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.
Yesterday Sir Nicolas Bratza spoke candidly about the responsibility of certain UK politicians and media outlets in tarnishing this countries human rights legacy. He called on lawyers and NGOs to help rekindle the fire for human rights at home.
At an event hosted by the British Institute of Human Rights (BIHR) and the Law Society – “Sixty years of the European Convention on Human Rights (ECHR): What does the future hold?” – politicians, legal practitioners, civil servants, academics and activists debated the impact of six decades of the UK’s membership of the ECHR.
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”:
According to reports in yesterday’s Times (£) and Telegraph, the government is planning a further set of reforms to judicial review. (I have written before about why the original proposals, published in December 2012, were objectionable—and about the fact that the government pressed ahead with many, but not all, of them, excoriating criticism notwithstanding.) Today, it is said that the Ministry of Justice is drastically to restrict the test for standing in judicial review cases. A “government source” told the Times that:
We’re looking at making some changes so that the system isn’t open to abuse by groups who may not have a direct interest in the issue at hand but simply want to cause delay or disruption to plans or generate publicity for themselves.
This fits with the overarching narrative emerging from (certain parts of) government, according to which accountability to law—whether domestic or European—is increasingly characterised as a brake on economic progress, a challenge to democracy by unelected judges, or little more than a public-relations tool that is strategically deployed so as to “play the system”.
Tan & Anor v Law & Anor (2013) – Currently available on Lawtel 25/6/2013 and Westlaw, BAILII link to follow
The absence of legal representation for defendants to an action for debt who contended they could not speak English resulted in the High Court granting an application that the trial be adjourned for a second time. The judgment is a good example of the interaction of Article 6 ECHR (right to a fair trial) with the Civil Procedure Rules (CPR).
The decision by Judge Burrell QC obviously turns on its own facts. But the absence of legal aid, the rise in litigants in person, and the increasing number of persons in this country for whom English is not their first language (or indeed their language at all) mean that this is not likely to be the last such case.
My post of earlier this week explained why the majority of the Supreme Court struck down a direction telling all financial institutions not to deal with this Iranian Bank. The legal ground (involving, as Lord Sumption described it, “an exacting analysis of the factual evidence in defence of the measure” ) was that the direction was “disproportionate”. The judgments (particularly the dissenting one of Lord Reed) tell us a lot about the scope of proportionality. And there is a good deal more to it than there might at first sight appear.
So it may be worth doing a bit of a bluffers guide, hand in hand with Lord Reed.
The concept arises in human rights law and in EU law. Its ECHR and EU incarnations derive from German administrative law, but its development in English law shows strong common-law influences. It applies in many different contexts, and the intensity of the review required critically depends on that context as well as the right being interfered with. So it is no simple thing to explain, but Lord Reed at  –  distils the main elements.
According to the President of the Supreme Court, the judiciary not only has a right but an obligation “to speak out on mattersconcerning the rule of law.” In recent months, it is a duty from which Lord Neuberger has not shirked, and last night’s lecture to the Institute of Government was no exception. Its focus was the importance of legal aid, which Neuberger described through the prism of the UK’s constitutional set-up and the respective roles of the legislature, executive and judiciary within it.
This is not the first time that the UK’s most senior judge has intervened in the debate surrounding the Transforming Legal Aid consultation, which closed on 4 June. Back in March, he warned that proposals intended to save £350 million a year by 2015 could end up costing the Government more, with greater numbers of litigants appearing in court without legal assistance, and longer hearings.
Two sets of judgments today from a 9-judge Supreme Court in the Bank Mellat case. The first explains why the Court adopted a secret procedure in the absence of the Bank (i.e. a Closed Material Procedure) but added that the whole palaver in fact added nothing to their knowledge. The second concludes that financial restrictions imposed in 2009 on an Iranian Bank which effectively excluded it from the UK financial market were arbitrary and irrational and were also procedurally unfair.
The saga started when on 9 October 2009 the Treasury made a direction under Schedule 7 of the Counter-Terrorism Act 2008 requiring all persons operating in the financial sector not to have any commercial dealings with Bank Mellat. The Treasury said that the Bank had connections with Iran’s nuclear and ballistic missile programme. Continue reading →
The British public owes a lot to Ernest Davies. Few, if any, will have heard of him. A Londoner and scion of a Labour party councillor, he began a career in journalism, spent the war years at the BBC’s north Africa desk and, in the Attlee landslide of 1945, was elected as Member of Parliament for Enfield. After the 1950 General Election, he was appointed Parliamentary Undersecretary of State in the Foreign Commonwealth Office. And at 4 p.m. on 4th November 1950, together with ministers representing ten other European states, he walked into the Salone of the Palazzo Barberini, Rome, and signed the European Convention on Human Rights on behalf of the United Kingdom.
It is intriguing to imagine what Davies would have made of the current debate over the United Kingdom’s participation in the Convention system. Perhaps as a former journalist he would have known all too well that, at least for some sections of the British media, coverage of European affairs isn’t always to be taken at face value or too seriously. He would, no doubt, be surprised at the evolution of the Convention into the system it is today. But I think it would have been surprise mixed with a quiet sense of pride, for he would have known that the text he signed was the product of months of work by British lawyers.
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.
Updated, 19 May 2013 | Last night, lawyers, academics, NGOs and even the President of the Supreme Court gathered in a basement conference room in central London. Their purpose was to discuss the UK “without Convention Rights”, a possible future that some might view as post-apocalyptic, and others as utopia. Either way, given recent political developments, the event could not, in the words of the Chair, Lord Dyson, “be more timely or topical.”
I 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:
Update, 9.5.13 – Dr Mark Elliott’s excellent post, in which he considers the likely outcome of a legal challenge to the new legislation, if it mirrors the recent Immigration Rules changes. Dr Elliott thinks this is likely to lead to a (perhaps planned) confrontation with Strasbourg: The Queen’s Speech, the Immigration Bill and Article 8 ECHR
“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
removing legal aid for prisoners challenging the way they are treated in prison,
reforms to legally aided Judicial Review to “fund weak Judicial Reviews”,
the introduction of a household disposable income threshold above which defendants would no longer receive criminal legal aid;
amendments to the civil merits test to prevent the funding of any cases with less than a 50% chance of success;
introducing price competition into the criminal legal aid market,
reducing the cost of criminal legal aid fees for Crown Court advocacy and Very High Costs Cases,
reducing lawyers’ fees in family public law cases and asylum and immigration appeals and
reducing fees to experts in civil, family and criminal cases by 20%.
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