Scots, Sumption and Secrets – The Human Rights Roundup

18 January 2012 by Melina Padron

Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

by Melinda Padron

In the news

3 European Court of Human Rights judgments

For the big news of yesterday from Strasbourg, see Adam Wagner’s post – L’Enfant terrible du Strasbourg

North of the border

Constitutional and international lawyers, behold! The issue of a referendum into whether Scotland should become independent from the UK is promising to give you plenty to read and talk about.

There are already a number of pieces on the subject matter, with some of the most interesting ones featuring in the UKCLG Blog and the UKSC Blog. For example, Nick Barber, writing for the UKCLG Blog, discussed whether it should be the UK Parliament or the Scottish Parliament who should hold the referendum, and what role should the UK Parliament play in the process to enable a negotiated transition into independence, should that be the outcome of the vote.

No doubt the next episodes of this story promise to be more gripping than telenovelas, so stay tuned!

Sumption sworn in

Jonathan Sumption QC was sworn in as a Supreme Court Justice on 11th January (he is now Lord Sumption). Although Lord Sumption is one of the very exceptional individuals to be appointed directly from the Bar to the highest court, this has not been the focus of many of the recent articles about him. Instead the focus has been on his stance on judicial review and the boundary between judicial and political-decision making.

Sumption gave a speech at the F A Mann Lecture and an interview to the Times about the subject (entitled “Keep out of politics, top judge warns his peers”, subscription required for access). His opinion has been the target of criticism (see ObiterJ’s post, Roger Smith’s piece for the Law Gazette and Joshua Rozenberg’s article for the Guardian). I am sure lawyers across the UK curiously await his judgments and will watch his work at the Supreme Court with great interest.

Secret justice

In October last year, the Government published the Justice and Security Green Paper which argued for more closed (secret) hearings in civil courts in order to protect sensitive security information. It has been described as a proposal which betrays historic principles of common law pertaining to open justice. As previously mentioned by Adam Wagner, the Paper invited a consultation on the proposals which closed on 6 January.

Joshua Rozenberg remarked that the proposals have been attacked by the very lawyers on whom ministers rely to support the existing system of closed courts: 57 Special Advocates. Rozenberg points out that the SA’s response:

• shows support for the present rules of public interest immunity (where a judge must balance the public interest in withholding information and the public interest in the proper administration of justice – and where material is excluded, it cannot be relied by either party to the case);
• believes we should take note of the arrangements the US adopts in similar circumstances; and
• argues the Green Paper has failed to take into account the practical considerations of extending secret hearings to civil courts.

You can read the SA’s full response to the Green Paper here, or a commentary to the response written by Adam Wagner here. See also Charon QC’s excellent post here.

Remember when President Obama ordered the closure of the Guantanamo Bay detention camp back in 2009? Well, it is now ten years since the detention camp began to hold suspected terrorists and Guantanamo Bay, and it remains very much open. Fiona de Londras, for the Human Rights in Ireland Blog, explores why this is still the case.

If you want to find out more about last week’s legal news, why not read the Latest Human Rights Law Developments in the UK by the LAwThink Blog, or if you want to know what went on in the Leveson Inquiry, read the Inforrm’s Blog roundup of week 6 of the proceedings here.

So long, farewell, auf wiedersehen, goodbye…

Unfortunately, this is my last post as member of the UKHRB team. It has been a great pleasure to participate in this well-accomplished and fantastic initiative. I truly believe the UKHRB has had remarkable success in making human rights law accessible, helping both to develop a human rights culture in the UK and beyond, and to demystify mis/ill-informed human rights reporting in the mainstream media.

I would like to express my gratitude to Adam and the editorial team for their encouragement and support throughout 2011, which has made my work with the blog even more enjoyable.  I would also like to thank all the readers: it is your engagement with this project which makes it so successful.

I wish the UKHRB the best for the future, which will undoubtedly be a successful and enduring one.

Case commentaries

These are some of the interesting case commentaries circulating the blawgosphere:

• Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010: A recent decision by the Upper Tribunal has prompted more press coverage about the abuses of Human Rights Law in the name of Article 8. The factor that has caught the attention of the media is that in an appeal against the refusal of his Tier 4 Student Visa on private life grounds the court gave credence to the appellant’s membership of a local cricket team. Although this was one of many factors, it seems to have raised a legitimate concern with the Human Rights Act. Read Rachit Buch’s commentary to the case in our blog here, and the Mulberry Finch Blog’s commentary here.

• R v Peacock: Michael Peacock was charged under the Obscene Publications Act 1959. He was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock. See Chris Ashford’s commentary to the case as featured in the UKHRB here.

• T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC): Upper Tribunal has decided that section 55 of the Borders, Citizenship and Immigration Act 2009, which establishes a duty to safeguard and promote the welfare of children who are in the UK, does not apply to children outside of the United Kingdom. See the Free Movement Blog’s commentary to the case here.

• AMP v Persons Unknown [2011] EWHC 3454 (TCC) (20 December 2011): Student whose mobile phone containing private sexual images was stolen granted interim injunction preventing images being published on “bit-torrent” sites; also granted anonymity in proceedings under article 8 ECHR / CPR 39.2(4) / Protection from Harassment Act 1997. See commentary to the case by Rosalind English here, and the Telegraph here.

In the courts:

The Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin) (11 January 2012) January 13, 2012

High Court finds there was “widespread unlawful use of restraint’ in child prisons” over 10 years but govt has no duty to inform potential victims to help them bring claims.

BBC and Dominic Casciani v Secretary of State for Justice High Court (Queen’s Bench Division) [2012] EWHC 13 (Admin) January 11, 2012

High Court rules Justice Secretary’s refusal to grant BBC permission to have a face‐to‐face interview with US terrorism extradition target Babar Ahmad was unlawful.

AMP v Persons Unknown [2011] EWHC 3454 (TCC) (20 December 2011) January 10, 2012

Student whose mobile phone containing private sexual images was stolen granted interim injunction preventing images being published on “bit-torrent” sites; also granted anonymity in proceedings under article 8 ECHR / CPR 39.2(4) / Protection from Harassment Act 1997.

Jean PEARSON v the United Kingdom – 40957/07 [2011] ECHR 2319 (13 December 2011) January 4, 2012

European Court of Human Rights: State investigation into death of drug abuser with history of mental health problems was sufficient to satisfy Article 2 ECHR.

Dobson & Ors v Thames Water Utilities Ltd (No 2) [2011] EWHC 3253 (TCC) (08 December 2011) December 28, 2011

Thames Water caused nuisance and breached human rights of residents living next to sewage works who suffered odour and mosquitoes over many years.

The Secretary of State for Justice v RB & Anor [2011] EWCA Civ 1608 (20 December 2011) December 27, 2011