Confusion stalks the land

Confusion at the newly created Equality and Human Rights Commission was the last thing that human rights needed. And yet it got it in spades: qualified accounts; the resignation of six commissioners, including the departure of a chief executive; conflicts of interest; allegations of cronyism. A recent report from the Parliamentary Joint Committee on Human Rights is scathing.

The work of the commission was never going to be easy. The three existing equalities commissions approached the merger with varying levels of commitment and distrust. The integration of new equality strands—age, gender and sexual orientation—was bound to be difficult. Throwing human rights into the mix just made it worse. Bodies like JUSTICE and Liberty historically called for a separate human rights commission, precisely because of the fear that human rights would get swamped by other considerations. So it proved. The Joint Committee profess themselves to be underwhelmed by the commission’s effectiveness since its inception in October 2007.

The commission had much to divert itself from actually carrying out its mandate. The Joint Committee report makes it manifestly clear that Trevor Phillips is a divisive figure. He was re-appointed without contest by Harriet Harman. He is widely seen as a member of the Labour establishment. The report also notes that while eight commissioners are Labour party supporters there are no Conservatives. Such political bias is unhelpful given how politically contentious is the Human Rights Act. The six resigning commissioners argued that Mr Phillips runs the commission as a personal fiefdom.

After the widely respected Nicola Brewer departed as chief executive, the replacement process has been, in the words of the Joint Committee, “leisurely”. Meanwhile, a temporary replacement is working four days a week at £1,000 a day. Mr Phillips gets £112,000 for a three and half day week.

The Joint Committee reports late signs that the commission has woken from its torpor. Let us hope so. Unfortunately, it has set itself up as a target for cuts in any incoming Conservative government.

Going, going, gone

You read it here first (Making a Point, NLJ, 29 January 2010, p 120). The Legal Services Commission is for the chop. Government and the opposition have accepted the recommendations of Sir Ian Magee to this effect.
A wide range of relevant institutions, including the Law Society, seem to have accepted the Magee conclusions. It is undoubtedly true that there has been confusion over policy-making. Sir Ian recommends what is, in effect, the nationalisation of legal services management. The future may, however, not prove all plain sailing. Sir Ian left largely unresolved the issue of how independence of decision-making would be maintained. He accepted that “all feedback has been clear that ministers should not be involved in individual decisions on the granting of legal aid, nor in influencing the way in which individual contracts are operated…All parties accept the need for independence in deciding individual grants…”.

He recommended that independence around individual funding decisions would be preserved and would operate as happens elsewhere in government, for example within Jobcentre Plus or HM Revenue &  Customs. There should be an appropriate appeals process. However, Sir Ian’s analogy with Jobcentre Plus or HMRC would seem questionable. These are bodies that make direct statutory decisions on behalf of the government.

An example of the problems that will arise with Sir Ian’s model is where a prisoner seeks to challenge something related to his imprisonment. In those circumstances, he will wish to sue the secretary of state for justice. His application for legal aid will be considered by—or, at least, by officials acting for—the very same secretary of state. In the event of a refusal on merits grounds, there will be suggestions, real or imaginary, that the secretary of state was pre-disposed to see little in the merits of the claim.

There would be, at least, the appearance of a classic conflict of interest. It is not clear that simply allowing some form of appeal would cure the conflict at the original level of decision-making. JUSTICE has written to ask for more details. Abolition of the commission will, luckily, require primary legislation so that there should be time for reflection.
The Al Quaeda Seven

You may remember the Guildford Four and the Birmingham Six. You may be unfamiliar with the Al Quaeda Seven. Who could they be? The High Command around Osama bin Laden? Well, actually, according to an organisation run by Dick Cheney’s daughter, they turn out to be seven lawyers employed by the US Department of Justice or, as she renames it in a promotional video, the “Department of Jihad”.

The video by Keep America Safe (KAS) is a sad indictment on US politics and the classic confusion of lawyers with their clients. The seven are government lawyers who, in past lives, represented “or advocated for” (some elision there) “terrorist detainees”. KAS was furious because Attorney General Eric Holder initially refused to disclose their names. In fact, when he did, they came as a bit of a disappointment to Ms Cheney. Three of them turn out to have been appointed during her dad’s tenure of office. All seven had impeccable credentials and a number had marginal connection with legal action.

One good result of Ms Cheney’s nasty little video is that, to their credit, a number of senior Republican lawyers—including Bush’s solicitor general—rubbished her effort. Unsurprisingly, Fox News gave it significant coverage until the bottom dropped out of the story.

Roger Smith is director of JUSTICE

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