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Thursday, 28 May 2015

Human Rights Act - The Blog that Never Was

So there I was all ready to write an epic blog about the Human Rights Act.

I was going to refer you all back to my 2013 blog about the history of the UK’s role in the establishment of the Universal Declaration of Human rights after WW2, and that we would be standing virtually alone in Europe if we opted out of the European Convention on Human Rights –

Then I was going to rant about how the rights at stake were the rights of all of us and not just those who are disliked by the tabloids. I planned to go through the Act and point out that there is not a single word in it that suggests that prisoners are entitled to have a Big Mac brought to their cell.

The most important point that I intended to make was about the jurisdiction of the UK courts. The main impact of the HRA was to make breaches of Human Rights contained in the Convention, actionable in our courts. Prior to the Act only the European court had jurisdiction. It always seemed to me that the Conservative Party’s determination to remove the Act was illogical because the result would be that UK courts would lose the power to adjudicate and this would be handed back to Europe.

The counter argument was that our courts had to follow the judgments of the European Courts. But this is simply wrong. What the Act says is –

‘2 Interpretation of Convention rights.

(1)A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b)opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c)decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d)decision of the Committee of Ministers taken under Article 46 of the Convention,’

So our courts have to ‘take into account’ decisions of the ECHR and Commission. They are not required to follow any such decision. This was a point made by Leveson LJ (he of the inquiry!), earlier this week. He said that the decisions of ECHR were less binding than people thought. He declared that he did not consider himself – ‘crushed by the European Jackboot’.

So that was what I intended to say in my epic blog!!

After all that hard work it was it was a bit frustrating to see that the government’s plans to abolish the HRA have been delayed for at least a year. They could have waited until I had blogged on it so I could grab some glory!

In truth this is a very encouraging development, but there are still battles ahead. Does it mean that Mr Cameron has seen the error of his ways? No. I think it is much more about the precarious effect of a wafer thin majority. Some high profile Tories had pledged to oppose the move. These included former Justice Minister Ken Clarke QC and former Attorney General Dominic Grieve QC. Even if a bill had scraped through the Commons it would have been mauled in the House of Lords. It is encouraging that sensible backbenchers can hold their own party to account.

But this is not the end of the story. I doubt if this story will go away. It remains a manifesto pledge. Cameron’s friends in the media will expect something. The arguments will continue and we must not let our guard slip.

Friday, 22 May 2015

A win for Justice!

The main reason that we need to keep on fighting for justice is that there are still insurers who will seek to undermine the rights of victims.

Almost two years ago I wrote about the scandalous case of Janet being handled by EAD –

She was crossing the road when she was struck at speed by a 4 x 4. She suffered terrible injuries. Liability was aggressively contested. There was an offer to settle at £125k which was time limited to pressurise the family to accept. Rehabilitation funding was unilaterally withdrawn when it became apparent that the cost would exceed £50k. At every stage there was pressure on her family to accept a settlement that was considerably short of the mark.

My last blog reported that the case had gone to trial on liability and she had succeeded 100%.

At a joint meeting yesterday she accepted £2.5m in settlement of the claim. So the final award was 20 times the original offer.

This was achieved due to a combination of robust legal advice and a family who were committed to seek justice for her.  

This is clearly an unusual case. But it again demonstrates the need for victims to have professional and experienced advice. There are relentless claims from the insurance industry and media that lawyers are not needed in these cases. They talk about the mythical ‘Compensation Culture’ so much that people eventually come to believe it. You could well believe that lawyers and victims have created this culture. As if Janet deliberate;y allowed herself to be run down by an impatient driver. The involvement of lawyers is said to be unnecessary and adds to the cost of insurance –

If this family had been deprived of advice she would have been massively undercompensated and the insurers would have been laughing their way to the bank. And drivers would certainly not have reaped the benefit!

To some people this might seem a high award of damages. But most of it will go towards Janet’s care for the rest of her life. About £150k is to compensate her for the injury itself. Compare that to the £260k awarded to Sadie Frost for breach of her privacy. That is not to say Ms Frost is not entitled to be properly compensated for the Mirror’s disgraceful actions. 

But it should help us to put into perspective the plight of victims of accidents in the face of a hostile media.

Friday, 15 May 2015

Post Election Blues - is there any point in carrying on??

Hands up if you are still a bit shell shocked after last week’s disastrous election. 

At least I was in Crete at the time so managed to avoid the painful TV coverage of the surprising Conservative victory. I have just been reading through some previous blogs. The last one I did was titled Vote 4 Justice. I did. Look where it got me. In fact I wrote post after post on the need for a change of government. Things seem to have got much worse. My lowest moment was when I told some teachers who was the new Justice Secretary. Their eyes were almost filling up with sympathy.

All of this makes you wonder if it is all worth the effort. I have seriously considered closing down this blog altogether and focussing on nice stuff like travel, food or sport. I know I’m not the only one who has been thinking along similar lines. Laurie Penny has written in The New Statesman of a feeling a lack of motivation; almost depression.

But her clear message is positive – don’t give up. I agree.

So here a few of the reasons why I will still be banging on about justice every few days –

  1. In reality even if Labour had won, or there had been a hung parliament, not much would have changed. They were not promising any reinstatement of Legal Aid. We might have escaped the inevitable deeper cuts but would still have had a fight on our hands. The struggle might have been different but would not have gone away.
  2. We still have a rule of law and can continue to hold the Cameron government to account where it crosses the line. Mr Grayling, remember him?, was subject to more Judicial Reviews than any other minister. That has to continue. Every questionable decision must be challenged. Mr Gove has to expect an uncomfortable ride from the profession. I expect that an increasingly sympathetic judiciary will add to that discomfort. We have seen some encouraging signs from the recent prosecution of Paul and Kerry Barker who were reported by TESCOs for trying to steal out of date food following benefit sanctions. District Judge Elsey imposed no penalty on them. He observed –
 “They hadn’t had benefits or any money since December. It just seems that the state has failed them.”

  1. A slender majority does not mean that the government can simply do as it wishes. We could actually find ourselves looking to dissident Tory back benchers for support. I was at the Trussell Trust Conference this week. They are responsible for hundreds of Food Banks across the UK. At one session there were representatives from the four main parties. I asked the Conservative if we could expect to see some Tory MPs refusing to back the government if they felt cuts were going too far. His answer was not too hopeful! But he did acknowledge that this can happen. It will only take a handful to rebel before the majority is wiped out. In fact we might see this happen sooner than expected. Many leading Conservatives are unhappy about the plans to repeal the Human Rights Act, including Ken Clarke and Dominic Grieve –

So we should keep in contact with our own MPs. They will know which conservatives might be willing to brave the whips and take an independent line. In reality this will not happen very often. But it is an option to consider.

  1. We can become activists ourselves. That is not to say that we should handcuff ourselves to railings or try to be arrested on every demonstration. There is far more to activism than that. We can sign every available petition. This might not seem like much but if enough people get involved it cannot be ignored. One obvious example if the 38 Degrees Petition in support of the Human Rights Act.-

We can actively support organisations providing free advice and those who raise funds for such advice. Hundreds of lawyers will be joining the London Legal Walk on 18th May. Many others will be joining other walks across the country during the year.

Some may consider joining a political party. Those of us who are members might consider going along to meetings, getting noticed and standing for election at some level or other. Involvement means being able to shape the direction of the party rather than simply complain about it. One obvious opportunity is the forthcoming debates over the new Labour Leader.

  1. Some might start writing a blog or submitting articles.

None of these things will change the world on their own. But as pieces of a wider jig saw they can send out a clear message – that we will not give up on justice without a fight.

Friday, 24 April 2015

Vote 4 Justice

I want to give special word of support for those lawyers who attended the Vote for Justice Rally in London yesterday.

The event was organised by the Criminal Law Solicitors’ Association (CLSA) and London Criminal Courts Solicitors’ Association. The aim was to put justice on the General Election Agenda. The focus was on the devastating cuts to legal aid funding. Speakers at the event highlighted the risk of closure faced by hundreds of law firms.

One particular change will require tendering for some areas of criminal work. Tendering will benefit a small number of large firms, and see many others going out of business.This in turn will impact on the rights of clients to choose their own lawyer. Firms employing black and minority lawyers will be particularly at risk of closure.

One key speech came from Senior Judge, Sir Alan Moses. He talked of the plight who are unable to protect themselves as they have no affordable access to a lawyer. He expressed regret at the silence most of the leading political parties in the run up to the election –

 “Who cares about the prisoner whose rights are abused and needs legal advice and assistance? Who cares about the immigrant who asserts they are a genuine refugee? Those who cannot afford access to the courts are often the unpopular minorities and there are no votes in helping them.” He also regretted that other judges had not spoken out.

This is something that I mentioned last week. The Green Party is alone in promising to re-instate the £700m cuts to the legal aid budget.

In fairness the Labour Party has promised to roll back the tendering process but this has only been a small part in a process of dismantling access to justice.

The politicians might not think that justice is of electoral importance. We can make it important by the way we cast our vote. It is not for me to say who anyone should support. But it w

It should be fairly obvious which party I will not be voting for!

Tuesday, 21 April 2015

Whiplash Claims - how much blood can insurers get from this particular stone

Many of us have spent the last few weeks watching the election campaign. So it might have been easy to miss one news item which seems to have slipped in under the radar. This is the announcement from the AA Insurance that motor insurance premiums are set to rise. And according to a report in the Daily Mirror, the cause of the increase is…yes you guessed it … fake whiplash claims!

It makes you begin to wonder how much blood insurers can get from this particular stone.

This is a saga which goes back more than two years. In 2013 we saw drastic cuts to the rights of victims of motor accidents. These included slashing the amount of legal fees recoverable from insurers, causing many victims to lose up to 25% of their compensation.

The Association of Personal Injury Lawyers (APIL) and others took judicial review proceedings at the time to try and block the cuts. Although that action failed, it was clear from the evidence that the government and the insurance industry had worked closely together on the project.

The rhetoric and the attacks have continued relentlessly. We have seen report after report on the need to clamp down on claims. Just this month, victims have lost the right to instruct their own medical experts and to use a panel of approved doctors. The fees payable to such experts have also been cut.

All of this has happened against the background of rhetoric designed to make any victim of a motor accident feel like a criminal.

Back in 2013 all of us who pay high motor insurance premiums were told that these steps would see a drop in price.

Former MOJ Minister Helen Grant explained the thinking behind the cuts –

“These proposals were advanced in a consultation exercise which closed on 4 January (2013) and, together with wider civil law reforms, are intended to make lawyers’ costs proportionate, and create an environment where insurers can pass on savings to their customers through lower premiums.”

Most of us were sceptical that we would ever see any reduction. I must confess I thought that we might get a pre election series of cuts. Instead, we have this news of premium rises, when we all have our eyes somewhere else.  

The reality is that we were never going to see any significant drop in the cost of motor insurance. The government and insurers have very effectively squeezed the life out motor claims. You would have thought that they could have come up with a more imaginative excuse for further rises.

Monday, 20 April 2015

Bedroom Tax and its impending demise?

My last blog looked at what the various political parties were saying about Access to Justice as we approached the election.

Another subject which has often featured in this blog is the dreaded Bedroom Tax. This is the draconian law introduced by the coalition which results in tenants losing housing benefit if they are deemed to have too many rooms. 

It is approaching 2 years since I first highlighted the issue –

It has seen people facing the loss of their homes and, at the same time, losing the right to legal aid to help them fight evictions.

Only last month, the Guardian was reporting on the health problems caused by the tax –

So what are the parties saying about it?

It is encouraging that the Labour Party in its manifesto commits to its abolition. The Green Party has a similar commitment. Plaid Cymru has long ago pledged to get rid of it. Scotland was liberated from the impact of the tax in 2014 –

So what about the coalition partners who gave us the Bedroom Tax in the first place? The Lib Dems voted down efforts to abolish it last year. But in their manifesto they promise reforms. These include a promise that tenants will not lose benefits until they have been offered suitable alternative accomodation. They also build in protection for those who need an extra room for medical reasons. It is isn't quite to complete abolition that some of us would like but is better than the status quo.

We know what the Conservatives think of it. It is their brain child and will remain in place if they form the next government. Interestingly UKIP unequivocally opposes it.

So, unless we have a Conservative majority on 7th May, the days of this particular injustice seem to be numbered.

Fingers crossed!

Monday, 13 April 2015

What are the parties saying about Access to Justice?

So we are now just over three weeks away from the General Election.

All of us who are concerned with the erosion of access to justice under coalition have been counting the days for the last five years. So what have the parties been saying about it and what changes, if any, would a change of government bring?

A Conservative government has promised further and deeper cuts to public services so we can rule out any hope of any return to legal aid or reversal of the cuts which have taken place. Indeed, Justice Minister, Chris Grayling has shown nothing short of contempt for the rights of ordinary people. The most recent example of this has been the shocking increases in court fees by up to 600% in some cases. We also saw the introduction of fees in Employment Tribunals which has led to a shameful reduction of 80% in the number of claims. At least with the tories we know where we are and we know where we are going!

But what about the opposition? Labour has published a document which talks about ‘safer communities’. However, whilst policing and domestic violence are very important topics, the report is silent on more fundamental justice issues. It is available here –

Labour has now said that the Tribunal Fees would be abolished which is big step in the right direction.

The only party, as far as I can see that has committed to a re-instatement of legal aid is the Green Party. Their Policy Statement of Responsibility and Rights includes the following –

‘Access to justice should not depend on a person's financial situation. Where a person would not otherwise be able to access it, the state should, through a comprehensive system of legal aid, enable access to appropriate legal advice and/or representation.’

In fairness you do have to go searching for it. But it is a clear statement of intent. Now we all know that the Green Party will not form the next government. But it seems likely that nobody will win a clear majority on 7th May so minor parties could well have some influence. But whether this particular commitment would carry weight remains to be seen.

The overall picture is one of disappointing silence. There do not seem to be many votes in access to justice.

But there has been one hopeful sign from Labour today. Their candidate for the safe seat of Holborn and St Pancras is none other than Sir Keir Starmer QC, the former Director of Public Prosecutions and well know barrister. In an interview with the Independent he says that access to justice is in crisis. He calls for a full review and says that access to justice – ‘must be a yardstick against which we measure success’.

At this stage he is only a candidate. But he is very likely to win. Such is his profile and status that he is unlikely to remain on the back benches for any length of time. He will inevitably have a significant on justice policy going forwards.

It may be clutching at straws, but this could be the most significant development to date. 

I will continue to watch this rather large space!