Conservative Party Conference Justice and Home Affairs speeches ~ a brief look.

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Speeches today at the Conservative Party Conference in Symphony Hall, Birmingham included Mr Chris Grayling (Justice Secretary) and Theresa May (Home Secretary).

There is much in the speeches to comment about but I will reserve that for a later post.  Neither speech contained any major announcement about any plans relating to the Human Rights Act 1998 and it may be that this is being left for the Prime Minister's speech at the end of conference (Wednesday morning).

According to Grayling,
human rights had moved a long way from the basic rights set out in the European Convention and British courts should not be told by a 'foreign court' that we cannot send killers to prison for life.  (The European Court of Human Rights did not say that but required there to be a possible review of a prisoner's situation).  There was also an attack on Labour who, Grayling said, would extend human rights and teach human rights in schools.  (Personally, I have always thought that teaching young people about the law is important).

Theresa May's speech was particularly strong on terrorism and a new Counter-Terrorism Bill is to be introduced in November.  May also attacked the Liberal Democrats for "torpedoing" the Communications Data Bill  and she strongly argued that greater powers were needed by the Police and Security Services in order to 'keep us safe.'  May put a strong argument for extending anti-terrorism powers against the background of the threats to the UK which she argued were now posed by terrorist groups such as ISIL. 

The scene appears to be set for some sort of announcement relating to human rights and the UK's relationship with the European Court of Human Rights.

Major speeches apart, there was a useful panel discussion on "Modern Slavery" and a Modern Slavery Bill is currently before the House of Commons.  For more on this topic see here.

Addenda:

Halsbury's Law Exchange - New rights for victims of crime

Inside Time - a view that prison is serving to embitter prisoners - Do you want another Raul Moat?

Human rights allow ordinary citizens to stop abuses of power. There is no better sign that they're a good thing than that the govt hate them
— Harriet Johnson (@HarrietEJohnson) October 1, 2014

Northern Viewpoint ~ the Secretary of State for Justice has plans !

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Updated 30th September with links to relevant blogposts

The Secretary of State for Justice has declared that "Europe will no longer rule our courts" and it is expected that he will reveal Conservative Party plans to scrap the Human Rights Act 1998 and to ensure that the European Court of Human Rights cannot "overrule" the Supreme Court of the UK - see The Telegraph 26th September - Chris Grayling: Europe will no longer rule our courts

Here is a Secretary of State who, along with his two immediate predecessors, has presided over the elimination of legal aid in vast areas of civil law and, in relation to criminal law, the High Court has recently ruled that one of his consultations was so unfair as to be unlawful (Solicitors Journal 19th September and see also Legal Business and the judgment of Burnett J).  The removal of legal aid from many family law cases is having a devastating impact on the lives of many children - (views of the Children's Commissioner - The Guardian 24th September).  His "privatisation" reforms
of the Probation Service are coming under severe criticism (Parliament 20th May) and, for my part, I believe that they will prove to be an unacceptable risk with public safety.  Furthermore, the regime with prisons is proving to be far from satisfactory - see reports from HM Inspectorate of Prisons.  It is reported that suicides in prisons have risen 64% in a year - The Guardian 11th September.  Also, let it be remembered that prison law was one of the areas to suffer severe cuts in legal aid - (Law Society Gazette 2nd July).

So much for Mr Grayling's track-record in office !  What of "European Courts" overruling our national courts?  There is frequent confusion in this area because there are two "European Courts."  So far as the European Union (EU) is concerned, the Court of Justice of the EU sits in Luxembourg and, under the EU Treaties, is authoritative in the areas of EU law where it has jurisdiction.  In those areas, this court is binding on national courts.

The other court is the European Court of Human Rights (E Ct HR) based in Strasbourg and this court is an organ of the Council of Europe.  Rulings of the court in particular cases are binding in international law on the States which are party to the case.  The UK government knew this when it entered into the European Convention on Human Rights (E Conv HR) and thus the UK accepted that it would be bound by such judgments and, in fact, the UK Parliament has generally honoured its international law obligations and amended domestic law so as to comply with rulings of the E Ct HR.  To date, the politically thorny issue of votes for serving prisoners is an example of non-compliance and, in fact, the E Ct HR is far from saying that ALL prisoners must be allowed a vote.  The matter could be quite easily resolved as a matter of law but it has become a "line in the sand" for many British politicians.  Interestingly, the E Ct HR rules against the UK in only about 1.35% of cases though, obviously, they may have high profile subject matter.

Within the UK, the Human Rights Act 1998 applies.  This does not insist that our domestic courts slavishly follow all rulings of the E Ct HR.  Naturally enough, such rulings are always going to be persuasive and domestic courts seek and require good reason for going against such rulings.  However, the Human Rights Act does no more than tell domestic courts to "take into account" rulings of the E Ct HR.  The Human Rights Act has brought immense improvements to our law because the Act weaves the E Conv HR into decision-making by public bodies including the courts. Ultimately, the Human Rights Act leaves the final word on our law to Parliament.

The removal of legal aid is a deliberately ideological denial of justice to most British citizens.  Mr Grayling now plans in some way - yet to be fully revealed - to limit the impact of the E Conv HR within our country.  The Labour Party has said that it will defend the Human Rights Act.  The extent to which this significant policy difference becomes an issue in the forthcoming general election remains to be seen.  However, any plans emanating from Mr Grayling will require the closest of examination and he must not be allowed to get away with further diminution of the rights of the British people or their access to justice.

Addenda:

A selection of blogposts and other material which may assist readers wishing to dig deeper into this crucial topic.

29th and 30th September -

Head of Legal blog 29th September - What might the Tory human rights plans be?

Clive Stafford Smith - David Cameron's human rights ploy would undermine the rule of law - The Guardian 29th September

Joshua Rozenberg - Law Society Gazette 29th September - Not right for the job?

Family Lore 29th September - Human Rights: a short post to redress the balance

Jack of Kent 30th September - What you need to know about the Human Rights Act and ECHR

1st October 2014 -

Counsel Magazine - article on the E Ct HR  by Lord Judge - A view from London in response to A View from Strasbourg

Counsel Magazine - A Three Way Tug of War -

Ministry of Justice - Commission on a British Bill of Rights and here is a link to the full report of the Commission.

University of Durham - Professor Roger Masterman - Are UK courts bound by the European Court of Human Rights?

UK Human Rights Blog 1st October - The remarkable shrinking backlog at the European Court of Human Rights

Govt strangling life out of legal aid http://t.co/pLE8jhsuAQ If ppl can't get access to justice then grievances go unresolved. Injustice
— Mark George (@Mark_George_QC) September 25, 2014

Labour Party Conference ~ Speech by Sadiq Khan MP (Shadow Justice Secretary)

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At the Labour Party Conference held in Manchester (20th - 24th September), the Shadow Justice Secretary delivered a short speech which may be read here.  One clear difference emerged from the stance, at least to date, of the Conservative Party.  This is that Mr Khan gave a commitment to human rights:

'We’ll block attempts to abolish the Human Rights Act – Labour’s Human Rights Act.

.... we won’t walk away from the European Convention on Human Rights.'

Mr Khan also said - ' ... let’s get the European Court working better.'

The speech was essentially headlines of that type and was lacking in detail.  It remains to be seen whether there will simply be maintenance of the human rights status quo or, alternatively, some measure of reform whilst remaining with the core of human rights law.

On the constitution,
Mr Khan favoured some form of "constitutional convention."  He said:

'With the Magna Carta celebrating its 800^th birthday next year, there is no better way to celebrate than a national conversation on the common principles binding us together as a nation.

What we don’t need is the Tories petty and rushed announcement.

Asking a failed Tory leader – William Hague – to rewrite our constitution, behind closed doors, in distant Westminster, all done in a matter of weeks.

That is a stitch up.

It won’t wash with the British public.

That’s why we need a radical new approach, and why a constitutional convention is such an exciting prospect. But that’s also why the Westminster vested interests hate it. Because it is putting power in the hands of the people.'

Having mentioned a constitutional convention, Mr Khan set out, in a broad-brush manner, some ideas about possible constitutional reforms.  He called for legislation now to give the vote to 16 and 17 year olds.  (Possibly, that cannot really be denied following the Scottish referendum?).  He also referred to ' Devolution in England. An elected senate of the nations and regions. Recall of MPs.'

A short and not entirely informative speech.  The shortness of the speech may not be the fault of Mr Khan since it appears that a decision was taken to limit the length of speeches.  JUSTICE has been damaged under the coalition government and it would have been preferable to have heard more about how any future Labour government would repair it.   For instance, the severe restrictions on legal aid imposed by the coalition are having a major impact on vulnerable people seeking justice.  See, for example, the statement by the Children's Commissioner.  Would Labour reinstate legal aid and, if so, in what areas.  No clear picture emerged and one is left with the impression that any restoration will be, at best, very limited indeed.

Addendum 30th September:

Since writing the above I came across this article indicating that Labour will not restore the cuts to legal aid.   A further article indicates why Labour would be wrong to do that.

Selva Val Gardena – the crown in the Sella Ronda ski circuit

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The Sella Ronda is one of the most famous ski circuits with 24 km of terrain that can be skied in either direction around the vast jagged Sella Massif mountain, and many of the resorts are connected from here. It provides lift-linked access to the valleys of Alta Badia, the Val di Fasse region and the Val Gardena area, including Selva Gardena, home to the annual World Cup Downhill races.

Selva itself is undoubtedly one of the most famous and popular villages in the Alps. The stunning and often dramatic scenery of the Dolomites combined with relatively easy access, has meant this resort should be on the shortlist of anyone wanting a real Italian ski holiday.


Selva is a long roadside village in a spectacular setting of the Val Gardena. Part of the charm of the valley is that is that it is steeped in history; visitors can enjoy a skiing holiday with modern facilities but where traditional life and customs still exist.  For many years, the area was part of Austria, and it still retains its Tirolean charm today as German is more widely spoken than Italian. Expect to see lots of traditional wood crafts and quaint mountain huts!


You won’t feel isolated here as there is a lot to explore; Santa Cristina, the next village down the valley, almost merges with Selva and further down the valley is Ortisei, the main town of Val Gardena, set beneath the distinct Alpe di Siusi area.

Hitting the slopes



In terms of skiing, you are spoilt for choice; Selva is great for snowmaking (when required) and offers excellent slopes with a real mixture of open and wooded areas.

Beginners can expect some seriously good nursery slopes; the blue runs in the Plan de Gralba area are gentle, quiet and perfect for getting up to speed. The village nursery slopes below the Dantercëpies gondola are excellent; spacious and convenient and perfect for adults and children alike.


There is plenty of fast cruising available to intermediates with some great long red runs and some challenging runs for expert skiers. The Val Gardena World Cup piste, the Saslong, is one of several steepish runs from Ciampinoi and one not to miss!

Eating out and having fun



Selva Val Gardena has a wide range of restaurants that offer both Austrian and Italian dishes, the quality is very good and many are great value too. The mountain restaurants are a real treat; think lively and character filled huts with warm, traditional fare.


Although not a real party town, Selva does offer quite a good apres-ski scene. There are some seriously good bars; one with an outdoor DJ, others offering live music and there is a nightclub for those looking to party until late. At the same time, it’s very easy to find a quaint pub and mix with the locals.

An all-rounder



All in all, Selva is a great all-rounder. There is a huge amount of skiing to do, and in several areas. Many come to ski the Sella Ronda but it is equally possible just to stay in Selva and its surrounding resorts without feeling the urge to venture further. There are some wonderful quaint restaurants and a real warm and traditional feel about the place. Those looking for a genuine Italian ski getaway and a blast of nostalgia (but with all the mod cons…), should look no further than Selva this season.


How to get there

Innsbruck airport – 1hr 30
Verona airport – 2hr 20
Bergamo airport – 3hr
Venice airport – 3hr 15

Accommodation


Holiday Homes in Italy offers a great selection of accommodation in Selva Val Gardena from a Residence Hotel to some great self-catering apartments – all within easy reach of the town and ski lifts.

View ski accommodation in Selva Val Gardena

Powderham Food Festival

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Held on the 4th October at Powderham Castle (pictured above, a fantastic venue overlooking the Exe estuary), this year's Powderham Food Festival invites you to bring out your inner caveman for a feast of outdoor cooking over traditional fire.

We’re sponsoring the festival again this year making it 3 years in a row, and we're looking forward to sampling some local Devon meat cooked in fire-pits, charcoal filled wheel barrows and flaming tandoori ovens. And all washed down with fabulous West Country ales and cider.

Over 100 producers will be exhibiting in the castle and grounds, plus there will be fascinating demonstrations, talks and tastings from a host of notable names including:

- Tim Hayward, Guardian writer and broadcaster
- Jane Baxter, ex head chef Riverford Field Kitchen
- Ben Bulger, Devon Chef of the year at Magdalen Chapter Hotel
- Peter Greig, co-owner with wife Henrietta, of Pipers Farm
- James Strawbridge, proprietor “Posh Pasty Company”
- and Patrick Fogarty of Bronx Grill and Bar in Teignmouth

Fabulous West Country food is very much a part of our guests' self-catering holiday experience and we are happy to be involved again.

The festival runs from 10am-5pm on Saturday 4th October. Admission is £6 for adults, free for children under 16.Photo credit: giborn_134

Top Italian resorts for early snow

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With summer over and winter fast approaching, many are itching to get those ski boots out of the cupboard. The ski season may seem a while away but there is no reason to drag it out and wait until peak season in Feb. Early ski in Italy is possible in a number of resorts, so those looking to get away for a pre-Christmas break will not only find uncrowded pistes but some great snow, cheaper ski passes and low apartment rental prices.

For those looking for a fabulous ambience with many pre-Christmas festivities, a laid back atmosphere and some fabulous snowsure resorts with beautiful scenery, then Italy is for you!


Bormio - For those owning a Bormio season pass, they have the possibility of being able to ski one more month than on the other ski resorts of the Alps. The ski area of Bormio has this great quality that enables people to advance the opening thanks to the high altitude, the freezing temperatures and the excellence of the snow making system.

Read our Bormio resort guide

View Bormio ski accommodation

Read our Bormio blog


Selva Val Gardena in the Dolomites offers spectacular and varied slopes within one of the most famous ski domains in the world, the Sella Ronda. The village has traditional style and is blessed with altitude and superb snow conditions.

Read our Selva Val Gardena resort guide

View Selva Val Gardena ski accommodation


Gressoney is located in the Monterosa Ski area, which has an extensive network of pistes, pretty villages and outstanding scenery. It is often blessed with excellent early and late season skiing and plenty of wide uncrowded pistes.

Read our Gressoney resort guide

View Gressoney ski accommodation

Scotland voted NO

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Updated 22nd, 23rd September, 25th and 26th September

The Scottish Independence referendum was held on 18th September.  The turnout was 84.5% and NO votes totalled 2,001,926 and YES votes totalled 1,617,989.  For more on the results see BBC News Scotland 19th September.    Independence was therefore rejected but, as mentioned in my earlier post, the status quo cannot remain though the historic Union will remain in place and major problems relating to membership of the European Union (EU)  and currency have been avoided. 

The Scottish people have been promised greater devolution of power and this must be delivered but the precise details of those powers remain to be thrashed out and time is relatively short given the General Election in May 2015.  However, it appears that
the aim is to have a Bill before Parliament by January 2015.  Numerous other issues are now firmly on the agenda.  For example, the so-called Barnett Formula is popular in Scotland and politicians, desperate to secure a NO vote, have promised its retention but it is deeply unpopular with taxpayers in England.  Then there is the West Lothian question which refers to the fact that Scottish MPs are permitted to vote in Parliament on matters not affecting Scotland.  No doubt, there will also be demands from Wales and Northern Ireland for greater devolution.  A further matter is that the franchise will inevitably have to be extended to all 16 year olds in the UK.  It could not be acceptable to return to 18 in Scotland or, for that matter, to have 16 in Scotland but 18 elsewhere.

In short, many of the United Kingdom's constitutional arrangements are now in the melting pot and, at the moment, there are no clear answers.  Inexorably, the nation appears to be moving toward a federal system of government but that should not be done in a hurry.  The Of Interest to Lawyers blog has a good post on that very question arguing that there we now have an 'historic opportunity to draft a new Written Constitution for the whole of the Union and its constituent parts' but also arguing that 'we need to slow down, convene a Convention and work out a lasting and final settlement, in a written federal constitution, to lay down a fair mode of collective, rights, obligations and governance for the future.  Nothing less will do and nothing less will respect the feelings of the large numbers of people in Scotland and the rest of the Union who are now, but so rarely, politically engaged on these issues.'

I agree that too much haste here may well cause difficulties in the future. The next few weeks will be full of interest ....

Addendum 22nd September:

1. Prime Minister's statement following the referendum

2. The referendum certainly enlivened politics not only in Scotland but elsewhere in the UK.  Questions of constitutional reform are now being raised.  How they will be answered is uncertain.  In a post on the UK Constitutional Law Group blog, Cormac Mac Amhlaigh (Lecturer in Public Law, Edinburgh) argues that a "constitutional convention" ought to be convened rather than matters being left to the political parties to resolve - see . Cormac Mac Amhlaigh, ‘For a Constitutional Convention for the United Kingdom’ UK Const. L. Blog (22nd September 2014)

3.  Following the NO result, Alex Salmond (Scotland's First Minister) said that he would step down in November.  This is discussed in The Guardian 19th September

Despite losing the referendum, the SNP leader claimed that there are alternative routes to independence - Herald Scotland.

Addendum 23rd September:

The Spectator - The Union is saved but at what cost?

Addendum 25th September:

Joshua Rozenberg - The Guardian 19th September - West Lothian question: easy to ask, trickier to answer

Vernon Bogdanor - The Guardian 24th September - Why English votes for English laws is a kneejerk absurdity

Addendum 26th September:

Head of Legal Blog 24th September - Let's avoid a huge constitutional talkfest 

February 2014 - The McKay Commission report

Chagford Film Festival

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We're extremely lucky to have a film festival each year in our home town. Now in its fourth year, the Chagford Film Festival features a fantastic line-up of eclectic films, events, talks and workshops, from 22nd to 27th September 2014. We're proud to sponsor this unique event.

Events take place throughout the day and evening, at a range of venues across the village - one event is a special screening of The Grand Budapest Hotel, starring Ralph Fiennes.

It's a wonderful week, culminating in the grand closing ceremony with the “Chagford Golden Globe Awards” at the Globe Inn on Saturday 27th September.

If you're not familiar, Chagford is situated in the heart of the stunning Dartmoor National Park in Devon, SW England. Often called 'the jewel of Dartmoor', it's close to the beautiful River Teign and has an exciting and vibrant history.

You can find details on how to get tickets here, and the full festival programme here.

All other details can be found at: http://chagfordfilmfestival.com, or if you're a social media fan - @ChagfordFilm on Twitter and ChagfordFilmFestival on Facebook.

Scotland ~ the eve of the referendum

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18th September 2014 - Referendum Day in Scotland on the question of independence from the remainder of what is now the United Kingdom of Great Britain and Northern Ireland.  "The Union" of the separate Crowns of Scotland and England came on 24th March 1603 when King James VI of Scotland also became James I of England.  However, political union of the two Kingdoms did not arrive until 1st May 1707 with the enactment, by what were then separate Parliaments, of the Union with Scotland Act 1706 and the Union with England Act 1707.   The Acts gave legislative force to the Treaty of Union agreed in July 1706.

'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain  ...........'


The intention of those who legislated for union was clear.  The Union was meant to last forever.  The word "forever" would not, of course, be legally binding on the United Kingdom Parliament which may, if it so decides, legislate for the dissolution of the union and for Scottish Independence.  Nevertheless, "forever" is a powerful word and everyone entitled to vote would do well to reflect very hard on what the peoples of the  United Kingdom have achieved together over the 307 years of the union as well as, what together, they could achieve in the future.

A YES vote will lead to independence.  Precisely when this will be achieved is a matter of some debate and, realistically, it may not be achievable until late 2017 even though there will be pressures to achieve independence by 2016. Writing in The Guardian 11th September, Joshua Rozenberg notes:

Nobody suggests that independence could be delivered before the general election in May next year. Salmond's target date is March 2016. Prof Robert Hazell, of the constitution unit at University College London, says a more realistic target would be the autumn of 2017.

However that may be, the 2012  Edinburgh agreement requires the politicians to "work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom."

There are undoubtedly difficult issues to be resolved in the event of a yes vote.  The major issues would appear to be related to European Union membership; currency and defence.  Clear answers to any of those crucial matters seem to be missing. 

A NO vote will be a rejection of independence but politicians are on record as promising "Devo-Max" so that more legal powers are transferred to the Scottish Parliament.  The precise nature of "Devo-Max" will  itself be matter for negotiation between the UK government and the Scottish government.  This is discussed in The Independent 15th September 2014 - Scottish Independence: What is devo-max?  and also see The Guardian view on the devo-max pledge (16th September).  Yet again, the Edinburgh agreement commits politicians to work constructively together but devo-max may produce tricky conflicts between what is in the best interests of the people of Scotland and the best interests of the rest of the UK.  One certainty is that a NO vote will not simply mean continuation of the status-quo. 

Was there another option apart from Yes or No?  I believe that there was.  Scotland could have become independent but, at the same moment, come into a Federation with the remainder of the UK.  Such an option appears to have been rejected by politicians without it being put to the people.  A federal solution would have either obviated or minimised problems relating to the EU, currency and defence.

Irrespective of the outcome of the referendum, there will be many political and practical problems to resolved and, of course, some difficult legal questions.  These will be followed with interest.

For my part, I hope that the Union remains together.  It has been a far-sighted achievement and has achieved much that is of great value in the world.  As President Lincoln said in 1858 in his famous "house-divided" speech at Springfield, Illinois -

"I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided."

Links:

Law and Lawyers -

Scotland and the Independence Referendum 15th January 2014

Scotland and its currency in the event of independence - 14th February 2014

Scotland - Independence Referendum 24th November 2013

Scotland and the EU - No.1 - Does legal advice exist?  27th October 2012

Scotland and the EU - No.2 - EU membership - 31st October 2012

Scotland - Constitutional Futures Forum - 2nd October 2012

Scotland's future - more consultation - 26th January 2012

Scotland's constitutional future: an influential Scottish voice - 21st January 2012

Scotland - we need to talk - 10th January 2012

Scotland and the EU - a tricky point - 26th October 2011

Addendum 18th September:

The above post was reproduced on Legal Business 18th September 2014.

Further articles of interest may be seen on the UK Constitutional Law Association blog - e.g. Aileen McHarg: The Vow: Vote NO for more Devo and Alan Trench: What follows the referendum ....

Treaty of Union 1706

The Great British Beach Clean

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Watch out for the Great British Beach Clean, coming to a beach near you, from 19th to 22nd September 2014.

With your help the Marine Conservation Society can take Britain’s beaches back to a time when litter was the exception and not the rule. They’re aiming to get a record breaking 10,000 people cleaning at least 400 beaches around the UK. 

Ashya King (2)

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Mr Justice Baker has handed down judgment in the wardship case of Ashya King - (see earlier post)

Judiciary website - Judgments and Orders

Baker J said that Portsmouth Council had acted "entirely correctly" and the parents had reached a treatment plan for Ashya which was "coherent and reasonable"  Ashya had been admitted to hospital for proton treatment and appropriate funding arrangements were in place.  Ashya was therefore no longer to be a ward of court.  The learned judge chose not to make any comment about the appropriateness of the European Arrest Warrant though he commented that it was not in Ashya's best interests for him to have been separated from his parents in such circumstances.



The words of Baker J at para 34 emphasize the huge responsibility which parents have for their children -

".... Any parents in the position of Mr and Mrs King would do whatever they could to explore all options. Some parents would follow the advice of the local doctors to use conventional radiotherapy, others would prefer the relatively untested option of proton therapy (assuming the funds can be made available to meet the cost of transport and treatment) in the hope that the toxic effects of radiation will be reduced. Both courses are reasonable and it is the parents who bear the heavy responsibility of making the decision. It is no business of this court, or any other public authority, to interfere with their decision ...."

The law only gets involved when children are either suffering or at risk of suffering "significant harm" - a term which is defined in the Children Act 1989.

Baker J's judgment of 8th September 2014 concludes by saying - "It only remains for me to express the hope, which I am sure is shared by everyone in court and all those who read this judgment, that Ashya makes a good recovery. We all send our best wishes to Ashya and his loving parents."

EU ~ Lisbon Treaty ~ the bloc opt-out and selective opt-back-in

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"Whether EU measures covered by the so-called '2014 block opt-out decision' continue to apply to the United Kingdom and become subject to the jurisdiction of the Court of Justice from 1 December 2014 is a profoundly significant issue. Some—including the European Arrest Warrant—raise questions affecting public safety and security, as well as the protection of individual rights" - (First Joint Report from the European Scrutiny, Home Affairs and Justice Committee - 19th March 2014).

The UK government had the right under the Lisbon Treaty to opt-out of some 135 EU measures relating to justice and home affairs - (post of 19th October 2012).  They also had the right to select which ones to opt back into and it seems that the government has chosen to opt back into around 35 of those measures including the European Arrest Warrant which came to the forefront of the news this week in the Ashya King case. 



The Guardian - Ashya King case gives Eurosceptics a chance to air Lisbon grievances - has suggested that "the government is now keen to get the last crucial bit of the deal done with a minimum of fuss, but Tory MPs have successfully extracted a commitment that the whole matter will be debated again and subjected to a vote."

Despite the undoubted importance of this, it cannot be said that the politicians have made it easy for the public to see precisely what is being opted into and, for that matter, what has been opted out of.   

The most straightforward publication I have found so far is this Commons Standard Library Note dated 15th July 2013 which considers, as things stood at that date, the bloc opt-out and selective opt-back-ins.   

Additional Links:

BBC News 10th July 2014 - House of Commons debate

UK government - JHA opt-in and Schengen opt-out proposals (Updated 16th June 2014)

Parliament - EU justice and home affairs opt-out

Cm 8671 - July 2013 - Decision pursuant to Article 10 of Protocol 36 to the Treaty on the Functioning of the EU - a list of the opt-ins appears at pages 8 to 12.

Cambridge University Faculty of Law - Centre for European Legal Studies September 2012 - Opting out of EU Criminal Law: What is actually involved?

Professor Steve Peers - Professor of Law University of Essex - Statewatch - The UK Opt out from Justice and Home Affairs Law: the other member States finally lose patience

Watch out for Wiggo!

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Or to put it more correctly, watch out for Sir Bradley Wiggins as the Tour of Britain cycle race is returns to Devon for stage 5 on Thursday 11th September. Sir Bradley will defend his Tour of Britain title after being named as the leader of Team Sky’s squad for the eight-stage event.

The Tour of Britain is the UK's biggest professional cycle race, with some twenty teams competing. Stage 5 starts in Exmouth at 11am, winds and climbs its way right across Dartmoor, then heads up to Okehampton, before the pedal pushers turn for home and the finishing line in Exeter. The near circular route means there’s a great opportunity for spectators to watch the both the start and the finish of this great race, with many of Europe’s and indeed the world’s finest cyclists taking part as the leading teams battle it out for sprint, climb and line honours. The Exe Estuary Trail (a cyclepath and walkway constructed by Devon County Council as part of the National Cycle Network Route 2 ) links Exmouth and Exeter so spectators will be able to cycle to Exeter in good time to see the frantic sprint for the finishing line.

The tour is the country's largest free-to-spectate sporting event, and there are plenty of excellent spots to locate yourself along the route - see this ETA Guide for approximate timings so you can plan your day and pick your spot accordingly. See this spectating guide for details of fixed road closures in place at the start (Exmouth) and finish (Exeter) locations and rolling road closures all along the route of the stage.

After Devon the tour moves east along the south coast before heading into London for the final stage on 14 September.

If you happen to catch the tour flying by and manage to take any snaps, do post them to our Facebook page, we'd love to see them!

Ashya King

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Update 5th September -  Judiciary - Court Order of 2nd September

Ashya King is a 5 year old boy who suffers from a brain tumour.  He was undergoing treatment at Southampton General Hospital.  According to an article in the Southern Daily Echo 29th August, Ashya was a "long term patient who was permitted to leave the ward under the supervision of his parents as part of his ongoing rehabilitation.  When the length of time he had been absent became a cause of concern to hospital staff ... they contacted police after a search of the site and attempts to contact the family were unsuccessful."  It appears that the parents were hoping to obtain a treatment (proton beam therapy) for Ashya's condition that is available in some European countries but not in the UK. 

The Police eventually obtained a European Arrest Warrant (EAW) (to which Part 3 of the Extradition Act 2003 applies) having discovered that Aysha had been taken, via France, to Spain.   Issues relating to "neglect" were reported to be a basis for the EAW but precise details of any alleged offence were not stated publicly.  Portsmouth Council also took out wardship proceedings in the High Court - see the Order of 29th August. In accordance with the EAW, the parents were arrested in Spain and held in custody.

The European Arrest Warrant was introduced into our domestic law in 2004 under the Extradition Act 2003 which implemented the EU Framework Decision of 2002.  Euromove website has a good article about the EAW which sets out clearly the benefits of the EAW and also concerns that arose about its practical operation.  Fair Trials International has continually pressed for improvements to the EAW process.  (Further discussion, in the context of the UK's "opt-out" and "opt-back-in" to certain EU criminal justice measures, may be read at Big Brother Watch Parliamentary Briefing).   One serious concern with these warrants related to a certain lack of proportionality that appeared in some cases.  The Anti-Social Behaviour, Crime and Policing Act 2014 Part 12 was enacted to introduce a proportionality test for extraditions from the UK.  The introduction of this test met with some opposition within the EU. 

The Police apply to the Crown Prosecution Service (CPS) for a EAW to be issued.  The CPS website informs us that - "For requests to both category 1 and 2 territories CPS lawyers only prepare an extradition request after considering the Code Tests (see the Code for Crown Prosecutors in the Legal Resources section). A request can be made for any of the following three purposes: to prosecute the wanted person for offences stated in the request; to sentence the person for offences noted in the request that the person has already been convicted of; and, to carry out a sentence on the person that has already been imposed in respect of offences noted in the request."  The requirement to consider the Code Test is also referred to in this Association of Chief Police Officers (ACPO) document at page 4.  It is far from clear just how the Code Test was met in Ashya's case but, regrettably, full information about this has not be made public.

The use of the EAW in Ashya's case attracted massive media coverage.  One notable contribution was that of Mr John Cooper QC - The Guardian 1st September where Cooper stated that the EAW clearly required criminal proceedings to have been issued.  He asked - "So what proceedings were ongoing? No doubt this is a question the parents may ask in the future and they consider whether the police lawfully deprived them of their liberty."


It now appears that the CPS are going to withdraw the EAW - Brief Statement by CPS - and a hearing took place today in the High Court before Mr Justice Baker with regard to the wardship proceedings.  The court will be particularly interested to know the views of the parents and any plans in place (or likely to be in place) for the treatment of Ashya. 

Any updates will follow ...............

Update(s):

The CPS issued a statement relating to the withdrawal of the EAW.  This states that, in the light of further evidence, the CPS considers that there is insufficient evidence for a real prospect of conviction for any criminal offence.  The CPS referred to "reasonable suspicion" that the parents had committed "an offence of child cruelty through wilful neglect" but finally concluded that wilful neglect could not be proved to the required standard.

Other articles / commentaries:

Family Law - Researching Reform: Ashya King - family law and the European Arrest Warrant - article by Natasha Phillips

New Scientist - Boost for cancer therapy sought by Ashya King's family - Penny Sarchet 1st September

The Guardian 4th September - Joshua Rozenberg - Ashya King case shows how parents can be let down by the law

Child abuse independent inquiry panel

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Child abuse inquiry

On 7th July, the Home Secretary made a statement in Parliament on child abuse investigations.  

'I can now tell the House that the government will establish an independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by an appropriately senior and experienced figure. It will begin its work as soon as possible after the appointment of the chairman and other members of the panel.'

It was later announced
that one of the investigations was to be led by retired President of the Family Division Lady Elizabeth Butler-Sloss whose brother was Attorney-General in the 1980s.  Facing the possibility of apparent bias, Her Ladyship stepped down as Chairman.  To date, a new appointee has not been announced and Ministers are being urged to do so - BBC 25th July.

Over a month later, there has still been no announcement as to who is to head this inquiry.  Of course, it may be that any announcement has to be made in Parliament and this was not possible during the Parliamentary recess which commenced on 22nd July and lasted until 1st September.

Update 6th September:

The Home Secretary announced the appointment of Fiona Woolf CBE JP as chair of the inquiry panel.  See the government announcement of 5th September 2014.  Fiona Woolf is the serving Lord Mayor of London and is qualified professionally as a solicitor.

This is a somewhat surprising choice for the chair since the expectation was that a judicial figure with some experience of inquiry work would have been appointed.

May's 7th July announcement stated of the inquiry that -

"It will, like the inquiries into Hillsborough and the murder of Daniel Morgan, be a non-statutory panel inquiry. This means that it can begin its work sooner, and because the basis of its early work will be a review of documentary evidence rather than interviews with witnesses who might themselves still be subject to criminal investigations, it will be less likely to prejudice those investigations. But I want to be clear that the inquiry panel will have access to all the government papers, reviews and reports it needs. Subject to the constraints imposed by any criminal investigations, it will be free to call witnesses from organisations in the public sector, private sector and wider civil society. And I want to make clear that – if the inquiry panel chairman deems it necessary – the government is prepared to convert it into a full public inquiry in line with the Inquiries Act."

One of the problems that  may arise if the inquiry remains non-statutory is that it will lack formal legal powers to require the attendance of witnesses.

It also appears that the precise terms of reference for the inquiry have yet to be agreed.

For further comment see Barrister Blogger - Theresa May's politically driven inquiry into child sexual abuse is heading for disaster. 

Rotherham ~ Sexual Exploitation of Children ~ the reports

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Updated 3rd September

The last week of August saw an explosion of media comment regarding sexual exploitation* of children in the South Yorkshire town of Rotherham in the years 1997-2013 - see ITV Report finds shocking scale of abuse

The Jay Report:

The comment followed a report by Professor Alexis Jay OBE which was commissioned in September 2013 by the Chief Executive of Rotherham Metropolitan District Council - Independent Inquiry into Child Sexual Exploitation in Rotherham (1997-2013).

The Police and Crime Commissioner:

Much of the media comment demanded the resignation of the Police and Crime Commissioner (Mr Shaun Wright) - for example, The Guardian 29th August.  A number of national politicians also joined in these calls - (e.g. The Independent 28th August).  In 2005 Mr Wright (then an elected councillor) became Rotherham Metropolitan District Council's Cabinet Member for Children and Young People's Services.  The Jay Report notes that,
in the period April 2005 to January 2009. Mr Wright received a number of reports relating to child sexual exploitation.  A report he received in June 2007 was referred to the Children and Young People's Scrutiny Panel and to the Safeguarding Board.

I make no observation as to whether Mr Wright should continue in his post.  However, it is worth noting that since his election to the post of Commissioner, he has instigated three reviews of child sexual exploitation including using the power under the Police Act 1996 s.54(2BA) to commission a report by Her Majesty's Inspector of Constabulary (HMIC).  An additional team of detectives and other specialists are to investigate allegations of historic child abuse in South Yorkshire and the Chief Crown Prosecutor has been asked to review all historic CSE cases across South Yorkshire in which the Crown Prosecution Service was involved.

In 2010, 5 men of Pakistani heritage were convicted of offences relating to child exploitation.

South Yorkshire Police:

South Yorkshire Police have also come in for some severe criticism.  The Guardian 28th August  reported that:

'A longstanding culture of disregard for victims of rape, sexual assaults and other major crime was exhibited by the police force at the centre of the Rotherham child abuse scandal, the official watchdog concluded on Thursday.

As its embattled police commissioner, Shaun Wright, refused demands to quit from David Cameron, an inspection of South Yorkshire police found that officers spent a "great deal of time trying to disprove" the victims of sexual abuse rather than investigate their complaints.

The damning report by Her Majesty's Inspectorate of Constabulary (HMIC) also found that the force should have pursued a fifth of the violent offences, including rapes, that it wrongly dismissed as "no crime" between November 2012 and October 2013.'


The HMIC report was published in November 2013 - Findings of an inspection commissioned by the Police and Crime Commissioner.   There was a follow-up inspection in May 2014.  South Yorkshire Police responded to HMIC  - South Yorkshire Police response to Child Sexual Exploitation revisit. 

Although they are quite lengthy documents, the reports linked to in this post are well worth reading in full.

Political controversy:

It is a sad fact that Child Protection arrangements have been rarely free from political controversy.  Earlier this year the Department for Education was looking into ways of commercialising (or privatising) aspects of child protection - (The Guardian 16th May).  This met with a great deal of criticism and was not in accordance with the Munro Report 2011.


Professor Eileen Munro, who was commissioned to carry out an independent review of child protection published in 2011, said establishing a market in child protection would create perverse incentives for private companies to either take more children into care or leave too many languishing with dangerous families.
"It's a bad idea," she told the Guardian. "It's the state's responsibility to protect people from maltreatment. It should not be delegated to a profit-making organisation."

The government's proposals were later abandoned.

Additional Links:

Local Government Lawyer looks at possible claims for compensation.

England and Wales Police and Crime Commissioner elections 2012.   Commissioners are elected for a 4 year term and therefore Mr Wright will have to seek re-election in 2016 - (Update - he has announced that he is not going to seek re-election).  Despite the obvious importance of these posts, election turnout is proving to be very low - a mere 10.4% in a recent West Midlands election (BBC News 22nd August).   

* Note:

The term "sexual exploitation" is described in paragraph 48 of the Jay Report.

Update 3rd September:

On 2nd September, the Home Affairs Select Committee interviewed the Chief Constable of South Yorkshire.  He is to return to answer further questions.  The Guardian reported the committee hearing - Rotherham, 12 more child sex abuse victims come forward

This report reveals that there are now 62 officers engaged on child sex abuse cases.  There have been 104 convictions since the start of 2013 and 40 suspects are on bail.  The Chief Constable has invited another Police Force to examine "the record of the South Yorkshire force in handling allegations of child sexual exploitation over many years."  Shaun Wright is not standing for re-election in 2016.  Four Labour councillors have been suspended by the Labour Party this week.   Eric Pickles, the communities secretary, was minded to order an investigation into Rotherham, and into whether it is complying with its best practice duty.

See also Nazir Afzal: 'There is no religious basis for the abuse in Rotherham' - The Guardian 3rd September

Our latest catch up with Gorgs Geikie

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