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Secondary Legislation and the Powers of the Lords ~ Commons report

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi8vIlFO3v_cBH7m0BTBntWhhCUB86QKIcORxp5wh0fCs5hWAH3yO_9yt6rmPMovipKQc8rwNNx4ck2GezQhwHjyx_Joy7tnf_aK4-kuBap0vox0ngbd__KDVHHt2M2HLcEXlDfEjcNvo5-/s1600/Parliament.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="140" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi8vIlFO3v_cBH7m0BTBntWhhCUB86QKIcORxp5wh0fCs5hWAH3yO_9yt6rmPMovipKQc8rwNNx4ck2GezQhwHjyx_Joy7tnf_aK4-kuBap0vox0ngbd__KDVHHt2M2HLcEXlDfEjcNvo5-/s200/Parliament.jpg" width="200" /></a></div>Remember the <a href="http://obiterj.blogspot.co.uk/2015/10/tax-credits-row.html">Tax Credits row</a> and how it was blown up into a constitutional crisis when the House of Lords voted for a DELAY in implementing the <a href="http://www.legislation.gov.uk/ukdsi/2015/9780111138946">Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015</a>   The government had claimed that cuts to tax credits were crucial to its plans for public finances but the cuts were abandoned in the <a href="https://www.gov.uk/government/news/spending-review-and-autumn-statement-2015-key-announcements">Autumn Statement</a> <a href="https://www.gov.uk/government/news/spending-review-and-autumn-statement-2015-key-announcements"></a> <a name='more'></a> The House of Lords voted for a DELAY so that the position of those already receiving tax credits could be better protected.  They voted decisively against rejecting the regulations entirely. <a href="https://www.blogger.com/null" name="more"></a> Claiming that the Lords was over-stepping the mark in relation to financial matters, the government set up a <a href="http://obiterj.blogspot.co.uk/2015/12/a-brief-note-on-strathclyde-review.html">review under the Chairmanship of Lord Strathclyde</a>.  The aim was to consider the powers of the Lords in relation to <a href="http://www.parliament.uk/business/bills-and-legislation/secondary-legislation/statutory-instruments/">statutory instruments</a>.<a href="https://www.gov.uk/government/news/spending-review-and-autumn-statement-2015-key-announcements"></a> The House of Commons Public Administration and Constitutional Affairs Committee <a href="http://www.publications.parliament.uk/pa/cm201516/cmselect/cmpubadm/752/752.pdf">has reported on the Strathclyde Review</a> and concluded that: "The Government should not produce legislative proposals aimed at implementing the Strathclyde Review’s recommendations. Such legislation would be an overreaction and entirely disproportionate to the House of Lords’ legitimate exercise of a power that even Lord Strathclyde has admitted is rarely used. The Government’s time would be better spent in rethinking the way it relies on secondary legislation for implementing its policy objectives and in building better relations with the other groupings in the House of Lords." The Commons Committee has pointed out that there was NO constitutional crisis over what the Lords did and there is no need for change in the procedure relating to statutory instruments, least of all for a change in legislation which could have consequences- such as an increased risk of judicial intervention in the relations between both Houses of Parliament. There is very serious concern at how the government now uses SECONDARY legislation to push through what amount to considerable policy matters.  Secondary legislation receives far less Parliamentary scrutiny than primary legislation (i.e. Bills leading to Acts of Parliament).  Limiting the powers of the Lords in relation to Secondary legislation would therefore result in significant enhancement of executive power.  As such, it would be a major constitutional reform and not a mere adjustment to parliamentary process.  A constitutional wolf in sheep's clothing.

Secondary Legislation and the Powers of the Lords ~ Commons report

Remember the Tax Credits row and how it was blown up into a constitutional crisis when the House of Lords voted for a DELAY in implementing...

6:06:00 AM

"Celebrity" injunction remains ~ Is the law an ass? Supreme Court answers NO.

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi47srITRLBs_RdQx_UB6YvibDtxhseCgR1TVIvRJxh9m04WkVySupGyqcEVyUt2uwFtfT0_p0gVMkomIhoSNZJPBUPTpwMYo9v8CycLKnBwMMMPKSU7CiGwEHnupLBK8Om-MOTHzBVt8dD/s1600/UK+Supreme+Court+Courtroom+1.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="120" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi47srITRLBs_RdQx_UB6YvibDtxhseCgR1TVIvRJxh9m04WkVySupGyqcEVyUt2uwFtfT0_p0gVMkomIhoSNZJPBUPTpwMYo9v8CycLKnBwMMMPKSU7CiGwEHnupLBK8Om-MOTHzBVt8dD/s200/UK+Supreme+Court+Courtroom+1.jpg" width="200" /></a></div><a href="http://obiterj.blogspot.co.uk/2016/04/three-in-bed-should-they-be-named-court.html">Earlier post 12th April 2016 </a> The Supreme Court has ruled that the "celebrity" injunction in PJS v News Group Newspapers Ltd [2016] UKSC 26 is to remain in place - <a href="https://www.supremecourt.uk/cases/uksc-2016-0080.html">Supreme Court UK Judgments</a>.  The Supreme Court held that the Court of Appeal erred in law and therefore substituted its own decision. <a name='more'></a> The press summary states - "The central issue is whether the trial judge is likely to grant a permanent injunction.  Balancing all these factors, the majority concludes that PJS is likely to establish at trial that the proposed publication by NGN constitutes a serious breach of his and his family’s privacy rights, with no countervailing public interest on the present evidence, and that he is likely to be granted a permanent injunction notwithstanding the internet and social media publication." <a href="https://www.blogger.com/null" name="more"></a> Whilst stories of sexual activity and infidelity might sell certain newspapers, it is interesting that the Supreme Court's press summary states - "There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved." Furthermore - "It is essential to distinguish between the claims for breach of privacy and for breach of confidence. The widespread availability of the information in the public domain may well mean that PJS would face difficulties in obtaining a permanent injunction in so far as his claim is based on confidentiality, but different considerations apply to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant. The question is whether the injunction can still serve a useful purpose. It is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story." Is the law therefore an ass? The court said - "The Court is well aware of the lesson which King Canute gave his courtiers. Unlike Canute, the courts can take steps to enforce its injunction pending trial. As Page 3 to the Mail Online’s portrayal of the law as an ass, if that is the price of applying the law, it is one which must be paid.  Nor is the law one sided; on setting aside John Wilkes’ outlawry for publishing <a href="http://www.bl.uk/collection-items/radical-newspaper-the-north-briton-no-45">The North Briton</a>, Lord Mansfield said that the law must be applied even if the heavens fell: R v Wilkes (1768) ...... It is unlikely that the heavens will fall at our decision. It will simply give the appellant, his partner and their young children a measure of temporary protection against further and repeated invasions of privacy pending a full trial which will not have been rendered substantially irrelevant by disclosure of relatively ancient sexual history." Given the fact of publication in other legal jurisdictions (including Scotland) it is obvious that not everyone will agree with the majority.  Lord Toulson (dissenting) did not.  He argued that there is a need for caution in preventing publication of what is already widely known otherwise public respect for the law might be lost and the courts may appear to be out of touch with reality. Links: The articles on Inforrms Blog are excellent.  That blog specialises in media law.   For example, <a href="https://inforrm.wordpress.com/2016/05/19/news-supreme-court-allows-appeal-in-pjs-celebrity-injunction-case/">Supreme Court allows appeal in PJS celebrity injunction case</a>.

"Celebrity" injunction remains ~ Is the law an ass? Supreme Court answers NO.

Earlier post 12th April 2016 The Supreme Court has ruled that the "celebrity" injunction in PJS v News Group Newspapers Ltd [2016]...

6:06:00 AM

Iraq Inquiry Report to be published

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgfw3Nf5hVeTcgimfQCXEY2l5NqCxlTdzxgeb7Ub70yft1meP55rNT1-Qi6qJufiBXCVx219tMUpBsnVHy_BCjVncC3uy6_uH6IIk_yPUX6oqdL7iXzyJflDBxK3HKrh1GtTGGXLPjZhYpS/s1600/Chilcot.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="149" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgfw3Nf5hVeTcgimfQCXEY2l5NqCxlTdzxgeb7Ub70yft1meP55rNT1-Qi6qJufiBXCVx219tMUpBsnVHy_BCjVncC3uy6_uH6IIk_yPUX6oqdL7iXzyJflDBxK3HKrh1GtTGGXLPjZhYpS/s200/Chilcot.jpg" width="200" /></a></div> <a href="http://www.iraqinquiry.org.uk/">Iraq Inquiry</a> The report of the Iraq Inquiry is to be issued - without redactions - on 6th July 2016.  See the <a href="https://www.gov.uk/government/publications/prime-ministers-response-to-sir-john-chilcots-letter--2">letter from the Prime Minister to Sir John Chilcot</a> (the Inquiry Chairman). Earlier posts <a href="http://obiterj.blogspot.co.uk/2015/08/chilcot-and-difficult-question-of.html">14th August 2015</a> and <a href="http://obiterj.blogspot.co.uk/2015/09/iraq-inquiry-little-more.html">1st September 2015</a>. <a name='more'></a>   <div class="MsoNormal"> </div>

Iraq Inquiry Report to be published

Iraq Inquiry The report of the Iraq Inquiry is to be issued - without redactions - on 6th July 2016. See the letter from the Prime Minister...

6:05:00 AM

Parliament and Death by Drone

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhA9m3MN3Gh4j07Im1sYopqp_-7QNIgI8riXLHuu503VWo3uchXdNwBav9_aUlazvNSJlmBC8FbqeJ-X0ir9iPWydoz0TYcYmmsGrY8X0fnjPA9oDF-EPCwHQELPbKISKFQuqbilu-aXyY_/s1600/Drone+3.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="100" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhA9m3MN3Gh4j07Im1sYopqp_-7QNIgI8riXLHuu503VWo3uchXdNwBav9_aUlazvNSJlmBC8FbqeJ-X0ir9iPWydoz0TYcYmmsGrY8X0fnjPA9oDF-EPCwHQELPbKISKFQuqbilu-aXyY_/s200/Drone+3.jpg" width="200" /></a></div>Parliament's Joint Committee on Human Rights has called upon the government to clarify the legal basis on which it contributes to the use of lethal force abroad outside armed conflict by other countries such as the US - <a href="http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-parliament-2015/drones-report-published-15-16/">Government must clarify legal case for lethal drone strikes outside armed conflict</a> <a name='more'></a> The use of drones to carry out targeted killings has attracted a considerable degree of analysis and critical comment particularly in relation to operations conducted by the United States of America.  Despite numerous concerns and questions, it has not been declared unlawful in all circumstances.  This earlier post looked briefly at some of the "Special Rapporteur" reports presented to the United Nations -<a href="http://obiterj.blogspot.co.uk/2015/09/death-by-drone-concerns-and-questions.html#more">Death by Drone ~ Concerns and questions.</a>   See also <a href="http://obiterj.blogspot.co.uk/2015/09/view-from-north-killing-in-syria.html">View from the North ~ A killing in Syria</a> - 8th September 2015. <a href="http://www.publications.parliament.uk/pa/jt201516/jtselect/jtrights/574/574.pdf">Report: The Government's policy on the use of drones for targeted killing (PDF 1.41 MB)</a>

Parliament and Death by Drone

Parliament's Joint Committee on Human Rights has called upon the government to clarify the legal basis on which it contributes to the us...

6:05:00 AM

Parliament prorogued - Hillsborough - Finucane remembered - Judicial Power

<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"></div><table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhViKAvq3KtbVVc0ITYf7CBlD2dmsYaA-1Bb6L2t00UxIyW7H7lJs2oRDHl8Az0PHWJqCdUuAMM-wHXTy7Rt3wq6DBQ_dGZ-gItAPkBFzoeyZDMA-7DLC2wNx7eQEQtZ3gO5YY426PNPPcp/s1600/Coble+landing+Filey.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="149" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhViKAvq3KtbVVc0ITYf7CBlD2dmsYaA-1Bb6L2t00UxIyW7H7lJs2oRDHl8Az0PHWJqCdUuAMM-wHXTy7Rt3wq6DBQ_dGZ-gItAPkBFzoeyZDMA-7DLC2wNx7eQEQtZ3gO5YY426PNPPcp/s200/Coble+landing+Filey.jpg" width="200" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><a href="http://www.bbc.co.uk/news/uk-england-27224172">Filey (see here)</a></td></tr></tbody></table>  The Parliamentary Session 2015-16 ended on Thursday 12th May.   <a href="http://www.parliament.uk/business/news/2016/may/2015-16-parliamentary-session-ends/">Parliament is "prorogued"</a> until the <a href="http://www.parliament.uk/business/news/2016/may/lords-state-opening/">Queen's Speech on 18th May</a>.   Certain Bills received Royal Assent and became Acts of Parliament on Thursday 12 May 2016: <ul type="disc"><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/armedforces.html">Armed Forces Act</a></li><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/criminalcasesreviewcommissioninformation.html" target="_blank">Criminal Cases Review Commission (Information) Act</a></li><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/drivinginstructorsregistration.html" target="_blank">Driving Instructors (Registration) Act</a></li><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/energy.html" target="_blank">Energy Act</a></li><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/houseofcommonsmembersfund.html" target="_blank">House of Commons Members’ Fund Act</a></li><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/housingandplanning.html" target="_blank">Housing and Planning Act</a></li><li class="MsoNormal" style="line-height: normal; mso-list: l0 level1 lfo1; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: list 36.0pt;"><a href="http://services.parliament.uk/bills/2015-16/immigration.html" target="_blank">Immigration Act</a>  </li></ul> <a name='more'></a> <div class="MsoNormal">The Criminal Cases Review Commission (Information) Act 2016 is an example of a private member's bill becoming law although, in this case, it had government support.  It is an important Act in that it fills a gap in the Commission's ability to obtain information to assist its investigations.  It enables the Commission to apply to the Crown Court for an order requiring NON-public bodies to give access to a document or other material.  See <a href="http://obiterj.blogspot.co.uk/2015/07/criminal-cases-review-commission-powers.html">Previous Post 9th July 2015</a>.  </div><div class="MsoNormal"> <a href="https://www.blogger.com/null" name="more"></a> Hillsborough: </div>Hillsborough has, rightly, continued to attract attention. Mr Andy Burnham MP has <a href="http://www.liverpoolecho.co.uk/news/liverpool-news/andy-burnham-proposes-major-reforms-11313170#ICID=sharebar_twitter">called for cross party support for certain reforms</a> to be tabled as amendments to the <a href="http://services.parliament.uk/bills/2015-16/policingandcrime.html">Policing and Crime Bill</a>.   An important aspect of Mr Burnham's proposals is a right for bereaved families to receive the same funding as police for legal representation at inquests.  Too often, <a href="http://obiterj.blogspot.co.uk/2016/05/the-coroners-court-system-that-cannot.html">as argued at The Coroners Court - a system that cannot remain unreformed</a>, families do not receive legal aid at those inquests where there is concern that a public body may be implicated in the death under investigation.  The provision of legal aid should extend not only to inquests where the Police are involved but also where any body providing public services is involved.  Mr Burnham MP is also proposing that time limits on when a retired police officer can be investigated for misconduct are dropped and that the Government proceeds with an inquiry into relations between police and the Press as put forward by Lord Leveson - (<a href="http://webarchive.nationalarchives.gov.uk/20140122145147/http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_ii.pdf">Leveson Report Volume II</a> pages 741-994). It is reported that the Independent Police Complaints Commission (IPCC) is to investigate allegations that South Yorkshire police tried to influence daily media coverage of the Hillsborough inquests and spin what the force considered to be evidence favourable to it - <a href="https://www.theguardian.com/football/2016/may/12/police-watchdog-ipcc-investigate-hillsborough-inquest-spin-claims?CMP=share_btn_tw">The Guardian 12th May 2016.</a> Finucane remembered: The <a href="http://www.newstatesman.com/politics/staggers/2016/05/hillsborough-was-not-1989s-only-miscarriage-justice-finucane-family-knows">New Statesman 11th May</a> published an article about the murder, in 1989, of Belfast lawyer Patrick Finucane.  An Independent Review of this case was undertaken by Sir Desmond de Silva QC and reported in late 2012 - previous post - <a href="http://obiterj.blogspot.co.uk/2012/12/northern-ireland-1989-finucane-murder.html">Northern Ireland - the 1989 Finucane murder - Independent Review Report</a>. Judicial Power Project: a) What is the Project? The Judicial Power Project operates under the aegis of Policy Exchange and it issued a list a what it describes as <a href="http://judicialpowerproject.org.uk/judicial-power-50-problematic-cases/">50 Problematic Cases</a>.   It is an interesting project asking us to look at judicial decision-making and the role of the judiciary.  The Project states: "One of the aims of the Judicial Power Project is to stimulate debate about the proper bounds of the judicial role. As visitors to this website will know, our concern is that the judicial role is expanding in ways that threaten constitutional self-government and the rule of law. A particular concern is to draw attention to the many different ways in which judges fail to respect the limits of their role. Criticism about judicial overreach often focuses on the decisions of the European Court of Human Rights and the EU’s Court of Justice. Equally important are the many cases in which domestic judges have improperly ventured beyond the limits of their role. Ascendant judicial power is often most visible in the context of questions about how to protect human rights, but it also extends much more widely than this. And the cumulative consequences of this expansion of judicial power are troubling, with some of those consequences so ably discussed by the <a href="http://judicialpowerproject.org.uk/jeffrey-goldsworthy-losing-faith-in-democracy-why-judicial-supremacy-is-rising-and-what-to-do-about-it/">lecture</a> by Professor Jeffrey Goldsworthy that launched this project just over a year ago." b) Criticisms: Concern about judges either going too far (the usual complaint by politicians in human rights cases) or not going far enough (the complaint of those who feel the courts have not given them justice) is not new.  Interestingly, Joshua Rozenberg has taken issue with the Project in his article published by <a href="http://www.theguardian.com/commentisfree/2016/may/12/judge-shaming-list-guardian-freedom-information-request-prince-of-wales-letters">The Guardian 12th May - "A judge-shaming list is bad for justice"</a>.   Rozenberg wrote:- "Nobody wants to go back to the days of Lord Denning’s <a class="u-underline" data-component="in-body-link" data-link-name="in body link" href="http://ubplj.org/index.php/dlj/article/viewFile/283/311" title="">“palm tree justice”</a>, when the law applied by his court turned out to be pretty much whatever he wanted the law to be. But nobody wants to go back to the time when the law turned out to be pretty much what the government wanted it to be, either. The law, as applied by the courts, needs to be certain and predictable. But we don’t need the sort of judges who are too frightened to do anything for the first time. It seems from the project’s summaries that many of the cases have been included because the judges who decided them tried not only to follow the law but also to deliver justice. In my book that’s qualifies you for the hall of fame, not shame." (Sidebar)!  It is questionable whether Rozenberg's criticism of Lord Denning as delivering "palm tree justice" is entirely fair but that will have to wait for another occasion!  We need not be uncritical admirers of any judge but it is now 34 years since Lord Denning last sat in court and, for now, I will leave you with the <a href="http://ubplj.org/index.php/dlj/article/viewFile/146/180">Valedictory Speeches</a>. (Back on the tracks)!  Professor Mark Elliott on his <a href="https://publiclawforeveryone.com/2016/05/09/anisminic-axa-evans-and-nicklinson-judicial-powers-50-problematic-cases-and-the-contestability-of-the-proper-judicial-review/">Public Law for Everyone blog (9th May)</a> has also been critical of the Project's list of cases.  Elliott looks at some of the cases in the list and notes the Judicial Power view of the case and then offers his own view of it.   For instance, on the <a href="https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0235_Judgment.pdf">Nicklinson case</a>, Professor Elliott notes: Judicial Power’s account: Despite clear Strasbourg case law upholding legislation that bans assisted suicide, a majority in the Supreme Court were willing in principle to go beyond Strasbourg and to tell Parliament that the law on this contentious issue of public policy was contrary to Convention rights and should be reconsidered. The judgment invites further litigation. Alternative account: The Supreme Court recognised that the position taken by the European Court of Human Rights on this matter was informed by the margin of appreciation doctrine, the purpose of which is to restrain the role of the Strasbourg court in situations in which its transnational status warrants deference to national authorities. A majority of the Supreme Court further recognised that as a domestic court, its role was not circumscribed by the margin of appreciation doctrine. A majority of the Court exhibited deference to Parliament, either by declining to conclude that UK legislation breached the ECHR or by declining to issue a remedy in the form of a declaration of incompatibility under the Human Rights Act 1998. The Supreme Court's judgment in Nicklinson, Lamb and Martin was <a href="http://obiterj.blogspot.co.uk/2014/06/assisting-suicide-cases-of-nicklinson.html#more">considered here</a>.  Parliament has still not acted to alter the law relating to Assisting Suicide.  In the absence of action by Parliament, the judges may yet again be called upon to look at this subject. c) Some discussion: The Judicial Power Project does not appear to me to be trying to shame any particular judges.  Rather, the Project is asking a legitimate question about the proper role of the judges and it is not possible to deny that there has been a large expansion in the judicial role relating to challenges to the use of executive power irrespective of whether the executive power has been exercised by central government or other public bodies. It may be instructive to consider a case NOT included in the Power Project's 50 - The Tony Bland case.  Mr Bland was a victim at Hillsborough.  He suffered a severe crushed chest injury which gave rise to brain damage. His condition rapidly deteriorated and despite the intensive efforts of doctors and nurses he remained in a state of complete unawareness: “persistent vegetative state” (“P.V.S.”).  Unanimous medical opinion was that there was no hope of recovery or improvement and the question of removal of life support was raised but the medical staff and Mr Bland's family required some assurance that they would not be acting unlawfully.  Ultimately, the life support was removed following the decision of the House of Lords in <a href="http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKHL/1993/17.html&query=%28Bland+OR+Airedale%29">Airedale NHS Trust v Bland 1993</a>. The judges held that, in such cases, application should be made to the High Court to determine whether withdrawal of the life support system would be lawful in the particular case.  When the case was in the Court of Appeal, Sir Thomas Bingham MR (as he then was) referred to the need for application to the court as "a wise ruling, directed to the protection of patients, the protection of doctors, the reassurance of patients' families and the reassurance of the public."  He went on to say that - "It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case, but for the time being I am satisfied that the practice which the President described should be followed." Again in the Court of Appeal, Butler-Sloss LJ said - "I have anxiously considered whether this is a decision which ought to be taken by the doctors alone. As the House of Lords said in In re F <a href="http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1991/1.html" title="Link to BAILII version">[1990] 2 AC 1</a>, it is not generally for the courts to intervene in the decision-making process as to whether a course of action is in the best interests of a patient. That process is for the doctors. The B.M.A. have laid down careful guidelines for these cases. Nonetheless in In re F. the House of Lords recognised an exceptional situation which required guidance from the High Court. I have been persuaded by the amicus that in a decision-making process of such gravity as whether to continue treating a P.V.S. patient, the intervention of the High Court is a proper safeguard. I respectfully agree with the formulation of the procedures proposed by the President and that, for the time being at least, each application to discontinue treatment should be made to the High Court. The rapid advances of medical technology create problems which may require the intervention of the courts from time to time. Such intervention may also reassure public concern." Those extracts demonstrate that judges are all too aware of their remit.  In the Bland case the judges undoubtedly addressed a matter that Parliament had not, at the time, addressed.  Can there be any doubt that they were right to have done so? Professor Elliott has suggested that the real point is how the three fundamental principles of the British constitution — the sovereignty of Parliament, the rule of law and the separation of powers — relate to one another.   The practicalities have always been worked out through having judges who, when occasion demands, have not been afraid to push the boundaries and then it is for Parliament to intervene if it considers that to be required.  It is a pragmatic system which, I submit, has proved its worth over many years. Footnote:  The Hillsborough Jury Determination relating to Anthony Bland may be <a href="https://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2016/04/Individual-questionnaires-for-website.pdf">read here</a>. This article by Nigel Poole QC will also be of interest.  It concerns the Rabone case (<a href="https://www.supremecourt.uk/cases/docs/uksc-2010-0140-judgment.pdf">Judgment</a>) <blockquote class="twitter-tweet" data-lang="en"><div dir="ltr" lang="en"><a href="https://twitter.com/rights_info">@rights_info</a> The Judical Power Project misunderstands the Human Rights case of Rabone - new blog post <a href="https://t.co/WDLYr7Kgyb">https://t.co/WDLYr7Kgyb</a></div>— Nigel Poole (@NigelPooleQC) <a href="https://twitter.com/NigelPooleQC/status/731194682143834117">May 13, 2016</a></blockquote><script async="" charset="utf-8" src="//platform.twitter.com/widgets.js"></script>

Parliament prorogued - Hillsborough - Finucane remembered - Judicial Power

Filey (see here) The Parliamentary Session 2015-16 ended on Thursday 12th May. Parliament is "prorogued" until the Queen's...

6:05:00 AM

Chief Constables and Police and Crime Commissioners ~ a post Hillsborough inquest reflection

<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhLXYHLu-nhy6bGAG7GRpQT4ZGDGJ_srZQJRKcnJtYprDQonpWY1h9P7LHPaSg4yOfdbUb3ZBRmE0yUZo5S5G6K0B8jgp9vT4oe4hZSjsEo0aQNo5dsg1fCoDH87MuIXybaiQmwWL08dK3Z/s1600/Hillsborough+Truth+and+Justice.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="130" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhLXYHLu-nhy6bGAG7GRpQT4ZGDGJ_srZQJRKcnJtYprDQonpWY1h9P7LHPaSg4yOfdbUb3ZBRmE0yUZo5S5G6K0B8jgp9vT4oe4hZSjsEo0aQNo5dsg1fCoDH87MuIXybaiQmwWL08dK3Z/s200/Hillsborough+Truth+and+Justice.jpg" width="200" /></a></div>Update 1: <a href="http://www.bbc.co.uk/news/election/2016/police">PCC Election results 2016 </a> Update 2: <a href="http://5essexcourt.co.uk/wp-content/uploads/2013/08/7040_PCC_Guide_P8b.pdf">Essential Law and Practical Guidance for Police and Crime Commissioners</a>- 5 Essex Court.  Following the end of the Hillsborough Inquest, the Chief Constable of South Yorkshire (Mr David Crompton) was suspended by the Police and Crime Commissioner for South Yorkshire (Dr Alan Billings) - <a href="http://www.southyorkshire-pcc.gov.uk/News-and-Events/News/2016/April/Police-and-Crime-Commissioner-suspends-South-Yorkshires-Chief-Constable.aspx">Announcement by the Commissioner</a>.  It is an interesting question as to whether the Police and Crime Commissioner should also carry some responsibility for the way in which the South Yorkshire Police conducted themselves at the inquest.  The answer is not entirely clear. <a name='more'></a> PCCs and Chief Constables: <a href="http://www.apccs.police.uk/home/2016-police-crime-commissioner-elections/">Elections are in progress in 41 Police areas</a> for Police and Crime Commissioners (PCC) with voting on 5th May.  This elected office was created by the <a href="http://www.legislation.gov.uk/ukpga/2011/13/contents">Police Reform and Social Responsibility Act 2011</a>.   Section 1 states - "There is to be a police and crime commissioner for each police area listed in <a href="http://www.legislation.gov.uk/ukpga/1996/16/schedule/1">Schedule 1 to the Police Act 1996</a> (police areas outside London)."  Section 2 states - "Each police force is to have a chief constable." <a href="https://www.blogger.com/null" name="more"></a> The Commissioners have important responsibilities and powers including the power to either suspend a Chief Constable or request a Chief Constable to resign. -<a href="http://www.legislation.gov.uk/ukpga/2011/13/section/38"> section 38</a> of the 2011 Act.  (The procedure set out in <a href="http://www.legislation.gov.uk/ukpga/2011/13/schedule/8">Schedule 8</a> Part 2 must be applied).  The PCC has to secure the maintenance of the Police Force for the Police area and ensure that it is efficient and effective.  The Commissioner holds the Chief Constable to account for (a) the exercise of the functions of the Chief Constable and (b) the functions of persons under the direction and control of the Chief Constable.  The Chief Constable is appointed and holds office in accordance with section 38 and the terms and conditions of the appointment.  The Police Force (and its civilian staff) are under the direction and control of the Chief Constable.  The Chief Constable must exercise the power of direction and control in such a way as is reasonable to assist the Commissioner to exercise the commissioner's functions. Whilst those roles are in the legislation, the office of Commissioner is relatively new and the interplay between Commissioners and Chief Constables will inevitably have to be worked out through practical experience.  Much will depend on the personalities involved.  Quite clearly, a good working relationship of mutual respect is essential. The responsibility for all operational decisions on policing clearly rests, as it always has, with the Chief Constable. For example, how the police choose to police a public event is a matter for the Chief Constable and the officers who act under his direction. As Sir Thomas Winsor (HM Chief Inspector of Constabulary)<a href="https://www.justiceinspectorates.gov.uk/hmic/media/hmcic-tom-winsor-john-harris-memorial-lecture.pdf"> pointed out in this speech</a> there was clearly no intention by parliament, when introducing Commissioners to replace the former Police Authorities, to alter or diminish the operational role of the Chief Constable. Legal actions etc: When legal action is taken against the police it is usually the Chief Constable who is the defendant. This is only to be expected since most legal action is concerned with matters arising from the operational actions of the police. At the Hillsborough inquest the Chief Constable of South Yorkshire police was represented by counsel - <a href="http://hillsboroughinquests.independent.gov.uk/wp-content/uploads/2015/12/list-of-legal-reps-for-the-jury-bundle-2.3.14-31325144_1.pdf">List of Legal representatives</a>. Certain former South Yorkshire police officers were also represented separately.  The involvement of the police at the inquest arose from their operational duties at Hillsborough (15th April 1989) and from their subsequent conduct.  The Police and Crime Commissioner for South Yorkshire was not a party to the inquest. The present Chief Constable had nothing to do with the Hillsborough tragedy but he was the face of the force that did and he was responsible for how he conducted his case at the inquest.  The Chief Constable issued an apology in 2012:   <div class="MsoNormal">“On that day South Yorkshire Police failed the victims and families. The police lost control.  In the immediate aftermath senior officers sought to change the record of events.  Disgraceful lies were told which blamed the Liverpool fans for the disaster.  Statements were altered which sought to minimise police blame. These actions have caused untold pain and distress for over 23 years.  I am profoundly sorry for the way the force failed on 15th April 1989 and I am doubly sorry for the injustice that followed  and I apologise to the families of the 96 and Liverpool fans.”</div> After the conclusion of the Inquest a further apology was issued:   <div class="MsoNormal">“On 15th April 1989 the South Yorkshire Police got the policing of the FA Cup semi-final at Hillsborough catastrophically wrong.  The force failed the victims and failed their families….Today, as I have said before, I want to apologise unreservedly to the families and all those affected.”</div><div class="MsoNormal"> </div>As pointed out on the blog of Mark George QC (<a href="https://mmchgeorge99.wordpress.com/2016/04/28/when-saying-sorry-again-is-not-enough/">When saying "Sorry" again is not enough</a>), questions put at the inquest to witnesses piggybacked "on the loathsome and repellent assertions repeatedly made by counsel for the match commanders, Mr Duckenfield and his sidekicks Marshall and Greenwood that the disaster was all the fault of drunken, hostile, ticketless fans most of whom turned up late expecting to gain entry to the stadium." Such a line of questioning was clearly totally out of kilter with the apologies issued by the Chief Constable. The case being put by the Chief Constable was, in effect, the case being put for the South Yorkshire Police.  Whether the Police and Crime Commissioner had any involvement in how the case was presented is unclear.  However one views it, the insincerity of the apologies is plain for all to see. Hillsborough families are reported as being unhappy that the South Yorkshire Police and Crime Commissioner appears to escape any censure over the way in which the South Yorkshire Police conducted the inquest - <a href="http://www.theguardian.com/football/2016/may/03/hillsborough-families-criticise-south-yorkshire-pcc-over-inquest-tactics">The Guardian 3rd May - Hillsborough families criticise South Yorkshire Police and Crime Commissioner over inquest tactics</a> Pete Weatherby QC, representing 22 families whose relatives were killed in the crush on the Leppings Lane terrace at Hillsborough, said it was not enough for Alan Billings to have suspended the chief constable, David Crompton, following the inquest because the commissioner had supported the force’s adversarial strategy during the coroners hearing. “It appears that the PCC failed in his primary job of holding the force to account, including to ask why the case, which he was funding, was taking so long and costing so much,” Weatherby said. “The families called for David Crompton’s resignation because he ran a case contrary to public admissions he made in 2012. It is difficult to imagine how the PCC failed to notice this, and take appropriate action.” Considerable time at the inquest was taken with events subsequent to the actual day of the tragedy.  It hardly needs stating that much on-going upset could have been avoided had the authorities come clean from the outset about what happened and their involvement. Admitting liability? All too often, a factor in the failure to admit responsibility is fear of either criminal or civil proceedings.  The latter can result in considerable sums in damages and these have to be found from public funds.  In the face of such liabilities there is a tendency to seek to minimise involvement or to deflect blame rather than squarely face responsibility. <div class="western" style="background: white; line-height: 13.05pt; margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 0cm; margin-right: 0cm; margin-top: 4.55pt;">It is far from easy to think of some way in which an incentive to "come clean" could be introduced.  One incentive might be for Parliament to revisit the idea of exemplary damages.  At common law these were damages intended to punish the defendant and to seek retribution, as well as being concerned to deter the defendant from repeating the outrageously wrongful conduct and others from acting similarly, and to convey the disapproval of the jury or court. Since the case of <a href="http://www.bailii.org/uk/cases/UKHL/1964/1.html">Rookes v Barnard [1964] UKHL 1</a>, the cases where exemplary damages are possible have been regarded as limited to certain categories of case - e.g. oppressive, arbitrary or unconstitutional action by the servants of the government.  </div><div class="western" style="background: white; line-height: 13.05pt; margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 0cm; margin-right: 0cm; margin-top: 4.55pt;"> </div><div class="MsoNormal">Another possibility might be to impose a duty of candour on public authorities.  Action on those lines has been taken in relation to the National Health Service where the duty of candour is set out in regulation 20 of the <a href="http://www.legislation.gov.uk/uksi/2014/2936/regulation/20/made" target="_blank">Health and Social Care 2008 (Regulated Activities) Regulations 2014 </a> (2014 regulations), amended by the <a href="http://www.legislation.gov.uk/uksi/2015/64/pdfs/uksi_20150064_en.pdf" target="_blank">Health and Social Care Act 2008 (Regulated Activities)(Amendment) Regulations 2015</a> (2015 regulations).  See the <a href="http://www.nationalhealthexecutive.com/Health-Care-News/new-duty-of-candour-guidance-published-for-nhs-staff">National Health Executive guidance</a>.</div><div class="western" style="background: white; line-height: 13.05pt; margin-bottom: .0001pt; margin-bottom: 0cm; margin-left: 0cm; margin-right: 0cm; margin-top: 4.55pt;"> </div>No doubt there may be other possibilities but it is particularly sad that it took 27 years for the truth of Hillsborough to be formally revealed at an inquest lasting 2 years.  Even today, neither criminal nor civil liability has been established at law since they are not the function of an inquest.  <a href="http://obiterj.blogspot.co.uk/2016/04/hillsborough-investigations-on-going.html">Investigations are continuing</a> but the eventual outcome remains to be seen.  The Guardian 28th April - <a href="http://www.theguardian.com/football/2016/apr/28/hillsborough-families-to-sue-police-for-abuse-on-industrial-scale">Hillsborough Families commence legal action</a>. <a href="http://www.theguardian.com/football/2016/may/03/hillsborough-families-criticise-south-yorkshire-pcc-over-inquest-tactics">The Guardian 3rd May - Hillsborough families criticise South Yorkshire Police and Crime Commissioner over inquest tactics</a> Update 6th May - Dr Alan Billings was re-elected in South Yorkshire - <a href="http://www.bbc.co.uk/news/election/2016/police">BBC Election results</a>

Chief Constables and Police and Crime Commissioners ~ a post Hillsborough inquest reflection

Update 1: PCC Election results 2016 Update 2: Essential Law and Practical Guidance for Police and Crime Commissioners - 5 Essex Court. F...

6:04:00 AM

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Parliament prorogued - Hillsborough - Finucane remembered - Judicial Power

Chief Constables and Police and Crime Commissioners ~ a post Hillsborough inquest reflection

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