The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.
“Beware kite flyers“, warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of Lord Chancellor “exposed the legal system to the vagaries of politics and policy, with profound implications for the rule oflaw“. Law was hardly insulated before, but it is difficult to remember a Lord Chancellor putting his case in such a nakedly political and incendiary way.
Six decades ago today, the European Convention on Human Rights came into force. It all started brightly, as a post-war, British-led pact against Fascism and Communism. Now, human rights are under heavy, relentless attack. Politicians, press and public seem to have an endless appetite for tales of human rights gone wrong. The Justice Secretary has recently said “all options are on the table” for “major change” on human rights, and it is likely that the future of the ECHR will be a major general election issue in 2015. In short, the UK may soon withdraw from the longstanding international human rights system which it was instrumental in creating.
That would be a great mistake. It is often said that human rights are something foreign to the UK, whose proud common law tradition negates the need for these “European” protections. But even a brief consideration of the ECHR’s history shows how wrong that perspective is. The ECHR was a fundamentally British document which has had an enormous, beneficial effect. We should be proud of its history, and would be quite mad to reject it now, six decades on.
Liberty, the human rights organisation, is looking for qualified and qualifying lawyers to staff its advice line.
This is a great opportunity – you can trust me on that, as I did it for a year whilst I was a pupil barrister. I learned a huge amount about practical human rights issues, as well as meeting some great people. The advice line provides an essential service to those who are unlikely to be able to obtain advice anywhere else.
All details after the break below, and on this flyer (PDF).
As the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.
The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.
Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:
Our attitude to anti-terror policing is very strange indeed. In many ways, it is like a magician’s trick. We (the public) turn up at the show with the full intention of suspending our disbelief so as to be entertained and entranced. The magician pulls the rabbit out of the hat, or makes the Statue of Liberty disappear. We applaud, we are entranced.
But we know , somewhere in the back of our minds, that we are being fooled.
As with our safety from terror. We are happy because major terrorist attacks in the UK or US are thankfully rare. We are told about countless attacks which have been thwarted. We applaud, we are entranced. But we know, somewhere, that there must be a price.
That price is our civil liberties. More accurately, that price is the civil liberties of others, who we don’t know but whose faces occasionally drift through the public conscience. Binyam Mohamad, who was tortured by the CIA, apparently with collusion by our own Security Services. Shaker Aamer, who has been detained in Guantanamo Bay without charge for almost 12 years. And it is no secret that many anti-terrorism laws are draconian and involve a huge potential for abuse.
Updated – headline now corrected | Remember when The Sun was reprimanded by the Press Complaints Commission for muddling up the European Union and our local Court of Appeal in a story about a human rights judgment? You probably should because it happened just two weeks ago.
Well, I am delighted to report that following my post, the European Commission, which represents the interests of the European Union, complained to the Press Complaints Commission and the complaint has now been upheld. There was a “clear failure to take appropriate care over the accuracy of the coverage and a breach of the Editor’s Code, which was particularly significant at a time when the roles of both the EU and the Convention were a matter of major public debate“.
12 June 2013 may go down in legal history. For it was the first time a national newspaper’s main headline was about the launch of a legal textbook. In a paradoxical explosion of free publicity for said book, the Daily Express reported that a new online guide to European asylum and immigration has caused “outrage” for helping “migrants claim British benefits”.
In a list of examples of past cases, it even cites Islamist cleric Abu Qatada’s successful challenge under human rights laws against Home Office attempts to send him back to Jordan to face terror charges
The letter relates specifically to Judicial Review, which is an area in which Panel counsel practise regularly. Here is a taster:
We consider that the proposals in the Consultation Paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular. Those who are reliant on legal aid are most likely to be at the sharp end of the exercise of government power and are least likely to be able to fund judicial review for themselves, or effectively act in person.
If you couldn’t make the protest yesterday, why not listen to three speeches by leading barristers Dinah Rose QC, Michael Fordham QC (pictured*) and Geoffrey Robertson QC. Fordham’s rabble rousing avocado metaphor (yes, avocado) is particularly worth devoting five minutes to. Well done to Carl Gardner along with his up and coming sound engineer Joshua Rosenberg for recording and publishing.
With no apologies, I would like shamelessly to promote my chambers colleague Isabel McArdle and Daniel K. Sokol of 12 KBW’s splendid new pupillage guide, Pupillage Inside Out. At £14.95 it is a steal – order now here (wig not included).
Isabel is a regular contributor to UKHRB and Daniel has contributed a number of times in the past. Below are some more details, including how you can get on the guest list for the glamorous* launch party:
Mousa & Ors, R (on the application of) v Secretary of State for Defence  EWHC 1412 (Admin) (24 May 2013) – Read judgment
Remember the Iraq War? Following the 2003 invasion Britain remained in control of Basra, a city in South Eastern Iraq, until withdrawal over six years later on 30 April 2009. 179 British troops died during that period. But despite there over four years having passed since withdrawal, the fallout from the war and occupation is still being resolved by the UK Government and courts.
Thousands of Iraqis died in the hostilities or were detained by the British. Thanks to two decisions of the European Court of Human Rights in July 2011 (Al-Skeini and Al-Jedda – our coverage here), the state’s duty under the Human Rights Act to investigate deaths and extreme mistreatment applied in Iraq at that time. It is fascinating to see how the UK authorities have been unravelling the extent of that duty. The Baha Mousa Public Inquiry has reported and the Al-Sweady Public Inquiry is ongoing (I acted in the former and still do in the latter). In this major judgment, which may yet be appealed, the High Court has ruled the manner in which the UK Government is investigating deaths and perhaps mistreatment is insufficient to satisfy its investigative duty.
The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:
This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems. This guide has been produced with Mind Brighton and Hove, Wish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.
Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.
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This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.