Hacking, secret justice and access to it – the Human Rights Roundup
21 November 2011
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news
The Leveson Inquiry begins
Last week saw the start of the Inquiry into the culture, practices and ethics of the press, headed by Lord Justice Leveson. Proceedings can be followed via the Inquiry’s website, where you can either watch live hearings or videos of past hearings, a move welcomed by Adam Wagner as a “minor landmark for open justice.” Hugh Grant (pictured) as well as other celebrities and victims will be appearing this week to give evidence.
Blogger Obiter J reported that Lord Justice Leveson gave an interesting warning to journalists against unjustified coverage of the Inquiry proceedings. Such unjustified and hostile coverage, said Lord Justice Leveson, might lead to the “conclusion that these vital rights are being abused which would itself give evidence of culture, practice and ethics which could be relevant to my ultimate recommendations.” The warning, remarks Obiter J, may be perceived as the imposition of restriction on the media. The Inquiry’s opening day has been described as “dramatic”, particularly due to the powerful submissions made by Robert Jay QC, counsel for the Inquiry. Mr Jay QC, in a long speech, set out the purposes and concerns of the Inquiry and referred to evidence which may indicate that the practice of phone hacking at News International was a systematic one.
The Leveson Inquiry should be watched with interest because of the potential impact it may have on freedom of speech. If you are interested in catching up with last week’s events before following next week’s proceedings, check out the excellent coverage of the Inquiry by the Inforrm’s Blog (which also provides us with a comprehensive Law and Media news roundup).
Not wholly unrelated is the matter of the right to privacy. Whilst giving evidence before the parliamentary committee on privacy and injunctions, blogger and solicitor David Allen Green reflected on, amongst other things, what he believes is the fundamental question before the committee: what intervention, if any, can legislation make to deal with the illiberal use of privacy and other injunctions?
Stepping outside the system
Adam Wagner wrote a post last week about two articles published in the Guardian’s “Comment is Free” section by members of the Occupy Movement which he found to be particularly worrying – see Legal Bizzle’s excellent roundup of the coverage here.
Last week it was announced that legal action against the Occupy Movement protest camp at St Paul’s cathedral will be relaunched. Giles Peaker, writing for the Guardian, believes that the action against protesters obstructing the highway at St Paul’s is open to many interpretations.
Secret evidence v open justice: the Justice and Security Green Paper
In response to the Supreme Court judgement in the case of Al Rawi and others (see also commentary), which found that the government could not withhold evidence in a civil case without clear statutory authority, the government has published a Green Paper which proposes the extension of “closed material procedures”. As Joshua Rozenberg explains,
Under these arrangements, the government does not disclose sensitive evidence to the other party or its legal team. Instead, the evidence is shown to the court and to a special advocate, an independent lawyer who has the challenge of representing the other side’s interests without telling that side what the evidence says.
The move, which has been backed by Foreign Secretary William Hague, seeks to extend the availability of such arrangements from not only national security proceedings, but also civil proceedings. As pointed out by Adam Wagner, the Green Paper also involves a consultation on the proposals, and responses can be sent via email by Friday 6 January 2012. Rozenberg believes the plans undermined the fundamental constitutional right to open justice, a reflection which is based on a lecture given by leading human rights and judicial review advocate Dinah Rose QC, snippets of which are quoted in the article.
The use of secret evidence involves a balancing exercise of the often conflicting interests of national security and open justice. For an interesting recap of where our law stands in this balancing exercise, read Rosalind English’s article, which was written in the aftermath of Al Rawi.
Deprivation of liberty in care standards cases: Cheshire West and Chester Council v P
The long awaited Court of Appeal judgement in Cheshire West and Chester Council v P has finally come out. The Court of Appeal has taken a different view to that of Mr Justice Baker in the Court of Protection, and decided that Article 5 of the ECHR was not engaged in P’s case.
Lucy Series, writer of The Small Places blog, has posted both a summary of, and a commentary to, the judgement. In the summary, Series gives a background to the case and discusses the two main features of the judgement: (1) the relevance of the purpose behind restrictions imposed on an individual in the assessment of whether care measures amount to deprivation of liberty; (2) the introduction of a “comparator” (to be a person of similar disabilities to those of the individual in the relevant case) when considering the normality of the individual’s care restrictions, and accordingly, whether or the restrictions amount to a deprivation of liberty.
In her commentary, Series reflects on the interplay between the Deprivation of Liberty Safegards framework and scrutiny (be that judicial or other kind) in attempting to safeguard the human rights and bests interests of highly vulnerable individuals in care.
Our commentary is here.
Report on Access to Justice for Litigants in Person – making the best of a bad job?
The Civil Justice Council has published a report on Access to Justice for Litigants in Person. As reported by Jon Robins, for the Guardian, the report forecasts an increase in the number of LiPs of considerable scale, and highlights that its recommendations will “not prevent the reality that in many situations … there will be a denial of justice.” The article summarises some of the report’s recommendations, and suggests that the coalition government is moving in the opposite direction from some of them, particularly the bolstering of advice agencies and the promotion of mediation. The article also calls for lawyers and those engaged in pro bono work to rise to the challenge posed by the increasing number of LiPs.
In the courts:
General Dental Council v Savery & Ors [2011] EWHC 3011 (Admin) (16 November 2011) November 18, 2011
Information Commissioner: BRITISH UNION FOR THE ABOLITION OF VIVISECTION, v. (1) INFORMATION COMMISSIONER (2) NEWCASTLE UNIVERSITY – No: FS50215164 November 14, 2011
JM & NT, R (on the application of) v Isle of Wight Council [2011] EWHC 2911 (Admin) (11 November 2011)November 11, 2011
Cheshire West and Chester Council v P [2011] EWCA Civ 1257 (09 November 2011) November 10, 2011
Burnley Training College Ltd, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2928 (Admin) (24 August 2011) November 9, 2011
…and don’t forget our recent posts:
- Freedom of information – no longer the Cinderella of rightsNovember 17, 2011 Rosalind English
- Severely disabled man’s care plan not a deprivation of liberty – Court of Appeal November 17, 2011 Thomas Henderson
- Climate change: No right to know effect of new EU rules November 16, 2011 Karwan Eskerie
- Freemen of the dangerous nonsense November 15, 2011 Adam Wagner
- One of the “great unspoken problems” about human rights law November 15, 2011 Rosalind English
- Leveson goes live November 14, 2011 Adam Wagner
- Naïve intentions, inferred imputations – The Human Rights Roundup November 13, 2011 Graeme Hall
- A blueprint for a simpler, fairer justice system November 11, 2011 Adam Wagner
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Thanks for your reply, Melina.
To the highly informed and honest reader, it almost goes without saying that the press Inquiry will evaluate the need for regulation to curtail abuses of privacy, human dignity, market share and political influence (all of which, with little dispute, have occurred).
However, to the reader who hasn’t followed these machinations closely, if we do not mention the objective of the Inquiry with the full extent of the established crimes it seeks to address, we allow the possibility of misinterpretation.
It is in the interests of some parties to depict the Inquiry as a simple case good and evil, of Freedom of Press vs. Regulation. This is effectively how the Daily Mail’s editor, Paul Dacre, has framed it in his recent speech to Leveson. (Of course, some partisans are on the other side and see it vice versa, Regulation vs, Freedom of Press),
The reality is that the Inquiry is not, at core, adversarial. This is because, every reasonable person accepts that the status quo of regulation has failed and allowed horrible acts to be committed by journalists and editors. It has been established that it was not a rotten apple responsible. Now it is becoming clear it is not simply a rotten company. It is, in some sections, a cultural corruption.
Without doubt, free press concerns are integral and must be protected but this Inquiry is not a question of: Should we regulate press freedom? but, actually, How should press freedom be regulated to prevent continued abuse whilst enabling the pursuit of democratically essential, extensive investigative journalism?
It is a subtle question that is open to easy misrepresentation.
It’s interesting that you depict the Leveson Inquiry and its outcomes as a potential threat to free speech and do not seem to see it as an opportunity to regulate the now notorious illegal and inhumane practice of an oligarchic press.
Of course, free speech is vital but to ignore the need for press regulation is negligent.
Guardian editor-in-chief, Alan Rusbridger gave a very judicious outline of the state of the press to the Leveson Inquiry. He urged for politicians not to zealously interfere with the media but he made it clear that independent regulation is needed not only to control abuses of privacy and human dignity but also oligarchic ownership and arrogation of excess political power:
http://www.guardian.co.uk/media/2011/nov/16/alan-rusbridger-statement-leveson-inquiry
Apologies for that. Perhaps I should have been clearer about what I meant. The Inquiry itself is indeed an opportunity to assess the practices of the press and make appropriate recommendations (as can be seen from its terms of reference). I was merely raising the argument that, in taking this opportunity, it may (or may not) have an impact on freedom of speech. Regulation may be desirable, but the extent of regulation recommended is what will be determinative of whether or not freedom of speech will be impacted.