Tag: judicial review

High Court finds DWP unlawful on universal credit assessments

The High Court found today that the way the Department for Work and Pensions (DWP) has been assessing income from employment through its Universal Credit (UC) work assessment periods is unlawful. This is the second Judicial Review of UC,  I wrote about it in December last year – Government faces second judicial review of universal credit.

Lord Justice Singh and Mr Justice Lewis ruled today (11 January) that the DWP has been wrongly interpreting the universal credit regulations.  They said in their judgment that treating claimants as having earned twice as much as they do if they happen to receive two pay cheques in one monthly assessment period,  and as having no earnings in the next assessment period is “odd in the extreme” and “…. could be said to lead to nonsensical situations”.
 
They added that the DWP’s incorrect interpretation of the regulations had caused “…severe cash flow problems for the claimants living as they do on low incomes with little or no savings”.

The judicial review case, brought by solicitors Leigh Day and Child Poverty Action Group on behalf of four lone mothers, challenged the rigid, automated assessment system in universal credit which meant the mothers lost several hundreds of pounds each year and were subject to large variations in their universal credit awards because of the dates on which their paydays and universal credit ‘assessment periods’ happened to fall.    

The mothers had monthly paydays that ‘clashed’ with the dates of their monthly universal credit assessment periods, with the result that if they were paid early some months, because their payday fell on a weekend or bank holiday for example, they were treated as receiving two monthly wages in one assessment period – which in turn dramatically reduced their UC award –   and as receiving no wages at all the next month.  This is a problem which has affected many working claimants and has been widely reported. 

In addition to creating wildly fluctuating universal credit awards, when the mothers received two pay cheques in one assessment period, they lost the benefit of one month’s work allowance. The work allowance is the amount of earnings claimants with children or with limited capability for work can keep in full before universal credit is tapered away at a rate of 63p per pound, worth hundreds of pounds each year.  

This flaw in the system has denied working parents the additional financial support that they are entitled to in order to help them in work and ensure that “work always pays.” The severe fluctuations in their universal credit awards and therefore their total monthly income has also caused major cash flow difficulties for parents on very low incomes, leading to them falling into debt and, for some, having to choose between paying their rent or paying their childcare costs.

The DWP refused to adjust the mothers’ assessment periods or to attribute monthly wages paid early to the actual assessment period in which they were earned, so as to enable them to avoid varying awards and cash losses.

During the court proceedings the Secretary of State argued that despite the hardship being caused, the way in which income was being assessed was “lawful”, it made sense given the automated nature of Universal Credit and that this was an issue which employers should remedy rather than the DWP.  

All of these arguments were rejected by the Court who found that correctly interpreted, the regulations mean the DWP can and should adjust its calculation of universal credit awards when “it is clear that the actual amounts received in an assessment period do not, in fact, reflect the earned income payable in respect of that period”.  In other words, wages are to be allocated to the month in which they were earned, rather than to the assessment period in which they were received.

Although the DWP sought to justify its lack of action on the basis that there would be extra costs involved in making adjustments to its systems, the court was clear that it must nevertheless comply with the regulations as correctly interpreted, stating: 

“If the regulations, properly interpreted, mean that the calculation must be done in a particular way, that is what the law requires. We do not belittle the administrative inconvenience or the cost involved but the language of the regulations cannot be distorted to give effect to a design which may have proceeded on a basis which is wrong in law.”  

Tessa Gregorysolicitor from Leigh Day who represented the first Claimant, Ms Danielle Johnson, stated:

“My client is a hard working single mum doing her very best to support her family. She is precisely the kind of person Universal Credit was supposed to help, yet the DWP designed a rigid income assessment system which left her £500 out of pocket over the year and spiralling into debt due to a fluctuating income. Quite rightly the Court has found that the Secretary of State has been acting unlawfully and ruled that a correct interpretation of the regulations would not lead to such absurd results. 

It is extraordinary that when this issue was first raised, the Secretary of State did not act quickly to remedy the problem, instead choosing to fight these four women in court arguing that the system was fit for purpose despite the hardship being caused to working families. This is yet another demonstration of how broken Universal Credit is and why its roll out must be stopped.

In light of the judgment, Amber Rudd must take immediate steps to ensure that no other claimants are adversely affected and she should also ensure all those who have suffered because of this unlawful conduct are swiftly and fairly compensated.”   
 Commenting on the judgment, CPAG’s solicitor Carla Clarke said: 
 
“This is a very welcome and common-sense judgment which clearly establishes that the DWP has been applying its universal credit regulations incorrectly.    Working parents on low incomes should not lose out on the support that Parliament intended them to receive because the DWP has designed a rigid process that is out of step with both actual reality and the law.   

“Our clients have been doing everything they can to support themselves and their young children through work but the rigid assessment system in universal credit has caused them untold hardship, stress and misery with them being forced repeatedly to manage on half of their usual total monthly income despite their fixed outgoings remaining the same.  They have each ultimately questioned why they are even working.  

“That it should have required them to go to court to challenge the DWP’s position is a testament to their commitment to bring up their children in a working household but it is a situation they should never have been put in. Today’s result should mean that in future no one will lose out on their universal credit awards or face the hardship that my clients have faced simply because of when their payday happens to fall.”  

 


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£435k Brexit donation to DUP wasn’t reported says Electoral Commission

A DUP advertisement that appeared in The Metro A DUP advert that appeared in the Metro

A £435,000 donation to the Democratic Unionist Party (DUP) from a pro-Brexit group was not reported to the Electoral Commission, it has been confirmed. The BBC has reported that Scottish unionist funding organisation Constitutional Research Council (CRC) has been fined £6,000 for failing to report the donation.

Following an investigation, the Electoral Commission ruled that there was “no reasonable excuse” for failing to report it, along with other political contributions.

It was a record fine by the Electoral Commission.

However, the Commission accepted that the donation and its donors were “permissible”.

The DUP received the donation during the Brexit referendum campaign and spent £282,000 of the money on an advert (pictured above) in the Metro newspaper.

A BBC Northern Ireland (NI) Spotlight programme asked questions about whether the DUP incurred joint spending with other EU referendum campaigners but did not declare it under a common plan.

Under Electoral Commission rules, groups are not allowed to work together in order to get around funding limits, but the DUP has denied wrongdoing and insisted it acted within electoral law. It said yesterday that it had nothing to add to previous comments on the matter.

Following the airing of the documentary in June, the Electoral Commission requested further evidence from BBC Spotlight NI but were told there was no other significant information other than what was in the programme. The BBC broadcasted their own investigation.

In August, the Electoral Commission surprisingly announced that there were “no grounds” for an investigation into the issue. However, the UK Electoral Commission – the body tasked with protecting the integrity of our elections – has behaved with all of the intergrity and accountability of the Pro Conservative mainstream media during its ‘investigation’ of this controversial, secret Brexit donation.

Details of the fine were contained in new correspondence from the Electoral Commission released by the Good Law Project, the BBC reported.

The group had been seeking a judicial review over the commission’s refusal not to probe the allegations made on Spotlight.

In October, Court of Appeal judges sitting in the High Court handed down a short further judgment in respect of the Good Law Project’s judicial review of the Electoral Commission. You can read the judgment here.

The High Court rejected the application for permission to appeal advanced by the Electoral Commission and Vote Leave. The donations made by Vote Leave to Darren Grimes to meet his expenses with AggregateIQ were Vote Leave’s referendum expenses, said the High Court, and there was no real prospect of persuading the Court of Appeal otherwise. This has four main consequences.

Firstly, both the High Court and the Electoral Commission have now held that Vote Leave broke the law during the referendum. 

Secondly, it is false – it is no exaggeration to call it a lie – to pretend that the Electoral Commission gave Vote Leave permission to work together with Darren Grimes. Vote Leave relies (you can read its witness statement here) for that assertion on a waiver given by the Electoral Commission. The waiver reads as follows:

However, it only applies if there was no “co-ordinated plan or agreement” between Vote Leave and Darren Grimes. And there was.

Thirdly, the High Court has held that the Electoral Commission misapplied the law during the referendum. The waiver – above – was wrong in principle.

Fourthly, importantly, the Commission was wrong when it gave a waiver to Leave campaigners without giving that waiver to Remain campaigners. And, had it given that waiver to Remain campaigners they, too, would have carried on spending.

Responding to these latest developments, Caroline Lucas MP has called on the Electoral Commission to “urgently reopen its investigation and use its powers to demand concrete evidence of where these significant donations came from.”

“This is about protecting the integrity of our democracy”, she added: “The Electoral Commission itself has already admitted Leave campaigners broke the law ahead of the 2016 referendum. So for them to simply take the DUP and Constitutional Research Council at their word is deeply irresponsible.”

The Good Law Project says: “It is open to the Electoral Commission to ignore the indication from the High Court and ask the Court of Appeal for permission to appeal. However, we can only hope that it will not waste further public money attempting to defend its mishandling of the Referendum.”

The Electoral Commission is apparently reluctant or powerless to enforce the laws of what ought to be democratic events such as referendums and elections.

Yet without a normative, wider, institutionalised accountability and transparency, we have no democracy.


 

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Government faces second judicial review of universal credit

Judge orders action to be fast tracked over claims removal of certain disability benefits had placed the most vulnerable under dire financial strain

The UK government’s highly controversial universal credit programme is to undergo another legal challenge at the High Court in London, as evidence mounts that the new benefits system will leave thousands of people already on low incomes significantly worse off. 

Four women are taking the government to court because of this reason.

This is the second judicial review of universal credit following the High Court’s finding in June that the system was unlawfully discriminating against severely disabled people. It comes amid mounting concern over universal credit, which academics have described as a “complicated, dysfunctional and punitive” system pushing people into debt and rent arrears. 

Last week it emerged that more than half of people denied universal credit were found to be entitled to it when their cases were investigated, prompting fresh demands for the national rollout of the new system to be halted. It’s something of an irony, given universal credit was introduced in 2013 with the intention of bringing “fairness and simplicity” to Britain’s social security system.

Now, four plaintiffs say the flaw, which relates to the way universal credit monthly payments are calculated, disproportionately affects working parents with children and leaves claimants with a “dramatically fluctuating income” and unable to budget from month to month.

In one case uncovered by the Child Poverty Action Group (CPAG) reported by The Guardian, a family’s monthly payment swung from £1,185 to zero, making budgeting impossible.

One of the women, Danielle Johnson, has claimed that as well as being irrational, the payment system is also discriminatory as it disproportionately affects single parents, who are predominantly female.

Last month, MP Frank Field said the system was driving women in his constituency into sex work in a bid to avoid absolute poverty.

However, responding to claims it was fundamentally flawed, Neil Couling, from the Department for Work and Pensions (DWP), told the court four days ago that the system relied heavily on automation to process claims.

He added would cost “hundreds of millions of pounds” to redesign and he claimed that less than 1% of claimants lost out as a result of the problem. 

Single mother Claire Woods says she was forced to turn down a promotion and use a food bank after issues with the assessment period for the new benefit system made it “impossible to budget”. 

Woods said: “I invested £40,000 in higher education studies so that I could become an occupational therapist and it’s great that I’ve got my degree but I have had to put my career hopes on hold because of universal credit.  

“I am competent managing my own finances and am someone who wants to work for professional and personal development, but the assessment period problem meant my income fluctuated so much that it was impossible to budget.  

“I had to go to a food bank and I took out an advance that I am still paying back. I took two jobs – as a PA and a waitress – which I could do without the education I invested in but which had paydays which don’t clash with my assessment period. I wanted to become free of welfare through my chosen profession but universal credit is holding me back from that.” 

Although Woods had originally wanted a healthcare job, which was relevant to her degree and would move her nearer earnings that would eventually take her out of the social security system altogether, she found that the NHS and other health organisations mostly paid salaries at the end of the working month so she would face the same trap. 

She left the council and initially took two part time jobs, and she now has one part time job.

Woods’ solicitor, Carla Clarke of Child Poverty Action Group (CPAG), said: “Universal credit is promoted as a benefit that incentivises work but in practice its rigid assessment period system undercuts that claim. 

“Our clients have been left repeatedly without money for family essentials simply because of the date of their paydays.

“One of them, for example, did her utmost to find a workaround but ultimately had to decline a promotion in a job with good prospects when her then contract came to an end just to escape the trap.

“We say that the DWP’s refusal to alter our clients’ assessment period dates to avoid this problem discriminates against working parents – one of the two groups who are entitled to a work allowance – as well as being irrational and undermining one of the stated purposes of universal credit – to make sure that ‘work always pays’.”

CPAG argues that the DWP refusal to alter Woods’ assessment period dates to avoid the problem discriminated against working parents – one of the two groups who are entitled to a work allowance – as well as being “irrational and undermining” one of the stated purposes of universal credit: to make sure that ‘work always pays.’  

“This is a fundamental defect in universal credit and an injustice to hard-working parents and their children that must be put right for our clients and everyone else affected,” Clarke added.

Lawyers acting on behalf of Danielle Johnson from Keighley, West Yorkshire, argue that the “irrational” universal credit payment system “has left some families worse off and coping with dramatically fluctuating income from month to month because of its rigid, inflexible assessment system”.

They will also argue that the new benefits system “is discriminatory because it disproportionately affects single parents, who are mainly female”.

Johnson, who will joined at the High Court by three other women in similar situations, is a single mother who works part-time as a dinner lady and relies on universal credit to top up her low income.

She is paid by her employer on the last working day of each month. However, the universal credit assessment periods run from the last day of each month, meaning that if she is paid before the last day of the month she is assessed as having been paid twice that month.

Lawyers from the legal firm supporting  Johnson at LeighDay, say: “This has resulted in her receiving fluctuating universal credit payments throughout the year, making it very hard to budget from one month to the next.”

They add: “It has also caused her to be around £500 worse off annually due to the fact that she is entitled to ‘work allowance’ as a parent.

“The work allowance is a disregard of £198 per month of a parent’s monthly earnings so in months where she is treated as having no earned income, she loses the whole benefit of the work allowance. In months where she is treated as having double income, she does not receive any extra work allowance.”

Johnson said: “I have never been this financially unstable before, to the point of being unable to afford my rent and having to go into my overdraft when buying food. It is getting me into a vicious cycle of debt.

“Universal credit is supposed to be simpler and fairer, but my experience of it is the opposite. I’m doing my best working part-time to make ends meet so that I can look after my daughter.

“I thought the government was supposed to help and support people like me trying to get back to work but I have found it to be the opposite.”

Tessa Gregory, partner at law firm Leigh Day, added: “It is very clear through the multitude of problems reported that universal credit is a broken and ill-thought out system.

“Universal Credit is supposed to “make work pay”. It was purportedly designed to assist those in work being paid on a regular monthly basis, yet flaws in the system mean that our client, who has a regular monthly salary paid like many on the last working day of the month, is struggling to support her family.

“She has been left wondering why she ever went back to work, it is an absurd situation.

“Our client has repeatedly asked the government to address this problem, but they have refused to take action, so our client has been forced to take her case to court.

“It is important that this issue gets addressed as soon as possible as once Universal Credit rolls out fully the numbers affected will run into the tens of thousands if not more.”

Legal aid for social security appeals is almost entirely gone. People adversely affected by unfair decisions are effectively being denied justice.

The legal challenge comes amid mounting concern over universal credit, which campaigners, academics and MPs have described as a “complicated, dysfunctional and punitive” system pushing people into debt and rent arrears.

 


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Judicial review rules benefit cap unlawfully discriminates against lone parents

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The  Conservatives have been dealt a blow by a high court judgement today, which ruled that the government’s highly controversial benefit cap unlawfully discriminates against lone parents with young children. The imposing of a benefit cap on tens of thousands of lone parents with children under the age of two is not only unlawful, it has has resulted in “real damage” to the families affected, the high court has ruled.

The judicial review challenge brought by four lone parent families, concerned the reduced benefit cap introduced by the Welfare Reform and Work Act 2016. The revised benefit cap drastically reduced housing benefits, leaving lone parent families across the country unable to afford basic life necessities to care for their children.

Mr Justice Collins has ruled that the application of the revised benefit cap to lone parents with children under two amounts to unlawful discrimination and that “real damage” is being caused to the claimants and families like theirs across the country.

The flagship welfare policy meant that there is a cap on total benefits, at either £23,000 a year in London, or £20,000 for the rest of the UK. The Department of Work and Pensions (DWP) had said that people were exempt from the cap if they work at least 16 hours per week – which the claimants said discriminated against lone parents with children under the age of two.

The benefit cap, which limits the total amount households can receive in benefits to £20,000 a year, or £23,000 in Greater London, was claimed to be  an “incentive” to “support” unemployed people to move into work. In reality, it has hindered people who want to prepare for work, demotivating them because they are struggling financially to meet their basic needs. Implying that taking support away from people – making cuts – is somehow “support” is a particularly ludicrous Conservative claim.

Mr Justice Collins said in his judgment that the policy visited “real misery to no good purpose” on lone parents with very young children who were subject to the cap despite there being no “official” requirement for them to find work. However, even for those citizens who are required by the state to seek work, it is still very difficult to justify cutting those people’s support, too, since welfare was designed to meet only basic needs.

Lone parents with children under two do not qualify for free childcare and so would find it difficult and often impossible to juggle working the minimum 16 hours a week required to evade the cap while finding means to care for the child. 

He said: “The evidence shows that the cap is capable of real damage to individuals such as the claimants. They are not workshy but find it, because of the care difficulties, impossible to comply with the work requirement.”

Most lone parents with children aged under two were not the sort of households the cap was intended to cover and it was “obvious” that it would exacerbate poverty. “Real misery is being caused to no good purpose.

He continued by stating that: “Most lone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on DHP (Discretionary Housing Payments), they will remain benefit households.”

Cutting people’s lifeline support causes extreme hardship and harm

Campaigners have argued that the benefit cap is a powerful driver of poverty and destitutionOfficial estimates published earlier this year show 50,000 low-income families caring for an estimated 126,000 children were at risk of serious financial hardship after being trapped by the lower benefit cap.

Rebekah Carrier, the solicitor acting on behalf of the families, said: “The benefit cap has had a catastrophic impact upon vulnerable lone parent families and children across the country. Single mothers like my clients have been forced into homelessness and reliance on food banks as a result of the benefit cap.

“Thousands of children have been forced into poverty, which has severe long-term effects on their health and wellbeing.” 

She added: “We are pleased that today’s decision will relieve my clients – and other lone parent families around the country – from the unfair impacts of austerity measures which have prevented them from being able to provide basic necessities for their children.” 

The Conservatives have said they intend to appeal the decision. The DWP has been given leave to appeal against the ruling. A spokesperson said: “We are disappointed with the decision and intend to appeal. Work is the best way to raise living standards, and many parents with young children are employed.”

Alison Garnham, chief executive of the Child Poverty Action Group charity, said: “In exposing the absurdity and cruelty of the benefit cap, we hope this case is the beginning of the end for this nasty policy. It is a policy that punishes the vulnerable for being vulnerable and even fails on its own terms.”

In 2015, although the Supreme Court found that the original cap was lawful, a majority found that it breached the rights of children. Despite evidence of the impact upon child poverty and amidst calls to review the way the benefit cap works, the benefit cap was lowered again in November 2016. The new annual limit was reduced significantly, with lower rates for households outside of London. Previously, London seem to bear the brunt of the policy but the revised cap is now affecting thousands of households across the country.

Mark Serwotka, general secretary of civil servants’ union the PCS, said the benefit cap should be scrapped.

He said: “As the union that represents DWP staff, we opposed the benefit cap from the outset because we knew it was cruel and unnecessary, and would drive families into poverty and homelessness.

“We welcome the judge’s ruling and comments about the misery being caused ‘to no good purpose’, and we now call on the Government not just to tweak the cap but to scrap it entirely.”

Labour leader Jeremy Corbyn described the ruling as a “further demonstration of the failure of this government’s austerity agenda”.

“It is failing in its own terms, it’s failing our communities, and it’s failing the most vulnerable in our country – including the victims of domestic violence and those facing homelessness,” he said.

“Labour has stood against the benefit cap, its discrimination against parents with children and the government’s cruel austerity programme. 

He called on the Government not to appeal the decision, and to “end this discrimination against parents and children”. 

Earlier this year, I wrote an article about comparative research at an international level, which has undermined the government claim that the UK welfare state encourages “widespread cultures of dependency” and presents unemployed people with “perverse incentives”.

The study, which links welfare generosity and active labour market policies with increased employment commitment, was published in 2015. It has demonstrated that people are more likely to look for work if they live in a country where welfare provision is generous and relatively unconditional. Empirically, the research includes more recent data from a larger number of European countries than previous studies. 

The research also compared employment motivation in specific sub-sections of communities across countries: ethnic minorities, people in poor health, non-employed people and women, and adds depth to previous studies. It has been concluded that comprehensive welfare provision is increasingly seen as a productive force in society (Bonoli, 2012), that stimulates employment commitment (Esser, 2005) and supports individual inclusion and participation in society and the labour market, particularly among disadvantaged groups. 

The researchers found that the more a country paid to unemployed and disabled people, and invested in employment schemes, the more its population were likely to agree with the statement, whether employed or not. 

The research findings challenge the Conservative’s neoliberal ideology, antiwelfare narratives regarding so-called “perverse incentives”, their highly controversial and stigmatising “scrounger” rhetoric and the brutal welfare cuts, implemented in stages since 2012. 

Welfare was originally intended to cover only basic needs: it allows families to pay rent, buy food, keep warm and simply keep going. When families get less money because of the Benefit Cap, the government’s own research shows that large numbers of people go into debt, end up with rent arrears, and can’t afford adequate food. Through no fault of their own. When people are struggling and can’t meet their basic needs, surviving becomes their overwhelming priority. This demotivates people, and means that it is almost impossible for them to meet their higher level psychosocial needs. Such as the need to look for work.

The government’s draconian welfare policies are founded on a “small state” neoliberal ideology, traditional Conservative class-based prejudices and a mean spirited, punitive approach to public needs.

Lies, damn lies and sadistics. The Tories have introduced sanctions which affect people in work who are low paid or work part-time. People have to prove that they are trying to “progress in work”. Once upon a time, we had a strong trade union movement for collective bargaining. Nowadays, when employers exploit workers, paying them a pittance, the employee is punished by the government.

 


 

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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”.

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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British Psychological Society and charity consortium campaign for reform of WCA gains momentum

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I reported previously that the British Psychological Society (BPS) have called for the reform of the highly controversial Work Capability Assessment.

The BPS have cited a growing body of evidence that seriously ill people are being inappropriately subjected to the Work Capability Assessment (WCA). Psychologists also argue that the WCA does not effectively measure fitness for work and that its application is producing inappropriate outcomes for claimants.

The Society’s call for reform has gained momentum, with more than  20,000 people signing a petition to the Department for Work and Pensions (DWP) and representatives of the charities Mind, the National Autistic Society and Rethink Mental Illness delivered the petition on Thursday, 5 November.

The highly problematic WCA is used to determine whether someone applying for employment and support allowance is “fit for work.” The charities say flaws in the test are causing a great deal of stress and anxiety. In some cases people are being wrongly assessed as fit for work, which can have devastating financial and personal consequences.”

Professor Jamie Hacker Hughes, President of the British Psychological Society, said:

“The Society has repeatedly asked for a meeting with ministers at the DWP so that we can express our concerns over the WCA – so far without success. We are particularly concerned that the government’s benefits policy may misuse psychological tools and techniques. We want to ensure policies are informed by appropriate psychological, theoretical and practical evidence.”

The Society published a briefing paper in June.

A Judicial Review of the WCA was instigated by two anonymous claimants with mental health problems, who were represented by the Public Law Project.

In May 2013 the Upper Tribunal made an “interim” judgment that the WCA puts people with mental health problems, learning disabilities and autism at a “substantial disadvantage”. It was a landmark ruling.

The Tribunal panel ruled that the DWP had failed to make reasonable adjustments, according to the Equality Act, to ensure people with mental health problems were treated fairly by the system. This failure meant such claimants were placed at a substantial disadvantage.

Directors of the three charities, Mind, the National Autistic Society and Rethink Mental Illness, all backed the case and welcomed the judgment, calling on the government to stop assessing people’s fitness for work under the current system until the issue was resolved.

The DWP immediately appealed against the judgment, stating there was no intention of halting the WCA process, but in December 2013 the Court of Appeal upheld the Upper Tribunal’s interim ruling.

The Tribunal held further Hearings in 2014, which were focused on whether or not there is a “reasonable” adjustment that the DWP should have put in place.

The Upper Tribunal confirmed its earlier ruling that the WCA puts people with mental health problems, learning disabilities and autism at a “substantial disadvantage”. However, it did not find, at this point,  that the claimants had been personally discriminated against.

As a result, the court said it could not compel the DWP to trial changes to the WCA. They also said that they did not have enough information to determine whether or not there is a reasonable adjustment which could be put in place for people with mental health problems.

However, the court said that there still may be reasonable adjustments that the DWP can make to the WCA, and has encouraged the DWP to trial changes “as soon as possible”.

Paul Jenkins, CEO of Rethink Mental Illness, said:

“This ruling proves once and for all that this cruel and unfair process is unlawful. The judges have independently confirmed what our members have been saying for years – the system is discriminating against some of the most ill and vulnerable people in our society, the very people it is meant to support.

The work capability assessment process is deeply unfair for people with a mental illness – it’s like asking someone in a wheelchair to walk to the assessment centre.”

Professor Malcom Harrington’s first review – published in back in November 2010 – had previously criticised the way the WCA process failed to properly account for and accommodate people that have chronic illnesses with fluctuating symptoms and people with mental health problems, and he recommended changes, including placing mental health experts in all test centres.

His recommendations have not been implemented.

Pictures courtesy of Robert Livingstone

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, thisThe 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)

Page 2

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.

Page 4

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.

Government turns its back on international laws, scrutiny and standards: it’s time to be very worried

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Concerns have been raised by lawyers and legal experts that Conservative ministers have quietly abandoned the longstanding principle that members of the government should be bound by international law.

The rewritten ministerial code, which was updated on October 15  without any announcement, sets out the standard of conduct expected of ministers. It has been quietly edited. The latest version of the code is missing a key element regarding the UK’s 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”.

Legal experts say key issues affected by the change could include decisions about “whether to go to war or use military force, such as the use of drones in Syria, any decision made by an international court about the UK and any laws not incorporated into English law, such as human rights legislation and the Geneva conventions.

Ministerial code changes between 2010 and 2015.
Photograph: Government handout – courtesy of the Guardian

This comes as the UK government is facing another United Nations inquiry regarding widespread allegations that the Conservative welfare reforms breach the Human Rights of disabled people. It also comes following the government announcement this week that there are plans to scrap the Human Rights Act by next summer, to replace it with a controversial “British Bill of Rights.”

Raquel Rolnik, the UN’s special rapporteur for housing, found the bedroom tax to contravene human rights and in 2013, she called for the Tory “spare room subsidy” to be suspended immediately. In a wide-ranging report she also calls for the extension of grants to provide more social housing, the release of public land, build-or-lose measures to target landbanks and increased private rented sector regulation. None of these are recommendations which the Conservatives have been remotely willing to entertain, instead they have directed hostility towards the United Nations.

The Conservatives have already taken away access to legal aid from the poorest and most vulnerable citizens, in a move branded contrary to the very principle of equality under the law. Last year, Grayling, then the Justice Secretary, was accused of turning legal aid into an instrument of discrimination by a court, because of his attempt to introduce a residency test to legal aid access, a move which exceeded his statutory powers when he devised it.

He has also tried to dismantle a vital legal protection available to the citizen – judicial review – which has been used to stop him abusing his powers again and again. Judicial review is the mechanism by which citizens can hold the government to its own laws. With the Criminal Justice and Courts Bill, the justice secretary tried to put it out of reach.

Grayling, suffered a defeat in the House of Lords vote on his plans to curtail access to judicial review, which would have made it much harder to challenge government decisions in court.

Peers voted by 247 to 181, a majority of 66, to ensure that the judges keep their discretion over whether they can hear judicial review applications after a warning from a former lord chief justice, Lord Woolf, that the alternative amounted to an “elective dictatorship”.

He has tried to restrict legal aid for domestic abuse victims, welfare claimants seeking redress for wrongful state decisions, victims of medical negligence, for example.

It’s very worrying that this is a government that wants to leave Europe behind and sever the connection with the European Convention on Human Rights.  It’s a government that wants to do as it pleases, free from international scrutiny and what it clearly sees as the constraints of international law and the judgments of international courts.

The Conservatives have demonstrated an eagerness to take away citizens’ rights to take their case to the European court, with many of their actions clearly based on an intent on tearing up British legal protections for citizens and massively bolstering the powers of the state.

The Guardian reports that a legal challenge against the change will be lodged on Friday by Rights Watch, an organisation which works to hold the government to account. Yasmine Ahmed, its director, 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.”

In his preamble to the new ministerial code, David Cameron says: “People want their politicians to uphold the highest standards of propriety. That means being transparent in all we do.”

However, I reported last year that in terms of international standards of conduct, the Conservatives are not doing well. Transparency International flagged up many areas of concern in their report: A mid-term assessment of the UK Coalition Government’s record on tackling corruption

The Cabinet Office has of course denied there was any intention to weaken international law and the administration of justice by omitting the phrases from the new code.

A spokesman said:

“The code is very clear on the duty that it places on ministers to comply with the law. ‘Comply with the law’ includes international law.

The wording was amended to bring the code more in line with the civil service code. The obligations remain unchanged by the simplified wording. The ministerial code is the prime minister’s guidance to his ministers on how they should conduct themselves in public office.”

However, a Conservative party policy document promises 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.”

Lord Falconer, Labour’s shadow lord chancellor, said:

“If this is what ministers are planning to do it is shocking. We are a country that prides itself on operating in accordance with the rule of law. That has always meant both domestic and international law.

This is a message we have sent out both internally and externally. If we are now regarding compliance with international law for ministers as optional that is staggering. If ministers breach international law it will no longer be misconduct.”

The Guardian cites Ken Macdonald QC, the former director of public prosecutions, who said:

“It is difficult to believe that this change is inadvertent. If it’s deliberate, it appears to advocate a conscious loosening of ministerial respect for the rule of law and the UK’s international treaty obligations, including weakening responsibility for the quality of justice here at home.

In a dangerous world, the government should be strengthening its support for the rule of law, not airbrushing it out of the ministerial code. On every level, this sends out a terrible signal.”

Ironically, on the same day that the new code was quietly released, the attorney general, Jeremy Wright, gave a keynote address about the importance of international law to an audience of government lawyers at the Government Legal Service International Law Conference.

Wright said:

“The constitutional principle to respect the rule of law and comply with our international obligations is reflected in the ministerial code – which applies to me as much as to any other minister. The code states that there is 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.”

It is not clear whether or not the attorney general was informed about the changes to the ministerial code at the time of his speech. Both the Cabinet Office and the attorney general’s office have declined to answer this question.

Tory ministers are a major source of national embarrassment when they denounce the European Court of Human Rights whilst instructing the rest of the world, including other European states, to respect our collective international human rights obligations and “the rule of law.” Human Rights legislation exists throughout the free world. Free speech, the right to a fair trial, respect for private life and the prohibition on torture are values which distinguish democratic societies from despotic states.

There is no justification for editing obligations to upholding international laws, human rights or for repealing the Human Rights Act: that would make Britain the first European country to regress in the level and degree of our human rights protection. It is through times of recession and times of affluence alike that our rights ought to be the foundation of our society, upon which the Magna Carta, the Equality Act and the Human Rights Act were built – protecting the vulnerable from the powerful and ensuring those who govern are accountable to the rule of law.

Update: Former head of government’s legal service says obligation that ministers must comply with international law – dropped from revised ministerial code – had irritated PM: No 10 ‘showing contempt for international law’


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High Court orders Judicial Review of Benefit Cap and its impact on disabled people and their carers.

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Article courtesy of Rebekah Carrier.

The High Court has ordered that a judicial review challenge to the ‘benefit cap’ and its impact upon disabled people and their carers should proceed to a full hearing, and that this hearing must take place urgently.  The Secretary of State for Work and Pensions, Iain Duncan Smith, unsuccessfully argued that the claim should be dismissed.  Mr Justice King rejected the Secretary of State’s arguments, granted permission to the claimants and ordered that the hearing must take place no later than 30th October this year.

The High Court’s Order comes shortly after the Supreme Court ruled that the benefit cap breaches the rights of children, meaning that they are not provided with “adequate food, clothing, warmth and housing, the basic necessities of life” (Lord Kerr).

Last year the Government also conceded that the cap had “unintended consequences” for victims of domestic violence living in women’s refuges, and so amended the regulations to remove women’s refuges from the cap.

Now the High Court will examine whether the cap also breaches the rights of disabled people and their carers.  The High Court’s Order also comes at a time when the Government in the Queen’s Speech has made clear its intention to cut the cap even further.

The claim is brought by two families – and in both, an adult relative is providing full time care to their elderly and disabled grandmothers.  They are able to perform their caring roles only with the support of state benefits, covering their housing and living expenses, and both are in receipt of Carers’ Allowance.

The families argue that the benefit cap is unfair and unlawful because of its impact on carers and those who they care for.  Included in the group of families who are capped are those who receive Carer’s Allowance.

To qualify for Carer’s Allowance the benefit claimant has to be providing full time care – upwards of 35 hours a week – to a severely disabled person who receives Disability Living Allowance (DLA). This means that anyone receiving Carer’s Allowance is by definition not available to work, because they must be providing care.  The Secretary of State has provided an exemption from the cap to those who receive DLA – but not to their carers.

Two categories of carer only are exempt: carers for children or spouses.  Any carer who provides care to another adult, such as a parent or grandparent, is caught by the cap.

One of the claimants, Ashley Hurley, is a young woman who was brought up by her grandmother and who is committed to providing her with the care and support which she needs.  She has said:

I had understood that the benefit cap was meant to encourage people to work and to address the problem of children growing up in workless families. I do not understand why it should apply to me as I do work, looking after my grandmother. If I did not care for my grandmother, then I suppose that we would have to ask the Council to pay for care for her. It would certainly cost the State more to pay someone to provide the care that I provide, and my grandmother would be very distressed about having care provided by strangers. Indeed, I expect that both her mental and physical health would rapidly deteriorate if this happened. I do not feel that I would be able to allow this to happen, and I do not understand why the government would think it was better for the State to care for my grandmother instead of her own family.”

The solicitor for the families, Rebekah Carrier, said:

“My clients have been hit by the benefit cap because they are disabled or they provide essential care to their disabled relatives.  They are not skivers – they are strivers.  They provide full time care and save the State money.  The Government seeks to justify the cap by the financial savings achieved but the long term consequences of this arbitrary benefit cap are likely to have not only devastating consequences for individual disabled people and those who care for them, but serious financial costs.  If Ashley Hurley is forced into stopping her work as a carer, the State will have to pick up the tab and arrange alternative care.  This is not a fair or sensible policy.

The Supreme Court has already ruled that the benefit cap breaches international protections for the rights of children. Now the High Court has allowed this claim to proceed, considering whether it also breaches the rights of disabled people and their carers.  The Government must halt this policy which simply hits vulnerable people.”

544840_330826693653532_892366209_nMany thanks to Robert Livingstone for the excellent illustrations.

 

Access to justice is the foundation of democracy

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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 Legal Aid and Advice Act 1949 was a British Act of Parliament which extended the welfare state to ensure that those unable to pay for a solicitor were able to access free legal help. It was designed and implemented to allow poor and vulnerable people to have a genuine access to justice, and was a key part of our post war settlement.

Massive funding reductions, implemented through the contested and controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012, (LAPSO) removed in one fell swoop public funding for huge and crucial areas of civil work – including welfare benefits, debt, immigration, domestic violence, clinical negligence, employment rights and most housing. What this means in basic terms is the poor have no access to justice, and at a time when government is relentlessly encroaching on poor people’s freedoms and rights.

The Legal Aid Bill has been cumulatively devastating to the provision of legal services and is a savage attack on one of our fundamental constitutional principles – it seriously undermines the rule of law.  The government is ensuring that those affected the most by their draconian policies are unable to challenge government decisions. It’s now very difficult to get advice and representation, and judicial reviews are being stifled as a consequence. Yet the number of judicial reviews involving government departments has almost doubled since 2010, the government has revealed. It’s increased by 92%.

The figures were revealed in the same week that the House of Lords thwarted the government’s attempt to restrict judicial review. In particular, peers voted down Ministry of Justice attempts to create a presumption that those who apply to the court to intervene in a judicial review case should have to pay their own costs. Cameron has made it clear that he regards judicial reviews, audits, consultations, impact assessments and other democratic mechanisms that ensure government transparency, accountability, and serve as safeguards of our human rights, as “barriers to getting things done.”

Cameron has confirmed that he wants civil servants to stop conducting routine equality impact assessments for legislation, which assess the likely effect of new policies on women, disabled people and people from ethnic minorities, and to end cumbersome 12-week public consultations that delayed ministers from pressing ahead with their plans. He said that such safeguards to the rights of protected groups are  “bureaucratic rubbish”.

The legal aid “reform” was introduced 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 justice and 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 vulnerable citizens, to their detriment, over and over.

As a former barrister at Tooks chambers, Emily Thornberry MP has condemned the closure of the “exceptional set”: “We were the chambers of the Guildford Four, the Birmingham Six, the Lawrence family… and we have closed because of the legal aid cuts. But this isn’t just about lawyers. The legal aid system has to begin with the vulnerable; ensuring people get a voice and access to justice, and ensuring that our legal system contains the checks and balances that we need in a democratic society.”

Thornberry, speaking last year to a packed conference in a Brighton, criticised the government for the ideological nature of the cuts it has introduced – and in particular, the attack on judicial review. She said:

“The government doesn’t want to be held accountable in the courts so they’re making it harder for people to judicially review them.  Nobody wants to be judicially reviewed, but it goes with the territory.  It’s important for people to be able to hold the government to account in the courts.”

The legal aid bill was defeated 14 times in the House of Lords and ultimately passed after a tied vote. Services and individuals feeling the impact are currently giving evidence to the House of Commons justice committee. The Equality and Human Rights Commission had warned in 2012 that: reducing the scope of legal aid in a 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).   

This is a government that clearly cares nothing for being held accountable for its actions, for public scrutiny and critical debate, and for justice and human rights. In fact since 2010, they have steadily eroded all of these crucial safeguards and democratic criteria through the implementation of policies that are extremely authoritarian and discriminatory.

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 so-called free, democratic country.

Such profoundly unjust legislated inequality is not something we expect to see in a country which was once a beacon of Western liberty. 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.

7005_494073677328832_658777491_n (1)Picures courtesy of Robert Livingstone

 


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