Free expression, privacy injunctions and gay marriage – The Human Rights Roundup

26 March 2012 by Wessen Jazrawi

Welcome back to the UK Human Rights Roundup, your weekly bulletin 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 an interesting week for freedom of expression issues, and its Article 10 ECHR counterpart, freedom of information, with judgments from the Court of Appeal and the High Court.  The Independent Reviewer of Terrorism Legislation has also produced his first (and last) report on the operation of Control Orders. In other news, the NGO community commented on the UK’s Draft Brighton Declaration on reform of the European Court of Human Rights, the closed-material procedures received a rare show of support and the Government issued a consultation on same-sex marriage.

by Wessen Jazrawi

Closed material procedures backed and a new Special Advocates response

The debate on closed material procedures continues. David Anderson QC, the independent reviewer of terrorism legislation, is quoted in the Guardian as saying that “it does not seem to me that the level of injustice inherent in the use of [closed material procedures] in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.

The Special Advocates, who will be called upon to make the proposed system work and who have thus far been critical of the proposals, have responded to Anderson with a supplementary paper.

Freedom of expression 

The Court of Appeal (CA) in Kennedy v. Charity Commissionhas found no violation of Article 10 in the refusal by the Charity Commission to release the documents relating to the inquiry into George Galloway’s Mariam Appeal. David Hart QC explains the CA’s reasoning in his post on the UKHRB, noting the instrumental role played by the Supreme Court (SC) judgment in Sugar v BBC  (see also Adam Wagner’s post on this).

David Hart notes that, in the Sugar judgment, Lord Brown had downplayed the significance of Strasbourg case law, commenting that the fact that every public authority has in a sense “the censorial power of an information monopoly” in respect of its own internal documents could not of itself give rise to a prima facie interference with Article 10 rights whenever the disclosure of such documents was refused. The CA in Kennedy has granted permission to appeal to the SC.

In other freedom of expression news, the High Court has upheld an order by the Home Secretary preventing Maryam Rajavi, a prominent Iranian dissident, from speaking in Parliament. In reaching her decision, the Home Secretary had weighed the “serious potential effects of lifting the exclusion on the UK’s interests in relation to Iran” and had found that the damage to the public interest significantly outweighed any interference with Mrs Rajavi’s ability to express her views here.

This raises some very interesting questions concerning the attitude of the UK authorities towards freedom of expression, and as put by the ever-reliable Inforrm blog, “is it a proportionate interference with Article 10 for the government effectively to prohibit free speech by yielding to an obviously unreasonable threat?” In addition to Inforrm, there is an excellent post by Rosalind English on the UKHRB on these delicate issues while Henry Oliver on the Mulberry Finch blog also provides an analysis of the case.

Final independent report on Control Orders

David Anderson QC, the Independent Reviewer of Terrorism Legislation, has published his first (since he took over in the role) and last (the anti-terrorism orders are to be replaced by TPIMs) report on the operation of Control Orders – see report and accompanying press release.

Analysis of the kettling judgment

For those hungry for a thorough analysis of the Austin kettling judgment, look no further than the ECHR Blog which amongst other excellent observations notes the introduction by the Strasbourg Court of the concept of “context” and suggests that several inter-related problems arise from making this relevant to the threshold question of Article 5. These include the fact that such reasoning allows public interest considerations in by the backdoor and the danger that will lead to an expansive – and police oriented – view of “contextual” factors. The blog also discusses the cases that Austin was considered analogous to..

NGOs comment on the Draft Brighton Declaration

A group of NGOs, including Amnesty International, Human Rights Watch, AIRE, the European Human Rights Advocacy Centre, INTERIGHTS and REDRESS (amongst others) have come together to express their further concerns in relation to the Draft Brighton Declaration proposals.

They note in particular that the admissibility proposal would curtail the Strasbourg Court’s jurisdiction whilst codification of subsidiarity and the margin of appreciation would, inter alia, undermine the Court’s capacity to apply the principle with sufficient care, restraint and flexibility to protect Convention rights. They made specific reference to the comments of Lord Bratza to the Joint Committee on Human Rights, in particular his comment that it was time for some respite following changes implemented as a result of the Interlaken and Izmir conferences.

Flood v the Times

Hugh Tomlinson QC on the Inforrm Blog provides an analysis of the recent judgment by the Supreme Court in Flood v the Times Newspaper, which overturned the Court of Appeal judgment and found that the Times was entitled to rely on the defence of Reynolds qualified privilege in relation to the printed publication of the article about the claimant. He focuses on the issues of the seriousness of the allegation being made, whether it was in the public interest to refer to the details of allegations made to the police; and what verification was required to discharge the requirements of responsible journalism.

He notes that this was an interesting but not radical decision, with no new point of principle established. However he pointed out that the Supreme Court emphasised – in part by reliance on case law from the European Court of Human Rights – that the purpose of the defence was “to promote greater freedom for the press to publish stories of genuine public interest“.

Privacy injunctions

In yet more freedom of expression news, Inforrm has blogged on the publication by the Ministry of Justice of its first statistical report on privacy injunctions, showing that only 4 new privacy injunctions were granted from August to December 2011. Inforrm suggests that more detail could be given in the next set of statistics about the individual cases and, insofar as they are the subject of public judgments, these should be identified.

Government consultation on equal civil marriage

Obiter J blogs on the government’s consultation on civil marriage, which relates to the right of same-sex couples to have equal access to marriage. He notes the comment in the Telegraph that “if same-sex marriage is legalised in the UK it will be illegal for the Government to prevent such marriages happening in religious premises”, but states that he doubts that it will be the case.  He notes that Strasbourg jurisprudence gives States a considerable margin of appreciation as to what they do in these very sensitive areas and that the government’s proposal does not in any case involve requiring religious bodies to conduct same-sex marriages.

Liability on school trips

A very good analysis of the recent judgment of XVW & YZA v. Gravesend Grammar School for Girls [2012] EWHC 575 (QB) can be found on the Education Law Blog which will be of interest not only to lawyers but to parents too. This judgment indicates that whilst schools must take seriously their responsibilities for risk assessment of school trips, and allocate appropriate resources, they cannot, however, be held liable for everything that goes wrong on the trip, even something that goes terribly wrong.

Family justice narratives

Finally, a reminder that if you work in the family justice system, Pink Tape has invited contributions of narratives to spark a dialogue about how the system can be improved for the benefit of all, but particularly the lot of children and parents caught up in it.

In the courts

Wright v Argentina [2012] EWHC 669 (Admin). The Administrative Court has found that a British citizen cannot be extradited to Argentina to be tried for a drug smuggling offence because she would face inhuman and degrading treatment in the Argentinian prison system contrary to her Article 3 rights under ECHR.

JD (Congo)  and others v Secretary of State for the Home Department, Public Law Project [2012] EWCA Civ 327. The Court of Appeal has considered the test for the second stage of appeal in immigration cases, when someone wishes to appeal from the Upper Tribunal to the Court of Appeal.

Cases T-439/10 and T-440/10, Fulmen & Mahmoudian v. Council of the European Union. This Iranian company whose assets were frozen as part of EU policy to apply pressure on Iran to end nuclear proliferation was successful in having the measures lifted.

Kennedy v Charity Commission [2012] EWCA Civ 317 (20 March 2012). Charity Commission wins appeal against order that it must disclose George Galloway charity info. Article 10 was “not engaged”.

Attorney General v Dallas [2012] EWHC 156 (Admin) (23 January 2012). University lecturer juror sentenced to 3 months in prison for researching defendant on Internet.

The Secretary of State for Energy and Climate Change v Friends of the Earth and Ors [2012] EWCA Civ 28. The Supreme Court has refused permission to appeal.

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UKHRB Posts

• Don’t try for me, Argentina March 23, 2012 Rosalind English
• When their Lordships open their mouths extra-judicially … March 23, 2012 Matthew Flinn
• Compelling reasons but no need for truly drastic circumstances: second stage immigration appeals revisited March 23, 2012 Isabel McArdle
• Reasons and evidence in Europe March 22, 2012 David Hart QC
• Flood v Times Newspapers, Supreme Court allows “Reynolds” appeal – Hugh Tomlinson QC March 22, 2012 1 Crown Office Row
• Appeasement it may be, but exclusion of Iranian dissident not a matter for the courts March 21, 2012 Rosalind English
• The right to receive information; journalists and inquiries March 21, 2012 David Hart QC
• The evolved mind: rising to the environmental challenge March 20, 2012 Rosalind English
• The game changed back: Barr v. Biffa reversed March 19, 2012 by David Hart QC
• Child’s welfare is paramount in contact dispute March 16, 2012 by Clare Ciborowska