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Bingham Centre News

26 March 2013

Addendum to news item of 17 March in Respect of the Arrest of Zimbabwean Human Rights Lawyer Beatrice Mtetwa

The Bingham Centre and Liberty followed up their statement condemning Beatrice Mtetwa's arrest with Instructions to Justice Johann Kriegler (Former Justice of the South African Constitutional Court) to appear at Beatrice's hearing and application for bail in the Zimbabwean High Court on Monday, 25 March. Bail of Z$500 was granted and the hearing of the charge will now take place in early April.
Beatrice has just written as follows:

My most profound gratitude at your support during my week's holiday as a guest of the government of Zimbabwe in its facilities in Zimbabwe. The absolute and total support I received made the 8 days appear like two days and instead of being broken, I feel invigorated as I scratch my lice bites from the prison cell. This stint also gave me an insight into the workings of the prison system and I am totally ashamed that I thought things were actually better than they are. Overcrowding, no ablution facilities in some cells, no mattresses for inmates, children sharing cells with adults, older foreign children forced to go to crèche for months on end whilst waiting for deportation, no recreational facilities or educational facilities for inmates, unbalanced diet, the list is endless!

I therefore consider that this was a necessary stint so that we can test the "new" constitution on all the myriad issues that continue to confront us in Zim.

I am particularly grateful that JUSTICE KRIEGLER, with his extremely heavy travel schedule was able to travel to Zim for the appeal hearing. I am humbled by this support and confirm my resolve to continue doing the best I can in the fight for the restoration of the Rule of Law in Zimbabwe.

My most sincere regards.


17 March 2013

Statement by Liberty and The Bingham Centre for the Rule of Law Issued on 17 March 2013 in Respect of the Arrest today of Zimbabwean Human Rights Lawyer Beatrice Mtetwa

Liberty and the Bingham Centre for the Rule of Law wholeheartedly endorse the statement of Freedom Under Law condemning the arrest of Beatrice Mtetwa in Harare today.

Ms Mtetwa is known internationally as a highly competent lawyer of the highest integrity. She was the recipient of a Liberty Human Rights Award in 2003. It is a cardinal principle of the rule of law and democracy that legal counsel are able represent their clients without intimidation so that acts and decisions of all public officials can be fairly challenged through the courts.

Shami Chakrabarti Director, Liberty

Professor Sir Jeffrey Jowell KCMG QC DIrector, Bingham Centre for the Rule of Law

07 March 2013

Bingham Centre News

From the Director

Lawrence McNamara Appointed New Deputy Director

We are immensely grateful to the David and Elaine Potter Foundation for their generosity in allowing us to appoint a Senior Research Fellow and Deputy Director. Lawrence comes to us from the School of Law at the University of Reading where he is a Reader in Law. He previously held lectureships at the University of Western Sydney and at Macquarie University, Australia.

His research interests lie primarily in the legal regulation of speech, especially as it relates to the media. He is the author of the celebrated, Reputation and Defamation (OUP 2007) which develops a theory of reputation and, in that light, analyses and proposes revisions to the common law tests for what is defamatory.

In 2009 Lawrence was awarded an ESRC/AHRC Fellowship in Ideas and Beliefs under the Research Councils UK Global Uncertainties priority. Now in its closing stages, this £300,000 award supports ' Law, Terrorism and the Right to Know', a programme of research that explores the relationships between democratic traditions of media freedom and the contemporary demands of national and international security. He has made an important contribution on that subject during the passage of the Justice and Security Bill.

Jan van Zyl Smit Appointed New Research Fellow in the Rule of Law

Jan van Zyl Smit Appointed new Research Fellow in the Rule of Law
Jan joins the Bingham Centre from Oxford Brookes University, where he is a senior lecturer teaching Public Law and International Human Rights Law. His recent research has focused on initiatives to reform the make-up of the judiciary in states undergoing constitutional transition, and on the effect of the UK Human Rights Act on the interpretation of legislation.

Jan began his legal studies at the University of Cape Town, where he completed an LLB magna cum laude and graduated first in his class. He then served as a law clerk to Deputy Chief Justice Pius Langa (later Chief Justice) at the South African Constitutional Court, before going on to graduate study as a Rhodes scholar at the University of Oxford, where he completed the BCL, MPhil and DPhil at Magdalen College. Jan has been involved as a researcher and advisor in the Kenyan constitutional transition. He conducted research for the Committee of Experts which drafted the 2010 Constitution and has served more recently as a legal consultant to the Kenya Judges and Magistrates Vetting Board, a body tasked with determining whether members of the serving judiciary are suitable to remain in office.

Rule of Law Seminar in Burma

I recently participated in a Rule of Law Seminar in Burma, organised by the European Union and the Attorney General of Myanmar, on 9 February in the capital Nay Pyi Taw. Present throughout the day was Daw Aung San Suu Kyi, Chair of their Parliamentary Committee for "The Rule of Law and Tranquility". The purpose of the meeting was to identify the role of the rule of law in the country's future. It was attended by about 300, including lawyers, civil servants, judges, members of parliament and NGOs.

The proceedings were opened by Myanmar's Attorney General, who invoked Lord Bingham's definition of the rule of law, and pledged that the country was committed to taking it forward. Daw Suu Kyi then identified a number of areas in which the rule of law was lacking in Burma/Myanmar, including an overloaded parliamentary drafting system, lack of facilities in courts and deficiencies in legal education. Above all, she said, ordinary people interact more with the administration than with courts, and it is that area that needs to be both more efficient and more compliant with rule of law standards.

I addressed the Seminar, and also participated in a later discussion session, and made the initial points that the rule of law was not a purely Western concept and was not vague but contained practical elements, as set out in Lord Bingham's book and in recent international instruments drawing on that book. I then made a number of suggestions about how the rule of law could be enhanced, including a more transparent law-making system and, taking up Aung San Suu Kyi's point, by setting out standards of good administration and administrative justice. These standards should be implemented through training and by providing the opportunity to challenge unlawful administrative action cheaply and effectively.

We are in discussions with the EU and others on the possible ways in which the Bingham Centre might be able to assist the promotion of the rule of law in Myanmar.

In Memoriam: Professor Ronald Dworkin

Professor Ronald Dworkin, who sadly died on 14 February, played an important part in the launch of the Bingham Centre during its first two years. He participated in its inaugural event, in March 2011, at Hogan Lovells, where he engaged in a "conversation" with US Supreme Court Justice Stephen Breyer, Lord Justice Stephen Sedley, and Lord Anthony Lester. A year later he was the keynote speaker at the Bingham Centre's event, in conjunction with the Foreign Office and the Venice Commission, on "The Rule of Law in Europe" at Lancaster House. Anyone who heard him on those occasions could not fail to be struck by his brilliance, eloquence and humanity.

The Director writes:
"We were privileged to have the support and participation of Ronald Dworkin during the first years of the Bingham Centre's existence. He has rightly been described as "the modern day Mill", whose work will be read with benefit by generations to come. Some years back he gave the seminal British Academy Lecture on the subject of the rule of law, where he demonstrated that it is a concept that is not purely formal, allowing countries like China to claim adherence to its values. He uncoupled "rule by law" or "rule-book" law, from "rule of law", which he imbued with a number of important democratic principles, such as equality, respect for human dignity and access to human rights. His writings generally on legal philosophy showed that law is not a bare system of rules but is infused with moral content. Litigation in the public law sphere involves a moral claim against the state. He was the most eloquent and subtle seminar-leader, lecturer and author who, in forums such as the New York Review of Books, commented brilliantly on the practical legal issues of the day, and the respective roles of the courts and the executive. He will be deeply missed, leaving us so greatly enriched by his enduring insights."

03 December 2012

Chief Justice Arthur Chaskalon, Bingham Centre Patron

It is with regret that the Bingham Centre announces the death of Arthur Chaskalson, former Chief Justice of South Africa and a Patron of the Bingham Centre.

Chaskalson gave up a lucrative commercial practice at the bar to found The Legal Resources Centre, an organisation that sought to pursue justice and human rights in South Africa, challenging the implementation of several apartheid laws.

Between 1989 and 1990 he assisted with the drafting of the Constitution of Namibia, and from 1990-1994 he was a key advisor to the Multi Party Negotiating Forum in the drafting and adoption of the Interim Constitution of South Africa in 1994. In June 1994, he became the first President of South Africa's new Constitutional Court, the highest court in South Africa where constitutional matters are concerned. On 22 November 2001 he became the Chief Justice of South Africa.

Sir Jeffrey Jowell, Director of the Bingham Centre said that Arthur Chaskalson was one of the most courageous and able lawyers of his time. His Constitutional Court established the highest standards of justice for the new South Africa, drawing on the best international and comparative standards while promoting the rule of law, equality, respect for human dignity and transformative justice.

Justice Chaskalon is survived by his wife, Dr Lorraine Chaskalson, sons Mathew and Jerome and grandchildren, to whom the Bingham Centre offers its sincere condolences.

28 November 2012


Following the Bingham Centre's Briefing Paper drafted by Dr Tom Hickman and Professor Adam Tomkins, the Bingham Centre wrote to Lord Wallace of Tankerness on 23 July 2012 to raise an issue with the Government arising from an amendment to the Justice and Security Bill moved by Lord Thomas of Gresford. To read the letter in full, click here.

During the Bills Report Stage in the House of Lords on 21 November 2012, reported in Hansard, Lord Wallace of Tankerness made a statement to Parliament regarding the acceptance of the need to amend the Bill:

Amendment 39 Moved by Lord Wallace of Tankerness

"39: Clause 6, page 4, line 35, at end insert "and any other enactment which would prevent the party from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section."

Lord Wallace of Tankerness: My Lords, in Committee, my noble friend Lord Thomas of Gresford tabled an amendment seeking to amend the effect of the disclosure gateway provisions in the Security Service Act 1989 and the Intelligence Services Act 1994. The amendment was based on a suggestion that emanated from the Bingham Centre for the Rule of Law. At that time the Government resisted the amendment on the grounds that it was not necessary to secure the agencies' compliance with their disclosure obligations and that it was wider than appropriate because it would mean the courts could order disclosure into civil proceedings regardless of the connection between those proceedings and the agencies' functions.

However, following the Committee stage, Professor Sir Jeffrey Jowell from the Bingham Centre wrote to me urging the Government to reconsider the issues raised by the amendment. After careful consideration and consultation with experts on this complex area of law, the Government have concluded that a similar amendment would be necessary. This is a technical area of law and it may help if I briefly explain why the change is needed.

Under Clause 6, the court must, on an application from the Secretary of State, make a declaration that the proceedings are ones in which a closed material application may be made if the court considers that a party would be required to disclose material in the course of proceedings and disclosure would be damaging to the interests of national security. The problem with the Bill as drafted is that it does not make it clear that statutory bars to disclosure into open court should not prevent there being disclosure into closed material procedures.

I assure the House that the Liberty analysis of this amendment is wrong. In an e-mail to parliamentarians its policy director described the amendment as being able to expand the categories of secret information on which the application for a CMP declaration can be based. That is not the case. The amendment makes it clear that the court should ignore any statutory provision that would prevent the disclosure of relevant material into open court but not into closed material procedures when the court is deciding the question of whether a party to proceedings would be required to disclose material. In other words, we do not want to be in the unfortunate position where we are unable to use a CMP as a result of these Acts covering the Security and Intelligence Agencies. These Acts are in part designed to ensure that highly sensitive information is not made public in the interests of our national security. The closed material procedures, however, have been assessed to be secure enough to allow highly sensitive information into a courtroom to be considered by a judge. The Government and agencies want the chance for a judge to come to an independent judgment. We do not want silence on these important matters.

Once again, I am grateful to my noble friend Lord Thomas for having raised this issue in Committee. While we may not have agreed on every point today, I am always grateful for his tireless work in holding the Government to account and for his detailed contribution. I am particularly grateful to the Bingham centre for taking time to scrutinise the Bill and for writing to me and asking the Government to rethink. The centre is an important legal research institute and the Government welcome its contribution to make sure that the Bill is suitably drafted. I beg to move.

Lord Thomas of Gresford: My Lords, have I not always said that this is a listening Government? I am grateful to my noble and learned friend for taking on board what I said on the last occasion, which I confess I have now totally forgotten. However, clearly it was very persuasive and I thank the noble and learned Lord for the amendment.
Amendment 39 agreed."

26 November 2012

Diminishing judicial review will reverse 50 years of legal progress

Following the recent threats by the Prime Minister and the Secretary of State for Justice to cut down on opportunities for Judicial Review, The Director published an article in Guardian Online on 19 November. To read the article in full click here.

23 November 2012

The Proposal to Codify Principles of Good Administration in European Institutions: Advancing the Rule of Law?

The Bingham Centre, joined by the Italian Council of State (Consiglio di Stato), hosted a conference on Friday, 23 November which explored the proposal before the EU Parliament (EP) to codify good administrative practice within EU institutions (EU (2012/2024(INI)). The first of its kind in the UK, the conference considered a variety of perspectives on the merits and disadvantages of codification, and the substance of the proposals, with a view toward informing the EU process.

Professor Paul Craig QC began the conference with a look at general options for codification ranging from the very broad (i.e. codification of general principles) to the very specific (i.e. codification of all substantive and procedural principles), and discussed whether, in the context of EU codification, the resulting legislation would apply only to EU institutions, or the Member States in implementing EU law as well. Professor Luigi Berlinguer, the lead author of the EP proposal, discussed its background and intended scope arguing strongly that the time was ripe for clear standards of good administration, in line with general principles as well as Article 41 of the EU Charter of Fundamental Rights.

The conference then shifted its focus to international models of codification. Professor Cora Hoexter of the University of Witwatersrand in South Africa, one of the architects of their Promotion of Administrative Justice Act of 2000, related how in its 12 years it has had a positive effect in terms of issue awareness, but how, due to particular deficiencies in the drafting of the term "administrative action", the Act had been by-passed by the emergent practice of referring to rule of law principles as a means of protecting individuals in their dealings with the executive as well as the administration. Professor Mario Chiti of the University of Florence followed with a comparative look at Italy and some other continental European States and spoke in favour of administrative pluralism that would balance competence for administrative procedure between the EU institutions and the Member States. Dr Jeff King of UCL considered the examples of the United States and Germany. To close, Professor Emeritus Carol Harlow of the LSE commented on the text of the EP proposal and suggested that codification at the EU level may be a useful way to bring consistency into administrative proceedings that may otherwise be difficult to achieve owing to the varied backgrounds of EU civil servants.

The Bingham Centre, together with the Italian Council of State, intend to take forward this study so as to contribute to the development of the EU proposals.

21 November 2012

The Inadvertent Criminal: The Rule of Law and the New Cartel Offence

On the 21 November a meeting of the Bingham Centre for the Rule of Law discussed the proposed reform of the criminal cartel offence in section 188 of the Enterprise Act 2002. Key to the proposed amendments is the suggestion to remove the word 'dishonesty' in respect to an agreement to make or implement cartel arrangements. The merit of this omission was discussed at length. In particular, the question of whether such an omission could result in a finding of culpability against innocent individuals. This issue was analysed against a backdrop of general criminal law and the various elements of crimes requiring mens rea and strict liability offences.

From there, the discussion moved to an analysis of several key terms, such as 'agree', 'conceal' and 'intent', and the question whether omitting the word 'dishonesty' simply resulted in ambiguities was considered. The dialogue also considered whether the proposed removal would result in an offence with a wider catchment area, and thus result in a chilling effect on business development.

Finally, it was considered whether the defence of consultation with a legal professional prior to making or implementing any arrangements that might be caught by the offence would be an adequate prophylactic in situations where such advice counselled against the proposed action or presented an unclear picture of the legal situation.

Overall, the discussion was an analysis of whether the Bill sufficiently provides rule of law protection to individuals who might come within its purview. It was felt that perhaps the best way forward would be to think more clearly about the impact of removing the dishonesty requirement, on the remainder of the cartel offence provisions. Ultimately, the goal should be clarity and legal certainty.

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