Tag: Chris Grayling

The Tory British Bill of Rights: ‘be the short change you want to see’

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The politics of regression

The UK has passed a lot of posts over the last five years. We are now a post-European, post-welfare, post-consensus, post-progressive, post-rational, post-democratic, post-first world, post-liberal, post-inclusive, post-diverse, post-equality, post-freedom, post-rights, post-protest, post-truth society. We managed all of this by travelling backwards as a society, not forwards.

The clocks stopped when the Conservatives took office in 2010. Now we are losing a decade a day.

This week, the government have confirmed they still plan to repeal the Human Rights Act and replace it with a so-called British Bill of Rights. This will break the formal link between the European Court of Human Rights and British law. Any judgement from Europe would be treated as “advisory” only, rather than legally binding, and would need to be “approved” by parliament. Such a Bill would definitely short change UK citizens in terms of balancing responsibilities, obligations and rights. It would profoundly disempower citizens because it will shift the balance of democracy, placing power almost entirely in the hands of the state.

The citizen rights protected by Labour’s flagship Human Rights Act are quite basic. They include the right to life, liberty and the right to a fair trial; protection from torture and ill-treatment; freedom of speech, thought, religion, conscience and assembly; the right to free elections; the right to fair access to the country’s education system; the right NOT to be given the death penalty; the right to marry and an overarching right not to be discriminated against.

Over their time in office, the Tories have systematically contravened the Human Rights of disabled people, women and children. It’s clear that we have a government that regards the rights of most of the population as a mere bureaucratic inconvenience, to be simply brushed aside. In October 2014, I was one of the very first independent writers to report the United Nations’ inquiry into the government’s gross breaches of the rights of disabled people. Writers and researchers like me and organised groups such as Disabled People Against the Cuts (DPAC) have been submitting evidence regarding the dehumanising impacts of the Conservative welfare “reforms” to the UN since 2012.

Theresa May has previously expressed strong support for controversial constitutional change. She stated in 2014, that she would like to see the UK withdraw from the European Convention on Human Rights, echoing David Cameron.

In a speech earlier this year, she said: “This is Great Britain, the country of Magna Carta, parliamentary democracy and the fairest courts in the world.

And we can protect human rights ourselves in a way that doesn’t jeopardise national security or bind the hands of parliament.

A true British bill of rights, decided by parliament and amended by parliament, would protect not only the rights set out in the convention, but could include traditional British rights not protected by the European Convention on Human Rights (ECHR) such as the right to trial by jury.”

However, May’s comment about the need for a Bill of rights that doesn’t “bind the hands of parliament” is worrying, since human rights were designed originally to protect citizens from despotic states and authoritarian governments like this one.

Her comment that the ECHR does not provide for the right to trial by jury is also misleading. Article 6 of the European Convention on Human Rights is a provision  which protects the right to a fair trial and access to justice. In criminal law cases and cases to determine civil rights, it protects the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other basic rights for those charged in a criminal case (such as adequate time and facilities to prepare their defence, access to legal representation, the right to examine witnesses against them or have them examined, the right to the free assistance of an interpreter).

The Effective Criminal Defence in Europe report identified that the UK already needs to address issues regarding inadequate disclosure to suspects during investigation stage and that a more effective judicial oversight of bail and arrest are needed. Cuts to legal aid are also problematic in terms of ensuring the right of equal access to justice. Chris Grayling has already tried to take legal aid from the poorest citizens, in a move that is so clearly contrary to the very principle of equality under the law. He turned legal aid into an instrument of discrimination. He has also tried to dismantle another vital legal protection  – judicial review – which has been used to stop him abusing political power on several occasions. I don’t think this is a government that has indicated so far that it has the needs and wellbeing of citizens as a main priority.

Liz Truss, the justice secretary, dismissed reports that that the Government was abandoning the policy, which was included in the Conservative manifesto in 2015, to avoid a conflict with the Scottish Government 

She told BBC Radio 4’s Today programme on Monday morning: “We are committed to that. That is a manifesto commitment. 

I’m looking very closely at the details but we have a manifesto commitment to deliver that.”

However, last year, Amnesty UK commissioned a poll that indicated the British public are not particularly willing to see any change to existing Human Rights legislation, with only one in 10 people in the UK (11%) believing that scrapping the Human Rights Act should be a government priority.

Kate Allen, Amnesty International (UK) director, said:

“The British people clearly want the Government to get on with their proper business of the day-to-day running of the country, and abandon these destructive plans.

“It’s quite right that it shouldn’t be up to governments to pick and choose which rights we are entitled to and select who they deem worthy of them. It took ordinary people a very long time to claim these rights and we mustn’t let politicians take them away with the stroke of a pen.

“It’s great to have it confirmed that British people think that rights and protections must apply to everyone equally in order to work at all.”

David Cameron pledged to explore ways to leave the ECHR in the wake of the departure of his most senior legal advisor, Dominic Grieve. 

Ken Clarke said: “It is unthinkable for Britain to leave the European Convention on Human Rights,” he was also a departing cabinet minister. Cameron is believed to have wanted rid of the Attorney General Grieve because he was supportive of Britain’s continued ECHR membership.

Labour dubbed the cabinet reshuffle “the massacre of the moderates”, pointing to the departure of pro-Europe and “one nation” Tories such as David Willetts, Nick Hurd and Oliver Heald.

It’s long been the case that the Tories and the right wing press have deliberately blurred the boundaries between the European Union and the European Council of Human Rights, which are of course completely different organisations. This was a misdirection ploy.

However it is the case that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it. I also think that conservatives, who regard both institutions as “interfering”, do see the Union and the Council as the same in terms of both being international frameworks requiring the British government to have a degree of democratic accountability at an international level.

In his parting interview, Clarke, who has held office in every Conservative government since 1972 and is also the party’s most prominent Europhile, said the debate was “absurd”.

“I personally think it’s unthinkable we should leave the European Convention on Human Rights; it was drafted by British lawyers after the Second World War in order to protect the values for which we fought the War for.” He’s right, of course.

The years immediately after the second world war marked a turning point in the history of human rights, as the world reeled in horror at the rise of fascism and the Nazi concentration camps, there came an important realisation that although fundamental rights should be respected as a matter of course, without formal protection, human rights concepts are of little use and consolation to those facing persecution.

So in response to the atrocities committed during the war, the international community sought to define the rights and freedoms necessary to secure the dignity and worth of each individual. In 1948 the newly formed United Nations adopted the Universal Declaration of Human Rights (UDHR), one of the most important agreements in world history.

Shortly afterwards another newly formed international body, the Council of Europe, set about giving effect to the UDHR in a European context. The resulting European Convention on Human Rights was signed in 1950 and ratified by the United Kingdom, one of the first countries to do so, in 1951. At the time there were only ten members of the Council of Europe. Now 47 member countries subscribe to the European Convention, and in 1998 the Human Rights Act was passed by the Labour Party in order to “give further effect” to the European Convention in British law.

Previously, along with the Liberal Democrats, Grieve was able to thwart attempts to reform the ECHR, and opposed pulling out altogether. The plan to reform it is being led by the Justice Secretary Chris Grayling but Grieve has pledged to continue to fight for Britain’s membership from the backbenchers. Though Clegg had agreed to a British Bill of Rights, he was strongly opposed to withdrawing from the ECHR.

Grieve understood that ECHR is about the fundamental rights of the citizen and ought to be cherished in the same way as the Magna Carta and Habeas Corpus are. But as we know, this is not a typical view amongst Conservatives, who frequently cite the same examples of “foreign criminals” being allowed to stay in the country as evidence it is “not working”.

The prime minister’s spokesman said that the sacking of Grieve had not led to a change in government’s policy. However he pledged action if the Conservatives are elected next year without the Liberal Democrats: “If you are asking me about party manifestos, the prime minister has previously said that he wants to look at all the ways that we can ensure we are able to deport those who have committed criminal offences.”

Grieve said he would defend human rights legislation from the back benches to “contribute to rationality and discourse”.

“If we send out a sign that human rights don’t matter, that is likely to be picked up in other countries which are also signatory states such as Russia.”

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The marked loss of transparency and democratic accountability

In the original Conservative proposals to scrap our existing human rights framework, and replace it with their own, one sentence from the misleadingly titled document  –Protecting Human Rights in the UK, (found on page 6 ) – is particularly chilling: “There will be a threshold below which Convention rights will not be engaged.”

Basically this means that human rights will no longer be absolute or universally applied – they will be subject to stipulations and caveats. And discrimination. The government will establish a threshold below which Convention rights will not be engaged, allowing UK courts to strike out what are deemed trivial cases.

The Tories’ motivation for changing our human rights is to allow reinterpretations to work around the new legislation when they deem it necessary. The internationally agreed rights that the Tories have always seen as being open to interpretation will become much more parochial and open to subjective challenge.

Many people have said that the Conservatives won’t escape accountability if they repeal the Human Rights Act and replace it with something less comprehensive, because we are still signatories to a number of broader international treaties on human rights. 

However, last year I wrote about how the government has quietly edited the ministerial code, which was updated on October 15  without any announcement at all. The code sets out the standard of conduct expected of ministers. The latest version of the code is missing a key element regarding complicity with international law. 

The previous code, issued in 2010, said there was an “overarching duty on ministers to comply with the law including international law and treaty obligations and to uphold the administration of justice and to protect the integrity of public life”.

The new version of the code has been edited to say only that there is an“overarching duty on ministers to comply with the law and to protect the integrity of public life”.

A Conservative party policy document had revealed that the ministerial code will be rewritten in the context of the UK withdrawing from the European convention on human rights. In order to help achieve these aims the document says:

“We will amend the ministerial code to remove any ambiguity in the current rules about the duty of ministers to follow the will of Parliament in the UK.”

Yasmine Ahmed, director of Rights Watch, an organisation which works to hold the government to account, said:

“This amendment to the ministerial code is deeply concerning. It shows a marked shift in the attitude and commitment of the UK government towards its international legal obligations.”

Any precedent that allows a government room for manoeuvre around basic and fundamental human rights is incredibly dangerous. Especially such an authoritarian government.

Implications for democracy

Democracy is one of the universal core values and principles of the United Nations. Respect for human rights and fundamental freedoms and the principle of holding periodic and genuine elections by universal suffrage are essential elements of democracy. These values are embodied in the Universal Declaration of Human Rights and further developed in the International Covenant on Civil and Political Rights which enshrines a host of political rights and civil liberties underpinning meaningful democracies.

The Rule of Law and Democracy Unit stands as the Office of the High Commissioner for Human Rights (OHCHR) focal point for democracy activities. The Unit works to develop concepts and operational strategies to enhance democracy and provide guidance and support to democratic institutions through technical cooperation activities and partnership with the relevant parts of the UN, notably the UN Democracy Fund, the Department of Political Affairs and the newly established UN Working Group on Democracy. Legal and expert advice are provided as required to OHCHR field operations on relevant issues such as respect for participatory rights in the context of free and fair elections, draft legislation on national referenda and training activities.

The strong link between democracy and human rights is captured in article 21(3) of the Universal Declaration of Human Rights, which states:

“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” 

The link is further developed in the Covenant on Civil and Political Rights which enshrines a host of political rights and civil liberties underpinning meaningful democracies. The rights enshrined in the International Covenant on Economic, Social and Cultural Rights and subsequent human rights instruments covering group rights (e.g. indigenous peoples, minorities, people with disabilities) are equally essential for democracy as they ensure inclusivity for all groups, including equality and equity in respect of access to civil and political rights.

More recently, in March 2012, the Human Rights Council adopted a resolution titled “Human rights, democracy and the rule of law,” which reaffirmed that democracy, development and respect for all human rights and fundamental freedoms were interdependent and mutually reinforcing.

The Council called upon States to make continuous efforts to strengthen the rule of law and promote democracy through a wide range of measures. It also requested the OHCHR, in consultation with states, national human rights institutions, civil society, relevant inter-governmental bodies and international organizations, to draft a study on challenges, lessons learned and best practices in securing democracy and the rule of law from a human rights perspective.

Human rights, democracy and the rule of law are core values of the European Union, too. Embedded in its founding treaty, they were reinforced when the EU adopted the Charter of Fundamental Rights in 2000, and strengthened still further when the Charter became legally binding with the entry into force of the Lisbon Treaty in 2009.

A legally binding human rights framework must be applied universally, and implemented without the “interpretation” and interference from individual governments. Furthermore, the State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it. If the State fails to fulfil this contingent function, then citizens simply cease to be free.

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I wrote another in-depth analysis of the implications of a British Bill of Rights earlier this year, which includes some of the constitutional implications – The British Bill Of Frights: We Need To Ask What Could Possibly Go Right?

 

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Independent Commission on Freedom of Information call for evidence. You have until November 20th

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The matter of Government transparency and accountability is so important to David Cameron that the Conservatives would like to end our right to ask questions via the Freedom of Information Act (FoI).

The Act gives us the right to ask for information from public bodies, rather than depending on what the government is prepared to let us see. Such information allows us to make informed decisions and to challenge the government with evidence when policies have adverse outcomes. Any attempt to curtail public access to information will have profound implications for government openess, transparency, accountability and for democracy.

Many campaigners have voiced fears that government proposals could make it more difficult, and costly, for the media and public to use the Act to access information held by public bodies.

Chris Grayling, Tory tyrant extraordinaire, along with others in his party, has a history of altering and editing laws that he regards an inconvenience. He claims that “it is wrong that the Freedom of Information Act was being used as a research tool to generate stories for the media and that is not acceptable.” 

But surely research, investigation, providing evidence and sharing information and news with the public is what we ought to expect from the media, it’s precisely those criteria that establish high quality journalism.

Grayling’s outrageous remarks were condemned by Tom Watson, the deputy leader of the Labour party, who believes the FoI Act should be strengthened, not undermined. I agree.

Watson said: “Chris Grayling’s assertion that the Freedom of Information Act is ‘misused’ to generate stories for the media betrays a greater truth about this government’s thinking. 

“What they’d really like to see is less open government. It is the job of journalists to hold the government to account on behalf of the public. The Freedom of Information Act is a vital tool in their armoury which should not and must not be removed or weakened.”

Grayling said it should be used for “those who want to understand why and how government is taking decisions”. It is, and that includes by journalists who inform the public about those decisions and the likes of bloggers such as me – a lot of my work wouldn’t be possible without the FoI Act, I use it frequently so I can share crucial information, as do many other bloggers.

Many of us submitted a FOI regarding the mortality rates of sick and disabled people undergoing the controversial work capability assessment, after the government refused to publish the information after 2011, and fellow blogger Mike Sivier from Vox Political fought in court to ensure that this important information was finally released.

And who can forget Steven Preece’s request from Welfare Weekly, that revealed the Department of Work and Pensions (DWP) had lied about the “success” of the punitive sanction regime, using fake characters giving fake testimonies, which the DWP published in a leaflet and were subsequently forced to retract it. Steven’s FoI, details of which were widely shared by the mainstream media, (as were the details of Mike Sivier’s FoI) highlighted that the government is not above shameful lying to get its own way.

There’s a strong element of cooperative work amongst bloggers. I submitted a subsequent request for further detailed information about sanctions recently, which has yielded a lot of information that I’m researching around, so I can also share information and analysis, too. Writers frequently draw on other people’s FoIs to analyse, cross reference and to share important information.

I was memorably refused information about the government risk register regarding the Health and Social Care Bill back in 2012, and despite being ordered by the Information Commissioner and a tribunal to release that information, we have yet to see it. The claim behind the refusal was that it isn’t “in public interests”that the information is released. I beg to differ.

We clearly have a government that doesn’t like democratic processes, dialogue and public engagement regarding its policies and impacts and any kind of critical appraisal and challenge.

The very short timescale of the public consultation regarding the future of the Freedom of Information Act also indicates an utter lack of respect for democratic process and the public’s right to access information that they feel is in their best interests to know. The call for information was published on the November 9, and the closing date for submissions is November 20. That’s scandalous.

The Independent Commission on Freedom of Information’s terms of reference require it to consider the implications for the Freedom of Information Act 2000 of the uncertainty around the Cabinet veto and the practical operation of the Act as it has developed over the last 10 years in respect of the deliberative space afforded to public authorities. The Commission is also interested in “the balance between transparency and the burden of the Act on public authorities more generally.”

The Independent Commission on Freedom of Information invites anyone to submit evidence on the questions raised in the call for evidence paper. See: Independent Commission on Freedom of Information: call for evidence

Ways to respond:

The real “constitutional crisis” is Chris Grayling’s despotic tendencies and his undermining of the Rule of Law

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We have been hearing justifications for grotesquely unfair policies from the Conservatives a lot recently based on a claim that “we have a clear mandate to do this.” The concept of a government having a legitimate mandate to govern via the fair winning of a democratic election is a central component of representative democracy. However, new governments who attempt to introduce policies that they did not make explicit and public during an election campaign are said to not have a legitimate mandate to implement such policies.

Most of you will immediately think of the recent debates regarding the tax credit cuts, and the authoritarian threats to stifle legitimate criticism of government policies, but this is just the tip of a very deeply submerged iceberg.

I am currently researching an article about the hatchet man of justice, Chris Grayling, and his recent signaling of a crackdown on what he calls the “misuse” of freedom of information requests (FOI) as a means of researching “stories” for journalists. I’ll write about that particular symptom of Grayling’s syndrome of totalitarian thinking separately, as I got productively side-tracked.

I recently wrote an article about the government’s secret editing and amendment of the Ministerial Code  – Government turns its back on international laws, scrutiny and standards: it’s time to be very worried.

It’s not the first time, either: see also – A reminder of the established standards and ethics of Public Office, as the UK Coalition have exempted themselves.

And of course this – Watchdog that scrutinises constitutional reform is quietly abolished and Tory proposals are likely to lead to constitutional crisis, this – The Coming Tyranny and the Legal Aid Bill and this – Sabotaging judicial review is one of this government’s most vicious acts.

I have had concerns for some time that the Conservatives behave unaccountably, profoundly undemocratically, with a disregard of the obligations of a government to be open and transparent, and often, the Conservatives shield very secretive and damaging long term aims.

During a House of Lords debate on Judicial Review reforms, respected peer and lawyer Lord Pannick QC spoke of the constitutional importance of Judicial Review and the hazards in circumscribing it, personally addressing Mr Grayling on the issue of the Lord Chancellor’s incompetence:

“However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.”

Grayling’s time as Justice Secretary has been an unremitting disaster. He has lost seven times so far in the courts and is the least impartial lord chancellor we have known. Rather than accept that he has attempted to legislate illegally, instead we see him trying to dismantle the mechanisms of democracy and law to suit his despotic policy designs, regardless.

I found a letter from earlier this year, by chance, it’s a response from the lord chancellor Chris Grayling to a report by the House of Lords Constitution Committee published last December following its investigation into the office of the legally unqualified but disdainful and arrogant lord chancellor: 

The Rt Hon. the Lord Lang of Monkton DL
The House of Lords Select Committee on the Constitution
House of Lords,
London,
SW1A 0PW

The Right Honourable Chris Grayling MP
Lord Chancellor and Secretary of State for Justice
102 Petty France
London SW 1H 9AJ
T 020 3334 3555
F 020 3334 3669E
general.queries @justice.gsi.gov.uk
http://www.gov.uk/moj
Our Ref: 20211

26 February 2015

Dear Lord Lang,

THE OFFICE OF LORD CHANCELLOR

The Government broadly welcomes the Committee’s Report on The office of Lord Chancellor and makes the following observations in response to a number of the specific recommendations.

The rule of law and judicial independence 

We invite the Government to agree that the rule of law extends beyond judicial independence and compliance with domestic and international law. It includes the tenet that the Government should seek to govern in accordance with constitutional principles, as well as the letter of the law. (Paragraph 25)

RESPONSE
The Government agrees that it should govern in accordance with constitutional principles and endorses the importance of the rule of law. However the Government does not endorse the view put forward in paragraphs 23 to 25 of the Committee’s Report in so far as it suggests that judges have power to insist that primary legislation passed by the UK Parliament “is not law which the courts will recognise”.

The Lord Chancellor’s duty to respect the rule of law extends beyond the policy remit of his or her department; it requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government. We recommend that the Ministerial Code and the Cabinet Manual be revised accordingly. (Paragraph 50)

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To clarify the scope of the Lord Chancellor’s duty in relation to the rule of law, we recommend that the oath to “respect the rule of law” be amended to a promise to “respect and uphold the rule of law.”  (Paragraph 51)

RESPONSE
The Government believes that the Ministerial Code, Cabinet Manual and Oath of Office already accurately reflect ministerial responsibilities in relation to the rule of law. In particular, both the Ministerial Code and the Cabinet Manual note the role of the Law Officers in “helping ministers to act lawfully and in accordance with the rule of law”. The Government does not agree that there should be specific requirement on the Lord Chancellor in this respect, nor that the Code, Manual or Oath require amendment.

The Law Officers’ role in upholding the rule of law has always been important.

The changes to the office of Lord Chancellor over the last decade have made it even more so. As a result, we consider that it is imperative the Attorney General continues to attend all Cabinet meetings, and that they are adequately resourced not only in their role as legal advisers to the Government, but in their capacity as guardians of the rule of law. (Paragraph 79)

RESPONSE
The Government agrees with the Committee on the important role played by the Law Officers in upholding the rule of law. This view has been shared by successive governments. The Law Officers play this role, in particular, by advising on some of the most significant legal issues being dealt with by Government, through their significant public interest functions (for example bringing contempt proceedings) and through participating in the work of government as Ministers of the Crown. This includes the Attorney General participating in Cabinet meetings. Though the expectation is that the Attorney General will continue to attend all Cabinet meetings, this is ultimately a matter for the Prime Minister. The Government considers that the Law Officers are adequately resourced to fulfil their functions as they relate to the rule of law.

We recommend that the Law Officers give due consideration to the more reactive role of modern Lord Chancellors and ensure that the holder of that office is kept informed of potential issues within Government relating to the rule of law. (Paragraph 80)

RESPONSE
An important function of the Law Officers is keeping all Ministerial colleagues informed of significant legal issues. The relationship between the Lord Chancellor and the Attorney General is an especially important one. The Lord Chancellor and the Attorney General meet regularly to discuss matters of common concern, including those that relate to the rule of law, and the expectation is that this will continue.

Page 3

A Constitutional Guardian in Government

There is no clear focus within Government for oversight of the constitution. We invite the Government to agree that a senior Cabinet minister should have responsibility for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms. In the light of the Lord Chancellor’s existing responsibility for the important constitutional principle of the rule of law, we consider that the Lord Chancellor is best placed to carry out this duty. (Paragraph 101)

RESPONSE
The Deputy Prime Minister is the relevant Secretary of State for constitutional policy and has been so since 2010. Senior ministerial oversight reflects the importance of the constitutional changes outlined in the Programme for Government. This arrangement gives a clear focus for the delivery of reforms including Individual Electoral Registration; the introduction of fixed term parliaments; changes to the laws of succession; regulation of the lobbying industry and proposals for the recall of MPs.

The Deputy Prime Minister works in close collaboration with the Prime Minister and other relevant Cabinet Ministers including the Lord Chancellor and Attorney General and is supported by two ministers, and officials from the Cabinet Office Constitution Group.

The Future of the Office

We recognise the advantages to appointing a Lord Chancellor with a legal or constitutional background. We do not consider that it is essential but, given the importance of the Lord Chancellor’s duties to the rule of law, these benefits should be given due consideration. (Paragraph 109)

RESPONSE
The Government welcomes the Committee’s acknowledgement that it is not essential for the Lord Chancellor to have a legal background.

We recommend that the Government either ensure that the Permanent Secretary supporting the Lord Chancellor at the Ministry of Justice is legally qualified, or appoint the top legal adviser in that department at permanent secretary level. (Paragraph 113)

RESPONSE
The Government does not agree that the Permanent Secretary at the Ministry of Justice need be legally qualified, nor that the department’s top legal adviser need be appointed at permanent secretary level. The Lord Chancellor and Permanent Secretary have access to high quality legal services provided by the Treasury Solicitor’s Department including direct access to the Treasury Solicitor and one of his Deputies at Director General level, should it be needed.

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Given the importance of the Lord Chancellor’s duty to uphold the rule of law, the Lord Chancellor should have a high rank in Cabinet and sufficient authority and seniority amongst his or her ministerial colleagues to carry out this duty effectively and impartially. (Paragraph 117)

RESPONSE
It is for the Prime Minister to determine the order of precedence of Cabinet Ministers.

The Lord Chancellor is currently and traditionally one of the highest officers of state. The Lord Chancellor should be a politician with significant ministerial or other relevant experience to ensure that the rule of law is defended in Cabinet by someone with sufficient authority and seniority. It is not necessary to be prescriptive: more important than age or lack of ambition is that the person appointed has a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister. (Paragraph 125)

We urge Prime Ministers, when appointing Lord Chancellors, to give weight to the need for the qualities we have outlined in this report, and above all to consider the importance of the Lord Chancellor’s duty to uphold the rule of law across Government. (Paragraph 126)

RESPONSE
The Constitutional Reform Act 2005 provides that the Prime Minister may not recommend an individual for appointment as Lord Chancellor unless he or she is satisfied that the individual is qualified by  experience. There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion.

We recognise concerns that the combination of the office of Lord Chancellor with that of the Secretary of State for Justice could create a conflict of interests at the heart of the Ministry of Justice. However, upholding the rule of law remains central to the Lord Chancellor’s role and in practice the office is given additional authority by being combined with a significant department of state. (Paragraph 133)

RESPONSE
The Government welcomes the Committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice strengthens the office.

 

CHRIS GRAYLING

—

The boldings are mine, the original copy of the letter may be viewed here.

I’m not a legal expert – nor is the lord chancellor – but I am someone with sufficient expertise to recognise when our long-standing laws and democratic processes are being side-stepped, deceitfully edited, re-written, or deleted to prop up an authoritarian government determined to impose a toxic, socially harmful and ideologically driven policy agenda, regardless of the consequences and public objection.

Cameron pledges to leave the European Convention on Human Rights.

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BBC (Conservative) political editor Nick Robinson said a report written by a working group of Conservative lawyers has predicted that the so-called British Bill of Rights would force changes in the way the Strasbourg court operates. Robinson unbelievably quoted Theresa May on the radio earlier today, from this:

“We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat.”

Of course this was a lie. At the time May made the bizarre claim, the Judicial Office intervened and stated “This was a case in which the Home Office conceded that they had mistakenly failed to apply their own policy – applying at that time to that appellant – for dealing with unmarried partners of people settled in the UK. That was the basis for the decision to uphold the original tribunal decision – the cat had nothing to do with the decision.” The recently “retired” Ken Clarke also clarified at a Telegraph fringe event that no-one had ever avoided being deported for owning a cat.

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Theresa May is far from alone amongst the Conservatives with a deep disdain for our obligations to uphold international human rights laws. It’s no surprise that David Cameron has also pledged to explore ways to leave the European Convention on Human Rights (ECHR) again, in the wake of the departure of his most senior legal advisor, according to the Daily Telegraph.

Ken Clarke said: “It is unthinkable for Britain to leave the European Convention on Human Rights,” as he also became a departing Cabinet minister. The Prime Minister is believed to have wanted rid of the Attorney General Dominic Grieve because he was supportive of Britain’s continued ECHR membership.

Labour has dubbed the Cabinet reshuffle “the massacre of the moderates”, pointing to the departure of pro-Europe and “One Nation” Tories such as David Willetts, Nick Hurd and Oliver Heald.

It’s long been the case that the Tories and the right-wing press have deliberately blurred the boundaries between the European Union and the European Council of Human Rights, which are of course completely different organisations. I assumed that this was a misdirection ploy.

However it is the case that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it. I also think that Conservatives, who regard both institutions as “interfering”, do see the Union and the Council as the same in terms of both being international frameworks requiring the British government to have a degree of democratic accountability at an international level.

In his parting interview, Mr Clarke, who has held office in every Conservative government since 1972 and is also the party’s most prominent Europhile, said the debate was “absurd”.

“I personally think it’s unthinkable we should leave the European Convention on Human Rights; it was drafted by British lawyers after the Second World War in order to protect the values for which we fought the War for.” He’s right, of course.

The years immediately after the Second World War marked a turning point in the history of human rights, as the world reeled in horror of the Nazi concentration camps, there came an important realisation that although fundamental rights should be respected as a matter of course, without formal protection, human rights concepts are of little use to those facing persecution.

So in response to the atrocities committed during the War, the International Community sought to define the rights and freedoms necessary to secure the dignity and worth of each individual. In 1948 the newly formed United Nations adopted the Universal Declaration of Human Rights (UDHR), one of the most important agreements in world history.

Shortly afterwards another newly formed international body, the Council of Europe, set about giving effect to the UDHR in a European context. The resulting European Convention on Human Rights was signed in 1950 and ratified by the United Kingdom, one of the first countries to do so, in 1951. At the time there were only ten members of the Council of Europe. Now 47 member countries subscribe to the European Convention, and in 1998 the Human Rights Act was passed by the Labour Party in order to “give further effect” to the European Convention in British law.

Previously, along with the Liberal Democrats, Grieve was able to thwart attempts to reform the ECHR, and opposed pulling out altogether. The plan to reform it is being led by the Justice Secretary Chris Grayling but Grieve has pledged to continue to fight for Britain’s membership from the backbenchers. Though Clegg had agreed to a British Bill of Rights, he was strongly opposed to withdrawing from the ECHR.

Grieve understood that ECHR is about the fundamental rights of the citizen and ought to be cherished in the same way as the Magna Carta and Habeas Corpus are. But as we know, this is not a typical view amongst Conservatives, who frequently cite the same examples of “foreign criminals” being allowed to stay in the country as evidence it is “not working”.

The Prime Minister’s spokesman said that the sacking of Grieve had not led to a change in Government’s policy. However he pledged action if the Conservatives are elected next year without the Liberal Democrats: “If you are asking me about party manifestos, the Prime Minister has previously said that he wants to look at all the ways that we can ensure we are able to deport those who have committed criminal offences.”

Mr Grieve said he would defend human rights legislation from the back benches to “contribute to rationality and discourse”.

“If we send out a sign that human rights don’t matter, that is likely to be picked up in other countries which are also signatory states such as Russia.”

The Conservatives are very likely to go into the next election with a proposal to repeal Labour’s Human Rights Act, which enshrines the European Convention in British law, and replace it a British Bill of Rights. We have witnessed this Conservative-led government blatantly contravene human rights with policies such as the Bedroom Tax, the Legal Aid Bill, and there is a backlog of cases awaiting Hearing.

The Equality and Human Rights Commission (established under Labour’s Human Rights  Act) have suffered significant cuts to funding, from 70 million when Labour were in Government to just 25 million since the Coalition took Office, up until 2012, with fears that this will be further reduced to just 18 million. This has meant severe staffing reductions, and a massive backlog of work, and at a time when many are seeking to bring forward cases regarding the impact of Government legislation.

Human rights were formulated to protect us from governments such as this one. This is a government that chooses to treat our most vulnerable citizens despicably brutally, with absolutely no regard for their legal and moral obligation to meet our most basic needs.

Such a disregard of fundamental rights is historically associated with despots and tyrants

It’s clear that this government see human rights as an inconvenience and an obstacle to their future policy plans.

A central tenet of human rights law is that all humans have equal worth. We know that Conservatives such as Cameron don’t hold that view, there is an inherent, persistent strand of Social Darwinism that is clearly evident in Tory ideology, manifested in their policies, and they prefer and shape a hierarchical society founded on inequalities.

Disregard and contempt for human rights has led to atrocities. Human rights are safeguards, they establish moral principles that set out certain standards of human behaviour, and they are universal, providing in principle social and legal protections for all.

We need to ask why would any government want to opt out of such protections for its citizens?

We know from history that a society which isn’t founded on the basic principles of equality, decency, dignity and mutual respect is untenable and unthinkable.

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Pictures courtesy of Robert Livingstone 

The Coming Tyranny and the Legal Aid Bill.

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“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill.

Source: Hansard, Column 1557, 19 May, 2011.

The Ministry of Justice’s “reforms” (Tory-speak for cuts) to legal aid undermine the fundamental principle of legal equality and violate Article 6(1) of the European Convention of Human Rights: the right to a fair trial. They reflect a truly authoritarian agenda of legislative tyranny: the reforms effectively remove legal access for many, crucially that access ultimately safeguards individual liberty against intrusion by the State, and protects us from despotic abuses of authority.

The cuts will seriously undermine access to justice and sidestep the obligation of Government accountability. The cuts will affect the most disadvantaged and vulnerable in society and allow unlawful and unfair public body decision-making to go unchallenged.

The Equality and Human Rights Commission’s analysis in 2012 warned that reducing the scope of legal aid in a substantial number of areas in civil and family law will create serious practical barriers to access to justice, potentially in breach of Article 6(1) of the European Convention on Human Rights (ECHR).

 

The cuts to the civil legal aid budget, which came in to effect from April 2013, mean many cases, including those about debt, private family law, employment, welfare benefits, clinical negligence and housing problems are no longer eligible for funding.

This is at a time when the Government have implemented other radical, controversial and contentious cuts to health, education and welfare, and it is no coincidence that the legal aid Bill will curtail justice for those with legitimate needs at a time when draconian Tory policies such as the bedroom tax will most likely result in a massive increase of numbers of people needing and seeking redress.

This will mean the compounding of effects of other fundamental  human rights breaches, legally unchecked, because of the profound impact of multiple, grossly unfair and unjust Tory-led policies. Each policy hitting the same group of citizens, to their detriment, over and over.

This sends out a truly worrying message to those of us who believed we lived in a first world liberal democracy  (one that has recognition of  individual rights and freedoms embedded in its Constitution, and one in which decisions from direct or representative processes prevail in State policies.) The promotion of equal opportunity to legal justice is the bedrock of a free and democratic society. It ought to be inclusive of all who cannot afford to be tried fairly. The reality is only a few can afford the legal costs to enforce contracts and against criminal prosecution. This profoundly unjust inequality is not something we expect to see in a Country which was once a beacon of Western liberty.

Even if we were to take a Conservative perspective, it’s still the case that the only way to wed the principle of a “pursuit of economic liberty” with wider justice is by a basic notion of equality before the law, through the equal access to justice. This means that the State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it. If the State fails to fulfil this contingent function, then we simply cease to be free.

“Legal aid will continue to be provided to those who most need it, such as where domestic violence is involved, where people’s life or liberty is at stake or the loss of their home. But in cases like divorce, courts should be a last resort, not first. Evidence shows that mediation can often be more successful and less expensive for all involved.”  –  Chris Grayling.

Section 10 of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) provides the new Director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope. Part 8 of the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. Instead, an application must be made to the Director for an ‘exceptional case determination’.

Section 10(3) of LASPO states that an exceptional case determination is a determination:
a) that it is necessary to make the services available to the individual under this part because failure to do so would be a breach of:

1) the individual’s convention rights (within the meaning of the Human Rights Act 1998), or
2) any rights of the individual to the provision of legal services that are enforceable EU rights, or
b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

This misses a very crucial point: it’s very dangerous to allow the State to decide which cases constitute the most need. In a free, democratic and fair Society, each and every single individual has equal legal worth and entitlement to opportunity to bring about legal justice. The Government choosing which cases are most “worthwhile” undermines this very premise of legal equality which is so fundamental to the notion of liberty. Everybody has a right to take any grievances they have, which have invoked legal ramifications, to court. Everybody ought to have an absolute, inalienable right to free and fair trial in a free, democratic and liberal country.

Having cut the civil legal aid budget by £320m, the Ministry of Justice proposes to cut the criminal legal aid budget by a further £220m. Legal contracts are to be based on competitive tendering. One of the outcomes of the reform and cut to the budget is that defendants on legal aid will no longer be offered a choice of solicitor.

One of the most unfair aspects of this system is that if you are charged, the State will select a prosecutor with specialist experience in that area of the law, funded by the taxpayer. Be it a sexual offences case, a road traffic death, a murder, a drugs case or a serious assault, in each case, a prosecutor will be picked to prosecute you from a specialist team.

But when it comes to your defending yourself, however, you will be given no choice. You will either have the defence lawyer allocated by the State or you will be on your own. This cannot be right. Many legal experts have voiced their alarm at this, because it will  invariably lead to gross injustices.

Large commercial firms who are going to be paid, win or lose, will have a vested interest to encourage their clients to plead guilty, whether they are or not. At a time when people are at their most vulnerable they need a local service that listens, not a business, whose goal will be to turn around the case as fast and cheaply as possible.

The scope for dangerous consequences due to vested interests in the justice system following Justice Secretary Chris Grayling’s “reforms” is considerable, and allows potential for further erosion of legal freedom. In some cases,  the sole choice of lawyer for a defendant via legal aid will also be a representative for the organisation with an interest in ensuring a prosecution. The  tendering process – where the cheapest bid wins – would be run by companies with no record of providing legal services, resulting in a dumbing down of the profession and a race to the bottom that will mean citizens being denied access to quality legal aid.

As is always the case when private companies that are driven solely by the profit motive are involved in any service, cases will be run on the cheap by under-qualified, inexperienced, low-cost staff. The company Serco, for example, provides prison security guards. Serco is one company bidding for the legal contracts with the Legal Aid Agency. The Department of Justice has proposed to remove defendants’ automatic right to select their own solicitors to make the contracts to bidders more profitable.

I have no doubt that the Coalition wants to see access to justice removed for those affected by its nightmarish, dystopian policies. Those people affected most of all are some of our most vulnerable citizens, as the cuts have been disproportionately aimed at the poorest, at sick and disabled people, and those who are unemployed. Injustice increases and extends vulnerability, especially for those groups of people already experiencing marginalisation.

We need look no further than Clause 99 of the welfare “reform” Act to see how silencing those seeking redress is a priority for this Government. This is also about hiding the evidence of the dire consequences of the “reforms”, since large numbers of successful appeal outcomes highlight, for example, that the Work Capability Assessment (WCA) is grossly unfair and widely inaccurate. Yet despite almost 11,000 deaths, many of which have been attributed to the stress of the assessment process itself, and to people being wrongfully assessed, the Government have not even instigated an inquiry into the WCA. Had an auto-mobile been associated with such a high number of deaths, it would have been withdrawn. Yet we still have the WCA, and incredibly, no willingness for an investigation from our perennially indifferent Tory-led Government.

Those wishing to appeal wrongful decisions by Atos/The Department of Work and Pensions (DWP) that they are “fit for work” after having their Employment Support Allowance (ESA) unfairly  removed will find that this will be an almost impossible task, since their right to legal aid has been removed. The introduction of the  Mandatory Review in Clause 99 will mean that they have to wait an indefinite period without any ESA sickness benefit, or claim Job Seekers Allowance (JSA), whilst waiting for the DWP to conduct the review, with no time limit imposed on the DWP to do so.

That means signing on and declaring that you are fit  for work, and people are being told by the DWP, unbelievably, that they don’t qualify because they are not fit, or fully available for work. Others have been told that to claim JSA they need to close their ESA claim which means they cannot appeal a review decision. Basic rate ESA is exactly the same amount of money as JSA, so the Government cannot even claim this is a cost-cutting move.

And we also know that Atos are contracted by the Government to make “wrongful” decisions. 

The right to a lawyer of a persons’ choice, regardless of your income, race, gender or nationality, is an underpinning condition of a free and fair justice system. Having both a sense of, and access to choice over one’s legal representative, who is there to fight for justice is paramount to basic legal equality and liberty. When this choice is removed and legal representation is essentially imposed on a passive defendant by the State (if a defendant can still access legal aid at all, that is,) our justice system becomes unacceptably authoritarian.

And it has.

Further reading:

Guidance on the exceptional funding regime

The Public Law Project scheme to assist people with making exceptional funding applications

Government lawyers warn Justice Secretary Chris Grayling over proposed ‘unconscionable’ changes to legal aid

Cutting Legal Aid – the surest way to threaten Justice 

John Finnemore on The Now Show, discussing the injustice of the Legal Aid Bill

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Update – In response to this article, a statement has been issued from the International Human Rights Commission, who say: “The IHRC strongly condemned the Bill and asked the UK Government to consider this action, which is against the norm of human rights”.

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Pictures courtesy of Robert Livingstone

 

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