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Thursday, 29 April 2010

Third and Final Leaders' Debate: Summary

There we have it - the leaders' debates are over. Successful? Definitely. Decisive? We shall see. Tonight's third and final debate was feistier than the past two, particularly on the issue of immigration (an issue which has had more prominence after bigot-gate).

The economy was Brown’s to lose, and he did not. He proved that he is the doyen on the economy after his Chancellorship. His technocracy paid off, and there was little criticism (and rightly so) for the way in which Brown has dealt with the recession.

The most heated debate came on the issue of immigration. Cameron dodged direct questions from both of the other leaders about his proposed “cap on immigration”. My thoughts: arbitrary and vacuous. Merely electioneering to show that his party want to deal with immigration, but not too sure how. The two old parties criticised the Liberal Democrats purported “amnesty” on immigrants. Clegg was hesitant, but managed to defend his party’s position. Bring them into the system and, if necessary offer citizenship, or alternatively deport. How do the other parties propose identifying those who are here illegally?

Cameron perpetuated his party’s anti-European stance, and further perpetuated his intransigence over the increase in the Inheritance Tax Threshold. The parties were virtually on other issues including the loopholes in the benefits system and housing.

Democracy has been the winner and I predict a higher turnout in next week’s election. I often thought that the debates would focus far too much on style and leave substance on the sidelines. On the contrary, policy has been forensically debated, and credit must go to all three leaders for that.

The closing submissions were all strong. However, I do fear that we may have heard Gordon Brown’s valedictory? And possibly even Cameron’s too?

Thursday, 22 April 2010

Second Leaders' Debate: Summary

Tonight’s debate was meant to be focusing on international politics and foreign affairs. Despite a vigorous debate on the future of the Trident programme, the European Union and Clegg’s reminder about the illegality of the Iraq War, there was little debate on foreign policy. Where were questions about Iran? Where were questions about the Israel / Palestinian conflict? Sudan? Zimbabwe?. Instead we got a pointless question about the Pope’s visit.

Brown commenced with honesty – “If you want style and PR, count me out”. He delivered strong substance, and spoke with pride of Labour’s recent decisions on the economy. I thought he missed a crucial opportunity to embarrass Cameron about his new bedfellows in the EU, namely the homophobes and anti-Semites. Cameron improved on last week’s poor performance, but only a trifle. Cameron is still failing to sell this new “modern, compassionate Conservative party”. He was eventually embarrassed by Clegg when asked directly about his proposed cap on immigration, for which he provided no numerical answer.

Trident and immigration policy highlighted bipartisanship between the Tories and Labour against the Lib Dems. It was nice to see Clegg hold his own, and remain faithful to his ideologies.  The novelty of Clegg has definitely not worn off, and I predict a further boon for the Lib Dems in the polls.

Just a small mention of any gaffes. We are still waiting for a Ford-esque gaffe. Last week we had Cameron expressing the Chinese as a nuclear threat. This week we didn’t have a gaffe from Cameron, more an inappropriate comment about being “blown away” by the courage of the troops in Afghanistan. Reckless words ‘Dave’.

Clegg weathered a strong storm from both Cameron and Brown, and from a ferocious Fleet Street. After now 180 minutes and a long week, Clegg remains the frontrunner of the leaders. Naturally, with our FPTP system this will never equate to seats  - but he has proven that we have a three, not two, party system. 

Thursday, 15 April 2010

Leaders' Debate: Summary

Clegg won the night, hands down. Only the most partisan Tories and Labourites will say otherwise. But then of course he has far less to lose. Brown had a predictably slow start, but when it came to his forte - the economy - he shone. Also, his risk of humour regarding Lord Ashcroft paid off. Cameron was surprisingly disappointing. Many, including myself, expected a solid performance with perfect oratory. We got neither. Of all the parties, it will be Tory HQ which is the most concerned.

Gaffes were kept to a minimum. One important one (probably swept aside by the general interest of the debate itself) was Cameron referring to China as a nuclear threat. I suspect Hague will have to make vigorous apologies to Beijing.

Looking now to April 22nd, both Brown and Cameron have work to do. But the most pressure will be on Clegg  -he has a lot to live up to.

In summary, boon for the Liberals; Brown satisfied; Cameron disappointed. A great day for democracy.

Wednesday, 14 April 2010

The Pope has been arrested for crimes against humanity – This is no Hollywood plotline, just maybe a New Atheist conspiracy.

The news broke this week that the two vanguards of the New Atheist Church, Richard Dawkins and Christopher Hitchens, are seeking expert legal advice regarding the merits of having an arrest warrant issued for the arrest of Pope Benedict during his visit to Britain this September. The purported charge – crime against humanity. This charge relates to the Pontiff’s alleged complicity of sexual abuse during his period in office as Cardinal in 1985.
                                                                      
Whilst the Atheists are rejoicing, the Catholic Church is desperately trying to restore some form of normality. As I am neither an Atheist, nor a Catholic, I hope I can provide an objective viewpoint, whilst also providing some legal opinion.

The question of Britain exercising their “universal jurisdiction” is not in issue. This is possible as per their obligations under international treaties including the Fourth Geneva Convention and the Rome Statute of the International Criminal Court (both incorporated into British law by primary legislation). The core issues appear to be: 1) Does the alleged cover-up constitute a crime against humanity? 2) Under which British Statute will the Pope’s alleged crime be found? 3) Will the Pope enjoy immunity? 4) If all fails in Britain, can the Pope’s case be referred to the International Criminal Court?

The first question is evidential. There is a plethora of case-law, both national and international, regarding crimes constituting crimes against humanity. Whilst the charge does not present a prima facie crime against “humanity” compared to egregious crimes committed by despots and tyrannical rulers, the Rome Statute clearly defines the term. Article 7(g) states:

                “…sexual slavery,…or any form of sexual violence of comparable gravity”.

Despite the Pope’s alleged offence being ancillary, it is still a crime under international law in that he has assisted in concealing the commission of that offence. Is, however, this terminology used by Dawkins mere hyperbole for the ears of his own ‘flock’? I think so. There hasn’t yet been full disclosure of all the issues in relation to the 1985 incident, but the foreword of Article 7 of the Rome State includes important words:

“For the purposes of this Statute, “crime against humanity” means any of the following when committed as part of a widespread or systematic attack directed against any civilian population”.

Furthermore, the term is defined more specifically in the Explanatory Memorandum of the Statute as not being “isolated or sporadic events”. If proven, the acts are of course wrong and deeply embarrassing for the Vatican. “Systematic” they most definitely were not.

The New Atheist’s case is weakened yet further in relation to under which statute the arrest warrant should be issued under. The International Criminal Court Act 2001 is ruled out – Section 51 states that the Act applies to acts committed within the UK, or outside the UK by a British national. The Criminal Justice Act 1988 only applies to acts of torture (see Section 134/135). The Geneva Conventions Act 1957 is the only option, providing of course that they prove that the alleged crime was a “crime against humanity”.

The third issue presents more abstruse legal argument, and does not appear to be ground that has been covered previously. The Vatican has said it will vigorously defend the Pontiff, and has indicated that the New Atheists will be barred by the maxim of immunity ratione personae – immunity for acting Heads of State. However, despite the Pontiff being the head of the Vatican, is the Vatican legally recognised as a state by customary international law?

The New Atheists state that the Vatican is a construct of Mussolini, and was given its status as “permanent observer” at the United Nations as a placatory gesture and out of deference for the Pontiff. Moreover, the Vatican (or Holy See) does not enjoy status as a “state” by any international treaties and does not have sovereignty over its borders. If, however, a court were to find in favour of the Vatican having “state” status, then the Pontiff would usually only leave office at the time of his death, and would therefore receive impunity.

Lastly, can the case be referred to the International Criminal Court? Answer: yes, but with extreme difficulty. The Vatican (even if it is considered a state under international law) is not a Member State of the Court, and it would therefore require a United Nations Security Council Resolution to refer the case to the Prosecutor. If the five permanent members of the Security Council are struggling to reach a multilateral agreement regarding sanctions on Iran, something tells me there will be intransigence from one, if not all, of the members for the arrest of the Pope.
One positive for the Atheists about referring the case to the ICC is that the Rome Statute is that acting Heads of State cannot enjoy immunity (see Article 27) – just ask Omar al-Bashir!!

Say the case does end up on the desk of the Prosecutor, he will most likely show judicial deference and decide not to prosecute such a religious man. Also, lest us forget the raison d’etre of the Court – to establish a permanent tribunal for the most serious of international crimes, set up following the success of the two tribunals for crimes committed in Rwanda the Former Yugoslavia. This alleged crime that the Pope has committed is not a “crime against mankind itself”.

If the arrest warrant is issued, our Government will not have constitutional power to intervene despite probable calls from the Catholic community and Lords Spiritual. I would implore Government to respect the independence of our judiciary, irrespective of the high-profile arrestee.

The thought of the Pontiff appearing before the Old Bailey is unbelievable (in both meanings of the word). Nevertheless, should it play out as Dawkins and Hitchens are planning, I would not castigate them. Their motives are questionable and partly hedonistic; however, no person is above the rule of law and no person should receive impunity for a crime against humanity , not even the descendant of Saint Peter. 

“Be you never so high, the law is above you”.


Sunday, 4 April 2010

Strasbourg has spoken, the case is closed

The chasm between Strasbourg and London is at its widest for some time. There are countless examples of cases in which the British Courts have dismissed a claim for a breach of human rights and then the appellants have successfully appealed to Strasbourg: S and Marper v. UK; Gillan and Quinton v. UK to name just two recent examples.

Lord Hoffman, in his first extra-judicial comments made shortly before retiring as a Law Lord, spoke of his concern about the legitimacy of the Strasbourg Court. Lord Rodger in AF (2009) UKHL 28 (judicially but rather abruptly) said rather laconically “Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed”. And most recently, Lord Chief Justice, Igor Judge, has urged the lower courts to “save the common law”, and rely on common law precedents rather than surrendering to Strasbourg.

Lord Kerr has given the staunchest judicial backing to the jurisprudence of the Strasbourg court:

“The case-law of the ECtHR has, I strongly believe, enriched and enlivened our own human rights law … the unrivalled access that its jurisprudence gives us to experience of how human rights issues are resolved throughout the forty seven member states of the Council of Europe is one which we would be unwise to abandon”.

He does however talk of his disconcertment that only Ireland and the United Kingdom have legislative obligations to “take account of” Strasbourg jurisprudence.

I sit closer to Lord Kerr on this issue. There is much to gain from the jurisprudence from Strasbourg (as Strasbourg will also gain much from our senior judiciary). But the chasm is perilously wide, and with further appeals soon to be heard by the Grand Chamber in Al-Skeini and Al-Khawaja, the gap could become inoperable.