Access to justice


The Round-Up: Lawyers lament UK’s refugee response

12 October 2015 by

imgres-7This week’s Round-up is brought to you by Hannah Lynes.

In the news

  • Call from legal community for urgent action on refugee crisis

More than 300 lawyers have signed a statement denouncing the Government’s response to the Syrian refugee crisis as “deeply inadequate”.

The document, whose signatories include former President of the Supreme Court, Lord Phillips, three former Law Lords and over 100 Queen’s Counsel, describes Prime Minister David Cameron’s offer to resettle 20,000 Syrian refugees over 5 years as “too low, too slow and too narrow.”
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Immigration proposals under scrutiny – the Round-up

31 August 2015 by

Photo Credit: The Guardian

In the news

Immigration Minister James Brokenshire has announced proposals to make Britain “tougher on those with no right to be here’. The new measures are to be included in an Immigration Bill due this Autumn. Working illegally in England and Wales is set to be an offence punishable by a sentence of up to six months in prison and an unlimited fine. In addition, businesses suspected of failing to comply with immigration rules could face closure for up to 48 hours.

Policy Director at Focus on Labour Exploitation, Caroline Robinson, is critical of plans for a “labour market enforcement agency”. Far from preventing illegal working, “policies and practices putting immigration control above all else will result in increased forced labour and modern-day slavery in the UK”. Forthcoming research by the organisation highlights the dangers of blurring lines between immigration enforcement and labour inspection, with victims of labour exploitation more likely to avoid inspectors where they fear being reported to immigration officials.

The current system of immigration detention in the UK has also come under close scrutiny this week. Writing for Halsbury’s Law Exchange, Mark Lilley-Tams and Stewart MacLachlan identify potential opportunities for reform. Noting that the UK is unique within Europe in that an individual may be detained under the Immigration Acts for an indefinite period, the authors suggest a review of current government policy “to avoid unnecessary suffering to those being detained, and unnecessary use of public resources where detention is being used”.

Other news

Law Society Gazette: A Home Office report has highlighted ‘significant shortcomings’ in the provision of appropriate adults for vulnerable people in custody, putting them at risk of miscarriages of justice and lengthening custody times. Solicitors have called for urgent action to be made on the report’s recommendations.

A leading disability charity has been notified that the UN will be conducting an investigation into whether the UK government’s welfare reforms have caused “grave or systematic violations” of disabled people’s human rights. Figures released by the Department for Work and Pensions have revealed that between 2011 and 2014, 2,380 people have died within six weeks of being found ‘fit to work’. The Independent reports.

The Guardian: The newly appointed UN special rapporteur on privacy, Joseph Cannataci, has called for a universal law on internet surveillance. Cannataci has singled out the oversight mechanism in the UK as being one of the weakest in the western world, describing it as “a rather bad joke at its citizens’ expense”.

Local Government Lawyer: The Court of Appeal has rejected an appeal brought by Unison against rulings of the Divisional Court that the Government’s introduction of employment tribunal fees had not been unlawful. The union has applied for permission to take its legal challenge to the Supreme Court.

Sir John Chilcot is facing legal action to compel publication of his long-delayed report into the Iraq war. A statement by Sir John has attributed the delay in part to the ‘Maxwellisation’ process, in which individuals are given the opportunity to respond to criticism made against them. The BBC reports here.

UK HRB posts

Passports at the junction of international and domestic law – Richard Alton

ISIL child brides: a big care problem for the Family Court? – Rosalind English

Does Article 5 apply to extended sentences? – David Scott

Human Rights Conventions: when some are more equal than others? – Emily Thornberry MP

Events

The Liberty Human Rights Awards will take place on 7 September at London’s Southbank Centre. Tickets for the ceremony can be booked here.

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

Hannah Lynes

Fair family hearings – according to the Court of Appeal

31 May 2015 by

P-154a3cb5-e8aa-4516-9a6b-c5204c8a4e34Re K and H  [2015] EWCA Civ 543, Court of Appeal, 22 May 2015 – read judgment 

Philippa Whipple QC and Matthew Donmall of  1 COR appeared for the Lord Chancellor in this case.  They have played no part in the writing of this post.

Lord Dyson for the Court of Appeal has recently reversed the decision of HHJ Bellamy (see my post here) who had ordered legal aid to help an unrepresented father in family proceedings. The conundrum was that the father wanted contact with his children aged 5 and 4, but a 17-year old step-daughter, Y, told her teacher that the father sexually abused her – which the father denied.

That issue had to be decided first – and understandably the father felt unable to cross-examine Y himself. Hence the judge’s order that the Courts Service (HMCTS) should pay for legal representation for the father limited to that cross-examination of Y.

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Catch-33: Stringent documentary requirements upheld for legal aid in domestic violence cases- Vanessa Long and Adam Smith

28 January 2015 by

R (on the application of Rights of Women) v Secretary of State for Justice [2015] EWHC 35 (Admin) – read judgment

legal-aidNeil Sheldon and Alasdair Henderson (instructed by The Treasury Solicitor) acted for the Defendant in this case. They have nothing to do with the writing of this post.

The campaign group Rights of Women has been unsuccessful in its judicial review of Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012 (as amended) which sets out the list of documents which will be accepted as evidence that a legal aid applicant has suffered or is at risk of suffering domestic violence. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) purports to retain legal aid for victims of domestic violence. However, such funding is only available where at least one of the documents listed in Regulation 33 is submitted to the Legal Aid Agency.
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Acquitted defendants costs regime not incompatible with ECHR

28 January 2015 by

448bbd010e93bd0d21e13a354a3cd82bR (o.t.a Henderson) v. Secretary of State for Justice, Divisional Court, 27 January 2015 – judgment  here

The Court (Burnett LJ giving the sole judgment) has ruled on whether the statutory changes made to the ability of acquitted defendants in the Crown Court to recover their costs from central funds are compatible with the ECHR. 

Its answer – an emphatic yes, the new rules are compatible. This conclusion was reached in respect of the two statutory regimes applicable since October 2012, as we shall see.

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How to make family hearings fair

5 January 2015 by

P-154a3cb5-e8aa-4516-9a6b-c5204c8a4e34Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1, HHJ Bellamy – read judgment 

Philippa Whipple QC of  1 COR appeared for the Lord Chancellor in this case.  She has played no part in the writing of this post.

This case raises a very stark problem. A father wants to see his children aged 5 and 4. The mother has an elder daughter, Y, aged 17. Y told her teacher that the father sexually abused her. The truth or otherwise of this allegation is relevant to whether there should be contact between father and his children. 

The father is a litigant in person, and unsurprisingly (whatever the status of her allegations) Y does not to be cross-examined by the father, nor, equally understandably, does the father wish to do so himself.

So who should? And does the court have the power to order Her Majesty’s Courts and Tribunals Service (HMCTS) to pay for legal representation for the father limited to that cross-examination of Y? So the Lord Chancellor was allowed to intervene – he had been invited to do so in a previous case (Q v. Q – hereand our post here, to which we will come), but had been unwilling to do so – not perhaps tactful to the judges but then he still seems to be learning the ropes in that respect – see here.

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Exceptional legal aid funding should not be limited to extreme cases – Court of Appeal

17 December 2014 by

legal-aidR (on the application of) Gudanaviciene and others v The Director of Legal Aid Casework and others [2014] EWCA Civ 1622 – read judgment

The Court of Appeal has ruled that the Lord Chancellor’s Guidance on exceptional funding in civil legal aid is incompatible with the right of access to justice under Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. The Court has further decided that this Guidance was not compatible with Article 8 of the ECHR in immigration cases; in other words, that legal aid should not be refused when applicants for entry to the UK seek to argue that refusal of entry would interfere with their right to respect for private and family life.

This was an appeal against a ruling by Collins J in the court below that the appellant Director’s refusal to grant the respondents exceptional case funding under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in their immigration cases was unlawful.
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State should pay for representation and witnesses in private child disputes

31 August 2014 by

Money purse - WalletQ v Q ; Re B (a child) ; Re C (a child) [2014] EWFC 31 – 6 August 2014 –  read judgment

Public funding is not generally available for litigants in private-law children cases, and no expert can now be instructed in such a case unless the court is satisfied, in accordance with section 13(6) of the Children and Families Act 2014, that the expert is “necessary” to assist the court to resolve the proceedings “justly”.   As the President of the Family Division observed, restrictions on legal aid in certain circumstances has led to a “drastic” reduction in the number of legally represented litigants:

The number of cases where both parties are represented has fallen very significantly, the number of cases where one party is represented has also fallen significantly and, correspondingly, the number of cases where neither party is represented has risen very significantly.

All this has led to increased calls on the Bar Pro Bono Unit, which is generally not able to meet the demand.

Sir James Munby P has therefore suggested that the cost of certain activities, such as bringing an expert to court and providing advice to parents accused of sexual offending within the family, should be borne by the Courts and Tribunals Service.  
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The Supreme Court on “prohibitively expensive” costs: Aarhus again

11 December 2013 by

R (Edwards & Pallikaropoulos) v. Environment Agency et al, Supreme Court, 11 December 2013 read judgment

This is the last gasp in the saga on whether Mrs Pallikaropoulos should bear £25,000 of the costs of her unsuccessful 2008 appeal to the House of Lords. And the answer, after intervening trips to the Supreme Court in 2010 and to the CJEU in 2013, is a finding by the Supreme Court that she should bear those costs.

The judgment by Lord Carnwath (for the Court) is a helpful application of the somewhat opaque reasoning of the European Court on how to decide whether an environmental case is “prohibitively expensive” per Article 9(4) of the Aarhus Convention, and thus whether the court should protect the claimant against such liabilities. The judgment also considers the guidance given by A-G Kokott more recently in infraction proceedings against the UK for breaches of that provision: see my post.

But note that the dispute has been largely overtaken by recent rule changes, and so we should start with these before looking at the judgment.

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Aarhus for real beginners

12 October 2013 by

aarhus

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

  • Access to environmental information
  • public participation in environmental decision-making, and
  • access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

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The CJEU on “prohibitively expensive” and the new protective costs order regime

11 April 2013 by

R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,

and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45

Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.

The first development is a decision by the CJEU on the meaning of those words.

The second is a new set of rules providing for protective costs orders in environmental judicial review claims.
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Have human rights hijacked the language of morals? – and other questions: Laws

27 November 2012 by

Lord Justice Laws’ Inaugural Lecture at Northumbria University, 1 November 2012 – read here 

This is a fascinating and provocative lecture raising important questions about the extent to which the culture of human rights has become the currency of our moral dealings with each other and the State.

Adam commented briefly on Laws’ speech here but since it deserves a post of its own I will try to capture its essence and highlight some of its main features here without I hope too many spoilers.

Laws suggests, as Adam mentioned, that rights should properly be the duty of the State to deliver as an aspect of the public interest, not its enemy. The problem is that we have exalted rights beyond their status of public goods (along with health care, defence, education and so on) into primary moral values served to us not by the government but by the courts. Consequently these two institutions are seen to be serving opposite interests. The entrenchment of rights in morality in Laws’ view carries great danger.

It is that rights, a necessary legal construct, come also to be seen as a necessary moral construct. Applied to the morality of individuals, this is a bad mistake.
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The BAILII lecture: No Judgment, No Justice

21 November 2012 by

For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.

Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.

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When does a case become “prohibitively expensive”?

24 October 2012 by

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated

In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention. 

My further thoughts on this case are found here.

The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.

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Youth restraint challenge rejected by High Court

16 January 2012 by

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd  and Serco plc [2012] EWHC 8 (Admin) – read judgment

Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.

The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.


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