Human Rights ~ recent news

Updated 11th September

The European Court of Human Rights - based at Strasbourg - has announced that from 1st November 2012 its President will be Dean Spielmann from Luxembourg.  He will replace the current President - Sir Nicolas Bratza.  Mr Spielmann was born in 1962 and obtained his Bachelor's law degree at the Catholic University of Louvain and went on to obtain a Master of Laws at Cambridge in 1990.  He was a member of the Luxembourg Bar from 1989 to 2004, a member of Luxembourg's Advisory Human Rights Commission (2000-04) and a Member of the European Union Network of Independent Experts in Fundamental Rights (2002-04).  In June 2004 he became a Judge of the European Court of Human Rights.


The Christianity Cases:

At the court, the United Kingdom is now engaged in a number of important cases - see Hudoc.   The cases are Chaplin v UK; Eweida v UK; Ladele v UK; and McFarlane v UK.  The four cases are brought by practising Christians who complain the the law in the UK  does not sufficiently protect their rights to freedom of religion and freedom from discrimination at work.  The hearing at the court held on 4th September was to consider the admissibility of the cases and the merits.  The court's decision will be announced later. 

Uninsured vehicles

In February 2010, the Police power to impound vehicles considered by them to be uninsured was noted - see Police Powers No.1 (16th February 2010).

The Manchester Evening News has now noticed that fines for driving without insurance do not usually come anywhere near the cost of actually insuring the vehicle - Uninsured drivers in Greater Manchester fined LESS than the cost of insurance.  The article states that the average fine in Greater Manchester was £256 or three times less than the average cost of insurance.  No doubt this picture will be replicated nationally.  The dilemma the court faces is that any financial penalty it can properly impose on the relatively feckless offender is usually substantially below the cost of insurance.

DirectGov states that there are around two million uninsured drivers on British roads and that they add some £380 million to the overall insurance bill paid by honest drivers.

Questions of Human Mortality ~ Will Parliament act or will the judges have to ?

Lord Walker of Gestingthorpe

Updated 8th October:

In the Nicklinson case, the Administrative Court refused a certificate for an appeal to the Court of Appeal - see ruling on ancillary applications

An appeal to the Court of Appeal was allowed in the Martin case. 

Updated 7th September

Judgment in the case of Nicklinson v Ministry of Justice [2012] EWHC 2381 (Admin) Toulson LJ; Royce and Macur JJ was handed down on 16th August 2012.  Mr. Nicklinson died on 22nd August - see BBC 22nd August.  The same judgment also concerned the case of a man referred to as Martin.

In his judgment, at paragraph 2, Lord Justice Toulson stated:

"Put simply, the claimants suffer from catastrophic physical disabilities but their mental processes are unimpaired in the sense that they are fully conscious of their predicament. They suffer from "locked in syndrome". Both have determined that they wish to die with dignity and without further suffering but their condition makes them incapable of ending their own lives. Neither is terminally ill and they face the prospect of living for many years."

In an earlier post on this blog it was noted that Charles J had given permission for the Nicklinson case to go ahead to a full hearing - (judgment of Charles J).  That post looked at the tricky question of whether the judges would "cross the Rubicon" and decide in Mr Nicklinson's favour and the post concluded that it was unlikely that they would do so.  Although all the judges expressed great sympathy for Mr Nicklinson, they refused to alter the law and stated that it was a matter for Parliament.

Only a few weeks after this judgment was handed down, Supreme Court Justice Lord Walker of Gestingthorpe spoke in Australia about the role of judges and the extent to which they felt able to amend the law.  Whilst his speech does not cover the Nicklinson case, it is nevertheless of considerable interest.  First, a brief look at what the judges said in relation to Martin and Tony Nicklinson's cases.

A Northern Viewpoint ~ Recommended reading for a new Lord Chancellor ~ The Rule of Law ~ The Independence of the Judiciary

"The independence of the judiciary is something which is precious to every single member of the community" - Sir Igor Judge in evidence to Parliament 1st May 2007.

Now that Mr Grayling MP has been appointed Secretary of State for Justice and Lord Chancellor, he may well be tempted to "hit the ground running" and "engage in out of the box thinking" so as to take justice "to the next level" as people sometimes say in modern management jargon.  "At this point in time", the policies which Mr Grayling will pursue remain to be revealed and, as yet, I am not able to even offer "a heads up" view of what they might be but I guess that we won't be waiting too long for some of them to emerge from the Ministry of Justice.  However, writing more in hope than actual expectation, I would urge Mr Grayling to consider a few matters before he gets stuck in to his duties.

1.  A reminder of what was said many years ago to King James I of England (VI of Scotland) in the famous case of Prohibitions del Roy 1607.     Chief Justice Coke said - " .... law .... requires long study and experience, before that a man can attain to the cognizance of it ...."

It will be imperative that

Meet the new Secretary of State for Justice and Lord Chancellor

Update 7th September:  see The Guardian for a video of Liberty's Shami Chakrabarti talking about the appointment of Mr Grayling and the legacy of Kenneth Clarke.

It is to be noted that Clarke continues in the government as Minister without Portfolio and he will steer the Justice and Security Bill through the House of Commons.
----

Mr Chris Grayling MP has been appointed as Secretary of State for Justice and Lord Chancellor.  His wikipedia entry is here.  It seems likely that, politically speaking, this is a move to to the right following the tenure of Kenneth Clarke QC MP.  The actual policies which Mr Grayling will embrace remain to be seen but some interesting challenges lie ahead including the prisoner voting issue and full implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  His stance vis-a-vis the European Court of Human Rights will bear watching closely as will any plans which emerge for a British Bill of Rights.  Perhaps a speech by Mr Grayling in 2009 points the way ahead?

A very important element of the Lord Chancellor's role is protecting the independence of the judiciary - see 2005 Act section 3 - "The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary."  Mr Grayling will be required to take the Lord Chancellor's oath:

“I, Name , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.  So help me God.”

Mr Grayling is not a lawyer.

New squatting law in force 1st September

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 144 creates a new criminal offence relating to "squatting."  The section came into force on 1st September 2012.  For details of the legislation see the earlier post of 9th May - LASPO - Part 3 Chapter 9 - Offences and Criminal Law. 

Ministry of Justice announcement.

The new offence is a "bolt on" to the existing law in this tricky area.  Thus, the existing provisions in the Criminal Law Act 1977 continue in force.  It may well have been preferable for the law to have been completely overhauled.  The Nearly Legal blog takes a look at some of the problems.

The Ministry of Justice has issued Circular 2012/04 "Offence of Squatting in a residential building."   The purpose of the circular is stated to be:

Lord Dyson to be Master of the Rolls

Lord Dyson - presently a Justice of the Supreme Court - will become Master of the Rolls on 1st October 2012 - Announcement from No. 10.   This is an ancient office but, in modern times, the Master of the Rolls presides over the Court of Appeal (Civil Division) and is Head of Civil Justice - see Judiciary website.

Also on 1st October, the present Master of the Rolls (Lord Neuberger) becomes President of the Supreme Court - (earlier post).

Lord Dyson's move will open up another vacancy on the Supreme Court - see UK Supreme Court blog.  In addition, Lords Hope and Walker are due to retire in 2013.  (Article in The Guardian 19th July by Joshua Rozenberg).

Recent predecessors as Master of the Rolls are Lord Denning who held the office from 1962 to 1982, Lord Donaldson (1982-92), Lord Bingham (1992-96), Lord Woolf (1996-2000), Lord Phillips (2000-2005) and Lord Clarke (2005-09).  Lord Neuberger has been Master of the Rolls since 2009.

Lords Bingham, Woolf and Phillips also held the office of Lord Chief Justice of England and Wales.  Lord Clarke is now a Justice of the Supreme Court.

Biographies of the Justices of the Supreme Court.