Missiles, Neuberger’s triumph and a snooper’s charter – The Human Rights Roundup

16 July 2012 by Sam Murrant

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.

In the news

Lord Neuberger is to be our next Supreme Court President, replacing Lord Philips who is retiring and pipping rival candidates Lady Hale and Lord Mance. In other news, some interesting cases were decided this week, including the Catholic Church’s loss in a vicarious liability case in the Court of Appeal, and the residents of the Fred Wigg Tower lose their judicial review action challenging the decision to put a missile defence system atop the building for the Olympics. We also have more law reform updates, as the Commission for a Bill of Rights published its second consultation paper, the House of Lords debated the ever-controversial Justice and Security Bill, and a commentator provided an illuminating and worrying discussion of the “snooper’s charter”, the Draft Communications Bill.

New UKSC President: Lord Neuberger

The current Master of the Rolls (the second most senior judge in the UK) is to take the top spot this year – Lord Neuberger of Abbotsbury will be sworn in as President of the Supreme Court in a special ceremony on October 1st. Read more in this UKSC press release. The decision has generated some commentary in the Guardian: Joshua Rozenberg’s article discussed the relative merits of each candidate (focusing mainly on Lord Neuberger and Lady Hale) and set out his interpretation of the new President’s ethos (Lord Neuberger is a strong supporter of Parliamentary Sovereignty); Owen Bowcott also weighed in, emphasising some of Lord Neuberger’s more “liberal” aspects.

We have posted on Lord Neuberger a number of times, see e.g.:

• When their Lordships open their mouths extra-judicially
• A manifesto for 21st century open justice
• New head of Court of Appeal making waves on civil liberties
• Libel reform debate hots up as new Government takes advice on reform

The Olympic Missile Case

This week, the residents of the Fred Wigg Tower failed in their judicial review action of the decision of the Secretary of State to house a GBAD (Ground Based Air Defence) missile defence system atop their building to protect Olympic Park from terrorist threats. The applicants based their action on the threat to their building as a result of the installation – though the judge (not to mention the Secretary of State) disagreed, considering the risk to be negligible and the decision proportionate and justified under the UK’s Article 2 duty to protect human life at Olympic Park (even if the interference with the residents’ Article 8 rights was considered substantial, which it wasn’t). For more detail on this decision, see David Hart QC’s post on UKHRB, and the BBC News article on the decision, here.

Catholic Church loses vicarious liability case for sexual abuse by priest

Finally, it was decided by the Court of Appeal this week (upholding an earlier decision of the High Court) that the principles of vicarious liability for harm inflicted by employees could be extended to relationships sufficiently close to employment in character as to make vicarious liability “just and equitable”. 1 Crown Office Row’s Lizanne Gumbel QC and Justin Levinson represented the successful claimant/respondent. Dan Barnett, posting on his Employment Law Blog, helpfully summarised the criteria a court will take into account in deciding where there will be vicarious liability:

• the control the organisation had over the individual;
• whether the individual performed a core function of the organisation;
• whether the individual was integrated into the organisation and
• whether the individual was in business for themselves.

The decision itself made a Bishop liable for sexual abuse committed against the claimant by a priest in his diocese (not an employee of the Bishop). This is of course a great victory for victims of such abuse, as pointed out in the BBC News article on this case, but outside the context of Bishops and abusive priests may amount to an over-extension of liability – under the above guidelines, it is possible to hold (for example) a charity liable for harm caused by a volunteer.

Secret trials

The latest round of debate on the Justice and Security Bill in the House of Lords took place this week; UKHRB has a summary of the debate, helpfully provided by the Shadow Attorney-General and Carla Reeve.

The thrust of the discussion in the House was related to the differences between the existing Public Interest Immunity procedure and the proposed Closed Material Procedure under the Bill, and what relationship the two should have. Angela Patrick, posting for UKHRB, has helpfully summarised the amendments the House is working towards in these debates: CMP as a “last resort”, the ability of the judge to decide whether CMP is used, protection of UK spies and the role of the Special Advocates. The debate has also sparked more commentary in the Guardian – Shami Chakrabarti wrote an article reiterating the by now familiar arguments against the Government’s proposals (and pointing out their general unpopularity with, it seems, everyone except Ken Clarke).

Bill of Rights Commission releases Second Consultation Paper

The Consultation Paper itself can be found here. It lays out some of the ideas that are currently being considered, and asks for responses to further shape the Commission’s recommendations to the Government. In particular, the Paper focuses on the tension between Parliamentary Sovereignty and the Human Rights Act, and whether the Bill of Rights (if there is to be one) should incorporate the ECHR rights, or extend them to include socio-economic and environmental rights (among others). Adam Wagner wrote a post on UKHRB this week about the consultation paper, considering it to be more helpful and substantial than the first attempt,but that the Commission’s attempt to get the public involved in the process is too little, too late if the Commission’s recommendations are to be reported to the government by the end of 2012.

Draft Communications Bill – the “snooper’s charter”

Among the controversial new legislation being proposed by the Coalition, the Justice and Security Bill has received the lion’s share of spotlight, but there is another, perhaps more more insidious statute to be aware of: the Draft Communications Bill, which hasn’t enjoyed the same level of commentary. Dr Paul Bernal, writing for the UK Constitutional Law Group Blog, discussed the proposals of this Bill this week in his post. The Bill allows for essentially universal surveillance of online activity (as accessing websites counts as “telecommunication”), which potentially violates not only Article 8 ECHR, but also the right to freedom of thought and conscience (Art. 9), the right to freedom of expression (Art. 10), the right to peaceful assembly (Art. 11) and even the right not to be discriminated against (Art. 14). This is because the collection of so much online data may allow for accurate mathematical “profiling” of individuals’ habits, preferences and even race.

In the courts

• MK & Anor v Secretary of State for the Home Department & Anor [2012] EWHC 1896 (Admin) Failed asylum seekers should be able to apply for housing support whilst making fresh applications. The policy preventing them applying for support before their asylum applications were decided was held to be unlawful.
• Harrow Community Support Ltd v The Secretary of State for Defence [2012] EWHC 1921 (Admin) Decision to put missile defence system on residential towerblock during Olympics lawful & not a breach of Article 8 ECHR.
• BA & Ors v Secretary of State for the Home Department [2012] EWCA Civ 944 Court of Appeal held that a person in detention pending removal can challenge removal by judicial review & bring a separate damages claim.
• ANS & Anor v ML [2012] UKSC 30 Supreme Court: Scottish law allowing adoption orders to be made without parent’s consent is compatible with Article 8 ECHR.
• JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 Court of Appeal held (by 2-1 majority) that the High Court was right to find that a Bishop can be vicariously liable for the sexual abuse committed by a priest within that Bishop’s diocese (despite a lack of an actual employer-employee relationship, as is usually necessary for vicarious liability)
• Hussain, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin) Refusal of leave to remain to Sudanese hijacker unlawful due to failure to consider other hijackers’ cases or risk upon return. Decision quashed and remitted back to Secretary of State.
• Ali & Anor, R (on the application of) v Minister for the Cabinet Office the Statistics Board [2012] EWHC 1943 (Admin) Article 8 challenge to 2011 census fails in High Court.

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UKHRB Posts

• Locals’ Olympic missile site challenge rejected July 13, 2012 David Hart QC
• Lords “Reform” – The Justice and security Bill – Angela Patrick July 12, 2012 1 Crown Office Row
• No duty to snitch on another EU country’s asylum conditions July 11, 2012 Rosalind English
• Second time lucky? Bill of Rights Commission consults… again July 11, 2012 Adam Wagner
• Care system failures breach children’s human rights July 10, 2012 Alastair Henderson
• Can a state-owned company be a “victim” of human rights violations? July 10, 2012 Rosalind English
• How most Australians do human rights without a Human Rights Act July 9, 2012 David Hart QC
• Supreme Court dismisses self-incrimination appeal July 9, 2012 1 Crown Office Row

by Sam Murrant