Thursday, 17 October 2013

Legal Miscellany

Supreme Court UK ~ 16/10/13
The Royal Charter on the Press:

Head of Legal Blog has published an item examining in some detail the drafting of the Royal Charter on Self Regulation of the Press.  See also High Tomlinson QC at Inforrm's blog - Leveson, Article 10 and apologies - another red herring

Voting by prisoners:

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent)
McGeogh (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)
View the judgment being handed down by Lord Mance
Two prisoners
(Chester and McGeogh) serving life imprisonment for murder, claimed that their rights had been breached because they had been prevented by domestic law from voting in certain elections.  Chester relied on Article 3 of Protocol 1 to the European Convention on Human Rights and he also relied on European Union Law.  McGeogh relied solely on EU law.  The Supreme Court unanimously dismissed both appeals.  With regard to claims under the Convention, the Supreme Court applied the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declined to make any further declaration of incompatibility in respect of Chester since such a declaration was already in place (Smith v Scott) and the matter was currently being addressed by Parliament.   With regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case-law. The resolution of the appeals did not require a reference to the Court of Justice of the European Union since the court considered EU law to be clear on this point - (an application of the acte clair doctrine).

The case is discussed on the UK Human Rights Blog The judgment may prove to have important implications for the relationship between the UK Supreme Court and the European Court of Human Rights and, as such, the judgment may be of particular long term importance.

A Draft Voting Eligibility (Prisoners) Bill is undergoing pre-legislative scrutiny by a joint committee of both House of Parliament.  The committee should report by 31st October.   The Bill may be seen here.  It remains to be seen if and when the government will actually bring forward legislation to amend the law so as to permit some prisoners to vote.  However, there is some pressure from the Council of Europe for the government to resolve this long-standing 'stand off'.

Head of Legal Blog - comments on the Chester / McGeogh case.

UK should leave Council of Europe if it defies ruling on prisoner voting:

The Guardian 17th October reports about evidence given to the joint committee by Niels Muižnieks, the Council of Europe's human rights commissioner.  See the Council of Europe website regarding the memorandum submitted by Mr Muižnieks.

Justice in the Age of Austerity:

Lord Neuberger of Abbotsbury, President of the Supreme Court of the UK, has delivered the Tom Sargent lecture - Justice in an Age of Austerity - in which he is critical of the cuts to legal aid taking place under the present government.  He is also critical of government imposed restrictions on judicial review which is, of course, one of the principal methods of ensuring that government activity and decision-making remains within the law.  Recent speeches by Justices of the Supreme Court are available via the court's website.

Other speeches:

A recent speech which may also be of particular interest is the Annual Caroline Weatherill Memorial Lecture delivered by Lord Neuberger on 11th October 2013 - The Judicial Committee of the Privy Council in the 21st Century.

In September, Lord Carnwath spoke in Rome about subsidiarity and the margin of appreciation under the European Convention on Human Rights - Speech

The junior bar has been warned that they are fair game to political spin - Law Society Gazette 6th October - Lord Justice Moses told the Young Bar’s annual conference that a ‘fair and just system of law’ depends on the ‘independence and courage not just of the bar but the young bar’.

‘Unless a vigorous independent young bar who can see a future is valued and safeguarded there will not be justice, there will not even be a system of law and there will be no judges and no judges worth their salt,’ he said.

Because only the ‘minority misfortunate’ members of the public require their services, most have no understanding of the importance of their work - so they ‘lap up misleading myths about the life of the young bar and the work they do.’   ‘You are after all fair game to any spin,’ he said.

Crowdsourcing a Constitution?
In The Guardian 8th October there was an interesting item - What would you put in a UK Constitution?-Conor Gearty.  The London School of Economics Institute of Public Affairs is asking the public to participate in, offer advice on and eventually to draft a UK constitution. A website,, will provide a forum for debating suggested values for its content.  A complementary Twitter feed at @ConstitutionUK, a Facebook page and a YouTube site broaden the project's reach.

Should the UK remain subject to the European Convention on Human Rights?

Former Secretary of State for Justice and Lord Chancellor Kenneth Clarke QC has stated that the UK should remain within the European Convention on Human Rights - The Telegraph 6th October.   Clarke's time at the Ministry of Justice was notable for the Legal Aid, Sentencing and Punishment of Offenders Act 2013 which, inter alia, made substantial inroads into civil legal aid.  Clarke also piloted the Justice and Security Act 2013 through the House of Commons.  This Act legislated for closed material procedures in civil litigation.

The Attorney-General has argued that Britain's 'economic, physical and ethical well-being' depends on Europe - Value of the Rule of Law to International trade and finance - and also see The Telegraph 14th October.  

Hamlyn Lectures:

The annual Hamlyn Lectures will be delivered this years by Lord Justice Laws - Exeter University/Hamlyn Lectures

On 7th October, writing on the UK Constitutional Law Blog, Anthony Bradley looked back at Jack Straw's Hamlyn Lectures in 2012 -  A review of Jack Straw's Hamlyn Lectures: Aspects of Law Reform: An insider's perspective

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