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Tag Archives: UK Supreme Court

What if James Eadie was right about Brexit?

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Pity poor James Eadie QC, the lawyer tasked with swaying at least six Justices of the UK Supreme Court to his rather unappealing view that David Davis can sweep away 40-odd years of EU rights with the scrawl of his crabbed hand on an Article 50 notice.      

When smooth-as-silk Silk Lord Pannick stood to address their Lordships and Ladyship in the Gina Miller Brexit case, one could sense the hearts aflutter and knees atremble in chambers up and down the country as he caressed the precedents and drove his points home with firm but gentle force. Expect the CSI-effect to kick in during the next round of university applications – an upswing in applications to law schools from 18-year-olds who suddenly really want to be constitutional lawyers. There is, in contrast, no such thing as the Eadie effect.     

Where Pannick was a gallant schooner expertly managing the light zephyrs wafted his way by the assembled justices, deftly avoiding the gentle sandbanks and glittering coral reefs to reach his haven, Eadie was an oil-bespattered tramp steamer buffeted by blizzards, bouncing of rocks and barely making it into port.   

He found his craft beached in his final gasping moments on a very poor (and probably unconstitutional) point in which he seemed to suggest the Justices check what MPs had been doing in the Commons the night before (passing the Brexit motion) and somehow take it into account in their judgment.   

But what if (one can put it no higher) – what if Eadie turns out to be right? Even half right might be good enough. So, what does his somewhat incoherent case amount to?   Read the rest of this entry

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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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

Nzolameso and housing policy: Milton Keynes should not be the only option

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Once upon a time local councils could offer homeless people damp, mice-infested 28th-story flats on sink estates to discharge their responsibilities under the Housing Act 1996. Now they simply threaten to send them to Milton Keynes. But one cannot help thinking the UK Supreme Court has left the policy of “out-of-borough” placements (or “social cleansing” as even Boris Johnson acknowledged it to be) in disarray. The ruling in Nzolameso v City of Westminster means it will be very difficult for local authorities to justify sending people in housing need very far away for accommodation.

The legislation is pretty clear and explained in this 2006 Homelessness Code of Guidance: “Housing authorities must ensure that suitable accommodation is available for people who have priority need, if they are eligible for assistance and unintentionally homeless.” As a single mother of five children who was HIV positive and suffered other health issues, Titina Nzolameso was accepted by Westminster Council as being in priority need. The Council therefore had a duty to house her (known as the “main homelessness duty”). Whether shipping her out to a house in Bletchley, in Milton Keynes, was suitable is another matter. Nevertheless officials felt able to write to her:

“There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you.”

She turned the accommodation down as being too far from people helping her with her children and because she wanted to stay with her GP, also because it would mean changing her children’s schools and she had lived in Westminster for a long time. From December 2008 to November 2012, the family had lived in a privately rented four bedroom house in Westminster – until a cap on housing benefit kicked in and she was kicked out,  unable to afford the rent. Under the local housing allowance system rates of housing benefit for private tenants are calculated for each locality. The Westminster limit fell well below Nzolameso’s rent. Read the rest of this entry

Lib Dems could – and should – have put Rennard through disciplinary procedure

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Note: Since this post the Liberal Democrats have gone through all manner of wrangling to ultimately drop the minor disciplinary case against Lord Rennard of bringing the party into disrepute. Tim Farron, party president, has said lessons have been learned and the party had worked hard to “fundamentally change the way our party treats these matters” (Guardian 20 August 2014)

Liberal Democrat leader Nick Clegg has apologised and said his party “did not respond in the right way” to the allegations of inappropriate sexual behaviour against the party’s former chief executive Chris Rennard. Nick Clegg might be well advised to say nothing more. It is possible that the Lib Dems could be on the hook for this debacle – with the matter being bloodily and expensively fought out in court.

If the Lib Dems want to feel a particular chill running down their spine they might look at the recent Supreme Court De La Salle case (The Catholic Child Welfare Society and others [2012] UKSC 56 Judgment (PDF) ) where vicarious liability for sex abuse was extended to a Catholic organisation, the Brothers of the Christian Schools, who supplied the head and other teachers to an approved school.

The organisation was deemed liable even though it did not employ those teachers – they were members, not employees, of the Brothers. The principle established was that liability for members’ actions may extend to an unincorporated society. Rennard is a member (not employee) of the Lib Dems and a political party is an unincorporated society, arguably with “corporate features, including a hierarchy of authority” as described in the De La Salle case. The position is further explained below, but some legal background is useful first.

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Alvi immigration case: Supreme Court rejects Home Office codes of practice

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The Home Office has been found to be in breach of the law by excluding migrants from Britain using “rules” in codes of practice that have not been sanctioned by Parliament.

The Supreme Court rejected the notion that material in the codes used to control immigration fell within the Royal Prerogative under Common Law (and hence beyond the ambit of parliamentary immigration legislation). The suggestion that immigration could be controlled by Royal Prerogative was outmoded and superseded by legislation and the possibility of challenges under the European Convention on Human Rights.

The court has also suggested that 40-year old procedures for passing immigration rules through Parliament are no longer fit for purpose.

In what looks like a panic measure, the Home Office has sought to counter the ruling by putting a statement on immigration rule changes, including the codes of practice, before parliament on Thursday 19 July to come into force on Friday 20 July.

The debacle has occurred because new immigration rules, according to the 1971 Immigration Act S.3(2) are supposed to be laid before both Houses of Parliament. If the rules, in effect statutory instruments issued by Governments, are “disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying”, then the Secretary of State must take them back and make suitable amendments. (the so-called “negative procedure” explained here)

But in the case of the Occupation Codes of Practice used to exclude physiotherapy assistant Hussain Zulfiqar Alvi, a Pakistani national, even this far from rigorous procedure was not used. Instead the document was issued by the Secretary of State to the UK Border Agency (UKBA) without parliamentary scrutiny and posted on UKBA’s website. It lists skilled occupations and salaries that immigrants must have to qualify to be sponsored by employers to work in Britain.

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BBC4’s Harry Potter and his strangely misleading case of the law

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BBC barrister/broadcaster Harry Potter tells us he has never had to apply for a writ of habeas corpus in his 20-year legal career and he knows of no other lawyer who has. His implication, in BBC4’s legal history series, The Strange Case of the Law, was that the great English innovation of the writ of habeas corpus had not only freed political prisoners, defiant jurors and African slaves; its mere existence ensured no modern Government would seek to hold anyone illegally in detention without charge or trial.

How wrong he is. The case of Yunus Rahmatullah, detained since 2004 at Bagram Airbase, is among many that now spoil this rosy view.

Potter is proud of English law: “a boon we have given the world”. He is one of those Whiggish historians of the British Constitution who produce their tallies of great constitutional events – Magna Carta 1215, Petition of Right 1628, Star Chamber Act 1640, the Habeas Corpus Act 1679Bill of Rights 1689 and imply that their goodness is unalloyed and that they are, once and for all, accepted, embedded and set in stone forever more.

He gallops through the tale: Magna Carta gave us (by implication) habeas corpus, the right for a prisoner to be brought before a court to verify that his detention is lawful. This (despite later enhancements) was not enough to protect individuals taken out of the English legal jurisdiction, particularly to Mont Orgueil Castle in Jersey, a place for 17th century “extraordinary rendition”. There the writ of habeas corpus did not run, and nor was the Common Law rule against torture effective.

In 1679 the Habeas Corpus Act was passed to deal with such abuses. As a result of this (and later reformed versions), according to Potter, it is taken for granted that everyone should know the charge levied against them. Arbitrary imprisonment “is something we hope has been consigned to history”. The implication is that no British Government would act in a way that would open it up to “the Great Writ”. Motherhood and apple pie spring to mind for this cornerstone of our freedoms, so unassailable is the respect for habeas corpus.

Dishonourable
Unfortunately, within days of Potter’s broadcast, the Government was indeed to be found contesting the value of motherhood and questioning the benefits of freshly baked comfort food at the UK Supreme Court. It was fighting a desperate and dishonourable battle to persuade the court that a writ of
habeas corpus should not be upheld on behalf of Yunus Rahmatullah, detained by the US at Parwan, near Bagram, a place where, it seems, the writ of habeas corpus does not run and, it is alleged, the Common Law and international law against torture is ineffective.

According to evidence at his Court of Appeal case in 2011, Rahmatullah, a Pakistani captured in Iraq, was handed over to the US authorities by the British SAS. This was followed by his rendition to Bagram in Afghanistan, apparently without the UK being aware of the move. At the time there was a memorandum of understanding in place that the US and Britain would observe the Geneva Convention and international law in its dealings with detainees related to the Iraq war.

‘In every such case every Person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his Councell or other imployed by him for that purpose unto the Judges of the Court of Kings Bench or Common Pleas in open Court shall without delay upon any pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him a Writ of Habeas Corpus’ – Habeas Corpus Act 1640

According to this agreement the “detaining power” (Britain in Rahmatullah’s case) can require the return of its prisoners from the “accepting power” (the US) on demand and without delay. The detaining power shall have full rights of access and the detainees’ removal from Iraq should be done only by mutual agreement between the two powers.

This, on the face of it, would give Britain the right and power to demand Rahmatullah’s return from Bagram (where he is held without charge or access to full legal rights) – assuming that Britain did not willingly connive in his removal. In 2009 the UK Government accepted that it should have questioned the removal to Bagram. In 2010 a US detaining board said Rahmatullah was “not an enduring security threat” and he should be released.

The argument of his supporters is that Rahmatullah’s continued detention is unlawful and the UK Government has standing, thanks to the memorandum, to have him released. The Government argues, however, that it does not exercise sufficient control over him to be subject to a writ of habeas corpus.

Potter points out that the Americans have absorbed habeas corpus into their constitutional law and leaves us with the impression that it has been effective in freeing the prisoners of that other extra-jurisdictional Jersey-style facility in Guantánamo Bay. But that’s another story. The legal issue here is whether a writ of habeas corpus would force the UK government to exercise its powers under the memorandum to have Rahmatullah released. In December 2011 the Court of Appeal said yes and issued the writ. It is this position the Government refuses to accept and which it appealed against in the Supreme Court.

Mr Potter sees the parallel between 17th century Jersey and Bagram or Guantánamo. He might well see in Rahmatullah’s plight (and that of many others since 2001) a parallel with his tale of 17th century radicals, such as “Freeborn John” Lilburne, and their rendition to Jersey and other places beyond the jurisdiction of the courts and of habeas corpus – but he makes no mention of such modern cases.

The trouble with the Whig interpretation of history is that it is unilinear and stops about 100 years ago. It assumes that the hard fought for and beneficial development of our constitution can never go back from that point, and if anything, things can only get better.

Mr Potter should abandon his rosy view of the evolution of English law and rework his story, accepting the reality: history repeats itself – first as tragedy and then as another tragedy.

Twitter: alrich0660

Note: Rahmatullah failed in his Supreme Court case but is now (30 July 2014) suing the UK Government, accusing it of of responsibility for his subjection to torture and abuse over 10 years. Guardian report here.

Since this post we have had the David Miranda affair in which ports and airport transit lounges are deemed beyond normal legal protections for those suspected of involvement in terrorism. The issue is examined here

Materials attached to this post below include case links and habeas corpus legislation

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