When late last year the US Senate Select Committee on Intelligence published parts of its 6,700 page report on the CIA’s detention and interrogation programme, it shed light – remarkable light – on how the ‘war on terror’ had been conducted by the US for some time.
It very rightly prompted questions for this country. The most immediate and top level question was, if that is what the US did, what did Britain do? But one need barely scratch the surface of the matter before encountering some difficult questions about method – how do we find out what Britain did? – and about scrutiny – are there lessons to be learned about oversight and accountability?
We review here some of the expert opinions and highlight five issues that, if the experts are right, are likely to lie at the heart of debate for some time to come. Continue reading
Procedural fairness is a bit like an elephant. It is difficult to define in abstract, but you know a fair procedure when you see one. So Lawton LJ put it in Maxwell v Department of Trade  QB 523, 539
The trouble is it seems that different courts have different ideas of “elephantness”. Since we know that fairness is a necessarily context-sensitive notion, this, in itself, does not seem to give rise to too much difficulty. But practical problems start to arise when, for example, the Court of Justice of the European Union (CJEU) starts to endorse a view of fairness that is binding on the UK courts, but at odds with the approach taken by the UK Supreme Court. Add the facts that a) the UK is required to take into account the case-law of the European Court of Human Rights (ECtHR), which seems to have a different conception of fairness to that of the CJEU and b) the UK courts themselves do not necessarily speak with one voice, there’s a heady mix.
This brief post attempts to survey the area, and to discern the bumps in the road. Smoothing them out is another challenge in itself, and will probably require more than filling in the odd pot-hole. Continue reading
The New Zealand Parliament seems about to drop that country’s commitment to the rule of law from the Act underpinning the judicial branch. Retiring Supreme Court judge (and former Solicitor-General) Sir John McGrath thinks that’s worrying. He’s right. There’s still time for ex-pat Kiwis to lobby the Minister of Justice.
One of the first legislative measures of the young South Pacific colony, back in 1841, drafted in part by the Birmingham born first Chief Justice, Sir William Martin, was the creation of what is now known as the High Court of New Zealand.
That legislation has been updated over the years, significantly in the 1880s before consolidation in 1908 in the Judicature Act. That Act was overseen by the country’s fourth Chief Justice, the remarkable, Shetland born, Sir Robert Stout. Continue reading
Avid readers of the legal press may have spotted the eye-catching statistic that in 2014 a meagre 1% of claims for judicial review were successful.
The figure is derived from the statement in the MOJ’s overview of the Civil Justice Statistics Quarterly (October – December 2014) published on 5 March 2015, in which the MOJ said:
The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced … to 1% in 2013 and has remained the same in 2014.
The overview provided by the MOJ is unsurprisingly hardly a neutral presentation of the statistics. The statement is clearly intended to tell a story about the futility of the vast majority of judicial review claims, adding fuel to the MOJ-stoked fire that has been raging against judicial review.
In fact the statistic tells the opposite story, as revealed by the underlying tables. Continue reading
R(on the application of SG and others (previously JS and others)) v Secretary of State for Work and Pensions  UKSC 16 – read judgment
The Supreme Court was sharply divided yesterday over whether the benefit cap breaches the Human Rights Act. The controversial cap limits the total amount of benefits an out-of-work family can receive, including housing benefit and benefits for children, to £500 per week. It is applied regardless of family size or circumstances such as rental costs. As a result, lone parents with children in large families are disproportionately affected, both because they are more likely to be hit by the cap and because they are less likely to be able to avoid its effects. Continue reading
Singh and Khalid v SSHD  EWCA Civ 74 – read judgment
These two appeals concern the assessment of article 8 ECHR claims in immigration cases. It is an important addition to the current cases on which rules apply to applications for leave to enter or remain made before the new Immigration Rules came into force on 9 July 2012. In Singh and Khalid, the Court of Appeal clarified the answer to this question and resolved the conflicting Court of Appeal authority in Edgehill v SSHD  EWCA Civ 402 and Haleemudeen v SSHD  EWCA Civ 558.
The new Immigration Rules
The role of article 8 in immigration cases has caused controversy over the years.
The government has therefore decided to set out how the balancing exercise should be carried out by introducing HC194. Two main additions were made through the new Rules. The first was that paragraph 276ADE was added to the existing Part 7. This provision increased the long-term residence requirement from 14 to 20 years. The second was that Appendix FM was added to Part 8 of the Rules. It dealt with circumstances in which family members would be granted leave to enter or remain. Continue reading
Zenati v Commissioner of Police of the Metropolis and another  EWCA Civ 80 – read judgment
Matthew Donmall appeared for the Crown Prosecution Service in this case. He had nothing to do with the writing of this post.
In a recent judgment, the Court of Appeal held that where a criminal suspect is remanded in custody, Article 5 of the Convention requires the police to notify the court as soon as possible if there is no longer a reasonable basis for suspecting them. It also held that the police and CPS must aid the court in observing its duty to show ‘special diligence’ in managing a suspect’s detention, by investigating the case conscientiously and by promptly bringing relevant material to the court’s attention. Continue reading