EU Steps Up, Thatcher’s Legacy & More Legal Aid Cuts – The Human Rights Roundup

15 April 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

This week, the accession of the EU to the ECtHR moves towards finalisation, the Iron Lady continues to cause debate and discussion even in death, Legal Aid Reforms bring both praise and consternation and as the Supreme Court swears in new judges, people ask, ‘Where are all the women?’

by Sarina Kidd

In the News

EU accession to the ECtHR looms nearer

After a lot of negotiation, the Draft Agreement on Accession of the European Union to the European Convention on Human Rights has now been finalised. As David Hart QC explains, this will allow the Strasbourg court to scrutinise not only EU acts or omissions but also EU laws for human rights compatibility.

The ECHR blog explains that if passed, the EU will accede to the ECHR itself and to Protocols 1 (on property and education amongst others) and 6 (abolition of the death penalty in times of peace). However, other Protocols such as 7, 12 and 13 (the latter abolishes the death penalty under all circumstances) will not apply as they have not been ratified by all EU member states.

Debate on this matter first began in the 1970s but proper negotiations date to 2009/10. The Council of Europe has called it a ‘milestone reached’, and Secretary General Thorbjørn Jagland referred to it as ‘the missing link’.

The process is not yet complete, however, for the Council of the European Union will have to unanimously agree and, of course, it will need to be ratified by the ECHR state parties.

Legal Aid Cuts

A consultation was launched this week on proposals for a further £220m  to be cut from the criminal legal aid budget. The changes will include prisoners’ rights to legal aid being curbed, and it will not be automatically available for those with a disposable income of more than £37,500.

The Ministry of Justice emphasise the financial pressure on public finances with a spokesman noting that taxpayers and their ‘hard-earned money’ should not be taken ‘for a ride’ by those who find themselves in court. Chris Grayling, the Secretary of State for Justice, says the proposals will ensure the best value for taxpayers’ money and improve public confidence in the legal aid system.

Furthermore, defendants will lose the right to choose their lawyer and will instead be allocated a representative.

The proposals have naturally been met with some vociferous criticism. Richard Miller, head of legal aid at the Law Society, states: ‘Client choice is widely regarded as an important driver of quality in the justice system. It is very concerning, and revealing, that the government appears prepared to sacrifice this vital principle’. Maura McGown QC notes that the fee cuts will be a ‘bitter pill’ for publicly funded barristers ‘already at breaking point’.

The Iron Lady Legacy

The passing of Margaret Thatcher has not been a quiet affair, to say the least. Much has been said this week on all aspects of her career and private life, and Richard Edwards, on a UKHRB repost, looks at the effect she had on the constitution. He discusses how she never initially set out to reform the constitution and had at first been enthusiastic about the then European Economic Community. Under her rule, ‘the law began to supplement, if not replace, politics as the means through which power is exercised and challenged’ and notes, among other things, that the GCHQ case marked the moment of full resurgence for judicial review.

Meanwhile, Liberty have raised freedom of expression concerns over the policing of Thatcher’s funeral, set for Wednesday.

The role of academia in legal judgments

Lady Hale’s speech on whether judges should refer to socio-legal or social research in their judgments has been analysed over at the UK Supreme Court Blog. Lady Hale details a number of situations in which such research has been used but also lays down the reasons why the court should be wary of placing too much weight on socio-legal research. She explains that ‘the activity of judging is indeed very different from the activity of authorship…authors do not have to decide real cases, with real people in front of them’ but does note that ‘judges ignore the wider context in which they do their work at their peril.’

Supreme Court Clones

This week, Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court, with Lord Hodge to follow shortly. This means that Lady Hale remains the only woman ever to be appointed to the highest court in the land. Adam Wagner earlier described such a move as ‘an attack of the clones’ and Kate Malleson asks, ‘Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts?’ She concludes that it is about time some of our best female lawyers are recognised for their abilities and put on the bench.

Case Comments

•  Alasdair Henderson discusses the recent judgment regarding the banning of the Anglican Mainstream advert on London Buses that read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The court decided that although the banning was handled very badly by Transport for London, it was not unlawful or in breach of the human rights of the group. This decision has provided much fodder for debate, such as on the role of Article 14, which prohibits discrimination on the ground of political or other opinion and also on the ground of religion.
• Over at The Justice Gap, a new judgment from the European Court of Justice is being discussed. The decision will bring certainty to individuals and environmental groups seeking to use the law to protect the environment. Fear of costs has often prevented such people from challenging public bodies in the courts. For example, in the UK, the ‘loser pays rule’ led to the WWF paying the Government’s legal costs of over £200,000 after losing a case concerning the construction of a funicular railway up Cairngorm Mountain in Scotland. Jack White, legal adviser at Friends of the Earth, says the judgment is ‘a significant step forward’. For further analysis, see the recent UKHRB post.

In other news

• London Metropolitan University is refusing to drop a legal challenge against Home Secretary Theresa May after being stripped of its licence to bring overseas students into Britain. Last year the UKBA sampled 101 cases and found a quarter of students held no leave to remain in Britain. The institution claims to have lost £20 million over the decision and although it is now allowed to sponsor foreigners again, it will continue with its challenge. ‘
• The Free Movement Blog looks at how much access to the Internet is permitted in immigration detention centres. A Freedom of Information request shows that there is no official policy on restricted access to websites but the blog notes that several lawyers and visitors have heard anecdotes of access to various legal websites being restricted, but this list seems to vary from centre to centre.
• The proposed post-Leveson press regulator continues to generate comments. Padraig Reidy states that although ‘small-scale’ blogs are now to be protected, how is ‘small’ to be measured? He concludes that the whole system is confusing and flawed.

Available Reports

• The Home Office has released the Protection of Freedoms Act 2012: Draft Statutory guidance on the making or renewing of national security determinations allowing the retention of biometric data.
• The 6^th Annual Report of the Committee of Ministers on the ‘Supervision of the execution of judgments and decisions of the European Court of Human Rights’ is available here.

In the Courts

• CF v Secretary of State for the Home Department [2013] EWHC 843 (Admin) (12 April 2013) April 12, 2013
  Restriction on association imposed on student terrorist suspect under TPIM was disproportionate, TPIM ruled unlawful.
• H. AND B. v. THE UNITED KINGDOM – 70073/10 44539/11 – Chamber Judgment [2013] ECHR 298 (09 April 2013) April 9, 2013
  Somali national’s detention pending deportation was not lawful under domestic law: European Court of Human Rights judgment
• ABDI v. THE UNITED KINGDOM – 27770/08 – Chamber Judgment [2013] ECHR 299 (09 April 2013) April 9, 2013
  Somali national’s detention pending deportation was not lawful under domestic law. European Court of Human Rights finds breach of A5(1), damages of €1500

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Venice Academy of Human Rights 8-19 July 2013: “a forum for the exchange, challenge and innovation of ideas and expertise for participants who are at an advanced stage of their career”
• Justice, Equality, Unity: Manor Gardens Public Lecture,… – Eventbrite Wednesday, 17 April 2013 from 19:00 to 21:00 (BST) – £10 (for charity)
• Be a Human Rights Lawyer – Careers Event 7 May 2013 from 13:00 to 16:00 at the Law Society, Chancery Lane

UKHRB posts –

• Frivolous Atmospherics – April 13th 2013 by Rosalind English
• The CJEU on ‘prohibitively expensive’ and the new protective costs order regime – April 11th 2013 by David Hart QC
• Habitats: The CJEU’s judgment in Sweetman – April 11th 2013 by David Hart QC
• Planning policy versus the UN Rights of the Child – April 11th 2013 by David Hart QC
• Detention pending deportation without regular review breaches Article 5 of the Convention – April 10th 2013 by Rosalind English
• Margaret Thatcher and the Constitution – April 10th 2013 by Richard A. Edwards
• Human Rights have disappeared from ‘Working Together’ – April 9th 2013 by Alan Norman
• “More open, more transparent, and more powerful”: Communications at the Supreme Court – April 8th 2013 by Richard Cornes
• Hot off the press: the ECtHR is indeed going to watch the EU – April 8th 2013 by David Hart QC