Abu Qatada, Facebook at work and prisoner votes – The Human Rights Roundup

This is the first post by the blog’s new rounder-uppper Daniel Isenberg, who joins Sam Murrant. Welcome, Daniel! 

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.

This week’s human rights news was dominated by the man who has become the Home Secretary’s bête noire, Abu Qatada.  Elsewhere the UK’s relationship with the Strasbourg Court was addressed by Jack Straw and the Court’s recently-retired President, whilst the Court, itself, criticised the UK’s policy on criminal records data retention.  Meanwhile, in speeches two Court of Appeal judges have made expressed views on human rights and the principle of proportionality.

In the news

Abu Qatada

The issuing of the Abu Qatada judgment this week by the was always likely to dominate the headlines, with the semi-secret court holding that the suspected terrorist cannot be deported to Jordan as he would face a real risk of an unfair trial; specifically, that evidence obtained under torture could be used against him.  Issues from the Abu Qatada case have been examined on this blog this week by Rosalind English, Jim Duffy and Adam Wagner.

The BBC reports the Prime Minister’s frustration at the decision, as well as the intent to appeal and “do everything we can to make sure that we do have the power to expel and deport people from our country who have no right to be there and mean us harm”.

However, Francis FitzGibbon QC on ‘The Justice Gap’ warns against a change in the law based on the Qatada case.  Carl Gardner on the Head of Legal blog postulates as to what may happen next in what has become the Abu Qatada saga, suggesting an appeal of the decision; the imposition of a ‘Terrorism Prevention and Investigation Measure’ (TPIM); and the seeking of further assurances from the Jordanians.

The future of this case is also covered in Charon QC’s recent podcast on the issue, which looks at whether this case strengthens the arguments of those who would like to see a British withdrawal from the ECHR.  For a pithier view of the arguments for and against ignoring SIAC’s ruling, try the Independent’s debate on the issue.

UK & Strasbourg

The relationship between the UK and the European Court of Human Rights remains in the fore, particularly as the deadline for the UK government to “bring forward legislative proposals” on prisoners votes approaches this Thursday 22 November – see Adam’s post for more.

Jack Straw and the recently-retired President of the Strasbourg court, Sir Nicolas Bratza made speeches on the topic last week, picked up by Joshua Rozenberg in The Guardian.  Whilst the former Lord Chancellor was calling on Strasbourg to cease its “jurisdictional expansion”, Sir Nicolas was more defensive of the Court, reminding his listeners of its international, rather than foreign nature; of the obligation of signatory nations to abide by its judgments; and the damage done to the UK internationally by ongoing criticism of Strasbourg.

Interestingly, the Court heard an important case this week about whether someone should be presumed innocent once their conviction has been quashed.  Lorraine Allen has been unsuccessful in her domestic litigation, and success in Strasbourg could be costly for the government.

Wisdom from the Bench

A couple of speeches made by Court of Appeal judges were published this week.  Firstly, Lord Justice Laws’ inaugural Eldon Lecture at Northumbria University examines the question: ‘Do human rights make bad citizens?’. He focuses on the proposition that the language of rights has hijacked the language of morals; the doctrine of proportionality in public law; and what he terms ‘the principle of minimal interference’.

Lord Justice Laws’ second point is picked up by Lady Justice Arden in the annual address to the UK Association for European Law.  Particularly interesting is her view that the concept of proportionality could replace that of ‘unreasonableness’ in UK public law.

Case Comments

Three case comments of note this week: the first by Libby Payne of Olswang on the UKSC blog regarding equal pay claims brought before the Employment Tribunal.  Ms Payne looks at the various consequences of extending the time limit for bringing equal pay claims, as suggested by Lord Wilson in his judgment.

Second up is more on the BNP bus driver mentioned by Sam in last week’s roundup.  George Letsas provides the background to this case and welcomes the view of the European Court of Human Rights in protecting political views as much as religious ones; even those views which are not compatible with the ECHR.

Finally, Bianca Venkata picks up on the UK’s inability to legislate in the area of its national voting rules without regard for freedom of movement in her case comment.  Whilst the Court of Appeal dismissed Mr Preston’s appeal against the 15 year rule, she notes that a one month rule would have been considered a deprivation of freedom of movement.

Lawyers, the Law & Social Media

The BBC has reported the success in court of a Christian who had been demoted at work following a comment he made on Facebook that gay marriage was an “equality too far”. The full judgment is here

On a broader footing, Conor Gearty this week has considered how public lawyers should be engaging with social media, noting the opportunity to interact with a wider audience in a simpler and more direct manner.  Yet, he warns of the constant and unrelenting Twitter-world, compared with the old-fashioned, library-based gradual accumulation of expertise.

Also in the News

Finally, this week the Joint Committee on Human Rights published its legislative scrutiny of the Justice and Security Bill, with a useful summary of highlights here.  The ObiterJ blog also provides some useful background to a Supreme Court decision expected this week on vicarious liability in tort, as well as his prediction that the judgment will impose “tight boundaries” on the concept so people are clear about their liability.

In the courts

Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) (16 November 2012): Housing trust worker was wrongfully dismissed after he posted privately on Facebook that gay marriage would be an “equality too far”

R v Jackson [currently unreported] Court of Appeal rules that banning someone from the internet under a sexual offences prevention order (SOPO) is “unreasonable”.

H v Finland – 37359/09 – HEJUD [2012] ECHR 1916 – Strasbourg holds that a law that would invalidate the marriage of a post-operative transsexual if she registered her new gender identity did not violate the ECHR.

MM v United Kingdom – 24029/07 – HEJUD [2012] ECHR 1906 – Strasbourg rules that the indefinite retention of data relating to a person’s criminal caution its  disclosure in criminal record checks infringe Article 8 of the ECHR.

Waya, R. v [2012] UKSC 51 – Supreme Court: Crown Courts mustn’t impose proceeds of crime confiscation orders if disproportionate under Article 1, Protocol 1 of the ECHR.

Van Colle v United Kingdom – 7678/09 – HEJUD [2012] ECHR 1928 – Failures of police to act on murder warnings was not breach of Art 2 right to life, rules European Court of Human Rights.

AB, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3215 (Admin) – Secretary of State acted reasonably in rejecting asylum seeker’s fresh claim, rules High Court.

Serrano, R (on the application of) v Secretary of State for Justice & Anor [2012] EWHC 3216 (Admin) –  High Court: Policy of detaining foreign criminals liable for deportation before deportation order made not discriminatory.

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