In today’s Daily Express, Stephen Pollard has written an article entitled We must regain right to kick out foreign criminals. There is a lot wrong with the article, not least the misrepresentation – not for the first time, either – of a 2007 case involving the failed deportation of headmaster Philip Lawrence’s killer.
Pollard is responding to the European Court of Human Rights ruling in Sufi and Elmi v UK, in which the court ruled that the situation in Somalia was so dire that except in very limited scenarios it will not be possible to deport people back to the country. Rosalind English has already examined the case in more detail.
As I say, there are many problems with the article, which follows the standard anti-human rights act playbook. It is worth addressing them as they are likely to be repeated elsewhere. Here are just a few.
Sufi and Elmi v United Kingdom – 8319/07  ECHR 1045 (28 June 2011) – Read judgment
Somalia has been without a functioning government since 1991, riven, since then, by violence between rival clans and sub-clans and largely at the mercy of extreme Islamist groups with one aim in common: sabotaging any efforts by the international community to install a transitional government.
The tragedy is that the combination of resource scarcity, natural disasters and rapacious human activity are so enmeshed, particularly in Africa, that the separation of state-sponsored violence (which does involve humanitarian responsibilities under the European Convention) and harm emanating from naturally occurring disaster (which does not) no longer makes any sense. The kind of conditions that give rise to treatment prohibited under Article 3 of the Convention can be said to prevail in many parts of the continent. How are signatory states to cope?
R (on the application of G) (Respondent) v The Governors of X School (Appellant)  UKSC 30 – Read judgment / press summary
The Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if the will have a “substantial influence” on future proceedings which are likely to determine a civil right.
However, in this case of a teaching assistant sacked for sexual misconduct with a child, the court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. Simply, the Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment.
As Martin Downs posted in April, this decision – which supports the previous decision of the court of appeal – will have an important effect on all internal disciplinary hearings held in the public sector, not just those held at schools. It will now be easier for teachers, doctors, dentists, nurses and others to secure the right to legal representation, alongside other rights such as the right to an impartial panel, at disciplinary hearings which will have a substantial influence on their career.
As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.
Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.
The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.
Supreme Court justice Lord Alan Rodger of Earlsferry sadly passed away on Sunday at the age of 66 after a short illness.
Lord Rodger was in the first group of 12 Supreme Court justices and was one of the two Scottish judges at the court. The Supreme Court broadcast a tribute today via its new Supreme Court Live service. The transcript can be read here.
See obituaries in The Scotsman, The Telegraph, the Herald Scotland and Aidan O’Neill QC on the UK Supreme Court Blog. O’Neill says:
It was a pleasure and a privilege to appear before him as a judge. He could spot a weak argument at a hundred paces. But his questioning and testing of counsel’s submissions were at all times courteously done, and always got straight to the heart of the issue. If he had a weakness as a judge it was that in his judgments he would often find on a precedent or a point that had not been raised by either side in argument. But he was almost invariably right on these points, even if reached without the benefit of counsel’s submissions… His untimely death robs us of a great jurist, and of a good man. His passing diminishes all of us who had the privilege to know him and to work with him.
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.
Beginning with sad news, Lord Alan Rodger of Earlsferry, one of the justices of the Supreme Court, died yesterday. A detailed obituary has been published by HeraldScotland.
Last week Ken Clarke’s criminal justice system reform proposals were hit by a change of mind/u-turn (or as Prime Minister David Cameron put it, ‘a sign of strength’) on the part of Government. The most radical features of the proposed criminal justice reforms were dropped, chiefly amongst them the attempt to increase the 33% discount to sentences for guilty pleas to 50%. The move was arguably made as a result of public consultations and in particular pressure from the tabloid press. The announcement came alongside the publication of the Legal Aid, Sentencing and Punishment of Offenders Bill. Joshua Rozenberg gives a brief outline of some of the new proposals which seek to lower the statistics on reoffending.
Members of the UK Bill of Rights Commission, an independent body asked by the government to investigate the case for a UK Bill of Rights, has been giving evidence to the Political and Constitutional Reform Committee (transcripts here: part 1, part 2). The sessions give an interesting if predictable insight into the likely discussions between the Commission’s members.
The group has made slow progress so far, and little is known about how it will operate, save that any proposed bill must “incorporate.. and build.. on all our obligations under the European Convention on Human Rights“. It is under no great time pressure, having been asked to report by the end of 2012. It is comprised of 9 people, mostly Queen’s Counsel and not all of whom are human rights experts. It also has a website, which provides little information beyond the dates of meetings. Given the importance of the process and lack of information so far, the evidence sessions are of interest.