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Brexit Liar faces Prosecution

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PDR
1323422.  Tue Jun 04, 2019 5:51 am Reply with quote

So BoJo's team have now applied for a judicial review of the decision to prosecute. This is interesting becaue (AIUI, IANAL etc) this is a different concept to a judicial review of (say) a ministerial decision. When reviewing a ministerial decision it will almost invariably be a matter of a judge determining if the minister acted within her/his powers and authority to implement a political policy.

But in reviewing a *judge's* decision it can only ever be a matter of whether the decision to prosecute was correct as an objective matter of law. By definition the judge has no policy (political or otherwise), and deciding to prosecute is unequivocally within the powers and authority, so I wonder what point of law BoJo's team think they have found.

The matter is significant because I THINK miscoduct in public office would be deemed a "corrupt or illegal electoral practice" that would result in BoJo being disqualified as an MP, which could be rather inconvenient were he to have been elected as leader in the mean time.

PDR

 
GuyBarry
1323427.  Tue Jun 04, 2019 7:58 am Reply with quote

PDR wrote:

The matter is significant because I THINK miscoduct in public office would be deemed a "corrupt or illegal electoral practice" that would result in BoJo being disqualified as an MP


Don't think so. According to Wikipedia:

Quote:
Corrupt practices are now defined by the Representation of the People Act 1983 and include:

personation, defined as pretending to be another person (whether living, dead or fictitious) in order to vote in their name
applying for a postal vote in the name of another person, or diverting the delivery of a postal vote form
giving false information in the papers nominating a candidate
incurring unlawful expenses in connection with an election campaign, or making a false declaration regarding election expenses
bribing voters to vote or not to vote (with money, or other valuable items)
treating, defined as giving or offering food, drink or entertainment to a voter in order to influence their vote
exerting undue influence on a voter through threats (including threats of "spiritual injury" as well as physical injury, damage or harm), whether to influence their vote or as a result of their voting

The result of an election can be challenged on the grounds that corrupt practices have taken place by the presentation of an election petition to the courts within the period of 21 days after the date of the election.


There's no suggestion that Boris Johnson committed any of these offences during the 2017 election campaign, and in any case we're well outside the 21-day period required.

 
suze
1323443.  Tue Jun 04, 2019 11:10 am Reply with quote

Being sent to prison for a term longer than one year disqualifies an individual as an MP, although I don't think many seriously expect so long a sentence to be passed even if Mr Johnson is convicted.

Any sentence of imprisonment would be grounds for the Speaker to order a recall petition to be set up, although Mr Johnson has a sufficiently big majority that it might well not succeed.

But the mere fact of having a criminal conviction against one's name does not debar an individual from being Prime Minister - as Mrs May knows better than most! Why it's OK for the Prime Minister to be a convicted criminal when it's not OK for a school teacher to be so, you may well ask.

 
Alexander Howard
1323446.  Tue Jun 04, 2019 11:19 am Reply with quote

There has only been one divorced Prime Minister before - Anthony Eden. Divorce being a scandalous thing and proof of a personal failing, has been considered fatal to a senior political career.

Johnson has of course been through almost as many wives as Jeremy Corbyn and it does not see to have done his reputation any harm.

 
suze
1323472.  Tue Jun 04, 2019 4:43 pm Reply with quote

Are there any commentators left who would use Mr Johnson's rather colourful private life as evidence of his unsuitability to be Prime Minister? His first marriage ended in divorce, while he is separated from his second wife although they are not as yet divorced. He is known to have fathered at least one child via an extramarital relationship, and press have hinted that in fact it's two.

"So what", you may say, "that has nothing to do with his ability to be Prime Minister". And if you do say that, I am minded to agree. I've been divorced, my father produced a child without the involvement of my mother, and these things do not make us bad people.

Buuut ... the Conservative Party has long claimed to stand for "family values", whatever that term might mean. I wasn't in the UK yet, but at the time of the 1997 general election the Labour candidate in the riding where my now-husband then lived happened to be a woman who was not married to the father of her children.

Her Conservative opponent referred to her as a "single girl" who had "bastard children" with her "boyfriend" - even though that "single girl" was over 40 and had been with her "boyfriend" for eighteen years. He absolutely did suggest that her immoral way of life made her unsuitable to be an MP - and promptly lost his seat to her on an 11% swing.

What is sauce for the goose must also be sauce for the gander, and at no time did the Conservative Party brief against the late David Evans MP (Con, Welwyn Hatfield, 1987-1997) for making those remarks. If we therefore take it that they are representative of party policy on marriage, Mr Johnson has not a leg on which to stand if someone does seek to use his private life against him.

If they are not, then why has the Conservative Party never come out and said "David Evans was an embarassing bigot"?

 
barbados
1323486.  Wed Jun 05, 2019 12:45 am Reply with quote

Probably because at the time Mr Berners Leeís revolution was very much in its infancy, and people were called out on things like this locally (as he was at the time), that and there is very little point in dragging up what someone said in 1997 just use as a stick to beat them with.

 
Alexander Howard
1323646.  Fri Jun 07, 2019 7:28 am Reply with quote

To no one's surprise, the case has been thrown out:

https://www.bbc.co.uk/news/uk-politics-48554853

Now we are on to the next stage:

https://www.youtube.com/watch?v=UEBq-gsdI58

 
GuyBarry
1323647.  Fri Jun 07, 2019 7:59 am Reply with quote

Alexander Howard wrote:
To no one's surprise, the case has been thrown out.


Good. I'm no supporter of Boris Johnson but I think it would have set a very worrying precedent if the case had gone through. It would have meant that those candidates for elections who already held office would be held to higher standards during election campaigns than those who didn't - their opponents would be able to say any old rubbish in the knowledge that they couldn't be prosecuted for "misconduct in public office". If the law about misleading election claims is to be reviewed then it needs to be done in such a way as to treat all candidates equally.

The judge said that the reasons for the courtís ruling will be given "at a later date".

 
suze
1323662.  Fri Jun 07, 2019 11:18 am Reply with quote

GuyBarry wrote:
If the law about misleading election claims is to be reviewed then it needs to be done in such a way as to treat all candidates equally.


It should be of course, but it won't be. Turkeys do not vote for Christmas, and MPs will never vote for anything which seeks to stop politicians lying.

At some point MPs might finally grasp the notion that the public perceives them as being interested in no one bar themselves, and no better than cold callers, traffic wardens, and Gary Glitter. But I'm not holding my breath, and until that does happen then I'm sure that people with nothing better to do will continue to try to bring cases like this one.


GuyBarry wrote:
The judge said that the reasons for the courtís ruling will be given "at a later date".


Does that translate as "I have been told not to explain my decision until the Conservative Party has chosen its new leader"?

 
GuyBarry
1323673.  Fri Jun 07, 2019 11:49 am Reply with quote

suze wrote:
Turkeys do not vote for Christmas, and MPs will never vote for anything which seeks to stop politicians lying.


Perhaps the best way to stop politicians from making misleading claims during election campaigns would be to make political advertising subject to a code of practice similar to the CAP Code, which regulates commercial advertising. This page from the Advertising Standards Authority site explains why it isn't.

Quote:
At some point MPs might finally grasp the notion that the public perceives them as being interested in no one bar themselves, and no better than cold callers, traffic wardens, and Gary Glitter. But I'm not holding my breath, and until that does happen then I'm sure that people with nothing better to do will continue to try to bring cases like this one.


I really hope not. I don't want unelected, unaccountable judges interfering in the democratic process. Whatever you may think of politicians, the public can ultimately throw them out.

 
PDR
1323692.  Fri Jun 07, 2019 5:39 pm Reply with quote

So essentially you are comfortable with people in public office using lies to promote their careers, but uncomfortable with the rule of law.

That's a strange set of values, Guy.

PDR

 
GuyBarry
1323696.  Sat Jun 08, 2019 12:54 am Reply with quote

GuyBarry wrote:
Perhaps the best way to stop politicians from making misleading claims during election campaigns would be to make political advertising subject to a code of practice similar to the CAP Code, which regulates commercial advertising.


PDR wrote:
So essentially you are comfortable with people in public office using lies to promote their careers


Eh? Why would I have said the above if that were the case?

As a result of the MPs' expenses scandal in 2009, a body called the Independent Parliamentary Standards Authority (IPSA) was set up so that MPs would no longer be responsible for policing their own expenses and salaries. Why not set up a similar body to police claims made in election campaigns?

Quote:
but uncomfortable with the rule of law
.

I'm comfortable with the rule of law. I'm decidedly uncomfortable with the rule of lawyers.

The way things ought to work in this country is that our elected Parliament makes the laws, and judges interpret them. But in fact there are offences like "misconduct in public office" which have never been defined by Parliament and do not form part of any statute - they're so-called "common-law" offences whose scope is entirely determined by legal precedent, i.e. laws made by judges, who are unelected officials. AH mentioned earlier in the thread that the definition of "misconduct in public office" is so vague that the Law Commission has recommended getting rid of it.

In fact I now discover that the Law Commission wants to get rid of all common-law offences. From Wikipedia:

Quote:
In England and Wales, the Law Commission's programme of codification of the criminal law included the aim of abolishing all the remaining common law offences and replacing them, where appropriate, with offences precisely defined by statute. Common law offences were seen as unacceptably vague and open to development by the courts in ways that might offend the principle of certainty. However, neither the Law Commission nor the UK Parliament have completed the necessary revisions of the law, so common law offences still exist. In England and Wales common law offences are punishable by unlimited fines and unlimited imprisonment.


https://en.wikipedia.org/wiki/Common_law_offence#England_and_Wales

Is it really acceptable in a 21st-century democracy that people can be sentenced to unlimited fines and unlimited imprisonment under laws that have never been passed by Parliament?

 
suze
1323701.  Sat Jun 08, 2019 2:32 am Reply with quote

GuyBarry wrote:
As a result of the MPs' expenses scandal in 2009, a body called the Independent Parliamentary Standards Authority (IPSA) was set up so that MPs would no longer be responsible for policing their own expenses and salaries. Why not set up a similar body to police claims made in election campaigns?


Why not indeed, but the difficult bit would be actually doing it.

The creation of the IPSA was one of the things that happened as a result of the Parliamentary Standards Act 2009. That Bill was voted down in both Houses at different points in its parliamentary progress, and as a result some things that the Brown government wanted to include had to be taken out.

That was under a government which had a majority, and you'll be aware that the current government is less fortunate and is struggling to pass anything. What chance would you give an Election Campaigns (Lying Isn't Allowed) Bill?

And of course, even if such legislatiion did come onto the statute book, the PM of the day would threaten to abolish the Election Candidates Musn't Lie Commission each and every time it ruled against the party of government. Either its life would be short and pointless, or it would become a discredited Election Candidates Mustn't Lie (Unless They Are From Our Party) Commission. Remember David Cameron threatening to abolish IPSA when the supposedly Independent body made a recommendation that he didn't lilke?


Guy wrote:
In fact I now discover that the Law Commission wants to get rid of all common-law offences.


That scares me a bit, and for much the same reason. Even if it were a Murder (Not Allowed Either) Bill that Mrs May put up on Monday morning, Labour would oppose it because it came from the Conservative Party, and the ERG types would oppose it if it didn't have hanging in.


I wish it were not necessary for me to be so cynical, but I'm afraid that is where British politics is.

 
PDR
1323706.  Sat Jun 08, 2019 3:18 am Reply with quote

As I said previously, this was a judicial review of the decision to prosecute which (as far as I am aware, IANAL etc) must only turn on a specific point of law. I'm interested to wait and find out what that point of law was. I really do hope it's not just a "the prosecution would not be in the public interest" thing.

People generally misunderstand what common law and case law are about. "Common Law" is mostly just the accumulated set of things which have been agreed to be illegal for centuries. It dates back to when the law was what the judge decided was "right & wrong" - what Demming more recently called "the principles of natural justice". In the days when only the top-level summary of law (as passed down by the monarch) was ever written down, Common Law was the collected detail of how judges had implemented it at the detailed level. There is always a programme of work looking to collect up Common Law into statutes, but ironically it's that very action which provides the scope for lawyers to play games with the specific words. They couldn't do this with Common Law because it was about principles not text.

Case law is a similar concept which improves the equal treatment of people under the law. Case Law is simply the collected history of what other courts and judges have decided in past cases. So if someone is being prosecuted for speeding, having been caught doing 35mph in a 30 limit on four successive speed cameras along a route, they are entitled to point out that in previous cases the court has decided that this constitutes a single offence rather than four offences (the "single journey" defence) and so only get the same 3 points and one fine that other people get rather than be unfairly singled out with an instant 12 month ban and a huge fine. But judges are free to ignore the past decisions if they feel the current case actually warrants special treatment. In this way everyone knows what can be expected, and people get treated in similar ways for similar offences. Surely we want that?

Again, there are programmes to sweep up case law into statutes and sentencing guidelines, but it makes for very complex and wordy law to account for all possible variations and circumstances. This very complexity and verbosity creates the opportunity for lawyers to argue interpretations. After all that is their job - to act solely in their client's best interests.

You propose some sort of parliamentary self-regulator. Such bodies have never worked, because their decisions are subject to the control of the ruling party pf the day. You are also asking people who benefit by telling lies to censure one of their own for telling lies - way too incestuous! MPs should be subject to the law like everyone else, and when they break it they should be treated exactly the same as everyone else. They are not an aristocracy who might be above such things and beyond the reach of the law.

And finally, I disagree with your implied view that MPs should be trusted more than judges because they are elected. Matters of law should be objective, not subject to popular whim. As long as judges interpret the law dispassionately and objectively they are immune to populaist rabbles and lynch-mob justice. In the colonies they elect judges, and to remain in office these judges can't make unpopular decisions. That's one of the reasons why they have the largest prison population in the world. And they pollute this further by having their supreme court members appointed at the whim and patronage of presidents, so even their ultimate arbiters are politicised. We really, really don't want to go there.

PDR

 
GuyBarry
1323715.  Sat Jun 08, 2019 4:06 am Reply with quote

PDR wrote:

You propose some sort of parliamentary self-regulator. Such bodies have never worked, because their decisions are subject to the control of the ruling party pf the day.


The Electoral Commission has been in place since 2001 to regulate party and election finance. It's independent and not under the control of any political party. Why couldn't its remit be extended to cover scrutiny of claims made during election campaigns?

Quote:
You are also asking people who benefit by telling lies to censure one of their own for telling lies - way too incestuous!


No I'm not. I'm suggesting giving the job over to an independent non-partisan body.

Quote:
MPs should be subject to the law like everyone else, and when they break it they should be treated exactly the same as everyone else.


They are. That's why Fiona Onasanya went to prison.

This isn't an issue about the conduct of MPs in office. It's an issue about the conduct of candidates during election campaigns. You simply cannot have a law that treats the sitting MP one way and other candidates a different way. If this ruling had gone through then it would have given carte blanche to the challengers in an election to make up any old nonsense about the sitting MP, knowing that the sitting MP couldn't retaliate for fear of prosecution. Is that fair or democratic?

[Actually, in law there are no MPs after Parliament is dissolved, so I suppose the incumbent is not technically "in public office" during the campaign. But if the incumbent were a Government Minister then he or she would be "in public office". So one law for what Ministers can say during election campaigns and another law for what everyone else can say?]

Quote:
And finally, I disagree with your implied view that MPs should be trusted more than judges because they are elected.


I didn't say or imply that. I said that we can throw out MPs and we can't throw out judges. Who are judges accountable to?

I'm not proposing that judges should be elected (largely for the reasons you give) but it's precisely because they're unelected that their powers should be limited. I do not believe that they should have the power to define criminal offences; that's the job of Parliament. A modern democracy really should not be relying on a system of law originally created by judges in the Middle Ages.

 

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