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Author Archives: alrich

The Extradition Act law reform that could – but won’t – help Assange

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Why on earth isn’t the UK Home Secretary banging on the doors of the UK Supreme Court, the European Court of Human Rights, the Swedish Högsta domstolen – whatever it takes – to get Julian Assange released from his (somewhat self-imposed) “arbitrary detention” in the Ecuadorian embassy in London? Theresa May and the Government she serves knows a terrible travesty of justice has occurrred – so much so that they have passed a law to ensure it should never happen to anyone else again.

This, at least, is how the UN Working Group on Arbitrary Detention (UNWGAD) explains a new section, 21A of the 2003 Extradition Act, inserted “as a result of perceived abuses raised by Sweden’s European Arrest Warrant” in the Assange case. It adds that, since the Section was added in 2014 “if requested, Mr. Assange’s extradition would not [now] have been permitted by the UK”. The section, added by S.157 of the Anti-social Behaviour, Crime and Policing Act allows for a “proportionality test” before someone can be extradited under a European Arrest Warrant. So a judge can ask whether there might be a less coercive alternative to extradition – such as interviewing a suspect in Britain rather than in the “requesting state” (ie the one that wants the extradition – Sweden in Assange’s case).

But there is more. Section 156 of the 2014 Act also introduced a new Section 12A to the Extradition Act (below) – which allows a UK judge to assess whether the supect’s presence in the requesting country is really necessary – specifically if investigations have not come close enough to completion to require that presence. This is eerily like Assange’s case since the EAW was issued by prosecutors seeking to interview him, not by judges wishing to arraign him on a criminal charge.

Sadly for Assange, he was not apparently the inspiration for the new legislation – and the Government has insisted it is not retrospective so is unavailable to his cause – though the UNWGAD panel believes it should be. Their thinking, presumably is that if a terrible injustice to suspects has been discovered it should be put right for those who continue to be embroiled in that injustice, not just for the future.

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Rutherford and Others bedroom tax case: hold the celebrations

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Anti-bedroom tax campaigners are very pleased about the Court of Appeal case that has found unlawful discrimination in an element of the Government’s policy to punish “under-occupiers” of social housing. Sadly their joy may be premature. The Court of Appeal’s ruling in Rutherford and Others v Secretary of State [2016] EWCA Civ 29 was very much a holding judgment. When the case is reviewed in the UK Supreme Court the issues of right and wrong about how we treat disabled people or rape victims will be largely overlooked. Instead issues of legal proceduralism, high policy (plus low politics) and constitutional wrangling are likely to hold sway.

The essence of the case for the Rutherfords, who care for a disabled grandson, and for “A”, a rape victim (who has a son by her rapist) and has a panic room in her house, is that their situations should have been covered by exceptions to the Bedroom Tax provisions (ie the cut in Housing Benefit when a family has “extra” rooms).

If the benefit claimant is disabled or has a disabled partner an exemption might apply (if overnitght care is required). But not if a benefit claimant is caring for a disabled child. And there is no mention of rape victims in fear of further attack. There is, though, a system of Discretionary Housing Payments (DHP) for those who might have needs “which could be met by DHP”. They are administered by the relevant local authority.

The claimants’ case is that their exclusion in the legislation (Regulation B13, set out here) from the categories whose position “has to be taken into account” (in the clumsy phraseology of the regulation) is unlawful discrimination under Article 14 of the European Convention on Human Rights (ECHR) (and under public sector equality duty under s.149 of the Equality Act 2010) – on grounds of sex for A and disability for the Rutherfords and their grandson.

The Secretary of State, Iain Duncan Smith, acknowledges the prima facie discrimination. The issue therefore became: is there an “objective and reasonable justification for that discrimination which was not manifestly without reasonable foundation”. Broadly the defence is that the DHP is there to cover categories of people who don’t have to be taken into account under Regulation B13 but may have good cases for an exemption. Although their housing benefit would be reduced, DHP might (if the local authority agrees) fill the gap.

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Neuberger explains his Arnold v Britton judgment

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Lord Neuberger, President of the UK Supreme Court, has offered useful insight into his intentions behind the controversial Arnold v Britton judgment that left holiday chalet leaseholders facing bills adding up to millions of pounds for services (critiqued here: Neuberger abolishes common sense).

In a talk to members of the Leasehold Valuation Tribunal* he underlined his commitment to a literal approach to be taken by courts when reading contracts, leases and legislation. But he rejects any suggestion that he has “changed the law” with the Arnold judgment. He considers the judicial art of “construction” – construing the true meaning of the document in question – and sets his judgment within the context of 40 years of judicial contractual interpretation. 

Construction
A judge’s role in “construction” or interpretation of contracts, is to identify the intention of the parties “by interpreting the words used in their documentary, factual and commercial context”, Neuberger said [referring to a case on wills in which he had made this point last year, Marley v Rawlings.] 

The principles for construing contracts and legislation were similar and leases should be treated no differently since, like contracts, they have “commercial consequences”.  

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Neuberger v M&S: was the BNP case really necessary?

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One has to ask: why did the UK Supreme Court even bother to hear, at vast public expense, the case of Marks & Spencer v BNP Paribas – in which M&S threw good money after bad in the hope of getting a few hundred thousands back from the landlords of their former London HQ in St Pancras Bay.

The money at stake isn’t the point. Was there a real issue of public interest such that the Supreme Court should have heard the whole matter again in order to come to the same view as the Court of Appeal a year earlier?

But the fact is that Lord Neuberger, President of the Supreme Court, is a man on a mission – to impose his literal interpretation of the world on the world of law. And this case was an ideal opportunity for him to drive the point home.

The legal point was simple enough: There was no term in the lease under which M&S would receive back prepaid rent after exercising a break clause and vacating the premises. So could such an apparently just and fair clause be implied into the lease “in the light of the express terms, commercial common sense, and the facts known to both parties at the time the contract was made”?  Read the rest of this entry

Bad for bees: FoE loses neonicotinoid pesticide case

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Environmental group Friends of the Earth (FoE) has failed in its UK High Court attempt to stop the emergency use of banned neonicotinoid pesticides, implicated in the decline of bee populations.

The use of three neonicotinoid pesticides is illegal under European Union law, though the law is due to be reviewed. The UK Department for Environment (DEFRA) authorised use of two of the pesticides for 120 days on about 5% of England’s oil seed rape crop after the National Farmers Union had made an application for their emergency use over the autumn.

The Hon Mrs Justice Patterson has now rejected an FoE challenge to the authorisation for the pesticides Modesto and Cruiser OSR, which contain neonicotinoids. In seeking a judicial review FoE claimed it had arguable cases that:

i) the UK Government did not give proper consideration to whether the risk to oilseed rape on the farms constituted an emergency;
ii) that no consideration was given to whether the risk could be contained by other means;
iii) that there was no compliance with the requirement that the authorisation should be limited and controlled.
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O’Brien loses Court of Appeal case on judicial pensions backdating

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A part-time  judge who has been battling for himself (and colleagues) to receive pensions has lost a case that could have established pension payments would be backdated to cover all their years of work. Instead the Court of Appeal ruled there will be a cut-off at April 2000, when the European Part Time Workers Directive (PTWD) (97/81/EC) was transposed into UK law.

The basis of Dermod O’Brien’s substantive case was that failure to pay pensions to fee-paid judges and tribunal chairs was unlawful discrimination under the Directive. Following earlier litigation (see O’Brien v MoJ 2013) that established Recorders such as O’Brien should receive pensions, the government has agreed to institute pensions for other fee-paid judicial offices too (see Fee-paid judicial cases: update 3 pdf). These were to be backdated to 7 April 2000 with a new scheme from April 2015 (see Consultation for details).

The Court of Appeal case (O’Brien v MoJ [2015] EWCA Civ 1000) concerned how far pension entitlement should be backdated. Lawyers for O’Brien (and in effect any other fee-paid judicial officers in similar positions) argued that the pension provision should take into account periods of service before the Directive entered into force. He had worked as a Recorder between 1978 and 2005.

But as far as Lord Justice Lewison was concerned this would offend against the the principle that legislation should not be retroactive: “EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.” Read the rest of this entry

Are targeted drone killings lawful? The jury’s not yet in

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So who are they, the urbane, sophisticated sharp-suited types with a licence to kill, drafted in to the front line in the battle against Islamic terror? They are – the government lawyers. The drone killing of Reyaad Khan and Ruhul Amin, far from being a spur-of-the-moment use of pre-emptive force to ward off an imminent attack, was actually weeks in the planning – with lawyers crawling all over it.

But there’s a paradox. If so much thought and work went into the killings, (and the latest US attack on “Jihadi John” – Mohammed Emwazi) how can it be justified as a self-defence response – “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”, according to the “Caroline” test legal pundits are talking about? Were the killings an act of “instant and overwhelming necessity” against an “imminent threat” with no other means of defending Britain from them? Read the rest of this entry

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