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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 deliberately 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.