Smith & Ors v The Ministry of Defence  EWCA Civ 1365 – Read judgment
Updated – the first two paragraphs of this post have been amended as they were factually inaccurate. Many apologies for this.
Last month, the Court of Appeal decided that the negligence claims of the families of five British soldiers killed or injured on duty in Iraq could go ahead. It would be for the High Court to decide on the facts whether decisions made about troops’ equipment and training fell within the long-standing doctrine of ‘combat immunity’. The appellants were however unsuccessful in arguing that the Human Rights Act 1998 (HRA) applied.
The case concerned claims brought by the families of five men killed or injured in south-east Iraq. Corporal Allbutt was killed and Troopers Twiddy and Julien injured in Challenger II tanks in fratricide, or ‘friendly fire’, incidents on 25 March 2003. Privates Hewett and Ellis and Lance Corporal Redpath were killed in their Snatch Land Rovers by improvised explosive devices (IEDs) on 16 July 2005, 28 February 2006 and 9 August 2007 respectively (the ‘Snatch Landrover claims’).
R(on the application of S and KF) v Secretary of State for Justice  EWHC 1810 (Admin)- read judgment
This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.
Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.
Updated x 2 Today marks ten years since the Human Rights Act 1998 came into force, on 2 October 2000. The act brought UK citizens under the protection of the European Convention on Human Rights. For ten years, it has been unlawful for a public authority to breach those rights.
We at the UK Human Rights Blog wish the oft-maligned act a very happy birthday. We, along with our sister-site the Human Rights Update Service, have been covering human rights case-law since 2000.
Review: The Ripple Effect: Guantanamo Bay in the United Kingdom Courts” by CRG Murray, International Law Review Online Companion, April 2010 – Read article
A new academic article by C.R.G Murray at Newcastle University analyses the interesting and important line of case-law arising from claims by men detained in Guantanamo Bay. The case-law has involved many issues of a politically sensitive nature and generated much media coverage and pressure on the British Government. The ripple effects from the detentions have led to a series of important judgments.
Murray’s article reviews important case-law arising from detention at Guantanamo Bay and the impact it has had on the decisions reached by the courts. Murray concludes that the case-law demonstrates two major ‘ripple effects’: (1) judicial review has been used to press the British Government into being more active in opposing detentions at Guantanamo Bay; (2) where serious human rights breaches are in issue, the courts have been more willing to disregard historic concepts of comity between courts in different jurisdictions and give their own view of the correct interpretation of law for the benefit of appellate courts in the United States.
R (D and M) v Secretary of State for Work and Pensions; R (EM) v Secretary of State for Work and Pensions  EWCA Civ 18
With apologies, this post originally appeared with the wrong title
The Court of Appeal has ruled on two linked challenges to the entitlement to welfare benefits of prisoners detained in psychiatric hospitals. One claim alleged unlawful discrimination as compared with other psychiatric patients not serving sentences, in breach of Article 14 ECHR, taken together with Article 1 Protocol 1 ECHR. The other claim raised a point of construction of the relevant regulations affecting one category of such prisoners
The discrimination aspect of the case considered two categories of convicted, sentenced prisoners: those transferred to psychiatric hospitals under section 47 of the Mental Health Act 1983, and those subject to hospital and limitation directions under section 45A of the Act. Prisoners in the first category are transferred after sentence, and generally after serving time in prison, while those in the second were subject to a direction at the same time as they are sentenced. Such prisoners were to be contrasted with, on the one hand, convicted prisoners who serve their sentence in prison and, on the other, patients who have been detained under purely civil law powers or under section 37 of the Act (that is, following conviction, but without any sentence having been passed). Continue reading
Lord Phillips, the head of the Supreme Court, spoke to lawyers this week on the future of the Human Rights Act 1998, which the Conservative Party have threatened to repeal. He said that now that the Act is in place, it would be very difficult to imagine a court ignoring the rights enshrined by it, even if it were repealed.
We will post the full speech if and when it becomes available. In the mean time, Afua Hirsch writing in the Guardian summarises his argument (reproduced after the page break below).
On a second-hand reading, it does seem somewhat hopeful to assume, as Lord Phillips appears to, that if the Act were repealed courts would still place rights in anything like the central position they have been since the its passing, largely through momentum. Lawyers tend to concentrate on points which win cases, rather than on first principles, and whilst human rights were a relevant consideration before the Act’s passing (judgments of the European Court of Human Rights were persuasive but not binding), they amounted to little more that.
That said, the Conservative party have pledged to replace the Act with something similar, a Bill of Rights. It is not yet clear what form it will take, but it is highly likely that the European Convention on Human Rights will be the starting point for its drafting, and it is likely to be a recalibration rather than a replacement. As such, human rights are most probably “here to stay”, but we should not overestimate the constitutional power of judges, or underestimate the power of Parliament to set the legal agenda.
The case of The Queen on the application of Evans v Secretary Of State For Defence is continuing today in the Royal Courts of Justice in London, before Lord Justice Richards and Mr Justice Cranston.
Maya Evans, an activist, is brining a judicial review against the Ministry of Defence in respect of the British Army’s detainee transfer policy in Afghanistan. It is alleged that British forces knew of the torture risks when handing over prisoners to the Afghan security services.
This is the latest in a series of cases where the Government have been criticised in the courts for defence policies in Iraq and Afghanistan. In 2007, the House of Lords (the old Supreme Court) in Al-Skeini effectively opened the door to such claims by foreign nationals by holding that the Human Rights Act applies outside of the UK.
The most notable recent example is the Binyam Mohamed case, where the Court of Appeal heavily criticised the security services. Similar issues in relation to secret evidence appear to have arisen in Evans, with The Guardian reporting:
So concerned is the Ministry of Defence about the challenge to the practice, that it is insisting that evidence it had passed to her lawyers must now be suppressed.
As a result, skeleton argument from her lawyers – a document consisting of an outline of the case – includes a number of passages blacked out at the insistence of the MoD.
Following one long excised passage, the document revealed in court today reads: “The lessons from these shocking events is … investigation by the NDS [Afghanistan's National Directorate of Security] is obviously incapable of providing any satisfaction of the UK’s human rights obligations.”
- Our posts on the Binyam Mohamed litigation can be found here, here, and here
- Our case comment on R (Mazin Mumaa Galteth Al Skeini and others) v Secretary of State for Defence
The conference logo
We have been asking what the future of the Human Rights Act will be following the General Election 2010, and whether there will soon be a Bill of Rights.
The University of Salford have informed us that they will be hosting the first post-election Human Rights conference, which aims to address these issues. The Conference also coincides Human Rights Act 1998′s tenth birthday.
The Conference is ‘Ten years on’: A Multi-perspective Evaluation of the Human Rights Act – Salford Human Rights Conference 2010″, at the University of Salford on Friday and Saturday 4-5 June 2010. Full details can be found here and a list of speakers here.
The Bill of Rights will be one of the major issues in the May 6th Election, even if it may not capture as much public attention as crime or the NHS. Whichever party (or parties) takes control after May 6th, their attitude towards the Human Rights Act 1998 (HRA) will have significant and long lasting consequences for the UK.
Joshua Rozenberg blogs today on his verdict of Labour’s record from 1997-2010. He says that the HRA is “what legal historians will remember as the defining reform of Labour 1997-2010 (if this year does, indeed, mark the end of an era). Even if the Human Rights Act 1998 is modified by an incoming government, it will not be repealed. There would be little point in doing so; no government would withdraw from the European Convention on Human Rights, jeopardising the UK’s membership of the Council of Europe and even of the EU.”
I am closer to Dominic Grieve than David Cameron on this one. I don’t regard Labour’s “incorporation” of the convention into domestic law as a disaster. I saw it as a political imperative – although it was one that would never have happened if Lord Irvine of Lairg, who became Lord Chancellor in 1997 – had not hit the ground running. It is he, I believe, who devised the subtle “declaration of incompatibility” on which the entire Act rests, preserving parliamentary sovereignty while giving judges strong powers to “read down” legislation in a way that complies with human rights standards.