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Tag Archives: Human Rights Act 1998

AA v Southwark – a conspiracy to evict ‘whether lawfully or not’

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A British High Court judge has accused officers at Southwark Council, London, of conspiracy to cause harm to a council tenant by unlawfully destroying his possessions and an illegal eviction. The council has been forced to compensate the tenant, AA, left street-homeless without income or possessions by the eviction, for an unknown sum. AA’s original claim was for £2.4m.

The judge, Anthony Thornton QC, in AA v London Borough of Southwark, said council officers were determined to secure the eviction “whether it was lawful or not”. As a result officers and the council itself were liable for misfeasance in public office. “They had limited prospects of evicting him lawfully and they therefore appear to have embarked on an eviction with the intention of evicting AA even though this could not be done lawfully.”

The entire contents of AA’s flat in Peckham, including his passport, laptops, papers, personal belongings and furniture were removed and illegally destroyed in a refuse disposal facility. The court heard that AA had made repeated attempts in the High Court and County Court to regain possession of his flat and to regain his belongings and also tried to discuss his predicament with council officials. As a result of his eviction he was street homeless for more than a year except for the use of a sofa or floor space in  friends homes for part of the time. His only income was financial assistance from those friends.

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Bideford council prayers ruling fails to ban Christianity (shock)

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Let us be clear. Britain remains a Christian nation, as Communities Secretary Eric Pickles has insisted – or just as much of a Christian nation as it was before Mr Justice Ouseley ruled that Bideford Town Council had no legal powers to hold prayers during council meetings.

Nor has there been any curtailing of “the right to worship … a fundamental and hard-fought British liberty,” as Pickles suggested. There is not, for example, any ban on Church of England clerics coming within five miles of London; no likelihood of vicars being burned at the stake; no exclusion of members of the Church of England from public office – all milestones (applied by the English state to Catholics and Dissenters) along the road towards establishing the “hard fought British liberty” of worshipping according to the rites of the Anglican state religion (in England, of course, not elsewhere in these islands, where there was a certain amount of resistance to having such British liberty imposed).

But enough of the rant. What actually has Mr Justice Ouseley done if he has not disestablished the Church of England and its communicants? What he has done is look at the powers of local authorities under the Local Government Act 1972 and found that they do not include the power to call elected representatives to a brief act of Christian worship. Such calls are, in the old terminology, ultra vires of the legislatively sanctioned powers of the Town Council.

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Ken Clarke defends plans for government role in judicial appointments

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The Lord Chancellor, Kenneth Clarke, has defended his proposals to give the government a bigger role in appointing senior judges, saying it would help in the important relationship between the executive and the judiciary.

Speaking at the 12th hearing of the House of Lords constitution committee into judicial appointments, he said: “I am in favour of no political patronage in appointments,” adding that his consultation paper, published late last year, makes it clear the Lord Chancellor would not take a direct role. “But with the [appointment of the] Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that, but not a decisive one.”

The proposal is for the Lord Chancellor (now Secretary of State for Justice, Clarkes’s preferred title, he revealed) should sit on the panels appointing the two senior roles.

He said: “The one absolutely immoveable thing is that we appoint on merit … The second thing that I regard as absolutely immutable is the independence of the judiciary. No suspicion of political patronage should come back.” He added: “We now have a system that makes it absolutely clear that it is independent of the political sphere.”

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Leveson inquiry and privacy law: kiss goodbye to kiss-and-tell

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One assumes that, when the Sun or News of the World reporters were gathering material on the peccadillos of X-Factor contestants, football stars and Formula One bosses, Article 8 of the European Convention on Human Rights was somewhat distant from their minds. This, after all, is the one that says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

So when Lord Justice Leveson during his inquiry into phone-hacking and related matters asked of former News of the World chief reporter Neville Thurlbeck: “Did anybody or did you give any thought to the Article 8 rights of the women?” meaning those in the Max Mosley affair, the answer was a little slow in coming but predictable: “There was no discussion about that.

Why would there be? After all, why let Article 8 of the European Convention on Human Rights get in the way of a good story?

But in fact Mr Thurlbeck showed the concept of privacy law was not wholly alien to him: “I would say the ‘kiss and tell’ story is now largely dead as a genre. In the last three years, we’ve taken great note of privacy matters.” There were now two questions asked of a story:  “That was the second question after ‘is it true’: ‘is it intruding into privacy?’”

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A lesson from history: don’t politicise judicial appointments, says senior judge

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Parliament or government should not be brought into Britain’s judicial appointments process, a senior judge has told a House of Lords committee. To bring politics back into appointments “would be against our own history,” said Lord Justice Toulson, vice-chairman of the Judicial Appointments Commission (JAC).

His comments follow suggestions from the Ministry of Justice that the Lord Chancellor, who is a member of Parliament and political appointee to the Cabinet, should have more power in judicial appointments. An MoJ consultation paper asks whether he should sit on panels appointing to the most senior judicial posts (President of the Supreme Court and Lord Chief Justice) and/or should have power to give his view on short lists of candidates for other senior positions (Lord Chief Justice, Heads of Division, Senior President of Tribunals and Lords Justices of Appeal). At present the Lord Chancellor simply has a limited veto of the single name presented to him in each case.

The Judicial Appointments Commission is an independent body set up under the 2005 Constitutional Reform Act. Toulson told the Lords Constitution Committee at its eleventh session on judicial appointments that the power the Lord Chancellor had over the JAC was a narrow one, deliberately limited by Parliament. The JAC was not a servant of the Crown.

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Ken Clarke’s piratical band hijacks judicial appointments inquiry

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What, it must now be asked, is the point of the House of Lords Constitution Committee hearings on judicial appointments?

The committee set out in fair weather in the summer on a stately voyage to explore the waters of the British constitution with the aim of balancing accountability, independence, transparency and the need to foster diversity in judicial appointments.

Meanwhile the oily-fingered engineers in the dark recesses of the Ministry of Justice, headed by the Lord Chancellor, Kenneth Clarke, were constructing a less majestic vessel which they launched as a public consultation document last week – Appointments and Diversity: A Judiciary for the 21st Century.

This seems not only to have taken the wind out of the Lords committee’s sails but to have hijacked the process altogether, with some pretty clear plans – among them proposals to bring a political role back into judicial appointments. Cap’n Ken and his piratical crew are steering the debate, full steam ahead, into waters very much of their choosing.

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Lord Judge says ignore Europe on human rights – or does he?

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Lord Judge or Lord Phillips. Who is right on whether the UK can “ignore” the European Convention on Human Rights?

Well, let’s get the terms of reference right for a start. The Lord Chief Justice, Lord Judge did not actually tell the Lords Constitution Committee that “Britain can ignore Europe on human rights” as the Times had it. And some of what was said in the hearing into judicial appointments (reported here) has been carelessly misreported and reported out of context.

What Lord Judge was trying to suggest is that UK courts, particularly the Supreme Court, do not have the fearsome constitutional powers ascribed to them by the likes of Lord Neuberger (explained here) – powers that would need to be curbed by politicians having a say in Supreme Court appointments. It is not a Supreme Court in the American sense with the constitutional right to strike down legislation – at least, not because of the Human Rights Act. Read the rest of this entry

Jack Straw and Lord Falconer, titans of the Lords Constitution Committee arena

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It was a battle of the Titans, and, given the usually quiet, orderly atmosphere of the House of Lords Constitution Committee, and given the subject matter, judicial appointments procedure, it was almost quite exciting. In the red corner, Jack Straw, Lord Chancellor under Gordon Brown; in the also somewhat reddish corner, Lord Falconer, a former Lord Chancellor to, and friend of, Tony Blair (friend in the modern political sense, that he was often mysteriously seen with Blair on official business, claiming to be his “adviser”).

The buffer, as it were, placed between these antagonists for their own protection was yet another former Lord Chancellor, Lord Mackay of Clashfern.

The issue was who should appoint members of the judiciary – and each of the three had rather different ideas. Straw made his startling claim: the UK Supreme court is a shadowy unaccountable organisation that is, shockingly, “developing a social policy” which it is imposing on the unsuspecting citizens of Britain by issuing so-called “judgments” – new forms of legislation that had overthrown the supremacy of Parliament.

Well, he did not take it quite this far. In fact he was at pains to point out that he personally had nothing against what the Supreme Court was doing, that most people would obviously agree with its excellent judgments on letting (alleged) terrorists and child molesters wander the streets freely, that he could understand quite how they had found themselves in the terrible position of being legislators rather than interpreters of legislation: it’s all the fault of that pesky Human Rights Act (you know, Labour’s pesky Human Rights Act of 1989).

But since the Supreme Court was developing a social policy, there needed to be some political control of who was developing it. The current legislation on this was not fit for purpose (you know, Labour’s pesky Constitutional Reform Act of 2005). Read the rest of this entry

Jack Straw on judicial appointments: yes, Parliament must have a role

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The focus in the debate on judicial appointments has turned on the Supreme Court. Jack Straw, former Labour Lord Chancellor, has told the Lords Constitution Committee hearings into judicial appointments that the process for selecting the Supreme Court judges is not satisfactory (polite speak for totally out of order).

He told the fourth hearing: “Effectively we’ve ended up with a system where the president of the Supreme Court is selecting his successors, and that can’t be satisfactory. It defies every constitutional principle.” He said: “I do not believe the current system is a sustainable model and will have to be changed.”

There was also public concern, he said, about the Supreme Court “legislating in areas of social policy”. It was right to ask questions about this and perfectly legitimate for Parliament to have a role in appointing to the Supreme Court because of it.

Former Lord Chancellor Lord Falconer rejected the idea and insisted: “Do not mix politics with the appointment of the judiciary.” Read the rest of this entry

Judicial appointments and politicisation of ‘unaccountable judges’

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The starting gun has been fired on the politicisation of the (unaccountable) judiciary. The (unaccountable) House of Lords is to consider the issue – and what little commentary there has been since consultation was launched on 13 May has been (unaccountably) favourable. Parliamentary scrutiny is deemed a good thing, not least because the Judicial Appointments Commission is seen as a rather bad thing.

The remit of the House of Lords Constitution Committee inquiry ranges over various issues, but crucially it asks: “Should Parliament scrutinise judicial appointments?” High among its concerns is that “decisions made by individual judges now regularly provoke political and public debate and public confidence in the legal system has been tested”.

What this means is that the public – or more accurately the press and certain politicians – do not like some of the judgments that judges have arrived at. As a result, the cry has gone up that the judges are “unaccountable”. Here are some examples: Read the rest of this entry

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