Weekly Notes: legal news from ICLR – 26 September 2014
Posted on 26th Sep 2014 in Weekly Notes
This week’s selection of stuff about law and injustice from home and abroad includes Labour’s position on legal aid, the state of the nation’s prisons and a weird little story about Ukulele bands.
Also of interest, in the legal blogosphere this week:
- Clarity in law: precedent law by David Burrows on dbfamilylaw
- Who to follow : The Precedent or the President? by Lucy Reed on Pink Tape
- Britain can lawfully attack “the Islamic State” in both Iraq and Syria by Carl Gardner on Head of Legal
Labour conference – whither Legal Aid?
Or will Legal Aid wither under Labour, too?
No one was watching the performance of the Labour top brass more avidly than the publicly funded Bar and solicitors, to see what signs there might be for expecting some reversal of the corrosion of legal services under the acid reign of the present Secretary of State for Justice. What, in particular, could they expect from his shadow, Sadiq Khan, who has the sympathetic merit of being a lawyer, unlike Chris Grayling.
Khan posed earlier this year for a “jelfie”, a portrait in which he held up the hashtag placard “I am for justice” (see Weekly Notes – 13 June). His problem, of course, is that reversing the legal aid cuts will take money that Ed Balls, the shadow chancellor is unlikely to spare, because he wants to reassure the financial world that he’s not going to let the debt (which ballooned under the previous Labour administration) get out of hand. So if Labour get in (they are ahead in the polls) the national wallet is likely to remain firmly sewn into the chancellor’s back pocket, and not dispensing any largesse in the direction of the legal world.
For more on this: Gazette.
The Guardian identified Four landmark legal aid cases that might not be taken today, including the Stephen Lawrence case and the Hillsborough victims’ claims.
The Children’s Commissioner, Maggie Atkinson, in a recent report The impact of Legal Aid changes on children since April 2013 said vulnerable teenagers were being deprived of jsutice because legal aid cuts were preventing them getting representation. In consequence, rights guaranteed by United Nations conventions were being breached without the children being able to obtain any remedy. Full report, Guardian.
However, Khan did say there would be more support for human rights: this is an issue on which there is clear blue water between the two main parties, the Tories (or some of them) being quite vociferous in their opposition to what they see an an over-extension of the scope of human rights as against other rights, duties, and the peace and security of the nation. There’s been talk of repealing the Human Rights Act 1998 or rescinding treaty obligations to observe the European Convention on Human Rights, but the likelihood of this happening is remote. ( Expect instead a wildly-semaphored message-sending amendment to the 1998 Act which will turn out to have limited, if any, legal effect.)
That said, Labour’s record, especially in regard to its bossy, authoritarian criminal, terrorist and surveillance legislation, left it open to criticism as a supposed champion of human rights, as noted in another report in the Gazette.
In the hangover that followed the Scotland “No” to independence vote, everyone woke up with blurry but inerasable memories of having been promised “change” and “more powers” and no doubt more money as well. Who actually made these promises and were they entitled or authorised to do so? (The three leaders are on the Record as doing so.) No one voted on them, unless you count the Scots voting No in expectation of their being honoured; but no one in England, or Parliament, possibly not even the cabinet. “DevoMax” appeared like a fiery chariot from the sky, a deus ex machina, or Saltire-caped superhero, airlifted in to save the No campaign. Hmmm.
That said, Labour, whose former leader Gordon Brown was prominent in the promising, have given serious discussion to implementation of the vowed transfer of greater powers and budget. What they have refused to countenance is any tie-in with constitutional change to solve the so-called West Lothian Question, ie why should Scottish MPs vote on legislation only affecting England, while English MPs cannot vote on equivalent legislation over Scotland (or Wales or Northern Ireland) following devolution. The Tories by contrast wish to yoke the two issues to gether. Labour have called for a constitutional conference, which sounds like a way of kicking things into the long grass for at least a Parliament’s length, denying that this has anything to do with their reliance on Scottish Labour support for any enactment at all, should they gain but a slender majority in 2015.
Joshua Rozenberg, in West Lothian question: easy to ask, trickier to answer, discusses and rejects the idea of English votes for English laws as a “beguilingly attractive policy” but one that would result in “two classes of MP and two classes of business” and would be unworkable.
As for the idea of a “constitutional convention”, Carl Gardner in his Head of Legal blog, first disentangles the ambiguous meaning of the phrase (convention in the sense of tradition or rule is not what’s meant here, though that’s the kind he favours) and then, in a further post, pleads Let’s avoid a huge constitutional talkfest.
That’s not because he opposes English votes in principle; he just thinks it (or something like it) can be enabled in a fuss-free way by implementing the proposals of the McKay Commission which has already looked into the matter. Piecemeal change has worked better in the past and a written constitution of the sort that might be expected to result form any grand scheme change would hobble British politics and prevent future progressive change (as has happened in USA).
Prison is supposed to reform people but a common complaint is that prisons themselves need reforming
An Observer editorial earlier this month averred that the Justice secretary, Chris Grayling, could no longer ignore shocking facts about the state of Britain’s jails.
Recent reports of the Prison Inspectorate on HMP Wormwood Scrubs and the Glen Parva young offenders’ institution appear to suggest a prison service in meltdown, resorting to the touchpaper word “Dickensian” in its categorisation of the problems. “Unclean lavatories”, “cockroaches” and “graffiti” jostle with the words “crisis” and “denial”.
Overpopulation (too many sent to prison, often for offences that don’t really warrant incarceration) is largely to blame – something the previous Lord Chancellor, Ken Clarke attempted to tackle, until mobloid opinion and muttering class rhetoric turned the Coalition against the idea.
To give him some credit, Grayling has talked up rehabilitation, but his version seems to be all tough-love and no tenderness. Hence the widely criticised prison book (by post) ban, on which subject the Prisoners’ Education Trust (PET) has recently issued a report warning that such restrictions could inhibit inmates’ ability to learn and improve themselves. The report entitled Brain Cells: Listening to Prisoner Learners says staff shortages are making it harder for prisoners to access prison libraries.
See also, BBC
Google, Privacy and the Right to be forgotten
A myth is as good as a mile: EU Commission launches “myth-busting” factsheet
The Commission of the European Union has issued a feisty riposte to all the hysterical, inaccurate and posturing responses to the Court of Justice’s ruling in the in Google Spain SL v Agencia Española de Protección de Datos(Case C-131/12); ECLI:EU:C:2014:317  3 WLR 659 (see Weekly Notes – 16 May).
Among the six myths it busts are: “The judgment entails the deletion of content” (no, just the search engine results); “The judgment allows censorship” (no, governments cannot decide what can be seen, and the process of removal will be supervised by legal data protection authorities) and “The judgment changes the way the internet works” (no, search engines work as before, and they have always filtered some results for one reason or another).
See also Privacy and the Right to be Forgotten in Weekly Notes – 12 September, re the astonishing comparison between takedowns for the RTBF (thousands) and those claimed for copyright infringement (millions). There’s really no comparison.
On the subject of copyright infringement, an interesting case currently before Arnold J in the Chancery Division is Cartier International AG v British Sky Broadcasting, in which the jeweller is seeking an injunction requiring ISPs such as BSkyB, BT, TalkTalk et al, to block websites allegedly selling counterfeit goods. This goes farther than previous attempts to prevent the sale of counterfeit goods, eg using google “adwords” as clickbait, and is more like the sort of response used against illegal download sites that sell or circulate infringing film, music and videogame content. For more on this, see David Allen Green, on Open Rights Group, When can a High Court grant an injunction to trade mark holders against ISPs to block access to “infringing” websites?
Also reported in the Guardian.
Law and injustice around the globe
Another African nation outlaws homosexuality
Chad may become the 37th country in African to create laws making same-sex relations a crime, with penalties of up to 20 years in jail. Section 361 of a draft new code states the punishment for anyone who has sexual intercourse with someone of the same sex is 15 to 20 years in jail and a fine of 50,000-500,000 Central African francs (£60-£600), according to a document seen by Agence France-Presse.
On a more positive note, the new penal code also abolishes the death penalty, more than a decade after the last execution of prisoners, a move welcomed by activists.
Full story, Guardian.
Commercial pressure could help curb human rights abuses, suggests HRW
Sophie Richardson, China Director at Human Rights Watch, suggests in a recent article that large European and American firms doing business in China can play a role in improving the human rights situation and preventing abuses, and by supporting the Rule of Law can improve the environment in which they do business.
As some of the world’s biggest, best-known firms – with far greater leverage against the government than individual activists – begin to voice their concerns, there are opportunities for change.
She gives examples of how the same issues can affect both types of party.
Often international companies and human rights defenders faced similar problems. A number of journalists, including Gao Yu and Shi Tao, were prosecuted on the grounds of violating China’s notoriously opaque state secrets laws. Fears of violating those same laws have led to penalties against the Chinese subsidiaries of major international accounting firms, who cite them in refusing to open their books to audits.
Firms ranging from Microsoft to Mercedes – like the Chinese legal aid organizations Gongmeng and Yirenping – have been raided on questionable grounds, and the January, 2013, blocking of GitHub, a major Web-based hosting service, affected wholly commercial coders and on-line government critics alike. A well-known lawyer, Pu Zhiqiang, and Peter Humphrey, a British corporate investigator working for GlaxoSmithKline, both face vague charges of “illegally obtaining personal information.”
So what would be good for business, she says, would be good for human rights. Basically, supporting the Rule of Law will help both parties.
An independent, professional legal system in China should be able to both enforce contracts and protect peaceful speech; a truly free press can report accurate, timely information to hold diverse interests accountable. The ability of people to share their ideas freely is essential for a competitive business environment and a less abusive, opaque political system.
Sarkozy corruption investigation suspended
A French judge has temporarily suspended a corruption investigation against the former President, Nicolas Sarkozy, to allow time to review his motion to dismiss the charges, which are said to relate to his 2007 presidential campaign, according to the New York Times.
Court cancels major coal field contracts assignments as “illegal”
Sitting in the Supreme Court in Mumbai with two other judges, the Chief Justice, Rajendra Mal Lodha held that the process of allotting “coal blocks” by the Screening Committee of the Government of India had been “arbitrary and illegal”. In a subsequent hearing to determine the consequences of their declaration, and having ascertained that all relevant parties likely to be adversely affected had properly been heard on the matter, the court ruled on 24 September, that the coal blocks should be reallocated.
In total, the Supreme Court of India canceled the allotment of 214 coal fields granted by the government between 1993 and 2009 to steel, cement and power companies. The ruling is the culmination of a two-year investigation into the allocation of coal leases by the government, initiated after a report by the federal auditor in 2012.
Reports of the case in New York Times, re first ruling Coal Leases Were Illegally Granted, an Indian Court Says and second: India’s Top Court Revokes Coal Leases.
Full copy of the second judgment, via India Supreme Court Judgment Information System (JUDIS): Sharma v Principal Secretary
Blogger sentenced to death for insulting Prophet
The Independent reports this week that a blogger in ‘poor psychological condition’ has been sentenced to death after being found guilty of insulting the Prophet Mohammad on Facebook. The report adds:
Branch 75 of Tehran’s Criminal Court, under Judge Khorasani, found Mr Arabi guilty of insulting the Prophet, or “sabb al-nabi”, on 30 August.
Article 262 of the Islamic Penal Code states insulting the Prophet carries a punishment of death, however, article 264 of the Penal Code says if a suspect claims to have said the insulting words in anger, in quoting someone, or by mistake, his death sentence will be converted to 74 lashes.
The anonymous source [speaking to the International Campaign for Human Rights in Iran] claims: “Unfortunately, despite this Article and the explanations provided, the judges issued the death sentence.
Abu Qatada cleared of terror charges
The “radical Muslim cleric” (all papers) who was deported from the UK in 2013 after the Home Secretary, Theresa May, secured an undertaking from the Jordanian authorities not to use evidence obtained by torture, has been found not guilty of an alleged terrorist plot against tourists and diplomats during Jordan’s Millennium celebrations.
May praised the result as a vindication of the rule of law, though she must have been disappointed after all the trouble she went to in getting Qatada deported. Previous deportation attempts had failed owing to the risk, found by the courts, of the use of torture in breach of Qatada’s human rights, protected under UK law.
Qatada remains subject of a UN travel ban and cannot return to the UK.
A full account of the story and its history is on BBC website.
Thousands jailed on politically motivated charges
Uzbekistan has locked up thousands of people on politically motivated charges, with prisoners typically kept in abysmal conditions and subject to torture and ill treatment, Human Rights Watch said on Friday in a landmark new report on one of the world’s most repressive and secretive regimes.
Full story, via Human Rights Watch, in the Guardian.
Chelsea Manning: refusal of gender treatment is “cruel and unusual” punishment
Private Manning, who is serving 35 years imprisonment for disclosing classified documents to Wikileaks, has begun an action against the US Department of Defense and others to compel them, by means of an injunction, to allow her to have hormone and other treatment for gender dysphoria, on the grounds that their refusal constitutes “cruel and unusual punishment” in breach of her constitutional rights.
More on this, including links and a copy of Manning’s memorandum in support of the motion, on Carl Gardner’s Head of Legal blog, here.
Halsbury Awards 2014
Two top judges were among the legal luminaries awarded this year.
Lord Judge, former Lord Chief Justice, was awarded the Lifetime Contribution Award. He has made a substantial contribution to ICLR as well, launching our educational DVD in 2009 and then, two years later, ICLR Online.
Sir Alan Moses, former Lord Justice, now chair of the Independent Press Standards Organisation, was awarded Legal Personality of the Year.
Full list of winners, here.
This week’s slightly silly story…
Ukulele band name not banned (for now)
In a tug-of-tags reminiscent of the controversial distinction between the People’s Front of Judea and the Judean People’s Front in Monty Python’s Life of Brian, the promoters of the United Kingdom Ukulele Orchestra have successfully fended off an interlocutory challenge by the Ukulele Orchestra of Great Britain.
UOGB, who have been going for nearly 30 years, are claiming breach by TUKUO of their trade mark rights in their name, and sought an immediate injunction preventing them from performing under the TUKUO name during their first British tour. But Judge Richard Hacon, sitting at the Intellectual Property Enterprise Court, declined to issue the injunction, stating that TUKUO, formed around 2009, had been performing for some years on the Continent and UOGB should have acted sooner.
Story via Fladgate, the solicitors acting for Yellow Promotion, the German-based promoters of TUKUO.
For more detailed notation: The Guardian
As it happens (writes @maggotlaw), I’ve seen UOGB perform in London and they’re brilliant. I have no idea if upstart rivals TUKUO are any good, but, much as I enjoy the odd (decidedly odd) strum on the Uke (see left), I’m pretty sure neither band is going to be recruiting me any time soon.
(On other pages: plucked from obscurity… striking a chord… stringing us along… no need to fret…. etc etc.)
All right everyone, that’s it for now.