The Round-Up: Plaudits for Gove, and the Constitutional Convolutions of the Ministerial Code.

9 November 2015 by Laura Profumo

Laura Profumo serves us the latest human rights happenings.

In the News:

At the Howard League for Penal Reform AGM last week, Michael Gove held his own when challenged about criminal justice reform. Despite his Making Prisons Work speech in July, and his successful overturning of his predecessor’s prison book ban, Gove has remained relatively reticent on his plans for the criminal justice system. Speaking for some 30 minutes, Gove addressed the “need to move away from the sterile debate of ‘lock people up or let them out’”, and summon a “new era of talking about crime and punishment”. His audience, many still bristling from Grayling’s stringency in office, were won over by the Lord Chancellor’s more peaceable approach to penal reform. In addition to emphasising the need for a more sensitive sentencing framework, Gove urged for the causes of criminality to be tackled, including the “moral absence” experienced by many offenders growing up in care. In contrast to Grayling’s perceived complacency over prison conditions, Gove recognised the current “crisis”, pledging his commitment to his “new for old” prisons policy – replacing ineffective Victorian prisons with functional new ones – as well as to improving the autonomy of prison governors. The Lord Chancellor also proposed the use of more advanced technology in prisons, in order to improve the safety of staff and inmates, and to meet the particular educational needs of prisoners with learning difficulties. The conference ended on an especially poignant note, with Gove expressing his admiration for social workers – words which left Frances Crook, Chief Executive of the Howard League “blown away”.

It remains to be seen whether the Autumn Statement, unveiled later this month, will affirm Gove’s ambitious plans. Yet his moral framework for policy choices bodes well, informing the ongoing debate on the prison system with a quieter rhetoric of hope and realism.

In Other News:

The debate about the recent changes to the Ministerial Code continues. The new version of the Code simply outlines an “overarching duty on ministers to comply with the law”, omitting the former reference to international law and treaty obligations. The reason for the change in wording, Melanie Phillips writes in The Times, is a “disingenuous” distinction between ministers as individuals, and the UK as a state. The rephrasing allows the government to “have its legal cake and eat it” – allowing ministers to circumvent international obligations, whilst still maintaining the state’s compliance with its terms. Such thin lip service to international law accompanies the government’s move to disregard ECtHR rulings, without exiting the Convention. Whilst international law may well be a “judicial chimera”, used by “activist lawyers” to stoke disaffection with parliamentary sovereignty – such linguistic tinkering won’t help anything, Phillips warns.

However, constitutional lawyers Richard Ekins and Guglielmo Verdirame suggest such criticism is misconceived. The old Code’s formulation risked “constitutional confusion”, as ministers have never been legally bound to obey treaty obligations. Any such duty would undermine the supremacy of Parliament over the executive and leave Ministers with “inconsistent legal obligations”. Whilst ministers should avoid conduct placing the UK in breach of these obligations, they should not be treated as of “equal standing” with statutes or common law duties. Rights Watch’s proposed proceedings against the Government is itself “problematic” – judicial review providing an improper forum for challenging constitutional conventions. The presumption that international law trumps conventional law is a disquieting one, telling us much about “modern legal thinking”.

• In an appeal from a judgment of the Northern Irish Court of Appeal, the supreme court ruled that a former IRA member’s asylum application was not protected from disclosure in his UK criminal trial. The appellant, Terence McGeough, was sentenced to a 20 year prison term in 2011, for attempted murder, and IRA membership. He was released two years later, under the terms of the Good Friday Agreement 1998. In R v McGeough (Appellant) (Northen Ireland) [2015] UKSC 62, the appellant contended the trial judge erred in law, in admitting evidence of his Swedish asylum application. The supreme court dismissed the appeal, arguing that McGeough had been advised on Swedish law, in Sweden, that an unsuccessful application could be revealed to the authorities in another jurisdiction. Material detailing the circumstances of his attack on Samuel Brush, a postman and member of the Ulster Defence Regiment, was therefore lawfully obtained. For a fine analysis of the case, see here.

• Lady Hale has warned that the supreme court should be “ashamed” if it does not improve its diversity in the next round of judicial appointments. Talking to an audience at Birmingham University last Friday, Hale lamented that, over the past decade, all justices selected for the supreme court have been male, white, and predominantly privately educated. Her speech may well be read as a direct rebuke to Lord Sumption’s recent remarks on the subject, where he warned that any precipitant push for gender equality in the judiciary could have “appalling consequences”. Hale maintained she was “completely unembarrassed” that she may have been appointed for her gender, adding that women must not be deterred from applying to senior positions: “we owe it to our sex, but also to the future of the law…to step up to the plate”.

• The publishing of the draft investigatory powers bill last week has caused alarm amongst many. It fails to guarantee ECHR Article 10, Gavin Millar writes in The Guardian, threatening the future of investigative journalism. If sources know they can be identified via covert access, then they will be deterred from assisting the press in matters of public interest. The bill fails to refer to source protection rights, which are only displaced by overriding public interest, and does not require the police to exhaust other lines of inquiry first. If no amendment is swiftly made, “it will be a dark day for our democracy”.

In the Courts:

• AL (X.W) v Russia: the expulsion of a criminal suspect to China, exposing him to a risk of facing the death penalty, would violate Articles 2 and 3, ECtHR ruled last week. The Court held that, given that the applicant faced an imminent risk of deportation to China, where he might be sentenced to death, Russia was bound by an obligation not to expose him to such a risk.

• RE. v the United Kingdom: ECtHR judgment ruled that the legal safeguards regulating the covert surveillance of a detainee’s consultation with his lawyer were in breach of Article 8. The Court was not satisfied that the relevant domestic law provisions in place at the time of the applicant’s detention provided sufficient safeguards for the protection of his lawyer-client consultations, though proper guidelines are now in force.

Events:

• AIRE Centre Inaugural Charity Fundraising Evening: 26^th November 2015, 6:15pm.This will take the form of a panel discussion, chaired by Joshua Rozenberg, debating “What has Strasbourg ever done for us?” Speakers will include Lord Justice Sedley, Judge Ann Power-Forde SC, and UKHRB’s own Adam Wagner.For more details, see here.
• The Human Rights Collegium at the Queen Mary University of London School of Law will be hosting a theatre event concerning the Stories of Child Refugees – more details here – 17th November 2015, 6:30pm

If you would like your event to be mentioned on the Blog, please email the details to Jim Duffy, at jim.duffy@1cor.com.