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Category Archives: Human-rights

Bedroom tax case: don’t forget the ECHR

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Not enough has been said about the human rights legal dimension to the successful bedroom tax cases in the Supreme Court. It is important for two reasons:

  1. The cases succeeded thanks to Britain’s adherence to the European Convention on Human Rights where homegrown “British” law was unable to help (apart from the Human Rights Act, giving access to ECHR remedies). Neither English Common Law nor British parliamentary anti-discrimination legislation could assist either the Rutherfords or Jacqueline Carmichael gain exemption from having housing benefit docked  for their “extra” bedrooms.
  2. An earlier judgment of one of the cases, when it came before Lord Justice Laws, was intended to place a clear marker down discouraging such  cases based on ECHR rights on the grounds that “the courts are not the proper arbiters of public controversy”. The Supreme Court has therefore repudiated Laws’ attack on ECHR remedies.

The legal cases
The cases challenged the bedroom tax regulation on the grounds that it failed to give entitlement to an extra bedroom (without having housing benefit reduced) in cases where the bedrooms were needed for disabled people. The regulation restricts exemptions to “a relevant person … who requires overnight care; or a relevant person [who] is a qualifying parent or carer” (Regulation B13 (6). The relevant person (in paragraph 9) is the housing benefit claimant, his/her partner or another person liable to pay rent and his/her partner (see regulations below in full). But, as Lord Toulson noted in the latest case: “A person who requires overnight care is defined in Reg 2(1) in terms which have the effect of not including any child”.
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The Brexit Great Repeal Bill – a rather cunning ploy

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Note: The High Court has been unpersuaded by the sort of arguments set out below and has now ruled that the Government does not have power to issue its Article 50 notification. The post nevertheless remains relevant regarding the background and possible political implications of the judgment. The 3 November 2016 judgment is available here.

British Prime Minister Theresa May’s announcement of a Great Repeal Bill to set the seal on Britain’s march out of Europe has not received much good press (or good blog, if that’s a thing) among the legal pundits. “No news here”, “inevitable, really”, “bound to have happened at some point” – this has been the general tenor of informed opinion on the matter.

Yet for some reason informed opinion has failed to recognise it as a remarkably clever wheeze that manages to shoot a number of Opposition and Anti-Brexit foxes with one twitch on the trigger. It has undermined the legal case for giving Parliament a direct say on whether Britain leaves the EU and helped shift the political debate to whether Parliament should merely have “oversight” of the process or a say in the final form Brexit would take.

So Ed Miliband’s comments this week included this: “It would be a complete outrage if May were to determine the terms of Brexit without a mandate from parliament. There is no mandate for hard Brexit, and I don’t believe there is a majority in parliament for [it] either.” This is far from a demand for an In/Out vote for parliamentarians before Article 50  notification of EU exit is issued under Royal prerogative in March.

Brexit Secretary David Davies was at pains in his statement this week (October 10) to point out that a vote on the Great Repeal Bill will involve plenty of debate on the issue – but not offer MPs to vote against Brexit: “This Bill is separate issue to when Article 50 [notice of EU exit] is triggered … it [the Bill] won’t take us out of the EU.”  Read the rest of this entry

Bonfire of EU rights: Bring on the Brexit bureaucrats!

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So what happens after Theresa May’s Great Repeal Bill and Brexit? A disturbing prospect has arisen of a bonfire of legal rights currently held by British citizens could be brought about on little more than the say-so of government ministers. No parliamentary debate, little likelihood of votes by MPs, rights lost by administrative order rather than new laws passing through both Houses of Parliament.

Here is the plan: Given there are many legal rights enshrined in UK law that derive from the European Union and which, under the Great Repeal plan, will remain in effect after Britain leaves, an efficient way must be found to comb through them and disapply them where necessary. It could take mammoth parliamentary sessions passing complex repealing legislation. Instead, and rather chillingly, Conservative barrister Martin Howe QC (among others) has said ministers should be “given powers” to disapply them bit by bit as and when it is deemed appropriate.

So Parliament will be asked to pass a piece of primary legislation, possibly in the Great Repeal Bill itself, handing those powers to ministers, in other words allowing the ministers to repeal or disapply European law at will through secondary legislation, probably statutory instruments (see below). It will be “the quickest way of taking the necessary decisions … to reemploy or replace them” he told BBC Radio 4’s Unreliable Evidence 14 Sept 2016.  

But giving such powers to the Government would in effect leave whole areas of law at the mercy of ministers including employment and equality rights, privacy and consumer rights, environmental law, copyright protections, safety law, food hygiene and many laws affecting business. It is difficult to establish how much British law is driven by the EU but FullFact.org says this:

“An estimated 13% of Acts [primary legislation] and Statutory Instruments have an EU influence, whereas that rises to 62% when EU regulations are included in addition to Acts and Statutory Instruments.”

So, if all this is open to repeal or amendment by statutory instrument, MPs may as well go home for the duration. There will be hardly any other business and in effect the Government will be able to pass wholly new legislation in large areas of law – presumably not quite the victory for  the sovereignty of Parliament (not Government) that some Brexiters said they wanted. The proposal is constitutionally dubious, impractical – and wholly oppressive.

But does this plan even make sense? In particular what about all the EU law that is not part of the 13% that has been rendered into British legislation – the Regulations, Decisions and rulings of the Court of Justice of the European Union at Luxembourg? If FullFact is right, this must make up getting on for 40% of UK law – yet it is not written into our legislation and so can’t obviously be “repealed” by Parliament or government ministers. What will happen to it all? Read the rest of this entry

Home Office plays the long – and costly – game to deport 70-year-old widow

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In these straitened times the Ministry of Justice has had to crack down on the costs of the UK legal system. But there is one area where apparently money is no object: chasing 70-year-old Pakistani widows from Britain’s shores.

Even when their chums at the Home Office are on a two-year losing streak during which judges twice rejected the case for removing Razia Begum as “disproportionate” given she retains no ties in Pakistan, one last desperate (and expensive) throw of the dice was bankrolled by the public purse. 

Thus it was that Home Office lawyers fetched up at the Court of Appeal a couple of weeks ago demanding another go at removing Mrs Begum, even though they had missed an appeal deadline a year and a half ago – owing to “mere oversight”. Their claim for an extension was based on the notion that they “had a good case” against Mrs Begum.

But “the need for litigation to be conducted efficiently and at proportionate cost” is a principle of legal procedure far pre-dating current MoJ rigours. So the notion that the Home Office could, at great expense, lay out its case before two Lord Justices to persuade them it was good enough for it to proceed, then at some later point lay out the whole case again before yet more learned justices during the substantive appeal was not one likely to find favour in the Court.
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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 (Note: the Rutherfords have now won their case in the Supreme Court: see note at end) 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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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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