Veils in Court, Grayling and the Left & Legal Aid Anxieties – The Human Rights Roundup

16 September 2013 by

Niqab HRRWelcome back to the UK Human Rights Roundup, your regular breakfast cereal variety box of human rights news and views. The full list of links can be found here. You can  find previous roundups herePost by Sarina Kidd, edited and links compiled by Adam Wagner.

Commentators have been criticising a number of assertions that Chris Grayling made about judicial review in the Daily Mail this week. Elsewhere, although Price Competitive Tendering has been scrapped, there are still many concerning proposals, and there has been a secret court rebellion by the Lib Dems.

Human Rights Awards: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here.

In the News

Grayling, Judicial Review, and the Left/Right Dichotomy

The future of judicial review remains precarious, as Chris Grayling Daily Mail article continues to generate discussion in the blogging community.

Barrister Charlotte Proudman argues against Grayling’s assertion that judicial review is something reserved for left-wing campaigners, giving examples of when people of all political persuasions have used it. By framing the argument within the dichotomy of left vs right, she asserts that Grayling is, ‘distracting us from the real purpose of judicial review: it is about ensuring public bodies and the government are subject to, rather than, above the law’ and that it is up to both political sides to prevent this ‘attack on justice’. The UKHRB also has a post on this matter here.

In a detailed and informative post on the UK Constitutional Law Blog, Robert Thomas also looks at judicial review in immigration and asylum matters, which make up the vast majority of claims. Thomas explains that the success rate for immigration judicial reviews is ‘quite respectable’ and that such claims are often only a last resort. The judiciary’s perspective on judicial review is in stark contrast to that of the government’s. For senior judges, it is ‘increasingly essential to vindicate the rule of law’. Thomas also looks at how things will change when the majority of immigration judicial reviews move to the Upper Tribunal in November. For example, the High Court’s caseload will be greatly reduced.

Judicial review is also in the spotlight in the case about the reinterring of Richard III. Mark Elliot finds it surprising that Haddon-Cave J ‘conceded to a government Minister…an ‘unfettered discretion’’ and reminds us that the public law orthodoxy is that there is no such thing as unfettered discretion. The courts’ powers, when it comes to judicial review, can have a fragile basis due to our unwritten constitution. He opines, therefore, that it is ‘disappointing to see judges carelessly relinquishing or diluting the limited tools which they have at their disposal to ensure that the executive branch is subject to appropriate rule-of-law based constraint’.

 Legal Aid

The Legal Action Group (LAG) has called on the government to increase the profile of civil legal aid services. Since the Legal Aid Sentencing and Punishment of Offenders Act introduced cuts to the scope of aid in April, there has been a decrease in take up. Catherine Baksi discusses her concerns on this here.

Gemma Blythe, meanwhile, notes that it is a small triumph that Price Competitive Tendering (PCT) has been scrapped. Other proposed measures are still a cause for concern, such as the intention to slash lawyers’ rates by 17.5%, which will lead to the demise of many legal aid firms, and make it difficult for the reminder to survive. She concludes that the government’s proposals for civil legal aid present a ‘dangerous and unconstitutional attack on the rule of law’.

Nick Cohen’s article in The Guardian on the effect of the legal aid changes on issues such as sex abuse in prison is excellent: Yarl’s Wood affair is a symptom, not the disease

Secret Court Rebellion

Nick Clegg is to abandon support for the secret courts after a Lib Dem membership revolt over the Justice and Security Act. David Laws, the education and Cabinet Office minister, said it was a ‘very, very difficult’ issue and that the Lib Dems may ‘push to repeal laws after the next election and replace them with a better package’.

60 years on

Most of the discussion of the ECHR 60th anniversary was included in last week’s roundup, but there remains an interesting article by Sadaf Etemadi who goes through the highlights from the BIHR’s ECHR 60th anniversary.  He discusses, among other things, speeches by Sir Nicholas Bratza, BIHR’s president and former president of the ECtHR, and Professor Fiona de Loundras’. Etemadi describes how the speeches were ‘a sobering reminder of the potential abuses that can occur when human rights mechanisms are not enforced and the vital role they play in preventing a rogue practice from becoming the norm’. There was also a debate between Sadiq Khan MP, Julian Huppert MP and Mark Reckless MP, and Etemadi notes that the three politicians did not recognise that the rule of law, in its modern configuration, means adhering to international obligations and respecting the ECHR and HRA.

Failure to overturn a European Court ruling

A British terror suspect, Haroon Aswat, is not to be extradited to the US. The Government has failed in its application for a European Court ruling blocking the extradition to be referred to the court’s Grand Chamber – it was determined that extradition would breach the suspect’s human rights as his mental health would deteriorate (see our post: Jihadist suspect cannot be extradited to United States because of his mental illness).

Niqabs and the law

Dominic Casciani looks at the legal position of wearing a niqab in court. A niqab is a cloth which covers a woman’s face, leaving a small slit for the eyes. Casciani explains that the traditional British legal attitude to religious freedom is liberal, underpinned by the ECHR. However, whilst Article 9 of the Convention protects freedom of conscience and religion, the convention also makes clear that the state can interfere with the right to manifest one’s religion if that interference is necessary, for example, to secure the rights of others.

See also: Home Office minister calls for “national debate” on face-coverings (BBC) and Will judge lift Muslim’s veil of secrecy? (Telegraph).

In other news

  • A number of changes to the Immigration Rules have been laid in Parliament in a written ministerial statement. The changes will come into effect on the 1st October and will lead to greater flexibility for businesses and workers.
  • Claire Overman looks at the recently published European Commission industry-specific guidelines on the implementation of the UN Guiding Principles on Business and Human Rights. We’re told that ‘these guidelines, directed at the information industry, employment and recruitment agencies, and the gas and oil industry, mark a further step towards the greater integration of business in safeguarding of human rights’.
  • The United Nations Special Rapporteur on adequate housing paid a visit to the UK at the invitation of the Government. In the summary of recommendation the ‘bedroom tax’ is criticised and it is recommended that the Government ‘puts in place a system of regulation for the private rent sector, including clear criteria about affordability, access to information and security of tenure.’
  • The Ministry of Justice has listed 43 unpublished data sets that could be opened up for public use. It is part of a public consultation on the National Information Infrastructure (NII), a new initiative for improving government data.

In the Courts

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