Police, Protests and other Hot Potatoes- the Human Rights Roundup

4 April 2011 by Melina Padron

It’s time for the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts.

by Melinda Padron

Last week the UKHRB celebrated its 1st birthday! Rosalind English wrote a commemorative piece revealing which posts of the past year have pleased our readers the most.

In the news last week we saw the government’s response to the 26 March cuts protests. The Law and Lawyers blog discussed Theresa May’s announcement that the Home Office is looking into increasing police powers in relation to police protests. Measures could include banning the wearing of masks or balaclavas, and banning known hooligans from participating in rallies and marches – a practice already adopted to combat football hooliganism. The article also highlighted how the massive protest of 26 March did not seem to be calling for a general election, despite the prospect of the Fixed Term Parliament Bill becoming law in the near future. The Bill would fix the date of the next general election at 7 May 2015, as well as make it very difficult for a general election to be called prior to this designated date.

Another government announcement this week related to the decision to implement Lord Justice Jackson’s proposals of reform of civil litigation funding and costs in England and Wales. Inforrm’s Blog was of the opinion that the announcement was, amongst other things, a success for the media campaign against the current regime of defamation and privacy conditional fee agreements (CFAs).

Last week the Lord Chief Justice passed the European human rights hot potato back to Parliament by blaming politicians for human rights rulings, or at least for asking the courts to make them in the first place.

Want to find out about the latest human rights developments in the UK (in particular those discussed in the Houses of Parliament)? See Law Think’s summary of what took place on the week commencing 21 March, and their roundup published today..

Also in the news were commentaries to the judgments of three different cases.

First, Carl Gardner, of Head of Legal, wrote about the superinjunction granted in the case of ZAM v CFW & TFW. The injunction was aimed at preventing the publication of the identity of the claimant (ZAM) and the allegations made about that individual. He explains why in this instance the courts have not gone “censorship mad”. First, because ZAM did not seek an injunction which prevents the reporting of the granting of the injunction itself, and second, because there appears to be strong evidence that the allegations made against ZAM are defamatory.

Second, this week the Supreme Court ruled in the case of Jones v Kaney that expert witnesses are no longer immune from civil suits. In the UKSC Blog, Clare Montgomery QC analyses the different policy justifications for the decisions of the majority and minority in the House of Lords. Whilst the majority were concerned with the principle by which ‘where there is a wrong, there is a remedy’, the minority were clearly conscious of the effects this decision would have on the integrity of judicial evidence gathering processes. It remains to be seen whether this is where the decision ends, or whether it is just the beginning of a change in approach to the immunity of participants in judicial processes. See Rosalind English’s report on the decision here.

Third, the judgment of the ECtHR’s Grand Chamber in Lautsi v Italy was analysed by the 11KBW education law blog. The Grand Chamber decided that the displaying of crucifixes in public schools was not a violation of Article 9 ECHR and Article 2 (Protocol 1) to the ECHR. The blog post praises Italy and its Supreme Court’s “sufficiently robust response to errant holdings” of the ECtHR which arguably led to the reversal of the previous judgment. The commentary also favours the Italian attitude over the UK Supreme Court’s more deferential approach mainly based on rigorous forensic analysis of the ECtHR’s jurisprudence.

It is perfectly understandable for states to expect that the ECtHR will give them a margin of appreciation (in non-legal terms, a margin of discretion) to deal with similarly delicate subject-matters. The granting of such discretion by the Court can be achieved by the usual judicial means, just as it happened in Lautsi with the unprecedented number of third party interventions. Within the boundaries of the Convention, the Court often does allow states such margin of discretion.

It is however a different thing for states to take such a “robust” approach and to reject decisions of the ECtHR every time they believe the decision is wrong. Arguably such behaviour is counter-productive and defeats the purpose of having a court established to supervise states’ compliance with the ECHR, something which will inevitably lead to unsavoury (albeit not necessarily wrong) decisions from time to time.

In the courts:

The Mayor of London v. Brian Haw & others [2011] EWHC 585 (QB)

The High Court has ruled that it would not be a breach of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) to grant a possession order in respect of Parliament Square Gardens (“PSG”) and an injunction compelling protesters to dismantle and remove all tents and other structures erected on PSG. The potential effect of this might be to remove Brian Haw, the peace campaigner who has been protesting almost non-stop outside Parliament for the best part of a decade. See Alasdair Henderson’s post on our blog for a more detailed account of the judgment.

And don’t forget our recent posts…

• Happy first birthday! March 31, 2011 Rosalind English
• Expert witnesses no longer immune from being sued March 30, 2011 Rosalind English
• Purpose, policy and publication: Analysis of Lumba ruling March 30, 2011 Rosalind English
• Open justice and crosses to bear – The Human Rights Roundup March 29, 2011 Graeme Hall
• Squaring equality with religion – Aidan O’Neill QC March 29, 2011 1 Crown Office Row
• Reform of Strasbourg Court: a modest proposal – Aidan O’Neill QC March 28, 2011 1 Crown Office Row
• Blow to Parliament Square protest camp March 28, 2011 Alasdair Henderson
• Benefits tourism in the EU – Analysis March 25, 2011 Rosalind English