The dismantling of the UK Justice System. Paul Garlick QC Furnival Chambers London EC4A 1JQ

Transcription

1 The dismantling of the UK Justice System Paul Garlick QC Furnival Chambers London EC4A 1JQ

2 "England expects that every man will do his duty" "England expects that every man will do his duty" was a signal sent by Admiral Nelson from his flagship HMS Victory as the Battle of Trafalgar was about to commence on 21 October Well, in 2014, England expects all right minded advocates to express their abhorrence of the attitude of the UK government and its proposals to dismantle the justice system the UK.

3 My original presentation- as it was to be before Friday! In three key areas of the criminal justice system in England and Wales the protections afforded to suspects, accused persons and those who have been the subject of unreasonable decisions of the organs of the state are slowly being dismantled. Paul Garlick will review the changes that have brought into effect in the areas of: legal aid; extradition and judicial review of the decisions of public (state) bodies.

4 Legal aid? What legal aid? Legal aid in England and Wales was established in 1949 and, until now, it has been key to the administration of the British justice system. By ensuring the right to counsel, legal aid ensures equality before the law and the right to a fair trial. Yet, there is a dire risk of legal aid being dismantled and becoming an illusory right.

5 Legal aid? What legal aid? The UK government has already taken 320m out of the annual legal aid budget, and it plans to remove a further 220m each year until The scope of these cuts is frightening, and they will affect many areas of criminal and civil law. The government s argument is that, with an annual budget of 2bn per year, England and Wales legal aid system is the most expensive in the world and that it needs reform. But what about the devastating effect that the UK government s policies are having on the right to a fair trial.

6 Extradition a right of appeal to the High Court? The UK government has introduced new rules which severely affect the right of appeal to the High Court by defendants in extradition proceedings. What effect will the diminution of the rights of accused defendants in extradition proceedings have on justice? Appeal only with permission of the High Court. Abolition of the Secretary of State's duty to review in category 2 cases.

7 Judicial review The UK government has introduced new rules which will limit the scope for judicial review of the decisions and actions of public (state) bodies. What effects will these restrictions have on justice?

8 Conservatives pledge powers to ignore European court of human rights rulings Rulings by the European court of human rights (ECHR) would no longer be enforceable in the UK under radical plans by the Conservatives. By giving parliament the right to veto judgments,the authority of the court in Strasbourg would be severely curtailed, with parliament given the final say in deciding whether or not to adopt ECHR decisions.

9 The Conservative party's plans for protecting human rights in the UK The plans are contained in an eight-page strategy paper, entitled Protecting Human Rights in the UK, published by Chris Grayling, the justice secretary. We can no longer tolerate this mission creep, he said. What we have effectively got is a legal blank cheque, where the court can go where it chooses to go. We will put in place a provision that will say that the rulings of Strasbourg will not have legal effect in the UK without the consent of parliament. Effectively, what we are doing is turning Strasbourg into an advisory body.

10 Kenneth Clarke (former conservative Justice Minister)BBC 4 yesterday He told The World at One on BBC Radio 4: I am rather bewildered by it all. As I understand it we are anxious to comply with the European convention of human rights and quite happy to accept the judgments of the European court of human rights unless the government of the day has a whipped parliamentary majority to reject the judgments that we don t approve of. I find that rather bewildering. For the good of our society I don t think that the executive of the day should be exempt from having to comply with judgments. Sooner or later, if we allow our standards to slip, some arbitrary decision will take place.

11 Per the Conservatives, the proposals would "clarify the Convention rights" The proposals would Put the text of the original Human Rights Convention into primary legislation but clarify the Convention rights, to reflect a proper balance between rights and responsibilities.

12 What clarification of rights? The proposals would limit the substance of Convention rights recognised in UK domestic law. In practice, this will result in diluting Convention rights for domestic application. The few examples given in the proposals are worrying.

13 Examples of "clarifying" Convention rights Revising the real risk test used to determine whether someone is at risk of torture on deportation in line with our commitment to prevent torture and in keeping with the approach taken by other developed nations. But, surely, there can be no form of internationally acceptable test that will allow the lawful return of an individual to a real risk of torture. If there is evidence that an individual faces a real risk of torture on return, should the UK seriously be seeking shortcuts?

14 Examples of "clarifying" Convention rights Some terms used in the Convention rights would benefit from a more precise definition, such as degrading treatment or punishment. So, this example targets the prohibition on torture, inhuman and degrading treatment and punishment in Article 3 ECHR. But, what would the Conservatives' more precise definition include?

15 Examples of "clarifying" Convention rights Only the most serious cases : The proposals would impose a new threshold to prevent courts considering trivial cases.

16 The government's threat The strategy paper pledges that Britain should remain signed up to the ECHR. But only if the UK is allowed to disregard decisions of the ECtHR. So, this is a clear threat of withdrawal if no agreement is reached with the Council of Europe.

17 The effect of the government's plan The text of the original convention will be written into UK law and UK courts will no longer be required to take into account Strasbourg decisions. The impact would be wide-ranging. The UK armed forces would cease to be subject to human rights legislation overseas, and Labour s 1998 Human Rights Act would be scrapped to be replaced by a British bill of rights and responsibilities.

18 The public international law problems that the government has set for itself The government has failed to consider two important difficulties: 1. The "Belfast Good Friday" agreement provides a right to all people in Northern Ireland to enjoy the rights provided by the ECHR. Any move to withdraw from the Convention or its incorporation in the Human Rights Act would be a breach of the Belfast Good Friday Agreement and deal a serious and gratuitous blow to the Northern Ireland peace process. 2. Under devolution, the Scots have the same right to enjoy the rights provided by the ECHR.

19 Public international law problems Whether a British bill of rights would automatically apply north of the border is a moot point, because the Human Rights Act is enshrined in the Scotland Act of 1998 which set up a devolved Scottish Parliament.

20 UK would become the Venuzuela of Europe Withdrawal from the CoE seems to be the inevitable consequence of these proposals. The Council of Europe will not accept the clear circumvention of Article 46. Withdrawal from the ECHR and the Council of Europe would put the UK in the company of Belarus. The only known example of a modern democracy publicly downgrading their commitment to international human rights standards is Venuzuela, which took similar steps to avoid the scrutiny of the Inter- American Court of Human Rights.

21 Wither the Human a Rights Act 1998? In 1998, Parliament, with Conservative Party support, voted to Bring Rights Home in the Human Rights Act So, what has happened to our judgment and to our values over the last 16 years?

22 England expects every man to do his duty I will fight these proposals to the end. I challenge the Conservative Party to explain to the citizens of the UK what the consequences of their proposals will mean. So, this is what we will end up having: No written constitution A "Bill of Rights" that expressly allows the UK to pick and choose which cases of the ECtHR it will follow. No Human Rights Act Cont /

23 So, this is what we will end up having: No ECHR No Copenhagen Criteria No EU No rule of (international) law No democracy