The Lords and the planned human rights bill

As discussed in my post yesterday (Hold your horses Mr Gove! 18th October), the government is proposing to "fast-track" a  Bill through the Commons in order to legislate for a British Bill of Rights.  

Any Bill purporting to repeal the Human Rights Act 1998 (HRA) is certain to come up against considerable opposition in both Houses of Parliament.  Both Houses continue to have considerable numbers of lawyers in their ranks and many non-lawyer members are also vehemently opposed to repeal of the HRA.  This post takes a look at how the Parliament Acts and the Salisbury Convention might operate in the context of such a Bill.

Parliament Acts:

Hold your horses Mr Gove ...! Thoughts on an autumn Sunday morning

Updated 19th October

In an "exclusive", The Independent 17th October has indicated that the government plans to "fast track" a British Bill of Rights into law.  A 12 week consultation will run from some time in November or December 2015 (therefore including Christmas and New Year) and then, without a Green Paper or White Paper, a Bill will go to the House of Commons.  The Independent report suggests that any delay in getting this into law will arise from "seasoned lawyers" in the House of Lords.

It is claimed that the Human Rights Act has been "misinterpreted" so as to give precedence to the European Court of Human Rights (E Ct HR) over the UK Supreme Court.  The Human Rights Act 1998 certainly requires British courts to "take into account" decisions of the E Ct HR.  Precisely what is required by the phrase "take into account" has been the subject of much debate since it begs the question as to when, if at all, a UK court might choose not to follow a decision of the E Ct HR - (e.g. see post of 21st October 2013 about the Chester and McGeogh cases).

The reason for the rush to legislate is said to be the promised EU referendum. 

The (iniquitous) criminal court charge

On 14th October, the House of Lords passed a "regret motion" put forward by Lord Beecham.  The wording of the motion was:

That this House regrets that the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 undermine the principle of judicial discretion, and add an artificial inducement to plead guilty; and further regrets that the Regulations were laid at a time that severely limited Parliamentary oversight, as well as making claims for savings that cannot be substantiated.

The debate may be read in Hansard (commencing 7.19pm) and it has been reported by The Indpendent 15th October 

It is now to be hoped

A legal rarity

Update 7th January 2016 - the hearings may be viewed via the JCPC website.  A further hearing is schedule for late January 2016.

The legal system contains some hidden "gems" which appear from time-to-time.  Love them or hate them, they are of legal interest.  One of them is a Reference to the Judicial Committee of the Privy Council under section 4 of the Judicial Committee Act 1833:

"It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit; and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid."

Such a reference is to be heard by the Judicial Committee of the Privy Council on 25-26 November 2015.  It is entitled - In the matter of Baronetcy of Pringle of Stichill

The issue is - "Which of the applicant (Murray Pringle) or the respondent (Simon Pringle) is the legitimate successor to the Baronetcy of Pringle of Stichill."

Forthcoming important cases ~ Supreme Court and Judicial Committee of the Privy Council

Listed from 27th October to 29th October is the case of R v Jogee.  This concerns the important and controversial aspect of criminal law known as "Joint Enterprise."  In relation to the Jogee case the court sits as the Supreme Court of the UK.  Being heard along with Jogee is the Ruddock case from Jamaica which also concerns joint enterprise and, for this case, the court sits as the Judicial Committee of the Privy Council.

I am not entirely sure but this may be the very first time that the Supreme Court of the UK and the Judicial Committee of the Privy Council have sat together in this way.  The court will comprise: Lord Neuberger (President of the Supreme Court) who sits with Justices of the Supreme Court - Lords Kerr, Hughes, Toulson.  The 5th member of the court is to be Lord Thomas - Lord Chief Justice of England and Wales.

A shabby episode comes to an end

Just Solutions International:

The Ministry of Justice is bringing to an end Just Solutions International (JSi).  The Guardian 10th September reported - " ... The commercial arm of the Ministry of Justice – which has been criticised for selling British prison expertise to regimes with appalling human rights records, including Saudi Arabia and China – is to be closed down.  Michael Gove, the justice secretary, has ordered the closure of Just Solutions International, telling MPs it was because “of the need to focus departmental resources on domestic priorities.  JSI was set up ..... as the trading arm of the national offender management service (Noms) to sell its expertise in prisons and probation – including in offender management, payment by results, tagging and privatisation – around the world."

The Saudi Prison Proposal:

Sir Brian Leveson ~ Caroline Weatherill Lecture

Sir Brian Leveson (President of the Queen's Bench Division) has delivered an interesting lecture in the Isle of Man.  The full text of the lecture is available via the Judiciary website - Caroline Weatherill Lecture - Justice for the 21st century - 9th October 2015.

Dividing the lecture into 3 parts, Sir Brian looked at the changing nature of the judiciary; the separation of the judiciary from politics and, finally, the the need to underpin any technological developments with principles of due process.

On the nature of the judiciary, Sir Brian expressed views about how diversity in judicial appointments is likely to change in the next few years.  He noted the increasing number of female judicial appointments since year 2000.  He went on to comment that ...