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An MQ-9 Reaper drone on a runway

An MQ-9 Reaper drone on a runway

By Dr Lawrence Hill-Cawthorne,
Associate Professor in Public International Law, University of Reading

A recent BBC news article reported on the development of a new, smaller type of armed drone that is able to aim and fire at targets in mid-flight, close to the ground. The drone is available for private sale, and the article notes the concern that such weapons technology could fall into the ‘wrong hands’ and be employed by terrorist organisations to target civilians. Indeed, it has been reported that Islamic State now uses low-cost drones in lethal ways by attaching explosives to them.

It is right to ask what happens if these weapons fall into the ‘wrong hands’. But whose, then, are the ‘right hands’? The assumption here, of course, is that States will use drones in a more reasonable, limited and law-abiding way. But we must not lose sight of the dangers potentially posed by drones in the hands of States.

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By Dr Ruvi Ziegler – lecturer in law and researcher of citizenship and electoral rights at the School of Law, University of Reading

The Supreme Court will determine on Tuesday whether the Government have power to give notice pursuant to Article 50 of the Treaty on EU of the UK’s intention to withdraw from the EU without an Act of Parliament providing prior authorisation to do so. The PM has announced that she intended to ‘trigger’ Article 50 before the end of March 2017.

Many may ask: what difference will the ruling actually make?

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Brexit ruling: on which side will the Supreme Court come down?

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hijabIn light of the continuing debate on whether Muslim women should be allowed to wear a veil in public, Dr Amy Codling (Teaching Fellow at the University of Reading’s School of Law) discusses the findings from her doctoral thesis, which she successfully defended last year. 

In September this year public and political debate in Britain was once again sparked on whether Muslim women should be allowed to wear a veil in public. On 15 September, sitting in Blackfriars Crown Court, Judge Peter Murphy held that if a Muslim woman who wears a niqab (face-veil) chooses to give evidence in court, she must do so with her face uncovered (although it would be shielded from the view of the general public).

It is not the first time that the issue has been raised in the courtroom. In November 2006, during an immigration trial hearing, Judge George Glossop asked Muslim lawyer Shabnam Mughal to remove her niqab while she made her submissions, claiming that he could not hear her properly. Legal controversy on the veil previously ignited following prohibitions imposed by Headteachers and Governors of state schools on the wearing of a niqab and jilbab (a long cloak-like garment that covers the body except the hands and face) by a teaching assistant and student, respectively.

The legal basis of the claims were either as a form of discrimination in Employment Law or as an infringement of a woman’s human right to manifest her religion. As a result of these claims, both the Employment Appeal Tribunal and House of Lords held that decisions which prohibit the wearing of a veil in schools are legitimate and proportionate to the aims of a liberal democratic society. Several European Governments (such as France and Belgium) have even enacted laws to prohibit veils from being worn in schools and in public. Following recent Judge Murphy’s decision in the Crown Court the question once again has been raised: should Britain enact a law to ban the veil from being worn in public?

For my PhD research, I conducted four focus group discussions with Muslim women who wear a hijab (headscarf) or niqab and live in Britain. The objective was to capture their views and experiences of the practice. This research is important as what is excluded from the current debate in Britain are the voices of women who wear the garments themselves.

Seventeen voluntarily participants, aged between 18 to 36 years of age, contributed to the discussions which were held at the University of Reading and two Muslim organisations in Bracknell and Manchester. All of the participants wore a hijab (with two exceptions, one wore a niqab and the other no longer wore the hijab). The participants were from a variety or family origins (for example, the Middle East, Mauritius and Somalia) and had a range of socio-economic backgrounds (such as being a house wife, contractual negotiator for a finance company as well as students on a variety of courses, including law and psychology). The views and experiences put forward by the participants are not intended to inform a generalizable account of the perspectives of women who wear a hijab or niqab and live in Britain: they simply reflect the personal day-to-day account of these seventeen participants.

Three key findings of the study are: first, the term ‘veil’ is inappropriate in reference to the practice of Muslim women covering their heads, bodies and faces in public. This is because the participants stated that this generic term describes a range of different garments, such as a hijab, jilbab, niqab and burqa (the hijab, jilbab and niqab worn together), and is used by opponents to promote a negative image of the practice (for instance, that Muslim women build a barrier between themselves and the rest of society). Accordingly, it is important that the precise description of a garment is used.

Second, during the discussions participants highlighted the connection between wearing a hijab or niqab and their personal relationship with God. Examples of participants needing to explain their reasons for covering to others, overcomes the assumption that all Muslim women who wear a hijab or niqab are oppressed by male members of their family or community. The way in which participants wore a hijab or niqab in their own particular style, fusing traditional Islamic dress with modern Western fashion trends, points to the existence of a space in which these women exercise freedom and creative capacity to construct their own identities.

Finally, overall, the study participants reported positive experiences of living in British society and following Islam. Britain provides religious tolerance and respect as well as education for women. As the participants reported making their own personal decision to wear a hijab or a niqab, none would remove the garments if prohibited by law.

Due to the findings from the study, my thesis is that no law should be enacted in Britain to ban a hijab, jilbab, niqab or burqa from being worn in public. This is because the existence of diverse religious and cultural identities forms an important part of the modern British collective identity. Instead, these garments should be recognised as Islamic ‘religious law’ and be protected as a human right for its wearer to manifest her religious beliefs.

As the Law Commission publishes its Supplementary Consultation Paper on the financial consequences of divorce, Dr Thérèse Callus, from the University of Reading’s School of Law, argues that the present law on divorce could be said to be uncertain, outdated and inappropriate to today’s couples.

The fate of pre-nups and divorce matters to more than just celebs

A Law Commission Consultation in 2011 considered whether ‘pre-nups’ – pre-nuptial agreements between spouses, as favoured by celebrities and the super-rich – should receive greater weight in English law. While pre-nups tend to be of only minimal interest to the average couple, their status in English law says a lot about how law regulates the consequences of marriage and civil partnership for us all. (The discussion that follows applies equally to civil partners insofar as the law relating to the dissolution of a civil partnership mirrors that applicable to spouses upon divorce). It is for this reason that the Law Commission issued the Supplementary Consultation Paper  ‘Marital Agreements, Needs and Property’ on 11th September 2012.

London is termed the ‘divorce capital of the world’ yet many argue that the law on divorce settlements is uncertain, dated and incompatible with today’s society. Wealthy individuals claim the right to draw up pre-nuptial contracts in order to protect ‘their’ wealth from being divided with an ex-spouse upon divorce. Yet these ‘contracts’ are not legally binding in law. They are simply one of the considerations that a court will take into account when deciding what a ‘fair’ outcome will be for the parties, through the application of an Act of Parliament from 1973.

In the English common law system, there is no equivalent to the continental matrimonial property regimes or contracts which come into effect upon marriage and which provide for property distribution when the marriage is dissolved through either divorce or death. Consequently, in England & Wales, what is gained from a bespoke case-by-case result is lost in the lack of certainty, both for practitioners advising their clients, and for couples about to embark upon marriage but who are concerned to maintain autonomy over their financial situation.

The law is thus unpredictable and unclear.  The Law Commission consultation on pre-nups in 2011 posed different options for reform and in so doing highlighted the controversial and ambiguous notions of ‘non-matrimonial property’ and the ‘needs’ of each spouse following divorce.  It is these wider issues that are of most interest to all couples and the subject of the Supplementary Consultation Paper.

In making an order, the English courts have always concentrated on the ‘needs’ of the claimant spouse. It is obvious that within most marriages, one or other of the spouses may make career – and therefore economic – sacrifices for the benefit of the family, and often to undertake child care. This in turn allows one spouse to continue with their career and earning progression. Upon divorce, the economically weaker spouse finds herself (or himself) at a disadvantage because of the respective contributions during the marriage. Is this merely to be seen as a matter of choice? Or should the law require that the spouse who maintains their earning capacity ‘compensate’ the other for their economic dependence? What of the pre-nuptial contract which stated that no claim should be made on each other? And what about pre-acquired wealth? For example, how should the law separate Paul McCartney’s wealth accumulated during his music career which preceded his marriage to Heather Mills compared to the family business in existence prior to the marriage, but which has greatly increased in value during the marriage, in part because the non-business spouse has looked after the family? These are some of the questions which need to be addressed through the current consultations.

Of course, more than the legal issues at stake are the political risks – no Government wants to be seen to be ‘undermining marriage’ but at the same time, claims for respect for individual autonomy and choice are strong. Yet choice is only real when parties know both the options and their consequences. The Supplementary Consultation Paper thus also highlights the importance of educating couples as to the legal implications of their actions.

The debate is now open not only on how finances should be shared upon divorce and dissolution of civil partnership, but indeed the rationale behind why the law should dictate how parties wish to manage their lives.  In limiting the consultation to marital property, agreements, and needs, the Government has indicated it is not willing to consider wholesale reform.  Although the Law Commission has realistically noted that such fundamental reform cannot be achieved in this current round, it is clear that the stakes for society are such that it is only a matter of time (and political will) before any Government is forced to grasp the nettle.

Dr Thérèse Callus is Senior Lecturer in Law and a member of the Advisory Board to the Matrimonial Property, Needs and Agreements project to the Law Commission. The opinions expressed in this piece are her own.

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Empowering judges to speak outside the courts

Lawrence McNamara is an ESRC Global Uncertainties research fellow at the University of Reading where he runs the Law, Terrorism and the Right to Know project which includes interviews with several judges.

This piece first appeared in The Guardian.

What should judges be able say outside the courts? One of the most senior judges, Lord Neuberger, has proposed some principles for “extra-judicial” statements. The speech, published this month, is an important one as these principles are likely to shape judicial contributions to public debate for some time to come, but do they go far enough?

The starting point is familiar: it is “quite inappropriate” for politicians to criticise judges or their decisions. There must be “mutual respect” between ministers and the judiciary. If they “slang each other off in public” it undermines the constitution, democracy and the rule of law. While the frankness is welcome, the content is not overly surprising.

But then Neuberger turns to what that means for the judiciary – and here it gets interesting.

Mutual respect means ministers and judges “must respect the other’s turf and not tread on it”. It means judges should not “answer back”. It is “unseemly and more undermining” to do so. However, it does not mean that judges should not speak at all. On the contrary, Neuberger says extra-judicial comments have “more benefits than drawbacks”. While he dictates caution and warns judges not to “seek publicity for its own sake” or to seek it for causes, his seven principles empower judges to speak.

Neuberger is fundamentally right. The individual and collective experience of the judiciary, and their established constitutional role, means they should contribute to public debate about substance and processes of justice. The challenge is how they should do so without compromising the constitutional roles of any branch of the state.

One path is obviously through judgments. This does not mean judicial activism but – this is different – judicial engagement. Judges have made pointed observations about any number of matters such as laws about police interviews, procedures in terrorism trials, or dealing with children who have committed serious crimes. For the public, the problem is many judgments are accessible. There are some excellent open databases of appeal judgments but the vast majority of trial judgments and sentencing remarks are unreported and unavailable to the public. It is time this was changed, especially if one takes the view that extra-judicial statements should be minimal.

An alternative path is through speeches or written pieces. In the week the international criminal court delivered its first verdict, ‘Reflections of a Trial Judge’ by Sir Adrian Fulford, leading judge in the Lubanga case and a high court judge, is an important contribution. Judges can articulate and explain from the horse’s mouth how the judicial role works and what they see as key contemporary issues. The lord chief justice and Neuberger himself are exemplary speakers in this regard. The supreme court’s mission includes promoting “knowledge of the ways in which justice should be rightly administered.” It is right that judges engage outside their judgments.

Of course, judges across the land will not be reading Neuberger’s principles and thinking, “Excellent! At last I have some clear guidance about when I should speak and what I can say.”  In spite of a judicial appearance on Masterchef, judges will inevitably be cautious of any public engagement with audiences outside the legal profession. Most judges will remain cautious and silent, and probably rightly so. At the senior end of the spectrum, though, while they will choose their battles carefully, Neuberger may have laid the ground for some interesting and well-chosen comments in the next couple of years.

Is there a point where judges would go too far? Or what might we be missing if they stop short? The justice and security green paper is a crucial contemporary case in point.

The conventional position is that judges “cannot comment on public policy” but can comment on “the practical consequences of certain policy choices”. We recently heard justice secretary Ken Clarke tell this to the joint committee on human rights in evidence to its inquiry into the green paper proposals for closed proceedings in civil cases.

For Neuberger, however, judges do not seem quite so restricted. Where policy “goes to the heart of the functioning of the judicial branch” then comment is not merely permissible, but there is arguably a judicial duty to comment. It might well be thought that closed proceedings, access to evidence and evaluation of evidence fall into that category. A judicial contribution to the justice and security debate would inform and enhance the process and policy choices that are made.

In England and Wales there could be more use of representative bodies to convey judicial views, especially on contentious issues. This would  avoid it falling to individual judges to give evidence to committees, which rightly concerns Neuberger. By contrast, this week the Judicial Conference of Australia has made a submission on mandatory sentencing that was requested by a parliamentary inquiry into proposed legislative amendments. It may be an approach worth considering more widely that would enhance the judicial contributions and avoid damage to the constitutional framework.

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Justice, security and secrecy

Law, Terrorism and the Right to Know (LTRK) is an ESRC and AHRC funded project led by Dr Lawrence McNamara in the School of Law. The project explores democratic traditions of open justice, media freedom and the contemporary demands of security. In January 2012, Lawrence and research assistant Sam McIntosh submitted a response to a Government consultation and to a Parliamentary Human Rights Committee inquiry into the Justice and Security Green Paper.

When seven former Guantanamo Bay detainees took legal action against the British Security Services, alleging complicity in their detention and mistreatment abroad, their claim for damages would inevitably involve a very public examination of UK security policy and practices. Relevant material would be disclosed to the claimants and considered in open court.

 The Government asked the court to use special procedures which would allow sensitive evidence to be considered in the absence of the claimants and the public. Disclosure, it was said, would damage national security. Conceding the case would avoid disclosure but would unjustifiably tarnish the security services. When the Court of Appeal held the law did not allow for secret evidence in civil proceedings, the Government settled the actions with payments to the claimants. However, wanting to ensure that it would in future be able use special procedures, the Government took two major steps.

First, it appealed the legal issue to the Supreme Court. In Al Rawi v The Security Service the Court held that the common law did not permit the use of special procedures in ordinary civil claims. Legislation would be required to open up that option.

As such, the second and now more significant path has been to set about legislating. To that end, in late 2011 the Government published a Green Paper on Justice and Security as part of a public consultation on how best to protect sensitive evidence.

The Green Paper proposes the introduction of Closed Material Procedures (CMPs) in all civil proceedings and inquests where sensitive information might arise. CMPs are already well established in some areas. They have been used for a decade in the Special Immigration Appeals Commission (SIAC) which hears matters such as appeals against deportations ordered on security grounds.

Under CMPs, judges and government representatives are security cleared. When sensitive evidence arises, the court goes into ‘closed session’ with the public, press and non-government parties (and their lawyers) excluded from the court. Security-cleared ‘Special Advocates’ are appointed to represent the non-government party’s interests during closed hearings. However, once the Special Advocates have seen the sensitive evidence, they cannot consult with or obtain instructions from those whose interests they represent.

The advantage of CMP is that, in theory, all relevant evidence can be considered by the judge. But there are also significant disadvantages to CMPs. A frequent criticism is that non-government parties are severely disadvantaged because they are unable to see, and therefore properly challenge, closed evidence which goes against their case. That is, while CMPs may mean that more evidence is considered, that evidence is less rigorously tested. Among the fiercest critics of CMPs are the Special Advocates who work within them. However, CMPs also have further very negative implications for the general public’s interest in judicial proceedings being conducted in open court and in accordance with the principles of open justice.

The LTRK response to the Green Paper takes issue with the Green Paper’s failure to adequately explore two key questions. First, the Green Paper seems to simply accept that CMPs are an essentially satisfactory way of ensuring justice between the parties, despite this being at odds with criticisms from Parliament’s Joint Committee on Human Rights and Special Advocates. Secondly, the Green Paper fails to seriously consider the implications that CMPs will have for open justice and ignores the real damage that their introduction could do to what Lord Brown in the Supreme Court has described as “the integrity of the judicial process and the reputation of English justice”.

Recognising that the Government appears determined to make CMP available in civil proceedings, the LTRK response goes on to suggest certain safeguards that may limit its impact on open justice. These focus on procedural checks to ensure that such proceedings are only used in truly exceptional circumstances and counter any trend towards their normalisation. Our response suggests that the criteria for engaging CMP should explicitly include the need to consider the benefits of justice being carried out openly and the harm done to the public interest of closed proceedings. It also suggests, for example, that media interests should be represented when courts consider the use of CMP.

The LTRK project will continue to examine the move towards legislation and the implications of proposals as they develop. Our website has regular updates.

www.reading.ac.uk/LTRK/

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A Road to Salvation or Fiscal Authoritarianism?

Dr Ioannis Glinavos is a lecturer in the School of Law at the University of Reading. His interest lies in examining the market-state relationship and offering a critical view on the orthodoxies that surround us.

We are all aware of the troubles of the Eurozone, but as with all systemic economic events we are not always able to critically evaluate the proposed solutions. Eurozone’s problems stem from the fact that an economic project (European Monetary Union or EMU) was used as a carrier for a political project (European federalisation). At the time of the creation of the monetary union it was obvious that countries with significantly different economic capacities and at different stages of the economic cycle were bunched together.Euro coin

The Maastricht rules were meant to deal with this problem by encouraging convergence within strict criteria. This did not happen, and in addition there is a lot of evidence suggesting it was not even tried in earnest. Europe ended up therefore with a fair-weather monetary arrangement, lacking fiscal co-ordination. The consequence was every incentive to use the newly low interest rates to borrow for both states (Italy, Greece) and private actors (Spain, Ireland) and no incentive to be fiscally responsible. What happened next we all know, the problem is what to do about it now.

The situation points to Germany proposing the solution. The German government has two choices. One is to bite the bullet and accept that the Eurozone cannot survive without transfers of wealth from the rich to the poor. This can only be achieved effectively by allowing the European Central Bank (ECB) to act as a lender of last resort (akin to the Bank of England and the Federal Reserve). Another solution is to reduce Eurozone membership to countries on convergent fiscal and macroeconomic paths. This second option means that Greece, and perhaps not only Greece, will exit the Eurozone. The current situation of ineffective transfers from the ECB to national central banks via purchases of bonds in the secondary market is unsustainable and does not address the underlying problems.

However, Germany making its choice is not the end of the matter. A smaller Eurozone can be achieved with less legal and political problems within Germany, but with potentially destabilising consequences for the markets and the entire European banking system. A Eurozone with the full faith of the ECB behind the debts of all its member states however is a totally different proposition. Accepting ECB support will come with the price of fiscal supervision by Brussels and by extension Germany. The introduction of legally binding fiscal restraints supervised by Eurozone authorities (or EU authorities as the UK allows it) perhaps in the form of constitutionally embedded ‘debt-breaks’ means surrender of economic policy to something equivalent to a federal government. This is a crucial political issue for every citizen in a euro-member state.

When the choice is between poverty or domination, voters may opt for domination. It is possible to envisage the Greeks electing to have foreign functionaries peering behind the backs of local decision makers and approving each decision, considering the utter failure of the national political class. Is it as easy to imagine the Italians and the Spanish doing the same? Even if people accept the argument that economic meltdown is at the door, and that help comes with the price of outsourcing policy to external actors, one cannot accurately predict what citizens will choose if asked.

Should the choice be taken away from them? Is the survival of the market more important than the survival of democratic political process? We live in an era where economic orthodoxy time and time again trumps democratic choice. This is rationalised in a number of ways and so far the public (even in this country when faced with austerity) has acquiesced. The point however is that there is a level beyond which economic policy determined outside the political process is perceived to be illegitimate. When a significant portion of the population feels ignored, then there is real danger of civil unrest. What do we choose therefore? To do what appears economically prudent (if the Germans propose it) or to do what is politically legitimate? Does the political class in Europe dare ask the people?

http://www.reading.ac.uk/law/

 

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