Friday 30 November 2012

Justice and Security Bill ...baton passed to Commons......

The Justice and Security Bill has passed the Lords and has been sent to the Commons - without HMG committing to adopt the amendments made at Report - just a promise to carefully consider etc.....I can see some legislative ping pong coming up....

Justice and Security Bill [HL]
Third Reading
3.39 pm
The Advocate-General for Scotland (Lord Wallace
of Tankerness): My Lords, I have it in command from
Her Majesty the Queen to acquaint the House that
Her Majesty, having been informed of the purport
of the Justice and Security Bill, has consented to place
her prerogative and interest, so far as they are affected
by the Bill, at the disposal of Parliament for the
purposes of the Bill.
A privilege amendment was made.
Moved by Lord Wallace of Tankerness
That the Bill do now pass.
Lord Beecham: My Lords, I apologise for my rush
to the Dispatch Box. Have the Government reached
any conclusions about the amendments passed by
your Lordships’ House last week in respect of which
the Deputy Prime Minister and the noble and learned
Lord expressed a good deal of sympathy? Is that
sympathy now to be translated into an acceptance of
the amendments passed—or, indeed, in the form of
fresh amendments to be moved by the Government in
the House of Commons; and, if so, on what lines will
they be?
LordWallace of Tankerness: My Lords, I think that
I indicated last week that the Government want to give
very careful consideration to amendments that were
passed by considerable majorities in your Lordships’
House on Report. The Government will address them,
give them serious consideration and no doubt make
their position plain in the other place, bearing in mind
that the amendmentswere based on the recommendations
of the report of the Joint Committee on Human
Rights. It is certainly the Government’s intention to
respond to that report in a timely way.
Bill passed and sent to the Commons.

Friday 23 November 2012

Justice & Security Bill.....Count yourself lucky....

that you live in a country where the immediate past President of the Supreme Court can give the legislature the benefit of his experience and wisdom on a controversial and important Bill - and I find myself in total agreement with everything he says.  The wise amendments proposed mainly by the Joint Committee on Human Rights, and led by Lord Pannick QC, went through at Report Stage on Wednesday and HMG was defeated on all such points.  The amendment attempting to kill CMPs was roundly and rightly defeated.  Joining Lord Phillips in support of the wise amendments were Lord Brown (former JSC), Lady Butler-Sloss (former P of Fam D). Lord Goldsmith (former AG) Lord Irvine (former LC) Lord MacDonald (former DPP) Lord Scott (former Law Lord and VC) and Lord Woolf (former LCJ, MR and Law Lord).  Voting for the Coalition was Lord Lloyd (former Law Lord) and Lord Mayhew (former AG).  What a night....and what a night it would have been if the Coalition had abolished the right of these wise heads to sit in our Parliament...just think if this had been left entirely to the Commons and some facsimile elected politicians in an elected Senate.  It does not bear thinking about.  We now just have to hope that HMG accepts most of these amendments and that the elected Commons do not mess this up...

Lord Phillips of Worth Matravers: My Lords, I find myself in familiar territory, as I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.  I would expect the Government and those supporting Clauses 6 and 7 to welcome these amendments. Let me explain why. I draw attention to Clause 11(5)(c), which provides that, "Nothing in sections 6 to 10 ... is to be read as requiring a court or tribunal to act in a manner inconsistent with Article 6 of the Human Rights Convention". That is a very significant provision. It means that a judge will be precluded from acceding to a closed material application unless satisfied that to do so will be compatible with the Article 6 right to a fair trial.  The use of closed material in civil litigation will undoubtedly be challenged as a matter of principle. That challenge will surely reach the Supreme Court and, if it fails, will be renewed before the Strasbourg Court. If it reaches that court, its decision is likely to be critical. If it holds that the use of closed material in civil proceedings is incompatible with Article 6, the English judges are likely to follow that ruling; and Clauses 6 and 7 will become a dead letter.  The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government's case. The amendments proposed by the noble Lord, Lord Pannick, and other noble Lords introduce a test of proportionality. They also make it plain that a closed material order can be made only as a last resort when there is no other way of having a trial that is fair to both parties. The amendments also require a gist of the closed material to be given to the other party.  These amendments will, it seems to me, significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation. If and when this issue reaches Strasbourg, it is important to appreciate that the court is not likely to have access to the closed material that has weighed with the courts of this country, nor to the closed judgments relating to that material. It seems to me likely that the Strasbourg Court will require to be persuaded that the English courts have applied a test of proportionality before allowing closed material to influence their decisions, that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material has been admitted because there was no other way of procuring a fair trial. That is what these amendments set out to achieve.  If these amendments are made, it does not mean that the Government are going to be forced on occasion to disclose material that they consider to be adverse to the interests of national security. It means that where the court does not consider that the use of closed material will be proportionate, the Government may have to litigate without the benefit of that material if they remain unprepared to disclose it, or even to settle the claim made against them. The same will be true if the Government are not prepared to gist the closed material. As the noble Lord, Lord Pannick, has observed, the debate on Clauses 6 and 7 is not concerned with the protection of national security; it is concerned with the requirements of a fair trial.  It is for these reasons that I support the amendments in question.

Wednesday 21 November 2012

JR reforms over-hyped.....JSB at report stage in Lords

I have seen some comments relating to the announcement that JR is going to be reviewed which would have you believe that the Defence of the Realm Act is going to be reintroduced and all left wing JR abusing lawyers shipped off to a concentration camp on the Isle of Wight (I am currently reading the new CJ Samson counter-factual novel).  In fact the Secretary of State said this:

I am today announcing a review of the judicial review process. Judicial review is a critical means of holding the Executive to account, ensuring that decisions are lawful. However there has been a huge growth in the use of judicial review,which has expanded far beyond what was originally intended. In 1975 there were 160 applications for judicial review, but by 1998 this had grown to around 4,500 applications, and to around 11,000 by 2011. In 2011, for every application for permission to bring a judicial review that was granted, five were refused (a higher proportion was refused in immigration and asylum cases). In those cases where permission was granted, an even smaller proportion was successful. Much of this growth is the result of an increase in applications to review decisions in immigration and asylum cases, but judicial review is also used as a means of challenging other types of decisions, for example, in planning matters, in large infrastructure projects, in procurement exercises and in other key reform programmes.  The Government are concerned about the burdens that this growth has placed on stretched public services.  This can lead to unnecessary costs and lengthy delays, and may in some cases stifle innovation and frustrate much needed reforms, including those aimed at stimulating growth and promoting economic recovery. The Government therefore intend to seek views on a package of options designed to tackle these problems. This package will include shortening time limits in certain cases, restricting the opportunities for an oral reconsideration of the application for permission in certain circumstances, and introducing new fees. The purpose of this is not to deny or restrict access to justice, but to provide for a more balanced and practicable approach, ensuring that weak, frivolous and unmeritorious cases are identified early, and that legitimate claims are brought quickly and efficiently to a resolution. In this way, we can ensure that the right balance is struck between reducing the burdens on public services, and protecting access to justice and the rule of law.

Now if one ignore some absolute howlers, for which the relevant civil servant or SPAD should be sacked (e.g. the statistics - plus things like - procurement decision are not challenged by way of JR - they have their own statutory challenge procedure which preludes JR)  - there is in fact a problem - the Admin Ct literally cannot cope with the numbers of JRs.  The backlog is caused however, by immigration.  There is a direct correlation between aggressive immigration policies and the number of JRs.  Aggressive attempts to deport illegal immigrants generates vexatious (and some genuine) challenges to deportation orders.

The P of QBD is not happy:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

He later named and shamed some solicitors but stopped short of referring them for disciplinary action -  here is an example:

  1. The first case does involve the very same case of Hamid. On this occasion we shall name the solicitor as MQ Hassan. After the rejection of the application referred to in the earlier judgment of the court, an application was made again to this court on virtually the same points. However the application contained no disclosure whatsoever of the previous application and its failure. There was without any doubt a gross breach of the obligation of disclosure that arises on an ex parte application. Mr Hassan has appeared here today and apologised. He said that his firm is in the process of tightening its procedures so this would not happen again.

  2. We consider that the appropriate course of action to take in this case is for Mr Hassan to report to the Solicitors Regulation Authority what steps he is taking to ensure that all those who work in his firm are properly trained in particular in the obligation incumbent upon a solicitor to make full and proper disclosure of all material facts to the courts. The court will communicate itself with the Solicitors Regulation Authority to say that it has required that. The Solicitors Regulation Authority can consider whether there is a proper training programme in hand. However, we will add that if this happens again in this firm, we shall refer the matter for consideration by the disciplinary branch of the Solicitors Regulation Authority.

  3. Mr Hassan, this is your last chance and you must put your house in order.

The Court, with HMG's help, needs some new tools to weed out crazy JRs without them reaching the oral permission stage when too much time and money is wasted.  Such a reform does not involve the end of the rule of law, merely its enhancement....

JSB - that draft legislation about which I have written not a little - past ramblings here - is in report stage before the Lords - they went through Part 1 2 days ago and will resume today when we might get to some of the interesting bits.

To assist, the Joint Committee on Human Rights has made some useful suggestions, mostly made to it in turn by David Anderson QC, the Independent Reviewer of Terrorism Legislation.  On the whole, I fully support these proposed amendments and hope that HMG takes them up.  I will post further once the Report stage is fully underway on the juicy bits of the Bill.

Saturday 17 November 2012

Man expresses himself on Facebook. Man loses job.

One Sunday morning an employee of a registered social landlord exercised his right to freedom of expression by referring, on Facebook, to gay marriages in Churches as an 'equality too far'.   Responding to a fellow employee's request as to whether his statement was an expression of disapproval of the proposal, the employee (the Claimant) said  "no not really, I don't understand why people who have no faith and don't believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn't impose it's rules on places of faith and conscience."  No offensive language, no discriminatory words - mere and pure expression of personal opinion.  His employers had a different idea, and on the Monday they suspended him and later demoted him for gross-misconduct on the basis that he had expressed homophobic views.  

Briggs J is to be congratulated for his judgment

In my judgment Mr Smith's postings about gay marriage in church are not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. As to their content, they are widely held views frequently to be heard on radio and television, or read in the newspapers. The question remains whether the manner or language in which Mr Smith expressed his views about gay marriage in church can fairly or objectively be described as judgmental, disrespectful or liable to cause discomfort, embarrassment or upset. Again, it seems to me that it was not. He was mainly responding to an enquiry as to his views, and doing so in moderate language.

Briggs J held the Claimant's demotion to have amounted to wrongful dismissal and awarded him damages, limited as the Judge regretted, to just under £100:

I must admit to real disquiet about the financial outcome of this case. Mr Smith was taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the Trust thereby committed was serious and repudiatory. A conclusion that his damages are limited to less than £100 leaves the uncomfortable feeling that justice has not been done to him in the circumstances. All that can be said is that, had he applied in time, there is every reason to suppose that the Employment Tribunal would have been able (if it thought fit) to award him substantial compensation for the unfair way in which I consider that he was treated. If, about which I can make no finding of fact (since I was merely informed about it on counsel's instructions), financial stringency made it practically impossible for Mr Smith to bring proceedings in the Employment Tribunal in time, then the injustice he has suffered, although very real, is unfortunately something which this court is unable to alleviate by an award of substantial damages.  Mr Tomlinson expressed the hope that, if Mr Smith's case in breach of contract was well-founded, the Trust might find a way to reinstate him. I was however told by Mr Short, again on instructions, that there is no such prospect.

The Defendant, a body in receipt of public funds, if not a public body per se, should be investigated immediately by its regulator, the Homes and Communities Agency.  If the governance of the Defendant has failed to such a degree so as to cause or permit the unlawful action taken against this Claimant, and has failed to such a low level that it could not act to remedy the wrong by reinstating the Claimant, then its Board may not be considered fit to hold office.  If the HCA is not interested, may be Eric Pickles, the responsible Secretary of State will be....................section 47 Housing and Regeneration Act 2008 might assist:

Directions by the Secretary of State

(1)The Secretary of State may give the HCA general or specific directions as to the exercise of any of its functions.

(2)The Secretary of State must publish any directions given by the Secretary of State under this Part as soon as reasonably practicable after giving them.

(3)The Secretary of State—

(a)may revoke any directions given by the Secretary of State under this Part, and

(b)must publish the fact that the directions have been revoked as soon as reasonably practicable after the revocation.

(4)The HCA must comply with any directions of the Secretary of State in force under this Part.

(5)Subsections (2) and (3)(b) do not apply to directions given under section 22 or paragraph 7 of Schedule 1; and this section does not apply to directions given under Schedule 4.

(6)References in this Part to the Secretary of State giving directions include references to the Secretary of State giving directions by varying existing directions.

Monday 12 November 2012

What's this SIAC all about?

The Abu Qatada case got me wondering about who sat on the Special Immigration Appeals Commission.  The statute sets this much out

The Commission shall be deemed to be duly constituted if it consists of three members of whom—

(a) at least one holds or has held high judicial office (within the meaning of [Part 3 of the Constitutional Reform Act 2005) or is or has been a member of the Judicial Committee of the Privy Council], and

[(b) at least one is or has been [a judge of the First-tier Tribunal, or of the Upper Tribunal, who is assigned to a chamber with responsibility for immigration and asylum matters]].

Mitting J was (a) and Judge Peter Lane was (b) in Abu Qatada.  Dame Denise Holt DCMG was the third member of the Commission in Abu Qatada.  Who's she? Well she is a former Ambassador to Spain and Mexico.  She now holds lots of Non-Execs positions and other sinecures.  The MOJ website says that The third member will usually be someone who has experience of national security matters  so that must be Dame Denise.  She doesn't sound that independent given her career?  Still one presumes she has taken the judicial oath like her co-commission members?  Who else sits on the Commission in a similar capacity -  apparently there are 12 other lay members?  It is a bit hard to tell.  Looking at past judgments,Sir Brian Donnelly, KBE, CMG our former man in Zimbabwe appears to be one.  Sir Paul Lever, our former man in Berlin also appear to be a lay member.  I think we have got the flavour of the independent lay members of the Commission.  A knighthood and Ambassadorial rank appear to be prerequisites.  Our former man in all sort of places Sir Brian Barder had this to say on the subject, shortly after resigning as such a lay member:

The chairman of each SIAC hearing is a high court judge. The second member is drawn from a panel of judges with experience in hearing appeals on ordinary immigration matters. The third member, a layperson, is someone with experience of analysing and assessing secret intelligence and with high security clearance. When SIAC was first established, only three lay members were appointed. Since then, as its role has expanded, many more lay members have joined the panel. Most are retired senior civil servants, diplomats, or ex-members of the armed forces and the intelligence and security services. The lay member is there to advise his judicial colleagues on how much weight should be given to the various kinds of secret information submitted in evidence: how to allow for the possibility that intercepted communications may have been deliberately planted, that informers may have embellished their reports in order to please their paymasters, or that raw intelligence may have been misunderstood and misinterpreted by the agent providing it or by the intelligence and security officers who receive and process it. This is an area of which few serving judges have much, if any, direct knowledge. (The recently retired Lord Hutton may be an exception, though his past experience of the intelligence world seems to have had a questionable effect on his findings.)
My experience suggests that the lay member’s views on legal questions, though diffidently expressed, can also sometimes be helpful. It is fair to ask, however, whether intelligence experts ought to be full members of the commission, rather than act as advisers to a panel of three fully-fledged judges. Former senior civil servants and diplomats have necessarily been closely identified for most of their working lives with the Whitehall and Westminster establishment, and may be more reluctant than judges to question the wisdom of the intelligence community, ministers and their officials. But this, sadly, is the least of SIAC’s problems.

Wednesday 7 November 2012

His Honour Sir Frank White RIP

Sad news that His Honour Sir Frank White has died (23rd October 2012, 85 years of age). He was behind much of what you see around today in the civil justice system - a civil trial centre for London (he was the first DCJ at Central London County Court), Court based mediation, training of judges (he authored "Bench Notes") and Civil Procedural Rules.  He was given a rare knighthood (for a Circuit Judge) on retirement in recognition of his great achievements (dubbed by the Prince of Wales alongside Sir Tom Stoppard).  He was President of the Council of HM Circuit Judges in 1990 and was made a Bencher of Gray's Inn and Fellow of KCL in 1997 when he retired.

I suspect he would be horrified by the virtual abolition of the county court now before Parliament - see here.  I suppose that nobody has noticed or protested this 'reform' because in the current climate there are bigger things to save than the local county court.  I am particularly surprised that the housing lobby has not been more vocal as the CPR currently requires all possession claims to be listed at the tenant's or mortgagee's local court - how will that stand when there are no local courts......still given the legal aid cuts I don't suppose there is any money to represent people at local courts anyway....

Still it might be nice if Parliamentarians put up a bit of a fuss before this treasured local justice institution is marched before the bureaucratic firing squad.  

Thursday 1 November 2012

Hull gets medical Coroner before the ban takes effect....

As the Chief Coroner, in yet another excellent speech to the Howard League, points out:

Under our present law coroners are lawyers or doctors or both, although, as I said, there are not many doctor-only coroners left. The Coroners and Justice Act 2009 will require that all new coroners are lawyers and have the same legal judicial qualifications as all judges. I see that as a good thing. There is a good case for coroners being more judges than guardians of public health.  

Just before that reform is due to take effect Hull City Council has appointed Professor Paul Marks BA, LLM, MD, FRCS, MFFLM, ACI Arb, Consultant Neurosurgeon, to be HM Coroner for Hull and the East Riding of Yorkshire.  He may also be dual qualified as a legal practitioner, although I have found no evidence for that.  He is a serving Deputy Coroner for the Western District of West Yorkshire (effectively Bradford) and I don't doubt his eligibility for the role. I also note that he has an LLM, is an Arbitrator and is a Visiting Professor of Medical Law. It is curious however, to appoint such a Coroner at a time when the law is about to prohibit the appoint of medical Coroners.  And for good reason - legal practitioners make good judges and coroners.  The simple reason is that they can deal with evidence, witnesses, legal submissions and advocates, because that was their bread and butter.  The worst judges are those who have forgotten what is was like to be a practitioner.  Even worse, those who were never practitioners.  I wish Professor Marks well but, I, like the CC, welcome the no more new medical coroners reform.