Weekly Notes: legal news from ICLR – 10 October 2014
Posted on 10th Oct 2014 in Weekly Notes
This week’s roundup of legal news from home and abroad includes more on the war on Human Rights, a nasty case of vigilante justice, an amusing case of voter ignorance and a comment on the citation of cartoon quotations.
Other recent content of interest:
- The Children Act by Ian McEwan, reviewed by Paul Magrath
- Cats, genies and stable doors, by Sarah P on the Transparency Project (about the impact of social media on efforts to protect the anonymity of children and vulnerable persons involved in family court disputes)
Human Rights under siege
Conservative Party plans to scrap the Human Rights Act came under further scrutiny this week, and a Tory silk was wheeled out to try to defend them.
First of all, the plans themselves were released in a more formal manner by the Party, under the title Protecting Human Rights in the UK.
Then, at an event in Gray’s Inn, Martin Howe QC made clear that
A Conservative government will withdraw from the European Convention on Human Rights after the 2015 election … unless European countries agree their “British Bill of Rights” fulfils the UK’s international obligations.
As Carl Gardner reported on his Head of Legal blog, Howe was speaking at a:
“panel discussion at Gray’s Inn organised by barristers at Brick Court Chambers, in front of a distinguished legal audience including the Supreme Court Justice Lord Clarke and current and former Court of Appeal judges Sir John Laws, Sir Patrick Elias and Sir Henry Brooke. Also present were many eminent barristers and solicitors, including leading government lawyers who must remain nameless.”
Howe’s view was disputed by others present, including Paul Bowen QC (who recently moved from Doughty Street Chambers to Brick Court) who suggested the UK was likely to remain subject to the human rights Convention. Howe disagreed, and complained that the European Court of Human Rights was guilty not just of “mission creep” but also of “inventing entirely new doctrines”.
You can listen to the entire exchange on Soundcloud, via Gardner’s blog post: Martin Howe QC: Tories will pull out of the ECHR unless Strasbourg okays our plan
Support for human rights and the HRA continued to flood in from various quarters, including the senior judiciary, notably the President of the Supreme Court, Lord Neuberger of Abbotsbury.
Giving the Conkerton Memorial Lecture to Liverpool Law Society, he said
10… the Human Rights Act 1998 has, famously, introduced the European Convention on Human Rights into UK law. This has given judges the duty to do their best to interpret statutes so that they comply with the Convention, and, if not possible, to declare statutes non-compliant with the Convention; it has also given the judges the duty to develop the common law so that it accords people their rights under the Convention.
11. These developments have a number of interesting features. First, given that we have a set of rules which governs our approach to law and protects individuals, it is almost as if we have a constitution. Secondly, in any civilized society, if you give people rights, they also must have the right to enforce them, and people have indeed sought to invoke Convention rights through the courts. Thirdly, this in turn has resulted in the courts developing a UK human rights jurisprudence. This is in general very beneficial. Of course, there can be arguments about some individual decisions, the role of the Strasbourg court, and similar topics, but rights such as those embodied in the Convention are fundamental to the rule of law, particularly in a time of ever-increasing government powers. Fourthly, our common law has been reinvigorated by new thinking inspired by the Convention.
On the whole, the judiciary, led by Lord Neuberger, have been supportive of the HRA and Strasbourg jurisprudence (not without some criticisms), although former Lord Chief Justice, Lord Judge did find time to complain about the incursions on British sovereignty (and that of Parliament) by the Strasbourg human rights juggernaut, in an article for Counsel magazine, A View from London, which might give the iconoclasts some comfort.
Senior lawyers have also been vocal, including Dominic Grieve QC (the Attorney General They Didn’t Want To Listen To) who took part in the Brick Court symposium, and who has now written a piece in Prospect magazine, Human Rights Act: Why the Conservatives are wrong. He points out, in regard to the question of international obligations and why they matter:
In promoting the Convention and adhering to it, we have followed a long tradition that has seen our national self-interest bound up in promoting international order. Since 1815, we have signed over 13,000 treaties of which 800 contain mechanisms to resolve alleged violations. Each one acts as a “constraint” on our freedom of action as a nation. But the benefit of setting international standards has traditionally been seen to outweigh any diminution in sovereign autonomy.
You try telling that to the young Tories of today. They won’t believe you. (They won’t!)
- David Banks, in the New Statesman: What has the Human Rights Act done for us? Quite a lot, as it turns out
- Lord Neuberger on the Supreme Court: Five key cases from its first five years (Independent)
UKIP victory for “common sense” voters
Plus ça change, plus c’est le même homme.
The by-election for the Parliamentary seat of Clacton was won this week by the same MP as recently resigned from that seat, as a matter of principle, because he could no longer square his convictions with the present conduct of the Conservative party’s leadership.
Having resigned from his own party, Douglas Carswell then joined the United Kingdom Independence Party, whose views on Europe, immigration and human rights are, to put it neutrally, more pronounced (and more often) than those of the Tory party.
After the MP was re-elected under a different flag, one local resident informed TV reporters: “Yes, I voted UKIP. The Tory MP’s done nothing for years.”
Quite a turnout for democracy, you may think. (I couldn’t possibly comment.)
QASA challenge fails
Court of Appeal affirms refusal of judicial review of Quality Assurance Scheme for Advocates
Giving judgment in R (Lumdson and ors) v Legal Services Board and ors  EWCA Civ 1276;  WLR (D) 413, Lord Dyson MR, sitting with Fulford and Sharp LJJ, upheld the lawfulness of the decision of the Legal Standards Board (LSB) to approve a joint application by the Bar Standards Board (BSB), Solicitors Regulation Authority (SRA) and Ilex Professional Standards (IPS) to introduce the Quality Assurance Scheme for Advocates (“QASA”).
The scheme has been the subject of considerable controversy, not least because it involves judges “marking” advocates on the quality of their advocacy during the hearing of live cases (a bit like making a cabbie do a driving test while conveying a paying passenger), which was said to compromise the advocates’ ability to argue their clients’ cases fearlessly and impartially, and the judges’ ability to judge the cases without the risk of apparent bias. The scheme also involves expense and bureaucracy and is thought to have been considered necessary only because of the massive expansion of the ranks of solicitor advocates and other non-barristerial counsel, whose training is recognisably less extensive and stringent than that provided for, and demanded by, the Bar (a disparity in training requirements highlighted in the Jeffrey Review findings this May.)
Another allegation frequently levelled against QASA is that it’s just a winnowing out process: with legal aid cuts biting deeper every year, there are now simply too many advocates chasing too little work. No doubt there are some poor advocates, just as there are poor teachers and, dare one say, doctors. One reason there may be too many lawyers and not enough work might be the unnecessary expansion (and monetisation) of the legal training colleges.
The judicial review claim had already been rejected by the Divisional Court (Sir Brian Leveson P, Bean and Cranston JJ)  EWHC 28 (Admin): (see, on this blog, with background links: Court rejects legal challenge to QASA.) It was on an appeal from that ruling that the Court of Appeal gave its present judgment.
In giving the judgment of the court, Lord Dyson MR said it was not for the court to decide whether the scheme was proportionate or to express any view on its merits. It was simply to decide if the LSB had acted lawfully in deciding to adopt it. Having considered and rejected the various criticisms, including that the scheme would compromise the independence of the advocate, the court concluded that the LSB was “entitled to conclude that QASA was proportionate” and had acted lawfully in approving it.
- News report and comments: Gazette
- Commentary (critical of the Bar’s opposition): Professor Richard Moorhead, on his Lawyer Watch blog, QASA: time for some embarrassment
Grim RIPA strikes again
Police use of surveillance powers comes under scrutiny
Newspapers who were happy enough to dance to the government’s tune on human rights found themselves tripping up on a crack in their arguments when it came to police surveillance of their telephone records, using powers granted by the Regulation of Investigatory Powers Act 2000 (RIPA). Suddenly their own human rights, to privacy, to freedom of expression, appeared to have been compromised. Surely the law would step in to help them? Er, would that be the law they were so glad to see a prospect of having repealed?
Reported, without irony, by The Times: Police spied on local reporter investigating rape
Commented on, with more awareness of the irony, by Nick Cohen in the Spectator: Our suicidal newspapers are throwing press freedom away
Following the fuss in the press, justice minister Simon Hughes popped up over the weekend to say the government would rein in the RIPA powers and require the police to obtain judicial approval before snooping on journalists: Guardian, British police’s use of Ripa powers to snoop on journalists to be reined in.
Law and injustice around the world
Scholar detained on vague charge of “troublemaking”
Guo Yushan, scholar and rights advocate who founded an influential non-governmental think tank has been detained on the criminal charge of provoking troubles, according to his lawyer , Li Jin.
He is one of a number of people recently detained for criticising the government. At least 40 people in Beijing and another dozen elsewhere in mainland China have recently been held for supporting the Hong Kong protesters, including posting pictures and messages online showing solidarity and planning to travel to Hong Kong to join them, according to human rights group Amnesty International.
Many have been detained on the suspicion of provoking troubles — a vague charge that critics say has been increasingly used to suppress dissidents, activists and outspoken critics of the government as Beijing tries to avoid speech or state subversion charges that are more likely to draw international condemnation.
It’s not known if Guo was detained for this reason, as he does not appear to have made any public pronouncement on the issue.
Reported by The State.
Democracy protests resume after talks cancelled
Thousands of protesters poured back into one of Hong Kong’s main roads on Friday for a pro-democracy rally, reviving the civil disobedience movement a day after the government called off talks with student leaders, according to Huffington Post.
In a public letter dated 6 October, Human Rights Watch called on Hong Kong Chief Executive C.Y. Leung urgently to assure the public of their rights to peaceful assembly and expression in advance of his deadline that city streets be cleared. In the event, the streets were more or less cleared in time for the start of government business last Monday, but the occupation of the streets resumed after talks with government representatives were cancelled.
The Times this week suggested that Double standard is Hong Kong’s USP, in which Edward Fennell reported on the flourishing English legal system still functioning in the territory, and often peopled by English lawyers and judges, while in Beijing they bang on about the rule of law.
(Another article in the Times, about the resumption of the protests, disappeared after I’d tweeted a link to it. Mysterious.)
Vigilantes castrate alleged sex attacker
A man was castrated by an angry mob wielding a meat cleaver after he was allegedly caught attempting to rape a teenage girl in Ganganagar, a town in India’s northwestern state of Rajasthan, according to The Times.
India has seen a spate of rapes, or more prominent reporting and protesting of rapes, in recent months, which the new prime minister said was a source of national shame. Anger at police inaction is said to have fuelled cases of direct action by vigilantes. “Law and order has to be maintained and not lynch justice,” a police spokesman said. But that rather begs the question, why more is not being done by those who are supposed to do the maintaining.
Trial of woman for watching men playing sport
A British-Iranian student, Ghoncheh Ghavami, who is currently being held in a Tehran jail, will stand trial next week on a charge of “spreading propaganda against the regime”. Her crime? To attempt to watch some men playing volleyball. She has been held in custody for more than 100 days without access to a lawyer.
Full story: The Times
Police ‘torture’ man to death on train
A passenger was killed on Wednesday on a Rawalpindi-bound train as a result of alleged police torture over a ticketing issue, a private news channel has reported. The police had been called after a fight broke out between the passenger and a ticket collector. In the wake of the incident, an investigative team has been formed under the supervision of DIG Shariq Kamal to probe into the matter, reports Pakistan Today.
Shrien Dewani pleads not guilty to staged carjacking murder accusation
The millionaire British businessman accused of having his wife Anni killed in a staged carjacking during their honeymoon in Cape Town, has denied any involvement in her murder but admitted leading a double life in which he visited male prostitutes as he planned their wedding.
The trial is being televised and will no doubt attract almost as much attention as the last celebrity trial from South Africa, that of Oscar Pistorius, which ended last month.
Full coverage: the Telegraph
Should jurors be asked to testify about their deliberations?
The US Supreme Court looks likely to reject that idea, after apparently giving the petitioner’s counsel, Kannon K. Shanmugam, in the case of Warger v Shauers (docket No 13-517) a pretty rough ride when he tried to argue that he should be allowed to introduce testimony about statements made during jury deliberations, under Federal Rule of Evidence 606(b). This has been permitted in McDonough Pwr Equip v Greenwood 464 U.S. 548 (1984), an earlier case before the Supreme Court, to show that a juror had been materially dishonest during a voir dire. But although they have yet to give their ruling, the New York Times reported that the justices were “unlikely to allow” the petition. The petitioner is a disappointed plaintiff, whose personal injury claim was dismissed and he is alleging that one of the jurors appeared (to another, who then spoke to his lawyer) to be biased in favour of the defendant.
Full story (with links to transcript of argument): New York Times.
Link to docket on US Supreme Court Website.
On Wednesday night, the Jordan Publishing Family law awards were announced. The full list is here (Family lawyers celebrate after Family Law Awards 2014 ), but we are particularly happy to congratulate fellow legal commentator Andrew Pack, aka Suesspicious Minds – @suesspiciousmin as Family Law Commentator of the Year.
This week’s slightly silly story
Motion to discharge
A teenager in, apparently, Feltham, Middlesex is to stand trial for pleasuring himself in court, according to Court News UK. He was apparently spotted in the public gallery, during the hearing of another case, having “pulled out his private parts”, Hammersmith Magistrates Court was told. The defendant denied the offence of outraging public decency and elected trial by jury. It remains to be seen whether any point he may wish to advance will stand up in court.
What Is the Proper Format for a Citation to Buzz Lightyear?
Someone (a lawyer, presumably) wishing to complain of the interminable nature of a particular process of postponement, used the phrase “to infinity and beyond” and then felt under an obligation properly to cite the source of that comment, as follows:
Buzz Lightyear, Toy Story (Pixar Animation Studios, Walt Disney Pictures, 1995)
The story comes from Lowering the Bar, a legal humour website which makes a bit more of a meal of this particular morsel. However, we thought it would be more fun to supply a picture. With apologies to all concerned.
That’s all folks. Have a great weekend!