Tuesday, 30 November 2010

Late November News Items - 2

A report from the London School of Economics (LSE) argues that the law should be changed so that sex offenders can be permitted to adopt, foster or work with children - see LSE Report and The Guardian 30th November Afua Hirsch.  The report argues that indivdual cases should be considered on their merits and that a blanket ban is discriminatory.  Whatever the logic in this pathway of reasoning, it is perhaps a pathway which the government will be unlikely to follow.

However, in these areas the law tends to alter from time-to-time as public opinion changes though the courts do not seek to lead such opinion.  Certainly, the European Convention on Human Rights is viewed by Strasbourg as a living instrument and not one set at the date the Convention came into force originally.  In Re P [2008] UKHL 38 the House of Lords held that a ban in Northern Ireland on unmarried couples adopting was discriminatory. A recent case in the High Court (Administrative Court) considered the scheme under the Safeguarding of Vulnerable Groups Act 2006 - see R (Royal College of Nursing and others) v Home Secretary and Independent Safeguarding Authority [2010] EWHC 2761 (Admin).  Here the fact that persons were listed without being able to make representations was held to be a breach of Article 6 of the European Convention on Human Rights.

Statements made in accordance with the Criminal Justice Act 1967 s.9 are commonplace and allow mostly uncontroversial evidence to be admitted without the need to call a witness.  Over the years they must have saved thousands of hours of court time.  In Wood v DPP [2010] EWHC 1769 (Admin) a technical point was raised that the statement served on the defence was not absolutely identical in form to that received from the witness.  The only difference was the date on the documents.  The High Court had little truck with this argument.  In the past such technicalities were admired but they are now viewed as lacking merit and having no place in a modern criminal justice system.

For the law student - an interesting speech has been made by Christos Pourgourides (Chair of the Committee on Legal Affairs and Human Rights, Council of Europe) in which it is argued that some litigation could be prevented if national courts were to recognise clear trends in the Strasbourg Court's jurisprudence.  See the speech - "Strengthening Subsidiarity: Integrating the Strasbourg Court's case law into national law and judicial practice."  It is a forceful argument though the English judiciary is merely required to "take into account" such decisions - Human Rights Act 1998 s.2.  Full speech here .... article at ECHR blog.

Well done to the CharonQC blog which is in the running for an award from the American Bar Association - see here. The blog has started an interesting series of Podcasts about Legal Education - they are well worth listening to.

Finally, the UK Supreme Court is looking at moving towards saving masses of paper by introducing electronic document management - see Press Release.

Picture above - "Sheep in the Snow" - artist Joseph Farquharson 1846-1935.

Late November News Items - 1

Snow has arrived over most of the U.K. which is caught between a deep low pressure region over eastern Europe and a high pressure region out in the Atlantic Ocean.  This brings easterly / north-easterly winds which are invariably cold and the snow which comes with them is dry and large amounts can fall.

The "big" political story of the week has been about "Wikileaks" revealing the contents of thousands of diplomatic communications - see The Guardian 29th November "US Embassy Cables: A banquet of secrets."  .One matter revealed concerns what appears to be the US attitude to a request made by Gordon Brown when he was Prime Minister relating to Gary McKinnon who is wanted by the US for alleged "computer hacking" - Guardian 30th November.  At the heart of the case is the almost unbelievably unbalanced Extradition Act 2003 . There have been repeated calls for amendment of this Act so that it works on the same basis whichever way the extradition is to take place - see The Spectator 30th July 2009.  It beggars belief that any British government or any U.K. Parliament could have permitted such biased legislation to get on to the statute book.

The North London Coroner (Mr Andrew Walker) has rejected argument that he should now hold an inquest into the death of "Baby P" - The Independent 30th November.  The Coroner stated that all questions have already been answered by previous investigations by State agencies.  The Coroner is also reported as stating that even if he was wrong about the criteria for an inquest being met, a "coroner's inquest is not the best forum for such an inquiry."   [One is then tempted to ask - well why do we have inquests?]  The Baby P case is a tragic example of abysmal "parenting" coupled with failures by the Local Authority Social Services to detect and deal promptly with concerns - see BBC 26th October 2010.  The two Serious Case Review reports are available on the Department of Education website.

Peter Sutcliffe (labelled "The Yorkshire Ripper") is to have his case heard by the Court of Appeal.  He is arguing that he should not have to serve the "whole life tariff" as set by the High Court in July 2010.  He was convicted in 1981 of the murders of 13 women in West Yorkshire in the period October 1975 to November 1980.  He pleaded guilty to the attempted murders of 7 others.  The trial judge - Boreham J - recommended that Sutlciffe serve 30 years.  See the judgment of the High Court in July 2010 and also Law and Lawyers March 2010.

Addendum 1st December 2010:  Former Home Secretary David Blunkett has spoken about the Extradition Act 2003 - see The Guardian 1st December.  However, as far as one can see, he is not acknowledging the central criticism that the Act operates in an unbalanced way in relation to the USA. 

Monday, 29 November 2010

Legal Aid - a look at the Ministry's proposals for Civil Proceedings

On  Monday 15th November, the Ministry of Justice issued their consultation paper "Proposals for the reform of Legal Aid in England and Wales."  It is a lengthy document which seeks to go back to what are referred to as "first principles" so that funding is reserved for serious issues which, in the Ministry's opinion, justify the use of public funds. 

The modern legal aid scheme goes back to 1949 but the scope of legal aid has expanded considerably since the 1970s.  The Ministry's consultation presages a huge reduction in the scope of legal aid.  This is to be achieved by removing many types of case from legal provision altogether and by amending the financial eligibility limits.  The financial limits already exclude many from civil legal aid and this may be one reason why the general public may not be too bothered about further reductions.  Furthermore, even in those legally aided cases which remain, there will be strict control over fees payable.  This remainder of this post is confined to looking in outline at what the government considers should be within the scope of legal aid for the future but first it is neceassary to look at where we are at present.

The present civil legal aid scheme:

In considering the paper, it should be borne in mind that, under present rules, not everything is included within legal aid - see  Schedule 2 Access to Justice Act 1999.  Examples of "excluded services" are allegations of personal injury or death (except those caused by clinical negligence); allegations of negligently caused damage to property; conveyancing; boundary disputes; wills; trust law; defamation etc.  Furthermore, under present rules, services may only be funded "for an individual as part of the Community Legal Service if his financial resources are such that, under regulations, he is an individual for whom they may be so funded" (Access to Justice Act 1999 s.7).  Thus, there is a financial eligibility test based on disposable income and disposable capital.  Fuller details of the present legal aid arrangements may be read in "A Step by Step Guide to Legal Aid" which is published by the Legal Services Commission.

"Factors" used to decide the proposed scope of legal aid:

Whether or not to continue to provide legal aid in a particular area of the law has been considered in relation to 5 factors:

  • the importance of the issue - (that is, its importance on a spectrum of objective importance) - purely monetary claims are low on this spectrum;
  • the ability of claimants to be able to present their own case - it is interesting that the Ministry regards "inquisitorial" methods (e.g. as used at inquests) as being more likely to enable a claimant to present a case personally;
  • availability of alternative sources of advice or funding - e.g. whether "conditional fee agreements" are available or legal expenses insurance etc .  Legal aid is seen as a "funder of last resort."
  • availability of other routes to resolution of issues - e.g. use of mediation or referring cases to "ombudsmen" etc.
  • the government's European and international obligations.
Where will legal aid remain if the proposals go ahead? (Full details in the consultation Chapter 4 and annex F).
  • Asylum 
  • Claims against public authorities - subject to a revised test of "serious wrongdoing"
  • Claims arising from abuse or sexual assault
  • Community Care
  • Debt - if the home is at risk
  • Domestic Violence and Forced Marriages
  • Family mediation in private law family cases
  • Housing
  • Immigration cases involving detention and hearings before the Special Immigration Appeal Commission
  • International child abduction - includes Hague Convention 1980 cases etc.
  • Family maintenance cases with an international element
  • Mental Health cases
  • Public law - judicial review
  • Family "Public Law" cases - e.g. care proceedings
  • registration and enforcement of judgments under EU legislation
  • Family cases involving separate representation for a child - so-called "Rule 9.5 Guardian" cases
  • Certain other areas - see consultation paras. 4.109 - 4.144.
Proposals for more areas where legal aid will be excluded:

  • inquests - "legal help" will continue but the government considers that bereaved persons can participate in an inquest without legal help given that the proceedings are essentially inquisitorial
  • most tribunal hearings
  • ancillary relief cases in divorce
  • clinical negligence - though some cases may receive assistance under a separate funding scheme proposed for excluded cases
  • consumer and general contract cases
  • Criminal Injuries Compensation Authority
  • Debt where the home is not at risk
  • Education matters
  • Employment matters
  • Housing
  • Immigration where the person is not detained
  • Private law family cases not involving domestic violence - e.g. applications for "contact"; "residence" etc.
  • Welfare benefit cases
  • Certain other matters - see para 4.225
  • Cash forfeiture 
  • Upper Tribunal appeals
  • Tort and other general claims.
The above is by way of summary only.  There is a large volume of detail contained within the paper.  Also, a number of particular situations are addressed such as the question of exceptional funding (para. 4.263). The proposed scheme is a harsh cut back and it is easy to claim that alternatives are available such as using Law Centres but many of those services are struggling for survival in the present climate.  It is also easy to say things such as - "We consider that legal aid for advocacy before most tribunals is not justified given the ease of accessing a tribunal, and the user-friendly nature of the procedure."  The reality for many people is that appearance at any form of legal proceedings is an ordeal.

An interesting post appears on the Head of Legal Blog written by barrister Carl Gardner.  His argument is well worth reading as are many of the interesting comments made by readers of the blog.  He sees the need for more fundamental reform of legal proceedings so that they are simpler and more accessible.  He concludes - "If the coalition allows legal business to carry on as usual while cutting legal aid ....last Monday will have been a bad day. But if this signals the start of major reforms to move us from an expensive, partly subsidised legal system to one that is cheap, genuinely accessible to anyone regardless of means, and funded disproportionately by its rich users – then last Monday will have been a bad day for legal aid, and a good one for law."  Merely slashing legal aid whilst leaving everything else untouched will not prove to be acceptable.

Primary legislation will be needed to bring about most of the changes.  They are therefore unlikely to take place until 2012.  See also the Consultation on Litigation costs (Jackson Review) - here and the full consultation paper may be seen here.

Addendum 2nd December:  Read "EU to the rescue on legal aid" - Law Society Gazette 2nd December.

Saturday, 27 November 2010

Garrow's Law: Legal History

English law has a long and fascinating history.  As a subject, it is largely ignored in modern legal education.  This is a pity since there are many lessons to be learned.

The BBC Television series "Garrow's Law" is proving to be very popular.  It is based on criminal trials which took place at The Old Bailey in the 18th century and highlights both the harshness of the system and the unfairness of the trial processes of the day.  The Old Bailey Online website makes available a fully searchable, digitised collection of all surviving editions of the Old Bailey Proceedings from 1674 to 1913, and of the Ordinary of Newgate's Accounts between 1676 and 1772. It allows access to over 197,000 trials and biographical details of approximately 2,500 men and women executed at Tyburn, free of charge for non-commercial use.

A defendant (formerly referred to as "the prisoner at the bar") was not permitted to give evidence on his own behalf until the Criminal Evidence Act 1898.  Today, the defendant may not be compelled to give evidence but is competent to do so - (here).  However, failure to testify might result in inferences being drawn and these might be adverse to the defendant.  The "right to silence" - whilst technically remaining in place - has been abrogated to a considerable extent: Criminal Justice and Public Order Act 1994 ss. 34-39.


A right of appeal from conviction by a jury came with the creation of the Court of Criminal Appeal by the Criminal Appeals Act 1907.   This court superseded that Court for Crown Cases Reserved which could only consider points of law.   It was through cases such as Adolf Beck and George Edalji that the need for an appellate court was shown to be necessary.   The Court of Criminal Appeal existed until 1966 when the modern Court of Appeal with its Civil and Criminal Divisions was created.

Historically, the speedy and almost cursory nature of trials was remarkable and the harshest of punishments were handed down.  Many crimes were punishable with sentences such as death, transportation etc.  Evidence was not tested to anything like the extent applicable today.  As an example, in 1849, an uneducated farm labourer James Griffiths (aged 19) was tried for murder of Thomas Edwards at the Brecon Assizes before Mr Justice Erle and a jury.  The trial lasted less than a full day, Griffiths was undefended and so the very brief evidence of four prosecution witnesses was not tested in any detail.  Erle J offered Griffiths the opportunity to say something to the jury.  Griffiths replied that he did not know what to say - "I leave the case in your hands, my Lords."  The jury took a mere 10 minutes to find him guilty.  He was publicly hanged outside Brecon jail in April 1849 before a large crowd which gathered for the occasion.  (The last public execution in England was in 1868; the last executions in August 1964. The death penalty for murder was abolished in 1965 and the death penalty was finally removed from the law by the Crime and Disorder Act 1998 s.36 - in force 30th September 1998.  The European Convention on Human Rights - Protocol 13 -  prohibits the death penalty in all States which are parties to the convention).

Even in modern times, miscarriages of justice are possible.  However, great care is taken in the process of deciding whether to prosecute and, if so, on what charges.  Crown Court trials entail extensive examination of the evidence.  The draconian sentences of yesteryear no longer exist.  There is an appeal process and there is also the Criminal Cases Review Commission which was set up after the Royal Commission on Criminal Justice considered the aftermath of the Birmingham Six and certain other cases.  Some progress has been made but the quest for justice must always continue and there is little doubt that the rules of evidence have been rebalanced in favour of the prosecution - e.g. admission of "bad character" evidence and a more permissive regime relating to hearsay evidence - Criminal Justice Act 2003.

Addendum 1st December 2010:  For a view that the Criminal Cases Review Commission is a failure - see The Guardian 1st December 2010. The article is by journalist Bob Woffinden who has written extensively on miscarriages of justice.  He criticises the "success" statistics claimed by the CCRC.  He condemns them as "characterised by puisllanimity and procrastination." 

Wednesday, 24 November 2010

A breathtaking Bill of which even Henry VIII would have been proud - No. 2

On 5th November, Law and Lawyers looked at the Public Bodies Bill and the enormous powers - (so called Henry VIII clauses) - which it would hand to Ministers - see Law and Lawyers 5th November.   The Bill is now receiving rather a hard time in the House of Lords which is reluctant to empower Ministers in this way.  It has been recognised that the Bill would threaten the true independence of many of the remaining public bodies which would be performing their duties whilst looking over their shoulders knowing that a Minister might just sweep them away.  See Joshua Rozenberg writing in The Guardian 24th November and the UK Human Rights Blog 24th November 2010.  There is probably little doubt that the Bill will survive the parliamentary process but the House of Lords is demonstrating very well its role as a "revising chamber" and the powers eventually granted to Ministers will be circumscribed by greater safeguards.

European Union Bill - a further look .....

This blog recently looked at the European Union Bill presented to Parliament on 11th November 2010.  This post refers to various Clauses in the Bill as it stood on that date.  As the Bill passes through Parliament the numbering may change.

The Treaties:  The two principal treaties are now the Treaty on European Union (TEU) and and the Treaty on the Functioning of the European Union (TFEU) - see Official Journal.

TEU Art. 12 states that "National Parliaments contribute actively to the good functioning of the Union" in ways set out in Art. 12 (a) to (f).  Art 12 (d) states - "by taking part in the revision procedures of the Treaties, in accordance with Art. 48 of this Treaty."


Amending the Treaties:   TEU Art. 48 sets out two methods for amending the Treaties.

"Ordinary Revision Procedure" detailed in Art. 48(2) to 48(5).  This is used for the major changes (e.g. the Lisbon Treaty) which was negotiated by Heads of Government and the detail developed through an Inter-Governmental Conference (IGC).  Such major treaty revisions are fairly rare events.

"Simplified Revision Procedure" set out in Art. 48(6) which applies only to Part 3 of the TFEU (Internal policies and action of the European Union).  Nevertheless, because of the sheer scale of TFEU Part III, the simplified procedure can be applied to numerous areas.

TFEU Part III:  This is concerned with the "Union policies and internal actions."  That phrase covers some 24 areas in which the Union has some form of "competence" - (e.g internal market, free movement of goods, agriculture and fisheries, free movement of persons, services and capital, transport etc.)  The precise scope for the EU to act varies according to the subject-matter in question.  A number of the areas are particularly contentious within the U.K. - e.g. Title V (Area of Freedom, Security and Justice); Title VII (Common rules on competition., taxation and approximation of laws) or Title VIII (Economic and Monetary Policy).

In addition to the ordinary and simplified revision procedures, the treaties contain various articles - often referred to as passerelles (or, less elegantly, as ratchet clauses) -which permit various decisions to be made.

European Union Bill:  The basic aim of the Bill is to alter the constitutional arrangements used by the U.K. before treaty revisions may be ratified or before certain european decisions are agreed to or approved.  The Bill should increase the involvement of the UK Parliament and, to an extent, the electorate in Treaty amendments.  What follows is a necessarily brief look at the key clauses of the Bill.

Under Clause 2 of the Bill, a treaty amending or replacing TEU or TFEU may not be ratified by the UK unless (a) a Ministerial statement (complying with Clause 5) relating to the Treaty is laid before Parliament; (b) the treaty is approved by Act of Parliament and (c) the "referendum condition" or the "exemption condition" is met.  Clause 4 sets down cases where a treaty will (usually) "attract" a referendum.   Clause 5 deals with the Ministerial statements.   The Ministerial statement has to state, together with reasons, whether a treaty comes with Clause 4.  The "exemption condition" arises where the Act providing for the approval of the Treaty states that the Treaty does not fall within Clause 4.

Clause 3 of the Bill is concerned with approval by the UK of European Council decisions under Art. 48(6).  UK Ministers may not confirm approval of such decisions unless Clause 3 is complied with.  This has similarities with Clause 2.  There has to be a statement (complying with section 5) stating Ministerial opinion whether the decision comes with Clause 4 (i.e. whether it attracts a referendum).  The decision must be approved by Act of Parliament.  Further, the "referendum condition" or the "exemption condition" or the "significance condition" must be met.
 
The "significance condition" applies only where the Act providing for approval of a decision states that (a) the decision falls within Clause 4 only because it makes provision of the kind mentioned in Clause 4(1)(i) or (j) and (b) the effect of that provision in relation to the UK is not significant.  Clause 4(1)(i) states:-

(i) the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body";

 and (j) states:

"the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom."

Just what is and is not significant is likely to prove to be a source of considerable difficulty.  Some might argue that ANY extension of EU power is significant.

Clause 6 sets down a list of european decisions which will require approval by referendum / Act of Parliament.  Key examples in the list include TFEU Art. 86(1) - "European Prosecutor's office" and TFEU Art. 140(3) - the European Currency ("euro").

Clause 7 applies to certain european decisions  which will have to be approved by Act of Parliament.  An example here is a decision to increase the size of the European Commission.

Clause 8 is concerned with decisions taken under TFEU Art. 352 and the clause will prevent Ministers voting in favour of or otherwise supporting an Article 352 decision unless certain requirements are met.  Art. 352 enables the EU to adopt measures in certain cases where the Treaties do not otherwise provide a specific authority to act.


Clause 9 - deals with approval of decisions coming within Title V of of Part 3 of TFEU concerned with the Area of Freedom, Security and Justice.

Clause 10 - introduces parliamentary control of certain decisions which will not require approval by Act of Parliament.  Examples here are TFEU Art. 56 decisions (relating to restrctions on non-EU nationals to provide services within the EU) or TFEU Art. 252 (Number of Advocates-General in the Court of Justice of the EU).

Clause 11 - deals with who may vote in a referendum.  This is basically those entitled to vote in a British general election.

Clause 12 - If a referendum is held and it relates to two or more treaty revisions or decisions then there will have to be a separate question on the ballot paper for each one.

Clause 13 - addresses the role of the Electoral Commission in promoting public awareness of any referenda and also of the subject-matter.

Clause 14 - deals with some consequential amendments to legislation and repeals.

The Bill contains some other material - including Clause 18 - discussed in the earlier post on this blog.

It remains to be seen whether these clauses will, if eventually enacted, ensure that there actually is a referendum in most instances where the U.K. is to cede power to the EU or whether, in practice, Ministers will seek to invoke, for example, the "exemption condition" or perhaps the "significance condition" where it is applicable.  The Explanatory notes published along with the Bill claim that Ministerial statements under section 5 will enable a member of the public to seek to challenge in the courts the judgment of the Minister as provided in the statement.  However nice that might be in theory, the hypothetical member of the public would, in practice, face massive costs and maybe insuperable obstacles.  The proper place for challenges to such Ministerial opinion must surely be in Parliament itself.  It is to be hoped that Parliament will have the mechanisms in place to ensure that this is possible.  Parliamentary scrutiny of European matters will need to be enhanced.

Addendum 25th November:  An interesting post appears on barrister Carl Gardner's blog "Head of Legal" - see "The EU Bill in the European Scrutiny Committee"

Monday, 22 November 2010

A few news items - Monday 22nd November 2010

The government has lost its application for judicial review of the July 7/7 Inquest ruling that "interested persons" (usually relatives of the deceased) could not be excluded from the inquest even when the interests of national security are at stake even though the general public may be excluded.  The Guardian 22nd November 2010. The question for the High Court was whether the Acting Coroner (Lady Justice Hallett) made a legally correct ruling on this point.  Judicial review is not concerned with the question of whether "interested parties" ought to be excluded when such evidence is to be presented.  The Secretary of State for Justice has already announced that there will be a "Green paper" in 2011 which will contain proposals to address the whole issue of legal proceedings and national security issues.  The Guardian has been taking a look at the speech made by Lord Justice Gross - see Guardian 22nd November.  See also UK Human Rights Blog which discusses this matter.

It seems that there will be a further appeal in the Paul Chambers case - see here.  He was convicted - under the Communications Act 2003 s.127 - for "tweeting" in relation to Doncaster (Robin Hood) Airport being closed by snow in the early part of 2010.  His "tweet" said - "Crap! Robin Hood Airport is closed. You've got a week and a bit to get your s*** together, otherwise I'm blowing the airport sky high!"  However frustrated Mr Chambers may have been, his "tweet" was ill-advised.  Nevertheless, did it amount to the offence charged?  The key case on s. 127 is  DPP v Collins [2006] UKHL 40.    At a first reading of s.127 it appears that no "mens rea" (i.e. guilty state of mind) is required.  However, in DPP v Collins the House of Lords held otherwise when considering s.127(1)(a) - "A person is guilty of an offence if he - (a)  sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or .... etc.  Thus, on the basis of DPP v Collins, it ought to be for prosecution to prove (beyond a reasonable doubt) that the accused intended his "tweet" to be of a menacing character.  So far, a District Judge (Magistrates' Court) and, later, a Crown Court Judge (sitting with magistrates) have found that the prosecution have so proved the offence.  We'll see how this develops.  Meanwhile see New Statesman.

Turning to the coalition government, it is interesting that The Guardian has been "tracking" the various promises made by the Conservative and Liberal Democrat parties prior to the election.  Of course, it is not unusual for some election promises to have to give way in the face of the realpolitik which faces a government.  Nevertheless, the credibility of a party depends to some extent on whether it is able to deliver its promises once elected.



It is now 47 years since this happened.  In some ways, it only seems a few moments ago.

Saturday, 20 November 2010

TWTWTW ...

This has been a very busy week in the law.  The "big" announcements were those relating to reform of legal aid and costs and the settlement of the Al Rawi litigation.  In the latter case, the government preferred to settle the case and pay undisclosed (but very probably large) sums to the claimants rather than have further evidence heard in the courts relating to allegations of complicity in torture.  The present government clearly wishes to "draw a line under" and "move on from" these detainee legacy issues.  The taxpayer will not get to know even the total sum paid since the whole matter is under the wraps of a legally binding confidentiality agreement.

The Secretary of State for Justice then announced that a "Green Paper" will be issued in 2011 which will address security issues relating to legal proceedings and will ensure that things remain as secret as possible.

The Secretary of State for Justice went along to the Joint Committee on Human Rights and gave evidence - see Democracy Live.  There is an interesting though lengthy video of the proceedings.

The Home Office announced some new arrangements relating to Stop and Search and claimed that thousands of Police hours will be saved as a result - see here

Lord Justice Leveson delivered a speech about the use of Expert Evidence (here) and Lord Justice Gross spoke about - "National Security and the Courts."  For a news article about Lord Justice Leveson's speech see Telegraph 19th November.

The wedding of HRH Prince William and Kate Middleton is to take place in 2011.  This produced a certain amount of comment about "pre-nuptial agreements."  Would they actually require one?  On this, see The Guardian - AfuaHirsch's Law Blog.

The Lord Chief Justice - in a rather "dramatic" statement - has said that "tweets and the internet" could lead to the end of the jury system - see The Guardian 19th November.   The present Lord Chief Justice is a supporter of trial by jury and he is clearly very concerned about matters such as jurors doing their own internet research or "tweeting" about the case.

The Solicitors Regulation Authority, Bar Standards Board and Institute of Legal Executives have commenced a joint review of legal education.  The review comes in the wake of concern over the high number of students entering the profession compared to the number of training places.  See Solicitors Journal.  

Perhaps the least noticed story of the week was the important Redfern Report.  Nothing is more distressing than the death of a loved one.  To find later that the deceased's organs were removed with out the knowledge of consent of the family is quite appalling.  This happened in relation to workers in the nuclear power industry in the period 1955-1992 but the practice did not come to light until 2007.  An inquiry under the Chairmanship of Michael Redfern QC investigated the matter and a lengthy report is available.  The full report runs to some 693 pages - see here. The report may be seen via the Redfern Inquiry website.  Further information at DECC.

The picture at the top of this post is the team which produced "That was the week that was" (or TW3) back in 1962-3.

Friday, 19 November 2010

Police Sergeant Mark Andrews acquitted on appeal

On 7th September, Police Sergeant Mark Andrews was convicted at Oxford Magistrates' Court - (a Deputy Distrtict Judge (Magistrates' Courts) heard the case) - of  assault occasioning actual bodily harm - see the earlier post.  He has now been acquitted on appeal to the Crown Court - The Guardian 18th November 2010. It appears that the Police disciplinary hearing will still take place - Wiltshire Police - though the Police spokesman said that this is "whilst respecting the decision of the court today in upholding the appeal."

Interestingly, the judge presiding at the appeal in the Crown Court - (Mr Justice Bean) - is reported as having said to Andrews that "he could have done things better."  The remarks of judges ought to be published in full so that the public can see the reasoning.  It is not clear from any media reports on what basis the judge said what might be regarded as a pre-emption of any disciplinary hearing.  The judge will have sat with two magistrates as is usual in appeals to the Crown Court from the Magistrates' Courts.

At the time of the conviction, the BBC published some video of the event - see BBC.

Addendum 10th November 2012:

The High Court ordered the reinstatement of Mark Andrews - Daily Mail 10th November 2012

Thursday, 18 November 2010

Legal Aid Reform: reactions to government proposals

‘Mediation is a complement to justice. It cannot ever be a substitute for justice.’

The government has launched its consultations on reform to legal aid and costs in civil litigation - see  Ministry of Justice.  The Law Society Gazette (18th November) states a view that the very principle of legal aid is now on trial.  A further article claims that legal aid is facing devastation - see here.  The government's proposals are severe and, some would say, brutal given that many areas of legal concern to thousands of families will be removed altogether from legal aid.  To quote from the Gazette article:


"The categories proposed to be cut from the legal aid scheme are: private law children and family cases where domestic violence is not present; education; immigration where the individual is not detained; clinical negligence; ancillary relief cases where domestic violence is not present; employment; welfare benefits; debt matters where the client’s home is not at immediate risk; consumer and general contract; Upper Tribunal appeals; tort claims; legal help for Criminal Injuries Compensation Authority applications; and some housing matters."

Underlying some of the government's thinking is a view that alternatives to court proceedings ought to be used - (e.g. see speech by Jonathan Djanogly 18th November).  Such "alternative dispute resolution" (ADR) processes have their place - usually as a complement to going to court.  However, for numerous reasons, ADR may not work and, very often, appropriate services are not readily available and are not necessarily as cheap as some appear to think.  It would also be elementary economics to suggest that if there is greater demand for such services the costs will rise.

The Gazette also reports Lord Neuberger - the Master of the Rolls - as stating:


‘If we expand mediation beyond its proper limits as a complement to justice, we run the risk of depriving particular persons or classes of person of their right to equal and impartial justice under the law.’

Combining the cuts to legal aid with other reforms coming under the Legal Services Act 2007 makes for an exceptionally uncertain future for not only the legal profession but also for access to justice generally for the vast majority of the population who are not lawyers.

Lawyer Watch is the blog of Professor Richard Moorhouse - Professor of Law at Cardiff University.  He has published some thoughts on the legal aid cuts and makes the very pertinent point that solving some problems at an early stage can prevent more serious issues later.  Please read his article here.

Wednesday, 17 November 2010

The Al Rawi case settlement: security and the justice system

The government has now entered into a mediated settlement of litigation which alleged British complicity in torture and abuse.  The government hopes that the settlement will "draw a line under" the matter - see The Guardian 16th November 2010.  The Court of Appeal (Civil Division) judgment in the "Al Rawi" case is here and it was on appeal from a decision of Silber J - here.

The statement by Kenneth Clarke (Secretary of State for Justice) may be seen here - Parliament - Guantanamo civil litigation settlement statement.   Mr Clarke emphasized that the government does not condone torture and does not ask others to do it on our behalf.  The settlement was achieved by mediation and is subject to a legally binding confidentiality agreement.  The alternative to this would have been protracted and extremely expensive litigation and, so it was argued, would have been damaging to Britain's security interests if various matters were revealed in court.

A further point made by Mr Clarke was that the government is planning to publish a "green paper" in 2011 which will contain proposals aimed at dealing with issues of national security when raised in civil proceedings, inquests or inquiries.  A system is being planned in which intelligence material that is relevant to a case would be seen and heard in secret hearings and withheld from interested parties and their lawyers.  This would seem to envisage a further extension in English law of the use of "special advocates." See  Guardian 16th November 2010.  The Green Paper would also contain proposals relating to oversight mechanisms of intelligence work.


In July 2010, the Prime Minister announced an inquiry under the Chairmanship of retired Lord Justice of Appeal Sir Peter Gibson - see here.   At the time, there was a view that someone else should have been appointed as Chairman given that Sir Peter is the Intelligence Services Commissioner and might therefore be seen as, to an extent, too close to the intelligence services.  It is said that the inquiry cannot commence its work until the Metropolitan Police reach a decision relating to possible criminal charges against an MI5 officer and an MI6 officer.** (see Note below) 


Lord Macdonald (the former director of public prosecutions) has said in a speech to the Royal United Services Institute conference on intelligence oversight , that members of the Intelligence Services Committee should be appointed by parliament rather than the prime minister. It should also question MI5 and MI6 on operational matters.  This proposal ought to be taken seriously by the government.  A further speech to this conference was delivered by Lord Justice Gross - "National Security and the Courts."

Then there is the on-going inquest into deaths arising from the 7th July Bombings in London.  The Acting Coroner (Lady Justice Hallett) ruled that MI5 officers could not give evidence in secret - see BBC 3rd November.  The Home Secretary announced that a judicial review of that decision would be sought - see BBC 9th November

Finally, Amnesty International has issued a report which criticises European institutions for failing to hold countries such as the UK to account for alleged involvement in rendition and secret detention - see "Open Secret: Mounting evidence of Europe's complicity in rendition and secret detention."

For the near future, it seems unlikely that a line can truly be drawn under any of these important issues even if the government has reached an expensive (and controversial) settlement in the Al Rawi case.

** Note: Late on 17th November it was announced that there is "insufficient evidence" to proceed against an MI5 officer - see The Guardian.   The statement from the CPS is very brief.

Tuesday, 16 November 2010

A website "taken down"

The Fitwatch website has been "taken down." - see Computer Weekly 16th November 2010.  Quite on what legal basis this has been done is not entirely clear at the moment.  Law and Lawyers does not support either violent protest or the giving of possibly dubious "advice" offered via a website to those who may have been involved in the violence at Millbank, London.  Nevetheless, a right to peacefully protest and to comment about the actions of the State - including the Police - is a fundamental part of democracy.  Of course, an element were far from peaceful but it appears that the vast majority who took part in the main demonstration acted entirely peaceably.

The issue of funding of university education is a matter of massive public concern and if the country is to have any future success then proper funding of universities is essential.  The massive increases in fees are more than likely to deter many from pursuing their hope of a degree and the country may well be, in the longer term, the poorer for it.  A further source of grievance is that the arrangements for funding of degree courses varies across the U.K. with Scotland being particularly generous to students - see BBC 10th October.  This inequality between the constituent parts of the U.K. is going to be unsustainable.

The Guardian 16th November 2010 

and for an item on the possible effect of increasing student fees see The Guardian 18th November.

Freedom of expression is an important right contained within the European Convention on Human Rights Article 10.  It is not an absolute right since certain restrictions apply - Article 10(2).  Any restriction on the right must be prescribed by law  and must be necessary in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime , for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Legal News Roundup - Tuesday 16th November

Guantanamo Bay - the government has been keen to settle the litigation brought by a number of men who allege that British government agencies were involved in their "extraordinary rendition" and alleged torture.  Immensely costly litigation has been on-going for a considerable time with the government seeking "closed court hearings" and the use of "special advocates" in order to prevent material getting into the public domain.  The Court of Appeal (Civil Division) rejected those procedures - see Al Rawi and others v Securuty Service and others [2010] EWCA Civ 482 on appeal from a judgment of Silber J - see [2009] EWHC 2959 (QB).  It now appears that an out of court settlement -said to amount to millions of pounds - has been reached.

This settlement is bound to be highly controversial and, of course, occurs at a time when most things related to the law are coming under severe financial pressure.  Whatever the degree of suspicion about governmental involvement in these matters, the allegations have not been formally proved.  Also, it is clear that the government does not wish material to be adduced in open court hearings which, so it is claimed, would harm the workings of the intelligence community.  Settlement of the claims will also allow the Inquiry - (under the chairmanship of Sir Peter Gibson) - announced earlier this year to commence its work - see here.

See also UK Human Rights blog (16th November) re the Al Rawi litigation.

Amnesty International Report -  Amnesty has issued a report which criticises European institutions for failing to hold countries such as the UK to account for alleged involvement in rendition and secret detention - see "Open Secret: Mounting evidence of Europe's complicity in rendition and secret detention."

Legal Aid - the Ministry of Justice has issued two consultations.  One is on reform to Legal Aid: the other relates to the Jackson Review of costs in civil litigation.  See Ministry of Justice.  This is a big topic which will require further analysis.  See also the excellent comments on the CharonQC blog - "Justice bloodied and probably bowed."   For an early view of the detail, please see "Of Interest to Lawyers."  A further and interesting view is that of the UK Human Rights Blog - "Do we spend more on legal aid than other countries." and "Legal Aid cuts, the aftermath."
Further views on the Solicitors Journal 15th November.
.
Stop and Search powers - The Guardian reports controversy over guidance relating to the issue of "race" and whether it may be used as a basis for stopping and searching a person - see The Guardian 15th November.

Parliamentary Voting System and Constituencies Bill - writing in The Times 15th November 2010, Lord Lipsey (a Labour peer and former member of the Jenkins Commission on electoral reform) criticises this Bill which, he argues, will alter the shape of our democracy for ever.  He does not deny the need for some reforms but sees the Bill as an entirely "partisan" manipulation of Britain's voting system.  For more information see Law and Lawyers.  He was particularly scathing about the fact that constituency boundaries will end up ignoring traditional boundaries with, for example, some constituencies crossing county boundaries.  "The natural links that make British constituencies a jewel in our constitutional arrangements will be torn asunder."  He also makes the point that it would be preferable for changes with constitutional significance to be weighed by an impartial commission first.

Addendum 16th November: Whilst the government is planning to cut legal aid here at home, it appear that there is some money to spend on a tribunal in Lebanon - see Foreign Office.   William Hague is reported as to the Lebanese Prime Minister: "... the UK is committed to supporting the search for justice within Lebanon."

Saturday, 13 November 2010

R v Frances Inglis: considerations far removed from ordinary murder

The case of Frances Inglis is one which contains, in the words of the Lord Chief Justice, "powerful considerations far removed from the ordinary case of murder."

In January 2010, Frances Inglis was convicted at the Old Bailey of the murder (in 2008) of her severely disabled son, Thomas.  It was a 10:2 verdict.  She was sentenced to the mandatory sentence of life imprisonment with the judge specifying 9 years to be served before she was eligible for parole.  Her appeal against conviction has been dismissed by the Court of Appeal (Criminal Division) - Lord Judge LCJ, Irwin and Holroyde JJ but the appeal against sentence was partially allowed to the extent of reducing the minimum term before parole may be considered to 5 years.  The Court of Appeal's judgment should be read fully in order to grasp the tragic situation in this case - see R v Frances Inglis [2010] EWCA Crim 2637

The court stressed that killing out of motives of mercy nevertheless remained murder - see para. 37 of the judgment.  There was no evidence that Frances Inglis had lost her self-control.  Quite the reverse: she killed him with "scrupulous and meticulous care."

A partial defence of "diminished responsibility" had not been put forward and it is for the defendant to raise it.  This is one of the surprising features of the case and is referred to at para 42.  The judges had not seen any medical report arguing for such a defence.  Given Frances Inglis' state of mind in the years prior to 2008, the Court of Appeal clearly wondered why this defence had not been raised but it appears that Inglis was desperate to have all the facts relevant to her son's accident and treatment to be aired in court and she could only do that by pleading not guilty.  The Lord Chief Justice stated - "We found that difficult to follow, but it did not appear that any advantage would accrue from any further investigation into the appellant's thinking on this topic."


Having upheld the conviction, the court considered the Criminal Justice Act 2003 Schedule 21 which sets out factors to be considered by the judge in fixing the tariff in murder cases.  In a case such as this, the Schedule presented a problem given that a vulnerable victim is stated to be an aggravating feature whereas it is only because the victim is vulnerable that the defendant chose to act out of motives to relieve suffering.  The court held that factors 10(a) - "a significant degree of planning or premeditation", 10(b) - "the fact that the victim was particularly vulnerable because of age or disability" and 10(d) - "the abuse of a position of trust" should not be taken to aggravate "a murder committed by an individual who genuinely believes that her actions in bringing about the death constitute an act of mercy."  Her tariff was reduced to 5 years.  After that she may be released on licence but release is a matter which the Parole Board will have to consider.  It is not inconceivable that she might actually remain in custody for longer.

The Law Commission's Report on "Murder, Manslaughter and Infantcide" [2006] Law Com 304, Part 7 discusses "mercy killing."  However, the Commission recommended that fuller public consultation was required.  They referred to 3 reasons why it is arguable that it would be more satisfactory if "mercy killing" were to become a partial defence:

1. For a genuine mercy killer, a life long licence is neither necessary nor appropriate;
2. If there is a dispute of fact about a defendant's motive, it might be thought better that the jury, rather than the judge should decide the issue.
3. A partial defence would avoid the practice of dressing up rational mercy killing cases as diminished responsibility.

Thursday, 11 November 2010

European Union Bill

The government has introduced a European Union Bill into Parliament.  The Bill may be read here and there are Explanatory Notes.  Basically, the Bill seeks to bring in certain restrictions which must be complied with before the U.K. agrees to the European Union either gaining or amending its powers.  In some instances there will have to be a referendum.

European Union law has become a complex and labyrinthine structure - (see here for basic information).  However, the U.K. entered "Europe" as a result of the Economic Communities Act 1972 which came into force on 1st January 1973.  The U.K. is a member ONLY by virtue of the 1972 Act of Parliament.

It is therefore a little surprising to see Clause 18.  This states that -  "It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom."

Clause 18 is described in the Explanatory Notes as a "declaratory provision" included in the Bill to address concerns that the doctrine of Parliamentary Sovereignty may in the future be eroded by decisions of the courts.  According to the notes, the clause seeks to provide clear authority which could be used to counter arguments that EU law has become a "higher autonomous legal order" somehow embedded in the U.K.'s legal system.  The explanatory notes go on to point out that in the 'Metric Martyrs" case (Thoburn v Sunderland City Council 2002) attempts were made to argue precisely that though the High Court rejected the argument.


The Bill is very convoluted and such Bills rarely make for good law.  Nevertheless, it will generally enhance the involvement of Parliament with EU matters which have often been more or less left to Ministers.  In those cases where a referendum is required it will enhance the involvement of the people with EU affairs and should do a lot to improve understanding of how the EU operates. 

An attempt will be made to unravel some the Bill's mysteries in the near future and, no doubt, other commentators will do likewise.

See Foreign and Commonwealth Office - factsheets can be downloaded
See The Guardian 11th November.

Addendum 12th November:  "Bloggers" have burned the midnight oil -- see:


Head of Legal ............. UK Human Rights Blog .............. Of Interest to Lawyers

All are broadly agreed that Clause 18 is - legally speaking - unnecessary.  It is there for political reasons.  Earlier this year, the Head of Legal blog had expressed concerns that some sort of "sovereignty" clause might actually come to be interpreted as affecting Parliamentary sovereignty itself with the risk that it might be viewed as somehow limiting that sovereignty.  This would not appear to be the case with Clause 18.

It is also worth noting existing law that new treaties may only be ratified following an Act of Parliament if the new treaty amends certain other European treaties - see European Communities (Amendment) Act 2008 section 5.  Further, parliamentary approval is already required for certain decisions - see section 6.

Addendum 15th November: An interesting article by Joanthan Goldsmith (Secretary-General of the Council of Bars and Law Societies of Europe) appeared in the Law Society Gazette.  Mr. Goldsmith discusses how, after the Lisbon Treaty, national parliaments are supposed to be more involved in EU matters.  He concludes that the House of Lords - for all its democratic deficit - is doing a good job in this area.  Read the article here.

Remembrance

The 11th November in the United Kingdom is Remembrance Day.  This date was chosen because on 11th November 1918 an Armistice was signed with Germany.  Since World War 1, the United Kingdom has been involved in World War 2 and in numerous other military campaigns including, very recently, controversial involvements in Iraq and Afghanistan.  World War 2 brought about a recognition that human rights need to be recognised and protected.  The Universal of Declaration of Human Rights and the European Convention on Human Rights are attempts to achieve such recognition and protection.

Eleanor Roosevelt asked - "Where do human rights begin?"  Her answer was - "In small places, close to home - so close and so small that they cannot be seen on any maps of the world.  Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works.  Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination.  Unless these rights have meaning there, they have little meaning anywhere.  Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world."

Today, let us think of those who have lost their loved ones in war.  In the words of Robert Burns - "A mother's lament for the death of her son" -

Fate gave the word, the arrow sped,
And pierc'd my darling's heart;
And with him all the joys are fled
Life can to me impart.

Wednesday, 10 November 2010

Parliamentary Privilege and the expenses claims

The Supreme Court of the U.K. has ruled that parliamentary privilege does not protect David Chaytor, Eliot Morley and Jim Devine from being tried in the Crown Court in relation to expenses claims they submitted to the parliamentary authorities.  The court's reasoned judgment is to be published later.  See Supreme Court announcement and  The Independent 10th November.

The Solicitors Journal also covers this story.

Law and Lawyers has previously looked at this case.  Please see "Parliamentary Privilege and the expenses claims - 9th February 2010" and, most recently, "A world apart from ordinary justice - almost a parallel universe - 20th October."

A great deal has been made of this case and, no doubt, considerable amounts of money have been spent.  The Supreme Court has reached a sensible, and with the greatest of respect, obvious ruling which is in line with common sense.  Parliamentary Privilege has the purpose of protecting members in relation to what they do in debate and in parliamentary committees.  It is understood that the men received legal aid - see BBC 12th April.  This was granted before "means testing" was introduced into Crown Court legal aid.  Costs to date are likely to be in the region of £3m.

Monday, 8 November 2010

Legal News Roundup - Monday 8th November

Ministry of Justice Business Plan - is now available here.   There is a short public consultation period.  See also UK Human Rights Blog.  The Business Plan includes establishing a commission to investigate the creation of a U.K. Bill of Rights working with the Cabinet Office to agree its scope and timetable.  Such an idea was looked at by a parliamentary Joint Committee on Human Rights - "A Bill of Rights for the U.K." - 29th report of session 2007-8.


Election Petition - the Representation of the People Act 1983 (the 1983 Act) gives to the High Court the task of deciding election petitions.  In Watkins v Woolas 2010 the High Court heard a petition brought by Mr Robert Watkins who lost the 2010 general election in the Oldham East and Saddleworth Constituency,.  The winner at the time was Mr Philip Woolas who was a Minister of State in the Labour government.  The High Court held that Mr Woolas was guilty of illegal election practice (contrary to s.106 of the 1983 Act).  Consequently, the election result in that seat is void (s.159 of the 1983 Act).  Mr Woolas is seeking to have the decision overturned and a by-election is now "on hold" - see The Guardian 8th November.

Legal Aid - Epilepsy Drug case - It seems that, having already spent £3m, the Legal Services Commission has now pulled the plug on legal aid for claimants in a case concerning an anti-epilepsy drug Epilim.  The families of children born with physical and mental disabilities allege that the drug, taken during pregnancy, was the cause of those conditions.  It may be that the case is now abandoned.  If so, that is £3m of public money wasted.  See The Guardian 8th November.  The Solicitor's Journal looks at this matter - here

Mental Illness / Drug addiction - The Minister for Justice is hoping to "divert" offenders with mental illness or drug addiction into "voluntary" treatment as a means of keeping them out of prison.  The Guardian 7th November. On 6th November it was reported that Mr Clarke wished to close 6 prisons - see The Independent.  How the criminal justice system deals with offenders with mental illness / drug addiction is becoming a major issue and, under the present government, there is clearly going to be greater emphasis on "diversion" from the court process altogether or on rehabilitative sentences.  See the earlier posts on "Mental Health Courts" and "Fitness to Plead."

Too many potential lawyers?  The CharonQC blog - (the author of which has considerable expertise in legal education) - has raised the topic of the the "over production" of potential lawyers only a few of which are likely to secure places in the profession.  This is now a serious concern which will, somehow, have to be addressed.  Read about it here.

Scoring of criminal advocates -  The Times (8th November) informs us that a scheme (likened to Strictly Come Dancing) is being devised for the scoring of advocates.  Judges will assess advocates (both barrister and solicitor-advocates) on a points system and the results will decide the types of case they are allowed to do.  This scheme has the support of Lord Neuberger (the Master of the Rolls) who backed it publicly at a Bar Conference over the last weekend.  (Note: As things stand, solicitors may join various accreditation schemes - see Law Society.)

The Magistrates' Association -  is to hold its Annual General Meeting in London on 29th November.  There are some interesting motions for debate including one calling on the government to increase magistrates' maximum sentencing powers to 12 months custody.  Another argues that a defendant should be able to elect to have a trial heard by a bench of three magistrates (which could include a District Judge (Magistrates' Courts) rather than by a District Judge (Magistrates' Courts) sitting alone.

This blog has argued before that Magistrates' powers must not be increased unless the issue of legal aid in the magistrates' courts is revisited.  As things stand, there are far too many unrepresented defendants and to allow that to continue in relation to even more serious cases would be a travesty of justice.  It is surprising that so few people appear to make any link at all between increasing magistrates' powers and the severe restrictions applicable to legal representation orders in those courts.

The other motion is an interesting and, at first blush, attractive idea.  More thought needed on that one however !!  Interestingly, in relation to Family Proceedings, the Magistrates' Courts Act 1980 s.66 states:

(1) A magistrates’ court when hearing family proceedings shall be composed of—
(a) two or three lay justices; or
(b) a District Judge (Magistrates’ Courts) as chairman and one or two lay justices;

or, if it is not practicable for such a court to be so composed, a District Judge (Magistrates’ Courts) sitting alone.

It is a rather odd thing but (b) never seems to be "practicable." 

The 7/7 Inquest -  is getting into a rather complex legal affair.  For some analysis of this, see UK Human Rights Blog "No secret hearings at 7/7 inquests."  To say the least, the legal knots being tied are quite remarkable.

Addendum 9th November:  The Home Office has decided to apply for judicial review of the Acting Coroner (Lady Justice Hallett) who is conducting the 7/7 inquest.   They are not happy with her decision that she could not hear certain evidence in a closed hearing.  See Home Office

A High Court Judge (Silber J) has ruled that the Election Petition decision in the case of Watkins v Woolas is not amenable to judicial review - see here for the court's reasons in rejecting this application.  The court states that the High Court is not subject to judicial review.  That has long been the understanding.  Judicial review stemmed from right of the High Court to "review" the decisions of inferior courts and tribunals and, historically, the High Court inherited that right from its predecessor the Court of Queen's (King's) Bench.  However, the judge also set out some reasons why judicial review (even if it were available) ought not to be conducted in the case itself and that includes the fact that there are certain rights of appeal under the Representation of the People Act 1983 s.157.  The UK Human Rights blog has an interesting analysis of this case - see here.  It is interesting that Silber J did not rule out a "renewed application" but referred to any such hearing being "expedited."


Addendum 12th November:  It appears that Mr Woolas has won a further bite at the cherry in relation to the election petition case brought against him - see Daily Mail 12th November.  The renewed application is to be heard next week.

Crown Dependencies


The "British Islands" are defined as the United Kingdom (of Great Britain and Northern Ireland) together with the Channel Islands and the Isle of Man - see the Interpretation Act 1978.  Great Britain comprises England and Wales together with Scotland.  The Channel Islands and the Isle of Man are referred to as "Crown Dependencies" and they are not part of the United Kingdom and are part of the European Union only to a limited extent.  All of this is the result of lengthy historical development.  The various governmental and legal arrangements are, to say the least, complex.

The House of Commons Justice Committee considered the relationship between the U.K. government's Ministry of Justice and the Crown Dependencies and a report was published in March 2010.   The Ministry of Justice has now responded to that report - here.

Legislatures within the British Islands

United Kingdom Parliament

Scottish Parliament ................ Welsh Assembly ...................... Northern Ireland Assembly

Tynwald - Isle of Man Parliament - the oldest Parliament in the World

Relationship of the Crown to the Channel Islands


The Jersey legislature is the States Assembly.  The Guernsey legislature (which legally covers Alderney and Sark as the Bailiwick of Guernsey) is the States of Deliberation.  Alderney is in many respects self-governing (apart from some issues such as policing, taxes, and social security) and has its own legislature.  Sark also has its own legislature - Chief Pleas.

Friday, 5 November 2010

A breathtaking Bill of which even Henry VIII would have been proud ...!

On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords.  We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being planned but the interesting question was just what form the legislation would take.

We now know that the plan is to hand Ministers sweeping powers to abolish, merge, or modify these public bodies or offices.  The powers are to be exercised by "Orders" (in the form of Statutory Instruments).  Although those orders have to be laid in draft form before Parliament and an "affirmative resolution" of each House obtained, the reality is that, in practice, only rarely will there be any debate.

The basic ministerial powers to abolish etc. are set out in Clauses 1 to 6 which have to be read with Schedules 1 to 6.  In exercising their powers to make orders, Ministers have to "consider" the matters set out in Clause 8. 

The Bill is replete with "Henry VIII" powers.   For example, under Clause 11, a Minister is permitted to make certain amendments to Schedules 1 to 6.  Under Clause 27, an order may repeal, revoke or amend an enactment whenever passed or made.  The Bill contains some restrictions on the use of these powers.  Under Clause 20, an order may not authorise the creation of a power to make subordinate legislation; or grant a power of forcible entry/search or seizure; or grant a power to compel the giving of evidence.  Under Clause 22 - an order may not create or authorise the creation of criminal offences punishable with imprisonment for more than 2 years.  Surely, that is far too extensive a right granted to Ministers to create new criminal offences.  One might be forgiven for thinking that earlier this year the coalition government had mentioned introducing a mechanism to prevent the proliferation of unnecessary new criminal offences - see here

This Bill will extend to England and Wales, Scotland and Northern Ireland.  [There are various clauses in the Bill dealing more specifically with Scotland, Wales and Northern Ireland].

Once this Bill is on the statute book as an Act, it will be there as a permanent extension to Ministerial powers exercisable with quite minimal Parliamentary oversight.

On 4th November 2010 the Solicitors Journal published - "Lords rap government over hasty bonfire of quangos."   In July 2010. the Lord Chief Justice expressed considerable concern over the use of "Henry VIII" powers - see Speech by Lord Judge at the Mansion House dinner for H.M. Judges.  It appears that, since Ministers like such clauses, their use will continue unabated.  Please also see UK Human Rights Blog 5th November 2010.




Addendum 9th November:  See The Guardian 9th November (Public Bodies Bill - a vampire law) which has picked up on the rather objectionable nature of this Bill.

For a further post please see UK Human Rights Blog - "Henry VIII stalks the Public Bodies Bill."

Addendum 11th November: See Joshua Rozenberg in the Law Society Gazette - 11th November.  Rozenberg argues that this Bill, if it were to become law, would destroy the independence from the executive which many public bodies are supposed to have.