Bumper summer edition! – The Human Rights Roundup
9 August 2011
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here. You can also find our table of human rights cases here.
by Melinda Padron
In the news last week
Torture, top-secret documents and the boycott to the detainee inquiry
Last week some of the key UK human rights campaign groups decided to boycott the Detainee Inquiry on the basis that it lacks credibility and transparency, with much of the relevant evidence and information to remain secret – see Matthew Flinn’s post asking whether the inquiry will be human rights compliant.
Responding to the boycott, the Inquiry issued a statement that it will still go ahead as planned. Watching the Law blog opines that without the involvement of these bodies (which include the likes of Liberty, Reprieve, Amnesty International and Justice) the Inquiry is highly unlikely to command any public confidence.
On the same day of the boycott announcement, the Guardian reported on the existence of a top-secret document (downloadable here) which reveals that MI5 and MI6 officers were allowed to receive information from prisoners being mistreated overseas. The key paragraph is 42:
Where the Agency knows or has reason to believe that a particular liaison service uses torture or other mistreatment to obtain information the Agency should consider obtaining assurances before continuing to receive such information. If it is not considered possible to obtain reliable assurances, or if there is any doubt about the reliability of assurances received, senior management, taking advice from the LAs as required, must decide whether to continue to receive such information. As above, all of the relevant circumstances will be taken into account. In particularly difficult cases, senior management may need to refer the matter upwards, and in some cases it may be necessary to consult Ministers.
The document’s details are believed to be too sensitive to be revealed in the detainee inquiry for fear it could foment further radicalisation and thus increase the threat of terrorism. Marko Milanovic has highlighted on the EJIL: Talk blog how parts of the policy contained in the top-secret document was outlined with the help of careful and well crafted legal advice.
The practices which will be the subject of the detainee inquiry arose as part of the ‘war on terror’. The protection of certain rights had, to a certain extent, to give way to security concerns. For an appraisal of counter-terrorism detention in the UK and the US since 9/11, see Fiona de Londras’ newly released book Detention in the ‘War on Terror’: Can Human Rights Fight Back?, in which the author questions whether a combination of international human rights law and judicial activity had any impact on repressive anti-terror detention policies.
One of the main consequences of the Legal Aid, Sentencing and Punishment of Offenders Bill will be an increase in the number of litigants in person as a result of the removal from the scope of legal aid of ‘social welfare law’ (advice on welfare benefits, employment, debt, housing advice (except where there is the threat of homelessness) and immigration). This increase is likely to ‘clog up’ the system because when cases involving litigants in person come before courts, judges have to be more careful and lead the claimant through the process, inevitably slowing down the progress of a case.
With that in mind, Jon Robins wrote two interesting pieces in the Guardian: one which offers some basic advice to potential litigants in person, and the other offering an insight into the potential gravity of the situation if no measures are taken to address the needs of DIY litigants. Robins suggests that there is a pressing need for coordinated response from government, the courts, the judiciary and the profession to help DIY litigants or the courts are going to grind to a halt. Richard Moorhead in Lawyer Watch showed us what we can learn from our friends across the pond about how to help litigants in person.
The Researching Reform Blog reported the publication of a guide on all the current legislation and common law principles which affect the media’s right and scope to report on family matters in the family courts in one document. See Adam Wagner’s post on the guide here and Lucy Reed’s (of Pink Tape) link of this to an interesting idea about using information from family cases as case studies.
Similarly, the Equality and Human Rights Commission issued human rights practical guidance for the public sector which can be found here.
Do we need a UK Bill of Rights?
Last week the Commission on a UK Bill of Rights launched a discussion paper asking people “Do we need a UK Bill of Rights?” . Isabella Sankey, Director of Policy at Liberty, argues that we already have a bill of rights in the Human Rights Act. Adam Wagner is also not yet convinced that we do need a Bill of Rights. If you think you can convince Adam otherwise, or if you are in agreement with the above expressed opinions, why not respond to the consultation? You have until 11 November 2011 to respond and you can do so via email or post.
Freedom of expression
The United Nations Human Rights Committee (HRC) published a long overdue General Comment on Article 19 (Freedom of Expression) of the International Covenant on Civil and Political Rights. Professor William Schabbas reported the news on the PhD Studies in the Human Rights Blog, but you can also see a video of Michael O’Flaherty, Vice-Chair of the HRC, giving a short explanation about the general comment on this ‘meta-right’.
Other interesting news
Does the press coverage at the time of an individual’s arrest have to be very, very bad for it to be regarded as a contempt of court? Louis Charalambous discusses the issue on the Inforrm’s Blog in light of the Christopher Jefferies contempt of court case. See Adam Wagner’s post on the case here.
In cases of rape, do jurors empathise more with complainants who show emotional weakness during trials than those who seem to be in control? Halsbury’s Law Exchange assesses the relationship between victims who suffer post-traumatic stress disorder and the judgment made by jurors in rape trials.
In the courts:
Challenge to bail conditions imposed by Special Immigration Appeal Commission fails on Articles 5 and 6 grounds. Article 6 not engaged by bail hearing as interim measure not determining civil rights.
Trust needn’t have consulted medical expert before dismissing consultant cardiologist after return from illness. Article 6 not engaged, court applies R (G) v X School Governors (a Supreme Court case). See Richard Mumford’s commentary to this case in our blog here.
An 18-yr-old left tetraplegic after party pool dive not owed duty of care by absent owner of pool. Would be “paternalistic” approach to warn all visitors.
Case-law commentaries from across the blogosphere:
- Last week the Supreme court refused to grant Heringey Council and the Secretary of State leave to appeal the decision in Sharon Shoesmith’s case. For a refresher about the case see our post here, and for a short note on the Supreme Court’s decision, see the 11KBW Education Law Blog.
- The UK Supreme Court Blog posted commentaries on the cases of AB v Ministry of Defence and R (McDonald) v Royal Borough of Kensington & Chelsea  UKSC 33.
- Cumulating interests – European Court Decision in the OFCOM case: the 11KBW Panopticon blog commentary to the decision in OFCOM v Information Commissioner (Case C-71/10)
- A long time ago in a galaxy far, far, away … – Law and Lawyers commentary to the stormtrooper helmet case Lucasfilm Ltd and others v Ainsworth and others UKSC 39.
…and don’t forget our recent posts:
- Will the Detainee Inquiry be human rights compliant? August 8, 2011 by Matthew Flinn |
- Can you choose an arbitrator on the grounds of his religion? August 5, 2011David Hart QC
- Do we need a UK Bill of Rights? August 5, 2011 Adam Wagner
- When public authorities must pay legal costs: Two important cases August 3, 2011 Adam Wagner
- Dismissal of hospital consultant did not breach fair trial rights August 3, 2011Richard Mumford
- School’s out – The Human Rights Roundup August 1, 2011 Graeme Hall
- After Winterbourne View: the untapped potential of Article 8 – Lucy Series August 1, 2011 1 Crown Office Row
- Mobile masts and grid references get to Europe July 29, 2011 David Hart QC
- Family courts guide to Media Access & Reporting July 29, 2011 Adam Wagner