Category Archives: Uncategorized

‘Presedent’ Revisited – Section 20 may not require consent

Earlier today, @suesspiciousmin tweeted that a new case might have rebooted the stream of section 20 compensation claims:

untitled

I couldn’t wait for his commentary, I had to search the case out for myself, and it is this case here: London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017).

Not least, section 20 is an issue I’ve written about on a number of previous occasions, over a number of years, including:

A review of my previous posts will reveal that I have held to a very difficult line. On the one hand, Continue reading ‘Presedent’ Revisited – Section 20 may not require consent

Freedom of Information review request to Leeds City Council

Update: Appeal upheld, see https://www.whatdotheyknow.com/request/children_and_social_work_bill_pl?nocache=incoming-900882#incoming-900882.

Leeds City Council’s original approach to their commercial interests:

Our reliance on the exemption was based on the prospect that other authorities might be able to improve their own submission to the DfE for funding, or to pre-empt our proposal in some way. This could then mean that the Council’s “financial” interests would be prejudiced and therefore disclosure would be detrimental to the Authority.

They now say or acknowledge,

our arrangements for discharging our statutory duties towards children are generally not “commercial” in nature and so the exemption would not be engaged

However, they now deny that they have any “detailed plans”. Continue reading Freedom of Information review request to Leeds City Council

Brexit: Thank goodness for the Separation of Powers

Only yesterday, I was teaching the principle of the Separation of Powers. Derived from the philosopher Montesquieu, the concept is that there are three separate forms of state power, to be found in the legislature which makes the laws (parliament); the judiciary which interprets those laws, and determines whether or not they have been adhered to (the courts) and the executive, which implements the laws, and the decisions of courts. The idea of the Separation of Powers embraces both that these three forms of state power ought to be vested in different places, and also that they ought to operate as checks and balances each upon the others.

A development today in relation to Brexit epitomises the Separation of Powers in operation. The court has ordered the government to disclose its defence to an action brought against it, in a case which is about who has the authority to trigger Brexit.

The Government is the very beating heart of the Executive. Government ministers head up all of the great ministries of state and the civil service. Governments also have a huge influence on Parliament’s priorities, agendas and processes.

So, what is the Government’s case in all this? Is it that the people are sovereign? No. The government’s case is that it is the government alone that has been gifted the ancient authority of the monarch (from a time before we had Separation of Powers) to do exactly what it likes. Specifically, the government’s case now revealed asserts that neither the legislature nor the judiciary (neither parliament, see paragraphs 11-12 at page 6 nor the courts, see paragraphs 13ff at page 7) should have any say in its exercise of ancient royal prerogative powers. So much for the Separation of Powers and the Rule of Law! Indeed, not only was the government’s case not that the people were sovereign, the government’s case was that the people should not know what its case was (see paragraphs 5-6 of this application)! We only know that because of the success of its opponents, through the courts, forcing the government to be transparent about its views of its own powers.

Which is why I am saying thank goodness for the Separation of Powers! Wherever it may be leading, at this point in time the claimants are arguing that the legislature has a role in determining whether we walk away from our international treaty obligations as members of the European Union. The government is arguing that this is a decision for the executive alone. And the forum in which this is taking place is the courts, giving a say to the judiciary. Which means that, right now, all three branches of state are deeply enmeshed in this litigation. Which is a good thing. It means that the checks and balances the one ought to have upon the other to seem today to be operating effectively. Thank goodness that there are these checks and balances on the right of the executive to do whatever it wishes! Long may it continue!

The application was brought by Bindmans LLP, which reports and comments that the surprising submissions are,

that Parliament ‘clearly understood’ it was surrendering any role it might have in Brexit by passing the EU Referendum Act, that it has no control over making and withdrawal from treaties and that individuals can have fundamental rights conferred by Acts of Parliament stripped away if and when the executive withdraws from the treaties on which they are based.

You can now read the government’s case for why it alone neither the legislature nor the judiciary should have a role here: https://www.bindmans.com/uploads/files/documents/Defendant_s_Detailed_Grounds_of_Resistance_for_publication.PDF

And you can read the contrary case put forward by The People’s Challenge for why the legislature should have a role here: https://www.bindmans.com/uploads/files/documents/Article_50_final_corrected_and_unredacted_version.pdf

And next month, the judiciary will have its say.

Is there a heightened threat to the Human Rights Act?

This was not originally prepared as a blog, but as a Briefing Document. It has been amended for publication.

Human Rights Act – Briefing Document

1. Introduction

I have prepared this document to provide what I hope is useful information to inform the discussion that has been mooted, and placed on the agenda, concerning the future of the Human Rights Act and the potential threat to the Act. There is some element of opinion and/or reflection, but what follows is primarily by way of information. I trust that it is helpful.

2. Is There Really a Threat to the Human Rights Act?

I believe the immediate trigger for this item was a news story that the new Minister of Justice and Lord Chancellor, Liz Truss, had recently made a statement that it was the government’s intention to repeal the Human Rights Act and replace it with a British Bill of Rights. Continue reading Is there a heightened threat to the Human Rights Act?

‘Oh, for heavens sake!’ – More on Named Persons

Oh, for heavens sake!

Look, on the one hand, there are people out there who think that the State has no role whatsoever in family life. Some of them choose to live in bunkers, and I am sure there are literal and metaphorical bunkers in Scotland. Self-styled Freemen on the Land are an example of a group with no respect for the Rule of Law, and who do not recognise the role of the State. Some of them harm their children too.

On the other hand, are those who are inherently distrustful of family life. Some of them would like to keep universal databases, and the whole of the population under surveillance. Some of them point to when things go wrong in families, others dislike the family model, because they dislike the philosophical convictions of some people who live in families. Some have a commercial interest in the database and surveillance industries.

In between these two extremes, Continue reading ‘Oh, for heavens sake!’ – More on Named Persons

The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian

This post by me is also available at Pink Tape and Local Government Lawyer

Back in 2013, I was asked by the Scottish home education charity Schoolhouse HEA to provide a legal opinion on the proposed scheme to appoint so-called “named persons” to every child in Scotland. I was asked specifically to comment upon its compatibility with EU and human rights law. My opinion was that it was incompatible with both. That opinion can be read on the website of the Scottish Parliament here, and with an attractive full-colour cover on Schoolhouse’s website here.

While pretty much every legally-qualified response to the proposed scheme expressed concerns (e.g. cl@n childlaw (which became an intervener), Faculty of Advocates, Govan Law Centre,  Law Society of Scotland, Kenneth Norrie, Professor of Law, Strathclyde University, Scottish Child Law Centre – each of whom referenced Article 8 specifically), the legislation was nonetheless passed, and legal challenges to the scheme failed in the Scottish Outer and Inner Courts of Session. Thus, the case arrived at the Supreme Court, which issued its judgment today.

When you have begun believing you are simply applying well-established principles, three years of people taking a contrary view is a long time to wait. Continue reading The ‘Named Persons’ Scheme – When Protecting Wellbeing Is Totalitarian

The state of child rights in the UK reviewed

crc_logoThe body which reports on the U.K.’s compliance with the UN Convention on the Rights of the Child is the UN Committee on the Rights of the Child. Its last report was issued last month. While the recent report of the UN Committee on Economic, Social and Cultural Rights received quite a lot of media attention, with its criticisms of UK austerity policies,  children’s rights do not seem to have received the same level of attention.

Meanwhile, children’s rights have been receiving attention in a different way, in recent online exchanges over the last couple of days concerning the Children and Social Work Bill. Specifically,

I am not really convinced by urgings that we should trust civil servants and ministers in relation to children’s rights,  Continue reading The state of child rights in the UK reviewed

Brexit and Beacons

ECHR signatories
Signatories to the European Convention on Human Rights

Hmm… Just a quick one, this.

I heard Lord Lawson of Blaby last night, speaking on the ‘Outcome of the European Union Referendum’. I was very struck by the similarity of the language he used to language used by David Maxwell-Fyfe at the time of the genesis of the European Convention on Human Rights in 1950. (David Maxwell-Fyfe was the U.K.’s Deputy Chief Prosecutor at Nuremberg, and a key negotiator in the Council of Europe after the Second World War, and spoke for the U.K. at the signing ceremony). I wondered whether Lord Lawson was aware of the similarity of language and was deliberately evoking it; but what struck me equally forcefully was how the contexts were almost polar opposites. Continue reading Brexit and Beacons

Vote for what you believe in!

Political Compass

(Image above from the Political Compass website at http://www.politicalcompass.org/uk2015)

It seems to be a recurring theme of this election that we are being asked to vote tactically. We are being told how important it is to keep out parties we don’t want. We are being asked to look ahead and second-guess post-election coalition talks: “vote this colour, and you’ll get that colour”. We are not only told it nationally, we are also told it locally: “in this constituency, the only person who can beat the incumbent is so-and-so”. We are told that a vote for a party that won’t win is a wasted vote.

This is a plea not to vote tactically. Look, if what you really believe in is represented by one of the big parties Continue reading Vote for what you believe in!

Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States

OK, it’s not a pithy title. It is, however, the formal title of the document that I’m about to review. And it is an accurate description of what the document is about. Here it is: http://website-pace.net/documents/10643/1127812/EDOC_Social+services+in+Europe.pdf/dc06054e-2051-49f5-bfbd-31c9c0144a32.

Preliminary points then:

  • I’ve blogged here before with a ‘Briefing paper on non-consensual adoption and the law‘. It included observations on the human rights dimension and on the European dimension. I am pleased to see that this is a Committee of the Council of Europe, saying pretty much exactly the same things as I did.
  • PACE is the Parliamentary Assembly of the Council of Europe, which oversees the European Court of Human Rights. The origins of this report lie in a motion on “abuse by social services of member States of the Council of Europe of their authority to remove children from their parents’ custody” – a history of the progress of this report, including a visit to the United Kingdom, can be found here: http://website-pace.net/documents/10643/59254/RepPrepSOC-E.pdf/1b1d25ac-757f-4916-9c44-9180531dfae6#page=3.
  • This report went to the Parliamentary Assembly last week, and the Assembly adopted the recommendations unanimously.
  • The report expressly considers the practice of non-consensual adoption in the United Kingdom, and frames it within the broader context of practice elsewhere.

Key points from the report Continue reading Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States