20 million wrong Universal Credit decisions each year … time to UC off

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Universal Credit will be claimed by 8.5 million UK households and each will have at least 12 decisions each year.  Of these 102 million individual UC decisions each year 20% of them will be wrong and result in short payment says the National Audit Office.

Over 20 million wrong and underpayments each year yet we still have idiots calling for a stop and fix rather than stop and abandonment policy!  We still have idiots saying UC is fine in theory it is only the implementaion that is wrong! Wake up and smell the coffee.

What is wrong with Universal Credit is that it is THE most incompetent social welfare policy ever created.  It is incompetent by design.

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Frankenstein IDS and his latest monster Rudd

After more than 5 years since it began to be rolled out nationally in October 2013 so many basic errors and faults and flaws have still not been corrected and we see the NAO state that 1 in every 5 decisions is wrong.  You cannot even roll the UC turd in glitter any more and the policy has to be abandoned.

Even the latest concerted challenge to stop UC rolling out before Christmas 2018 on the basis it will cause hardship at Christmas is idiotic.  Its basis is leave it till January 2019 and presumably on the basis that the abject poverty it creates on implementation is somehow fine if it occurs in January and February but not in December!!

Sir Amyas Charles Edward Morse, KCB is the Comptroller and Auditor General of the National Audit Office (NAO), an independent Parliamentary body and who wrote to the Secretary of State Work & Pensions (ie DWP) in July 2018 (see here) informing the then SSWP Esther McVey that 20% of Unversal Credit decisions are wrong

We also know that 20% of claimants are not paid in full on time and that the department cannot measure the exact number of additional people in employment as a result of universal credit.

  • 20.4 million wrong UC decisions each year
  • 1.7 million wrong UC decisions each and every month
  • 1.7 million UK households being underpaid each and every month
  • Over 4 million men, women and children directly placed into poverty  (1.7m households containing 2.4 people) each and every month due to this incompetent farrago of a policy

Over 5 years of “Stop and Fix” aka “Test and Learn” activities to fix this policy of its most basic of errors and it is still not fit to even be called a turd.

If 1 in 5 UC decisions are wrong NOW with just 10% of the intended full UC cohort claiming this incometent mess of a policy and after more than 5 years of piecemeal changes in the test and learn strategy then imagine what  it will be like when UC expands to ten times its current claimant number!  So far the UC 10% are the easiest and least complex cases of (mostly) single persons.  The Government test and NOT learn policy cannot even roll the policy in glitter on the easiest and least complex cases!

Universal Credit is a failure by design.  The Government UC test and learn policy is also a failure.

 

via 20 million wrong Universal Credit decisions each year … time to UC off

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A few thoughts on the “£23m extra” for legal aid

£23 million extra is little comfort in the context of swingeing cuts and continuing austerity:
“So while the MoJ may congratulate itself, make no mistake – this is not a solution. Not even close. £15m for legal aid when you’ve sacrificed £4bn, demolished the court & prison estate and excluded the most vulnerable from accessing justice, is not the end. It’s barely the start.”

The Secret Barrister

Just a few thoughts about this story on the proposed “£23m increase” in legal aid criminal defence fees, which has been making some headlines. The Ministry of Justice has loudly publicised the agreement struck with the Criminal Bar Association over legal aid rates paid to criminal defence advocates – the story was even towards the top of the Radio 4 news bulletins – so some context may help anyone not fluent in the vacillating politics of the criminal Bar (i.e. normal people).

As an opening disclaimer, nothing that follows is intended as a dig at or slight towards those who have worked exceptionally hard on behalf of the criminal Bar to negotiate with an historically untrustworthy and dishonest Ministry of Justice. They have done their best, and have secured gains. However.

The MoJ’s press release headline is “The government will spend an additional £23 million on fees for criminal defence…

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Appeals in family proceedings: the rules diverge

“For appeals which are in the family courts under FPR 2010 Pt 30, the judge is likely to expect that, in accordance with the general rule in family proceedings, most hearings will be in private (r 27.10). However, the new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(2)(c)).

No more is said by the new rule as to how the new open court powers are to operate. For example what factors should the judge take into consideration when deciding whether to open the court to the public?”

dbfamilylaw

20170407_185106Work out which court: spot the differences in procedure…

Rule-makers often make things needlessly difficult for parties to family proceedings. An example, for which there should have been no need if the rule-makers took a little care (and co-operated with one another) is for those involved appeals from family courts decisions. First, would be appellants in family cases, have the worry of working out which court they must appeal to – High Court family judge or Court of Appeal. Secondly, they must be clear which set of rules – Civil Procedure Rules 1998 (CPR 1998) Part 52 or Family Procedure Rules 2010 (FPR 2010) Part 30 – applies to their appeal. (The first dictates the second.) For parties who are doing their own legal work – that is, litigants in person, who account for up to 40% of appeal cases, it is said – just to start an appeal under…

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#BREXIT: Secession from the European Union!

Secession from the European Union | Thierry Meyssan |  | DAMASCUS (SYRIA) 

For Thierry Meyssan, the way in which Germany and France are refusing the right of the United Kingdom to leave the European Union demonstrates the fact that the EU is not simply a straight-jacket – it also goes to show that the Europeans still care as little about their neighbours as they did during the two World Wars. Manifestly, they have forgotten that governing a country means more than simply defending its interests in the short term, but also thinking in the long term and avoiding conflicts with its neighbours.

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The member states of the European Union seem unaware of the clouds that are gathering above their heads. They have identified the most serious problems of the EU, but are treating them with nonchalance, and fail to understand what the British secession (Brexit) implies. They are slowly sinking into a crisis which may only be resolved by violence.

The origin of the problem

During the dissolution of the Soviet Union, the members of the European Community accepted to bow to the decisions of the United States and to integrate the states of Central Europe, even though these states did not correspond in any way to the logical criteria of adhesion. With this momentum, they adopted the Maastricht Treaty, which transformed the European project of economic coordination between European States into that of a supra-national State. The idea was to create a vast political bloc which, under the military protection of the United States, was intended to engage with the USA on the road to prosperity.

This super-State has nothing democratic about it. It is administered by a collegiate of senior civil servants, the Commission, whose members are designated one at a time by the heads of state and government. Never before in History has an Empire functioned in this way. Very quickly, the paritarian model of the Commission spawned a gigantic paritarian bureaucracy in which some states are « more equal than others ».

This supra-national project turned out to be inadaptable to a unipolar world. The European Community sprang from the the civil chapter of the Marshall plan – NATO being the military chapter. The Western European bourgeoisies, frightened by the Soviet model, had been supporting the European Community since the Congress convened by Winston Churchill in The Hague in 1948. However, after the disappearance of the USSR, they no longer had any interest in continuing along this road.

The ex-States of the Warsaw Pact could not decide whether to engage in the Union or form a direct alliance with the United States. For example, Poland bought US war planes which it used in Iraq with the money granted by the Union for the modernisation of its agriculture.

Apart from the development of police and legal cooperation, the Maastricht Treaty created a single currency and foreign policy. All the member states were obliged to adopt the Euro as soon as their national economy would allow it. Only Denmark and the United Kingdom, catching the scent of impending problems, stayed out of it. As for the foreign policy, it seemed to make sense in a unipolar world dominated by the United States.

Taking into account the differences within the Euro zone, the small fry were destined to become the prey of the biggest of the sharks, Germany. The single currency which, at the moment it was put into circulation, had been adjusted to the dollar, transformed itself progressively into an internationalised version of the German Mark. Incapable of competing, Portugal, Ireland, Greece and Spain were symbolically qualified as PIGS by the financiers. While Berlin pillaged their economies, it offered Athens a restoration of its wealth – if Greece would hand over a part of its territory.

It so happened that the European Union, while pursuing its global economic growth, was overtaken by other states whose economic growth was several times faster. While adhesion to the European Union was an advantage for the ex-members of the Warsaw Pact, it had become a millstone for the Western Europeans.

Drawing lessons from this failure, the United Kingdom decided to retire from the super-State (Brexit) in order to reconnect with its historic allies from the Commonwealth and, if possible, with China. The Commission panicked, fearing that the British example would open the door for other departures, for the maintenance of the Common Market but the end of the Union. It therefore decided to set conditions which would be dissuasive for leavers.

The internal problems of the United Kingdom

Since the European Union serves the interests of the rich at the expense of the poor, the British workers and rural citizens voted to leave, while the tertiary sector voted to stay.

Although British society, like other European countries, has an upper middle class which owes its enrichment to the European Union, unlike the other great European countries, it also has a powerful aristocracy. Before the Second World War, this class enjoyed all the advantages offered by the European Union, but also a prosperity that it can no longer expect from Brussels. The aristocracy therefore decided to vote for the Brexit against the upper middle class, which sparked a crisis within the ruling class.

Finally, the choice of Theresa May as Prime Minister was intended to preserve the interests of people from all walks of life (« Global Britain »). But things did not go as intended.
- First of all, Mrs. May was unable to conclude a preferential agreement with China, and experienced difficulties with the Commonwealth, with whom the bonds had been loosened over time.
- Next, she encountered problems with the Scottish and Irish minorities, particularly since her majority includes Irish Protestants who cling to their privileges.
- Besides that, she ran into the blind intransigence of Berlin and Brussels.
- Finally, she will have to face up to challenges and questions about the « special relationship » which links her country to the United States.

The problem revealed by the application of the Brexit

After having tried in vain several readjustments of the treaties, the United Kingdom democratically voted for the Brexit on 23 June 2016. The upper middle class, who did not believe this could happen, immediately attempted to invalidate their choice. There was talk about organising a second referendum, as had been done in Denmark for the Maastricht Treaty. This did not seem possible, so a distinction was made between a « hard Brexit » (without new agreements with the EU) and a « soft Brexit » (with the maintenance of various pre-existing agreements). The Press claimed that the Brexit would be an economic catastrophe for the British people. In reality, studies carried out before the referendum, and therefore before this debate, all attest that the first two years after the British exit from the Union would be recessive, but that the United Kingdom would quickly recover and overtake the Union. The opposition to the result of the referendum – and therefore opposition to the popular vote – managed to hinder its application. The notification of the British exit was delivered by the government to the Commission with a delay of nine months, on 29 March 2017.

On 14 November 2018 – two years and four months after the referendum – Theresa May capitulated and accepted an unfavourable agreement with the European Commission. However, when she presented this deal to her government, seven of her ministers resigned, including the minister in charge of the Brexit. Clearly he had overlooked the elements of the text that the Prime Minister had assigned to him.

This document includes a disposition which is absolutely unacceptable for a sovereign state, whatever it may be. It institutes an unstated period of transition, during which the United Kingdom will no longer be considered as a member of the Union, but will nonetheless be obliged to follow its rules, including those which are still to be adopted.

Behind this devious plot hide Germany and France.

As soon as the result of the British referendum was known, Germany realised that the Brexit would provoke the loss of several tens of billions of Euros from its own GDP. Merkel’s government therefore got busy – not at adapting its own economy, but at sabotaging the United Kingdom’s departure from the Union.

As for French President Emmanuel Macron, he represents the European upper middle class, and is therefore by nature opposed to the Brexit.

The men behind the politicians

Chancellor Merkel knew she could count on the President of the Union, Polish Donald Tusk. In fact this man is not at his current post because he is the ex-Prime Minister of his country, but for two different reasons – during the Cold War, his family, members of the Cachoube minority, chose the United States over the Soviet Union, and besides that, Tusk is a childhood friend of Angela Merkel.

Tusk began by questioning British engagement in the multi-annual programmes adopted by the Union. If London were to pay the sums to which it had agreed, it would not be able to leave the Union without paying an exit tax of between 55 and 60 billion pounds.

French ex- minister and commissioner Michel Barnier was nominated as head negotiator for dealings with the United Kingdom. Barnier had already stirred up a number of solid enmities in the City, which he treated badly during the crisis of 2008. Furthermore, British financiers dream of handling the convertibility of the Chinese yuan into Euros.

Barnier accepted to take the German Sabine Wey as his assistant. It is in reality Ms. Wey who is leading the negotiations, tasked with the mission of guaranteeing their failure.

At the same time, the man who « made » the career of Emmanuel Macron, ex-head of the Inspectorate General of Finances, Jean-Pierre Jouyet, was named as the French ambassador in London. He is a friend of Barnier, with whom he handled the financial crisis of 2008. To kill the Brexit, Jouyet is relying on the Conservative leader of the opposition to Theresa May, the President of the Foreign Affairs Committee to the House of Commons, Colonel Tom Tugendhat.

Jouyet chose Tugendshat’s wife Anissia Tugendhat as his assistant at the French embassy in London. She is a graduate of the elite École Nationale d’Administration.

The crisis came to a head during the the summit of the European Council in Salzbourg, in September 2018. Theresa May presented the consensus that she had managed to establish in her country, and that many others would be well advised to use as an example – the Chequers plan (to maintain only the Common Market ties between the two entities, but not the free circulation of citizens, services and capital, and no longer to be ruled by Luxembourg’s European administrative and legal system). Donald Tusk brutally rejected this plan.

At this point, we have to take a step back. The agreements that put an end to the revolt of the IRA against English colonialism did not resolve the causes of the conflict. Peace was only found because the European Union allowed the abrogation of the frontier between the two Irelands. Tusk demanded that in order to prevent the resurgence of this war of national liberation, Northern Ireland be maintained in the Union’s Customs sector. This implies the creation of a frontier controlled by the Union, cutting the United Kingdom in two, and separating Northern Ireland from the rest of the country.

During the second session of the Council, before the heads of state and government, Tusk slammed the door in Mrs. May’s face, leaving her alone. A public humiliation which could not remain without consequence.

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Reflections on secession from the European Union

All this fiddling attests to the skill of the European leaders at political sleight of hand. They appear to respect the rules of impartiality, and to take their decisions collectively with the sole aim of serving the general interest (even though this declared motive is refuted only by the British). In reality, certain of these leaders defend the interests of their country to the detriment of their partners, while others defend the interests of their social class to the detriment of everybody else. The worst is obviously the threat brought to bear on the United Kingdom – it must submit to the economic conditions of Brussels, or there will be another instalment of the war of Independence in Northern Ireland.

Such behaviour can only lead to the re-awakening of the intra-European conflicts which triggered two World Wars – conflicts that the Union has masked within its own territory, but which remain unresolved and persist outside of the Union.

Conscious that they are playing with fire, Emmanuel Macron and Angela Merkel suddenly evoked the creation of a common army which would include the United Kingdom. It is true, of course, that if the three major European powers should agree to form a military alliance, the problem would be resolved. But this alliance is impossible, because it is unfeasible to build an army without first deciding who will command it.

The authoritarianism of the supra-national State has swelled to the point where, during the negotiations on the Brexit, it created three other fronts. The Commission opened two procedures for sanctions to be instituted against Poland and Hungary, (at the request of the European Parliament), accused of systemic violations of the values of the Union – procedures whose objective is to place these two states in the same situation as the United Kingdom during the period of transition – being constrained to respect the rules of the Union without having any say in their determination. Besides which, hampered by the reforms currently under way in Italy which are working against its ideology, the supra-national State refuses to allow Rome the right to build a budget in order to implement its own politics.

The Common Market of the European Community enabled the establishment of peace in Western Europe. Its successor, the European Union, is destroying this inheritance, and is setting its own members one against the other.

 

 

Translation
Pete Kimberley

Continuing Furore Over #Khashoggi Murder!

Continuing Furor Over Khashoggi’s MurderStephen Lendman | 20 November 2018

It’s hard remembering when the assassination of anyone, other than a key head of state, aroused as much international furor that won’t die as Khashoggi’s murder.

His elimination remains a headlined story over seven weeks since the October 2 incident.

The CIA and White House are at odds over who’s responsible for what happened. Langley’s damning conclusion, pointing fingers at Mohammad bin Salman (MBS), indicates opposition to his becoming Saudi king.

Key for the agency is he displaced a Western intelligence favorite – Mohammad bin Nayef, as well as Langley and some of Riyadh’s closest allies believing he’s too reckless and untrustworthy to lead the kingdom when his father, king Salman, passes.

Clearly he ordered Khashoggi’s murder. Yet Trump and his regime hardliners refuse to lay blame where it belongs, sticking by MBS despite his reckless actions since becoming crown prince, destabilizing the region more than already.

On Monday, Reuters reported that “some members of Saudi Arabia’s ruling family are agitating to prevent (MBS) from becoming king, three sources close to the royal court said,” adding:

“Dozens of princes and cousins from powerful branches of the Al Saud family want to see a change in the line of succession, but would not act while King Salman – the crown prince’s 82-year-old father – is still alive, the sources said. They recognize that the king is unlikely to turn against his favorite son…”

Prince Ahmed bin Abdulaziz, king Salman’s younger brother (age-76), appears their favorite to succeed him, according to unnamed Saudi sources.

He’s supported by some royal family members, Saudi intelligence officials, and some Western nations. In 2017, he opposed MBS becoming crown prince, criticizing his actions.

In October, he returned to the kingdom from short-term self-exile in London, reportedly to challenge MBS or find someone else to replace him as crown prince – reportedly with US and UK guarantees for his safety.

His senior ruling family status may protect him. According to Middle East Eye sources, he was “encouraged to usurp” MBS, three unnamed senior princes backing him, a figure considered more stable and reliable than the crown prince.

Reuters said “(s)enior US officials have indicated to Saudi advisers in recent weeks that they would support prince Ahmed…according to Saudi sources with direct knowledge of the consultations.”

US officials are concerned that MBS “urged the Saudi defense ministry to explore alternative weapons supplies from Russia,” said Reuters, citing unnamed Saudi sources, adding:

A May 15 kingdom letter, seen by Reuters, said MBS requested Saudi’s defense ministry to “focus on purchasing weapon systems and equipment in the most pressing fields” – notably Russia’s S-400 air defense system he and king Salman agreed to buy last year.

In early November, Saudi Ambassador to Russia Raed Bin Khaled Qrimli said talks on the purchase “are still ongoing. They are not over yet.”

The kingdom’s purchase was agreed on during king Salman’s first-ever state visit to Moscow in October 2017, MBS supporting it, angering Washington, pressuring Riyadh to cancel it, wanting the Saudis to buy Lockheed Martin’s Terminal High Altitude Area Defense (THAAD) anti-ballistic-missile system instead – despite superior S-400 technology, the world’s best.

Sources Reuters quoted and cited said actions by MBS weakened the House of Saud, adding:

“According to one well-placed Saudi source, many princes from senior circles in the family believe a change in the line of succession ‘would not provoke any resistance from the security or intelligence bodies he controls’ because of their loyalty to the wider family.”

Riyadh’s security apparatus “will follow any consensus reached by the family.” King Salman remains an obstacle to succession, sticking by his favorite son, “believing there(’s) a conspiracy against the kingdom,” said Reuters.

To succeed his father as king, MBS needs the kingdom’s 34-member Allegiance Council to agree to his ascension.

Saudi source told Reuters that MBS “destroyed the institutional pillars of nearly a century of Al Saud rule: the family, the clerics, the tribes and the merchant families. They say this is seen inside the family as destabilizing.”

The Khashoggi incident weakened his grip on power, whether enough to be replaced as crown prince remains to be seen.

A Final Comment

According to a Middle East Eye senior Saudi source, Mike Pompeo gave MBS “a roadmap to insulate himself from the (Khashoggi) scandal” during his mid-October visit to Riyadh, adding:

It “includes an option to pin (Khashoggi’s) murder on an innocent member of the ruling al-Saud family in order to insulate those at the very top” – the convenient patsy yet to be chosen.

I discussed the possibility in an October 18 article headlined: Saudis Likely to Follow Key Machiavellian Principle in Handling Khashoggi Incident Fallout, saying:

In The Prince, Machiavelli explained how rulers should distance themselves from state-sponsored criminality – shifting blame onto convenient patsies.

The Saudis are likely to follow this principle – if left with no other viable option. Recalling its Istanbul consul general, Mohammed al-Otaibi, and sacking him may, in hindsight, have been step one to shift blame away from where it clearly belongs.

There’s virtually no doubt about MBS’ direct involvement in authorizing Khashoggi’s murder. All that’s in doubt is whether he can remain crown prince.

The issue will likely come to ahead one way or the other in the coming days.

 

Robert Craig: Privacy International Symposium – Privacy International and the Separation of Powers — Administrative Law in the Common Law World

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Robert Craig: Privacy International Symposium – Privacy International and the Separation of Powers — | Administrative Law in the Common Law World | 23 November 2018

 

Privacy International has brought judicial review proceedings against the Investigatory Powers Tribunal, in respect of the Tribunal’s treatment of a complaint about computer hacking by GCHQ. At first instance ([2017] EWHC 114 (Admin)) and on appeal ([2017] EWCA Civ 1868), it has been held that judicial review of the Tribunal is precluded by the ouster clause contained in s. 67(8) of the Regulation of Investigatory Powers Act 2000. A seven-judge bench of the Supreme Court (Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption, Lord Carnwath and Lord Lloyd-Jones) will hear Privacy International’s appeal in December.

This online collection grows out of a symposium held by the Centre for Public Law at the University of Cambridge on October 20, 2018, organised by Dr Paul Daly (University of Cambridge). Symposium participants have agreed to post short contributions on this important litigation.

The separation of powers is the Cinderella of constitutional discourse. My theme in this blog is that the court’s treatment of an attempt by parliament to oust the supervisory jurisdiction of the High Court needs to draw a clear distinction where the relevant body is in fact acting in a judicial rather than executive capacity. This blog is a condensed version of an article in the October 2018 edition of Public Law.

Ouster clauses appear to place into tension two core ideas which are that the will of parliament must be obeyed and that ordinary citizens should be able to challenge public bodies in court: parliamentary sovereignty versus the rule of law.

Anisminic is now generally seen as the classic example of the treatment of ouster clauses by the courts. The courts held they are to be treated as ineffective without crystal clear words. The decision in Anisminic was eventually considered to have swept away the jurisdictional distinction such that when a public body makes a mistake of law, it always acts outside its jurisdiction.

Ouster clauses applied to judicial bodies

In my submission, the effect of ouster clauses on judicial review of judicial bodies should be clearly distinguished from the Anisminic situation. My claim is that in Privacy, the relevant body, the IPT, exercises a judicial function. The appropriate analysis of ouster clauses concerning bodies exercising a judicial function is conceptually distinct from the application of such clauses to bodies exercising an executive function.

In a series of cases, including Racal and Page, the supervisory role of the courts over bodies exercising a judicial function has been brought close to, but not entirely in line with the treatment of administrative bodies after Anisminic. There remains, however, a clear set of circumstances where the writ of the High Court does not run.

Lord Diplock in Racal stated that where parliament intended to oust the jurisdiction of the High Court over inferior courts, such clauses should be generously construed. In Page Lord Browne-Wilkinson held that, in general, inferior courts will not be able to diverge from the general law.

It might be thought that all areas of law should be compliant with the ‘general law’. This is clearly disproved by Page. The court said that the visitor ‘is applying not the general law of the land but a peculiar, domestic law of which he is the sole arbiter and of which the courts have no cognisance’. Thus there are two sub-categories of ouster clauses concerning judicial bodies.

The case of Woolas is a good example of where a court was never supposed to diverge from the general law which forms one sub-category.

The second sub-category – where the writ of the High Court does not run

Cart concerns the jurisdiction of the Upper Tribunal. Lord Justice Sedley in the Court of Appeal in Cart drew a precise distinction between ‘outright excess of jurisdiction’ and a ‘mere error of law made in the course of an adjudication’, describing the distinction as being a ‘true jurisprudential difference’. This specifically recognises that the Upper Tribunal has the mandate from parliament to diverge from the general law by making errors of law within its jurisdiction.

Most unfortunately, the Supreme Court significantly muddies the clear waters mapped out by LJ Sedley. It held that the criteria for judicial review should be the ‘second appeal’ criteria which mean that if a point of general public importance is raised, then the claim could be brought. This was said to be a pragmatic compromise.

Unfortunately, as with many compromises that fudge hard choices, this judgment neatly captures the worst of both worlds because it allows the Upper Tribunal to diverge from the general law in apparent breach of the rule of law but at the same time it undermines parliamentary sovereignty by permitting judicial review in some circumstances but contrary to the intention of parliament.

Privacy International

The Investigatory Powers Tribunal (‘IPT’) was set up by statute to permit the legality of actions taken by the security services to be tested independently, in court. The IPT is a judicial body because it deals only with questions of law not the merits of substantive decisions by the security services.

Importantly, the IPT is the only available forum for actions against the intelligence services under s 7 of the Human Rights Act 1998 – actions under s 7 must be considered by a judicial body. The IPT may be labelled a “tribunal” but it exercises a judicial function. What matters in these situations is that the function of the relevant body in the particular case is carefully assessed and classified. 

Parliamentary sovereignty or the rule of law

The linguistic distinction between the clauses in Anisminic and Privacy was not one that persuaded Leggatt J in the Divisional Court: “(including decisions as to whether they have jurisdiction)”. Leggatt attacked the possibility of there being any ‘legal islands’ specifically on rule of law grounds.

The rule of law does not require hegemony. The IPT is an independent judicial body with prospective, clear, open, stable and general rules that have been set out in advance with hearings that are subject to the rules of natural justice. This tends to undermine any claims that the absence of an appeal procedure from the IPT necessarily breaches basic rule of law principles. To the extent the application to the Supreme Court relies on a generic appeal to the “rule of law” as its core thesis, the argument is weak.

Furthermore, it is important to consider the damage to the clarity and certainty the rule of law is meant to promote if the courts were to disregard the wording of s 67(8) RIPA and the clear intention of parliament. Demanding crystal clear words where otherwise the executive could operate outside the law is one thing. Insisting that parliament cannot prevent the senior courts imposing their interpretation of RIPA on the IPT in the teeth of parliamentary intention to the contrary is quite another.

LJ Leveson in the Divisional Court and LJ Sales in the Court of Appeal both take a radically different view to Leggatt J. Their approach is consistent with the test in Pageand the views of LJ Sedley in Cart. Crucially, RIPA imposed ‘second tier’ appeal requirements on This means that it would arguably be inappropriate for the court to impose the same test in Privacy as was applied by the Supreme Court in Cart. This is because if parliament had intended to introduce the second-tier appeal mechanism that it in fact introduced later then it would have done so beforehand.

It is reasonably clear that the intention of parliament when it created a judicial framework to consider the legality of activities of the security services was to create a regime that was separate and potentially divergent from the general law. The IPT has its own jurisdiction which should be respected.

The wording of the ouster clause appears to confer on the IPT the right to determine the limits of its own jurisdiction and the intention of parliament appears to be clear. The IPT ouster clause should be effective notwithstanding the Anisminic doctrine. This is primarily because it was a judicial body and in particular a judicial body that parliament intended to be able to deviate from the general law. It has its own jurisdiction.

Conclusion

I have attempted to clarify the courts approach to ousting the jurisdiction of the High Court since Anisminic. I have suggested that applying the separation of powers to the analysis forces a distinction to be drawn between ouster clauses in different situations. It is clear that ousting the jurisdiction of the High Court to supervise executive bodies requires exceptionally clear words as Anisminic shows.

Separately, the courts have interpreted ouster clauses for judicial bodies narrowly where parliament has shown no intention of conferring the power to diverge from the general law on a particular judicial body. A proper approach to the separation of powers is central to this analysis.

By contrast, where parliament has indicated that it intends that a particular judicial body should be able to deviate from the general law, then such bodies can do so by making errors of law. They have their own jurisdiction. It is rare for parliament to indicate that this is its intention. Arguably, Cart was one such example and LJ Sedley’s judgment is to be preferred to the Supreme Court because it recognises that parliament did in this case intend that the tribunal system would be, basically, autonomous. Privacyprovides us with another example. Page was the first example.

In Privacy, and arguably Cart, parliament intended to reallocate judicial supervision usually undertaken by the High Court to a new statutory judicial body that cannot itself be judicially reviewed by the High Court for error of law. This clear parliamentary intention should be respected and in my submission the possibility of effective ouster clauses covering some specific judicial bodies should be recognised by the Supreme Court.


Robert Craig is a PhD Candidate at Durham University

via Robert Craig: Privacy International Symposium – Privacy International and the Separation of Powers — Administrative Law in the Common Law World

#Equality #CounterExtremism: Want to Deradicalise #Terrorists? Treat Them Like Everyone Else!

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Want to Deradicalize Terrorists? Treat Them Like Everyone Else.,  | FOREIGN POLICY | 23 

Many counter-extremism efforts falter because ideological reform programs run by governments lack credibility. Appealing to the basic psychological needs of ex-radicals is more promising.

Demonstrators gather outside a deradicalization center in Pontourny, France, the country’s first Center for Prevention, Integration, and Citizenship on February 11, 2017 during a protest demanding its closure. (GUILLAUME SOUVANT/AFP/GETTY IMAGES)

As the French prime minister in 2016, Manuel Valls presented an 80-point, $114 million plan for countering jihadists. It featured an experimental deradicalization center that Valls hoped would turn French extremists into non-threatening citizens who could rejoin society. The objective was worthwhile, but it was hamstrung by a peculiarly French focus on secular nationalist symbolism.

At the center, nine volunteers for rehabilitation worked with teachers, psychologists, and imams in a rural chateau in the Loire Valley to discuss religion and jihadi ideologies. Participants were expected to stop eating halal food. Every day, they studied French history, philosophy, and literature, wore uniforms, and sang the national anthem.

Unsurprisingly, the program ended after just five months. Local villagers protested the former extremists’ proximity to their community and several French experts and officials criticized the model for its clumsy, heavy-handed design flaws. Though this model isn’t reflective of France’s comprehensive deradicalization strategy, it suggests that when done poorly, deradicalization programs benefit no one—neither the participants, government, nor community—and can do more harm than good. Three participants in the program started calling themselves “the rigorist Salafist gang” and another was later arrested for the crime of “apology for terrorism.”

The French government made two primary mistakes. First, although the center wanted to address the root causes of radicalization and had psychologists on staff, the model put too much focus on ideology by trying to replace extremism with a secular “counter-truth.” Second, the program promoted Western nationalist identities over Islamic ones, an especially fraught move in France, given the country’s long-standing tensions around laïcité, the legal principle that promotes secularism in theory but, to many critics, seems to be more focused on limiting Muslims’ ability to observe Islam. Ultimately, these mistakes not only made deradicalization unlikely, they were also bad policy.

A more comprehensive psychology-based framework would make deradicalization programs more effective

A more comprehensive psychology-based framework would make deradicalization programs more effective

, offer a more appropriate role for the government, and protect former extremists’ legal rights.The first step is to see ex-jihadis as individuals with unique psychological traits. Daniel Koehler, director of the German Institute on Radicalization and De-radicalization Studies, arguesthat deradicalization can only happen when an individual has a “cognitive opening” and an environment that supports personal reflection. In this kind of environment, a program could then initiate deradicalization by applying and engaging what psychologists and researchers term the “significance quest theory” (SQT) as one component of the deradicalization process.

The SQT postulates that all individuals are motivated by a desire to have significance in their lives—essentially, to matter. When applied to violent extremism, the theory suggests there are three elements that can translate this basic human need into motivation for violence: a need for personal significance, an ideological narrative (often political or religious) that presents violence as an acceptable method, and a social network that supports this path. Some Islamic State recruits, for example, have cited political motivation or spiritual duty. Similarly, neo-Nazi and Ku Klux Klan propaganda often promises members a fulfilling role in protecting women, children, and country.

Psychologists including David Webber, of Virginia Commonwealth University, and Arie Kruglanski, of the University of Maryland, argue that successful deradicalization efforts might specifically address an individual’s significant “deficits.” That means analyzing their needs, narrative, and network, and redirecting those desires toward more positive goals such as meaningful jobs or community roles through therapy, education, and networking. When done well, this kind of approach sees former extremists as complex, multifaceted people.

When done well, this kind of approach sees former extremists as complex, multifaceted people.

Sri Lanka is one country that has employed this model. After the country’s civil war ended in May 2009, the victorious government of President Mahinda Rajapaksa established detention centers for members of the defeated militant group, the Liberation Tigers of Tamil Eelam (LTTE). Detained former Tamil Tigers would then undergo a deradicalization program that took a six-pronged approach addressing the educational, vocational, spiritual, recreational, psychosocial, and sociocultural/familial aspects of an individual’s life when transitioning back into society.

Kruglanski, Webber, and their colleagues evaluated this program, examining 601 former Tamil Tiger members, including men and women of all ages. Ultimately, they found that program participants showed decreased levels of extremism over time thanks to lower feelings of insignificance.

As a result, participants were less reliant on Tamil Tiger separatist ideology and were less nostalgic for the group. When looking at the program’s long-term impacts, the study found that former participants were significantly less extreme than other Tamils who lived in their community but had never joined the Tigers. Those who kept social ties to the group were more extreme, suggesting the importance of a new social network.

The Sri Lankan case study, of course, has its limitations. Many participants may have demonstrated lower levels of radicalization and desire to rejoin society because the Tamil Tigers had been defeated, so participation wasn’t a viable option. The program also doesn’t include high-level extremists who planned or carried out attacks. More seriously, the fact that the program is government-run and military-managed—following a violent conflict in which the LTTE fought the Sri Lankan state—should be a red flag.

Rajapaksa was famously anti-LTTE in his platform, and human rights groups have reported abuses perpetrated by both the secessionists and the government. For example, the government detained 280,000Tamil civilians after the war ended. France does not have the same recent history of conflict, but any model that involves a majority group government imposing values on another should be treated with some suspicion.

The Sri Lankan case study shows promising results for how programs can address the psychology of deradicalization, but the government’s involvement, as in France, was a problem. One clinical psychologist, Malkanthi Hettiarachchi, described Sri Lankan rehabilitation centers as “warm” environments that treat participants with “care and respect,” and vaguely noted that the government-run, civilian-staffed program are operated separately from the “investigating arm of the state.”

The program also involves nongovernmental organizations, corporate and private sector cooperation, and a mentoring program featuring successful Tamil actors, businesspeople, and athletes. Still, it’s easy to imagine that a strong government influence immediately following a violent conflict could make it difficult for such an environment to fully achieve the cognitive opening that Koehler emphasizes.

That’s because credibility matters. Respecting former extremists’ religious and political rights is equally important, as this helps ensure programs don’t strike participants as repressive or hypocritical. Any appearance of deradicalization turning into “re-education” could easily backfire.

Civil liberties advocates and community groups are especially wary of government deradicalization programs violating individual rights to freedom of speech or religion, or strongly promoting specific ideologies. Ritu Banerjee, the senior director of the Canada Centre for Community Engagement and Prevention of Violence, rightfully said that  when government officials debate ideology with ex-radicals, it can seem like “propaganda.” In cases with Islamist extremists, anything fueling the “Islam versus the West” dichotomy undermines deradicalization and plays into jihadi messaging.

In cases with Islamist extremists, anything fueling the “Islam versus the West” dichotomy undermines deradicalization and plays into jihadi messaging.

In France, it’s especially important to avoid nationalist messaging because of laïcité’s recent anti-Islamic overtones. Debates about public displays of religion have focused far more on wearing burkinis than crucifixes, signaling that Islam isn’t welcome in French society while observance of other religions is fine. Far-right politician Marine Le Pen famously said “France isn’t burkinis on the beach. France is Brigitte Bardot,” and former President Nicolas Sarkozy also called for a burkini ban against what he considered a radical Islam “provocation.”

To create successful programs and balance government involvement, governments should stick to their specialty: bureaucratic tasks like job identification to smooth the social transition and coordinating witness protection for former radicals who testified against other members. Then, community partners can take on their role as more credible—and legally appropriate—intermediaries to discuss ideology, religion, and extremism.

But maintaining this balance is easier said than done. According to Evanna Hu, co-founder and CEO of Omelas, a company that evaluates global online countermessaging, any program involving former extremists is high-risk. Politicians, by nature, are afraid of a backlash or the consequences if a graduate later commits an attack.

Politicians, by nature, are afraid of a backlash or the consequences if a graduate later commits an attack.

Some critics also argue that any government involvement will discredit intermediaries such as imams or therapists. In the French program, for example, former jihadis viewed the program’s designated imam as “unfaithful” for working with the secular government and not eating halal food and they initially refused to speak with him. However, models in countries such as Canada, Saudi Arabia, and Singapore have suggested that governments can serve as valuable intermediaries and convening forces between local religious leaders, authorities, former extremists, and their families. Government involvement, when carefully designed and implemented, could potentially lend programs credibility and structure, driving results.

Governments have also acted while maintaining political distance through issuing deradicalization grants. For example, the U.S. Department of Homeland Security’s Countering Violent Extremism grant program gave money to groups such as the education nonprofit Ka Joog, which works with the Somali community in Minnesota and implements localized anti-extremism programs. While skeptics could research these groups’ funding—grant awards are publicly announced on government websites and sometimes receive local media coverage—the tone is much different than if the U.S. government itself was directly running and operating the program.

In 2017, however, the Trump administration shifted the program’s focus to groups partnering with law enforcement and working against Islamist extremism. Life After Hate, the only group funded by DHS to work against far-right extremism, also lost their funding, potentially because one of the group’s founders was critical of President Donald Trump on Twitter. After that, some Muslim-focused organizations, including Ka Joog, returned their grants, citing Trump’s attitudes toward Muslims and immigrants. In Ka Joog’s case, this meant giving up almost $500,000.

The perception of government Islamophobia directly thwarts deradicalization efforts.

The perception of government Islamophobia directly thwarts deradicalization efforts.

It alienates Muslim communities, ignores far-right threats, and sabotages community intermediaries who could otherwise be well-received messengers. This has a disastrous effect on deradicalization programs because it discredits government assistance and the intermediaries who accept it, before programs even begin.Addressing domestic extremists, returning fighters, and increasing citizen anxiety is becoming a huge challenge for Western governments—one they’re not sure how to address. Psychological models are not a cure-all and should only be one piece of the larger deradicalization puzzle.

While it is tempting to categorize terrorists and extremists as irredeemable, it’s important to remember that they generally respond to the same incentives as everyone else. Incorporating the significance quest theory model as one part of the deradicalization process may remind policymakers that extremists are, in fact, human.

via Want to Deradicalize Terrorists? Treat Them Like Everyone Else. — Foreign Policy

Why does the Family Court hear domestic abuse cases in private? (1)

“It is an old rule – what lawyers call ‘trite’ law – that a court rule cannot override the law. A court rule is not law. It can only dictate how the procedure which defines the law is to operate. Thus, the common law says that all court hearings shall be in open court, with certain long-standing exceptions (listed later).”

“The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.’

The judge continued: ‘Jeremy Bentham explained this: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”’

And surely this statement from Jeremy Bentham is why, in principle and subject to protection for the complainants (to be discussed in the second post), that domestic abuse hearings should be in open court? They would be dealt with in open court before a jury on the same domestic abuse facts. Provided that the welfare and anonymity of any children involved is protected – as it is in the Crown Court – then the law (ie as distinct from the rules) is, I believe, that these proceedings should be in open court.

If judges and local authorities are behaving as Louise Tickle says they are; or if violent men are being dealt with leniently; and all this is being covered up or glossed over because of the secrecy of Family Court proceedings, then the way in which these cases are dealt with in the family courts should, surely, be seriously questioned. The first thing is to ask: does the law say these cases can be dealt with in private; and if not to open up domestic abuse courts to Benthamite publicity. This is what I believe the common law requires.”

dbfamilylaw

20170722_161644Domestic abuse and children

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in secret. The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court. But, it is said, if proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly – the abuse she complains of? Some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other procedures are available in criminal proceedings, but are still not available to the Family Court. This and a second post examine these issues.

In her Guardian article, ‘Why do we separate the mother and child victims of domestic abuse’ (20 November 2018) Louise Tickle

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Domestic abuse in the family courts: how can proceedings be made more civilised? (2)

dbfamilylaw

20160419_173301Domestic abuse: making proceedings less frightening

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in private (ie in secret). The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court (as explained in an earlier post here).

Yes, but if domestic abuse proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly in court – the abuse she complains of? This post explains that some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other such procedures are available in criminal proceedings, but are still not available to the Family Court to help domestic abuse complainants.

This post will…

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Virgin Care terminates £270m prime provider role

“As NHS England plays monopoly with our public money and certain cash-strapped services suffer we must repeal the Health and Social Care Act 2012 that sold our NHS to NHS England and reclaim it for the public who fund it” ~ Finola Moss

ukgovernmentwatch

Virgin Care has terminated large parts of a controversial prime provider contract in the West Midlands, HSJ can reveal

Following an 18-month dispute with East Staffordshire CCG, Virgin Care has terminated all commissioning elements of its £270m prime provider contract.

On 25 September the provider handed the CCG partial termination notices for all services it is not the direct provider of. This includes hospital-based services, 111 and out of hours services.

Services provided directly by Virgin Care, which will remain part of the contract include community nursing, specialist nursing, care coordination and care navigation.

In 2015 East Staffordshire CCG awarded Virgin Care a fixed price, seven-year, prime provider contract worth £270m for community services.

As part of the contract, called “Improving lives”, Virgin Care took on the responsibility for the commissioning and integration of services for frail elderly patients and people with long term conditions.

When the contract…

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