A “shameful” bill? – The human rights roundup

27 June 2011 by

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.

by Melinda Padron

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.

Unlike the approach taken with sentencing reforms, the government did not appear to take into account the public opinion or the approximately 5,000 responses to the consultation process related to the previously proposed legal aid reforms. Despite significant opposition in those responses, the heavily criticised proposals were reintroduced in the Bill in a largely unchanged format.

It is thus unsurprising that law bloggers and the specialised press have been speaking out against last week’s announcement. Law and Lawyers featured some reflections on a “shameful” bill, making reference to a strongly worded article featured in the Law Gazette. Nearly Legal discussed the impact of the Bill to different areas with a funny but tragic commentary. Lawyer Watch refers to the abolition of the LSC and the potential for this Bill to result in a surge of Article 6 ECHR litigation (that is, the brutal cuts could lead to claims that the reforms breach individuals’ right to a fair trial/access to court).

Felicty Gerry for Halsbury’s Law Exchange said that as a barrister, she does not want to Vajazzle, but just to see a fair trial. Inforrm’s Blog analyses the impact of the Bill to media law and defamation cases, in particular in light of the reforms to conditional fee agreements. As a response to overwhelming criticism from those in the legal profession (and in other related professions), Ben Gummer, the Conservative MP for Ipswich, wrote a piece for The Times asking the readers not to ‘heed to the wailing of the bewigged Scargills’. The MP seems to have devoted more time coming up with that new nickname for lawyers than considering the content of the responses to the consultation.

This can be seen in two interesting responses to his article: a passionate piece by Lucy Reed in the Guardian, and a short but lethal response by Peter Lodder QC (Chairman of the Bar Council) and Stephen Cobb QC (Chairman of the Family Bar Association). See Adam Wagner’s coverage of the Legal Aid, Sentencing and Punishment of Offenders Bill here and here.

Deprivation of liberty

In other news, Lucy Series for The Small Places blog wrote an excellent three-parts post on the relationship between restraint and deprivation of liberty in the context of community care and mental capacity cases. The first part deals with recognizing restraint and the dangers of euphemistic language; the second with lawful restraint and adherence to ‘best practice’ guidance; and the third with the ongoing uncertainty over the meaning of ‘deprivation of liberty’.

In an interesting post in the UK Constitutional Law Group Blog, Roger Masterman analyses the terms of reference of the Commission on a Bill of Rights to conclude that “the distinctly ‘British’ contribution to any future Bill of Rights is (…) most likely to emerge through acknowledgment (…) of the genuinely symbiotic relationship between the European Court of Human Rights and national authorities.” Adam Wagner wrote a post on the Bill of Rights Commission giving evidence to the Political and Constitutional Reform Committee and how that gives us an insight into the discussions between the Commission’s members.

Also in related news, Helen Wildbore in the Inforrm’s Blog makes a strong case against amending the HRA over the privacy row. Her article is framed as a robust reponse to David Elstein’s suggestions in the Telegraph that the only solution to the problem is new legislation.

Other relevant human rights news featuring in the blogs and newspapers are helpfully and excellently covered in Law Think’s latest human rights developments in the UK (20-26 June) and in a short post on Law and Lawyers on Jurors and contempt, the limits of cross-examination in light of Levi Bellfield’s trial and the government appealing the Shoesmith case judgment.

In the courts – see also our Cases Table

BB & Ors v The Home Office [2011] EWHC 1446 (QB) (08 June 2011) 

Master was wrong to strike out private claims for unlawful detention brought by 4 detainees in Yarlswood detention centre: No need to bring such claims as judicial review.

AM v Secretary of State for the Home Department [2011] EWCA Civ 710 (21 June 2011) 

Court of Appeal agrees with High Court that control order lawful of “person prepared to martyr himself and… kill large numbers of other people”.

IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 (21 June 2011) 

Court of Appeal: No need for enhanced Article 5 or 6 procedural safeguards in Special Immigration Appeals commission deportation/exclusion cases.

Bonhoeffer, R (on the application of) v General Medical Council [2011] EWHC 1585 (Admin) (21 June 2011) 

General Medical Council admission of hearsay evidence in sexual misconduct case involving eminent child cardiologist breached human right to fair trial – key paras: 108, 129. See Richard Mumford’s commentary to this case in our blog.

C v A Local Authority [2011] EWHC 1539 (Admin) (30 March 2011) 

Mental Health Act principles & guidance applies even when Act’s compulsory measures not invoked, e.g. severely disabled child living in special school / children’s home.

Cart v The Upper Tribunal [2011] UKSC 28 (21 June 2011)

Supreme Court: Upper Tribunal decisions amenable to Judicial Review by High Court if they raise important principle or some other compelling reason to be heard. See the excellent commentary to the judgment by Rosalind English in our blog, as well as a short commentary by the Panopticon blog.

Eba v Advocate General for Scotland (Scotland) [2011] UKSC 29 (21 June 2011)

Supreme Court: Upper Tribunal decisions amenable to Judicial Review by Scottish Court of Session if they raise important principle or some other compelling reason to be heard.

Attorney General v Fraill & Anor [2011] EWCA Crim 1570 (16 June 2011) 

Juror communicating to defendant on Facebook guilty of contempt of court

Case Comment: Re E [2011] UKSC 27 (child abduction case) « UKSC blog 

Article 13(b) of the Hague Convention should be interpreted more restrictively and thus not requiring a full enquiry into the merits of the abductor’s case.

… and don’t forget our recent posts:

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