On 30 January, the Supreme Court (Lords Phillips, Brown, Kerr, Dyson and Wilson) will hear the case of PP (Algeria) v Secretary of State for the Home Department (formerly VV (Jordan) and PP (Algeria) v Secretary of State for the Home Department).

The background to the appeal

The appellants are Algerian or Jordanian foreign nationals. The Secretary of State seeks to deport them on the basis of national security. They claim that, if deported to their countries of origin, they will be at risk of torture, and that their deportation would therefore violate the United Kingdom’s obligations under Article 3 of the ECHR.

Each of the appellants has challenged their deportation before the Special Immigration Appeals Commission (“SIAC”). SIAC was set up by the Special Immigration Appeals Act 1997. This followed the decision in Chahal v United Kingdom [1996] 23 EHRR 413, where the European Court of Human Rights held that the previous system for challenging deportation in national security cases breached Article 5(4) of the Convention. Appeals were not heard by an independent tribunal, but by a shadowy ‘advisory panel’.

SIAC was set up to give people in this situation a Convention-compliant remedy. Still, the 1997 Act provided for a procedure which departed considerably from generally accepted notions of a fair hearing, empowering the Secretary of State to make rules, among other things “enabling proceedings before the Commission to take place without the appellant being given full particulars of the reasons for the decision which is the subject of the appeal” (s.3(a)) and “enabling the Commission to hold proceedings in the absence of any person, including the appellant and any legal representative appointed by him” (s.3(b)). Such rules are now contained in the Special Immigration Appeals Commission (Procedure) Rules 2003, as amended.

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David Cameron this week warned that the European Court of Human Rights is in danger of turning into a “small claims court” that fails to deal with serious violations of human rights, unless it embarks on reforms. While Cameron praised the principles of the court, he said that it was undermining its reputation by unnecessarily overturning judgments reached in credible national courts. Cameron suggested a number of reforms which will be discussed at a ministerial conference in Brighton in April.

Cameron’s comments drew a substantial response, in The Guardian Francesca Klug retorted “So which of these UK cases validates the prime minister’s claim that Strasbourg has been acting like a “small claims court”? When journalists were forced to reveal sources; when police could stop and search any of us without suspicion in a designated area; when innocent people’s DNA was retained indefinitely; when social services failed to act on complaints of child abuse; when foreign terror suspects were detained indefinitely without charge or trial?” Sir Nicholas Bratza, the ECHR president warned political leaders against using “emotion and exaggeration” to criticise the court’s workings. The president made his comments as he released figures detailing the court’s rulings during 2011. The figures reveal that the court ruled against the UK on just eight occasions, compared with 159 violations found against Turkey, 121 against Russia and 105 against Ukraine.

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The constitutional issues arising from the Scotland Bill did not command huge interest from all citizens of Scotland. That was until, of course, Scottish and UK politics became melded into a fight about referenda – who holds it, when and what questions are posed. These have all become the lingua scotia with the mingling of political expedience, polled outcomes and questions of principle. Up until the referendum question burst onto the scene, the Scotland Bill attracted interest, in the main, from lawyers, especially Scottish criminal lawyers. The proposed changes to the scheme of devolution, and most importantly the definition of ‘devolution issues’, was as good as it got. That was not without controversy, especially in light of the comments of Nationalist politicians about the role of the Supreme Court doubting its very existence in the new devolution scheme. The Supreme Court’s decision in Cadder v HM Advocate inspired a great deal of controversy.

In November 2010 an Expert Group, appointed by the Advocate General for Scotland, completed its task to look at the basis of the Supreme Court’s involvement in Scottish criminal cases and – a real focus for many of its consultees – the cumbersome procedure that goes along with the raising of a ‘devolution issue’. The report of the Advocate General’s Expert Group can be read here. It favoured the retention of the jurisdiction but in a refined way – seeking to streamline the procedural route to the Supreme Court and highlighting what it thought was the ‘inept’ treatment in the Scotland Act of the role of the Lord Advocate

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On 17 to 19 January 2012, the Supreme Court heard an appeal in the case of Homer v Chief Constable of West Yorkshire Police and Seldon v Clarkson Wright and Jakes. This case concerned a 61 year old employee who alleged that he was indirectly discriminated against on the grounds of age by the introduction of a policy in his workplace that stipulated that those employed in its top tier should have a degree; which the claimant did not have and was unable for reasons of timing to obtain before he retired.

The central issue to be considered by the Supreme Court was whether the Court of Appeal came to the wrong conclusion in determining that the introduction of this policy – and the “particular disadvantage” at which it put the claimant – did not indirectly discriminate against the Claimant on the grounds of his age, but simply put him at the disadvantage because he was due to retire soon; part of the “general unfairness of age”. [read more]

First Minister Alex Salmond will give the annual Hugo Young lecture tonight, on the topic of Scottish independence and constitutional change. In light of the current debate, the UKSC Blog will be posting a series of pieces this week on the Supreme Court and Scotland, the first of which is below.

Conrad Russell once observed that the essential problem of the relationship between Scotland and England “could be defined by saying that England could brook no equal, and Scotland no superior.” (James VI and I and his English Parliaments (2011) at 124)  Russell described the eventual Parliamentary Union between the two countries thus (ibid. at 126-7):

“In 1707 the English got the unitary sovereign power which they wanted and got it in the form based upon the existing English parliament, with an English majority within it.  The Scots got their recognition as a separate sovereign State, both from the form of the Union of 1707 as an international treaty, and from the survival of Scots law and the Scottish church.  It is that claim that Scotland is a sovereign nation state which is reasserted whenever the English forget that 1707 was not a ‘perfect Union’….   Scotland in accepting the Union in 1707 remained a nation and as a result any sovereignty in the British parliament could not be national sovereignty.  This has always been hard for the English to understand.” [1]

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Scheduled over two days from Monday 23 January 2012 in the Supreme Court was the appeal of Electromagnetic Geoservices AS v Schlumburger Holdings Ltd, but this has settled. On Wednesday 25 January 2012 is the half-day directions hearing of Stanford International Bank Limited (acting by its joint liquidators) v Director of the Serious Fraud Office. It is for Lords Phillips, Brown and Kerr to determine whether there is an automatic right to appeal. The respondent has also sought leave to cross-appeal. The matter concerns a restraint order obtained by the SFO at the request of the US authorities over the English assets of an Antiguan bank which was allegedly involved in a Ponzi scheme.

In the Privy Council starting on Wednesday 25 January 2012 in front of Lady Hale and Lords Hope, Mance, Clarke and Dyson is the matter of Dylan Simon v Manuel Paul Helmot, on appeal from the Court of Appeal of Guernsey. The respondent suffered significant injuries when he was stuck by a car driven by the appellant whilst riding his bicycle, and now requires 24 hour care. His mother and her partner are his guardians and next friends for the litigation. The Judicial Committee is to decide the discount rate to be applied to lump sum awards for damages for future losses in personal injury claims. Case details are available here.

There are no judgments to be handed down this week.

The following Supreme Court judgments remain outstanding:

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The head of the Scottish Judiciary, Lord Hamilton,  has written his submission to the Scotland Bill consultation. The President made two main submissions with regard to the role of the Supreme Court in Scottish cases:

“(1)   to extend the jurisdiction of the Supreme Court in Scottish criminal appeals and references to the remedying of infringements by the courts below as well as by the prosecutor; but

(2)   to restrict those cases in which leave may be granted to appeal to the Supreme Court from the High Court of Justiciary to cases in which the High Court has certified that a point of law of general public importance is involved in the decision.

As to (2), the Court of Criminal Appeal in England and Wales and the equivalent court in Northern Ireland have long had a certification procedure which has proved to be valuable.  The Lord President wishes to secure a similar provision for the High Court in Scotland.”

The debate over the role of the Supreme Court’s role in Scottish cases is a result of the Cadder judgment in October 2010, on the rights of suspects to legal representation in Scotland.

The role of the Supreme Court in Scottish cases has become something of a political football, and in June Alex Salmond launched an attack on the Supreme Court. It is likely that Lord Hamilton’s recommendations will add further fuel to an already heated debate.

Over the past couple of weeks I’ve been reading Penny Darbyshire’s new book Sitting in Judgment: The Working Lives of Judges (Hart, 2011), with the intention of reviewing it here for the UKSC Blog (full review to follow in due course!).

Sitting in Judgment provides extensive qualitative research into the working practices, outlooks and backgrounds of judges, at all levels. She seeks to ‘debunk’ some of the myths about and stereotypes of judges, or at least to give an insight into the real ‘texture’ of judges and the daily life of judging.

Stereotypes of the judiciary are common (see, for example, the comments section to our post here “Might be a different story if the Judges had ever sampled just one hard day[']s work in muck and dust”) and the hypothesis is that the supposed shared educational and socio-economic backgrounds of judges will lead to certain kinds of judgments (eg, JAG Griffith: “When people like the members of the judiciary, broadly homogeneous in character, are faced with . . . political situations, they act in broadly similar ways  . . . . Behind these actions lies a unifying attitude of mind, a political position, which is primarily concerned to protect and conserve certain values and institutions.” The Politics of the Judiciary, (1991) 4^th Edn, p.19).

These issues are often in the background to the present debates about how judges should be appointed and so-called judicial law-making.

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Starting on Tuesday 17 January 2012 in the Supreme Court is the three day hearing of the linked appeals of Homer v Chief Constable of West Yorkshire Police and Seldon v Clarkson Wright and Jakes (A Partnership). In Homer the appellant employee of the Police National Legal Database cannot be eligible for the highest salary tier following restructuring of pay grades as they now require the employee to hold a law degree. The Supreme Court is to determine the correct interpretation of “particular disadvantage” in regards to Regulation 3(1)(b)(i) of the Employment Equality (Age) Regulations 2006 in light of the respective difficulty the appellant would have obtaining a law degree at 61 compared with younger colleagues. In Seldon the issue is to define the correct approach to justification of prima facie direct age discrimination contrary to Regulation 3, where the appellant partner of the respondent solicitors firm was compulsorily retired following his 65th birthday in accordance with the terms of the partnership deed. These appeals from the Court of Appeal (Civ) will be heard by Lady Hale and Lords Hope, Brown, Mance and Kerr.

In the Privy Council on Tuesday 17 January 2012 is the appeal from the Court of Appeal of St Christopher and Nevis of E Anthony Ross v Bank of Commerce Trust and Savings Association Ltd. A bench of Lords Phillips, Walker, Clarke, Dyson and Wilson is to determine whether the appellant’s certificates of deposit are recoverable from the respondent bank, which is in liquidation. Case details are not available.

There are no judgments to be handed down this week.

The following Supreme Court judgments remain outstanding:

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Introduction

Jonathan Philip Chadwick Sumption was born on 9 December 1948 to Anthony Sumption, a decorated Naval Officer turned barrister, and Hilda Hedigan. Eton-educated, he graduated from Magdalen College, Oxford in 1970 with first-class honours in History. Lord Sumption’s original aspirations did not tend towards the legal profession: after graduating he went on to specialise in the medieval period, tutoring history at Oxford and publishing a book on the Middle Ages. He also considered pursuing a career in politics.   [read more]