Legal Aid Antipathy, MoD Worries and Scrutinising Surveillance – The Human Rights Roundup

23 June 2013 by

Human rights roundup AGWelcome 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’.

See the UKHRB posts here and here.

Surveillance Concerns

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.

Secret ‘Justice’

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.

The UKHRB also has two posts on this matter here and here.

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.

Case Comments

  • 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

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  1. Reblogged this on criminalbarassociation and commented:
    We are delighted to reblog the views of highly respected Human Rights lawyers. They have no financial interest in what TomMcNally disgracefully described as a “wage negotiation.” They are, like us, concerned at this Governments attempts to stifle challenge to its own unlawful behaviour

  2. In order to get”empathy”on legal aid, Law Colleges and educational systems, should consider a priority an outspoken and well thought debate on the silly values that are mostly witnessed on society. The gap between thinking, talking and exercising the production of debatable items, like work on current societies, should be properly adressed.
    The educational aim would be to improve awareness regarding the real social praxis and the gap built by not ficcional rights to all beings of our specie called humans.
    Those are other important and crucial issues, like women and minors. On discourses their rights erased, which may result in violent social praxis.
    The true is that we are in XXI century, and biologically female persons in most societies “have to teach” that we are excluded from power and authority in society? And likewise there are many other important solutions to be found..
    How do you “humanize” a mediocre lawyer in order not to increase damage to good people? Well, I propose you may take the answerto that as a debate theme to improvement. Social crucial criteria may be lacking as there is hardly a discurse nearby it..

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