By: Guest Contributor
29 April 2013 by Guest Contributor
The Government abandoned its plans to repeal the ‘general duty’ of the Equality and Human Rights Commission (EHRC) under the Equality Act 2006 (the Act) last week, but insisted upon amendments to the EHRC’s duty to monitor progress on equality and human rights.
The general duty in section 3 of the Act sets out why the EHRC exists and the aims towards which it should be working, namely that it:
shall exercise its functions…with a view to encouraging and supporting the development of a society in which
(a) people’s ability to achieve their potential is not limited by prejudice or discrimination,
(b) there is respect for and protection of each individual’s human rights,
(c) there is respect for the dignity and worth of each individual,
(d) each individual has an equal opportunity to participate in society, and
(e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.
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26 April 2013 by Guest Contributor
The Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.
Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?
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25 April 2013 by Guest Contributor
What is the test the Court should apply in deciding whether an application is ‘totally without merit’? The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’. A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.
This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs [2007] 1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.
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23 April 2013 by Guest Contributor
The Ministry of Justice has released its response to the comments generated by the consultation paper on judicial review that was published in December. Unsurprisingly, the Government has signalled that it intends to press ahead with most of the proposals upon which it consulted. In particular, it plans to implement the following proposals:
- Time limits The time limit for judicial review (which at three months is already very short) will be reduced to six weeks in planning cases and thirty days in procurement cases. The Government recognizes that these timescales are so short that compliance with the Pre-Action Protocol will be impossible, so it will invite the judiciary to disapply the Protocol in such cases. Given that one of the objectives of the Pre-Action Protocol is to encourage pre-litigious resolution of disputes, it is not clear how this will promote the Government’s objective of reducing recourse to litigation.
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19 April 2013 by Guest Contributor
A & S v. Lancashire County Council [2013] EWHC 851 (Fam) read judgment
This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)
In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.
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16 April 2013 by Guest Contributor
Mr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment
In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.
The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.
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10 April 2013 by Guest Contributor
The consequences of Margaret Thatcher’s administration have been long lasting. In many areas of national life Thatcher took the British Bulldog by the scruff of the neck and house-trained it. In the context of the constitution her impact was no less significant.
But Lady Thatcher did not set out to reform the constitution. Although the 1979 Conservative Manifesto raised the possibility of a Bill of Rights nothing came of this proposal during her administration. In reality Margaret Thatcher was a traditional Conservative who believed in a strong state and had an aversion to any constitutional reform that might limit it. Yet her administration has left long lasting changes to the law and constitution. In fact there are too many to comfortably write about in a quick blog though a number of developments are of particular interest.
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9 April 2013 by Guest Contributor
‘Working Together to Safeguard Children’ is the lead piece of statutory guidance on… well, working together to safeguard children. Originally published in 1999, a new edition was published in 2006 following the changes brought about following the death of Victoria Climbié. And the next edition in 2010 incorporated recommendations of the second Laming Report which followed the death of Baby P. It had grown longer over time, as we all learned lessons from Haringey; but its growing length was causing concern.
A new version was published last month. The new version was published the week after judgment was handed down in AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013) (my firm represented the Claimants).
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8 April 2013 by Guest Contributor
Max Hastings greeted the new Supreme Court with the prediction that it was a “constitutional disaster in the making.” For Hastings this was Blair’s Court, Blair’s legacy; its creation just one more example of Labour’s wrecking of ancient British institutions. Of course, there was also positive coverage in the early days in papers like the Guardian and Times, but ideally the Court needed to get its own message about itself. How has it gone about doing this? And what has it been saying? What challenges has it faced in its first three years?
This blog (a shortened version of an article out this month in Public Law) looks at the Court’s innovative approach to getting the message out not only about what it is doing in cases, but also about its role in general. It is a topic covered recently by Adam Wagner, here. At the heart of the Public Law article is the idea that the Court is quietly asserting its role as a new and powerful constitutional actor. Its communication’s operation has been at the heart of this.
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26 March 2013 by Guest Contributor
Today we will see the beginning of the end of the passage of the Justice and Security Bill 
through Parliament: the process commonly known as parliamentary “ping-pong”.
The notion of a Bill being swatted back and forth across the Palace of Westminster is at its most accurate in the case of controversial legislation such as the “secret courts” Bill (see previous discussions of these controversies).
With allegations that ministers may have misled parliamentarians on the scope of their prized Bill, the picture of political game-playing might be apt. However, this is the last chance for parliament to consider the government’s case for the expansion of “closed material procedures” (CMP), where a party to proceedings and his lawyers (together with the public and the press) are excluded – and his interests represented by a publicly appointed security vetted lawyer, known as a Special Advocate. An analogy more serious than Boris’ “wiff-waff” might be needed for tonight’s debate. Some commentators have suggested the Lords will play “ping-pong with grenades”.
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22 March 2013 by Guest Contributor
In May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge. The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes. It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities.
The Review has recently launched a call for evidence, with a closing date of 12th April 2013. The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’
The Equality and Diversity Forum has produced a helpful briefing on the Review.
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20 March 2013 by Guest Contributor
Rapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.
No-one can legitimately argue that women, children, persons with disabilities, migrant workers, human rights defenders and other vulnerable groups do not need protecting from human rights abuses. Where those groups require additional rights then of course it makes sense for them to be enshrined within treaties. Yet the many treaties, resolutions and declarations about those groups almost always focus on rights that already exist for all individuals. Often these are civil and political rights, which can be found within international and regional treaties. Replicating these rights, rather than creating new additional ones, weakens and undermines the human rights system.
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20 March 2013 by Guest Contributor
This post by Roger Smith was originally the text of a speech to the Working Men’s College and is reproduced here with permission and thanks.
Human rights will be a politically live issue at the next election. Leading on the issue will by the Conservative Party, urged on by elements in the media such as the Daily Mail with a commercial interest in resistance to any law on privacy deriving from human rights. So, the Working Men’s College has done well to identify this topic for exploration. This evening is a celebration of the college’s stated aim to ‘engage positively with the past, while finding new ways to pursue its founders’ aims into the 21st century.’
The pace on human rights is being forced by Theresa May, seen by some as the Tory leader in waiting. She made it clear at the weekend that both the HRA and the European Convention which it introduces into domestic law are under fire:
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12 March 2013 by Guest Contributor
Today, the Scottish Government have introduced the “paving Bill” to Holyrood which will finally settle the franchise for the independence referendum in 2014. If passed, it will finally extinguish the hopes of expats, diaspora Scots and those living furth of Scotland who wanted to vote in the poll.
Much of the attention has zoomed in on the enfranchisement of 16 and 17 year olds, which ministers hope to affect by establishing a Register of Young Voters alongside the local government register. It is envisaged that this young voters roll will not be published.
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6 March 2013 by Guest Contributor
In a rare public intervention Lord Neuberger, President of the UK Supreme Court, has flagged three important issues that should be of concern to us all.
Firstly, Lord Neuberger has quite rightly criticised the cuts to the Legal Aid budget. Denying litigants a chance to go to court will create ‘frustration and a lack of confidence in the system’, or people will be tempted to ‘take the law into their own hands.’ Lord Neuberger observed that “as one of the three remaining articles of the Magna Carta (1297) says “to no man shall we deny justice”, nowadays “to no man and no woman shall we deny justice”, and we are at risk of going back on that.’
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