Secret Imprisonment, Rule of Law and Legal Aid Under Attack – The Human Rights Roundup
6 May 2013
Welcome back to the UK Human Rights Roundup, your regular assortment 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.
Not a particularly noisy week on the human rights front, but some interesting summaries and analyses. The House of Commons Library has compiled a summary of UK cases before Strasbourg since 1975, as well as on the prisoner voting issue. Some commentary on the issue of secret justice, in particular the role of the independent reviewer of terrorism legislation, and the powers of the court of protection in contempt proceedings.
by Daniel Isenberg
In the News
The Legal Aid cuts are set to continue – see Adam Wagner’s post on the latest consultation, which closes on 4 June 2013. As with previous consultations, we will be collating responses so please send us yours (to email click here).
The UK and the European Court of Human Rights
The House of Commons Library has published a note this week, outlining all the cases involving the UK at Strasbourg since 1975, with links to the judgments since September 1997. ObiterJ has used this publication as a springboard for some broader comments on domestic law and the European Convention. ObiterJ provides some useful background on the ECHR and Human Rights Act, ultimately concluding that the Strasbourg court “has spurred on some important developments in our law in some areas where legislators may well not have acted otherwise”.
Adam Wagner asked on Twitter whether anyone would be interested in listing the cases by category – and Twitter answered! Thanks to University of Law’s Trevor Jackson (click here – MS Word document) and from David Charlton (click here – Excel spreadsheet).
On a similar theme, Richard Edwards on the Euro Rights Blog uses a scene from the film ‘A Man for All Seasons’ to demonstrate the universality of the rule of the law, indiscriminate in those to whom it applies. In particular, he takes the examples of M v Home Office and the more recent case of R (Lamari) v Home Secretary to demonstrate instances when cabinet ministers have been in contempt of court. Edwards’ conclusion, however, is that because we will be unable to agree on the shape of any potential ‘British Bill of Rights’, the ECHR/HRA in its place offers an “invaluable measure of practical justice”.
There are few cases where the relationship between the UK and Strasbourg is as tense than that involving prisoner voting rights. Another recent Commons Library report focuses on this very subject – it acts as a useful summary of relevant ECtHR judgments (including Hirst v UK); includes material on the coalition government’s approach to the issue and parliamentary debates; examines the Strasbourg court’s deadline to the UK to remedy the Convention breach; and looks at the draft Bill which aims to do this.
Two differing items this week within the field of secret justice. The first, like usual, relates to the Justice and Security Act (now given Royal Assent). Jo Shaw questions why the independent reviewer of terrorism legislation, David Anderson QC, was only shown seven of the cases that may potentially fall within the ambit of closed material proceedings (CMPs) in the run-up to the passage of the Act. Given his security clearance and purported unfettered access to relevant files, she views his seeing only these seven cases as “just as bad” (in her eyes) as the new law, itself.
By contrast, Owen Bowcott on The Guardian picks up on the Lord Chief Justice’s guidance issued following the imprisonment of Wanda Maddocks – the official practice guidance is here: For Contempt Of Court (Practice Guidance)  EWHC B4 (COP). Maddocks was incarcerated by the court of protection for disobeying the court’s orders relating to care for her father, but was not identified at the time. The guidance stresses that: “there are never any circumstances in which anyone may be committed to custody without these matters being publicly stated,” and “committal applications in the court of protection or the family division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so”.
Judicial Review, Parliamentary Powers & the Convention
In another Euro Rights post this week, Richard Edwards accuses the coalition of “eroding the rule of law, undermining the protection of human rights and ushering in questionable changes to our system of justice”. Chief among these accusations are cited criticisms of cuts to the legal aid budget and the proposed new limits to judicial review applications. To Edwards’ mind, “the real agenda here is to lay the ground in preparation for the repeal of the Human Rights Act”, citing Chris Grayling’s invitation to Parliament to defy the ECtHR on prisoner voting.
The nature of Parliament’s powers were also up for discussion this week by Joshua Rozenberg, examining a Constitution Society paper on whether parliamentary privileges ought to be codified. The debate on this issue is well balanced: on the one hand, these powers are, at present, limited and unclear. Yet, by contrast, any potential codification attempt may take the control of privileges out of the hands of parliamentarians and into those of judges; it may also prove more difficult for the carving out of future privileges.
Christina Eckes provides an update on the EU’s accession to the ECHR based on the final version of the draft accession agreement (see also David Hart QC’s UKHRB post). Some interesting observations include that of the co-respondent mechanism, by which the EU may become a co-respondent with one or more Member States before the ECtHR, where the Convention compatibility of a provision of European Union law is brought into question. She also notes the difficulty in seeing how the Court of Justice in Luxembourg would ever give a decision that openly clashes with ECHR rights.
Finally, the Court of Appeal in R (JL) v SSD  EWCA Civ 449 has considered the application of Article 8 to the enforcement stage of possession orders. The Nearly Legal Blog makes a couple of comments on this decision: firstly, the court unsurprisingly held that Article 8 considerations are relevant at all stages, including the enforcement of the order (the ‘warrant stage’). Secondly, the more controversial finding that a warrant cannot be challenged under Article 8 if such a defence could have been, but was not, deployed at the possession hearing.
In the Courts
- Committal For Contempt Of Court (Practice Guidance)  EWHC B4 (COP) (03 May 2013) – Lord Chief Justice confirms that contempt proceedings must be heard in public except in exceptional case, and in those cases the matters must still be publicly stated.
- R (Nash) v Capita Plc & Ors  EWHC 1067 (Admin) – Barnet Council’s outsourcing of services to the private sector was lawful: adequate consultation, due regard to Public Sector Equality Duty, not in breach of fiduciary duty. Permission to bring JR refused.
- R (Faulkner) v Secretary of State for Justice & Anor  UKSC 23 – Failure to review two life prisoners’ detention “speedily” breached their Article 5 rights, Supreme Court clarifies approach to Human Rights Act damages (see also UKSC blog summary and Rosalind English’s UKRHB post).
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”
- Be a Human Rights Lawyer – Careers Event 7 May 2013 from 13:00 to 16:00 at the Law Society, Chancery Lane
- Human Rights Law Centre Summer School – Rights of the Child 24-28 June 2013, Nottingham University
- Fairness: What does this mean in 2013? 21-23 May 2013, Middlesex University
- UCL & Bindman’s Debate: International Human Rights Breaches – State Accountability v State Immunity 19 June 2013, 18:00, UCL Cruciform Lecture Theatre
UKHRB posts –
- More major rule of law changes, more dodgy statistics used to justify them – May 5, 2013 by Adam Wagner
- Conscientious objection to abortion: Catholic midwives win appeal – May 3, 2013 by Alasdair Henderson
- Guidance from the Supreme Court on human rights damages – May 2, 2013 by Rosalind English
- LAA must give reasons about funding expert assessments in care proceedings – May 2, 2013 by Eleanor Battie
- Supreme Court refers air pollution case to the EU Court – May 1, 2013 by David Hart QC
- Government U-turn on EHRC’s General Duty – April 29, 2013 by Neil Crowther