Prisoner voting, Bratza’s replacement and peaceful protest – The Human Rights Roundup

“I believe that it should be a matter for parliament to decide, not a foreign court.”

Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.

The biggest news of the week this week was the decision of the European Court of Human Rights in the Scoppola v Italy case; the latest in the long-running prisoner voting saga. The Court refused to overrule its 2005 decision in Hirst No. 2 but also found that proportionality does not require individual determination by a judge on a case by case basis. There was predictable anger from the tabloid press plus some more cogent articles, some of which have been set out below.

In the news

Prisoner voting

The European Court of Human Rights issued its long-awaited decision in Scoppola v Italy this week. The UK had been permitted to postpone its implementation of Hirst until this judgment was handed down and so it now has six months to do so. A number of blogs have posted on this topic.

Joshua Rozenberg wrote a piece in the Guardian this week before the judgment was announced, discussing the dialogue between the UK and Strasbourg and the role of the Commission on a Bill of Rights. Of the post-judgment commentary, see Adam Wagner’s comprehensive post for the UKHRB  here which sets out the reasoning and discusses the consequences for the UK of non-compliance, as well as suggesting a third way for the Government. Marko Milanovic has written a very thoughtful piece on the EJIL: Talk blog that is well worth a read. For those who would like to know what the tabloid papers have to say about the judgment but don’t actually want to read them, Obiter J has conveniently picked the most lurid headlines and included them in his blog here.

David Davis and Jack Straw have jointly written a bold piece in the Telegraph, declaring “we must defy Strasbourg on prisoner votes”. They dispute the assertion that because the UK has accepted the jurisdiction of the Strasbourg Court, it must obey all its decisions. They allege that there would be no penalties for non-compliance, stating that Britain cannot be forced to give prisoners the vote or to pay compensation to prisoners who sue the Government over this issue, and that the Court does not have the power to fine Britain for non-compliance. They also consider it unlikely that the UK would be expelled from the Council of Europe for non-compliance, citing the examples of Bulgaria, Moldova and Russia, who have not been expelled for much worse breaches of the Convention.

The Economist has also written on this issue as has Carl Gardner on the Head of Legal blog, which is recommended for those who want to know exactly what the judgment says and how it distinguished itself from Hirst. There is another article from the Guardian, this time after the judgment was handed down. This reveals that government sources have stated that a concession by the court giving each state discretion on how to implement the ban will allow them to report back every year for an indefinite period on how the process is going, thus allowing Cameron to dodge the issue for the duration of his time in Downing Street. Finally, Reuven Ziegler makes the case in the UKHRB for allowing prisoners to vote – recommended.

Justice and Security Bill this week?

The controversial Justice and Security Bill is likely to be published this week, possibly as early as Tuesday. The Government is looking to expand the use of “Closed Material Procedures” – secret court hearings – into the civil courts. We will of course be analysing the Bill; see Adam Wagner’s post for the background. A secret justice climb down? Perhaps not

What happened to peaceful protest?

David Mead has written an excellent article on the fact that the right to dissent and to protest has almost disappeared from the political map. He asks why the same respect is not accorded to the right to protest as to freedom of speech, noting in particular the amount of press coverage given to libel law and suggesting that this may be because libel law naturally affects newspapers directly. He also points out the beating the right to protest has taken, from Strasbourg (Austin v UK) as well as at home (Moos and McClure) and noted the thorny issue of finding physical space to hold a protest with the increasing commercialisation of formerly public land. Well worth a read.

Torture victims under detention

The Mulberry Finch Blog has posted this week on the holding of torture victims by the UK Border Authority (“UKBA”) and its failure to follow its own policy on this matter, suggesting that either the UKBA gets its act together and implements carefully thought out procedures or risk not only breaching domestic law, but also the European Convention on Human Rights.

Refugees and the meaning of “contrary to the purposes and principles of  the UN”

Joanna Buckley posts on the Supreme Court blog on the two cases heard this week concerning the interpretation and application of article 1F(c) of the 1951 Geneva Convention Relating to the Status of Refugees, which states that the provisions of the Convention will not apply to any person with respect to whom there are serious reasons for considering that “…he has been guilty of acts contrary to the purposes and principles of the United Nations.”  Watch this space.

Gay marriage

Geraldine Morris on the Halsbury’s Law Exchange blog discusses the backtracking of the Government on this issue, and noted the incongruity in the legislation treating civil partners in the same way as married spouses upon the breakdown of their relationship (further to the judgment in Lawrence v Gallagher [2012] 1 FCR 557) but not at the commencement of their relationship.

Next British judge in Strasbourg

The process of choosing a replacement for Sir Nicholas Bratza has begun, with the names and CVs of 3 candidates having been put forward – these are Raquel Agnello QC, Paul Mahoney and Ben Emmerson QC. The ECHR blog has posted on this as has Adam Wagner on the UKHRB. He notes that if MPs really wanted to improve democratic accountability, they would hold public appointment hearings where the British public could scrutinise the process and in the process become more knowledgeable about the Court and less susceptible to the claims made in papers such as the Daily Mail.

Dishonesty in entry applications

More from Mulberry Finch, this time on the ruling from an Upper Tribunal that, where an application for entry clearance is “marred by dishonesty” – whether in the applicant’s knowledge or not and even where the applicant is presently eligible for entry – it is not a disproportionate response for the Home Secretary to refuse the application, even in light of the Article 8 ECHR right to family life.

FOIA requests and the Iraq war

Panopticon has published a post on the recent decision in Plowden and FCO v Information Commissioner EA/2011/0225 and 0228 which concerned a FOIA request for the record of a telephone conversation that took place on 12th March 2003 between President Bush and Mr. Blair.  The Tribunal largely upheld the ICO’s decision notice, and ordered that part of the record should be disclosed.

And finally…

Hot off the presses is the first part of Charon QC’s excellent new Blawg Review, rounding up the best of UK legal blogging.

In the courts

Scoppola v Italy (No. 3) – 126/05 [2012] ECHR 868 (22 May 2012). ECtHR Grand Chamber rules that automatic and indiscriminate disenfranchisement of prisoners is unlawful but that it is up to individual states how to implement changes where such a ban exists.

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