Shaping Strasbourg, gay marriage and free speech – The Human Rights Roundup

12 March 2012 by Sam Murrant

Welcome back to the UK Human Rights Roundup, your weekly summary 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.

In the news

It’s been another big week for human rights, with the draft Brighton Declaration again sparking insightful discussion from a range of sources. Also in the news, concerns seem to be rising over open justice, with secret evidence, the Justice and Security Green Paper and access to court materials all raising concerns in the media. To round off the week, there’s the CPS’s new guidance on prosecution for criminal offences committed during public protests, a roundup of important cases to look out for in the upcoming weeks, and the mandatory (for myself, anyway) update on the Abu Qatada saga.

ECHR and UK Constitutional Reform – The Brighton Declaration and the Bill of Rights Commission

We have had a triad of UK Human Rights blog posts this week providing further insight and analysis on the draft Declaration and its implications for the roles of the Strasbourg court and of national courts in human rights cases.

Dr Ed Bates posts on the tension between the British courts and the European Court of Human Rights, brought to the fore by the subsidiarity and admissibility provisions in the draft Declaration. The UKHRB also provides edited versions of the longer posts by Noreen O’Meara (dealing with the redefined role of Strasbourg in the draft Declaration) and by Mark Elliott (dealing with the Declaration in the context of Britain’s unusual constitution) on the UK Constitutional Group blog for those who want a more easily-digested summary of the key issues. For a longer and more in-depth discussion of the constitutional issues surrounding the Declaration and how it fits in with the current Bill of Rights debate, see Mark Elliott’s original post.

Joshua Rozenberg, writing for the Law Society Gazette, is skeptical that the draft Declaration will even reduce the Court’s caseload – in his view, the re-imagining of the ECHR’s role may require longer examinations of national proceedings in Strasbourg to determine whether a national court has “erred in the interpretation or application” of the Convention. He also discusses the political implications of the reforms, remarking that if nothing else the Declaration shows the extent to which power over human rights law lies with politicians, rather than judges.

The Open Society Justice Initiative has put a joint statement of a large number of NGOs online, warning against the greater latitude for governments to avoid human rights obligations under the draft Declaration; and five factsheets on proposed measures to increase the ECHR’s efficiency. NGOs have also addressed an open letter on the need for transparency in the Court’s reform process, including a call for new drafts of the Declaration to be made public in a timely fashion to allow public commentary. This letter is discussed briefly on the ECHR blog.

For more on the UK Bill of Rights, which is notably not gaining much public attention, see Adam Wagner’s post on the subject here, and the short Guardian article here. The Bill of Rights Commission is fast approaching the end of its allotted time, and as it represents important potential reforms for our constitution, should have more public exposure than it currently does. Although things may be getting a little more interesting – see today’s revelation And then there were seven: Pinto-Duschinsky quitting Bill of Rights Commission.

Open Justice

Ken Clark wrote a response to fears over open justice in the wake of the Justice and Security Green Paper in the Daily Mail this week, explaining the Government’s rationale for the proposed reforms: in a small number of civil cases, he says, the current system may not be able to reach a conclusion if sensitive evidence (concerning British spies, allies or dangers to the public) can’t be kept secret. He also reassures the public that the reforms are about protecting the public and ensuring justice is done, not hiding evidence of government incompetence or corruption.

Secret evidence is also a major issue in the recent W (Algeria) case (see below), in which a witness was allowed to give fully secret and anonymous evidence. This case, and its potential consequences for open justice, has been discussed extensively on UKHRB, by Rosalind English here and here, and by Henry Oliver (who also addressed the moral dilemma between preserving a witness’s anonymity and national security/public safety) here.

Even without considering secret evidence, there are concerns that justice is not “open” enough as it is. Judith Townend for the Guardian expresses concern that, despite the recent indications that the ban on TV cameras in court is to be overturned, and Tweeting from the courtroom is to be allowed, the “transcription cartels” and court officials make public and media access to court documents far too difficult.

Cases to look out for

A number of important human rights cases are currently being heard in the Strasbourg court and the UK courts. Firstly, a judgment will be issued this Thursday on kettling (Austin and Others v. the United Kingdom; a brief history of the case can be found here) by the Grand Chamber of the ECHR.

Also in Strasbourg at the moment is the Animal Defenders International v. UK case, which concerns the current law on purely political advertising in the UK. A full webcast of the arguments of Counsel may be found here. In brief, the applicant wants to advertise against animal testing on the television and radio, and is prevented from doing so by the blanket ban in UK law. This case may have some interesting consequences if the UK government loses, as it could open our television channels up to USA-style political advertising by powerful pressure groups and lobbies. See also Inforrm’s post here.

The UK Supreme Court blog has a preview of a series of joined cases on extradition and the rights of children here. These cases involve balancing the public interest in extraditing foreign criminals against the Article 8 rights of their children. The post summarises the history of these cases and points out that this case will involve reconciling two conflicting precedents on this issue – watch this space for more developments. Another pair of cases pending judgment in the UK courts involves disclosure of NHS risk registers, posted on by Panopticon here. Interestingly the First-Tier Tribunal allowed disclosure of the more general “strategic risk register” but not of the “transition risk register” which involves the reforms more directly. Reasons for this decision have not yet been made public.

Public Protests and Free Speech CPS guidance

The Crown Prosecution Service has issued new guidance on how prosecutors are to proceed where offences are committed in the course of public protest. The right to free speech is stated to be highly important, and protective of the minority as well as the majority. A prosecution must always be proportionate in the circumstances, and the guidance lists some factors which will affect whether this is the case, including the severity of the offence, whether the offender carried a weapon or concealed their identity, and the overall tone of the protest.

This Guardian article by Owen Bowcott offers a helpful summary of the main points, as the guidance itself is quite extensive. In the main, it aims to strike a balance between free speech and the preservation of law and order.

In other news involving the right to free speech, the latest WithoutPrejudice podcast discusses how free speech may be affected by privacy and libel law, especially in the age of Twitter, Facebook and rapid journalistic reporting. Tom Hickman, writing for the UK Constitutional Law Group blog, posted this week on how data protection (or over-protection, as he argues) law may in fact suppress freedom of information and allow governments to hide information behind human rights to privacy.

Cardinal: Gay marriage is a violation of human rights

Cardinal Keith O’Brien, the head of the Catholic Church in Scotland, was interviewed on Radio 4 this Monday, and claimed that gay marriage is a “grotesque subversion” of the Universal Declaration of Human Rights. However, looking at the text of the Declaration, specifically Articles 16 (the right to voluntary marriage for men and women as equals with the ability to divorce) and Article 2 (entitlement to all rights within the Declaration without discrimination) it becomes clear that he has very little ground to stand on to make that claim, which is summarily debunked on the PhD Studies in Human Rights blog.

Criminal law amendment

The Domestic Violence, Crime and Victims (Amendment) Act 2012 received Royal Assent this week, expanding the 2004 Act of the same name to expand the criminal offence of causing or allowing the death of a child or vulnerable adult to include causing/allowing that person to come to “serious physical harm”. ObiterJ comments on this amendment to English law on his blog, considering that the reforms may remedy injustice by extending criminal liability to people who stand by and let others injure vulnerable adults or children.

The latest in the Qatada saga

This week, the Home Secretary is in Jordan holding talks with a view to obtaining an “assurance” from the Jordanian authorities that they will not use torture-derived evidence against Qatada in his trial if the UK deports him. The assurance is required within 3 months of the decision to release Qatada on bail in February, or the deprivation of his liberty will no longer be justifiable. Theresa May reports a positive outlook for the talks, so Qatada may yet be deported. ObiterJ comments on this development on his blog, and is a bit more skeptical about the chances of Jordan giving the assurance, as the ECHR found that the evidence in question would be very important to his trial, and Jordan is highly unlikely to pass up the chance to try Qatada if they can.

In the courts

W (Algeria) & Another v Secretary of State for the Home Department [2012] UKSC 8The Supreme Court held that a court is entitled to make an order for a witness to give evidence before SIAC in such a way that the witness’s identity and the substance of the evidence remains confidential. In this case, the evidence was to the effect that the appellant would be tortured in Algeria despite the Algerian government’s undertaking not to torture him; the witness refused to testify unless he was allowed this anonymity for fear over his own safety.

Miah & Others v. Secretary of State for the home Department [2012] EWCA Civ 261 There is no “near miss” principle when it comes to immigration rules, even if Article 8 rights are engaged, says the Court of Appeal. Where an appellant misses satisfying the Immigration Rules by a small margin and contends that his Art. 8 rights will be violated if he is removed from the UK, the “no-miss principle” would diminish the weight given to the maintenance of immigration controls when assessing whether his removal from the country is permitted under Article 8(2).

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UKHRB Posts

• What happened to open justice? Further analysis on torture evidence secrecy decision March 9, 2012 Henry Oliver
• Law, Politics and the Draft Brighton Declaration – Dr. Mark Elliott March 9, 2012 1 Crown Office Row
• Reforming or redefining the European Court of Human Rights? – Noreen O’Meara March 8, 2012 1 Crown Office Row
• Secrecy for torture evidence – analysis March 8, 2012 Rosalind English
• Witness allowed to give secret evidence of torture in Algeria, says Supreme Court March 7, 2012 Rosalind English
• Catholic midwives must continue indirect role in abortions, despite human rights protections March 6, 2012 Andrew Tickell
• Who should have the final word on human rights? – Dr Ed Bates March 6, 2012 1 Crown Office Row
• Major UK Human Rights Review launched March 5, 2012 Adam Wagner
• Can UK courts pass judgment on due process in other Convention countries? March 5, 2012 Rosalind English

by Sam Murrant