Archive for February 9th, 2011

David Cameron hopes MPs will oppose court ruling on prisoners’ votes

Guardian: MPs to vote on motion which says ‘democratically elected lawmakers’ should have final say on who gets vote

David Cameron has invited Conservative MPs to deliver a clear signal on Thursday of their opposition to a ruling from the European court of human rights that Britain should lift a blanket ban that prevents prisoners from voting.

Parliament is supreme… in the sense that it can do as it pleases. If we wish to refuse to comply with a treaty, in this case The European Convention and a judgment of the ECHR, we may do so… but…. and it is a big but.. is it not….?  We can’t really claim to be upholders of the international rule of law then…can we?  What will be the worth of Britain’s word in other international treaties  when we enter into them or when, in future, we don’t like the adjudication or judgments in relation to treaties we have already signed?

Of course… this is/may be just too simple minded a viewpoint, easily dismissed  by the real politikerrati of Westminster…there, they take a broad, geo-politico-economic view…and then they read The Sun and The Daily Mail to see what their readers think and do what they think…. democracy…DONTCHA LUV IT?

Meanwhile…. so long as the ravening horde of backbenchers are happy and British Bankers are mollified by having a modest tax levy of £800 million added, bringing the tax take, they say, to £2.5 billion…. we’re all happy and bankers can close in for the kill on the £7 billion pot (higher in some newspapers) available for bonuses.


Archbishop backs axe killer: Dr Rowan Williams says prisoners should get the right to vote after campaigner John Hirst’s boasts

The Daily Mail… if you really feel the need to…… bone up further on anger and let Mr Hirst’s more unusual pronouncements cloud the issue….. and judgement….. as opposed to the judgment.

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Law Review: Independence of the judiciary

Lord Phillips offers to cut number of Supreme Court justices to save money

Solicitors Journal: “Lord Phillips, president of the Supreme Court, has suggested a change in the law to cut the number of Supreme Court justices. In a speech at UCL last night, Lord Phillips said the court could not be insulated from the need to cut costs and faced a “significant reduction” in its budget. He said that for many years the judicial committee of the House of Lords and the Supreme Court had managed with 11 rather than the statutory 12 justices because of the absence of Lord Saville at the Bloody Sunday enquiry.”

I am no expert in Constitutional law but I have a number of observations and invite the views of other lawyers, experts in the field or otherwise..or, indeed, any reader of my blog.

1.  The UKSC: The United Kingdom Supreme Court blog – If you are not familiar with this excellent resource, here it is.  The UKSC blog analyses the decisions of the Supreme Court and is invaluable in adding to the light being cast on open justice by the Supreme Court’s own initiative in providing press summaries – to ensure that some sections of  mainstream press and media  have a sporting chance of reporting on the important decisions of our times accurately.

Editors: Dan Tench, Oliver Gayner, Anna Caddick & Laura Coogan (Olswang)
Hugh Tomlinson QC, Matthew Ryder & Anthony Fairclough (Matrix)
Administrator: Anita Davies


2.  Deficit reduction cuts: While I can appreciate Lord Phillips’ preparedness to assist in the deficit reduction needed in the country in present times, he makes a number of points which are important to ensure that our courts, and The Supreme Court itself, do not become outposts of The Ministry of Justice.  The establishment of The Supreme Court, separating the final appellate court in this country from Parliament in fact and in law was not welcomed by all, but, for my part, it was a step forward in bringing depth and worth to the ideal of the rule of law in this country.  One only needs to look at the decisions handed down last year in the first year of operation of the new Supreme Court to get a feel for the importance of the issues being dealt with and, dare I say it, a continuing demonstration by the judges to hold government to account and not be ciphers to government policy as Lord Bingham observed drily some time ago was the case in times gone by.

Lord Phillips has suggested that the number of justices be reduced from 12 to 11 but warns ““It would regrettable if we were to come under pressure to reduce our number below that needed to cater properly with our workload in order to accommodate budgetary constraints.”

It is unusual, in our long history,  for a senior judge to be critical of government and the words Lord Phillips used in his speech were carefully chosen;  but made the point well that an independent judiciary has to be independent.

“In the course of negotiating these I received a letter from the Lord Chancellor indicating the scale of the economies that he expected the Supreme Court to make in terms that I can only describe as peremptory.

“It was also suggested that to save money our administration could be amalgamated with the Courts Service of England and Wales, a suggestion that was totally unacceptable.”

“My conclusion is that our present funding arrangements do not satisfactorily guarantee our institutional independence,” Lord Phillips said.

“We are, in reality, dependant each year upon what we can persuade the Ministry of Justice of England and Wales to give us by way of ‘contribution’. This is not a satisfactory situation for the Supreme Court of the United Kingdom.

“It is already leading to a tendency on the part of the Ministry of Justice to try to gain the Supreme Court as an outlying part of its empire.”

Parliament may well be supreme – but subject to obligations entered into in terms of international treaties signed up to – The European Convention being one. If the Rule of Law is to have any meaning and respect and be perceived by all to be independent, given that our Supreme Court cannot strike law down (its function is to apply the law of the land, laws which, of course, apply to the governments of the day until Parliament changes those laws), the courts must, surely, be founded upon a statutory footing whereby the running costs are determined and covered by Parliament on behalf of the country (perhaps on the advice of an independent agency?)  and not be  subject to the political agenda or needs of any particular government.  To ensure this the courts cannot be a part or ‘outpost’ of the Ministry of Justice and ‘peremptory’ dictats should not be given by a serving member of the Cabinet (‘be he ever so high’)  of any government to an independent judiciary.

Tomorrow, Parliament will debate the issue of whether, in effect,  to comply with a judgment of the European Court of Human Rights on the prisoners’ votes issue. Parliament may, in its wisdom or lack thereof, decide to withdraw from The Convention and jurisdiction of the ECHR – which may, in turn, have implications for membership of the European Union – but, for my part, chucking babies out with the bathwater is never a good thing and it would damage our international standing and erode the real value of our rule of law ideals.

Over to you…should you wish to comment….


See also:

UK Human Rights blog – excellent piece:

Justice in the age of insecurity

Carl Gardner who writes the Head of Legal blog disagrees with Lord Phillips in a thought provoking post. I don’t always agree with Carl -I do favour a wholly independent and fixed budget, perhaps controlled by an IPSA like body?   Carl has analysed this issue with his usual thoroughness and directness.. and he is an expert in this field having worked as a government lawyer for ten years.

Lord Phillips doubts his own independence

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Britain’s Supreme Court (72 mins) 

Channel 4: This gripping, feature-length documentary charts the first year in the life of Britain’s new Supreme Court – the highest court in the land – now available on Channel 4 OD

I was up earlier than usual  this morning at 3.30 and, with Broadband working perfectly now, I watched this most enjoyable programme.  It covered a lot of ground and gave a good insight into the working of the Supreme Court and some of the leading judges – including some fine footage of Lord Phillips swimming each morning rain or shine, summer and winter.  I was particularly taken with Lord Clarke’s rather dry comment on the high costs of litigation and the demise of legal aid…which I wrote down.. as best I could…“There is no point in having a right unless you can afford to exercise it”.

I have no hesitation in recommending the Channel 4 film to you.

And..on the subject of the costs of going to law..this rather sobering statement…

LSC chair says legal aid practitioners need to “be realistic”

Jordans Family Law: The chair of the Legal Services Commission, Sir Bill Callaghan, has said everyone working in legal aid needs to think about their “responsibilities, be realistic and show imagination,”

In an address to the Westminster Legal Policy Forum in London yesterday, Sir Bill said responsibility means “accepting the need for dialogue and working together as the government presses ahead with difficult choices”.

He stressed the need to be “realistic given what is happening in other areas of public spending across government and within the Ministry of Justice”.

Sir Bill said: “Even with our existing budget we would need to find improvements in the legal aid system. This isn’t a job with an end date.

“Those improvements must be ongoing to build respect from the taxpayer and ensure the legal aid fund continues to be valued.”

Assange lawyer admits he was wrong over interview

The Guardian: Julian Assange’s lawyer told a court yesterday that prosecutors attempted to interview the WikiLeaks founder over sexual assault allegations while he was still in Sweden.

Bjorn Hurtig’s admission contradicts his previous claim that the Swedish authorities had only asked to speak with Mr Assange after he had left the country. The lawyer admitted under cross-examination that he was mistaken to suggest that he had heard nothing from prosecutor Marianne Ny until after Mr Assange had left the country.

The Assange case continues on Friday…. always best to wait until the fat lady sings… or, in this case, all the evidence is put before the court..or not….if you forgive the irony…. in a case involving the operation of the European Arrest Warrant.

More later….. I have some catching up to do.

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