The announcement this week of a new Conservative Party plan to repeal the Human Rights Act, ‘Protecting Human Rights in the UK’, has brought to a boil a cauldron of incredulity (pictured) about the Government’s attitude towards the law. The response from human rights lawyers and advocacy groups has been swift. Liberty describes the Conservative Party plan as ‘legally illiterate’. The several ways in which that is true have already been the subject of detailed exposition. Indeed, Liberty’s response is even more accurate than it might first appear. If the Conservative Party plan is legally illiterate then it is best read as a political tactic to assure its supporters that it is the party of anti-European sentiment.
Nevertheless, if the move helps to bring about a Conservative Party government after the general election next May, then there is a great likelihood that steps will be taken to weaken the legal protection of human rights in Britain. The political pressure to do so will be even greater if the government must rely on support from Eurosceptic Members of Parliament for its majority in the House of Commons. Thus, political tactic or not, a Conservative Party-led government will likely take action against human rights law after the General Election.
Church of Scientology v. Russia, ECtHR, 2 October 2014 - read judgment
Amidst all the current posturing about the Strasbourg Court and how we would like to ignore its judgments we don’t like in future, one cannot help thinking about the old rule of behaviour that your enemy’s enemy is your friend. Western interests have been caught out, time and time again, when they intervene/interfere (insert, as appropriate) in the Middle East, and their enemy’s friend often turns out to be far from its friend.
Cue this case. Scientologists may not be widely favoured, in the UK, but then neither is Russia. And Russia would so love to ignore the slew of Strasbourg judgments against it – think Kordokovsky (€1.6bn, here), Chechnya and the environmental claims (here) against the various businesses which had so seamlessly ended up in the oligarchs’ pockets. But do we really want to feed Putin a line to get out of his difficulties in Strasbourg? This week’s back of an envelope announcements from the Conservative party conference about Strasbourg decisions would appear to do so.
The trigger for this claim in Strasbourg by the Church was the Russian courts’ decision that they were unwilling to allow the Scientologists to register their operations as a legal entity. And, as we shall see, Strasbourg thought that was not on.
Resolution A/HRC/27/L.7 on the Safety of Journalists by the UN Human Rights Council
Another day, another dead journalist; or so seems to be the trend in the media profession following recent news of the brutal beheading of an Israeli-American journalist, Stephen Sotloff, by Islamic State militants in Syria on 2nd September 2014. This Resolution seeks to facilitate the prevention of further fatalities.
According to the Committee to Protect Journalists, 1055 journalists have been killed worldwide in the past 22 years. Gunilla Von Hall, an eminent Swedish foreign correspondent and journalist, opened the Annual Geneva Peace Talks by sharing her experiences as a foreign correspondent to conflict zones such as Iraq and Bosnia. Gunilla commented on her need to ‘write for a visa’, making her withhold certain information from print temporarily so that she could continue to enter certain countries. She has had to openly refuse calls to work in certain areas due to the risks she now faces. Following the birth of her children, Gunilla’s responsibilities have more recently prevented her from risking her safety by travelling to these regions. She observed that, as a result, inexperienced reporters who are based in the countries have to be hired instead. Research undertaken by UNESCO compiled in the report ‘World Trends in Freedom of Expression and Media Development’ suggests that 94% of those targeted have been domestic journalists.
“Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. … Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world.” Eleanor Roosevelt (1958).
For human rights to matter, they must be made real first, at home, in those small places that matter to us all. After almost four decades of debate, it was in this vein that the Westminster Parliament, with Conservative Party support, voted to “Bring Rights Home” in the Human Rights Act 1998 (“HRA”). As we wake this morning to the front pages of two national newspapers decrying human rights “madness” and welcoming freshly minted (but fairly familiar) Conservative Party policy plans to condemn the HRA to history, this is a good message to remember.
The proposals are incoherent in their consideration of domestic law, incomplete in their engagement with the devolved constitution and disrespectful to the UK’s commitments in international law. They undermine the cause of bringing rights closer to home and seemingly have no care for progress of minimum standards in the wider world.
What rights? Continue reading
It turns out that the Prime Minister missed out the really important bits about the Tory plans for human rights reform from his Conference speech. My cautious optimism in my post was entirely misplaced too.
We will be covering the announcements in detail in the coming days, but in the meantime, the full proposals, named, with major chutzpah, Protecting Human Rights in the UK, are here.
My provisional thoughts are below, subject to the qualifier that many of the wackier proposals in this document are highly unlikely to make it through Parliament, even if the Conservative Party wins a majority in the next election. In that sense, this may be more about electoral politics than a solid plan. But for the purpose of this post I will assume the document is a serious proposal and not just a major trolling exercise.
In his speech at yesterday’s Conservative Party conference, the Prime Minister confirmed that the party’s 2015 election manifesto will include a commitment to repeal the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. Last night, however, The Scotsman newspaper quoted a Scotland Office spokesman as saying that the change would not apply in Scotland. According to the article, the spokesman “confirmed that human rights legislation is devolved to the Scottish Parliament because it was ‘built into the 1998 Scotland Act [and] cannot by removed [by Westminster].’” As reported, this statement is seriously misleading. However, it does highlight genuine difficulties that devolution creates for the implementation of plans to reform human rights law. Continue reading
Karia, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge)  EWHC 3105 (Admin) (30 September 2014)- read judgment
In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.
Background facts and law
The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:
1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision
2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services
3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights
She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.
Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it paid due regard to the need to advance equality of opportunity.
It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.