Rights and wrongs – The Human Rights Roundup

18 March 2012 by Sam Murrant

In and out

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

Human rights continue to be big news this week, with Andrew Neil’s Rights Gone Wrong? programme exploring the rather divisive issues that Human Rights bring up for the British public. The proposed reforms to the European Court of Human Rights and the Bill of Rights made news again also, along with such controversies as the right to die, open justice and kettling.

Rights Gone Wrong?

Andrew Neil’s BBC discussion of the HRA was based on its largely negative perception in this country and the need to assess exactly how it affects the UK. His discussion was undoubtedly populist, focussing on the type of emotional and controversial cases that make for good and memorable television. Some commentators, including our own Rosalind English, thought that the subject matter was treated generally well and the issues were properly weighed up. Carl Gardner for Head of Legal also thought the programme was well worth a watch, and that it did not favour either side of the debate over human rights in the UK unduly, exploring the issues in an accessible, intelligent manner.

However, the Human Rights Scotland blog post on the topic was considerably more critical, almost accusing Neil of pandering to the anti-HR crowd, as the focus seemed to the writer to be too far away from cases in which human rights had a positive effect. The poster also makes the key point that in any legal system dealing with human rights, there will be “hard cases”. The existence of such cases should not reflect unduly on the success of the system.

The Bill of Rights Commission limps on

This week, Michael Pinto-Duschinsky resigned from the Bill of Rights Commission due essentially to creative differences (Pinto-Duschinsky wanted more radical changes, while the rest of the Commissioners appear to see the Human Rights Act as more or less satisfactory), leaving the Commission a lawyers’ only club. He was quickly replaced by Lord Faulks QC.

Adam Wagner commented on this development on Monday, describing the Bill of Rights as “a new Ford Fiesta”, suggesting that it will be nothing so much as a rehash of the HRA, and that this aspect will be even more pronounced without the lone radical dissenter. ObiterJ also posted on this issue, expressing disappointment that Pinto-Duschinsky didn’t stay and provide a balance to the more conservative (small “c”) majority, but pointing out that the “democratic override” he sought already exists in the Human Rights Act.

Pinto-Duschinsky himself has been quite active in the media recently, writing in the Daily Mail last Sunday to argue against allowing an “unelected, unaccountable elite” to rule over democratic institutions. In the Guardian, he repeats his calls for a “democratic override” in human rights law, allowing the majority to speak through the elected officials; and making the quite salient point that if the Commission simply rehashes the HRA, the whole exercise is pointless. Quite apart from the fact that the Human Rights Act, as a clever workaround to the problem of Parliamentary Sovereignty and international law, includes a democratic override, his use of Holocaust rhetoric in his Mail article to argue that human rights law goes too far, covering things that aren’t “real” human rights violations is perhaps inappropriate – see Adam Wagner’s post on the subject.

Finally, the Commission may be even more disunited that even the Pinto-Duschinsky split indicated, if Jonathan Rayner’s article in the Law Society Gazette is anything to go on. In this piece, he reveals leaked emails showing that deep rifts may exist, with the Tory component of the Commission (like Pinto-Duschinsky) think the HRA is too weak; while the “Europhiles” have compared the stronger state powers and “democratic override” proposals to Nazi Germany – revealing that in this debate, neither side is above invoking Godwin’s Law. Furthermore, there may be dissatisfaction with the Chairman, who one member of the Commission described as “bullying”. Never mind Pinto-Duschinsky, the Commission may have bigger problems on its hands than a lone deserter. Perhaps this was the reason for its earlier radio silence?

Strasbourg reform rumbles on

The Brighton Declaration remains a hot topic in the media. Owen Bowcott, writing for the Guardian, discusses the objections to the proposed ECHR reforms (especially those relating to admissibility) in the Council of Europe states, especially Austria. The title of this article is, however, slightly misleading – the UK in fact dropped the plans to reduce the ECHR’s caseload by charging potential applicants money from its proposed reforms before the current draft of the Brighton Declaration.

The opposing point of view is put forward by Lord Lester, who writes in the Guardian that the ECHR needs the “reasonable” British reforms to streamline its process and reduce its backlog of cases. His position is that Strasbourg is a court of last resort, and should be treated as such; therefore national courts should have more power to hear and decide human rights cases.

Also this week, the Ministry of Justice’s report to the Council of Europe on the implementation of the decisions at Interlaken and Izmir was made available online again (it were first published in December), and can be found here. The report deals with proposals for enhancing awareness of the Court in the UK, enhancing the application of the Court’s jursprudence on a national level and seconding national lawyers and judges to the Court.

Sir Nicholas Bratza, President of the European Court of Human Rights, spoke to the Parliamentary Joint Committee on Human Rights this week, speaking on a range of important issues including the proposed reforms, its admissions procedure, the standard of its judges, and “dialogue” between the Court and national Parliaments. The video of this event, which is recommended by ObiterJ for those with an hour to spare, may be found on ObiterJ’s blog here.

Closed Evidence and Open Justice

Martin Chamberlain, a special advocate, offers a cogent explanation of the special trials procedure (in which secret, or “closed” evidence is used) and its problems in his article in the Daily Mail this week. He compares the system of “secret justice” with Kafka’s The Trial, particularly considering the largest problem for special advocates, the inability to effectively communicate with clients on “closed” materials, thus making cases harder to construct. He also discusses the potential effects of the Justice and Security Green Paper in this area, which has been condemned by various sources. The Justice and Security Green Paper has been stated to potentially affect 27 current cases, but not which cases. Dr Lawrence McNamara at the University of Reading here presents a list of educated guesses as to what these cases could be.

The UK Supreme Court blog offers commentary on the recent case of W(Algeria) v. Home Secretary (discussed on this blog last week by Rosalind English and Henry Oliver) this week. In this case, a witness for the defence was allowed to give evidence in secret to prevent persecution. The blog post considers that in this type of case, secret evidence is the “lesser of two evils” when the alternative is torture of the witness, or no evidence being given for the defence for fear of torture.

In relation to more general “open justice”, there are continuing calls in the media for courts to be freer with case information, including parties’ names, addresses and charges, especially in criminal cases. William Perrin, writing in the Guardian, presents “a charter for open justice” in which courts are called on to allow free access to this type of information on the internet, not barred by data protection law. There is an issue with releasing such information however, especially relating to accused and acquitted criminals – what’s to stop vigilantes using this type of information? The charter suggests that contempt of court could be used to punish those who misuse this information.

Kettling caselaw – Austin v. UK

The “kettling” case of Austin v. UK was decided in Strasbourg this week, with the European Court stating that the Article 5 right to liberty is not violated by temporarily restricting potentially violent protest groups. “Kettling” was held to be proportionate and thus not a violation of the convention. BBC News offers short commentary on the decision here. David Mead, writing on the UK Constitutional Law Group blog, goes into a bit more detail on the relevant issues, particularly in identifying that, while the claimants lost in this case, the Court in allowing proportionality to become part of Article 5 is potentially altering the content of the Convention, which is outside of its remit.

Archaism and legalism

Finally, are the UK courts returning to the Old Ways, where procedural technicalities could prevent cases being heard in court? A post on the Freemovement blog on the recent case of Lamichhane v Secretary of State for the Home Department states that just that may be happening in a subset of immigration cases. The Court of Appeal held that it is not possible to pursue an appeal on grounds other than those originally pleaded to the Secretary of State or Entry clearance Officer in the first application (but only if the Secretary of State does not serve a particular statutory notice). The writer describes the decision as “bonkers” and archaic.

In the courts

Malik v. the United Kingdom – 23780/08 [2012] ECHR 438 GP’s suspension by GMC from performers list did not amount to a violation of Article 1 Protocol 1 of the Convention. The European Court of Human Rights did not decide whether there was a possession in existence the enjoyment of which by Dr Malik could be interfered with by his suspension (e.g. his license to practice) but held that his suspension nevertheless did not affect his rights. Rachit Buch comments on this case for the UKHRB here, considering that the Court may have dodged the important question in this case, leaving us without a useful precedent.

Austin and others v. the United Kingdom – 39692/09 [2012] ECHR 459 Police “kettling” of protesters at 2001 demonstration in Oxford Circus was not unlawful deprivation of liberty within the meaning of Article 5 ECHR.

Lord Carlile & Ors v. Secretary of State for the Home Department [2012] EWHC 617 Exclusion by the Home Office of Maryam Rajavi, prominent dissident Iranian politician, from speaking at Westminster for fear of reprisals within Iran was lawful, the High Court rules “reluctantly”.

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UKHRB Posts

• GP’s rights not violated by suspension from performers list March 15, 2012 Rachit Buch
• Wind and peat: another step along the reasons trail March 15, 2012 David Hart QC
• A whiff of brimstone: Andrew Neil critiques human rights on prime time TV March 15, 2012 Rosalind English
• Should gay marriage be legalised? March 15, 2012 Adam Wagner
• No “near miss” principle in immigration cases, despite Article 8 March 14, 2012 Henry Oliver
• Strasbourg rules on anti-gay speech for the first time March 13, 2012 Karwan Eskerie
• Future of human rights court must not be decided by shadowy late night deals – Angela Patrick March 13, 2 1 Crown Office Row
• Toppled, choked and locked in: where are human rights when you need them? March 13, 2012 Rosalind English
• I can’t say anything because you’ve brought up… the Holocaust March 12, 2012 Adam Wagner
• Updated: And then there were seven: Pinto-Duschinsky quitting Bill of Rights Commission March 12, 2012 Adam Wagner

by Sam Murrant