There are a number of principled positions. However, his position was pure oppositionism. He now faces the real difficulty that although his amendment failed he also voted against the substantive and defeated that.
How can he justify that?
(a) the UN weapons inspectors, upon the conclusion of their mission in the Eastern Ghutah, are given the necessary opportunity to make a report to the Security Council on the evidence and their findings, and confirmation by them that chemical weapons have been used in Syria;
(b) compelling evidence is produced that the Syrian regime was responsible for the use of these weapons;
(c) the UN Security Council has considered and voted on this matter in the light of the reports of the weapons inspectors and the evidence submitted;
(d) there is a clear legal basis in international law for taking collective military action to protect the Syrian people on humanitarian grounds;
(e) such action must have regard to the potential consequences in the region, and must therefore be legal, proportionate, time-limited and have precise and achievable objectives designed to deter the future use of prohibited chemical weapons in Syria; and
(f) the Prime Minister reports further to the House on the achievement of these conditions so that the House can vote on UK participation in such action, and that any such vote should relate solely to efforts to deter the use of chemical weapons and does not sanction any wider action in Syria.’.
There is not actually that much difference between Labour's amendment and the government motion. Both consider that there are circumstances in which military action may ensue.
Looking at the Two divisions on public whip
In favour 69 70 Alliance 0 0 Con 0 239 (+2 tell) DUP 4 0 Green 0 0 Ind 0 0 Lab 207 (+2) 0 LDem 0 31 PC 3 0 SDLP 0 0 SNP 6 0 Total: 220 (+2) 270 (+2)Hence a total of 490 MPs (+4 tellers) voted for a motion that did not rule out military action. Some MPs voted against both motions. Caroline Lucas oddly abstained on the Labour amendment, but voted against the Government Motion. I would have thought she would have voted against military action completely. Naomi Long and Sylvia Hermon, however, voted against both. Oddly enough only 6 Labour MPs voted entirely against the possibility of military action whilst 11 Lib Dems did and 30 Conservatives. (on the assumption that those who voted against the government motion also voted against Labour's amendment). I have not done the detailed work by MP, but would assume that the totals I have used from the summaries imply the details.
The media narrative, however, is different.
I voted for the motion on the following grounds:
a) We were assured that there would be no UK involvement in any military activity in Syria without a further vote. I had this clarified to include UK bases not being used by other countries without parliament's consent.
b) I do think we need a humanitarian response. We should not exclude any military action if this is required by the International Criminal Court or the Security Council. However, we should use the international bodies.
c) In the absence of a motion there is nothing to bind the government. Happily David Cameron is not Tony Blair and he will not be using the Royal Prerogative without a motion from parliament.
In the end, however, we don't at the moment have a motion agreed on Syria. I will be continuting to argue for working with the United Nations and the International Criminal Court.
The motion which was not agreeing an attack in principle (or anything else) was as follows:
That this House:
Deplores the use of chemical weapons in Syria on 21 August 2013 by the Assad regime, which caused hundreds of deaths and thousands of injuries of Syrian civilians;
Recalls the importance of upholding the worldwide prohibition on the use of chemical 5 weapons under international law; Agrees that a strong humanitarian response is required from the international community and that this may, if necessary, require military action that is legal, proportionate and focused on saving lives by preventing and deterring further use of Syria’s chemical weapons;
Notes the failure of the United Nations Security Council over the last two years to take united action in response to the Syrian crisis;
Notes that the use of chemical weapons is a war crime under customary law and a crime against humanity, and that the principle of humanitarian intervention provides a sound legal basis for taking action;
Notes the wide international support for such a response, including the statement from the Arab League Calling for the United Nations Security Council, to “overcome internal disagreements and take action against those who committed this crime, for which the Syrian regime is responsible”;
Believes, in spite of the difficulties at the United Nations, that a United Nations process must be followed as far as possible to ensure the maximum legitimacy for any such action;
Therefore welcomes the work of the United Nations investigating team currently in Damascus, and, whilst noting that the team’s mandate is to confirm whether chemical weapons were used and not to apportion blame, agrees that the United Nations Secretary General should ensure a briefing to the United Nations Security Council immediately upon the completion of the team’s initial mission;
Believes that the United Nations Security Council must have the opportunity immediately to consider that briefing and that every effort should be made to secure a Security Council Resolution backing military action before any such action is taken, and notes that before any direct British involvement in such action a further vote of the House of Commons will take place; and Notes that this Resolution relates solely to efforts to alleviate humanitarian suffering by deterring use of chemical weapons and does not sanction any action in Syria with wider objectives.
The underlying problem is that it is not possible to challenge the way in which a local authority is caring for a child from outside the local authority. The Independent Reviewing Officer is an employee of the local authority and hence not independent. I proposed in my private members bill a system where the LA would be open to challenge. Unsurprisingly the Association of Childrens Services Directors opposed this. The government opposed the bill. The government believes in trusting local authorities implicitly in caring for children that they are responsible for. I do not.
In the Miranda case because "Reasonable Suspicion" is not needed then the actions were probably within the law. I don't think the same applies to the other case, but we still don't have the CCTV from that although it happened in 2011.
There are many agents of the state that have compulsive powers under the law or can apply for them, the police, border agency staff, the security services, social workers, housing officers etc.
In many cases the underlying intentions may in fact be beneficial to society. Preventing terrorist attacks has to be a top priority for the government. However, the wrongful use of such powers can not only be based on erroneous information or even oppressive by virtue of being disproportionate (and in such in conflict with the original Magna Carta), but also act to undermine society by damaging people's trust in the constitutional settlement.
It is, therefore, important that the law is both proportionate and also followed by public officials. Sadly often this is not the case. Taking out judicial review actions is much like grabbing the tail of a tiger. The threat of legal costs being charged against the applicant often acts to protect misbehaving public authorities. The failure, for instance, of the GMC to investigate the [non fatal] poisoning of babies with Carbon Monoxide in experiments was in my view one of those failures.
The use of secret courts is also something that acts to undermine the requirement for public officials to follow the law. Yesterday, for example, there was a case UQ13C00036 heard in the High Court. It was a very important case for many reasons, but was in secret so we cannot comment in detail about it. In my view the Judge who heard the case was excellent in the way he dealt with the case, but still I am not allowed to go into any details.
This lack of transparency which to be fair the same judge is making some progress in dealing with, does undermine the accountability of public officials. Let us hope that this is not used to shunt the Miranda Judicial Review into a judicial siding.
It is a long judgment that is worth reading and is relevant to English Law to some extent not least as to legal principles. The LA issued a notice in error saying permission had been granted. Then years later after building works had happened they issued a backdated notice purporting to supersede the original notice refusing permission. The court concluded that the second notice was invalid.
I have for some time been interested the basis upon which estoppel can be used to stop misbehaviour by public officials. Often people are promised outcomes for a particular action, but then the LA does a reverse ferret.
Still, an interesting judgment to read.
However, there would going by past history have been at least 10-15 contempt imprisonments between May and the end of July if not a lot more. However, there have been only two judgments produced, both at the instigation of Justice for Families activists.
Where are all the other contempt cases?
The government should track this, but have not been bothered to do so.
It also raises a question for her child in the future. When (as is often the case with adopted people) the child asks what happened to her mother he or she will be told that:
a) We took you off her
b) We locked her up preventing her from properly appealing the decisions
c) Then we deported her ... and
d) No you are not allowed to know the reasons for this.
Incidentally at the moment the people trying to help this mother are trying to get other applications made on her behalf, but she needs to sign them. She is in prison (for immigration reasons) and is not being allowed to sign them.
She won the appeal because it was concluded by the court of appeal that she had an arguable case that the bank had been harrassing her. I am surprised this has not got any publicity as far as I have seen. Still I thought I would put it on my web log as an interesting case. (A shot across the bows for aggressive banking practise).
Quoting from the judgment:
2. Again, offering no more than a summary, the reasons for that decision, which was the removal of the three children from the mother who had been caring for them, and a decision that (a) the threshold criterion section 31 of the Children Act were satisfied in relation to the care given by the mother, and (b) that they should not be returned to the mother's care, was justified, apparently not on any shortfall in the mother's ability to provide practical day-to-day parenting to her children, but arose from the mother's personality and her ability to act in a way which would cause the children significant harm to their emotional and social development.
and 10. Happily, on one basis, this case is not about a mother who is incompetent or unable to provide ordinary, good enough or even good physical and practical care for her children. Unhappily, and frustratingly for all involved, I dare say, particularly the mother and the children, the concern about the mother's ability to parent is more subtle and harder to pinpoint, but it arises from her personality and the potential for the children to be upset by unpredictable actions or words that she may from time to time exhibit.
We live in a country in which children have been starved to death by their parents without intervention by the state. However, a local authority deems is necessary to keep a baby in care at probably a cost of £40,000 per year because of "the potential for the children to be upset by unpredictable actions or words that she may from time to time exhibit."
The question I ask is one as to whether this is the right threshold for "risk of significant harm" or indeed an Article 8 intervention into the development of a baby that has been passed from foster carer to foster carer.
Should the state not concentrate on protecting children from a risk of serious and harmful maltreatment rather than being "upset".
It also raises the question as to what it is about what the mother might say that warrants this. I do think the courts should have revealed that in this judgment. It doesn't seem right to me.
This is also proof that the Irish Courts are not really bothering to look at individual cases. They are simply trying to drive people back to England. I am aware of two pregnant mothers intending to leave the UK at the moment. One is going to France and the other to Belgium.
Paragraph 87 states:
The Court reiterates that where the opinion of an expert is likely to play a decisive role in the proceedings, as in the case at hand, the expert’s neutrality becomes an important requirement which should be given due consideration. Lack of neutrality may result in a violation of the equality of arms guarantee under Article 6 of the Convention (see, mutatis mutandis, Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007, with further references). In the Court’s opinion an expert’s neutrality is equally important in the context of incapacitation proceedings, where the person’s most basic rights under Article 8 are at stake.
It is, of course, obvious that this is the case under UK law. However, assessments by employees of the local authority continue to be relied upon in family court cases of all sorts. There is additionally the repeat player prejudice problem with the joint appointment of experts. It is, however, important to remember that an assessment by a social worker who deems that grandparents in their 50s are too old to care for a baby is an experts report that must have neutrality.
This is, of course, before the increase in funding provided by the government.
A big issue, however, appears to be that local housing authorities are not doing enough to rehouse people who are overcrowded. I have a few cases where nothing much is happening even though there are people who wish to downsize.
What is interesting is that the judgment relating to his imprisonment (which should have been public in any event) has not been published.
Contempt of court is not an extraditable issue. However, at the moment he is a bit stuck in Spain and unable to return to the UK. I do personally think there should be a published judgment explaining why he was imprisoned. The new practice directions require this (I accept the case happened before the issuance of the new PD, but after the imprisonment of Wanda Maddocks). There also needs to be a way forward without public funds being wasted on imprisoning someone where it is difficult to see the public interest in imprisoning him.
Summary from the judgments
I have extracted some elements from the judgments.
3. The background is that in 1995, Mrs Clarke suffered serious injuries, including brain injuries, in a road traffic accident. She later received damages of £775,000, calculated on the basis of a life expectancy of 70. Mr Jones was appointed as receiver because Mrs Clarke's children could not agree who should be appointed to administer this fund.
7. Since the beginning of 2010, Michael Clarke has carried on an online campaign against the Deputy, the Office of the Public Guardian and the Court of Protection. He has routinely placed copies of confidential documents and expressions of his strong opinions on a website.
11. Capacity assessments of Mrs Clarke have been performed by Dr Donna Schelewa, Consultant Clinical Psychologist. She examined Mrs Clarke in December 2010 and found her to have neurological deficits predominantly characterised by very poor verbal expressive skills (dysphasia). She nonetheless concluded that Mrs Clarke had the capacity
to decide where and with whom to live
to manage a small income
to make a will
to appoint Michael Clarke to act as her deputy
to give her house to Michael Clarke
13. On 16 November 2011, the present application was issued and directions were given by the court. Michael Clarke immediately objected to the lawfulness of the proceedings on the basis that they have no legal authority. It is his fixed view that "statute law" has no effect and that the matter must be decided under "common law".
20. On 2 July, Dr Waite assessed Mrs Clarke and wrote a report. He diagnoses cognitive impairment following brain injury and ischaemic brain damage (ICD 10 F07.8). He advises that Mrs Clarke has severely limited abilities to manage her finances and that she cannot manage her financial affairs generally
She cannot manage her day to day financial affairs
She cannot understand and use information about transferring her property to Michael Clarke during her lifetime
21. Dr Waite further concludes that
While there is no doubt that Mrs Clarke trusts Michael Clarke and wants him to act on her behalf in the management of her financial affairs, it is not possible to assess the level of influence that Mr Clarke has over his mother on a single visit: this would require an extended period of separation that is not in her best interests.
22. Similarly, the possibility of undue influence upon Mrs Clarke cannot be confirmed or excluded on the basis of his assessment.
Dr Waite also says that
Mrs Clarke clearly wishes to bequeath her Blackpool property to Michael Clarke, understanding that, by doing so, she will not leave anything to her other children or her grandchildren. He believes that she would have the capacity to make a will for this purpose.
27. The Deputy said that the question now is whether the property should be sold. If it is not, there is no purpose in the deputyship. If it is, he would be prepared to continue to act at a proportionate fixed cost.
(from another judgment)
IT IS ORDERED THAT
The costs of Ms Angela Wilde and Mr Kevin Clarke and of the Deputy shall be charged to the estate of Mrs Ann Clarke.
Pursuant to CPR Rule 164:
(i) The costs of Ms Angela Wilde and Mr Kevin Clarke are summarily assessed at £3500 + VAT;
(ii) The costs of the Deputy are summarily assessed at £7000 + VAT.
The issues are more issues with the way the law works rather than necessarily issues with the judges interpretation of the law.
The first issue, which is common in cases like this, is that the Deputy (previously a Receiver) has total control over the finances. That also means control over any funds requested to prove that someone has capacity. (this creates a conflict of interest in that the deputy can refuse to facilitate a challenge to the deputy's control of the estate)
The second issue is the question as to what controls there are or accountability in terms of what the Deputy charges the estate. I have not found OPG to be that good in other cases.
The third issue is whether Mrs Clarke had sufficient capacity to discharge the deputy at an earlier stage or not. Evidence exists to state that she did, but it was not considered in these judgments.
The fourth issue is that the estate pays the costs of the deputy when the deputy is discharged even though the deputy opposes the application.
An additional point to note is under the para 13 above. There are a number of people who argue against the sovereignty of parliament and statute law. They argue instead for what they call common law and the Magna Carta. There is a fundamental flaw in their arguments in that Magna Carta is itself statute law and not common law. What is left of it can be found on the legislation website here. There is a good argument for the extension of jury trials to cover more circumstances (particularly public law family proceedings). However, the arguments put forward by the "Freeman of the Land" achieve very little. I can understand people getting to despair about how the courts when it comes to matters like this. However FMOTL is flawed. I have never seen anything good come out of this in any case. I have even seen a case where someone's mental capacity was removed following arging a FMOTL case.
In the mean time Mike and Ann Clarke are stuck in Spain.
1993 4,000 1994 5,100 1995 5,600 1996 5,800 1997 6,100 1998 7,100 1999 7,100 2000 7,700 2001 7,000 2002 7,400 2003 8,100 2004 7,600 2005 7,800 2006 7,700 2007 7,700 2008 7,440 2009 8,180 2010 9,580 2011 9,560 2012 10,100These come from SSDA903.
I made this point after the death of Peter Connolly. If you look at the trends in terms of numbers the numbers subject to care orders increased dramatically after his death. However, cases like Khyra Ishaq and Daniel Pelka continue to occur.
In the mean time the government and Martin Narey put as a priority increasing adoptions rather than preventing children from dying as a result of abuse. I personally think that is wrong. It creates an environment in which experienced social workers are fired if they believe that in an individual case a child should be returned to its parents.
My own view is that we should reprioritise the care system into protecting children first and foremost rather than satisfying government targets (or statistical pressures). I made the point in the ministerial office that it is not possible to make proper decisions from Whitehall. The decisions need to be made on the ground.
Here are the numbers of under 5s (Baby P - Peter Connolly, Daniel Pelka) taken into care since 1995.
1995 3,800 1996 3,900 1997 4,100 1998 4,700 1999 4,900 2000 4,700 2001 5,100 2002 5,300 2003 5,700 2004 5,700 2005 6,000 2006 6,200 2007 6,200 2008 6,100 2009 6,600 2010 7,500 2011 8,200 2012 8,700Are children any safer now that more than twice the number of toddlers are taken into care than was the case in 1995?