Beautiful Blooms Battle it Out...

04:33 0 Comments

Bluebells - photo courtesy of Cosmo_71

Do you have a favourite wildflower? 

Shippen Cottages

South Barn

Michael Gove as Secretary of State for Justice and Lord Chancellor

05:24 0 Comments

The Rt. Hon Michael Gove MP has been appointed as Secretary of State for Justice and Lord Chancellor - see No. 10 Appointments.  This dual role was previously held by Jack Straw, Kenneth Clarke and Chris Grayling.  Mr Gove is a somewhat controversial politician - (here is an example from his time as education Secretary in the 2010-15 coalition government). His entry on wikipedia is worth reading.

He is the second person who is not legally qualified to hold the office of Lord Chancellor.  In December 2014, Parliament's Constitution Committee published a report about the Lord Chancellor and stated that:

' ... the Lord Chancellor’s duty to the rule of law requires him or her to seek to uphold judicial independence and the rule of law across Government.'

The report
also concluded that - ' ... on balance it is not essential for the Lord Chancellor to be a qualified lawyer; but that a legal or constitutional background is a distinct advantage. Given that neither the Lord Chancellor nor the Permanent Secretary in the Ministry of Justice are currently required to be legally qualified, the Committee recommends that either the Permanent Secretary at the Ministry of Justice should be legally qualified or the department’s top legal adviser be appointed at permanent secretary level.'

It remains to be seen whether the new government will take any notice of this report but the Lord Chancellor's duty with respect to the rule of law is enshrined in the Constitutional Reform Act 2007 where the Lord Chancellor's oath is set out:

“I,     , do swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.     So help me God.”

The Rule of Law is a vital concept.  Importantly, it requires that Government respects the law and the position of the citizen vis-a-vis the State.  Mr Gove is obviously now tasked with delivering on the Conservative manifesto commitment to "scrap" the Human Rights Act and to introduce a British Bill of Rights.  The present fear is that this policy is aimed at reducing the rights protection currently enjoyed by the citizen or, conversely, making the State more powerful against the individual.  We know that Conservative Ministers have previously been highly annoyed at how human rights arguments have stood in their way.  Examples of that include extradition of individuals where there is risk of torture or ill-treatment and prisoner voting.

The fact that there is now devolution (in various forms) to Scotland, Wales and Northern Ireland will also make human rights reform difficult to achieve.  An interesting article* on the UK Constitutional Law Association website points out that:

' ... changing existing UK human rights law is not an easy task. Even if one leaves to one side the external diplomatic factors that may limit the UK’s freedom of action in this field, there are internal legal and political factors in play which make tampering with the HRA a more problematic project than the media headlines suggest. In particular, complex issues arise with respect to devolution and the various ways in which Convention rights have become embedded in the constitutional framework of the UK'

and concludes by saying:

' ... the UK constitutional system is now complex, variegated and pluralist in nature. Tampering with the status of Convention rights in UK law may appease some Europhobic voters, but it risks open up some serious constitutional fractures.'

Some legal commentators have already published their views about the new appointment of Mr Gove and I recommend reading:

Joshua Rozenberg - The Guardian 11th May - Why human rights reform could trip up Michael Gove

JackofKent - A new Secretary of State for Justice and Lord Chancellor

and from the Law Society there is Gove is Lord Chancellor as Cameron squares up for a fight (11th May).

Let us not judge Mr Gove from the outset but also let us keep a close eye on what he gets up to in his new role. I hope that he is listening!

Citation:

* C. O’Cinneide ‘Human Rights, Devolution and the Constrained Authority of the Westminster Parliament’ UK Const. L. Blog (4th March 2013) (available at http://ukconstitutionallaw.org)

Our fundamental rights on the brink ~ some thoughts on Sunday morning

02:42 0 Comments

The very essence of the European Convention on Human Rights (ECHR) is respect for human dignity.  The ECHR is an instrument for the protection of individual human beings.  The Convention sets out certain principles which ought to apply in civilised democratic States.  As individuals under the rule of law, we have a right NOT to be treated by the State in a way that breaches those principles.

Before the Human Rights Act 1998 (HRA) came into force (on 1st October 2000), the UK faced an embarrassingly large number of successful cases demonstrating just how far our domestic law had departed from convention principles.  One of the enlightening features of the HRA has been that it has introduced an important dynamic to require the judiciary to bring the common law back in line with the ECHR.

All political parties
have their visceral hatred of certain legislation.  A Conservative government secured the enactment of the Industrial Relations Act 1971.  The Act set up the Industrial Relations Court.  It was detested by the Labour Movement and was repealed and replaced (under a Labour government) by the Trades Union and Labour Relations Act 1974.  Nevertheless, 'useful' features such as unfair dismissal were retained.  The Conservatives have a clear hatred of the HRA 98 and its repeal will come but what will this mean?

As things look at the time of writing, the UK (as a nation) will remain a member of the Council of Europe and will also remain a signatory to the ECHR.  The ECHR will therefore continue to bind the UK so far as international law is concerned and judgments of the European Court of Human Rights (ECtHR) to which the UK is a party will be binding, in international law, on the UK.

In the event of a ruling by the ECtHR against the UK, it is usual for the British government to bring forward amendments to English law so that domestic law complies with the ECtHR judgment.  Having said this, the issue over prisoner-voting remains to be addressed.

Before the HRA98, the citizen could use the right under the ECHR to petition the ECtHR.  This long and hard road to the EctHR was very costly and could only be embarked upon once all domestic remedies had been exhausted (Article 35 of the ECHR).  This road remains available and, even since the HRA, has been used at times.  Again, as things look, the hard road will not be closed though it might be that the government will seek to place some roadworks on it - (that remains to be seen).  The availability (or absence) of legal aid will be a major factor here.

The HRA made it unnecessary for many litigants to have to go via the hard road because the Act required our domestic courts (as public authorities) to act compatibly with Convention rights and also to take into account (not slavishly follow) judgments of the ECtHR.  In other, more simple, words: the HRA brought Human Rights home.  The HRA also empowered the higher courts to make a declaration of incompatibility if domestic legislation was found to be contrary to the ECHR.  Such a declaration does not alter domestic law but it triggers a process by which Ministers may ask Parliament to enact a remedial order to correct the problem.  Nevertheless, the right of Parliament to legislate as it wishes (including contrary to HRA rights) was retained but the government (acting via Parliament) would have to be very very clear about its intention to do so.

"Scrapping" the HRA is a Conservative manifesto commitment - see previous post.  A further commitment is a British Bill of Rights.  At the time of writing we have not seen the Bill that will repeal the HRA and we have not seen even a draft of the proposed Bill of Rights (BOR).  All of these ought to be the subject of extensive examination and consultation.  They must not be rushed through in the first 100 days as the new government hits the ground running!  If the BOR is to apply across the whole of the UK then clearly it will have to be acceptable to the people of all parts of the UK (England, Wales, Scotland, Northern Ireland).  Whether it will be so acceptable remains to be seen but something merely imposed by the Conservative dominated government is not likely to be politically acceptable even if they have a majority at Westminster.

For a more detailed look at that the Conservatives' manifesto said about human rights, please see Law and Lawyers 20th April 2015 - The Conservative Party manifesto and human rights.

Links:

Scotland and Human Rights Act abolition - Lallands Peat Worrier blog - 10th May 2015

Northern Ireland Human Rights Commission - About Human Rights

Human Rights - The Conservative Party proposals - 6th October 2014

Commission on a Bill of Rights Report and, UK Human Rights blog - What lies beneath the Commission on a Bill of Rights Report

UK Constitutional Law blog - December 2012 - The Commission on a Bill of Rights Report

General Election 2015

10:16 0 Comments

The election results are in and, contrary to opinion polls, a Conservative government has been returned albeit with  a majority of 12 - see BBC Election Results for the detail.  An overall majority avoids the need for consideration of what will happen in a "hung" Parliament - though it was an interesting topic discussed here and here. The Liberal Democrats have just 8 seats and they seem to have paid a very heavy price for being in the coalition alongside the Conservatives.  The Labour Party emerged as the second largest party in the House of Commons but they have only a single seat in Scotland - (Scottish results) - having lost to the Scottish National Party (SNP).  Interestingly, the SNP leader  (Nicola Sturgeon) did not stand for a seat and so their 56 members will not have her to lead them in the House of Commons. Nicola Sturgeon holds the office of First Minister in the Scottish government.

Northern Ireland has returned 18 Members of Parliament and Wales has returned 40 MPs.  UK Parliament - Current State of the Parties. 

Proportional representation?

The election results
will be seen as particularly harsh by those keen to have some form of proportional representation.  The Conservatives have achieved a majority of 12 on 36.9% of the vote.  In the past, governments with overall majorities have not shown interest in proportional representation and I suspect that the Conservative government will be no exception to that.  Also, it was the now much reduced Liberal Democrats who were the keenest on it.

Note: In 2011, the electorate chose to stick with first past the post rather than adopt the Alternative Vote (AV) system; though AV is not a form of proportional representation (see Electoral Reform Society).

How the House of Commons would have looked under a form of proportional representation - BBC NEWS 9th May 2015

Constituency Boundaries:

Reform of the House of Lords was another Liberal Democrat aim but this was abandoned, somewhat acrimoniously, with the result that the Liberal Democrats acted to defer a review of constituency boundaries . The detail is on the Boundary Commission for England website where it is stated that:

'The Commission currently plans to formally begin working on the next review in the spring of 2016, with the intention of submitting its final recommendations to government by the early autumn of 2018, as required by the legislation.'

If boundary changes are considered to be favourable to the Conservatives, they are likely to be very unfavourable to Scotland.

Access to Justice:

In the legal field, the coalition came down hard on access to justice and, in particular, civil legal aid - Legal Aid, Sentencing and Punishment of Offenders Act 2012 (or LASPO).  The Secretary of State for Justice in the coalition (Mr Chris Grayling) had plans to reduce markedly the number of criminal legal aid contracts.  It seems likely that these will remain on the agenda and they will be vehemently opposed by the legal profession - see Law Society Criminal Legal Aid.  .

Human rights:

It is with human rights protection that there must now be considerable concern.  The Conservatives set out their plans for human rights (including repeal of the Human Rights Act 1998) in their election manifesto - discussed here. Very broadly speaking, the Conservatives plan to remain within the European Convention on Human Rights which, as a treaty, would (as now) bind the UK in international law.  There would be a British Bill of Rights and the Human Rights Act 1998 would be repealed - ('scrapped' in the emotive language of the Conservative manifesto).  All the detail of this has yet to emerge though the legally illiterate proposals in the autumn of 2014 may offer a clue.

We’re ready, and we know you are too. #GE2015 #SaveOurHRAhttp://t.co/1YvVQvOQ4U pic.twitter.com/diZaA7lVvw

— Liberty (@libertyhq) May 8, 2015

European Union:

UK Membership of the European Union is to be put to the electorate in a referendum.  Legislation for this has yet to appear but it was a clear Conservative manifesto promise.  The referendum is to take place after a period of renegotiation of the UK's relationship with the EU.  A difficult issue will be "freedom of movement" which is seen as making immigration control difficult.

Devolution:

Devolution to Scotland will have to be addressed and further legislation to devolve power is likely early in this new Parliament.  On this, see Scotland - an Enduring Settlement January 2015.  Although the SNP has been at some pains to state that this election was NOT about Scottish Independence - (on which a referendum was held in Scotland in 2014) - it seems unlikely that the topic is going to go away.  After all, as someone said to me the other day, the clue is in the Party name !!

EVEL:

Then, there is the difficult question of "English votes for English laws" (EVEL).  England does not have a separate Parliament and currently Scots MPs may vote on questions of English law even when those matters are devolved to the Scottish Parliament.  This is widely seen as unfair and will have to be addressed in some way though it is likely to be more difficult than the slogan suggests.

Ministers:

Mr Cameron may now form a new government and will not require to appoint from any other party.  On appointments, please see - Number 10 Downing Street - Prime Minister and Ministerial appointments.  

Clearly, a most interesting time lies ahead and should offer much meat to observers and commentators alike. 

Links:

The Independent 9th May - Unshackled from coalition partners, Tories get ready to push radical agenda

BBC News - Sturgeon says Scotland voted for change

British Institute of Human Rights - What have human rights ever done for you?

Explore folklore and magic in Cornwall

05:34 0 Comments

Tintagel Castle, photo courtesy of Robert Linsdell

The Museum of Witchcraft

Cornwall's roots in folklore and magic don't rest purely on King Arthur - as demonstrated by the Museum of Witchcraft in Boscastle, North Cornwall. 

This houses the largest collection of witchcraft-related artefacts in the world, including more than 2,000 objects on display. 

There is also a naturally-occurring spring and shrine, a range of activities for children, sections on healing, Christian magic, Pagan beliefs, charms, curses, Cornish 'piskies', and a lot more. 

Guided tours are available and ticket prices are £5 for adults and £4 for children and concessions. 

Read more information on our inspected and star-rated Cornwall Holiday Cottages. 

San Ginesio – the gem of Le Marche

15:48 0 Comments

Le Marche is often overlooked by tourists but this beautiful region offers its own rich diversity of arts, history and culture that sets it apart from the rest of Italy and it a perfect location for a relaxing holiday in a traditional and unexplored part of Italy. If you are looking for a peaceful holiday, welcoming atmosphere and your own slice of Italy, then this hits the spot.

San Ginesio and surrounding countryside 


Situated on a hill, this walled town provides an ideal position from where to admire the Sibillini Mountains. It is hard to describe the beauty of the landscape with the green valley below and the towering peaks covered in snow. Although it’s a hill-town, it is rather flat inside the walls and as a town, it’s as pretty as any in Tuscany.  Quaint shops and a lively square framed by historical buildings dating back to XI century offer the visitor a welcoming atmosphere.

During the summer a few folkloristic festivals take place and the town seems to go back in time with actors dressed in costumes, drums, medieval music, dances and “battles”. This area offers a great base for walking and is close to ski resorts.

What to do



If you love the outdoors, then this is the place to be.  For walkers, the nearby Sibillini Mountains offer plenty of variety through pastures and woodland as well as dense forests against a backdrop of alpine scenery.  Paths will take you along rivers, past stunning waterfalls and caves, through gorges and up the many peaks.


Nearby Macerata is a fab local City immersed in Renaissance art and architecture. Its squares come alive in the evening and there are plenty of cafés and restaurants. For those who love shopping, the City is famous for its Wednesday market and there are some great little shops.


For the sun worshipper, Le Marche offers beautiful beaches.  It is set along the Adriatic Sea, with 80km of spectacular coastline.  In a mere 45 mins, you will find yourself at the wonderful seafronts of Porto s. Georgio and Civitanova Marche, where there are endless sandy or pebbly shores and natural bays along the rocky coast to explore.



Food and wine


Le Marche offers a wide range of centuries-old traditional food products and dishes featuring olives, ham and fish and there is an array of good wines including Verdicchio.  Local specialities such as pecorino cheese, truffles and roast pork are a real treat!  If you head up to the mountains, make sure you include a visit to one of the many great Rifugii that serve superb food using local produce.

How to get there

Le Marche is served by Ancona airport but it is also possible to access the region by Perugia and Bologna airports.

Where to stay

Holiday Homes in Italy offers a wide range of self-catering accommodation in Le Marche. Try these near San Ginesio and the Sibillini Mountains:

Casa Sibillini - 3 bedroom villa from £980 per week

Villa San Ginesio - 6 bed villa from £1,545 per week

Villa Sarnano - 2 bed villa from £920

Villa Usignolo - 7 bed villa from £1,335

Click here to view all our Villas in Le Marche

A constitutional imbroglio ?

00:40 0 Comments

The question of what will happen in the event of a further "hung" Parliament continues to be asked.  Writing in the Law Society Gazette 4th May,  Joshua Rozenberg looks at the possibilities - A constitutional imbroglio.  The article also considers the possibility of there having to be an election before the date set by the Fixed-Term Parliaments Act 2011 (i.e. the first Thursday in May in the fifth calendar year following that in which the polling day for the previous parliamentary general election fell - 7th May 2020).

The Fixed-term Parliaments Act (FTPA) ensured that the opposition and the incumbent Government face the electorate on a set day whatever way the opinions polls are pointing at the time. The Bill makes provision for elections to be called earlier under only two exceptional circumstances. Parliament can be dissolved early if: (1) at least two thirds of MPs vote for dissolution or (2) a Government is unable to secure the confidence of the House of Commons within 14 days of a no-confidence vote.

Repeal of the FTPA:

Of course, as Mr Rozenberg points out, the FTPA could be repealed.  Before the FTPA, the dissolution of Parliament depended on the exercise of "Royal Prerogative" powers.  In practice, these were exercised in accordance with constitutional conventions and Her Majesty acted on the advice of the Prime Minister.  The right of a Prime Minister to ask the Queen for a dissolution - (which was invariably granted) - was a powerful political weapon.  This was particularly so if there was reason to believe that opposition parties would lose seats in the event of an election.  Prime Ministers did not always request a dissolution even when, perhaps, they might have done.  For example, when Gordon Brown succeeded Tony Blair, Brown could have requested a dissolution and hoped to win a general election.  He did not do so, with the result that the parliament elected in 2005 continued until 2010.  Blair resigned as Prime Minister in 2007.

Royal Prerogative to Dissolve Parliament - Abolished or in abeyance:

If the FTPA were simply repealed, a somewhat tricky question arises:  Would the previous Royal Prerogative powers come back to life?  This is discussed in more detail on the UK Constitutional Law blog - Royal Prerogative powers and the Fixed-Term Parliaments Act *

It could be argued that the FTPA had abolished the prerogative power to dissolve parliament and that would mean that it could not be restored.  However, it could also be argued that the prerogative power had been held in “abeyance” and that it could be capable of being exercised once again.  In evidence to the Public Administration Select Committee’s inquiry on Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, the Treasury Solicitor’s Department wrote that:

It is not altogether clear what happens where a prerogative power has been superseded by statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.

Clearly, IF the FTPA is to be repealed, the safer legal course would be for the repealing legislation to clearly enact how a dissolution of parliament is to occur.  Failure to deal with this could well lead to  serious difficulties which the courts might have to resolve.

The FTPA contains two routes by which parliament could be dissolved and it might be that a third way could be added - "Her Majesty may, on the request of the Prime Minister, dissolve parliament." That would give the Monarch a statutory power and not a prerogative power. Alternatively, the third way might be achievable by enacting that Royal Prerogative relating to the dissolution of parliament is revived.  

Review of the FTPA:

The FTPA requires the Prime Minister to put in place a review of the Act - see section 7.  However, the review cannot take place before 1st June 2020 and no later than 30th November 2020.  If that review recommends repealing the FTPA then the Prime Minister is required by section 7 'to make recommendations for the repeal or amendment of' the Act.  It is a further moot point whether that would actually lead to repeal.

Interesting questions to mull over as we await the outcome of the 2015 General Election.

Please also see the earlier post -What if, as seems likely, it is a hung Parliament.

* A. Horne and R. Kelly, ‘Prerogative Powers and the Fixed-term Parliaments Act’ UK Const. L. Blog (19th November 2014) (available at http://ukconstitutionallaw.org)

Legal aid cuts threaten our very democracy

02:12 0 Comments

'Without access to justice for all, inequalities take on a more dangerous edge which threatens the legitimacy of not just the justice system but our democracy.'

Legal aid and access to justice have both become prevailing themes on this and other blogs.  Legal aid in civil cases has been severely reduced and this coupled with vastly increased charges for the "privilege" of using courts or tribunals has put access to justice out of reach for many.

A letter in The Guardian 1st May strongly makes the point that access to justice is a key element in our democracy.  The letter is signed by numerous individuals including two retired Court of Appeal judges.  The next government is called upon:

' to abandon the highly controversial restructuring of criminal defence, restore legal help to the many currently without redress and to establish a royal commission to investigate the current crisis regarding the diminution of access to justice. In addition we call for an independent body to review legal aid rates, including expert witness rates so as to depoliticise them and instead move to an evidence-based approach to ensure public need is adequately met in the provision of legal services.'

Please read the letter at The Guardian 1st May 2015 and please bear this in mind when choosing who to vote for in the General Election. 



Law and Lawyers - The Conservative Party manifesto

Law and Lawyers - The fight for access to justice

Law and Lawyers - A very brief glance at the Labour Party manifesto

Open letter from Bar chairman, vice chairman and others; 100+ lawyers, doctors, peers, judges condemns #legalaid cuts @guardian http://t.co/EdzIxZcYP6

— The Bar Council (@thebarcouncil) May 1, 2015

Farm-friendly fodder at Darts Farm Shop

03:20 0 Comments

Photo courtesy of Jacob Spinks

"WHAT SHALL WE DO TODAY?"...

06:17 0 Comments

There’s a lot of fun to be had in the West Country and we’ve done the research for you. All you have to do is gather family and friends together and leaf through our brochure to plan the holiday of your dreams.

What if ~ as seems likely ~ it is a hung Parliament ?

03:18 0 Comments

The General Election for the United Kingdom of Great Britain and Northern Ireland is rapidly approaching.  The latest opinion polls are analysed by UKPollingReport and they continue to suggest a "hung parliament" - that is, no party having an overall majority of seats.  

What is the legal position in the event of such a Parliament ?  Under our Parliamentary system, the test for whether a Prime Minister can govern or not is whether he (or she) commands a majority in the House of Commons.  The situation is expertly considered by Carl Gardner on his Head of Legal Blog - Ed can enter No. 10 without Nicola's keys - and I recommend reading of his post.

The fact
that the UK does not have a formally written constitution results in decisions as to the next government being decided - (a) by the electorate choosing their Members of Parliament and, then (b) by Her Majesty the Queen appointing as Prime Minister the individual who is best able to form a government and, in turn, that is the individual whose Party (or a combination of parties)  is best able to command the confidence of the House.  The Queen will act on the basis of advice given to her and such advice will be based on constitutional conventions and examples of past situations.

A further general election may only be held as specified by the Fixed-Term Parliaments Act 2011.

For more about the Fixed-Term Parliaments Act see Head of Legal blog.

New brochure packed full of welcoming holiday cottages…

08:53 0 Comments

Helpful Holidays - Supplement 2, 2015

Our latest colour supplement, featuring 24 welcoming holiday cottages spread right across the region from the far west of Cornwall to Somerset, is now available. 

If you’re planning to escape for a break in the West Country over the coming months and would like a copy, call us on 01647 433593 or email us and we’ll pop a copy in the post.  Alternatively you can browse the supplement online on our brochure page. 

The new holiday homes, sleeping from two to 13 people, extend our portfolio to over 760 places for happy holidays.  

Buster Barn

Prices start from £269 for a low season week at Buster Barn, a detached barn for two in Sampford Spiney with long views over Dartmoor; and at the other end of the pricing scale, Bight Boathouse, a spacious holiday home for 11 set high above the riverbank in Dartmouth with stunning views along the river Dart and out to sea, is priced from £1,244 per week rising to £3,116 in the high season. Pets are welcome at most of the new cottages in the supplement.


 Other highlights include:

Who may stand for election to Parliament?

03:27 0 Comments

In a recent conversation, someone asked whether a member of the Scottish National Party (SNP) could stand for an ENGLISH seat in Parliament. As a matter of law, the answer is Yes.  This is because it is individuals who stand for Parliament and not political parties.  Of course, it is doubtful whether anyone standing for the SNP in an English constituency would ever be elected but that would be a matter for the electorate in that constituency.

For that reason, from time-to-time, there will be a Member of Parliament who is an Independent - that is, independent from any political party and in no way beholden to the Party Whip systems.  Independent MPs are quite rare these days but, in the 20th century, there were quite a few - see the lists in this Wikipedia entry and also see The Guardian - Other Famous Independent Parliamentary Candidates.  One notable recent independent MP was the broadcaster Martin Bell - elected as an Independent MP for Tatton (in Cheshire) from 1997 to 2001 having stood on an anti-corruption platform against the sitting Tory MP, Neil Hamilton.

Some categories of individual are disqualified under
the House of Commons (Disqualification) Act 1975 from becoming an MP.  These include certain holders of judicial offices such as Judges of the High Court.  A District Judge (Magistrates' Courts) is disqualified but Justices of the Peace may stand for Parliament though, in their case, guidance issued in March 2015 applies.  The guidance reminds those magistrates who are also prospective candidates that, during an election campaign, they may not sit as a magistrate in the same local justice area as the constituency concerned until the result of the election is known.  If actually elected, the magistrate must seek reassignment to a different local justice area or stand down from the active list.

The House of Lords Act 1999 reformed the ancient link between hereditary peers and the House of Lords.  Today, under a compromise arrangement, only 92 hereditary peers may sit in the Lords.  Any hereditary peer who is not one of the 92 is entitled to stand for election as a Member of the House of Commons.

Interestingly, the SNP is urging that defeated or retired MPs are not retained in politics by their elevation to the House of Lords.  The Lords is already a large body with around 790 eligible to take part in the work of the House - see here.  In the early years of the 2010 to 15 Parliament, David Cameron created well over 100 new peers.  Attempts to reform the House of Lords have usually tended to fail though there will doubtless be further attempts depending on the make up of the next government.  Previous Post 20th May 2011 - Plantagenet Palliser - after 100 years, will Lords reform arrive? 

A brilliant new website - RIGHTS INFORMATION

01:56 0 Comments

At a time when "human rights" are under attack from certain politicians and elements in the popular media, a superb new website has arrived - Human Rights Information to Share (or Rights.info.org).  Many congratulations to barrister Adam Wagner and those behind this initiative.  The need to help people understand their rights and to value those hard-fought rights has never been greater and Rights Information goes a long way to help.

Here you can see Everything you need to know about rights, find out what human rights do for us, get information on 50 cases where human rights have improved the law, sign up for a daily newsletter and there is much more!

Please share the link to Rights Information with your friends and work colleagues.

Writing on his Head of Legal blog, Carl Gardner says of Rights Information
- "What’s immediately striking about the site, is its clean, contemporary look. When you combine that design and usability with content that’s authoritative and engaging, RightsInfo adds up to a really interesting web initiative in the public understanding of law.

You’ll certainly want to subscribe to RightsInfo if you’re interested in human rights. But more importantly, it’s going to be an excellent place to send anyone who’s sceptical about human rights but open to persuasion. RightsInfo is an impressive new tool – and I wish it well."

I also wish Rights Information all the luck in the world.

The DPP under the microscope over Janner

06:09 0 Comments

Criminal Law Blog 24th April - Lord Janner prosecution - comment

Law and Lawyers 18th April - Lord Greville Janner - the decision not to prosecute

The decision by the Director of Public Prosecutions (Alison Saunders) not to institute criminal proceedings against Lord Greville Janner (see previous post where the decision is explained) has resulted in outrage in certain quarters.

Questions have been raised about Janner's dementia despite the point that four medical practitioners (two from each "side") had advised that he was not fit to stand trial - see, for example, The Guardian 20th April - Further questions raised about whether or not Lord Janner is fit to stand trial.

A considerable number of politicians have lined up to criticise the decision.

A letter to The Times by various politicians urged reversal of the DPP's decision - see The Independent 22nd April. 

The DPP
attempted to address the criticism and has stood by her decision - The Independent  25th April  .  Saunders asserts that she is not afraid of having her decision tested either by the courts (judicial review) or by a victim initiating the Right to Review process.  If the latter, then the review would be undertaken by a lawyer from outside the Crown Prosecution Service (CPS).  She also stated that it is not for her to act in a populist way.

The office of Director of Public Prosecutions can be traced back to 1879 and the office has been independent of government since 1908 - (for some of the history see this wikipedia entry). The Prosecution of Offences Act 1985 created the Crown Prosecution Service and made the DPP its Head.

On many occasions, the independence of the CPS with regard to prosecutorial decisions has been asserted - for example, see the 1998 Glidewell Report and the House of Commons Justice Committee's 9th report (Session 2008-9).

The Glidewell report stated - "The CPS is now established as a national and independent organisation operating in accordance with a Code for Crown Prosecutors and contributing to the formulation of Government policy on criminal justice."

The Justice Committee report said - "The CPS needs to take a bold and robust approach as the independent prosecutor."  The Committee's report went further with regard to the relationship between the prosecutor and complainants (often now referred to as 'victims').  The report said - "Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality.  Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals, and there are good reasons for this. The CPS’s role as independent arbiter of decisions about prosecution is critical.  Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital."

The Independent has chosen to tell us how the DPP should have handled the Janner case - The Independent 25th April.  They comment that - "... it is not enough for Britain’s top prosecutor to be a good lawyer. She must also possess sound political judgement, which means understanding the impact of her decisions in wider society. She should not be so independent that she is completely detached from the court of public opinion.it is not enough for Britain’s top prosecutor to be a good lawyer. She must also possess sound political judgement, which means understanding the impact of her decisions in wider society. She should not be so independent that she is completely detached from the court of public opinion."

The same article also asserts - "Saunders’ lack of political nous means she has done little to cultivate friends in the media or Parliament, while her handling of the fallout of the prosecutions of journalists for payments to officials has antagonised Fleet Street."

I doubt that I am alone in feeling some concern at this.  The DPP made a decision having taken advice from a number of lawyers but the decision was hers and hers alone. The DPP has to act on the basis of the law and the Code for Prosecutors and she should not have to worry about any political repercussions.  It is not for her to "cultivate friends" in either the media or Parliament.  Decisions to prosecute must not become based on political considerations and a prosecutor must never abandon legal principle and, like Pontius Pilate*, wash her hands of the accused.

In this matter, the DPP seems to have acted properly - (see the view of Lord Pannick QC published in The Times) - and has acted with considerable moral courage.  For that we should at least be grateful.  

The CPS Victims Right to Review scheme is described on the CPS website.  It may be that such as review will be triggered and, if so, the DPP has indicated that the review would be handled by a lawyer external to the CPS.

* Pilate is said to have washed his hands to show that he was not responsible for the execution of Jesus and reluctantly sends him to his death.

Addendum - 29th April:

It is reported that some of the complainants are seeking a review of the DPP's decision - The Guardian 28th  April

The Conservative Party manifesto and human rights

04:52 0 Comments

The Conservative Party manifesto states that the terms of British EU membership will be renegotiated and an in/out referendum held.  The Human Rights Act will be "scrapped" and replaced by a British Bill of Rights.  As for legal aid, the document merely informs us that they would continue to review our legal aid systems, so they can continue to promote access to justice in an efficient way.

The statement about legal aid continuing to promote access to justice is questionable since legal aid has been removed from many areas of civil law, considerably curtailed in Magistrates' Courts and means tested in the Crown Court so that many will end up paying a contribution to their legal fees.  Just what the manifesto means by review is debatable but it seems unlikely that they would be proposing any reinstatement of legal aid into areas where it was withdrawn under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Human Rights - a few thoughts:


The United Kingdom - as a nation - is a member of the Council of Europe and it is under that body that the European Convention on Human Rights operates.  For purely political reasons, I cannot see the UK withdrawing from the Council and the manifesto makes no such suggestion.  Thus, the UK would - as a nation - continue to be bound in international law by its obligations under the Convention.

Nevertheless, the Human Rights Act 1998 would be "scrapped" and replaced by a British Bill of Rights.  The British Bill would remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights.  What they see as "mission creep" would be removed.  In other words, they seek to stop 'human rights law being used for more and more purposes, and often with little regard for the rights of wider society.'  Here is an attack on the so-called "living instrument" doctrine developed by the European Court of Human Rights and which sees the convention as capable of adaptation to the needs of contemporary democratic societies as opposed to the needs and attitudes of the 1950s.  The living instrument approach has enabled the law to be carefully developed in sensible ways - e.g. the concept of "family".

The contents of a British Bill of Rights are not set out though perhaps some indication may still be found in the report of the Bill of Rights Commission.  However, the extent to which they would adopt the Commission report and recommendations is far from clear.  Whilst accepting that a manifesto is a blueprint for government, tt would be helpful to the voter to know rather more about just what is proposed and a draft Bill of Rights promised for the autumn of 2014 did not appear.

The word "original" is also interesting.  They cannot truly mean a return to the convention as it was in the 1950s and ignore the various subsequent protocols.  Again, the document lacks precision.

One point is made a little clearer in that the manifesto indicates that the repeal of the Human Rights Act and the British Bill of Rights will "break the link between British Courts and the European Court of Human Rights" and "make our own Supreme Court the ultimate arbiter of human rights matters in the UK."

The link referred to is presumably the point that the Human Rights Act requires our domestic courts to "take into account" decisions of the European Court of Human Rights.  That is quite a step away from actually telling courts that they MUST follow Strasbourg decisions though, essentially as a matter of common sense, the judges tend to do so unless there is some good reason not to do so.

Of course, the Supreme Court of the UK - mighty as it is - cannot be the "ultimate arbiter" of human rights in the UK - (see Making the Supreme Court Supreme).  That role would have to remain with Parliament and the UK would, as already stated, continue to be bound in international law by those decisions of the European Court of Human Rights to which the UK was a party.

Whether the British Bill of Rights proposal would appeal to those in parts of the UK with devolved government (e.g. Scotland, Northern Ireland) is a further debatable point.  It would be ludicrous to end up with markedly different systems of rights protection depending where you were in the UK.

Much food for thought here .... especially for the thinking voter !!  I remain seriously sceptical about their proposals because I see this as part of an agenda to limit rights and access to justice.

Please also see Public Law for Everyone - Human Rights in the Conservative's manifesto - Four comments

Human Rights -a look at the Conservative Party proposals - (i.e. as they appeared in October 2014)