Prisoners’ Legal Aid, Malayan Killings and the Role of the Judiciary – the Human Rights Roundup

23 March 2014 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular springtime blossom 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 Celia Rooney. 

This week, a challenge to the legal aid reforms by the Howard League for Penal Reform is rejected, while campaigners seeking an inquiry into the action of British soldiers in Malaya in 1948 face similar disappointment.  Meanwhile, some of the most senior judges in the UK give their views on the role of the judiciary today.

In the News

Legal Aid Challenge Unsuccessful

This week, the High Court rejected an application for permission to apply for judicial review of recent changes to legal aid provisions for prisoners in the case of The Howard League for Penal Reform & Anor, R (on the Application of) v the Lord Chancellor [2014] EWHC 709 (Admin) (17 March 2014).  The appeal, which was brought by the Howard League for Penal Reform and the Prisoners’ Advice Service, was dismissed on the basis that, although there was an adverse affect on the entitlements of prisoners, the issue was fundamentally a political one.  As such, the court would not intrude upon the decision of the Lord Chancellor.

The charities have suggested that they intend to appeal the decision highlighting that, although this is a political question, it is an issue which impacts the fundamental rights of prisoners.  They have argued that the court failed to address how unfairness arising from lack of legal representation would in practice be dealt with.  For more information, see Jon Robins post on the Legal Voice blog here.

Unlawful killing claims dropped at Al-Sweady Inquiry

Lawyers representing the families of a number of dead Iraqis have dropped their claims that their relatives were unlawfully killed whilst in the custody of British troops in Iraqi in 2004. The Al-Sweady Public Inquiry was set up to investigate unlawful killings as well as other allegations relating to a battle which took place in May 2004. The Inquiry has said that notwithstanding the recent statement, it is for the Chairman to reach all conclusions and he will detail findings of fact in his report.

Seven members of 1 Crown Office Row are involved in the Inquiry, representing several hundred military witnesses: Neil Garnham QC, Neil Sheldon, Adam Wagner, Isabel McArdle, Alasdair Henderson, Matthew Flinn and Lois Williams.

No Public Inquiry into 1948 Malaya deaths

The families of 24 factory workers killed by UK soldiers in Malaya in 1948 were, this week, told that the UK government was under no duty to investigate the deaths.  The British army had been in Malaya at the time to protect civilian installations from communist attack.  The family of the victims had suggested that the UK government had a duty to investigate the deaths under Article 2 of the Convention, despite the incident taking place pre-UK ratification.  They also argued that the decision not to hold an inquiry was Wednesbury unreasonable, and that liability remained with the UK government post-independence.  The Court of Appeal, however, dismissed all of the arguments raised by the claimants.  For more information on the reasoning of the Court, see this post by Rosalind English for the UK Human Rights blog.

The Role of the Judiciary Under the Microscope

In recent weeks, a number of senior members of the judiciary have commented on the role that judges have to play in a democratic society.  Their comments come in the wake of accusations in the press that they have overstepped their boundaries in recent times.  In his Cambridge Freshfield Lecture, Lord Neuberger suggested that these allegations were particularly aimed at European judges in Luxembourg and Strasbourg.  Peter Thompson, writing for Halsbury’s Laws exchange, has compared considered the comments of Lord Neuberger in light of the situation of the US judiciary here.

In addition, Lord Dyson MR has thrown in his weight to the debate in a recent speech entitled ‘Are the judges too powerful?’  In that speech, he considered the role of both the domestic and European judiciary, concluding that judges are not too powerful and, instead, that they exercise their role with great restraint.  Commenting on this, Obiter J has suggested that the speech is more measured than some of the extra-judicial speeches that have made the headlines of late.

On a slightly different note, Dawn Oliver, writing for the UK Constitutional Law Association, has recently considered the implications of treating justice as a public service, as the Lord Chancellor’s recent reforms do.  She suggests that we may not be able to view justice as such without undermining the rule of law and judicial independence.  The post can be accessed here.

In Other News

• The Telegraph, this week, reported that Secretary of State for Defence, Philip Hammond, is considering introducing new powers that would exempt the armed forces from human rights laws which hamper their operations.

• The first gay marriages will take place this week, on Friday 29^th March.  Writing for the Guardian, Martin Downs warns us that, nonetheless, equality campaigners must avoid complacency on such matters.

• Mafia boss, Domenico Rancadore, has this week avoided extradition to Italy, despite being detained under a European Arrest Warrant.  The BBC have reported on the case here.

• Joshua Rozenberg has, this week, made the moral and economic case for releasing prisoners who are still detained under an IPP (Imprisonment for Public Protection) Sentence on the Guardian website here.

• Roy Greenslade, writing for the Guardian, has commented on how the Daily Mail have managed to use the Press Complaints Commission’s conflict resolution procedure to avoid accountability for misrepresenting claims about European immigration.

Case Comments

• EM v Secretary of State for the Home Department [2014] UKSC 12

Hugh Southey QC of Matrix Chambers has considered the decision of the UK Supreme Court, on the Supreme Court blog here.  In that case, the Supreme Court held that asylum seekers need only prove that there is a real risk of treatment contrary to Article 3 of the Convention to avoid third country removal – there is no further requirement that such treatment be systemic.  Southey suggests that this result is unsurprising given that Convention rights are recognized by EU law.

In the Courts

• Keyu & Ors v Secretary of State for Foreign and Commonwealth Affairs & Anor [2014] EWCA Civ 312 {19 March 2014)

Court of Appeal: unnecessary to hold Public Inquiry into 1948 “execution” by British troops of 24 Malayans

• P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 (19 March 2014)

Supreme Court overturns Court of Appeal in deprivation of liberty safeguards case

• The Howard League for Penal Reform & Anor, R (on the Application of) v the Lord Chancellor [2014] EWHC 709 (Admin) (17 March 2014)

Judicial Review of changes to legal aid provision for prisoners rejected by High Court – permission refused

Upcoming Events

To add 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 the topics covered by this blog.

• Human Rights and Military Intervention – 30^th April 2014, 6.30, Law Society
• Event: JUSTICE Student Human Rights Network – Annual Conference 2014 – 22nd March 2014

UK Human Rights Blog Posts

• No duty to investigate in respect of civilian deaths in Malaya in 1948 – March 20, 2014 by Rosalind English
• Anti-fracking protesters’ Convention rights against private landowners – March 18, 2014 by Rosalind English
• Avoiding the nuclear option: the EU moves to strengthen the rule of law – March 17, 2014 by Justine Stefanelli