To prorogue or not to prorogue? (That indeed is the question)

Photo by Hugo Sousa on Unsplash

It was all meant to be so different from Theresa May’s chaotic time in Downing Street, but the last few weeks have not been kind to current UK Prime Minister, Boris Johnson.

He has been attacked for seeking the prorogation (suspension) of Parliament for 5 weeks; he has lost several (critical) parliamentary votes; he also lost his majority in the Commons; and he has been denied the General Election (which many of his critics believe that he secretly craves – despite official statements to the contrary). This last problem having arisen as a result of the restrictions imposed by the Fixed Term Parliaments Act 2011 – passed ironically with the votes of Conservative MPs in the more peaceful days of the UK Coalition Government (2010-15). The law of unintended consequences many of the Prime Minister’s supporters will no doubt lament.

The Prime Minister might have felt some relief last week when both the Queen’s Bench Division of the English High Court and the Outer House of the Court of Session ruled in two separate, but connected, cases that his decision to advise the Queen to prorogue Parliament (by using the Royal Prerogative) was not unlawful (see Gina Miller v the Prime Minister & Others; and Joanna Cherry MP and Others, Petition for Judicial Review both 2019).

That was until 11 September 2019), when the Inner House of the Court of Session (Scotland’s Supreme Civil Court) landed nothing less than a bombshell on the UK Government. Lords Carloway, Brodie and Drummond Young issued an opinion that the circumstances which surrounded the proroguing of Parliament was unlawful:

All three First Division judges have decided that the PM’s advice to the HM the Queen is justiciable, that it was motivated by the improper purpose of stymying Parliament and that it, and what has followed from it, is unlawful. …

The Court will accordingly make an Order declaring that the Prime Minister’s advice to HM the Queen and the prorogation which followed thereon was unlawful and is thus null and of no effect.

This decision clearly reverses Lord Doherty’s Opinion in the Outer House of the Court of Session which was issued on 4 September 2019.

Professor Stephen Tierney of Edinburgh University’s Law School referred to the judgement as “remarkable”.

In essence, the prorogation of Parliament was a tactical (underhand?) manoeuvre by the UK Government to make it more difficult for the UK Parliament to scrutinise and block it’s attempt to pursue a no deal Brexit by 31 October 2019. For now, the objective of the Government in this regard have been stopped in tracks.

The UK Government has been given leave to appeal against the decision of the Inner House and the matter will be now be determined by the UK Supreme Court at Guildhall, London.

A link to the full Opinion of the Inner House can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csih49.pdf?sfvrsn=0

Copyright Seán J Crossan, 11 & 13 September 2019

Mind your language!

Photo by Ilya Ilford on Unsplash

“Great big girl’s blouse!” or “a girly swot”. Harmless insults; a bit of banter; or perhaps an example of sexist language? Deborah Haynes, a journalist with Sky News, certainly took the view that these remarks were sexist in nature – even though men were the targets (see the link below).

https://news.sky.com/story/sky-views-girly-swot-big-girls-blouse-are-sexist-jibes-and-shouldnt-be-used-by-the-pm-11804690

The first of these remarks was uttered allegedly by Prime Minister Boris Johnson MP in the House of Commons last week and directed towards the Leader of the Opposition, Jeremy Corbyn MP. The second remark was in a memo written by the Prime Minister in which he was critical of David Cameron (one of his predecessors).

Mr Johnson is well known for his colourful language in both print and in his speeches, but he was called out last week in the House of Commons by the Labour MP, Tammanjeet Singh Dhesi who accused him in very blunt terms of making racist remarks about Muslim women who chose to wear the Islamic form of dress known as the burka as an outward sign of their religious beliefs and cultural background.

Mr Tammanjeet drew on his own experiences as a Sikh and the kinds of derogatory remarks that he had to endure. His speech was received very warmly on the Opposition benches of the House of Commons.

On the other hand, Mr Johnson attempted a defence of his language by saying that he had merely spoken up in favour of the good old fashioned liberal value of freedom of speech. It was not an entirely convincing performance from the Prime Minister and far from his finest hour at the despatch box.

The Equality Act 2010 recognises various forms of prohibited conduct such as direct discrimination (Section 13) and harassment (Section 26). Sexist, sectarian and homophobic remarks may well be taken as examples of direct discrimination. A sustained campaign of bullying to which an individual (with a particular protected characteristic) is subjected may amount to harassment.

It will be sensible for employers particularly to spell out to employees what is acceptable (and what is not) in terms of the kinds of language or behaviour in the work-place. If employers do nothing to check discriminatory remarks such as racist or sexist insults, there is a real danger that they could be held vicariously liable.

Had Mr Johnson been a mere mortal, some of his remarks may have come back to haunt him. Employers are entitled to take disciplinary action against those employees who have committed acts of discrimination. After all, they are merely protecting their position by not leaving themselves open to the threat of legal action by the victims.

From the employee’s perspective, engaging in offensive language could give the employer the right to treat this type of behaviour as gross misconduct. It should be recalled that, in terms of Section 98 of the Employment Rights Act 1998, misconduct committed by an employee can be punished by dismissal and such a termination of the employment contract may be entirely reasonable in the circumstances.

In short, no one should have to work in a place where there is a hostile, degrading or intimidating environment. Racist or sexist remarks can be highly suggestive of such a working environment if permitted to go unchecked and unchallenged. Maybe in future the Prime Minister would do well to mind his language.

Links to articles about the Prime Minister’s colourful turn of phrase can be found below:

https://news.sky.com/video/share-11802095

http://news.sky.com/story/boris-johnson-branded-david-cameron-girly-swot-leaked-document-reveals-11803807

Copyright Seán J Crossan, 7 September 2019

Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Copyright Seán J Crossan, 10 September 2019

Stop the coup …?

Photo by Samuel Zeller on Unsplash

On 28 August 2019, the UK Prime Minister, Boris Johnson MP announced that he would seek the permission of Queen Elizabeth II, the British Head of State to prorogue (suspend) the sitting of the Westminster Parliament between 10 September and 14 October 2019. The Queen duly acceded to this request – though in her defence she could not really refuse being a mere ceremonial Head of State i.e. without possessing real executive powers

The Prime Minister has argued that there was nothing untoward or sinister about this development and that it was a necessary step to introduce a new Queen’s Speech which would set out the priorities of the Government which he leads.

This did not convince opposition politicians (Jeremy Corbyn, Nicola Sturgeon and Jo Swinson et al) who predictably labelled the move a “coup” i.e. an unlawful seizure of power and the undermining of British democracy. They argued that the move to suspend Parliament for 5 weeks was more about the Prime Minister driving his Brexit agenda through without proper parliamentary scrutiny – not about a new legislative programme.

In any event, the courts have now become involved in the matter: 78 British parliamentarians (representing all strands of political tradition) petitioned Scotland’s Court of Session to have Prime Minister Johnson’s action declared invalid.

A preliminary hearing took place last week and the judge, Lord Doherty was refused to grant the petitioners an interim interdict (a temporary court order) preventing the Prime Minister from carrying out his intention to prorogue the UK Parliament. A full hearing of the Court followed on Tuesday 3 September in Edinburgh, where both sides (the petitioners and the UK Government) set out their respective legal arguments in full.

As of this morning (Wednesday 4 September 2019), Lord Doherty has made his decision whereby he has declined to uphold the petition to prevent the Prime Minister from proroguing Parliament.

A link to Lord Doherty’s opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh70.pdf?sfvrsn=0

The underlying rationale of Lord Doherty’s judgement seems to be that this political and not a legal matter. In other words, it will be for members of the UK Parliament – or ultimately the British electorate – to sort out this matter.

A link to the Evening Standard’s website containing video footage of Lord Doherty delivering the substance of his opinion can be found below:

https://www.standard.co.uk/news/politics/scottish-courts-throw-out-challenge-to-boris-johnson-proroguing-parliament-a4228621.html

This will not be the final word on the matter – there are bound to be appeals against Lord Doherty’s judgement (and he may well be relieved to be exiting stage left). I would not be surprised if this matter ultimately proceeds to the UK Supreme Court for a definitive judgement.

This, of course, is one of the problems with having an unwritten British Constitution. In other countries, which have written constitutions (France, Germany, Italy and the USA), there are very clear rules about suspending Parliament or the national legislature. Only last week in Italy, the prominent politician Matteo Salvini withdrew his party (the Northern League) from the Government in an attempt to force fresh, national elections. Mr Salvini miscalculated because the Italian President (the Head of State) decided not to dissolve Parliament and call new elections. Rather the President gave Salvini’s ex-coalition partner, the 5 Star Movement, and the Democratic Party an opportunity to form a new government (which they have duly managed to achieve). President Mattarella was clearly entitled to take this action under the relevant Articles of the Italian Constitution.

This does not mean that, in political systems with written constitutions, the courts have no role. Of course they do. It is an accepted part of the political culture of these countries that a Supreme Court or a Constitutional Court will be the final arbiter of very thorny legal and political issues e.g. the role of the US Supreme Court in legalising abortion (Roe v Wade 410 U.S. 113 (1973)) or same sex marriage (Obergefell v Hodges 576 U.S. ___ (2015)). They may be controversial in nature and generate heated debate for decades to come, but very few US citizens would contest the right of the Supreme Court to make such judgements.

As a point of contrast, note the hysteria which was generated when judges of the English High Court permitted Gina Miller’s action to succeed in blocking former Prime Minister Theresa May’s attempt to trigger Article 50 of the Treaty on European Union without, first, securing UK parliamentary approval (see R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5).

The UK tabloid newspaper, The Daily Mail ran an astonishing front page on 4 November 2016 branding the judges “enemies of the people”. More prosaically, the High Court’s judgement (later approved by the UK Supreme Court in early 2017) was merely clarifying the law surrounding the Prime Minister’s use of the Royal prerogative in foreign affairs. You would not have thought this from the media and political reaction in certain quarters.

In such circumstances, it’s hardly surprising that Lord Doherty is only too happy to pass the buck to the politicians … for now anyway …

Watch this space.

Postscript

The Inner House of the Court of Session (consisting of Lords Carloway, Brodie and Drummond Young) will now hear an appeal by the petitioners against Lord Doherty’s judgement. This is scheduled to take place the week beginning Monday 9 September 2019.

In a separate, but connected, legal challenge, the English High Court rejected a bid by the campaigner, Gina Miller, to have the prorogation of Parliament declared unlawful. Leave to appeal to the UK Supreme Court has been granted.

Copyright Seán J Crossan, 4 and 6 September 2019

Facebook folly

Photo by Kon Karampelas on Unsplash

Regular readers of this Blog will be aware that a number of my previously published articles have commented on individuals being dismissed from employment because they posted offensive or ill advised comments on social media platforms.

Such dismissals can be potentially fair grounds for termination of the contract of employment because the employer will able to claim that the employee’s behaviour (or misconduct) has caused reputational damage.

Section 98 of the Employment Rights Act 1996 makes it very clear that that acts of misconduct committed by the employee can constitute fair grounds for dismissal.

An interesting case which was reported today is McAlpine v Sodexo Justice Services (Sodexo Ltd) ET Case 4121933/18 where McAlpine, a prison officer employed at Her Majesty’s Prison Addiewell, lost his claim for unfair dismissal. On the facts, the Edinburgh Employment Tribunal held that Sodexo, the employer, was justified in dismissing McAlpine for posting offensive comments about Muslims (amongst other things) on Facebook while he was off duty.

It was not a competent defence put forward by McAlpine that some of the remarks which he posted were not his own, but rather those of the far right activist and campaigner, Tommy Robinson (real name Stephen Yaxley-Lennon).

Sodexo had a clear social media policy for its employees and the relevant sections can be found below:

6.1 You must avoid making any social media communications that could damage our business interests or reputation, even indirectly…

6.2 You must not use social media to defame or disparage us, our employees or any third party; to harass, bully or unlawfully discriminate against employees or third parties; to make false or misleading statements; or to impersonate colleagues or third parties”.

In a section entitled Miscellaneous Rules, individuals were informed about the following conditions governing their employment with Sodexo:

Employees must be honest at all times, in connect with their employment and must not breach the trust and confidence that is provided to them by the Company or Client. … Employees must not engage in, condone or encourage any behavior that could be regarded as harassment, bullying, victimisation or discrimination”.

Significantly, Sodexo had also stated that a “… breach of any of these rules would be considered gross misconduct”.

The Employment Tribunal was satisfied that in deciding to dismiss McAlpine for misconduct, the employer had followed its disciplinary procedure correctly and the ultimate sanction of termination of his employment was within the band of reasonable responses.

It is worth noting that the employer’s disciplinary procedures were fully in accordance with the current ACAS Code of Practice.

In these circumstances, it can hardly be surprising that McAlpine lost his case.

A link to the Employment Tribunal’s judgement can be found below:

https://assets.publishing.service.gov.uk/media/5d1dcab8ed915d0bc72d8700/McAlpine_v_Sodexo_-_4121933-2018_-_Judgment.pdf

Copyright Seán J Crossan, 3 September 2019

Space oddity?

Photo by History in HD on Unsplash

It had to happen at some point: the first allegation of a criminal act in outer space.

The locus: the international space station orbiting Planet Earth.

The suspect: a NASA astronaut.

The alleged offence: the astronaut in question is accused of hacking into her ex-wife’s bank account from the international space station. Good old fashioned fraud or theft in a hi-tech setting. At last reality is catching up with all those fictional crime dramas set in outer space.

Which criminal law has jurisdiction? Good question.

Thankfully, we have a point of reference: Article VIII of the 1967 Outer Space Treaty.

Article VIII states:

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

That said, no single State/country or Agency (e.g. NASA or ESA/ASE) controls the international space station. We do have an Inter-governmental Agreement signed in 1998 regulating the space station and Article 22 is particularly relevant (please see the image below):

Under the terms of Article 22, it looks as if the Americans probably have jurisdiction in the matter because one its astronauts is alleged to have committed the crime.

Readers can find a link below to the Inter-governmental Agreement of 1998:

https://www.state.gov/wp-content/uploads/2019/02/12927-Multilateral-Space-Space-Station-1.29.1998.pdf

Should we be surprised about this development? No, wherever humans go, crimes will undoubtedly be committed. As space travel, exploration and colonisation become more common in the coming decades, expect more stories about crime in outer space and the need to police it effectively.

A link to the story as reported on Sky News can be found below:

http://news.sky.com/story/is-this-the-first-crime-committed-in-space-11792853

Copyright Seán J Crossan, 30 August 2019

Copyright Seán J Crossan, 30 August 2019

Once a criminal …

Photo by GRAS GRÜN on Unsplash

… always a criminal?

That’s a very good question. Do we lock people up and throw away the key with all the cost implications for society or do we need new and bolder approaches to deal with this age old problem?

Do we stigmatise or brand people as criminals for life or, as a society, are we serious about rehabilitating members of the community who fall into lives of crime?

Obviously, there is a tension here: we have to balance the interests of victims of crime and giving people who commit crimes the chance to reform. No one is pretending that this will be easy.

In a previous blog (Crime and … kindness? published on 12 March 2019), I commented on a story which reported the visit to Scotland of two American judges who were very keen to promote new approaches to criminal justice in order to cut rates of reoffending.

The two American judges were keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They both pointed to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. The second judge, Judge Pratt, on the other hand, specialises in “procedural justice”.

She explained to BBC Scotland what was meant by the term “procedural justice”:

“… that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”

In Scotland, the Children’s Hearing our Panel system has been held up as a shining example of an approach taken by the State when dealing with young people who have broken the rules of society. Keep children out of the criminal courts and you may have more of chance of getting them back on track so that enter adulthood as law abiding citizens. Brand them as criminals from a young age and you may well set them on a path from which there is no return.

So, it was with some interest that I read about a novel approach taken by the Police in The English city of Bristol for dealing with young people who had been involved in dealing in drugs in attempt to promote rehabilitation and cut reoffending rates.

In an initiative called the “Call-In-Scheme”, Avon and Somerset Police are targeting first offenders aged between 16 and 21 who have been caught dealing drugs. The choice: go to court, be convicted with all the consequences this outcome will entail or go straight. Participants in the scheme will be selected by a panel.

How do you incentivise or encourage people to break patterns of criminal behaviour? Well, offer young offenders free driving lessons, job opportunities and even fitness classes.

The scheme will not apply to individuals who have committed sexual or violent offences or those have relevant, previous convictions for drug offences.

Will it succeed? Watch this space …

A link to the story as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.290819/data/9082006/index.html

Copyright Seán J Crossan, 30 August 2019