PLP v Secretary of State for Justice  EWHC 2365 – Read judgment / summary
As the House of Lords is scheduled to vote on the Government’s proposals for a residence test for access to legal aid, Angela Patrick, Director of Human Rights Policy at JUSTICE considers today’s judgment of the Divisional Court in PLP v Secretary of State for Justice.
While we are all following the exciting live feeds on both the reshuffle and the progress of emergency legislation on surveillance, the freshly appointed Attorney General, Jeremy Wright MP, may want to cast his eyes to BAILLI.
The Administrative Court may this morning have handed him one of his first “to-do” list items. In – PLP v Secretary of State for Justice - a rare three judge Divisional Court has held that the Government’s proposal to introduce a residence test for legal aid – where all applicants will have to prove 12 months continuous lawful residence in the UK – is both ultra vires and discriminatory.
Rutherford and Ors v Secretary of State for Work and Pensions  EWHC 1613 (Admin) – Read judgement here.
At the end of May, the High Court ruled that the reduction in Housing Benefit under Regulation B13 of Housing Benefit (Amendment) Regulations – commonly dubbed “the bedroom tax” - did not unlawfully discriminate against a family with a disabled child requiring an additional bedroom for overnight careers because the shortfall was covered by discretionary housing payments.
The case involved three Claimants: Mr and Mrs Rutherford and their 14-year-old grandson Warren. Warren suffers from a profound disability requiring 24-hour care from at least two people. Mr and Mrs Rutherford need the assistance of two paid careers for two nights a week. The family live in a three-bedroom bungalow rented from a housing association and specifically adapted to meet Warren’s needs. Mr and Mrs Rutherford sleep in one room, Warren in another, and a third room is used as a bedroom for overnight carers and to store medical equipment.
Last night saw the House of Lords’ first reaction to the Government’s proposed changes to judicial review as the Criminal Justice and Courts Bill had its second reading. Already dissected at some length in this blog, the proposals have been roundly criticised by both the senior judiciary and the Joint Committee on Human Rights. Consultations responses, including from JUSTICE, expressed concern that the measures appear, by design or coincidence, to undermine the rule of law, inhibit transparency and shield the Government from judicial scrutiny. Two key concerns arise from the Government proposals: restricting access for individuals without substantial means and limiting the courts’ discretion to do justice in the public interest. Yesterday’s debate was robust and eloquent, with former Law Lords joined by bishops and backbenchers alike to condemn the new measures.
Metaphors were rife. Descriptions of the Government’s proposals ranged from Lord Woolf’s invocation of the image of Governmental wolves among some unlikely judicial sheep, to the titular and topical tennis imagery used with devastating effect by Lord Brown of Eaton –under-Heywood:
“More and more areas of our lives are controlled by public authorities. At the same time we have become understandably, I suggest, less trusting and certainly less deferential towards those with authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today…By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years.” (Col 1591) Continue reading
Guardian News and Media Ltd -v- AB CD – Read preliminary judgment
The Court of Appeal has published its decision in Guardian News Media v AB and CD. It is not a judgment, the Court says. Judgments – plural – will be given “in due course.” Still, the 24 paragraph decision contains the order and explanation of the order, and gives an indication of some of the reasons that will follow.
Is this a good decision? It is better than it might have been, but there are still deeply worrying problems.
Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.
Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).
Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system. Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.
Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to reflect on what, if any, role human rights principles have in redressing that imbalance:
(1) The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.
(2) Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here. Continue reading
Not too long ago, a friend of mine, Jem Stein, set up a brilliant social enterprise called the Bike Project. It has gone from strength to strength. The project is now loking for (i) new corporate clients for its very reasonable and professional bike repair service and/or bike training service, (ii) new bikes to repair. All details below and in this flier – Adam Wagner
The Bike Project was set up in late 2012 with the primary aim of refurbishing second hand bikes to give to destitute refugees and asylum seekers in London.
Many people come to this country with nothing, often escaping persecution. Whilst a number are forced to live on as little as £35 per week and unable to work as their status as a refugee is approved, those who are able to work find getting around on public transport simply too expensive. The effect that a bike can have is underestimated. It provides access to all that London has to offer: reaching charities that help with food, healthcare, education, and even the lawyer who can aid their application process. Of course, a bike can aid employment, if they are lucky enough to receive refugee status.
Though strategic litigation and test cases make essential contributions to the rule of law, there’s concern that they’re being abused. And, as funding comes under attack, there’s a greater need than ever for pro bono lawyers to take on test cases to ensure access to justice and accountability.
Following the fall of communism, the European Roma Rights Centre (ERRC) identified a significant problem with the educational segregation of Roma children in parts of Central and Eastern Europe. Roma children were ending up in what were termed ‘special schools’, supposedly set up for children with intellectual disabilities, and thus segregated from mainstream schooling. In 1998, the ERRC decided to investigate.
To try and bring about reform, it became apparent that the ERRC needed to identify a test case to put before the courts. In order to find the right applicant it interviewed hundreds of Roma families in the region and found 18 Roma children in the Czech Republic to be the test case. The legal angle the ERRC adopted was indirect discrimination: entry tests to mainstream schools were set for all children but they were biased against Roma children because they focused on Czech customs and language. The Roma children often failed and so were subsequently put in the special schools. The centre found that Roma children were twenty-seven times more likely than non-Roma children to be sent to a special school. Continue reading
Around 150 delegates, including representatives of all 47 Council of Europe states and two judges of the European Court of Human Rights, met in Oslo last week. Their mission? To reflect on the protracted process of reforming the European Convention system and imagine what it might look like in 2030.
Non-government organisations and academics (myself included) joined the insiders to engage in ‘blue-skies’ thinking, despite the dense fog that enveloped the hilltop venue.
The end of the beginning
The Strasbourg Court as we know it came into being in 1998 with the entry into force of Protocol 11 to the Convention. Subsequent reform was driven by two closely-linked imperatives: first, to reduce the backlog both of applications and non-executed judgments and secondly, to reinforce the subsidiary role of the Court vis-à-vis national authorities.
As regards the former, notable developments include the steps taken since 2010 under Protocol 14 to increase the efficiency of judicial decision-making; and (more controversially) the introduction of a shorter deadline, narrower admissibility criteria, and stricter conditions for applicants. The post-judgment process of implementation was also reformed to permit more intensive supervision by the Committee of Ministers (the Council of Europe’s executive arm) of urgent, complex or inter-state cases and lighter touch supervision of the rest. Continue reading
As MPs and Peers consider the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations and the Criminal Justice and Courts Bill, Angela Patrick, Director of Human Rights Policy at JUSTICE considers the Lord Chancellor’s view that proposed judicial review changes do not restrict access to judicial review remedies or restrict the rule of law.
Tomorrow (Thursday), MPs will consider a series of detailed amendments to the Government’s proposed changes to judicial review in the Criminal Justice and Courts Bill. The proposed changes to legal aid for judicial review are not up for debate. The Regulations, which will restrict legal aid to only those cases granted permission, are already made and due to come into force on 22 April. There will be no debate on those changes, unless MPs and Peers demand one.
Within the past week the EU Commission has laid down its plans for protecting the rule of law across Europe and, importantly, for punishing member states that fail to meet rule of law standards. At first glance this appears to be a landmark in the EU’s regulation of the rule of law, fundamental rights and democracy, but is it the solution it claims to be?
Between political persuasion and ‘the nuclear option’
In an effort to prevent more proactively systemic breaches of the rule of law and human rights, the EU Commission has published a Communication on its new Framework to strengthen the Rule of Law. The Framework was largely the product of a consultation which was kick-started by President Barroso when he indicated his desire to develop a monitoring mechanism which would offer a middle ground between “political persuasion” and what he called the “nuclear option” of Article 7 TEU. Continue reading
As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
The business of the law can tend to harden the heart – but every now and then a case comes along that drives off the spectre of compassion fatigue. This was the effect of a recent libel claim in which I obtained substantial damages and published apologies for a 20-year-old Afghan refugee, Abdul Shizad, who – despite being entirely alone in the UK and having limited English – had the courage to sue the Daily Express, which had falsely accused him of being a “Taliban Suspect”.
The Express’s timing was particularly superlative, its 4 March 2013 article “Now Judges Let Taliban Suspect Stay” coming just a month after Abdul had succeeded in a stressful and exhausting 4 year quest for asylum in the UK.
Accompanied by a most unflattering photograph of two unsuspecting “Judges”, the article lambasted “a new human rights scandal” in which “judges have said a suspected Taliban member can stay in Britain”.
West London Mental Health NHS Trust (Respondent) v Chhabra (Appellant)  UKSC 80 – read judgment
It is not unknown for lawyers or doctors to speak on a mobile phone about confidential details of a case while travelling by train. Some of you may even have left case papers out on your seat or table while you hunt down a bacon baguette from the Travelling Chef (formerly known as “Toastie Geoff” prior to rebranding). If so, read on, for this is a cautionary tale…
This appeal by Dr Chhabra was concerned with the roles of the case investigator and the case manager when handling concerns about a doctor’s performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as ‘Maintaining High Professional Standards in the Modern NHS’ (MHPS), which the Trust had implemented through its own policies.
The factual summary below is derived from the Supreme Court Press Summary
The President of the Family Division, Sir James Munby, has today issued important new guidance on “Transparency in the Family Courts: Publication of Judgments” [pdf] and “Transparency in the Court of Protection: Publication of Judgments” [pdf].
These two documents are intended “to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection”.
Both documents say that:
In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form . Continue reading