Legal Aid Outcry, Political Disasters and a Mau Mau Settlement – The Human Rights Roundup

9 June 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular Royal Variety Show 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, there was a flurry of comment and critique on the Ministry of Justice’s paper, ‘Transforming Legal Aid’, human rights abuses both past and present are in the spotlight and there have been some notable  decisions from the courts.

by Sarina Kidd

Legal Aid 

There were many responses this week to the Ministry of Justice’s controversial consultation paper, ‘Transforming Legal Aid’ from all walks of legal life. Look out for our summary post of more of the responses, and in the meantime check out Obiter J’s ever-expanding list of responses (currently at 55).

This week, amongst other things, 145 Government Counsel and the Daily Mail came out against the changes. If you agree, you can sign this petition, which needs around 15,000 more signatures to be debated in Parliament.

The Bar Council has published its full response . Among its contentions are the removal of client choice from the criminal legal aid system and the ‘fundamentally flawed’ introduction of price competitive tendering. Furthermore, the report challenges the evidence and legitimacy behind such proposals.

The Bingham Centre for the Rule of Law has also submitted its response. The report concludes that such changes are wanting in the rule of law as they would ‘impact the access to justice of holding public authorities to account and securing legal protection of basic rights and interests’.

One Crown Office Row’s public law team has also responded to the consultation and their response can be found here.

Carl Gardner, at Head of Legal, who has in fact supported many of the proposals has also voiced his concern over some of them. Focusing also on the competitive tendering system and the removal of client choice, he explains that whilst he is less concerned about limiting the ability to change solicitor, ‘it’s wrong to deny clients any choice of lawyer at all’ and that such proposals should be slowed down and tested first.

Finally, Free Movement blog argues that the cuts are counterintuitive. Whilst the aim is to save money, such changes would increase the number of litigants in person and therefore increase costs.

The UK’s Human Rights Record

The president of the European Court of Human rights has told BBC’s Law in Action that it would be a “political disaster”if the UK pulled out of the European human rights convention, and would undermine their credibility in promoting human rights around the world. Judge Dean Spielman suggests that such a move would mean leaving the Council of Europe and even, possibly, the EU. When discussing Theresa May’s suggestion that the courts have moved the goalposts to prevent the deportation of men such as Abu Qatada, he replied, “A decision of a court must be executed. If a decision is not executed this is a violation of the rule of law which is a basic principle of any democracy.”

Spielmann also addresses the suggestion by some parts of the media that the Strasbourg court is full of unelected judges, stating such a suggestion was ‘nonsense’ and that ‘Strasbourg judges are elected by the parliamentary assembly of the Council of Europe.’

Meanwhile, the UN’s (pictured) torture watchdog has hit out at the British government for human rights abuses, focusing on the ‘war on terror’ and the mistreatment of prisoners in British custody in Iraq. The report focuses on allegations of torture and ill-treatment, the ‘escape clause’ in the Criminal Justice Act 1988, the failure to prosecute anyone for the torture of Iraqi prisoners and the plan to introduce secret court procedures. The British government has been given a year to explain how it can improve its human rights record.

This week, human rights barrister Dinah Rose QC challenged Ken Clarke over the Government’s extension of the use of secret courts. Rose was among a number of high profile figures who recently resigned from the Lib Democrats over the issue. Ken Clarke argues that the alternative ‘would be to allow Al-Qaeda to learn all of Britain’s security secrets’. The radio interview can be found here.

Meanwhile, Scotland’s leading prosecutor has ordered police to investigate new claims that Scottish airports are being used as stop-off points for CIA rendition flights from around the world.

The status of migrants

Iyiola Solanke looks at the proposed plans to introduce a duty upon landlords to check the immigration status of their tenants in boroughs that are popular with migrants. Such a focus is likely to breach the EU Race Directive 2000/43(2), as well as the public sector equality duty (PSED) in section 149 of the Equality Act 2010. If the government presses ahead, it may find itself subject to a complaint to the European Commission.

Meanwhile, the United Nationals Special Rapporteur on the Human Rights of Migrants has criticised the EU’s approach to migrants, and its focus on security concerns, and has called for a more human rights-based approach.

In otherNews

• Peers have voted by more than two to one to back government plans for same sex marriages in England and Wales. The plans, which the government want to come into force in July next year, passed through the Commons last month with a 205 majority.
• Kenyans tortured by British colonial forces during the Mau Mau uprising will receive payouts totalling £20m, Foreign Secretary William Hague has announced. Among the abuses that lawyers are alleging are castration, severe beatings and ‘appalling sexual abuse in detention camps during the rebellion.
• A public inquiry into the death of former KGB spy Alexander Litvinenko has been requested by the coroner in charge of his inquest. 1 Crown Office Row’s Neil Garnham QC and Neil Sheldon are counsel for the Secretary of State.
• Fresh inquests into the deaths of the 96 Hillsborough victims will be held before a jury, a coroner confirmed this week. 95 people died in the stadium with the 96^th dying four years later after a ruling to end his life. Christina Lambert QC and Matthew Hill of 1 Crown Office Row are counsel to the Inquest.

In the Courts

Case Comments

• The Court Martial has fined a soldier for putting an Afghan boy’s hand towards his crotch, and fined another and reduced his rank for racially abusing an Afghan man. The Judge stressed that ‘any conduct which may affect the success of this aspect of the army’s duty in Afghanistan must be treated seriously.’
•  Inform blog analyses the recent Supreme Court decision in Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors [2013] in which the court considered the scope of the duty of confidence. It was determined that a person can only be liable for an action for breach of confidence if they agree or know that the information being used is confidential – therefore the test is based ultimately on conscience.
• Free Movement looks at the Court of Appeal decision in B2 v Secretary of State for the Home Department [2013]. Here, the court allowed the Home Secretary to deprive a British-Vietnamese dual national of British citizenship following his alleged involvement in terrorism related activities. The case ‘establishes how our courts should interpret foreign nationality laws which are decided exclusively by the executive arm of the foreign state without judicial supervision.’

Cases

• McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013)May 27, 2013
  Tweet by Sally Bercow mentioning Lord McAlpine was defamatory in its plain or innuendo meaning
• B2 v Secretary of State for the Home Department [2013] EWCA Civ 616 (24 May 2013)May 24, 2013
  Deprivation of British nationality following terrorist allegations didn’t leave man stateless, rules CoA
• M, R (on the application of) v The Parole Board & Ors [2013] EWHC 1360 (Admin) (22 May 2013) May 22, 2013
  Court of appeal lifts anonymity order on triple child murderer’s parole Judicial Review, refuses to give general guidance on press notification for anonymity applications
• Calland, R (on the application of) v Financial Ombudsman Service Ltd [2013] EWHC 1327 (Admin) (21 May 2013) May 21, 2013
  Decision of Financial Ombusman was not unfair nor did it breach Article 6 ECHR for failure to hold an oral hearing. Art 6 question was whether fairness requried an oral hearing in specific facts of the case. It didn’t.
• Kaiyam, R (on the application of) v Secretary of State for Justice [2013] EWHC 1340 (Admin) (21 May 2013) May 21, 2013
  High Court judgment on the scope of prisons’ duty to provide relevant rehabilitative work in light of HoL decision in James v MoJ. Claim fails.
• Azaroal, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1248 (Admin) (17 May 2013) May 18, 2013
  Continuing detention pending deportation of convicted violent burgler would be unlawful, rules High Court

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.

• The Law Society Public Debate Series – Does Taser use breach fundamental human rights?
  24/06/2013 18:00 – 19:45
• Legal Aid Question Time, Tue 18 June 2013
  Bar Council: With Lord McNally, Andy Slaughter MP, Maura McGowan QC – chaired by Joshua Rozenberg, 18:30-19:30
• A Practical Introduction to Human Rights: one day training course | British Institute of Human Rights
  Birmingham (4 July 2013), London (9 July 2013)
• Critical Debates on Counter-Terrorist Judicial Review: Durham, 12 June
• Privacy and Press Freedom – seminar Thurs with ECtHR judge
• Thursday 23 May 2013 17:30 to 19:30

UKHRB posts 

• 145 Specially Appointed Government Barristers demand rethink on Legal Aid plans – by Adam Wagner, June 6 2013
• The Legal Aid Avocado – Adam Wagner, June 5 2013
• ‘Fair play in Justice’: The Court of Appeal considers the rules of natural justice – Rosalind English, June 5 2013
• Keep calm and apply the European Convention of Human Rights – Paul Harvey, June 4 2013
• Court lifts anonymity order in David McGreavy case – Rosalind English, June 3 2013
• Pupillage inside out – Adam Wagner, June 3 2013

One more thing (from Adam )

Apropos of nothing much, here is an animated GIF I made of wonderful moment from today’s Sunday Politics. Readers of this blog will hopefully appreciate the conspiracy theorising nuttiness of Alex Jones, as well as Andrew Neil and David Aaronovich’s relatively cool treatment of him. I will try to use this for future Freemen on the Land posts. Enjoy.