Judicial Review and Legal Aid under threat… and a Human Rights Birthday – The Human Rights Roundup

8 September 2013 by

birthday roundupWelcome back to the UK Human Rights Roundup, your regular Olympic opening ceremony of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.

Blow out the candles and wish a very happy 60th birthday to the ECHR.  That celebration has been the cause of much reflection and commentary, including looking at the UK’s future relationship with the Convention and the Human Rights Act.  Elsewhere, the MoJ has released consultations  on new criminal legal aid plans and further proposed changes to judicial review.

In the News

Happy Birthday ECHR!

This week marked the 60th anniversary of the introduction of the European Convention of Human Rights, giving various commentators the opportunity to reflect on its historical, present and future role in our legal system and wider society.   The Council of Europe’s Human Rights Europe website points out that since its inception the court has delivered approximately 16,500 judgments, and has dealt with over 500,000 applications.  President of the Court, Dean Spielmann said that those who drafted the treaty believed it would “form the bedrock of democratic Europe, an enterprise for peace and freedom”.

ObiterJ leaves the talking on this issue to the late Lord Bingham, noting his ‘ten points’ in defence of the ECHR given in a speech in 2009.  These include: that the ECHR is not ‘un-British’; the Human Rights Act is not a massive transfer of power from politicians to judges; individual rights are not raised above those of the community; and the Convention does not undermine parliamentary sovereignty.

Paul Langton’s piece on the Act for UK Rights Blog focuses on the debt owed by the UK and its citizens to the ECHR, going on to provide examples: “independent military courts, protection of trade unions, the curbing of stop and search powers, safeguards for adults in care, regulation of state surveillance, limits on retention of biometric data and protection of religious freedoms are all examples of the Convention in action”.  He goes on to point out that the Convention is “more than a set of laws”; rather, “It is part of a British legacy and a collective conscience that encompasses the highest values of humanity”.

Such sentiments are echoed in an open letter to the Telegraph signed by a number of representatives from human rights NGOs.  The letter calls for celebration of this “other jubilee”, citing Churchill’s example as the need for politicians to “secure our human rights heritage and stand firm on Britain’s commitment to the convention”.

Richard Edwards on the Euro Rights Blog takes a more historical approach, looking at the Convention’s origins.  He points to the pivotal role played by Winston Churchill as Chairman of the United Europe Movement, as well as Sir David Maxwell-Fyfe, chairman of the Consultative Assembly’s Committee on Legal and Administrative Questions, who drew up proposals which ultimately became the ECHR.

Similarly, Dr Marco Duranti on the Oxford Human Rights Hub looks at the history of the Convention, noting that the omission of social and economic rights reflected the hostility of Conservative politicians at the time to Labour policies.  He also points out that another influential group were French Catholics, who used the nascent Convention in the hope of advocating more traditional approaches to education, and to protect the civil liberties of those who had cooperated with the Axis powers during the war.

History, however, also has other lessons, and Shami Chakrabarti argues that in the context of debates about Britain’s future relationship with the Convention, we should not forget the ashes out of which the ECHR rose – those of the Holocaust.  Her message may be political, but it is undoubtedly clear: “Surely those who fought and defeated Hitler deserve a little better from modern-day ministers than transparent attacks on Churchill’s legacy to try to tempt voters back from Ukip?”

Reform – Criminal Legal Aid & Judicial Review

Progress on the criminal legal aid front this week, with the MoJ revising its proposals following an agreement with the Law Society.  The new plans will ensure that solicitors currently providing legally aided services to clients will be able to continue to do so under the new regime.  The threshold denying Crown Court legal aid to those with a disposable household income of £37,500 or more remains, and the government will consult on a new tendering model for duty solicitor work.

A further consultation has also been launched within the sphere of judicial review reform, including looking at how the courts deal with minor procedural defects; possibly changing the test for standing; and whether JR is the most appropriate forum for challenges relating to the public sector equality duty.  Further details of the consultation (including how to respond) can be found here.  The deadline for responses is 1 November 2013.

Dr Mark Elliott has responded to the new proposals, and also provides a useful summary of the MoJ’s plans.  He notes that the consultation’s tone views judicial review as “an obstacle to economic growth and a tool that is cynically exploited to place expense and delay in the way of progress.”  He points out the vital role of JR as a “constitutional counterweight” to executive power, and a jurisdiction which should not only be allowed to exist on terms permitted by the government of the day.  Accordingly, he views as “most worrying” the implicit suggestion that it should be the government which determines the relationship between executive and judiciary, and links this to the suggestion that the courts’ role may be better protected under a written constitution.

Former Lord Justice of Appeal Sir Stephen Sedley uses his LRB review of Martin Loughlin’s The British Constitution: A Very Short Introduction to link many of the book’s concepts to contemporary debate.  In particular, he critiques the Lord Chancellor’s proposals for judicial review reform, looking at the proposed “lawful residence” or “strong connection” test; removing aid in the sphere of prison law; and denying legal aid until a judge has given permission to appeal.  On Sir Stephen’s view, “in the round, judicial review is an economic and effective branch of litigation, performing a constitutionally critical role in keeping the exercise of public power within the law, and legal aid for it is for the most part money well spent.”

Also in the News

  • A couple of interesting pieces from Joshua Rozenberg this week.  The first contains a number of examples of well-deployed turns of phrase in making judgments accessible.
  • The second, perhaps on a more serious note, questions whether the PM’s decision to pre-empt military intervention in Syria with a parliamentary vote has brought about a new constitutional convention?
  • Two more focuses on the ECHR and HRA: firstly, the Shadow Justice Secretary reflects on controversies regarding our relationship with the Convention following a trip to Strasbourg.  Also, Sir Nicolas Bratza condemns the “virulence of the attacks” on the ECHR emanating from the UK, but calls for the opportunity to save the HRA to be coupled with a campaign to publicise the benefits the UK has derived from the Convention (see also Sanchita Hosali’s UKHRB post here).
  • The Council of Europe provides its “week in review”.
  • Congratulations to UKHRB host 1 Crown Office Row, for being shortlisted for 5 awards at the upcoming 2013 Chambers and Partners Bar Awards.

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