|A bubbling cauldron of our rights?|
The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) is now in the House of Lords. Riding on the back of the economic crisis, the Bill aims to not only reduce legal aid expenditure but also either to remove it completely or severely restrict it in several key areas. For example, as Justice for All pointed out on 24th October:-
"Legal Aid will only be able to assist with housing cases and debt cases in the most desperate situations involving "immediate risk of loss of home." Only employment cases involving discrimination will remain eligible for legal aid funding. All other social welfare law cases, including 100% of benefits advice, is being removed, even for complex appeals and tribunals."
Furthermore, under Clause 12, legal advice to those held in police custody would be means tested.
It has been stated that a right of unimpeded access to a court is a "principle of our law" which, "even in our unwritten constitution must rank as a constitutional right" - see the judgment of Steyn LJ (as he then was) in R v Secretary of State for the Home Department ex parte Mark Francis Leech  EWCA Civ 12. The late Lord Bingham, in his estimable book "The Rule of Law", argued that means had to be provided for "resolving, without prohibitive cost or inordinate delay, bona fide disputes which the parties are unable themselves to resolve."
The House of Lords Constitution Committee has produced a
report which is very critical of the Bill - please see Constitution Committee. The report comments that Clause 1 of LASPO should be amended to place the Lord Chancellor under a duty to ensure that legal aid is available "to ensure effective access to justice." As the bill stands, the only duty on the Lord Chancellor would be to provide legal aid as detailed in the Bill. Clause 12 relating to advice to persons in Police custody is questioned.
LASPO will abolish the Legal Services Commission legal aid and transfer decision-making for individual cases to a Director of Legal Aid Casework. The independence of this official from the executive is questionable and is therefore a major source of concern. The Committee also notes that too much detail is to be left to Regulations. Furthermore, LASPO does not provide for any areas of legal work to be ADDED to legal aid provision. As drafted, the Bill sets down the only areas which would be eligible for aid.
As if this executive-driven attack on legal aid is not enough, it also seems that a cauldron has been set up into which anything to do with human rights is being thrown. Quite what will emerge from this cauldron is, as yet, unclear. Let us look at some of the ingredients.
The Commission on a British Bill of Rights was set up in March 2011 and has, so far, published interim advice to Ministers on reform of the European Court of Human Rights. It has completed a public consultation on the question "Do we need a UK Bill of Rights?" The interim advice was issued prior to the UK assuming the Chairmanship of the Council of Europe. It is now reported that "Ministers are on the brink of human rights reform" - see Telegraph 19th November. Should the government's plans gain sway then it appears that it will be somehow made more difficult for the citizen of the UK to take a case to Strasbourg even when all domestic remedies have been exhausted. Yet, that is right of the citizen as set down in the Convention itself.
Scotland - in the form of the Scottish Human Rights Commission (SHRC) - has "emphatically rejected" the proposal for a UK Bill of Rights. Theirs is a very refreshing approach compared to the icy wind blowing in London. They stated:
- There is a definite need to retain and build upon the Human Rights Act. It should not be substituted by a weaker UK Bill of Rights which makes government less accountable to the public. To ensure practical and effective implementation of the European Convention of Human Rights all of the human rights contained in the Human Rights Act and all of the mechanisms within the Act should be retained - not weakened.
- The status quo is not acceptable either. SHRC’s recommendation is that all of the UK’s international human rights obligations are incorporated into domestic law, including the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights, which is overdue. These protections for the public are all the more necessary in the present times of austerity when budgetary decisions need to be made in ways which do not disproportionately impact upon the most vulnerable in our community.
- In addition to retaining the Human Rights Act, SHRC is promoting a more forward and outward looking approach of engaging with the public, Scottish Parliament and Scottish Government in shaping Scotland’s National Action Plan for human rights. This will be a practical roadmap to progressively bring the living experience of all, particularly the most vulnerable, up to the standards of the international human rights legal obligations already ratified by the UK.
Read the full submission in Word format.
Conference - Yet another development is that a Wilton Park Conference entitled "2020 Vision for the European Court of Human Rights" has been held from 17th to 19th November 2011. Attendance at this event was by invitation only. The conference was organised in association with the Foreign an Commonwealth Office and the Ministry of Justice. The aim of the conference was to consider:
"How .. the system for promoting and protecting human rights in Europe be developed? How can the challenges currently facing the European Court of Human Rights be met, as well as those likely to emerge in the current decade? What kind of Court, or other mechanism to deal with individual complaints, will be needed by 2020?"
The outcome of this conference could have far-reaching implications for the enforcement of individual rights. It remains to be seen whether the decisions of this conference will be made public. They ought to be.
The full programme for the conference and the names of some of the participants may be seen at Wilton Park Programme.
The judges - The President of the Supreme Court (Lord Phillips) and the Lord Chief Justice (Lord Judge) have also entered the fray.
In October 2011, Lord Judge gave evidence to the Constitution Committee in October and spoke about the approach of the courts to decisions of the European Court of Human Rights - see "Courts need not be bound by Europe, says top judge" (Telegraph 20th October). The House of Commons Human Rights Committee also discussed the question of the relationship between national courts and the European Court. Just what does "take into account" mean in section 2 of the Human Rights Act 1998? A good summary of this hearing - including a link to the video - is at Solicitor's Journal 16th November 2011 - "Lord Judge and Lord Phillips united in defence of human rights." Perhaps the best known statement of the national court's role in relation to Strasbourg case law is that of Lord Bingham in R (Ullah) v Special Adjudicator  UKHL 26 at para.20:
"It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less." (Emphasis added).
It now appears that, at least in some quarters, there is a view that the national courts should not only keep pace with Strasbourg but should deliberately lag behind. Whether or not that is true, it would be nonsensical for national courts to fail to recognised and apply a clear line of authority from Strasbourg when, after all, the Strasbourg Court is the ultimate authority on the meaning of the Convention.
See "UK courts following European human rights rulings too strictly, warn judges" - The Guardian 15th November.
Articles on the web - The UK Constitutional law Group blog has a very good series of articles on the current situation regarding human rights in the UK. First, in publication date order, is Nick Barber (Fellow of Trinity College, Oxford) - "The Commission on the Human Rights Act and the European Court of Human Rights" (10th September). Next is Helen Fenwick (Professor of Law, Durham) - "The Conservative anti-European Convention on Human Rights stance and a British Bill of Rights: rhetoric and reality" (1st November). Then there is Christine Bell (Professor of Constitutional Law, Edinburgh) - "Bills of Rights and Devolution: from the Universal to the Particular" (15th November). The article by Christine Bell notes that there is a "stochastic set of Bill of Rights initiatives and the process of reform is being drive in different directions "towards a wonderfully chaotic panoply of unintended consequences." These articles, by eminent academic writers, are worthy of detailed consideration.
A further article by Dr Ed Bates (Southamption University) appears on the ECHR Blog - "Guest post on British ECHR reform plans." Dr Bates considers the British stance and also looks at the views expressed by the Attorney-General Dominic Grieve QC on what he referred to as "subsidiarity" - see speech at Lincoln's Inn 24th October.
Jonathan Sumption QC - who has been appointed to the UK Supreme Court - delivered a lecture in which he asserts that judicial review should have certain limits. He illustrated this by examples in case law of how, in his view, the limits have sometimes been exceeded to the extent that the courts have overruled a policy decision taken by Ministers and Parliament. He said that the degree of judicial aversion to the policy in question is relevant. The full text of the speech is available. A complete reading of the lecture is essential.
"The problem in cases governed by common law principles of judicial review is that they do not do it on a sufficiently principled or consistent basis. The problem in cases governed by the Human Rights Convention, is that the Courts are frequently precluded from respecting the proper function of Parliament as a representative body and of ministers as officers answerable to Parliament and the electorate."
Mr Sumption argues that Ministerial control over the House of Commons has declined in recent years and he indicated that:
"Parliamentary scrutiny is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy."
Observers of the progress of LASPO through the House of Commons may well question the conclusion that Parliamentary scrutiny is adequate to protect the public interest. Under the pressure of work, the reality is that a great deal passes through unconsidered. Greater care and scrutiny during the legislative process might actually reduce the need for so much judicial review.
The cauldron is bubbling away and, no doubt, more ingredients will be thrown in over the coming months. What will emerge is rather open to speculation at the moment but it seems likely that some form of "distancing" of the UK from Europe is possible. Those who are concerned with access to justice and human rights will need to watch this cauldron closely.
The Huffington Post 23rd November - Francis Hoar - "Defend the children of the poor and punish the wrongdoer: Why government's legal aid reforms are a recipe for injustice."
The Guardian 24th November - "Nicholas Bratza slams UK xenophobia."
Also see UK Human Rights Blog - 25th November - "Bratza bites back."