The Supreme Court’s terrible twos?.. The Human Rights Roundup
30 October 2011
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Graeme Hall
In the news
The Supreme Court and the European Court of Human Rights have featured prominently in the legal news this week. Let’s find out why.
The Supreme Court’s ‘terrible twos’?
The Supreme Court has become a toddler, celebrating its second birthday last week. The Guardian has produced a video interview with the justices as well as an article with some of the Justices who attempt to demystify the Courts’ processes. But will its birthday mark the beginning of the court’s ‘terrible- twos’?
Lady Hale, the only female Justice, has certainly been vocal of late. Calling for more diversity amongst the judiciary, Hale argues that we need to “think of the very able people that are doing … less visible forms of practice, rather than just thinking about the top QCs”; representing a possible contrast to the other male Justices who argue that promoting diversity over merit would be a “great mistake”.
This topic was discussed at a recent event comprising the top female UK lawyers which agreed that barriers preventing women from climbing the judicial ladder still exist. Nonetheless, an article in The Lawyer demonstrates that the feminist movement is ready to take on the judiciary, with Lady Hale firmly at the helm.
Thankfully, Lady Hale is not alone in openly questioning the government’s cuts to legal aid, stating that they will “of course, have a disproportionate effect upon the poorest and most vulnerable in society…”. Her male counterparts share her concerns, particularly regarding the “deluge” of litigants in person flooding the lower courts. It is heartening, therefore, that backbench Liberal Democrats have tabled amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO), seeking to reduce some of its negative impacts.
Glut of litigants in person?
The issue of self-representation in courts is also picked up by the Pink Tape blog which has received a response from the Judicial Office confirming that “the Judicial College does not run a specific seminar on litigants in person” for judges. Nonetheless, the blog concludes that even if specific training were offered, it is not the place of the judiciary to assist litigants in person without the risk of “transgressing the professional boundaries that are essential in order for [judges] to remain visibly impartial”.
Interestingly, it may be that litigants in person aren’t the ones at a disadvantage. In a letter to the Law Society Gazette, a family lawyer states that judges are going to the other extreme and, in practice, favouring litigants in person to the detriment of those legally represented; a conclusion not supported by the Pink Tape blog.
Legal aid is not, however, the only focus of LASPO. The Law and Lawyers blog examines Ken Clarke’s recently announced amendments to the sentencing of offenders including the abolition of Indeterminate Public Protection (IPP) sentences (a passing not to be mourned in ObiterJ’s opinion) and the extension of mandatory life sentences.
‘Subsidiarity’ and reform of the European Court of Human Rights – a magic wand?
It’s not just feminists willing to ‘take on’ the courts. The Attorney General, in a speech to Lincoln’s Inn, has stated his intent to limit the jurisdiction of the European Court of Human Rights by intervening before the Grand Chamber in Scoppola v Italy (no. 3); another case concerning prisoners’ voting rights.
The Attorney General appeals to the principle of subsidiarity, stating that the Court “should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention.” Whilst I have previously questioned the use of the term ‘subsidiarity’, Adam Wagner commends the Attorney General for a “grown up speech on human rights reform”, and Halsbury’s Law Exchange blog sees merit in his argument.
Nonetheless, presuming that the Court doesn’t already adhere to the principles advocated by the Attorney General, Dr. Ed Bates wonders whether the application of the Attorney General’s proposals would make any material difference to the Court’s decisions. Indeed, as Joshua Rozenberg writes, the principle of subsidiarity is viewed by the government as “somewhere between “abracadabra” and “open sesame”.”
If the Attorney General’s proposals do not turn out to be the magic wand they are wishing for, the law think blog reminds us of the potentially very serious consequences for failing to implement decisions of the European Court of Human Rights.
Other roundups
Remember to take a look at law think’s latest developments in UK human rights and why not sign up the Guardian’s The Bundle; a succinct weekly email outlining the main points of legal news.
In the courts
- Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011): Supreme Court: Criminal standard of proof not required by fair trial rights for confiscation under Proceeds of Crime Act.
- Alam (s 85A – commencement – Article 8) Bangladesh [2011] UKUT 424 (IAC) (13 October 2011): (1) s. 85A of Nationality, Immigration and Asylum Act 2002 precludes certain evidence from being relied on, in order to show compliance with the Immigration Rules. (2) “Fairness” arguments may have a legitimate part to play in a proportionality assessment under Article 8 of the ECHR. See: New evidence in Points Based System appeals, Free Movement Blog.
- AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191 (27 July 2011… Court of Appeal dismisses 3 joined asylum appeals: welfare of children was sufficiently taken into account. Useful guidance on ensuring children’s rights via s55 Borders Citizens & Immigration Act 2009.
- Commissioner of Police of the Metropolis & Anor v Times Newspapers Ltd & Anor [2011] EWHC … High Court: Times Newspaper can use leaked Scotland Yard / Serious Organised Crime Agency documents in libel defence. See: Times can use leaked Police documents in libel defence; Rachit Buch
- ABB & Ors v Milton Keynes Council [2011] EWHC 2745 (QB) (21 October 2011): High Court: Council vicariously liable for sex abuse suffered by 4 children after failed to investigate father. Admitted abuse at Alcoholics Anonymous but police and council investigations came to nothing.
…and don’t forget our recent posts!
- Air quality and legitimate expectation: the full judgment in the Cornwall Waste Forum case October 28, 2011 David Hart QC
- Is the Attorney General right on prisoner votes and subsidiarity? – Dr Ed Bates October 27, 2011 1 Crown Office Row
- Times can use leaked Police documents in libel defence October 25, 2011 Rachit Buch
- A grown-up speech on human rights reform October 25, 2011 Adam Wagner
- Right to family life should not interfere with EU system for allocating asylum responsibility October 24, 2011 Rosalind English
- Two great UK Bill of Rights events October 24, 2011Adam Wagner
- European stem cells, Hackgate and injunctions – The Human Rights Roundup October 24, 2011 Melina Padron
- Can Britain “ignore Europe on human rights”? October 23, 2011 Adam Wagner
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Aren’t the UK about to lose over retention of innocent folks DNA at the ECHR Grand Chamber?
‘…other male Justices who argue that promoting diversity over merit would be a “great mistake”.’
If people are going to argue against promoting diversity then they will need to do better than advance a straw man argument. After all, did anybody ever argue ‘I want to put diversity ahead of merit’ or words to that effect? Diversity and merit are not in competition with each other.
The status quo needs to be rudely shaken up – the reason why there are not more women,. black people and disabled people amongst the judiciary has little to do with a lack of talent but a lot to do with old fashioned prejudice.
Thank you for mentioning my blogpost on sentencing.
I agree that diversity is an important consideration but there are, I submit, more important consideration in relation to Supreme Court appointments. (1) the various legal systems of the UK have to be represented adequately; (2) the more likely subject-matter of appeals has to be covered by appropritae expertise. Re (2), one wonders whether there would be merit in having an additional panel of judges who could stand in if the subject-matter demanded it and where the regular justices did not really have the necessary in depth knowledge?
Litigants in person are at an enormous disadvantage. Every lawyer knows that law is difficult and requires, as Lord Coke said many years ago,
” … Law is an art which requires long study and experience, before that a man can attain to the cognizance of it; …” It is utterly wrong to expect the ordinary citizen to represent themselves before courts and tribunals.
Is merit the exclusive domain of the bar and QC’s with regards to arguments on diversity and judicial appointment?
A good point. Hence my use of the term “possible contrast” in the proceeding sentence.