Tuesday, 21 October 2014

Where we are with human rights

Several recent post have looked at various aspects of human rights and its protection in the UK.  This is an absolutely vital area of law and one where there is a clear political schism as to the future of human rights law in the UK.

Barrister Adam Wagner of 1 Crown Office Row has kindly made available this excellent infographic showing the basic system of human rights protection in the UK as it is at present.

Please read it in conjunction with  - Human Rights Protection in Britain - 10 key points

In the event that a Conservative (majority) government comes into power following the 2015 General Election,  they will be committed to making changes and these are discussed at some length in Human Rights - a look at the Conservative Party proposals where many links to other commentaries will be found.  A draft bill has been promised in the near future.  The Conservative Party proposals are devastatingly and masterfully analysed by Francis Fitzgibbon QC - London Review of Books - Short cuts

The Labour Party position appears to be set out in the short conference speech by Sadiq Khan MP (Shadow Justice Secretary) where Khan indicated that his Party would block attempts to abolish the Human Rights Act 1998.

Sunday, 19 October 2014

The EU ~ Referendum Bill

In his recent speech to the Conservative Party conference, David Cameron referred to renegotiating British terms of membership of the European Union.  He said - "... we’re going to go in as a country, get our powers back, fight for our national interest ... and yes – we’ll put it to a referendum … in or out – it will be your choice ..."

The Conservative Party is supporting a Private Members Bill to enable a referendum to take place at a date to be appointed but no later than the end of 2017.  It would ask - "Do you think that the UK should be a member of the EU."   The Private Member who introduced the Bill is Robert Neill MP.   He said that it was not a bill about whether we should, in the longer term, stay in or leave the EU.   It was an opportunity for people to have a say.

At least on the part of the Conservative Party, there seems to be a political commitment to renegotiation of some aspects of the UK's membership.  Presumably, the electorate would be presented with information about what the renegotiation had actually achieved.

In the event of a NO answer,

Saturday, 18 October 2014

The West Lothian Question ~ a few thoughts !

The so-called West Lothian question is a political and not legal question.  It was asked as long ago as 1977 by Tam Dalyell MP who represented West Lothian from 1962 to 1983 and Linlithgow from 1983 to 2005. The question asks whether MPs from Northern Ireland, Scotland and Wales, sitting in the House of Commons of the United Kingdom, should be able to vote on matters that affect only England.

In the immediate aftermath of the Scottish Independence vote, the Prime Minister said:  "So this is my vow: English votes for English laws. The Conservatives will deliver it."

Voting on matters that affect only England may be a different issue to voting on laws affecting England only.   In other words, much might depend on how the West Lothian question is actually phrased !  Let's leave those semantics to one side.

It's interesting to find out

Tuesday, 14 October 2014

Lord Neuberger ~ Two interesting speeches

Update - Addendum 15th October -  

A "Constitutional Convention" to address further reform?

The President of the Supreme Court of the United Kingdom (Lord Neuberger) has delivered a couple of rather interesting speeches.  Please read them in full.

The Conkerton Lecture is essentially Lord Neuberger's look back at the first 5 years of the Supreme Court of the UK.  He looks at several of the cases the court has decided and appeared keen to put the record straight in some areas where there has perhaps been misrepresentation of the decisions of the court.  For example, speaking of Smith v Ministry of Defence [2013] UKSC 41, Lord Neuberger pointed out that the claimant's criticism about provision of equipment for the armed forces was aimed at civil servants in the Ministry and not at battlefield commanders. 

For Lord Neuberger, rights such as those embodied in the European Convention on Human Rights are fundamental to the rule of law, particularly in a time of ever-increasing government powers.  However, Lord Neuberger commented that reliance on the convention has rather hampered the development of the common law which was (and is) open to receive new ideas and concepts.

Here, by way of comment, it may be noted that the Human Rights Act 1998 opened up a new toolbox for lawyers to use and common law approaches  have perhaps been sidelined to some extent - (though it was necessary to use the Act to test human rights arguments).  The common law can be static unless and until an appropriate case arrives at a court with the authority to alter the law.  It is certainly not a dynamic mechanism for securing rights.

The Legal Wales Conference speech at Bangor University

Monday, 6 October 2014

Human Rights ~ a look at the Conservative Party proposals

Updated 7th, 9th, 13th and 16th October - Further links added

In this post I offer some comment on the Conservative Party's document "Protecting human rights in the UK"   It has attracted an enormous amount of critical comment already (links at the end).

There is clear dislike (even hatred) by certain Ministers of the European Convention on Human Rights (E Conv HR); the European Court of Human Rights (E Ct HR) and the UK's own Human Rights Act 1998 (HRA 98).  This attitude undoubtedly stems from the simple fact that the system of human rights protection acts as a check on Ministerial (executive) power.  It exists to protect the individual - ALL individuals - from the untrammeled power which the State might otherwise exercise.  It appears that Ministers think it is best to water down or remove the existing protections whilst, if they can, maintaining a facade of adherence on the international scale.

Saturday, 4 October 2014

Human Rights protection in Britain ~ 10 key points

The Conservative Party's document "Protecting human rights in the UK"has attracted a mass of comment.  It sets out the Party's plans for the human rights protection of the British people in the event that the Conservative Party is able to form a government in 2014.  A certain vision of the relationship between every citizen and the State is set out.  It is worth reminding ourselves of some legal facts as opposed to the "spin" adopted in some political and media quarters.

Ten key points:

1. The European Convention on Human Rights (E Conv HR) came into force in 1953 with the United Kingdom being among the first signatories.  British lawyers were involved in its preparation.   It was NOT forced on to the UK.

Liberal Democrats - Doing what works

The Liberal Democrat Party Conference is taking place in Glasgow - 4th to 8th October.  Their views on Criminal Justice policy are presented in a Policy Paper - Doing what works to cut crime

It's an interesting read.  How much of it will actually influence the course of a future government remains to be seen.  There is a possibility that yet another coalition might emerge from the 2015 general election.

On the Conservative Party's human rights plans, the Liberal Democrat Justice Spokesman (Simon Hughes MP) stated that - "“Liberal Democrats have always been 100% clear that we will not allow the Tories to take away the hard-won human rights of British people when in the UK or anywhere else in Europe" - see announcement

Sadiq Khan MP - the Labour Party Shadow Justice Minister - issued a statement criticising the Conservative Party plans for human rights though

Friday, 3 October 2014

Protecting Human Rights ! Don't make me laugh ....!

It is a huge pity that we must take the Conservative Party's document "Protecting human rights in the UK" seriously .......... but, we must!  A considerable number of notable bloggers and commentators have already offered their analyses of it (e.g. Liberty) and they are mostly impressed only by the fact that it is legally illiterate.

It is a plan to do anything but protect human rights.  Rather it is a plan - should there be a Conservative government with a sufficient majority to force this through Parliament - to enhance the power of the executive and to weaken protections given in law to citizens.  The British citizen could end up with less human rights protection in domestic law than the citizen of (say) Germany.  But wait !  It might even be that the English citizen will end up with less protection than those living under the devolved administrations of Scotland, Wales and Northern Ireland.  That's because those administrations may well choose not to accept this policy on behalf of their citizens.

A fuller look at this dog's dinner to follow ...............!

Thursday, 2 October 2014

David Cameron's speech ~ the "European" dimension

On 1st October, Prime Minister David Cameron delivered his speech at the Conservative Party conference in Birmingham.  As expected, the speech ranged over the whole gamut of government policy and contained a number of "promises" which may be delivered during the next Parliament if there is a Conservative majority government.   Cameron was clear enough in saying that much will depend on deficit reduction and it was plain that further spending reductions will be required.  Cameron referred to cuts of some £25 billion in the next two years.  The criminal justice system and other legal areas will undoubtedly have to carry their share of this.  See FULL text of speech.

As widely expected in legal circles, the speech contained headline statements about the European Union (EU) and the European Court of Human Rights (E Ct HR).

On the EU, Cameron stated that he would renegotiate Britain's position and, in particular, he would address the issue of free movement of workers.  He said:

" ... we’re going to go in as a country, get our powers back, fight for our national interest …… and yes – we’ll put it to a referendum …… in or out – it will be your choice…"

Cameron then turned his guns on the E Ct HR saying:

Tuesday, 30 September 2014

Conservative Party Conference Justice and Home Affairs speeches ~ a brief look.

Speeches today at the Conservative Party Conference in Symphony Hall, Birmingham included Mr Chris Grayling (Justice Secretary) and Theresa May (Home Secretary).

There is much in the speeches to comment about but I will reserve that for a later post.  Neither speech contained any major announcement about any plans relating to the Human Rights Act 1998 and it may be that this is being left for the Prime Minister's speech at the end of conference (Wednesday morning).

According to Grayling,

Monday, 29 September 2014

Northern Viewpoint ~ the Secretary of State for Justice has plans !

Updated 30th September with links to relevant blogposts

The Secretary of State for Justice has declared that "Europe will no longer rule our courts" and it is expected that he will reveal Conservative Party plans to scrap the Human Rights Act 1998 and to ensure that the European Court of Human Rights cannot "overrule" the Supreme Court of the UK - see The Telegraph 26th September - Chris Grayling: Europe will no longer rule our courts

Here is a Secretary of State who, along with his two immediate predecessors, has presided over the elimination of legal aid in vast areas of civil law and, in relation to criminal law, the High Court has recently ruled that one of his consultations was so unfair as to be unlawful (Solicitors Journal 19th September and see also Legal Business and the judgment of Burnett J).  The removal of legal aid from many family law cases is having a devastating impact on the lives of many children - (views of the Children's Commissioner - The Guardian 24th September).  His "privatisation" reforms

Thursday, 25 September 2014

Labour Party Conference ~ Speech by Sadiq Khan MP (Shadow Justice Secretary)

At the Labour Party Conference held in Manchester (20th - 24th September), the Shadow Justice Secretary delivered a short speech which may be read here.  One clear difference emerged from the stance, at least to date, of the Conservative Party.  This is that Mr Khan gave a commitment to human rights:

'We’ll block attempts to abolish the Human Rights Act – Labour’s Human Rights Act.

.... we won’t walk away from the European Convention on Human Rights.'

Mr Khan also said - ' ... let’s get the European Court working better.'

The speech was essentially headlines of that type and was lacking in detail.  It remains to be seen whether there will simply be maintenance of the human rights status quo or, alternatively, some measure of reform whilst remaining with the core of human rights law.

On the constitution,

Friday, 19 September 2014

Scotland voted NO

Updated 22nd, 23rd September, 25th and 26th September

The Scottish Independence referendum was held on 18th September.  The turnout was 84.5% and NO votes totalled 2,001,926 and YES votes totalled 1,617,989.  For more on the results see BBC News Scotland 19th September.    Independence was therefore rejected but, as mentioned in my earlier post, the status quo cannot remain though the historic Union will remain in place and major problems relating to membership of the European Union (EU)  and currency have been avoided. 

The Scottish people have been promised greater devolution of power and this must be delivered but the precise details of those powers remain to be thrashed out and time is relatively short given the General Election in May 2015.  However, it appears that

Wednesday, 17 September 2014

Scotland ~ the eve of the referendum

18th September 2014 - Referendum Day in Scotland on the question of independence from the remainder of what is now the United Kingdom of Great Britain and Northern Ireland.  "The Union" of the separate Crowns of Scotland and England came on 24th March 1603 when King James VI of Scotland also became James I of England.  However, political union of the two Kingdoms did not arrive until 1st May 1707 with the enactment, by what were then separate Parliaments, of the Union with Scotland Act 1706 and the Union with England Act 1707.   The Acts gave legislative force to the Treaty of Union agreed in July 1706.

'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain  ...........'

Monday, 8 September 2014

Ashya King (2)

Mr Justice Baker has handed down judgment in the wardship case of Ashya King - (see earlier post)

Judiciary website - Judgments and Orders

Baker J said that Portsmouth Council had acted "entirely correctly" and the parents had reached a treatment plan for Ashya which was "coherent and reasonable"  Ashya had been admitted to hospital for proton treatment and appropriate funding arrangements were in place.  Ashya was therefore no longer to be a ward of court.  The learned judge chose not to make any comment about the appropriateness of the European Arrest Warrant though he commented that it was not in Ashya's best interests for him to have been separated from his parents in such circumstances.

Friday, 5 September 2014

EU ~ Lisbon Treaty ~ the bloc opt-out and selective opt-back-in

"Whether EU measures covered by the so-called '2014 block opt-out decision' continue to apply to the United Kingdom and become subject to the jurisdiction of the Court of Justice from 1 December 2014 is a profoundly significant issue. Some—including the European Arrest Warrant—raise questions affecting public safety and security, as well as the protection of individual rights" - (First Joint Report from the European Scrutiny, Home Affairs and Justice Committee - 19th March 2014).

The UK government had the right under the Lisbon Treaty to opt-out of some 135 EU measures relating to justice and home affairs - (post of 19th October 2012).  They also had the right to select which ones to opt back into and it seems that the government has chosen to opt back into around 35 of those measures including the European Arrest Warrant which came to the forefront of the news this week in the Ashya King case. 

Tuesday, 2 September 2014

Ashya King

Update 5th September -  Judiciary - Court Order of 2nd September

Ashya King is a 5 year old boy who suffers from a brain tumour.  He was undergoing treatment at Southampton General Hospital.  According to an article in the Southern Daily Echo 29th August, Ashya was a "long term patient who was permitted to leave the ward under the supervision of his parents as part of his ongoing rehabilitation.  When the length of time he had been absent became a cause of concern to hospital staff ... they contacted police after a search of the site and attempts to contact the family were unsuccessful."  It appears that the parents were hoping to obtain a treatment (proton beam therapy) for Ashya's condition that is available in some European countries but not in the UK. 

The Police eventually obtained a European Arrest Warrant (EAW) (to which Part 3 of the Extradition Act 2003 applies) having discovered that Aysha had been taken, via France, to Spain.   Issues relating to "neglect" were reported to be a basis for the EAW but precise details of any alleged offence were not stated publicly.  Portsmouth Council also took out wardship proceedings in the High Court - see the Order of 29th August. In accordance with the EAW, the parents were arrested in Spain and held in custody.

Monday, 1 September 2014

Child abuse independent inquiry panel

Child abuse inquiry

On 7th July, the Home Secretary made a statement in Parliament on child abuse investigations.  

'I can now tell the House that the government will establish an independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by an appropriately senior and experienced figure. It will begin its work as soon as possible after the appointment of the chairman and other members of the panel.'

It was later announced

Rotherham ~ Sexual Exploitation of Children ~ the reports

Updated 3rd September

The last week of August saw an explosion of media comment regarding sexual exploitation* of children in the South Yorkshire town of Rotherham in the years 1997-2013 - see ITV Report finds shocking scale of abuse

The Jay Report:

The comment followed a report by Professor Alexis Jay OBE which was commissioned in September 2013 by the Chief Executive of Rotherham Metropolitan District Council - Independent Inquiry into Child Sexual Exploitation in Rotherham (1997-2013).

The Police and Crime Commissioner:

Much of the media comment demanded the resignation of the Police and Crime Commissioner (Mr Shaun Wright) - for example, The Guardian 29th August.  A number of national politicians also joined in these calls - (e.g. The Independent 28th August).  In 2005 Mr Wright (then an elected councillor) became Rotherham Metropolitan District Council's Cabinet Member for Children and Young People's Services.  The Jay Report notes that,

Friday, 22 August 2014

Serious concerns about British citizens fighting abroad

There is growing and serious concern about British nationals going abroad to take part in armed combat in countries such as Syria, Iraq etc.  There are political calls for the government to increase the use of powers that it has in this area to either withdraw passports or deprive an individual of British nationality (e.g. where the individual has dual nationality).  The law is complex.  The following links will be of interest:

British Nationality Act 1981 section 40 - Deprivation of Citizenship

Immigration Act 2014 section 66 - amending section 40 of the British Nationality Act 1981 - this came into force on 28th July 2014.

Parliament - House of Commons Library Standard Note - Immigration Bill: Deprivation of citizenship

Withdrawal of passports - Government statement of 25th April 2013

Previous post 5th February 2014 - Fighting abroad ~ is it against the law?

In  the event that