Super injunctions go supernova – The Human Rights Roundup
3 May 2011
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. The full list of links, updated each day, can be found here.
by Melinda Padron
In the news
It can safely be said that the topic of “super injunctions” has received a lot of media coverage, perhaps second only to the royal wedding.
Firstly the outrage seen in tabloid newspapers and news broadcasts alike was caused by the two injunctions which gagged the media from reporting on the extra marital affairs of an actor and of a footballer. Then adding to the controversy was the decision of the former “gagger” Andrew Marr to break the terms of his own injunction and reveal himself as being responsible from preventing the reporting of his own extra marital affair.
Even David Cameron felt the need to make a statement to express his uneasiness about a privacy law being developed by the courts when it is a task to be dealt with by Parliament. In response to that statement, Peter Willby wrote an excellent article arguing that the press and Parliament need to change their focus from criticising how the courts have had to handle right to privacy issues by the use of super, hyper and possibly even-larger-still injunctions. Willby says that Parliament should instead “get on with [its] job” and provide for a statutory framework, and that the press should be more concerned with providing some constructive support to Parliament in this process.
It is interesting to note that what the press has been referring to as “super injunctions” are in fact ordinary injunctions with an anonymity provision. If the cases they referred to last week involved “super injunctions” (which are reported to be dead), the press would not even have been allowed to report their existence.
Last week’s debate over right to privacy served to remind us not only of the importance of publicity in the achievement of justice, but also of the tension between this value and responsible journalism. The legal blogs have shone during this debate, with detailed and thoughtful coverage which often could not be found in the main stream media.
Lucy Series wrote a great post on The Small Places blog about family and court of protection cases, where this tension is perhaps most evident. For those who want an insight into this new law on the right to privacy, Hugh Tomlinson QC’s three posts which we have reposted from Inforrm’s Blog provide a great outline, an interesting historical background to the law as it stands and a discussion of options for the future.
Carl Gardner’s Head of Legal blog has been consistently challenging John Hemming MP’s campaign against what he calls “hyper” injunctions, and Hemming has repeatedly commented on Gardner’s posts. The most recent post asking whether Hemming has been abusing parliamentary procedure, is here.
Family law barrister Lucy Reed has also posted on Hemming’s actions in the context of his campaign against secret family justice. Her detailed post is well worth a read.
Bill of rights rumbles on
Also in the news last week was the issue of human rights reforms. Nick Barber attempted to establishwhich out of three models the Bill of Rights Commission is supposed to be: if a forum to reach political compromise; a body representing the UK people’s opinion on the HRA’s reform; or a scholarly and empirically driven report on the functioning of the HRA. Kenneth Clark announced that he will be arguing during a Council of Europe conference on the future of the European Court of Human Rights his support to an court which is more deferential to genuine differences of national approach. The tabloid the Sun found a new target in the tirade against European human rights: “greedy [human rights] lawyers”.
Finally, the Panopticon blog reports on an appeal by the All Party Parliamentary Group on Extraordinary Rendition to the Upper Tribunal succeeded in achieving the disclosure of, or significantly more information from the Ministry of Defence on the following: memoranda of understanding between the UK and the governments of Iraq, Afghanistan and the USA regarding the treatment of prisoners detained in the conflicts in Iraq and Afghanistan; a copy of the Detentions Practices Review; and statistics on detainees held in Iraq and Afghanistan.
In the courts:
Catholic Care (Diocese of Leeds) v The Charity Commission for England and Wales, CA/2010/0007, (26 April 2011)
Catholic Care loses appeal against refusal of permission to amend charitable objects to not offer adoption to same sex couples. Discrimination not permitted under Equality Act 2010. This is one of the reported 50 cases being fought by the Christian Legal Centre in US inspired tactic against ‘sidelining’ of people with ‘traditional biblical views’. Our post coming soon on this.
Iorworth HOARE v the United Kingdom – 16261/08 [2011] ECHR 722 (12 April 2011)
Judicial review by BT and Talk Talk of Digital Economy Act succeeds but on limited grounds.
Ismailaj v The Parole Board of England & Wales & Anor [2011] EWHC 1020 (Admin) (20 April 2011)
Man imprisoned for human trafficking was not entitled to oral parole board hearing.
Extradition of alleged murder to France was lawful. Judge right to proceed in absence of defendant, risk of suicide not sufficient to prevent extradition. Interesting issue on link between article 8 and “oppression”.
RK (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 456 (20 April 2011)
Court of appeal sends Zimbabwean asylum case back to tribunal as need more evidence as to whether they would have to lie about political beliefs. Odd obiter points at para 11. See our previous post on asylum seekers and whether they should be forced to hide their (absence of) political beliefs.
…and don’t forget our recent posts:
- Privacy: the way ahead? Part 2 – Hugh Tomlinson QC
- Privacy: the way ahead? Part 1 – Hugh Tomlinson QC April 29, 2011 1 Crown Office Row
- Silence please: A Facebook contempt of court – allegedly April 28, 2011 Isabel McArdle
- Wrongs and rights, more wrangles April 28, 2011Rosalind English
- Luck, human rights and the lottery winning rapist April 27, 2011 Adam Wagner
- Albie Sachs – start with the issues, forget the parties April 27, 2011 David Hart QC
- Ban on religious couple adopting?.. On the naughty step April 26, 2011 Adam Wagner
- Doctors not entitled to be judged by independent panel April 26, 2011 Martin Downs
- What can we do about foreign criminals “using family rights to dodge justice”? April 25, 2011 Adam Wagner
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“Kenneth Clark announced that he will be arguing during a Council of Europe conference on the future of the European Court of Human Rights his support to an court which is more deferential to genuine differences of national approach”.
There appears to be a difference between the MoJ press release (certainly the Daily Mail and Daily Telegraph interpretation of it) and the speech Kenneth Clarke gave at the Izir Conference.
Kenneth Clarke appears to be focusing just on reform of the ECtHR and missing the point that one of the challenges faced by the ECtHR is a failure by some Member States to fully comply with its judgments.
In his speech Kenneth Clarke stated:
“But most fundamentally, the British government thinks that we need to reaffirm that it is individual States and their courts which have primary responsibility for implementing the Convention and granting effective remedies for any violation. In this way, we ensure that our citizens can take full ownership of their rights”.
This is in accordance with the view of the Council of Europe, Court and other Member States. However, there is a clash between the subsidiarity principle and the idea of sovereignty. Unless the UK fully accepts that human rights are universal, and that means that there is no place for a British Bill of Rights of a lesser standard the UK is heading for a clash with Strasbourg and Brussels and the UN.