CLRI Homework

You are a solicitor working for the Government Legal Services. The Government is considering producing a Bill that would allow the relevant Executive Agency to prevent asylum seekers who have been refused permission to stay in the country from having access to legal advice. The sponsoring Minister is concerned that such a provision might fall foul of Article 6, of the Human Rights Act 1998. Advise her of the powers that a Judge has to issue a Certificate of Incompatibility and the effects that a Certificate of Incompatibility would have on the legislation if one was thus issued. Submitted to Shahariar Sadat

Submitted by Nameera Ahmed 10/21/2013

As a solicitor for the Government Legal Services, ones professional opinion is that there is based on the circumstances at hand a requirement to consider a number of specific points of relevance within the given predicament. The initial point of inference being, the status of the asylum seekers, and subsequently their alleged right to legal advice. Following this would be the existence of such a right pursuant to Article 6 of the Human Rights Act. The status of the asylum seekers, and therefore their alleged right to legal advice: Firstly one may infer from the term to stay of the aforementioned circumstances, that the refugee in question has already been granted entry into the Country thereby, equipping himself/herself with the status of nationals of the receiving country with regard to the civil and convention rights of the said country and therefore, among other rights that to Fair Trial under Article 6 of the European Court of Human Rights [ECHR], thus ensuring free access to the courts, including legal assistance. Existence of such Rights pursuant to Article 6 of the Human Rights Act: Article 6(1) of the Human Rights Act ensures procedural fairness of courts1; here the issue being that lack of access to legal counsel would incompatible with Ds right to a fair hearing under Article 6(1) of the Convention. 2Relevant cases highlight where the courts have clearly depicted lack of counsel as sufficient grounds3 for the invalidation of Article 6(1).4 Furthermore, the Chamber Judgment of Ezeh and Connors v. The United Kingdom5 [100-108], clearly stipulates that decisions in
1

Reid, K. 2004. A practitioner's guide to the European Convention on Human Rights. London: Thomson/Sweet Salduz v Turkey [2008] ECHR 36391/02 [Grand Chamber] (27 November 2008) JOHN MURRAY v. THE UNITED KINGDOM[1996] ECHR 18731/91 [Grand Chamber] [8 February 1996] Panovits v Cyprus [2008] ECHR 4268/04 (11 December 2008) Ezeh and Connors v. The United Kingdom [2002] ECHR 39665/98 [Grand Chamber] (9 October 2003)

& Maxwell.
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regards to access of legal counsel must be subject to judicial control and not be taken by an executive authority.6 Having sufficiently garnered the present issue within the ambit of Convention rights for the refused asylum seekers, we now turn to the topic of ramifications. Here the Powers of a Judge in terms of issuing a Certificate of Incompatibility are deducted followed by the subsequent effects of an issued Certificate of Incompatibility, on the aforementioned piece of legislation. Powers of a Judge in terms of issuing a Certificate of Incompatibility: Where a primary or secondary legislation is to be read as far as it is capable with the rights depicted in the ECHR, as per Section 3 of the Human Rights Act 1998, but is found by the Supreme Court, the Judicial Committee of the Privy Council, the Court Martial Appeal Court, the Court of Appeal or the High Court to be incompatible with one or more of the Convention rights courts are enabled to make a Declaration of Incompatibility (Section 4(1)-(5)).7 Courts contemplating such, must of course serve notice to the Government, allowing the Government the chance to make representations to the court, (Section 5 HRA 1998). Furthermore such a declaration is discretionary and no court is bound to issue such.8

Effects of an issued Certificate on the aforementioned piece of legislation: Fundamentally speaking a Declaration of Incompatibility is merely a statement provided by the Court stating that a persons Convention rights have been

Vitkauskas, D. and Dikov, G. 2012. Protecting the right to a fair trial under the European Convention on Ingman, T. 2000. The English legal process. London: Blackstone. Davis, H. 2007. Human rights law. Oxford [u.a.]: Univ. Press.

Human Rights Council of Europe. Strasbourg: Council of Europe.

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breached.9Prima Facie, any such declaration does not seem to be of any major concern as by their very nature such Declarations are legally non-binding and negative. That is to say not only do they not impugn the Act in question or force the Parliament to enact change, but they also do not require courts to positively specify remedies for the identified incompatibility.10 However, while prima facie such a Declaration has little to no effect, once the provision is determined in the backdrop of practicability we are faced with an entirely different set of circumstances. Firstly, a Declaration of Incompatibility while unenforceable by the National Courts, can, and in all probability will, if unaccompanied by any form of remedy, result in a case being taken to the Strasbourg Courts. Furthermore, such a Declaration while akin to the clipped wings of a bird, in terms of actual power to enforce, does include a certain amount of political power. That is to say such Declarations are capable of endowing immense pressure on the Parliament to change the Legislation, and also create a complex threat against the comity of the three branches of Government, thereby threatening the public respect for Courts. As such, cumulatively while a Declaration of Incompatibility may lack the enforceability of a strike-down power such as that of the United States or Canada, it does generally by means of its political repercussions ensure that generally Declarations of Incompatibility are treated as prompting legislative amendment 11 Also, while Ministers are under no direct obligation in regards to making a remedial order it is within their power to do so.

Gillespie, A. 2007. The English legal system. Oxford: Oxford University Press. Kavanagh, A. 2009. Constitutional review under the UK Human Rights Act . Cambridge, UK: Cambridge Kavanagh, A. 2009. Constitutional review under the UK Human Rights Act . Cambridge, UK: Cambridge

10

University Press.
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University Press.

Conclusively, one may state that ramifications of a Declaration of Incompatibility on the Bill as proposed while legally void carry a significant weight in terms of political repercussions.