It Doesn’t Matter What You Say, We’ve Made Our Minds Up

Mr Justice Burnett has quashed Chris Grayling’s decision to reduce from 1600 to 525 the solicitors’ firms who will get legal aid contracts to act as duty solicitors. This was the centrepiece of the MOJ’s restructuring of the supply of legal aid, would have driven hundreds of dedicated and experienced lawyers, on whose work the criminal legal system depends, out of business. The Judge has ruled that the decision to adopt this policy was illegal, because the MOJ’s consultation procedure was flawed by unfairness.

This is because Grayling hid from consultees two key pieces of research that the MOJ had commissioned: ‘expert’ reports about the impact of restructuring the market for criminal legal services.  The MOJ based its plans on the reports. But the research (when eventually disclosed) turned out to be contentious and based on questionable (or just plain wrong) assumptions. Burnett J held that the failure to let the consultees see and comment on this research ‘… was so unfair as to result in illegality’ [§50], and so he quashed the decision.

There’s another intriguing passage in the judgment. The Judge received evidence from a number of solicitors, who described how they would have responded if they had seen the undisclosed material when they should have done. He also had evidence from Dr Gibby, the MOJ’s head of legal aid policy, and a very senior mandarin indeed. Dr Gibby said that the responses by the professionals, had they been known, would have made no difference to the MOJ’s decision. That, you may think, is pretty sweeping, and doesn’t say much for the MOJ’s willingness to deal with reasoned objections to its plans. But here’s the thing: Burnett J comments [§46] that

On instructions, [counsel for the MOJ] confirmed that this represented Dr Gibby’s opinion and was not to be taken as an assertion that, had he considered the representations foreshadowed in the claimants’ evidence, the Lord Chancellor necessarily would have sanctioned the adoption of the same assumptions or that the eventual decision would have been the same

What does this mean? It’s a bit Delphic, but to me it strongly suggests that the Minister is disavowing his own senior civil servant: that may have been what she thought, Grayling is saying, but I did not share that view. He is cutting her loose, and blaming her for any false impression that the solicitors may have formed about his real view of the matter.

So we have a senior civil servant saying that the informed views of those who would bear the brunt of the policy would have been disregarded in any event; and a minister apparently – and publicly – dissociating himself from her; and all in a context of fundamentally flawed decision-making. This wasn’t about some parochial matter like planning permission for a supermarket, but about whether legal services would be available to some of those most in need of them, and whether two thirds of solicitors’ firms would cease to exist: with serious knock-on effects for criminal justice and for law and order more generally.

What an almighty cock-up. This is train-crash government. It is not comforting to know that earlier in her career, Dr Gibby was the Director of the Royal Society for the Prevention of Accidents.

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Legal Aid – European Perspectives

On 25-26 April the European Criminal Bar Association held its spring conference in Warsaw, hosted by the Warsaw Bar Association. The theme of the conference was ‘Legal Aid – Privilege for Criminals or Essential for Fair Proceedings’.

The ECBA was founded in 1997 by Professor Franz Salditt, of the German Bar Association, and Rock Tansey QC from the UK, to enable criminal lawyers across Europe to meet, share experiences, and discuss matters of common interest. It has produced a large number of policy documents, which have been used to assist and inform decision-makers in national jurisdictions, and in the European Commission.

The occasion of the Warsaw conference was discussion of the Proposed Directive of the European Parliament on Provisional Legal Aid for Suspects or Accused persons deprived of liberty and Legal Aid in European Arrest Warrant Proceedings  Com (2013) 824, and the European Commission’s Recommendation on the right to legal aid C(2013) 8179/2.

 The 80 or so delegates came from 18 countries:

Austria

Belgium

Estonia

Czech Republic

France

Germany

Ireland

Latvia

Lithuania

The Netherlands

Norway

Poland

Portugal

Russia

Serbia

Slovakia

Sweden

UK

They included practising lawyers, judges, academics, and policy makers: of these, Tomasz Darkowski, a senior official in the Polish Ministry of Justice, described the budgetary implications for Poland of decisions to widen the scope of legal aid, and Michele Coninsx, the President of the EU body, Eurojust, that oversees the European Arrest Warrant (EAW responded to criticisms that the EAW is used disproportionately for minor offences and lacks procedural safeguards and proper provision for legal aid.

What was striking during the formal presentations and discussions, and informal conversations around them, was how colleagues across Europe not only face the same problems as we do in the UK, but that we have the same common underlying values.

We all perceived the decent provision of legal aid to criminal suspects and defendants as something fundamental to the rule of law, without which there can be no meaningful access to justice; without access to justice, the rule of law suffers; without highly competent and fairly rewarded defence lawyers, the state will abuse its powers; the rule of law may not be an end in itself, because we may be ruled by harsh and oppressive laws, but it is surely a necessary condition for liberty to flourish, if not a sufficient one. For the delegates whose countries have recently emerged from dictatorship and satellite status, these values must have been more potent and immediate than for those of us accustomed to a high degree of freedom.

They in particular will have been aware of how fragile liberty can be – when one of its strands is weakened, the whole thing begins to totter.

My small contribution to the work of the eminent scholars and jurists at the conference (I’m not a jurist, or a scholar, or eminent) was a paper reporting in summary form on the rise and fall of legal aid in the UK, from 1949 to 2014, and the political forces which shaped it and are now destroying it.

The UK was once looked to as a beacon of justice by providing legal aid for those who could not pay for advice and representation. I fear that it will soon be seen as a model for how to do the opposite. We must not forget that the destruction of legal aid is a political act, driven by two forces: first, the need, as Kenneth Clarke saw it when he was Minister of Justice, not to ‘leave untouched a system that has grown astonishingly, making the poor extremely litigious’; second, to claw back power to the executive, by measures such as the restrictions on judicial review and the use of secret evidence in civil cases, which put administrative acts out of the reach of proper legal scrutiny. The financial crisis was a useful but mendacious alibi to justify a massive attack on access to justice across the board, which is what cutting legal aid means.

European colleagues gasped when they heard the Clarke quote, and gasped again when told that our present Minister of Justice has no legal experience or training whatever. Poland, the venue of limitless cruelty and horrors in the 20th century, values its hard-won freedoms and knows how precious and precarious they are. Do we?

 

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Dallas Buyers Club

This film takes many of Hollywood’s familiar tropes and clichés, and spins them into the dark early years of the US AIDS epidemic in the 1980s. The little man who takes on the big battalions starts off as a vile, drunk, bigoted piece of Texan trailer trash; the big battalions are doctors and drug companies trying to find a non-lethal treatment for HIV/AIDS. They want a cure that makes money, and so does he, so he goes to a guru in the unlikely form of a struck-off physician practising in Mexico, and sells large quantities of unapproved but effective remedies back in Texas. He achieves the American dream – anyone can get rich and successful  if they try hard enough – but only by living through the nightmare of a terminal illness.  He keeps a pump-action shot gun in his car and a pistol on his desk, symbols of his rugged independence. He needs to test his manhood, by riding bucking broncos. He finds to his great surprise he has a gay best friend, and ceases being a heartless tin man and a brainless straw man by overcoming his homophobia and outsmarting the medical profession with his own research. He gains redemption of a kind through the love of a good woman, who also happens to be his doctor.

The authorities obstruct him at every turn: the Food and Drug Administration, the Internal Revenue Service, and the law (though the Judge is, in true Hollywood fashion, wise and compassionate).

This is a thoroughly right wing film. There is no hint that that the authorities may be right to restrict the freelance peddling of powerful, unlicensed prescription drugs by a completely unqualified maverick. The armed loner, for all his flaws, is a hero against the collective. I detect a smack in the eye for Obamacare, in which the state takes a greater role in medical provision than Americans have been used to. The concept of a benevolent, regulated, free system of health care for all who need it gets no airtime at all, and would be at odds with the film’s glorification of the individual’s struggle against the system.

Had it been made 30 years ago it would have been a sensation. Now that the menace of HIV has been largely tamed in the USA, the film is a period piece – with some lovely period touches: as Matthew McConnaughey’s character evolves into a globe-trotting freelance pharmacist, he acquires an early mobile phone the size of a housebrick. He gives a great performance, as a man whose illness reduces him to a physical wreck and – if you shrug off the film’s politics – raises him to be a moral hero.

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Righteous Among the Nations?

Francis Foley was a spy who acted as the Passport Control Officer at the British Embassy in Berlin during the Nazi era. Our immigration policy at the time prevented people who would compete with professional workers from entering the UK. The very old, the sick and handicapped, and persons associated with the Communist Party were also barred.  If you wanted to enter British-administered Palestine, you needed to prove you had £1000 available – an enormous sum of money in those days, especially for German Jews whom since 1933 the Nazi state had been plundering and driving into poverty. The British press and the political establishment opposed a more liberal approach.

Foley is thought to have issued at least 10,000 visas to Jews desperate to leave Germany. He conscientiously failed to apply the immigration rules to them, discerning their fate if they stayed. On at least one occasion he went to the Buchenwald concentration camp to hand a Palestine exit visa to an inmate in person. He drew no attention to himself, and continued his intelligence work during and after World War II, until he retired in 1949. He was not a Jew. He is honoured in Israel as one of the ‘Righteous Among the Nations’.

UK policy towards Syrian refugees is to make money available for relief in and around Syria. The government has been relatively generous, pledging £500M in aid.

But when it comes to humanitarian admissions or resettlement places for Syrian refugees, the best offer in the EU comes from Germany: 10,000, or 80% of all places offered by the EU. The remaining 27 EU states have offered 2,340 between them. We have offered none. The few who make it here will be treated in exactly the same way as any other ‘asylum seekers’.  Amnesty International’s protests have fallen on deaf ears.

There is no British diplomatic mission in Syria, no latter-day Foley can help any of those facing death and destitution.

 

 

 

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Conspicuous Sumption

On 20th November 2013 Lord Sumption of the UK Supreme Court gave a lecture in Kuala Lumpur, entitled The Limits of the Law. It is well worth reading. The Supreme Court is rapidly developing into a full-scale constitutional court with enormous influence on life in the UK and in many other countries with a common-law tradition, including Malaysia, where its decisions command respect. When a member of that Court expounds his views about what Judges do and what they should be doing, anyone interested in law should pay close attention.

Sumption continues the theme of judicial parsimony he set out in his 2011 Mann Lecture, before his appointment to the Supreme Court. He believes that there is too much litigation in general, and in the field of public law and judicial review it has taken a wrong turning with excessive intervention in matters that are best left to others. ‘Parliamentary scrutiny’, he stated then, ‘is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ He envisages a clearly marked realm of policy into which judges must not trespass. Sir Stephen Sedley, whose absence from the Supreme Court is to be lamented, set about Sumption in the London Review of Books: also well worth reading. He criticised him for making assertions without evidence; misunderstanding the relationship between administration and judicial review in France, and misconstruing several major public law cases in the UK. Co-incidentally, one of the decisions that Sumption cited in 2011 in support of his view was the 1994 Pergau Dam case, which concern the construction of a dam in Malaysia: the Foreign Office wanted to use development funds for the dam, and would win export orders for British weapons in return. The High Court held that this use of the funds was outside its powers under the relevant statute, and was therefore unlawful. According to Sumption, this was an improper incursion into matters of policy; in Sedley’s view, it was the Court doing its proper job of construing a statute. (The Foreign Office chose not to appeal.)

In the Kuala Lumpur lecture, Sumption (wisely, no doubt) refrains from mentioning Pergau, but he repeats the French canard that occasioned the Sedleyan put-down, while maintaining the 2011 thesis. He now turns his big guns on the European Court of Human Rights for making a land-grab over matters far beyond the contemplation of the authors of the European Convention of Human Rights & Fundamental Freedoms, thereby upsetting the constitutional balance between Courts, Parliaments, and Executives in member states – particularly the UK. He criticises the Strasbourg doctrine of the ECHR as a ‘living instrument’:

…the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty.

It is questionable whether the draftsmen intended their Convention to be treated like holy writ, frozen in time in 1950; but even if they did, Sumption gives no legal reason for later generations of judges to refuse to adapt its terms to changing circumstances. He skates over the important distinction between individual judgments, which may be questionable, and the principle of adaptability, which no one would question in relation to a domestic statute. For example, it would be absurd for me to defend a charge of ‘wanton and furious driving’ under s.35 of the Offences Against the Person Act 1861 (still in force) on the basis that I was driving a car, when the statute was intended for horse-drawn vehicles before cars existed. The provision is alive enough to apply to things ‘not expressly to be found in the language of’ the statute. The debate is as arid as that between American ‘originalists’ and their opponents over how to interpret the US constitution. The disagreement there, though couched in the language of law, masks the real, political dispute between conservatives and liberals within the judiciary, and beyond.

When Sumption says that Strasbourg acts ‘to reflect its own view of what rights are required in a modern democracy’, he insinuates that the judges are imposing their own views ex cathedra or from under the palm tree. In fact, the typical judgment will resemble that of a UK Court, by looking for authority for its reasoning in national law, European law, international treaties, and the previous decisions of national Courts as well as its own. A good example is Maslov v Austria, a leading case concerning the rights of a criminal facing deportation. The Court cited Austrian statutes, Recommendations of the Committee of Ministers of the Council of Europe, the UN Convention on the Rights of the Child (incorporated into Austrian law), EU Council Directive 2003/109/EC, decisions by the European Court, and decisions of its own. It then gave a reasoned judgment, based on these materials, on the criteria that national authorities should use when weighing up considerations for and against deportation, within the framework of Article 8 of the Convention. There is no hint of the palm tree.

Article 8, in Sumption’s view, is particularly problematic. He claims that it has been enlarged by Strasbourg in to include deportation among many other things, which are not ‘warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.’ He seriously misdescribes what the Court did in Maslov and how it reached its conclusions. The Judges relied on authorities well beyond their own sole authority. They behaved like the Supreme Court itself when it interprets relevant statutes and cases in order to reach its conclusions – which may change the law in an unforeseen way.

The only concrete example of this deplorable practice that Sumption gave in Kuala Lumpur is the prisoner voting-rights cases, Hirst v United Kingdom and Scoppola v Italy, neither of which relied on Article 8, but were brought under Article 3 of the 1st Protocol of the ECHR, (the right to free elections). In Hirst, the Court held by a majority that the UK’s blanket ban on all prisoners voting in elections was unlawful. It called on the UK to refine the ban. It reached its decision by reference to the Convention and an array of European, Canadian, and South African materials. Its process, as in Maslov, was readily recognisable to a common lawyer who demands authority and precedent for propositions of law. Now, whether the Court got it right is an open question; the fact that there were dissenting judgments indicates that the issues were unusually difficult to resolve. Sumption not only thinks the Court got it wrong, but they should never have considered the matter at all. But if legal instruments such as conventions and treaties incorporated into national law make a question justiciable, then a person cannot be blamed for asking the Courts to decide the question, and the Courts cannot be blamed for making decisions.

Sumption takes his complaint further: not only should Strasbourg not consider such matters, but in ruling on them it engenders a ‘democratic deficit’:

The treatment of the Convention by the European Court of Human Rights as a “living instrument” allows it to make new law in respects which are not foreshadowed by the language of the Convention and which Parliament would not necessarily have anticipated when it passed the Act. It is in practice incapable of being reversed by legislation, short of withdrawing from the Convention altogether. In reality, therefore, the Human Rights Act involves the transfer of part of an essentially legislative power to another body.

This is opaque. When Parliament passed the Human Rights Act it knew that Strasbourg treated the Convention as a living instrument; it could therefore have predicted that the law would continue to develop, as it had done before the Act. Parliament’s crystal ball was no better or worse than anyone else’s, even if its powers of scrutiny are ‘perfectly adequate. So no surprises there. Section 3(1) of the Act provides:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (emphasis added).

That, I suggest, is a fairly modest aim. If a nation’s Parliament adopts a set of human rights principles on behalf of its citizens (which even the extra-judicial Sumption admits to finding ‘wholly admirable’), the least it can do it tell itself to stick to them ‘so far as it is possible to do so’. It did not sign up to them exactly as Strasbourg found them to be in October 2000, frozen in time forever, but as they continued to evolve in changing circumstances. Far from transferring its proper legislative function to ‘another body’, Parliament ‘brought rights home’, in the phrase in use at the time.

The Strasbourg judges are neither poets nor unacknowledged legislators of any kind. They examine the lawfulness of actions by States, according to principles that the States (some more democratic than others) have adopted. States normally win. Some people think the Court is too deferential to States. If a State withdrew from the Convention in order to be relieved from compliance with Strasbourg, it could appoint its own Human Rights Court to make rulings on the Convention, which it could call its Supreme Court. If the rulings of that Court were subject to reversal by Act of Parliament – a practice to which Sumption refers in relation to non-human-rights cases – then what status would human rights decisions, and the rights themselves, have? Much reduced. They would be temporary, provisional, precarious. Under a British Bill of Rights, Lord Sumption and his colleagues might make a human rights decision that the government disliked, and Parliament could then reverse it by legislation. If by some constitutional wizardry that was made impossible, people would make the same complaints about our Supreme Court as they now do about Strasbourg – unless the members of that Court all adhered to the self-denying, Sumption doctrine. Our Supreme Court would probably look more like the US version, complete with its own version of fights about ‘originalism’, but without the sacred text of their Constitution to guide all the branches of government. How much of an advance would that be?

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Oy Veil

Here are three people making a great deal of sense about the niqab palaver (though neither is a veil-wearer): Carl Gardner The Blog that Peter Wrote and the unsurpassable Matthew Scott.

In the Blackfriars Crown Court case, the Judge could have cut through the human rights stalemate. He could have said something like this to the defendant:

“As long as some one can identify you as the person who has been charged, it is your choice if you come into Court with your face covered. It will not affect the way that I treat you, which will be exactly the same as any defendant. However, you should perhaps reflect on what the jury will think. If they cannot see your face, they will not see how you are reacting when the prosecution evidence is being given, and if you choose to give evidence they will not see the manner in which you are answering questions. They may well want to take account of body language and facial expressions, as people do both in and outside Court.  I will direct them that they must assess your evidence in the same fair manner as they would any witness, but you may find that because they cannot see you, they will give your evidence less weight. These are things that may harm your defence. If that is a risk you are prepared to take, it is entirely a matter for you”.

So the defendant  is treated as a mature person capable of identifying her best interests and she can make an informed choice. If the veil is so important to her that she’s prepared to risk  the jury taking against her for it, on her head be it.

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Miranda: Oh Brave New World, that has such People in it!

We’ve been here before, children.

In 1977 Mark Hosenball, a young American journalist, wrote about GCHQ for Time Out (in those days it ran serious and well-researched investigative news stories). In 1977 we weren’t supposed to know that GCHQ even existed. It was doing then what it does now, only there were fewer computers: phone-tapping was its core business. The government was mightily displeased with Mr Hosenball. The Home Secretary decided that his presence in the UK was not ‘conducive to the public good’ and ordered his deportation. He was not told why, except that it was on grounds of national security.

He and his lawyers thought that was a bit off. They said he had been denied natural justice because he could not properly challenge the grounds for his deportation without knowing what they were. He found himself ([1977] 1 WLR 766) in front of the Lord Chief Justice, Lord Widgery, then in the early stages of dementia – which the legal establishment tried to hide from the public until it became too embarrassing. The other members of the Court included Lord Denning, now chiefly remembered for his reactionary views and ability to write intelligible if quaint English.

They agreed that the deportation did not meet the requirements of natural justice but they threw out his case anyway. They said natural justice didn’t apply. Denning concluded:

There is a conflict here between the interests of national security on the one hand and the freedom of the individual on the other. The balance between these two is not for a court of law. It is for the Home Secretary. He is the person entrusted by Parliament with the task. In some parts of the world national security has on occasions been used as an excuse for all sorts of infringements of individual liberty. But not in England. Both during the wars and after them, successive ministers have discharged their duties to the complete satisfaction of the people at large. They have set up advisory committees to help them, usually with a chairman who has done everything he can to ensure that justice is done. They have never interfered with the liberty or the freedom of movement of any individual except where it is absolutely necessary for the safety of the state. In this case we are assured that the Home Secretary himself gave it his personal consideration, and I have no reason whatever to doubt the care with which he considered the whole matter He is answerable to Parliament as to the way in which he did it and not to the courts here.

So that was alright then. Keep an eye out for similar tosh in the days ahead.

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