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Tag Archives: Human Rights Act

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’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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Judges too keen to use Human Rights Act powers, says Lord Neuberger

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The UK judiciary has become a little too enamoured of its powers to challenge the government as a result of the Human Rights Act, according to the Master of the Rolls, Lord Neuberger.

The head of the Court of Appeal told the eighth hearing of the Lords Constitution Committee into judicial appointments that the relationship between the judiciary and politicians had been changing since the end of the Second World War with “a greater preparedness on the part of the judiciary to review and interfere with decisions of the executive”. This was in part to do with “judicial activism” but more due to the increased power of the executive coupled with, in the last 10 years, the influence of the Human Rights Act. “That in one sense has increased the judicial power and obligation to interfere with executive decisions when they go wrong. But it has also introduced a new aspect in the relationship between the judiciary and Parliament.” Read the rest of this entry

House of Lords judicial appointments hearings: the story so far

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The judicial appointments hearings by the House of Lords Constitution Committee recommence this week so it’s worth a resume of where we are at given the importance of the issue – and the possibility that the press will start to recognise the fact.

The story so far: The Constitutional Reform Act of 2005 for the first time in Britain enshrined, at least in part, the principle of separation of powers in an aspect of the constitution, the position of the judiciary. So the Law Lords were removed from the House of Lords and set up in the Supreme Court, losing their right to sit in the Lords in political roles; appointment of the judiciary was taken out of the hands of the Lord Chancellor (a Cabinet post) and handed to an independent Judicial Appointments Committee; and the Lord Chancellor himself lost his judicial role – his former right to sit in legal cases as a judge.

Now all the talk is of throwing out the principle of separation of powers and establishing a new form of political input in the appointment of judges – perhaps an enhanced role for the Lord Chancellor, a role for Parliament or for some committee of Parliament, perhaps with US style confirmation hearings. There seems to be no front runner as yet.

Such calls are made on the political right because of anger at the “unaccountable” judiciary with powers to balk the government, particularly on human rights issues; and on the liberal left because of the pressing need for a more diverse judiciary, achievable, it is believed, most quickly by political intervention. One supporter of this view, Cheryl Thomas, acknowledged, though, that it depends whether that intervention is from, as it were, a Reagan (who put the cause of judicial diversity back – certainly by eight years) or a Clinton, who made it one of his priorities. Read the rest of this entry

David Cameron, Sharon Shoesmith and the rule of law

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There is a breakdown in the rule of law in Britain – and the government is at the heart of it.

The latest evidence is in the government’s response to the Sharon Shoesmith Baby P case. David Cameron, the prime minister, is ready to throw good money after bad to challenge the Court of Appeal finding that the former Haringey council director of children’s services was sacked unlawfully at the insistence of Labour children’s minister Ed Balls.

The case has already cost £1m, but the money is neither here nor there; for Cameron it is a matter of principle – the principle that the government should be above the law.

He announced there would be an appeal to the Supreme Court because ministers want to uphold the principle that they – rather than the courts, through judicial review – should be responsible for their decisions. “It does seem to me important that governments are able to manage their organisations and provide accountability when things go wrong,” he said.

It is, apparently, a constitutional issue about ministers’ decisions being overturned by judges – on the face of it, one would have thought, an essential requirement if Britain is to be governed by the rule of law.

Unfortunately Cameron’s understanding of the idea of the rule of law is rather simplistic. He thinks Parliament is supreme so judges shouldn’t keep interfering with it. And since he’s the boss of Parliament, he must surely be the most supreme of all.

This was the prime minister who claimed the London university fees rioting was an example of a breakdown in the rule of law. He wasn’t talking about police kettling peaceful demonstrators or arresting people without charging them. He was talking about the rioters. A temporary and geographically limited breakdown in law and order perhaps, but a collapse in the rule of law?

So let us clarify for him what the rule of law is. This is the view of 19th century jurist AV Dicey: No one should be punishable except for a distinct breach of law established in the ordinary legal manner before courts of the land; nobody is above the law and everybody is subject to the ordinary law whatever his rank or condition; anyone may go to the law courts to remedy breaches in rights and liberties.

Dicey’s principles on the rule of law in the Law and the Constitution, 1885

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law, whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

This raises many questions but is a good starting point for those like Cameron who don’t have much of a grasp on the basic theory. Take this for example: before the royal wedding he felt there were too many pen pushers and local authority busybodies demanding vast amounts of paperwork, health and safety checks and expensive insurance for street parties. His response?

Let me put it like this. I am the prime minister, and I am telling you if you want to have a street party, you go ahead and have one.”

His clear view is that the will of the prime minister attached to a populist cause trumps the law and all the processes in place to ensure the law is followed. Street party organizers had permission from the highest authority in the land to ignore the law since the law was being unreasonably enforced by a bunch of bureaucrats.

Similarly with the Madeleine McCann case. The police, according to the classic view of the separation of powers, are independent from government. Yet Cameron has directed Scotland Yard to put millions of pounds of public money into further investigating the disappearance of the little girl, prompting Lord Harris to accuse him of driving a coach and horses through police operational independence.

Of course, Cameron only sent a letter. But the prime ministerial crest and the Downing Street postcode on the envelope would have ensured that it didn’t stay long in the Met’s pending tray.

In the Shoesmith case, Cameron’s objection is to a judicial review, the process whereby courts can examine the procedures of administrative bodies, including the government, to test their legality. The judges do not toss aside laws made by Parliament; they do not substitute their judgment for that of the minister on matters such as Shoesmith’s competence or culpability in the Baby P case. They simply examine whether the procedures used to arrive at the minister’s decision were correct and hence whether the decision was fair.

Judicial review became more accessible since reforms in the 1970s to allow ordinary people to, in Diceyan terms, remedy breaches of their rights and liberties. This is rather like that other Tory bugbear, the Human Rights Act. Cameron believes those rights and liberties are sufficiently protected by the fact that ministers are “accountable” – to Cameron himself.

When ministers have spread a bit more poison about unaccountable judges standing in the way of the democratically elected government, we may expect to see proposals for a “reform” of the way the judiciary is appointed. It won’t be difficult to undermine the Judicial Appointments Commission set up in 2006 as “an important step towards strengthening the drive to officially enshrine judicial independence in law, enhancing accountability and ensuring greater public confidence”. It has not done a good job in promoting diversity, it is extremely bureaucratic and unwieldy. But the real agenda will be to swing the balance of power back towards the Supreme Leader.

Note: The Supreme Court has now rejected leave to appeal in the Sharon Shoesmith case (2 August 2011)
Also as predicted above, the Ministry of Justice has now (November 2011) made its proposals to give the government more say in judicial appointments, discussed here

For a more considered look at the rule of law see the Thinking Legally blog: Bingham’s rule of law: Outdated? Utopian?

Jemima Khan and Max Mosley in super-injunction tangle

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Warning: This post retails gutter press tittle tattle from the start. It then descends into a serious legal discussion of injunctive relief – which is not as sexy as it sounds. Sorry.

Jemima Khan has denied involvement in an act that would have brought her down in the eyes of all right-thinking individuals: seeking an injunction against the press. Max Mosley, meanwhile, has lost his attempt to force newspapers to warn people before they publish stories about their private lives. Such pre-notification might allow an errant husband to square things with his wife before the world of journalism appears at their front door. It is more likely, though, that Mr Mosley would have used this valuable time to awaken a judge from his slumbers and get him to issue a quickie super-injunction.

There used to be a simple legal principle: if something is true, you can say it (subject to various issues such as confidentiality). In the weird and wacky world of the super-injunction (or even the ordinary bog-standard injunction) if people say it, even if it’s true, “they should  expect a knock at the door in the next 48 hours and they should take their toothbrush to court, because they can expect to spend a very long time in Pentonville,” as media lawyer Mark Stephens at Finers Stephens Innocent put it. This even as a result of a little Twitter chitter-chatter.

It sounds pretty draconian. Oh, all right; Stephens is exaggerating a little, but breach of an injunction is a contempt of court. This allows a judge to punish the offender summarily on his own judgment (juries don’t come into it) and choose from a range of penalties including large fines or imprisonment for up to two years. So, actually, it is pretty draconian. Best to pack a few toothbrushes.

The judge can do all this even though there has been no full hearing of the case that lies behind the injunction. In other words the issues have not been tried and it may well be that, ultimately, the applicant has no case, even under the European Convention on Human Rights Article 8 (Everyone has the right to respect for his private and family life, his home and his correspondence).

Misdeeds

An interim injunction is intended to halt, say, a newspaper’s publication of a star’s sexual misdeeds. It is given pending a full hearing of the substantive case. The injunction may be issued without the newspaper’s lawyers even having an opportunity to put in a defence (ex parte in the old jargon, now known as an injunction without notice). The judge simply has to decide whether, if the newspaper published but then lost the (later) substantive case, the loss to the star would have been so great that it could not be remedied by damages. And the judge is always going to decide, yes, publication now cannot be undone later, so it is better, on balance, to ban publication now.

It is true that the judge must also have the Convention open at Article 10 (Everyone has the right to freedom of expression) and the Human Rights Act 1998 S. 12 when he makes the order and hence “be satisfied that the applicant is likely to establish that the publication should not be allowed” – in other words that there is a good case for a ban and that the case is likely to be sustained in the substantive trial of the issues.

Doubtless the learned judge will never have heard of half the stars who appear in front of him in these sad circumstances since he will be no avid reader of the yellow press (“Who, might I ask, is Mr X?” “He is a popular televisual entertainer, m’Lud”). But it is very likely that, without a full examination of the implications of Article 8, he will plump on the side of caution and give the injunction.

The problem, for freedom of the press, is that once the applicant has the interim injunction, he has no incentive to move to the substantive case. It would be costly, long drawn-out and, in particular, he might get the wrong result since, once the arguments have been put in full, the judge might decide there is no good reason to continue to ban publication.

Consequences

So the issue remains in limbo but with the threat of terrible consequences if someone lets the cat out of the bag. It is very difficult to challenge interim injunctions since the judge has a broad measure of discretion in issuing them. As long as his thought processes are as outlined above, he has acted wholly correctly.

Perhaps, as time passes and the star fails to bring his case to court, a challenge could be made. Perhaps the paper could claim the star had no intention of bringing a case; he just wanted the injunction. He would have breached rules of equity (since injunction is an equitable remedy) in making the claim. He who comes to equity must come with clean hands (ie with honest intentions) and not hands behind his back and fingers crossed as he addresses the judge.

But the fact is that these cases often remain in limbo, the case never heard, the chance to assert the legal right of freedom of the press never offered. This is the concern of the Liberal Democrat MP for Birmingham Yardley, John Hemming, who said in Parliament: “There is a tendency for people to issue injunctions on the basis of a claim that they intend to issue proceedings but not actually to issue those proceedings. One case such as that is AMM [a married television personality who wants to protect details of his private life] where no proceedings have been issued.” He noted too that the matter, while in this limbo, also remained apparently sub judice so the legal issues cannot be discussed even though there may be no intention by the plaintiff to bring the matter before a judge again.

The use of injunctions in this way clearly has implications for  freedom of the press, but there is another issue at stake. If we are to allow judges to make privacy law (David Cameron has said he doesn’t want to, but has offered no alternative) then they are making it in a scrappy, partial way. The important cases are not coming to court, the issues are not being raised, the principles not being enunciated. We just know we can’t say things that are true without knowing quite why.

A discussion on the Lord Neuberger superinjunction report and Hemming’s naming of a famous footballer is here

The Max Mosley case in the context of Leveson Inquiry and privacy law is discussed here

The Max Mosley European Court judgment is here

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