Thursday, 28 May 2015

Why we need our human rights (3) - Mental Health


The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for.  However, this is an important and difficult area where there continues to be room for considerable improvement.  Nevertheless, human rights have been a driving force behind the improvements to law and practice that have occurred in recent times.

The Mental Capacity Act 2005 (MCA)  - (link to the Act).



The MCA was designed to protect those who cannot make decisions for themselves. The MCA is underpinned by human rights principles that aim to ensure its provisions are applied in a way that respects our human rights. Guiding principles of the MCA include:

Wednesday, 27 May 2015

Queen's Speech 27th May 2015 ~ quick notes

The State Opening of Parliament has taken place and the Queen's Speech was delivered - see the full text of the speech (New Statesman 27th May).  The Speech outlines the principal features of the government's legislative programme.  The Speech announced some 26 Bills but it does not tell us everything that will be done.    There is always the phrase - "Other measures will be laid before you."

Much more detail is available in Briefing Notes issued by the government - Queen's Speech 2015

Reform of Human Rights Law remains on the agenda but the Queen's Speech merely referred to proposals being brought forward.  It remains to be seen whether this will be merely a consultation document or more.  This is likely to prove to be an exceptionally difficult area and it seems that the government is not in an excessive hurry to legislate.

Given the constitutional importance of some of the proposals, it is disturbing to note that the Political and Constitutional Reform Committee has been quietly scrapped - The Independent 27th May - The watchdog that would have scrutinised the end of the human rights just got quietly scrapped

Why we need OUR human rights (2) - the Right to LIfe

The European Convention on Human Rights and the Human Rights Act 1998 have brought about beneficial changes to our domestic (national) laws.  THE most important human right is the right to life itself (ECHR Article 2).  Here are some of the ways in which Article 2 has impinged in beneficial ways on our law.

Use of lethal force:

Back in 1995, in McCann and others v UK (1996) 21 EHRR 97, the E Ct HR found by a 10 to 9 majority that the UK was in breach of Article 2 when British soldiers killed suspected IRA terrorists in Gibraltar.  This was a highly controversial decision but the European Court of Human Rights (E Ct HR) set out the general principles applicable to the use of lethal force by the military, police and security forces.  At the time,

Tuesday, 26 May 2015

Why we need OUR human rights (1) - 17 year olds and the Police

On 19th April 2012, HC (the claimant) was just 17 years old when he was arrested on suspicion of having been involved in a robbery.  The Police did not inform his mother of his arrest.  In fact, they had no obligation to do so because the law at the time treated an arrested 17 year old as if he were an adult.

A judicial review was heard at the High Court in February 2013 and judgment given on 25th April 2013 - R(HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin) - Moses LJ and and Kenneth Parker J.

It is quite a lengthy and complex judgment so let's "cut to the chase."

Friday, 22 May 2015

Rights in the UK and elsewhere ...

Updated - additional material 24th May ...

Just how close the UK is to being an elective dictatorship is debatable.  In practice (if not in legal theory), a number of features operate to limit any tendency to such a situation.  One is devolution of powers from Westminster to the Scottish Parliament and to the Assemblies in Wales and Northern Ireland.  Another is the stronger protection of human rights in the UK offered by the Human Rights Act 1998 (HRA).  This is a system of rights protection based on the Council of Europe's European Convention on Human Rights (ECHR).

The ECHR requires that governments protect rights but

Tuesday, 19 May 2015

EU referendum Bill

Updated 25th May ...

It is reported that the government's EU Referendum Bill will be published the day after the Queen's Speech - see, for example, The Guardian 19th May

This Bill will not be the first Bill to seek a referendum but, this time, it will be a government Bill and there was a clear manifesto commitment.  "Private member" bills appeared in 2013 (James Wharton MP)  and 2014 (Robert Neill MP) though neither Bill succeeded in becoming law.   The government's Bill will need to address matters such as the referendum date; the wording of the question to be asked; who is entitled to vote.

Open Europe offers a roadmap to the referendum.  

The date:

Monday, 18 May 2015

Ramblings on a wet Monday evening ...!

In no particular order, here are some ramblings on a very wet Monday evening.

Transforming summary justice:

The Law Society Gazette (Monday 18th May) points out that:  "Less than 50% of people detained in police stations are represented by a lawyer, which means that most have to decide what to plead without having had legal advice. Some may bow to pressure from the arresting officer and plead guilty. Others may plead guilty even if they are innocent of any offence rather than risk paying the new set of criminal court charges that, since 13 April, can be as high as £1,000 in the magistrates’ court" - see the full article by Richard Atkinson (Chair of the Law Society's Criminal Law Committee) - Mind the GAP.   Also see, Crown Prosecution Service (Transforming Summary Justice) and the report earlier this year (Review of Efficiency in Criminal Proceedings).  Experience shows that in Magistrates' Courts

Barons to face Treason Trial ...!

On 31st July, Westminster Hall will be the venue for a mock Treason trial -Treason Trial date set for Magna Carta Barons   A group of a dozen or so modern-day barons and bishops will help mark the 800th anniversary of the sealing of Magna Carta by facing a mock trial judged by Lord Neuberger, President of the UK Supreme Court; Dame Sian Elias, Chief Justice of New Zealand; and Hon. Stephen Breyer, Associate Justice of the US Supreme Court.

Advocates recruited from across the Commonwealth

Friday, 15 May 2015

Human Rights ~ some weekend reading

Update: Addendum - Monday 18th May

The week since the General Election (previous post) has seen a massive amount of comment about the government's intentions to "scrap" the Human Rights Act 1998.  None of the detailed plans have yet emerged from within government and so we really only have the Conservative Party manifesto (see this post) to inform us as well as their announcement last October (discussed at length here).

Most of the comment during the week has favoured retention of the present system of human rights protection for all the peoples of the United Kingdom.  It has mostly been reasoned and responsible comment from many respected legal commentators. 

Wednesday, 13 May 2015

Human Rights ~ Battle lines are forming

The new Conservative government is committed to repeal of the Human Rights Act 1998 and also to the introduction of a British Bill of Rights.  I looked at this last Sunday (here) and noted:

 "Scrapping" the HRA is a Conservative manifesto commitment - see previous post.  A further commitment is a British Bill of Rights (BBR).  At the time of writing we have not seen the Bill that will repeal the HRA and we have not seen even a draft of the proposed Bill of Rights (BBR).  All of these ought to be the subject of extensive examination and consultation.  They must not be rushed through in the first 100 days as the new government hits the ground running!  If the BBR is to apply across the whole of the UK then clearly it will have to be acceptable to the people of all parts of the UK (England, Wales, Scotland, Northern Ireland).  Whether it will be so acceptable remains to be seen ... "

It will probably be after the Queen's Speech

Monday, 11 May 2015

Michael Gove as Secretary of State for Justice and Lord Chancellor

The Rt. Hon Michael Gove MP has been appointed as Secretary of State for Justice and Lord Chancellor - see No. 10 Appointments.  This dual role was previously held by Jack Straw, Kenneth Clarke and Chris Grayling.  Mr Gove is a somewhat controversial politician - (here is an example from his time as education Secretary in the 2010-15 coalition government). His entry on wikipedia is worth reading.

He is the second person who is not legally qualified to hold the office of Lord Chancellor.  In December 2014, Parliament's Constitution Committee published a report about the Lord Chancellor and stated that:

' ... the Lord Chancellor’s duty to the rule of law requires him or her to seek to uphold judicial independence and the rule of law across Government.'

The report

Sunday, 10 May 2015

Our fundamental rights on the brink ~ some thoughts on Sunday morning

The very essence of the European Convention on Human Rights (ECHR) is respect for human dignity.  The ECHR is an instrument for the protection of individual human beings.  The Convention sets out certain principles which ought to apply in civilised democratic States.  As individuals under the rule of law, we have a right NOT to be treated by the State in a way that breaches those principles.

Before the Human Rights Act 1998 (HRA) came into force (on 1st October 2000), the UK faced an embarrassingly large number of successful cases demonstrating just how far our domestic law had departed from convention principles.  One of the enlightening features of the HRA has been that it has introduced an important dynamic to require the judiciary to bring the common law back in line with the ECHR.

All political parties

Friday, 8 May 2015

General Election 2015

The election results are in and, contrary to opinion polls, a Conservative government has been returned albeit with  a majority of 12 - see BBC Election Results for the detail.  An overall majority avoids the need for consideration of what will happen in a "hung" Parliament - though it was an interesting topic discussed here and here. The Liberal Democrats have just 8 seats and they seem to have paid a very heavy price for being in the coalition alongside the Conservatives.  The Labour Party emerged as the second largest party in the House of Commons but they have only a single seat in Scotland - (Scottish results) - having lost to the Scottish National Party (SNP).  Interestingly, the SNP leader  (Nicola Sturgeon) did not stand for a seat and so their 56 members will not have her to lead them in the House of Commons. Nicola Sturgeon holds the office of First Minister in the Scottish government.

Northern Ireland has returned 18 Members of Parliament and Wales has returned 40 MPs.  UK Parliament - Current State of the Parties

Proportional representation?

The election results

Wednesday, 6 May 2015

A constitutional imbroglio ?

The question of what will happen in the event of a further "hung" Parliament continues to be asked.  Writing in the Law Society Gazette 4th May,  Joshua Rozenberg looks at the possibilities - A constitutional imbroglio.  The article also considers the possibility of there having to be an election before the date set by the Fixed-Term Parliaments Act 2011 (i.e. the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell - 7th May 2020).

The Fixed-term Parliaments Act (FTPA) ensured that the opposition and the incumbent Government face the electorate on a set day whatever way the opinions polls are pointing at the time. The Bill makes provision for elections to be called earlier under only two exceptional circumstances. Parliament can be dissolved early if: (1) at least two thirds of MPs vote for dissolution or (2) a Government is unable to secure the confidence of the House of Commons within 14 days of a no-confidence vote.

Sunday, 3 May 2015

Legal aid cuts threaten our very democracy

'Without access to justice for all, inequalities take on a more dangerous edge which threatens the legitimacy of not just the justice system but our democracy.'

Legal aid and access to justice have both become prevailing themes on this and other blogs.  Legal aid in civil cases has been severely reduced and this coupled with vastly increased charges for the "privilege" of using courts or tribunals has put access to justice out of reach for many.

A letter in The Guardian 1st May strongly makes the point that access to justice is a key element in our democracy.  The letter is signed by numerous individuals including two retired Court of Appeal judges.  The next government is called upon:

' to abandon the highly controversial restructuring of criminal defence, restore legal help to the many currently without redress and to establish a royal commission to investigate the current crisis regarding the diminution of access to justice. In addition we call for an independent body to review legal aid rates, including expert witness rates so as to depoliticise them and instead move to an evidence-based approach to ensure public need is adequately met in the provision of legal services.'

Please read the letter at The Guardian 1st May 2015 and please bear this in mind when choosing who to vote for in the General Election. 

Tuesday, 28 April 2015

What if ~ as seems likely ~ it is a hung Parliament ?

The General Election for the United Kingdom of Great Britain and Northern Ireland is rapidly approaching.  The latest opinion polls are analysed by UKPollingReport and they continue to suggest a "hung parliament" - that is, no party having an overall majority of seats.  

What is the legal position in the event of such a Parliament ?  Under our Parliamentary system, the test for whether a Prime Minister can govern or not is whether he (or she) commands a majority in the House of Commons.  The situation is expertly considered by Carl Gardner on his Head of Legal Blog - Ed can enter No. 10 without Nicola's keys - and I recommend reading of his post.

The fact

Sunday, 26 April 2015

Who may stand for election to Parliament?

In a recent conversation, someone asked whether a member of the Scottish National Party (SNP) could stand for an ENGLISH seat in Parliament. As a matter of law, the answer is Yes.  This is because it is individuals who stand for Parliament and not political parties.  Of course, it is doubtful whether anyone standing for the SNP in an English constituency would ever be elected but that would be a matter for the electorate in that constituency.

For that reason, from time-to-time, there will be a Member of Parliament who is an Independent - that is, independent from any political party and in no way beholden to the Party Whip systems.  Independent MPs are quite rare these days but, in the 20th century, there were quite a few - see the lists in this Wikipedia entry and also see The Guardian - Other Famous Independent Parliamentary Candidates.  One notable recent independent MP was the broadcaster Martin Bell - elected as an Independent MP for Tatton (in Cheshire) from 1997 to 2001 having stood on an anti-corruption platform against the sitting Tory MP, Neil Hamilton.

Some categories of individual are disqualified under

A brilliant new website - RIGHTS INFORMATION

At a time when "human rights" are under attack from certain politicians and elements in the popular media, a superb new website has arrived - Human Rights Information to Share (or Rights.info.org).  Many congratulations to barrister Adam Wagner and those behind this initiative.  The need to help people understand their rights and to value those hard-fought rights has never been greater and Rights Information goes a long way to help.

Here you can see Everything you need to know about rights, find out what human rights do for us, get information on 50 cases where human rights have improved the law, sign up for a daily newsletter and there is much more!

Please share the link to Rights Information with your friends and work colleagues.

Writing on his Head of Legal blog, Carl Gardner says of Rights Information

Saturday, 25 April 2015

The DPP under the microscope over Janner

Criminal Law Blog 24th April - Lord Janner prosecution - comment

Law and Lawyers 18th April - Lord Greville Janner - the decision not to prosecute

The decision by the Director of Public Prosecutions (Alison Saunders) not to institute criminal proceedings against Lord Greville Janner (see previous post where the decision is explained) has resulted in outrage in certain quarters.

Questions have been raised about Janner's dementia despite the point that four medical practitioners (two from each "side") had advised that he was not fit to stand trial - see, for example, The Guardian 20th April - Further questions raised about whether or not Lord Janner is fit to stand trial.

A considerable number of politicians have lined up to criticise the decision.

A letter to The Times by various politicians urged reversal of the DPP's decision - see The Independent 22nd April

The DPP

Monday, 20 April 2015

The Conservative Party manifesto and human rights

The Conservative Party manifesto states that the terms of British EU membership will be renegotiated and an in/out referendum held.  The Human Rights Act will be "scrapped" and replaced by a British Bill of Rights.  As for legal aid, the document merely informs us that they would continue to review our legal aid systems, so they can continue to promote access to justice in an efficient way.

The statement about legal aid continuing to promote access to justice is questionable since legal aid has been removed from many areas of civil law, considerably curtailed in Magistrates' Courts and means tested in the Crown Court so that many will end up paying a contribution to their legal fees.  Just what the manifesto means by review is debatable but it seems unlikely that they would be proposing any reinstatement of legal aid into areas where it was withdrawn under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Human Rights - a few thoughts: