By: Adam Wagner


The problem of ‘rebalancing’ Article 8

8 May 2013 by

Queen delivers speechI have written an article for the New Statesman  on the announcement in today’s Queen’s Speech about Article 8 ECHR. It is here. Enjoy!

For more, see:

More major rule of law changes, more dodgy statistics used to justify them

5 May 2013 by

9780312421274“Access to justice should not be determined by your ability to pay”, begins the Justice Secretary Chris Grayling – perhaps accompanied by a subtle wink – at the beginning of  the Ministry of Justice’s new consultation document. As many readers will know, the Government is currently consulting on a second round of legal aid cuts. This time, savings of £220m per year are estimated. The consultation closes in just under a month, on 4 June 2013. 

The  reforms are major, and will impact on hundreds of thousands, if not millions, of people. They relate, in summary, to

  1. removing legal aid for prisoners challenging the way they are treated in prison,
  2. reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
  3. the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
  4. amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
  5. introducing price competition into the criminal legal aid market,
  6. reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
  7. reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
  8. reducing fees to experts in civil, family and criminal cases by 20%.


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What is the UK Supreme Court? Head to YouTube to find out (with cheesy muzak)

25 April 2013 by

The Supreme Court has produced a rather excellent short YouTube video about what it does. Look out for interviews with Justices, a funky 3D representation of the UK court system, a bit of court action and of course, cheesy muzak. 

Regular readers will know I am a big fan of the Supreme Court’s efforts to be accessible to the public, which stand in stark contrast to the almost non-existent efforts of the rest of the UK justice system. You can find an article about the video by the court’s Chief Executive here and one reviewing the court’s innovations here.

Enjoy!


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Exclusive: Special Advocates’ open letter and briefing note on secret trials

22 March 2013 by

TopSecretFileOn 26 March 2013 the House of Lords will consider the amendments to the Justice and Security Bill made by the House of Commons.  We have reported on this blog on the Bill at various points in its progress, including on the Special Advocates’ views on the proposals. 

Here, now, is the latest contribution:  a Briefing Note in relation to two key amendments which will be considered next week (covering letter here).  First, whether closed material procedures should only be used as a last resort, if a fair trial cannot otherwise be achieved.  And second, whether the interests of open justice should be weighed in the balance by a Court in considering whether to order a closed procedure.


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New European Sanctions blog

22 March 2013 by

Euro SanctionsIt is always a pleasure to welcome a new legal blog, especially one with subject matter which is relevant to readers of the UKHRB. May I introduce you to the European Sanctions Blog, written by Brick Court’s Maya Lester and Michael O’Kane of Peters & Peters. The blog is also on Twitter as @eusanctions

Sanctions imposed by European bodies on individuals, businesses and states are certainly topics which we have covered on this blog, for example the important recent rulings over EU sanctions on Iranian banks. A few interesting early posts over at EU Sanctions cover sanctions on Syria and Iran, terrorist asset freezing and most recently the extraordinary goings on at the Supreme Court this week in a case about an Iranian bank, Bank Mellat, which I also covered here.

Enjoy!
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Historical first as Supreme Court boots Iranian bank out of secret hearing

21 March 2013 by

TEST CARD1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post. 

Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.

If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:

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The fundamental right to insult our leaders: Three worrying cases in France, the West Bank and right here

17 March 2013 by

Thanks to Caoilfhionn Gallagher of Doughty Street Chambers for alerting me to this.

The new striker in Real Madrid

The new striker in Real Madrid

Comparing different countries’ legal systems is a dangerous game, but three cases came to light this week which beg to be compared. The criminalisation of criticising political leaders has always been a hallmark of illiberal societies, and it seems that the tradition is still going strong today: in France, the West Bank and the UK too.

First, the European Court of Human Rights ruled that a man should not have been convicted of a criminal offence for waving a placard at (as he was then) President Sarkozy reading “Casse toi pov’con” (“Get lost, you sad prick”). He was prosecuted for insulting the president, an offence under an 1881 Act, even though the phrase was one of Sarkozy’s own, uttered a few months previously. The Court rightly found a violation of the applicant’s rights to free expression protected under Article 10 ECHR, stating that satire, including satirical impertinence:

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Terrorism Reviewer: Control Order successor “broadly acceptable”

14 March 2013 by

352676_old_ball_and_chain_series_3David Anderson QC, the Independent Reviewer of terrorism legislation, has released his first report into the operation of Terrorism Prevention and Investigation Measures, introduced in 2011 with the aim of protecting the public from persons believed to have engaged in terrorism, but who can neither be prosecuted nor deported. 

TPIM subjects in 2012 were subject to restrictions including overnight residence at a specified address, GPS tagging, reporting requirements and restrictions on travel, movement, association, communication, finances, work and study. Like their predecessor, control orders, TPIMs have been highly controversial and, as Anderson points out, “vigorously attacked – from opposite directions – by civil libertarians and by the more security-minded.” However, his conclusion is that they are broadly acceptable: 
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UK Human Rights Blog surpasses two million hits

4 March 2013 by

Champagne ExplosionJust a quick note to say that yesterday, in the furore surrounding the Conservative Party potentially threatening to take the UK out of the European Court of Human Rights and Angela Patrick’s post on secret trials, the UK Human Rights Blog surpassed an all-time total of two million hits. 

The blog was launched on 31 March 2010 and is written by members of 1 Crown Office Row barristers’ Chambers. It is now attracting around 100,000 page views per month and has thousands of subscribers across email, Facebook and Twitter. If you haven’t already, you can subscribe for free by email, Twitter or Facebook – more details here.

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What would happen if the UK withdrew from the European Court of Human Rights?

3 March 2013 by

BEYQacNCQAAi9rA.jpg-largeToday’s Mail on Sunday reports that the Home Secretary is to announce “soon” that the Conservative Party’s election manifesto for 2015 will include a pledge to withdraw from the European Court of Human Rights if the party obtains an overall majority.

I thought it would be useful to answer a few basic questions about what this would might mean for the UK. Bizarrely, the article appears alongside the Prime Minister’s opinion piece in the Sunday Telegraph promising that his party would not “veer right” and also “stick to the course we are on“. Talk about mixed messages. Anyway, let’s concentrate on Strasbourg. For a basic introduction to the Court and what it does, see my recent post: No, The Sun, the Human Rights Act is not the EU and David Hart QC’s A bluffer’s guide to human rights courts.

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Shhh…

1 March 2013 by

The Justice and Security Bill, which will allow secret ‘closed material’ hearings to take place in civil trials, has been quietly (almost too quietly) making its way through Parliament. The Bill will allow judges to exclude lawyers, press, the public and even litigants in their own cases from civil hearings which involve national security.

Kafkaesque is a term used in almost every critical article about law ever written. But I have read The Trial (I really have!), and the effect of these proposals is not too far from that.

The key development is that many of the amendments forced through in the House of Lords under the leadership of Lord Pannick have been reversed by the Government. We have a full update coming later on the progress of the Bill, but I thought that in the mean time I would highlight a few up to date resources and developments:

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Attack of the Clones: Supreme Court keeps its white male first eleven

27 February 2013 by

UK Supreme Court judges walk towards Westminster AbbeyBaroness Helena Kennedy has argued that judges have a tendency to clone themselves when choosing successors. It is hard to avoid that impression in the Supreme Court, which kept its white male first eleven in place yesterday by appointing three new justices: Lord Justice Hughes, Lord Justice Toulson and Lord Hodge. The sole woman amongst 12 justices of our highest appeal court remains Lady Hale. There are no black or Asian judges, not have there ever been.

How did this happen? The answer is we don’t know and won’t ever find out. Around two thirds of the Supreme Court’s case load are public law and human rights, decisions which affect millions of people. Yet appointments are made by an opaque commission consisting of senior judges.

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The more things change…

19 February 2013 by

Sir John Donaldson (National Portrait Gallery)

Sir John Donaldson (National Portrait Gallery)

Another title for this post might have been “they did not want to understand the judgment.”

In light of recent shenanigans, it seems apt to reproduce the first five paragraphs of the 25-year-old Court of Appeal judgment in (1) Nadarajah Vilvarajah, (2) Vaithialingham Skandarajah v Secretary of State For the Home Department 1990 WL 754859 (Update – download from BAILII here), which I was alerted to by a colleague. Sir John Donaldson, then Master of the Rolls, complains in withering style about media coverage of a recent judgment. The last line is the best, although a little depressing.

Lessons learned? The more things change, the more they stay the same. Political posturing over immigration and asylum law long predated the Human Rights Act. And Law in Action was as good then as it is now.

Here is a taster:

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Why the Home Secretary’s attack on human rights judges is like a Bakewell tart

17 February 2013 by

_64933580_3258529-low_res-the-great-british-bake-off-christmas-masterclassThe Home Secretary has launched a major attack on immigration judges in today’s Mail on Sunday, in language which even the Mail says is “highly emotive”. She finds it “depressing” that judges are consistently refusing to allow deportation of foreign criminals in “defiance of Parliament’s wishes”.

We will cover the issue in more detail by way of a guest post tomorrow, and you can read our analysis of the rulings which have caused her such annoyance but first I thought I would share a few thoughts.

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No, The Sun, the Human Rights Act is not the EU

10 February 2013 by

BCv-H7PCMAA_LNq.jpg-large 2I was watching the England football team beat Ireland in the World Cup earlier when I was tweeted a cracking bit of legal gobbledegook from The Sun: Youngsters at risk after EU ruling. According to The Sun, Now the “EU could let fiends like him prey on your children“.

For the record, the Court of Appeal, which produced the judgment, is not an EU court. It is an English and Welsh court, based in the Royal Courts of Justice in London. And the EU had absolutely nothing to do with this judgment, which was about CRB checks and Article 8 of the European Convention on Human Rights (the right to family and private life); you can find our analysis here. I won’t address the detail if the judgment here; read our summary and see if you think The Sun is right.

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