The Tory human rights “car crash”

Car crash human rights

Imagine you are on the board of large corporation. You attend the Annual General Meeting and asked the chief executive about that controversial tax avoidance scheme the company had been considering, but which the in-house legal team had advised against. The Chief Exec smiles and says that has been dealt with: “we just sacked the lawyers”. 

The BBC is reporting what many suspected. Attorney General Dominic Grieve QC was sacked in order to clear the path for major reform of the relationship between the UK and the European Court of Human Rights. This is bad news, for the UK and potentially for the European Court of Human Rights too.

The Attorney General’s advice, which has been leaked to the BBC, was that plan to limit the power of the European Court of Human Rights were “incoherent” and a “legal car crash… with a built-in time delay“. Intriguingly, the BBC’s Nick Robinson also reports that William Hague, the now-former Foreign Secretary, also raised doubts over the plans.

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Whose Magna Carta is it anyway?

90291Yesterday was Magna Carta Day. It is now only 364 days until the 800th anniversary of the sealing of England’s oldest charter of rights, and one of the world’s most influential legal documents.

There will be much celebration in the coming year, and rightly so. Despite its age, Magna Carta is still partly on our statute books. It represents the first legal constraints imposed on the English king by his subjects. It has influenced every major rights law since – notably, the United States Constitution and the European Convention on Human Rights, both of which are very much still in force.

According to the Magna Carta Trust, there will be eight century beer, festivities, new books, an opera, a calypso tribute and even a new roundabout on the A308 at Runnymede. And if a new roundabout isn’t “English” enough for you, there will of course be lots of dressing up in silly costumes.

But along with celebration, there will be disagreement. It has already started. Continue reading

Human rights reform… Labour reveals its hand

SadiqKhan460

Sadiq Khan, Labour’s shadow Justice Secretary, has given us a glimpse of what the Human Rights Act would look like under a future Labour government in a Telegraph article. Labour will “shift power back to British courts”, says the former solicitor.
The article presents a strong case for human rights as an “ancient British tradition” and ties future reforms in with the 800th anniversary of Magna Carta. But the only real proposal here is publishing ‘guidance’ to judges in order to

make sure it is clear to the judges what Parliament intended by Section 2 – that they’re free to disagree with Strasbourg, that it’s sometimes healthy to do so, and that they should feel confident in their judgments based on Britain’s expertise and strong human rights standing.

Section 2 of the Human Rights Act says that any judge deciding a question involving human rights “must take into account“, amongst other things, any judgment of the European Court of Human Rights. This has been a controversial provision as on its face it only requires judges to pay attention to, not follow, Strasbourg’s judgments. But the judiciary have often gone further than they a required to – see Rosalind English’s summary of the recent public spat between the judges.
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Not in our name: Parliamentary committee rejects Government’s case for Judicial Review reform – Angela Patrick

RCJ restricted accessAngela 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.

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Don’t be fooled by the “concessions”, there is still a real threat to Judicial Review

kite grayling (UK Human Rights Blog)The Ministry of Justice has published its response to the consultation on the latest round of Judicial Review reforms. The full response is here and the Criminal Justice and Courts Bill is here.

In my post on the first draft of the MoJ proposals, I warned to beware of kite flyers, and said:

Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality.

Without wanting to say “I told you so” (oops), don’t be fooled by the seeming concessions. There is still a lot to be concerned about in what remains, as there was in the last round of changes – as Dr Mark Elliott points out, JR, like the NHS (and Communist Russia), now seems to be in a state of perpetual reform.  I do not intend here to analyse the proposals in detail, but I will point you towards some excellent early articles.

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Hands off our courts’ relationship with the European Court of Human Rights – Paul Harvey

OLYMPUS DIGITAL CAMERAThe glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste.  Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.

Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States.  Most influential among those traditions must surely be the common law.

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Hostility to the European Court and the risks of contagion – Philip Leach and Alice Donald

Contagion-007Updated | The relationship between the UK and the European Court remains turbulent and fractious. The Court has been the subject of significant criticism, notably from some politicians and commentators in the UK, relating to its supposed interference in domestic, sovereign questions and the quality of its judges.

Some commentators say that the UK may have to withdraw from the jurisdiction of the court. Michael Pinto-Duschinsky argues that if (as is highly likely) the Council of Europe refuses to institute a “democratic override” for states of European Court of Human Rights decisions, withdrawal should be seriously considered. MP Nick Herbert argues that the UK should withdraw immediately.

Others have proposed withdrawing from the European Convention altogether. For example, in April, the Home Secretary, Theresa May, said that temporary withdrawal from the Convention was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (also known as Abu Qatada). Two members of the Commission tasked with investigating the creation of a UK Bill of Rights advocated withdrawal from the Convention unless the Court ceased its ‘judicially activist approach’ (p. 182).

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The latest prisoner votes judgment may be our Marbury v Madison – Jamie Fletcher & Charlie Eastaugh

Marbury_v_Madison_John_Marshall_by_SwatjesterAt first glance, prisoner voting proponents may interpret the Supreme Court’s R (Chester) v Justice Secretary decision (see Adam Wagner’s previous post as a defeat for advancing prisoner voting rights in the UK. This blog post offers a different perspective. By comparing Chester to the seminal US Supreme Court case of Marbury v. Madison, we summarise that such proponents should take a step back and see the wood, rather than merely the trees. This is because Lord Mance’s Chester judgment offers human rights advocates, and therefore supporters of prisoner voting rights, an unequivocal foundation from which to defend future human rights claims.

Chester does not achieve the same ends as Marbury. Marbury established the institution of judicial review in the United States, against Congressional legislation. Chester does not disturb the supremacy of the UK Parliament. Comparison arises within the strategies of the leading judgments in each case. Chief Justice Marshall’s judgment in Marbury is celebrated not only for its conclusion, that the Constitution of the United States is the highest form of law and therefore “it is emphatically the province and duty of the judicial department to say what the law is”, but also for how it reached that conclusion.

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This Supreme Court prisoner voting decision really is a victory for common sense

ballot_box_vote.ce.03R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland) [2013] UKSC 63  – read judgment / press summary

The Lord Chancellor Chris Grayling recently told The Spectator that he wants “to see our Supreme Court being supreme again“. In light of his respect for the court, he should read today’s judgment on prisoner votes very carefully indeed, as should David Cameron who has already endorsed the decision as a “great victory for common sense”.

The Supreme Court dismissed two claims by prisoners who argued their European Convention (Chester) and European Union (McGeogh) rights were being breached because they weren’t allowed to vote in various elections. I won’t summarise the detail of their arguments, which can be found in our previous posts on the Court of Appeal and Scottish Outer House Court of Session decisions.

We will aim to cover the substance of the decisions in due course. But what I find really interesting was the Justices’ views on the European Court’s various decisions on prisoner votes, which the Government argued were poorly reasoned.

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The Supreme Court’s curious constitutional U turn over prisoner rights – Richard A. Edwards

Supreme Court meets StrasbourgOsborn v The Parole Board [2013] UKSC 61 – Read judgment / Press summary

1 Crown Office Row’s David Manknell acted as junior counsel to the Parole Board in this case. He had no involvement in the writing of this post.

Writing in his magisterial new work, Human Rights and the UK Supreme Court, Professor Brice Dickson noted that the Human Rights Act had created ‘an internationalized system of human rights protection rather than a constitutional one.’ Indeed, there had been a marked resistance on the part of the Supreme Court to use the common law to achieve the same goal of human rights protection. In Osborn v The Parole Board the Supreme Court seemed to resile from this position.

Osborn, and the co-joined appeals, concerned the circumstances in which the Parole Board is required to hold oral hearings. Osborn had been recalled to prison after an immediate breach of his licence conditions. Booth and Reilly had been sentenced to life imprisonment, and in both cases the minimum term had expired. The appellants sought early release and had been denied an oral hearing by the Parole Board under the operation of the statutory regime (detailed in paras 3-17). Instead their cases had been decided on paper by a single anonymous member of the Board.

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Judicial Review is not part of a vast left wing conspiracy

kite-picture2The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.

Beware kite flyers“, warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of  Lord Chancellor  “exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law“. Law was hardly insulated before, but it is difficult to remember a Lord Chancellor putting his case  in such a  nakedly political and incendiary way.

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UK judges have breathed new life into Human Rights Convention, says former court president – Sanchita Hosali

 

NicBYesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.

At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” –  politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.

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Standing and judicial review: why we all have a “direct interest” in government according to law – Dr Mark Elliott

RCJ restricted accessAccording to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:

We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.

This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.

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The Times on Abu Qatada

Muslim cleric Abu Qatada prepares to board a small aircraft bound for JordaI have an opinion piece in today’s Times on Abu Qatada. It is behind a paywall so I can’t reproduce it here, but you can probably guess from the title what my theme is: Abu Qatada’s case shows the human rights system worksEnjoy (if you have access).

Here is a taster:

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