Weekly Notes: legal news from ICLR – 8 May 2015
Posted on 8th May 2015 in Weekly Notes
This week’s roundup of legal news and events concentrates initially on the General Election, just in case you’ve not read anything about it anywhere else. Having regard to the Conservatives’ unexpected victory, what might it mean for law and justice? And we extend a nervous welcome to our new Lord Chancellor, Michael Gove.
… this picture is the winner of the Magistrates Court Mock Trial – Court Artist Competition 2914-15, by Zoe Wright from Sir John Lawes School. It is taken from Law in Schools, who are looking for lawyers and legal professionals to volunteer to help legal education in schools.
The Queen’s Speech – a sneak preview*
Legal Aid (Is your litigation really necessary?)
We will continue to review our legal aid systems, so they can continue to provide access to justice in an efficient way. [Conservative Party Manifesto.]
The Conservative Party is traditionally the party of law and order but in recent years, with the need for austerity to reduce the deficit, it has been essentially the party of welfare cuts. Without the need to rely on the Liberal Democrats it now has more power, though perhaps less legitimacy, for a renewed round of cuts. One of the targets is bound to be legal aid. It has already cut £700m from the annual legal aid budget of £2.2bn, though there is some evidence that the cuts have resulted in wasted costs elsewhere. Nevertheless, they will almost certainly continue.
Quite what form the cuts will take is not yet clear, though it will undoubtedly mean less work for qualified lawyers and judges at public expense, and more of the cost of legal proceedings and advice being borne by clients, who will also have to represent themselves or forego the luxury of a legal remedy. Instead, they will have the options of online mediation on Ebay or perhaps some form of trial by ordeal, settlement “out of court” with fisticuffs in the street, like in the good old days.
The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.
The Tories have long had the Human Rights Act 1998, which they or the right wing press often refer to as “Labour’s Human Rights Act”, in their sights. Ministers (particularly Theresa May as Home Secretary and Chris Grayling as Justice Secretary) have chafed at its restrictions, or the restrictions it enabled the Human Rights Convention to impose; and the press have misreported cases on a mistaken or biased interpretation of its provisions. ( For the worst of these bogus myths, see the new Rights Info website. )
They will now claim they have a mandate to get rid of it, as they have threatened to do, and replace it with a British Bill of Rights. This may simply re-incorporate the Convention but in a Union Jack wrapping that makes clear that its provisions are to be interpreted and applied within the UK by domestic courts, untrammeled by any need to kow-tow to the decisions of the European Court of Human Rights, which will be regarded as merely “advisory”. (In fact they are technically only “persuasive” at the moment, not binding precedent.) Or it may seek to go further, and reduce the ambit of the rights themselves, or of the circumstances in which redress may be sought for their breach, which is not quite the same thing.
If necessary, the UK will uncouple itself more forcefully from the Strasbourg court or indeed the Convention itself, though I hope and believe that extreme further step will be avoided by diplomatic efforts.
For a more expert view on the likely consequences of this proposal (some written before election), see
- Matthew Scott (Barrister Blogger) Grayling’s Human RIghts Law Is A Stupid And Incoherent Gimmick That Could Destroy The Union
- Adam Wagner (founder of Rights Info) on the UK Human Rights Blog, Will either major party protect human rights after the Election?
- Mark Elliott (Public Law for Everyone) A hardening of Conservative human rights policy: what are the options?
- Adam Wagner (again) on Rights Info, The Election Result Means Big Changes Are Coming For Human Rights
- Obiter J: Our fundamental rights on the brink ~ some thoughts on Sunday morning
- Carl Gardner (Head of Legal): Full of sound and fury on human rights
France (see below) has just introduced sweeping new powers of surveillance, in the wake of the Charlie Hebdo murders, and the Tories have only been held back from doing the same thing already by the tempering presence of the Liberal Democrats in the Coalition. Now they can steam ahead, unopposed, and steamroller objections based on privacy and human rights. The Law Society Gazette has identified the defeated Communications Data Bill as one for imminent reconsideration, saying Theresa May would like to reintroduce it in the next parliament. Expect to see something in the Queen’s speech to this effect.
European (dis) unity
Commenting on on Cameron’s decisive victory, political commentator Peter Oborne assumes that the long promised EU referendum will now take place, probably in late 2017, with the “No” campaign being led by Ian Duncan Smith. In a piece entitled Cameron’s chance to make history, Oborne suggests that the result (probably yes, with Boris Johnson supporting that outcome) will resolve the issue once and for all, and silence those of Cameron’s backbench critics who have not already been bought off with ministerial posts.
Yet the Scottish referendum didn’t silence anyone or resolve anything. What did become clear from what happened south of the border, though, is that the appetite for UKIP had far more to do with immigration than with European integration, and it did more to split the working class Labour vote than that for the Tories. The original Brexit party (founded by Alan Sked in 1991: see Atlantic, I Created a Monster) has now departed in the smoke and beerhall rhetoric of Faragism. And that has now failed too.
Steve Peers asks, on EU Law Analysis: Is Brexit inevitable? The UK’s EU membership after the General Election
A more likely result is some form of renegotiation of terms, rather than full Brexit. This election result may be a domestic convulsion, but it is also now a European headache, according to analysis on Politico.
A number of other policies on law and justice were discernable from the Conservative Party’s manifesto, though as a document it was less specific and more “atmospheric” than even the Labour party’s manifesto. (See our survey of all main manifestoes here.) Both relied heavily on the element of fear, unlike the smaller parties, who delivered a more upbeat, anything-is-possible (sadly not) message. Among the heroic waffle about crime (it’s bad, but we’ve got it under control) there were proposals for
- Police reform
- Sentencing reform
- Victims’ law
- Hate crime review
But I suspect they are side-orders next to the main dishes listed on the menu above, and may not appear in this first Queen’s speech. All right, that’s enough punditry.
A cautious welcome to our new Lord Chancellor and Secretary of State for Justice
Over the weekend, Prime Minister David Cameron has been rearranging the chairs before the parliamentary music starts again, and the ministerial seat formerly occupied by Christ Grayling, as Lord Chancellor and S of S for Justice, has now been given to Michael Gove.
Whatever views one may have of his achievements as former Secretary of State for Education, Gove brings a fresh perspective to the role which Grayling seemed, on the most forgiving analysis, ill-suited to fill. Part of the problem is that it is actually two roles, and they are not always consonant. As Lord Chancellor, Gove is supposed to be the leader and champion of the legal professions and judiciary, and to represent their interests, and that of the law, in the business of government; but as Secretary of State for Justice, he must manage not just the legal professions but also the entire law and justice system, including the courts, the prisons, probation service and so forth. It will be interesting to see how he tackles that combined role, and also how he manages the staff of his own department.
Given his previous spat, while at Education, with Home Secretary Theresa May, he will need to be careful not to provoke friction between the Justice Dept and Home Office, given the potential overlap in some areas of responsibility, eg the role of the police in the criminal justice system.
The ominous book ban connection
In one particular respect, there is an ominous link between the new incumbent and the outgoing. Both have been accused of “banning” books. In Grayling’s case, he was said to have banned books being sent to prisoners, a decision eventually overturned on judicial review (see Weekly Notes – 5 December 2014). In Gove’s case, he was said to have banned from English Literature exam reading lists a number of classics of American literature, including Harper Lee’s novel, To Kill a Mockingbird, and Arthur Miller’s play, The Crucible, both of which feature strong themes of justice and dramatic courtroom scenes. Scary.
Some other comments on the transition:
- David Allen Green on his Jack of Kent blog: A new Secretary of State for Justice and Lord Chancellor
- Jerry Hayes (barrister, former Conservative MP) on his blog: Grayling’s problem was not having a legal qualification but not having a heart. Gove has and must use it to bring back humanity to our system of justice
- Joshua Rozenberg, in Law Society Gazette: Legacy of a lay lord chancellor (re Grayling, written before the election)
- Independent, Michael Gove – David Cameron’s new Justice Secretary – called for the return of hanging in 1998
- Obiter J, Law and Lawyers blog, Michael Gove as Secretary of State for Justice and Lord Chancellor
UPDATE 11 May.
Hang on a mo…
Something else the press have now dredged up, and is now being furiously tweeted about: an article Michael Gove wrote for the Times back in 1998, Bring back the noose, suggesting that it had been a mistake to abolish the death penalty for murder. You might, at first soundbite, think this made him an even more ominous choice as minister with responsibility for getting rid of the Human Rights Act. But if you actually read the article, it turns out to be a spirited liberal defence of the English common law adversarial system against the depredations of both Labour and Tory governments in recent years, eroding rights of fair trial. His main argument about abolition is that it corrupted the separation of powers between the judiciary and the executive, giving the latter powers over sentencing which they should not have. He also argues that it broke faith between the politicians elected by the public and the public’s true wishes (to keep or bring back hanging). In a sense the article is a nostalgic (and very rose tinted) view of the impeccable fairness and seriousness with which capital murder cases were dealt with before abolition. This is certainly not the position in common law jurisdictions where the death penalty remains, as any amount of law reports from the Privy Council will confirm. But since he’s a fan of English literature, Gove should perhaps read (Judge) Peter Murphy’s novel, A Matter for the Jury. No noose is good noose.
Reporting restrictions (Crime)
New guidelines issued
“Open justice is a hallmark of the rule of law. It is an essential requisite of the criminal justice system that it should be adminstered in public and subject to public scrutiny. The media play a vital role in representing the public and reflecting the public interest. However, as is well known, there are some exceptions to these principles. Difficulties and uncertainty can sometimes arise in ensuring they are correctly applied and observed.
So says the Lord Chief Justice, Lord Thomas of Cwmgiedd, introducing this fourth edition of guidelines [PDF here] on “Reporting restrictions in the criminal courts”, issued by the Judicial College, the News Media Association, Society of Editors and the Medial Lawyers Association. The guidelines aim to assist anyone who may be thinking of doing so to understand how and why they may be restricted or prevented from reporting certain matters in relation to criminal proceedings.
They have been updated to cover recent developments, such as the use of “live, text-based communications from the court” (which covers tweeting and texting from within the court) as governed by a 2015 practice direction; and recent changes in the law, such as provisions for the anonymity of victims of Female Genital Mutilation in court proceedings covered by section 71 of the Serious Crime Act 2015 (which came into force on 3 May 2015).
Moreover, although the guidelines are primarily concerned with reporting of criminal proceedings by the traditional media, which means “press, radio, television, press agencies and online media”, they also apply to “social media websites such as Twitter and Facebook”. There isn’t any more detailed definition of what this means, but when it refers to a “social media website” it must be assumed to mean the pages on which an individual account holder’s content is displayed, and for which that person is responsible. Presumably they also cover blogs.
The guidelines are fairly detailed because they are also designed for reference by the courts – Magistrates and the Crown Court – and are the sort of thing editors of local newspapers keep by their desk. But they include a set of simple “revision guide” panels with bullet points, which will make them accessible for lay commentators wishing (if so inclined) to check whether their online utterance or conspiracy theory leaflet crosses the thin red line of contempt of court.
Download the full Guidelines from the Judiciary website here.
Read the Judicial Office press release here.
Bad call (this week’s slightly silly story…)
Defendant steals his barrister’s phone
This is about the size of it. A man pleading guilty to and being sentenced for charges of drugs possession and driving without insurance at Bexley Mags on 1 May was allegedly daft enough to try nicking the mobile phone of his barrister. He was bailed to reappear in the same court a month later to answer that charge.
Original story, which I’ve just cannibalised, via Sky News.
Image sourced from Apna Patiala news.
Law (and injustice) around the world
According to Human Rights Watch, Armenian authorities released five political opposition activists on 4 May 2015, pending investigation into controversial charges of plotting street violence in the capital, Yerevan. They had been charged by the Special Investigation Service with planning a mass disturbance and preparation to commit a crime. The authorities claimed that the men plotted to provoke street violence in Yerevan during the 24 April commemoration of the 100-year anniversary of the Armenian genocide.
New surveillance law in wake of Charlie Hebdo attack
The French parliament has overwhelmingly approved sweeping new surveillance powers in the wake of the terrorist attacks in Paris in January that killed 17 people at the satirical magazine Charlie Hebdo and a kosher grocery in Paris, reports the Guardian.
The new law allows intelligence agencies to tap phones and emails without seeking permission from a judge. It forces internet service providers and phone companies to give up data upon request.Intelligence services will have the right to place cameras and recording devices in private homes and install so-called keylogger devices that record every key stroke on a targeted computer in real time. The authorities will be able to keep recordings for a month and metadata for five years.
Though supported by an overwhelming majority in Parliament, the bill has provoked strong opposition from civil liberties and privacy groups.
The Guardian notes that the president, François Hollande, has taken the rare step of promising to refer the law to the constitutional council, the country’s highest authority on the constitution, to ensure its principles are lawful. The law will now be examined by the senate.
Ban on weird hair styles
Mostafa Govahi, the head of Iran’s barbers’ union, told the semi-official Isna news agency that certain types of male hairstyle were banned and any barber shops carrying out such haircuts would be closed down. It is not clear on what basis the ban is being imposed, but the Iranian police have also been clamping down on un-Islamic coiffeur, and other beauty-enhancing practices, despite Iran’s moderate president, Hassan Rouhani, having spoken against such crackdowns, stating that the police’s duty is to implement the law and not enforce Islam.
On the banned list are spiky, “Homosexual” and “devil worshipping” hairstyles, alongside tattoos, sunbed treatments and plucked eyebrows for men; and full body waxing for women (depilation of private parts being a particular concern to the religious authorities, apparently, though you wonder how they would actually know).
Previously, in 2010, Iran banned ponytails, mullets and long, gelled hair for men, but allowed 1980s-style floppy fringes or quiffs.
Full story: The Guardian
Fears over further proposed executions in Indonesia
Following the news that eight individuals, including four Nigerians, had recently been executed for drug smuggling in Indonesia (see Weekly Notes – 1 May), another eight Nigerian citizens are facing the same prospect after they too were convicted in Indonesia of drug smuggling offences which carry the capital sentence.
According to All Africa, a group called United Nigerians In Diaspora, UNID, have been urging the Nigerian government to use its bilateral relations with Indonesia to obtain a stay of execution. The group also criticised the fairness of the defendants’ trials, since they were not provided with any help from the Nigerian embassy or the services of a translator to follow the trial.
Trial by fisticuffs
Two lawyers were charged with assault after a court conference erupted into a physical fight, reported the ABA Journal. The fight took place at Bergen County Courthouse, in New Jersey and required more than a dozen of the Sheriff’s staff to break it up. Both lawyers were released without bail.
This is by no means the first such incident. Back in 2008 two attorneys decided to duke it out in a Portland, Oregan courthouse, according to the ABA Journal.
Let no one say the American legal system is not conducted according to impeccable adversarial principles.
ICLR will be fielding a team in the London Legal Walk.
We are walking with the Lord Chief Justice and thousands of lawyers to raise funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London.
We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and disabled and fighting exploitation.
We also know how short they are of the funds to continue that work.
Our team this year is:- Georgina Orde, Susanne Rook, Celia Fox, Scott McGlinchey, Matthew Brotherton
Please sponsor, via Virgin Money Giving page. Thanks!
*A facetious remark. We have not seen a copy of the Queen’s Speech. As with the rest of this post, it was written by Paul Magrath, Head of Product Development and Online Content for ICLR, but not necessarily representing its views.