Go Home, Legal Aid and Mental Capacity – The Human Rights Roundup

12 August 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular non-silly season of human rights news and views. 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 Daniel Isenberg.

The end of the legal term seemingly does not mean a let-up in immigration news, with a number of Home Office, asylum and immigration-related stories making the headlines.  Also, the back-and-forth on legal aid cuts continues, as well as some interesting perspectives on the Mental Capacity Act, sexual offences trials and the FOIA veto. Some interesting judgments too, particularly on secret trials.

In the News

Immigration and asylum

Rarely does immigration disappear from the headlines (indeed, see this morning’s headlines), and this week it appears in a number of forms.  Firstly, Richard A. Edwards and Dr Noelle Quenivet on the Euro Rights Blog stress the presumption of innocence contained with Article 6.2 of the ECHR.  This is in relation to the Home Office’s recent public campaign relating to so-called “immigration offenders”.  The authors point out that whilst Article 6 does not forbid the publicising of law enforcement operations, they must “do so with the utmost discretion and with a reserve that respects the presumption of innocence”.

An interesting take on this issue is provided on the Information Rights and Wrongs Blog.  The author picks up specifically on images tweeted by the Home Office of individuals (with pixellated faces) being escorted from premises and into vans, and argues that the campaign may fall foul of data protection law.  It is argued that although features may be obscured from the viewer, obligations still remain on the Home Office as data controller, as the government department would still be able to identify those individuals in the images.  Indeed, the author particularly questions whether tweeting these images can be described as “necessary” from the point of view of the data controller…

Along similar lines, Colin Yeo on the Free Movement Blog points to Article 31 of the Refugee Convention (also incorporated in British law) as protecting asylum seekers gaining unlawful entry into a sanctuary state.  Specifically in Mateta & Others, the Court of Appeal has recently overturned convictions for the use of false identity documents by refugees.

Elsewhere in the immigration field, Kent Martin writes on the Free Movement Blog about an Australian television show called ‘Go Back to Where You Came From’, which blends the documentary and reality genres and exposes Australians to the experiences endured by refugees.  It is viewable on YouTube.  Meanwhile, the Telegraph reports that a law firm and a senior partner have been referred by two judges to the SRA, relating to last-minute applications made to prevent deportation, allegedly without providing the judge with the full facts.  Finally, some potential good news for separated parents with British children – where one parent is UK-based and the other is not.  Two linked appeals in these circumstances have both succeeded, on the basis of pro-active case management from the Bench.

Legal Aid Cuts

This week’s foray into the legal aid debate opens with Lib Dem peer and Minister of State for Justice Tom McNally writing in The Guardian.  Baron McNally accuses those dissenting of the cuts of scaremongering, pointing out that even after the cuts have taken effect, “England and Wales will still have one of the most generous legal aid systems in the world”.  He adds that the changes which have been consulted upon will not affect access to a fair trial and would exclude only the wealthiest defendants, those who can afford representation, from automatic access to legal aid.  The same newspaper also reports that Shadow Justice Minister Sadiq Khan told those rallying outside the Old Bailey that there are “only a few months to save legal aid” from the impending cuts.  The piece also includes alternative suggestions to cuts, which include American-style requirements that all lawyers provide a minimum number of hours of pro bono services.

In an important intervention, former Lord Justice of Appeal and Vice-President of the Civil Division of the Court of Appeal, Sir Henry Brooke has also weighed in on the debate.  He notes the rarity of retired senior judges getting involved in debates such as this, but nevertheless has done so.  He discusses particular instances where legal aid may be denied in future and where “a serious wrong would be denied an effective remedy.”

Also in the News

• A couple of pieces on mental health from The Small Places: firstly, a discussion of the deprivation of liberty and forced feeding under the Mental Health Act and Mental Capacity Act.  Also, a link to the BIHR’s guide to the House of Lords Committee which is has called for evidence on the Mental Capacity Act.

• Raj Desai on the UKSC Blog provides some comment on the recent decision in New London College, seeing it as a “relief” that identifying an implied statutory basis meant that Lord Sumption did not have to resolve “controversial questions surrounding the scope and juridical foundation of a non-statutory “third source” of powers”.

• The Law and Religion Blog has a piece on the criminalisation of forced marriage under the Anti-Social Behaviour, Crime and Policing Bill, as well as the history and current weaknesses of the law as it stands.

• Felicity Gerry on Halsbury’s Law Exchange argues that “a few errors” in sexual offences trials should not be permitted to “imbalance the system”, commenting on the recent Robert Colover controversy.

• Joshua Rozenberg gives his view on the Prince Charles letters controversy: “[the Attorney General]…could have let the law take its course and not protected the Prince of Wales from his outspokenness.”

• Nearly Legal rounds up 3 housing law-related cases before the ECtHR.

In the Courts

• R (Nash) v Barnet London Borough Council [2013] EWCA Civ 1004 – Judicial Review challenge to ‘EasyCouncil’ Barnet outsourcing fails as was brought too late

• R (JM) v Secretary of State for Justice [2013] EWHC 2465 (Admin) – Closure of Young Offenders Institute at Ashfied was lawful and did not breach Art 14 ECHR, rules High Court

• R (D) v Worcestershire County Council [2013] EWHC 2490 (Admin) – Worcestershire funding cut for disabled adult community care was lawful, consultation and PSED exercise appropriate

• R (Ignaoua) v Secretary of State for the Home Department [2013] EWHC 2512 (Admin) – Government termination of judicial review via certification under Justice and Security Act “troubling” but lawful, clear Parliamentary intention even though no new rules in force yet. Clear Parliamentary intention that JR can be terminated at any stage, notwithstanding that there are no new rules until “October” (Adam Wagner: this is a very interesting decision – worth a read. WIll be one to watch if it goes to appeal).

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.

• 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
• European Alliance for Human Rights in North Korea Forum – Senate House, Room 104, Malet Street, London, WC1E 7HU, Tuesday 3rd September, 1:00pm-5:00pm