Legal Aid Antipathy, MoD Worries and Scrutinising Surveillance – The Human Rights Roundup
23 June 2013
Welcome back to the UK Human Rights Roundup, your regular grape and strawberry fondu 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. Links compiled by Adam Wagner, post by Sarina Kidd.
This week, important figures criticise the legal aid reforms, the MoD may have to watch their back, surveillance activities threaten to challenge a number of laws and secret ‘justice’ is slammed once again.
by Sarina Kidd
Supreme Success for UKHRB rounder-upper
Daniel Isenberg (the other contributor of the UKHRB roundup) has won the 2013 UK Supreme Court Blog essay competition. In his essay he discusses dissent and collegiality amongst Supreme Court judges. The first runner up, Michael Green, writes about the place of dissent in the future of common law.
Legal Aid and strong dissent
This week, the President of the Supreme Court weighed in on the Legal Aid debate. Lord Neuberger is concerned that a new legal aid regime with a costs structure, ‘will drive out the best lawyers ‘ because good lawyers save money. Jim Duffy discusses this move further on UKHRB.
Another notable weigh in has come from the Attorney General, Dominic Grieve QC. After failing to express support for the reforms when responding to a letter of protest sent by 145 specially appointed Government lawyers, Mr Grieve stated that the ‘policy in this area is owned by the Lord Chancellor and not me’ and that ‘I will endeavour to ensure, as far as I can, that the decision he reaches in due course is a fully informed one’. Jack of Kent describes such a response as ‘astonishing stuff’ and notes that ‘it would seem that the Lord Chancellor cannot convince even the government’s own senior law officer of the merits of the criminal legal aid proposals’. More coverage in the Independent and Mail on Sunday, which also reports on Nick Clegg’s intervention.
Meanwhile, Mark Elliot, at Public Law for Everyone, briefly looks at three Legal Aid developments, including that of the Attorney-General’s response.
Highly recommended: Ilegality has compiled a list of personal blogger responses to the reforms, which date from the 9 April 2013.
Ministry of Defence to watch their back
In a landmark Supreme Court decision, it has been decided that families of soldiers killed in Iraq can pursue damages against the government. The judges ruled that families could make damages claims under human rights legislation and sue for negligence. BBC legal affairs correspondent, Clive Colman, describes the ruling as a ‘major shift’ which could now lead to more claims being made against the MoD.
Philip Hammond, the Defence Secretary, argues that the decision will cause military chiefs to live in fear of being sued. It seems that he is also considering a revocation and that the decision ‘strengthens the case for Britain quitting the ECHR’.
The ruling came about after the human rights court ruled that jurisdiction can exist whenever a state exercises authority and control over an individual, therefore allowing the Supreme Court to overturn a previous decision. Joshua Rozenberg notes that ‘this is an important advance in the law but one that can be seen as the logical extension on British service personnel abroad to respect both English law and international humanitarian law’.
In an excellent Guardian article, Anya Proops of 11KBW discusses the legal repercussions of the recent revelations on the NSA’s PRISM surveillance program. She notes that an interference with privacy rights will not be lawful for Article 8 (right to privacy and family life) purposes if it is disproportionate, that is, ‘the state cannot lawfully use a surveillance sledgehammer to crack a small albeit socially offensive nut.’ She also discusses how NSA machinations will interact with the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 and concludes that if we fail to properly survey the state’s burgeoning state activities there will be a ‘loss of personal liberty in the face of an increasingly data bloated and overweening state.’
The Guardian also reports that senior figures inside British intelligence have been alarmed by GCHQ’s secret decision to tap into transatlantic cables in order to engage in the bulk interception of phone calls and internet traffic. Defenders have insisted that the programme heavily filters the mass of data so that only that relating to legitimate targets is analysed, but Nick Davies explains that there are doubts about the effectiveness of this. First, according to a UK source, ‘written definitions for targeting are very elastic They are wide open to interpretation’ and that ‘there is further room for interpretation when human analysts become involved in using the filtered intelligence to produce what are known as ‘contact chains’. Further, if the wrong government comes into power, abuse could follow due to the lack of independent scrutiny.
Abu Qatada finally off?
The King of Jordan has endorsed a treaty with the UK, which has subsequently been passed by the British Parliament. Once it receives Royal Assent, this should mean that the cleric, Abu Qatada, will leave for Jordan. Abu Qatada has indicated that he will not challenge deportation if the treaty is passed because the document guarantees him a fair trial. The Home Office has revealed that the 8 year legal fight to deport the cleric has cost taxpayers more than £1.7m so far.
A decision by the Supreme Court to quash a HM Treasury Order has a number of interesting implications. In 2009, the Treasury made an Order, pursuant to the Counter Terrorism Act 2008, that all persons operating in the financial sector should not ‘enter into, or…continue to participate in, any transaction or business relationship’ with Bank Mellat, which shut down the bank’s UK operations. Judges have criticised the Government for not substantiating the need for a closed hearing in, with Lord Hope stating that by permitting a closed hearing without express Parliamentary approval the majority have ‘crossed the Rubicon’ and that ‘secret justice at this level is not really justice at all’.
The Court’s reasoning also goes further than the European Courts in sanctions cases, and there are interesting dissents on various issues such as whether the statutory scheme displaces common law fairness and whether the reasons were disproportionate.
In other News
- BBC 4 has initiated the ‘Neuberger experiment’ in which the President, with the help of law students at Durham University, attempt to discover whether male and female judges really do judge differently. This is in response to the criticisms over the fact that there are 12 judges in the Supreme Court but only one, Lady Hale, is a woman.
- Dimitrina Petrova discusses how the recent Eremia decision as an important milestone in domestic violence jurisprudence . She explains, for example, how Article 14 ECHR has moved forward and further away from a ‘formal equality’ approach, and in the direction of recognising what she describes as ‘institutional sexism’.
- The DPP, Keir Starmer QC, has published final guidelines for prosecutors on the approach that should be taken in cases involving communications sent via social media.
- Eutopia Law discusses how the recent CJEU ruling in ZZ v SSHD is to be welcomed ‘for a clear steer to States as to the scope of disclosure in cases involving national security.’ The court had been asked to consider the provisions for non- disclosure to appellants facing deportation contained in the procedural rules which govern the Special Immigration Appeals Commission (SIAC) in light of EU law.
- The recent case of Nencheva and Others v Bulgaria rules that Bulgaria, in the mid 90s, breached Article 2 (right to life) in their treatment of 15 physically and mentally disabled young people.. The victims, who lived in a care home, died from the effects of the cold and shortages of food, medicines and basic necessities. The manager of the home had tried several times to alert the public institutions that funded the home to no avail.Over at the European Courts blogspot, this case is discussed along with a number of other recent cases. One is that of Gun and Others v Turkey, in which the applicants complained of the sentence and fine imposed on each of them for taking part in an illegal demonstration to mark the anniversary of the arrest of the head of the PKK terrorist organisation.
In the Courts
- TWOMEY, CAMERON AND GUTHRIE v. THE UNITED KINGDOM – 67318/09 22226/12 – Admissibility Decision  ECHR 578 (28 May 2013) June 21, 2013
ECtHR admissibility decision: Decision of judge in Heathrow robbery case to sit without a jury did not breach Article 6 either becuase the Defendant’s weren’t given access to evidence relating to jury discharge or for appearance of bias
- L & Ors v The Children’s Commissioner for England & Anor  EWCA Crim 991 (21 June 2013) June 21, 2013
Lord Chief Justice gives guidance on protecting victims of human trafficking who have been “enmeshed” in crime as a result of being trafficked
- Raabe, R (on the application of) v Secretary of State for the Home Department  EWHC 1736 (Admin) (20 June 2013) June 20, 2013
Sacking of doctor from Government’s Advisory Council on the Misuse of Drugs for not disclosing that he had written “polemical” paper on Gay Marriage and Homosexuality which “assembled material in a way which disparaged gay people” was rational and did not breach his human rights.
- Mengesha v Commissioner of Police of the Metropolis  EWHC 1695 (Admin) (18 June 2013) June 18, 2013
Police had no power and breached Art 8 ECHR by taking details and photographing legal advisor at trade union march.
- JB (Jamaica), R (on the application of) v Secretary of State for the Home Department  EWCA Civ 666 (12 June 2013) June 14, 2013
Unlawful for Secretary of State to certify Jamaica as “not presenting any serious risk of persecution” as there was a serious risk of persecution of gay people.
- O’Neill v Her Majesty’s Advocate No 2 (Scotland)  UKSC 36 (13 June 2013) June 13, 2013
Please could someone cover this for the blog? It is about when the appellant was “charged” within the meaning of Article 6(1) such that the clock began ticking for a trial to be held within a “reasonable time”. The answer is “Time runs from the date which the suspect’s position is substantially affected by the official notification […]
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.
- EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts
ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm
- 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
- An ABC on proportionality – with Bank Mellat as our primer – June 22, 2013 by David Hart QC
- Unison to Judicially Review ‘Brutal’ employment tribunal fees – June 21, 2013 by Lauren Godfrey
- Judicial review almost never possible where there is a statutory right of appeal – June 21, 2013 by Paul Reynolds
- “Snatch Rover” case – inviting judges into the theatre of war? – June 2o 2013, by Rosalind English
- Supreme Court considers conditions for removing child for adoption – June 20th, 2013 by Rosalind English
- ‘Good lawyers save money’: Supreme Court President weighs in on Legal Aid. – June 19, 2013 by Jim Duffy
- Supreme Court – Measures against Iranian bank unlawful, and the secret hearing ruling – June 19, 2013 by David Hart QC
- Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq – June 19 2013 by Rosalind English
- Cost budgets – now with sharp teeth. If you want more than your budget, apply.