Judicial Review, Legal Aid and Operation Cotton – the Human Rights Roundup
6 May 2014
Welcome back to the UK Human Rights Roundup, your regular spring bouquet 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.
In the News
Legal aid, judicial review and the role of the Lord Chancellor dominated the headlines last week – with the Operation Cotton case and the Joint Committee on Human Right’s report on judicial review putting increasing pressure on the Government’s reforms.
Operation Cotton
Last week, a Crown Court judge halted a high-profile fraud trial known as ‘Operation Cotton’ after the defendants found themselves without representation due to recent legal aid reforms. In making his decision, His Honour Judge Leonard QC made it clear that the government had failed in its duty to ensure that the men were represented. The Ministry of Justice has cut fees by 30% in complex cases, with the result that, in the instant case, the barristers representing the five defendants pulled out of the trial.
The judgment received particularly high levels of media attention in light of the revelation that Alexander Cameron QC (pictured), brother of the Prime Minister, was representing the defendants on a pro bono basis and arguing that they would not receive a fair trial without representation.
Adam Wagner has examined the constitutional events that preceded the judgment in an article on the New Statesman. In this regard, he notes the impact of the reforms under the Constitutional Reform Act 2005, which transformed the role of the Lord Chancellor and enabled non-lawyers to hold the position. He outlines the ‘constitutional carnage’ that Chris Grayling has wrought as Lord Chancellor, highlighting his on-going attack on human rights, judicial review reforms and legal aid cuts.
Writing for the Financial Times, David Allen Green has considered the implications of ‘Cameron v Cameron’, suggesting that the judgment will have significant effects in terms of law, policy and politics.
Dan Bunting, writing for Halsbury’s Law Exchange, has considered the impact that the judgment may have on the on-going legal aid battle. He notes that we will have to wait and see whether ‘Operation Cotton’ proves to be a victory for criminal barristers or, instead, whether it prompts the expansion of the Public Defender Service in an attempt to plug the gap in representation.
JCHR on Judicial Review
On a similar note, last week, the Joint Committee on Human Rights (JCHR) published its report on The Implications on Access to Justice of the Government’s Proposals to Reform Judicial Review. The report is largely critical of the Government’s proposals, and suggests that insufficient evidence has been provided for why the reforms are necessary – see Angela Patrick’s post here.
In addition, it notes the danger of changing the threshold for when judicial review will be available. At present, it will only be refused where the outcome is ‘inevitable’, but the Government wishes to change this to exclude situations where the outcome would not be ‘substantially different’. The report argues that not only would this would require the courts to ignore unlawful conduct by public authorities, but, in practice, it would be almost impossible to know what difference a procedural defect would make without hearing the evidence.
The report is also critical of the way that changes to legal aid had been adopted, and expresses concern over proposals regarding the costs of interveners and limits on the availability of protective cost orders. The government, however, appears as committed to these reforms as ever, with Chris Grayling maintaining his stance that legal aid is being abused by foreigners, pressure groups and lawyers.
Mark Elliott has summarised the JCHR’s report here. In particular, he notes the Committee’s reproach of the ‘politically partisan’ way that the reformed role of Lord Chancellor has been utilised. He suggests that recent reforms and proposals represent an ‘unusually acute’ erosion of the court’s constitutional role by the executive.
In Other News
- Last week saw an overhaul of the family courts, which has been hailed as revolutionary by the Justice Gap blog. There will now be a single point of entry to the courts for family law cases, greater pre-litigation mediation requirements, and the introduction of ‘child arrangement orders’.
- An amendment to the Care Bill has been tabled in the Lords in order to ensure that the Human Rights Act covers people who receive state-funded care in their own homes. The government U-turn, which follows months of campaigning by pressure groups and the Liberal Democrats, is reported in the Guardian here.
- As the Al-Sweady inquiry draws to a close, the Telegraph considers whether it was simply a ‘costly and potentially lethal waste of time’, after many of the allegations are discredited.
- The Oxford Human Rights Hub has launched a new e-book entitled ‘Global Perspectives on Human Rights’, which showcases some of its best posts on certain key human rights themes.
- The Law and Religion UK blog has commented on the Church of England’s reaction to both same sex marriages in the clergy and a new, merged diocese – as well as the concomitant press coverage of the issues – here.
In the Courts
Strasbourg:
The Court of Human Rights, last week, found that the Russian authorities had failed to protect a new military recruit, where they had known about his mental health issues and failed to take appropriate measures to help him. New members of the Russian forces are subjected to ‘dedovshchina’ – whereby older recruits brutalise new conscripts. In this case, the man in question had hung himself following months of bullying.
Case Summaries
In March this year, the Supreme Court handed down its judgment in the case of Kennedy v Charity Commissioner. In that dispute, a Times journalist sought judicial review of the decision of the Charity Commissioner to refuse his freedom of information request. The Charity Commissioner had dismissed Mr Kennedy’s complaints that public funds were being used inappropriately to help George Galloway’s charity, the Miriam Appeal, which campaigns against UN sanctions and Israel, and the journalist sought disclosure of the documents to explain that decision. The Charity Commissioner claimed that these documents were subject to an absolute exemption under the Freedom of Information Act as they were part of an inquiry, while Mr Kennedy claimed that the exemption ended upon conclusion of the inquiry.
The Supreme Court held that Article 10 of the Convention does not confer a positive right of access to information. Richard Clayton QC has considered the merits of that decision, and the significance of the Supreme Court’s reliance on common law principles of open justice, in a post for the UK Constitutional Law Association here.
In this South African case, the government have been ordered to reimburse teachers who had worked in the Eastern Cape of the country without pay. A settlement in this case also required the government to fill vacant positions with temporary teachers and offer permanent positions to those who had worked on temporary contracts for a substantial period of time. The case is the first certified class action to be brought in South Africa. Shona Gazidis considers it in more depth for the Oxford Pro Bono Publico group here.
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
- Oxford Human Rights Hub – Human Rights and the Rule of Law: Eights Centuries After Runnymede – 7th May (5pm), Examination Schools, University of Oxford
- British Institute of Human Rights – Human Rights: Beneath the Headlines – 8th May (6.30-8pm), Leigh Day, Priory House, 25 St John’s Lane, London EC1M 4LB
- Media Standards Trust and King’s Policy Institute – “Inhuman Rights”: Is the Sun Right about the Human Rights Act? – 20th May (6.30-8), King’s College London (Strand Campus)
- Oxford Pro Bono Publico Symposium: Public Interest Lawyering in the 21st Century – 24th May (10am-6pm), Pembroke College, Oxford
- UK Constitutional Law Association: Prisoner Voting and the Constitution – 18th June (6-7.30pm), University College London
UK Human Rights Blog Posts
- Disclosure of medical records breached patient’s human rights – Strasbourg – April 30, 2014 by Rosalind English
- Not in our name – Parliamentary Committee rejects Government’s case for judicial reform – April 30, 2014 by Angela Patrick
- Closed material in UK proceedings cannot be disclosed in Strasbourg – 28 April, 2014 by Rosalind English
- Strasbourg acting as the EU Court’s enforcer – 26 April, 2014 by David Hart QC
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Re the stay of the Operation Cotton case at Southwark Crown Court: I note that sadly, there is little debate into the consequences to victims of fraud as a result of Judge Leonard’s ruling. He suggests only that the victims in the case will have access to justice via the civil Courts – and that, unfortunately is a very unrealistic proposition. In the majority of fraud cases and because of the very nature of the crime, victims have little or no access to the very high costs involved in civil litigation. Additionally, they will often have waited several years to see a fraud case reach the criminal courts and a trial.
It seems extraodinary that Britain, of all places, has reduced justice to a monetary squabble. I am not in the legal profession so I can’t comment on the rights or wroongs of remmuneration (although I suspect MP’s would not easily accept a 30% reduction in their own fees). But, as a victim of fraud, I sincerely hope the Government remedy this financial debate asap and before our juctice system hands out any more “get out of jail free” cards to potential criminals.