfortunately, I suspect, politicians are too busy briefing the press to let mere law get in the way, let alone finding time to read the many law blogs and articles written by experienced legal journalists out there which address these issues carefully. Here endeth…today’s rant.

British political populism risks conflict with Europe over human rights court

Dr Cian Murphy, King’s College London in The Guardian: Parliament is resurgent and a British bill of rights would be welcome, but ‘constitutional chauvinism’ will hurt Britain as well as the human rights convention

To defend the Human Rights Act 1998 (HRA 1998) it is necessary to counter the falsehoods and distortions of those who misrepresent it…

The New Law Journal reports: Geoffrey Bindman calls on the government to defend the Human Rights Act

To defend the Human Rights Act 1998 (HRA 1998) it is necessary to counter the falsehoods and distortions of those who misrepresent it. Regrettably the prime minister himself is among those who have done so, as well as more predictable elements of the media, particularly the Daily Mail.

AND FINALLY…. this from The Daily Mail

Philip Davies, the Conservative MP for Shipley said: ‘After votes for prisoners, we now have the potential for human rights legislation to give sex offenders the opportunity to come off the sex offenders register.

‘Is the Prime Minister aware that my constituents are sick to the back teeth of the human rights of criminals and prisoners being put before the rights of law-abiding citizens in this country?

‘Is it not time that we scrapped the Human Rights Act and, if necessary, withdrew from the European convention on human rights?’ Spot on.

Cameron replied: ‘My hon. Friend speaks for many people in saying how completely offensive it is, once again, to have a ruling by a court that flies in the face of common sense. Requiring serious sexual offenders to sign the register for life, as they now do, has broad support across this House and across the country.

‘I am appalled by the Supreme Court ruling. We will take the minimum possible approach to this ruling and use the opportunity to close some loopholes in the sex offenders register.

‘I can also tell my hon. Friend that a commission will be established imminently to look at a British Bill of Rights, because it is about time we ensured that decisions are made in this Parliament rather than in the courts.’

Mon dieu…. whatever next?  – just let the Police sort everything out and not bother about courts?  Or… a bit more political grandstanding?

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It is not often, having taught Contract for 30 years, that I get the pleasure or opportunity of writing about Contract or noting an excellent blog post on Contract Law.
Hector L MacQueen, Eric Clive and Laura Macgregor, writing in European Private Law News have written an incisive critique …

The UK Ministry of Justice has published a disappointing response to the European Commission’s Green paper on European Contract Law. It is disappointing because it misdiagnoses the problem and favours options which would do nothing for British businesses or consumers.

The seven page, undated, paper has the title “UK Government response to a green paper from the European commission on policy options for progress towards a European contract law for consumers and business”. It can be found at
http://www.justice.gov.uk/consultations/docs/eu-contract-law-call-for-evidence-response.pdf.

The blog post is a good read for anyone involved in Contract Law

Legal Week’s blogroll – the five most-read and five tips to be the most read

Please excuse the fact that I am mentioned in this Legal Week piece – but I note it because I am pleased that the mainstream legal press continues to pick up on the work of bloggers (and Legal Week are asking for more bloggers to put posts up for their Village Week section).  We aren’t in competition with each other as bloggers and nor are we in competition with The Guardian, The Times, The Lawyer, Legal Week or The Law Society Gazette. So…. if you would like to read Ben Wheway’s article in Legal Weekhere it is. Ben has a few useful tips – 5 tips in fact! – which may help all bloggers attract attention to their posts.

Prisoner vote refusal against European court ruling ‘would be like dictatorship’

In a statement almost certain to inflame those who have had enough of Europe generally and the European Court of Human Rights in particular – Jean-Paul Costa says Britain will be resorting to the tactics of the Greek colonels in 1967 if it does not comply with ECHR ruling

But… there can be little doubt that the forces of British sovereignty in all things to do with Britain are banging the drums…

The president of the Strasbourg court spoke out as Downing Street sources said that David Cameron‘s hopes of limiting the powers of the ECHR will be postponed until after the general election in 2015.

The prime minister told MPs that a commission to examine the creation of a British Bill of Rights – promised in the coalition agreement – will be launched soon.

No 10 sources said the commission would be limited because there are “red lines” which cannot be crossed under the Tories’ coalition agreement with the pro-European Liberal Democrats. The Lib Dem red lines are not amending Britain’s human rights act and not pulling out of the ECHR.

Cameron will reach out to Tory eurosceptics by establishing a separate body that will draw up proposals on how to limit the powers of the court that will be included in the Conservative manifesto for the 2015 general election. “These issues are difficult in the coalition,” one Tory government source said. “It is not realistic to introduce these changes before 2015. It is quite a complicated area so we will draw up our own proposals that will be bulletproof.”

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MEMORANDUM

To: All Associates

From: Dr Erasmus Strangelove, Partner and Director of Education, Strategy and Psyops

RE: VULTURES IN TOGAS

Obiter, writing in  in The Law Society Gazette, refers to a speech by the Master of The Rolls, Lord Neuberger, where he considers, inter alia, the topic of why lawyers are so unpopular.

Lord Neuberger stated:

‘I don’t intend to try to discuss the correctness of that analysis or to answer that question… [but] whatever they have been getting wrong, lawyers have apparently been getting it wrong for quite some time.

‘Around the second century AD, Apulieus, having referred to lawyers as “cattle of the courtroom”, then expressed the view that they were no more than “vultures in togas”. While Ammianus Marcellinus, two centuries later, took the view that lawyers were “a greedy and debased lot, who conspired with judges to rob the people of justice”.’

1. Associates with Muttley Dastardly LLP, as you know from your own induction, are put through a series of ‘desensitisation exercises’ of my devising based on my ‘consultancy’ work for our more secretive cousins across the pond some years ago, to handle negative imaging and stereotyping. The result of this programming is that we feel no slight, angst, guilt or tension when faced with the chatter of the chatterati of Hampstead dinner parties or, in more recent times, the liberal twitterati.  We do not rise to the bait. We are trained to be impassive in the face of criticism of our profession and to respond with the principle based response  that it is not the lawyers who are bad, it is the clients. We, the lawyers, are merely the architects of the client’s desire.

2.  Recently, this firm, as with many others in The City, participated indirectly in trashing the entire global economy with our skillful drafting of new instruments of securitisation for our most favoured investment banking clients. In fact,  so skillful were we at this firm, and law firms in The City generally (it has to be said), in drafting instruments for ‘Toxic Debt’ et al,  that the bankers have taken the hit in the public mind and we have escaped free of legal liability, public opprobium and moral obloquy. We were merely ‘obeying orders’.

3.  In our highly successful new Drive-thru Divorce Lawyer division, a service delivered under our MegaladonLLPdontcompare.com online brand  – it is not we, the lawyers, who are the villains. It is those who choose to get married where one or both of the parties fail to sort out their affairs in a civilised manner. I seem to recall a case where the Court of Appeal expressed consternation that there was no money left for further appeals work or, indeed, left for the parties themselves, because such money as the parties had enjoyed in their marriage had been consumed by the legal process.

4. I need not labour the point.  The principle holds true for many spheres of human behaviour, fortunately. We know that it is the clients who are ‘cattle of the courtroom’.  We are, however, too discreet, professional and polite, to let on;  save in the exceptional circumstance where a client should ‘wilfully, negligently, recklessly or with malice aforethought’ (Clause 1782(a)(ii) of our Standard Terms & Conditions), fail to settle their bill promptly and in timely fashion.  This latter ‘difficulty’ is rare at Muttley Dastardly LLP, of course.  Our policy of taking at least 150% of estimated costs on account gives us the flexibility to ensure we are compensated for the work that we do and award ourselves a little bonus without all the fuss that bankers are getting in the national press at the present time.

I trust that you will take comfort from my memorandum should you find recidivism and liberal tendencies creeping back into your psyche after reading the always excellent Obiter in The Law Society Gazette on this matter.

Dr Erasmus Strangelove

Strength & Profits

***

With thanks to Inksters Solicitors, Cellmark, OnlineWill.co.uk, BPP University College, David Phillips & Partners Solicitors, Wildy & Sons, Camps Solicitors accident claims

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Larry the cat is installed as Downing Street Chief Mouser

Telegraph: The latest holder of the post of Chief Mouser to the Cabinet Office was installed when Larry the cat moved into No 10.

 

Meanwhile…here is Francis Maude MP explaining his voluntary work for Big Society…

It is astonishing…..

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Having a bit of time on my hands, I am wading through the Great Reform Bill.  I shall comment in due course.  I rather liked this take on matters from Dr Cian Murphy of King’s College London – re-published in the UK Human Rights Blog… I quote….

It’s no Magna Carta. Those of us who teach public law in British universities will certainly  have to grapple with the Protection of Freedoms Bill. But will it, like the that earlier constitutional text, echo through the centuries into the classrooms of 2311? I doubt it. Although the Bill’s 107 sections will give Messrs Cameron and Clegg a long list of reforms to rattle off at party conferences it does little to coherently explain the coalition’s view of the appropriate relationship between the state and the citizen. The Government does not know what freedom is, but it knows freedom isn’t having your car immobilised without lawful authority (see section 54).

Protection of Freedoms Bill ‘disappointing’, says Law Society

The Law Society Gazette...thunders….

The new Protection of Freedoms Bill fails to live up to government promises and instead hints at a ‘growth of the surveillance society’, the Law Society has warned.

The Society said the legislation, which the coalition claims will scale back on Labour’s ‘intrusive’ policies, will take power away from the public.

Law Society president Linda Lee said that while attempts to reduce the apparent erosion of civil liberties are commendable, it does not tackle the way CCTV is regulated.

‘The Bill as a whole fails to measure up to the government’s grand rhetoric. Proposals for CCTV regulation are limited to local authorities and the police,’ she said.

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Jesus Chases the Merchants and Money Changers from the Temple, thus Cleansing the Temple

Painting: James Jacques Tissot (French painter and illustrator, 1836-1902)

Some would say that the legal profession is becoming over regulated. We have the Solicitors Regluation Authority, The Bar Standards Board, The Legal Services Board – the regulator of regulators – and The Legal Ombudsman. We also have, of course, courts of law in which to call lawyers to account and an army of professional negligence lawyers to do the business should doing the business need to be done. In this latter case, it has to be admitted, that only wealthier clients will be able to afford recourse to law.

Neil Rose of Legal Futures argues the question – “Do we actually need the Legal Services Board?” – given that two thirds of its work is now complete and the third part is likely to be complete within eight months.

Professor John Flood weighs in on the issue with this rather dry observation: “Of course as comes clear in Neil’s article is that the Law Society and by extension, the Bar Council, would love to see the LSB disappear. Why? The LSB is finally holding the legal profession to account, something which has been needed for many years. Moreover, the professional associations haven’t been able to regulate their own groups with any great success for the public or consumer interest.”

And… just to make sure the SRA and BSB roll their collective eyes…. John Flood administers the coup de foie gras“The legal profession has shown itself to be dangerously complacent at times. It is too important to permit that to occur so we need institutions whose task it is to rattle a few cages.”

From the perspective of a legal educator, I am all for the SRA and BSB spending part of their time keeping a close eye on the legal educators – and, I add with a degree of sardonic scepticism,….beef up their powers in relation to the regulation of educators?

The issue would make a fine examination question.  I shall sell the idea to my brother Professor R.D. Charon.  He is often short of inspiration when it comes to matters academic.

And finally… just an observation:

David Beckham’s $25m claim for libel and slander rejected by US judge

Ironic that The United States may need #libelreform to make it easier for celebrities to sue for libel while we in the UK need #libel reform to make it more difficult for them to sue.

As ever on this issue… David Allen Green (author of the Jack of Kent blog) is on the case with a piece in The New Statesman:

David Beckham and a lack of malice

AND FINALLY… a very good Blawg Review from US lawyer Brian Tannebaum – scourge of social meedja experts on twitter

Blaw Review #298

I quote from the opening to his very Valentine’s day Blawg Review – with some excellent asides and pics – and, of course, links to some good law blogging…

ADVANCE WARNING: To those social media marketers and shiny toy evangelists who check blawg review weekly to see if you are mentioned so you can promote it to death and make lawyers think you have some relevance to the profession, you are not here. There is no link love for you in this week’s Blawg Review. Nothing to promote you, nothing to retweet on twitter. No SEO juice for you to prop yourself up on Google. Try back next week when some other author may buy in to the charade. (Love and Kisses!)

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Just a quick reminder – The Inner Temple Transcripts of Judicial Proceedings guide is now available

Transcripts of Judicial Proceedings in England and Wales: a Guide to Sources

A revised edition of the Inner Temple Library’s 2006 guide to sources of transcripts is now available as a 165-page PDF document.

The guide is intended primarily for those who may need to obtain, or assist others to obtain, transcripts of the proceedings of courts and tribunals in England and Wales.

A major feature of this new edition is its greatly expanded coverage of tribunals. It is hoped that users of the guide may find this particularly useful at a time of change and transition in tribunal administration.

The guide will be available at the special price of £12.99 until March 31st, after which it will be priced at £19.99. These prices are for single-use only.

Further information and details of how to order the guide can be found here

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The Review covers the following topics:

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