Monthly News Archives: March 2012


Future of human rights court must not be decided by shadowy late night deals – Angela Patrick

13 March 2012 by

This post, by Angela Patrick, Director of Human Rights Policy at JUSTICE, is the fourth in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

It’s a busy week for the debate on human rights reform. Today at 2:15pm, the Joint Committee on Human Rights will question the UK judge and current President of the European Court of Human Rights, Sir Nicolas Bratza. Sir Nicholas returns to the UK in a hailstorm of UK reporting – accurate and inaccurate – on the perceived failings of the Strasbourg Court and its judges.

His visit coincides with the expected production of the second draft of the Brighton Declaration which will set out the latest list of reforms to the Strasbourg Court the UK Government asking the Council of Europe to consider. It also follows the departure of Michael Pinto-Duschinsky from the Commission on a Bill of Rights, citing irreconcilable differences and his concern that criticism of the Strasbourg court’s lack of democratic legitimacy was falling on deaf ears.

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Toppled, choked and locked in: where are human rights when you need them

13 March 2012 by

Tony Nicklinson v Ministry of Justice [2012] EWHC 304 (QB) – read judgment

Jean-Dominique Bauby’s eyelid-blinking account of Locked-in Syndrome had us all quivering at the thought of being blindsided, as he was, at the peak of his career, on some banal afternoon outing. One moment you’re in charge, the next, you’re a living, conscious cadaver, entirely at the mercy of your family (if you’re lucky), the state (inevitably), and, you’re very unlucky, the police.

This is humanity at its most pinched and wretched, one might have thought more in need of the arsenal of human rights than any other situation. But all the big guns are elsewhere, it seems. We have the political stand-off in the Bill of Rights Commission, and all the other noisy controversial products of the human rights industry, welfare, asylum, crime, deportation, prisoner rights and press freedom. In the meanwhile, a much quieter, but much starker drama unfolds in the wake of Pretty , Purdy et al. Now we have Tony Nicklinson, whose case takes human rights ideology back to its roots: a person with his back against a wall.

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I can’t say anything because you’ve brought up… the Holocaust

12 March 2012 by

As a sequel to this morning’s post on Michael Pinto-Duschinsky’s resignation from the Commission on a Bill of Rights, a comment on his Daily Mail article: I escaped the Nazis – so spare me these sneers about tyranny.

Pinto-Duschinsky explains that because he and his family escaped the Nazis, he has a special perspective on human rights:

I know what the abuse of human rights really means. It is certainly not the kind of nonsense we hear so much about today – parents smacking children, the eviction of travellers from illegal encampments or the deportation of foreign criminals in breach of their supposed ‘right to a family life’.

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

12 March 2012 by

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.


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And then there were seven: Pinto-Duschinsky quitting Bill of Rights Commission

12 March 2012 by

Updated | Dr Michael Pinto-Duschinsky has told the BBC’s Sunday Politics that he is resigning from the Commission on a Bill of Rights, effectively citing artistic differences. The seven other commissioners apparently wrote to the Justice Secretary stating Pinto-Duschinsky was “significantly impeding [the Commission’s] progress”. He has also written an article in the Daily Mail explaining why he quit (see my other post responding to that).

I argued last week that the Commission should open up more, but leaked internal emails were not exactly what I had in mind.

The resignation is hardly a surprise. Pinto-Duschinsky’s relationship with the other Commissioners has been rocky from the start, and he has been unabashed about complaining publicly when he has felt his views were being ignored. When the Commission published its initial consultation document he instantly told the Daily Mail that he ”strongly regret[ed] the terms in which it has been presented.” He was concerned that the document ignored the extent to which the European Convention had undermined Parliamentary Sovereignty. However strong Pinto-Duschinsky’s views, this public airing of Commission laundry must have made very difficult to hold reasoned debates behind closed doors.

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What happened to open justice? Further analysis on torture evidence secrecy decision

9 March 2012 by

In W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment 

The Supreme Court has made a difficult decision. It is sometimes said that hard cases make bad law: this ruling may prove to be a good example of that cliché. The court was not being asked whether the Special Immigration Appeals Committee (SIAC) was legally allowed to issue orders that means evidence “will forever remain confidential” but rather the question was, “can SIAC ever properly make an absolute and irreversible order.”

The principles of open justice would tend towards the answer being no – but the court prioritised the welfare of the witness and allowed the order.


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Law, politics, and the draft Brighton Declaration – Dr Mark Elliott

9 March 2012 by

The European Convention (via CoE)

This is the third in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Although not a “supreme law bill of rights”, the Human Rights Act 1998 is a significant constraint upon the political-legislative process. In this post, I argue that the extent of that constraint would likely diminish were the draft Brighton Declaration implemented in its present form.

At present, the Human Rights Act (HRA) serves two distinctive and important “bridging functions”. On the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism: although the doctrine of parliamentary sovereignty is formally undisturbed, the HRA reduces the political scope for legislative interference with rights by making the ECHR a benchmark by reference to which legislation falls to be judicially assessed – and condemned, via a declaration of incompatibility, if found wanting.

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Reforming or redefining the European Court of Human Rights? – Noreen O’Meara

8 March 2012 by

This is the second in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Reactions to proposals for reforming the European Court of Human Rights contained the recently leaked Draft Brighton Declaration have been rightly critical.  Concerns have been directed at specific features which could impact on the essential role and function of the Court, inhibit access to the court for victims, and which may prejudice the practical impact of the HRA 1998 and the debate on replacing it with a UK Bill of Rights. 

It is testament to the eagerness with which these reforms are awaited—and the weaknesses which have been detected—that the Open Society Justice Initiative has launched a petition against the direction these proposals are taking.

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Secrecy for torture evidence – analysis

8 March 2012 by

W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment

As we reported in our summary of the decision earlier, the Supreme Court has confirmed that the Special Immigration Appeals Commission (SIAC) has the power to order that certain witness evidence may be produced in conditions of absolute and irreversible secrecy.

A brief recapitulation: the appellants were resisting return to Algeria, a a country where torture has been systematically practised by the relevant authorities. The respondent secretary of state had obtained assurances from the Algerian Government that the appellants’ rights would be respected upon return, but, in appeals to the Commission, the appellants wished to adduce evidence from witnesses with inside knowledge of the position in Algeria that those assertions would not be honoured, and that torture and ill-treatment of the returnees was likely. The witnesses were not prepared to give evidence in the appeals unless their identity and evidence would remain forever confidential to the Commission and the parties to the appeal. The Court of Appeal held that despite the breadth of the Commission’s powers under Rule 39(1) of the SIAC (Procedure) Rules 2003, it was not open to it to give such guarantees. The Supreme Court overturned that ruling, declaring that  SIAC could give an absolute and irrevocable guarantee of total confidentiality to a witness who was prepared to testify that the deportee was likely to be subjected to torture or ill-treatment upon return despite contrary assurances from the authorities in the country of return.

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Witness allowed to give secret evidence of torture in Algeria says Supreme Court

7 March 2012 by

W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department [2012] UKSC 8 – read judgment

The court is entitled to make an order for a witness to give evidence before the Special Immigration Appeals Commission (SIAC) in such a way that the identity of the witness and the substance of the evidence remains confidential. Such an order will only be granted if the court is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and it has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state.

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Catholic midwives must continue indirect role in abortions, despite human rights protections

6 March 2012 by

Brought to you by Andrew Tickell

Mary Teresa Doogan & Concepta Wood [2012] CSOH 32 – Read judgment

“For the want of a nail, the shoe was lost, for the want of a shoe the horse was lost, for the want of a horse, the rider was lost, for the want of a rider, the message was lost, for the want of the message, the battle was lost, for the want of the battle, the kingdom was lost, and all for the want of a horse shoe nail”.

A proverbial lesson in causation, and one pressed into service by Lady Smith in the Court of Session in Scotland last week, in a judgment rejecting the judicial review petition of two Catholic midwives employed at a major Glasgow hospital.

Seeking review of Greater Glasgow and Clyde Health Board’s rejection of their grievances, the pair contended that the conscientious objection provisions of the Abortion Act 1967 – which provides that “no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection” – was not limited to ‘direct’ participation in abortions, but entitled them to refuse to delegate to, supervise or support staff on their labour ward who were directly involved in medical terminations. Horse shoe nail.

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Who should have the final word on human rights? – Dr Ed Bates

6 March 2012 by

This is the first in a series of posts analysing the UK’s draft “Brighton Declaration” on European Court of Human Rights reform.

Much of the criticism directed toward the European Court of Human Rights over the last year or so, in this country at least, has been that it is too ready to overrule decisions made by the competent United Kingdom national authorities. It is said that British courts have already addressed the relevant human rights arguments under the Human Rights Act, so it is quite wrong that Strasbourg should now ‘overrule’ them.

A recent high profile example, apparently, was Strasbourg’s finding of a violation of the Convention in the Abu Qatada case, despite the House of Lords’ earlier ruling, holding no violation of the ECHR. (See, for example, the Home Secretary’s expressions of frustration about this).

The leaked (British) draft of the Brighton Declaration (for commentary, see here, here and here) concerning the on-going reform of the ECHR is apparently seeking to rebalance matters in this regard, and perhaps put the Strasbourg Court in its place.

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Major UK Human Rights Review launched

5 March 2012 by

The Equality and Human Rights Commission, a statutory body which monitors UK human rights and equalities protections, has today published a major review of human rights protections in the UK. It provides a timely reminder of the enormous amount of work which public authorities have had to put in since the Human Rights Act came into law to ensure that their everyday activities comply with protections granted by the European Convention on Human Rights.

I took part in a very interesting panel discussion at today’s launch event – the video can be seen here. The review is worth reading. It provides a thorough examination of the effect of the Human Rights Act 1998, 12 years after it came into law. This is timely, given that the operation of the HRA is currently being reviewed by the Commission on a Bill of Rights. It is helpful to have a detailed and thoughtful review to contrast with the often shrill media reporting of the “hated” (The Sun’s preferred prefix) Human Rights Act.

Links to the report’s various sections are below the page break.

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Can UK courts pass judgment on due process in other Convention countries?

5 March 2012 by

Merchant International v Naftogaz International [2012] EWCA Civ 196 – read judgment

The Court of Appeal has ruled that domestic courts may refuse to recognise a judgment of another Convention country on the basis that it failed to respect the fair trial principles in Article 6.

In this case the Ukraine Supreme Court was said to have “flagrantly” disregarded the principle of legal certainty. Whilst the English court should apply a strong presumption that the procedures of other Convention States complied with Article 6, it was not wrong for an English court to consider whether a judgment of a court of a Convention State contravened the Convention.
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The Commission on a Bill of Rights should open up

5 March 2012 by

1689 and all that

Things have been quiet recently on the Commission for a Bill of Rights front, with media attention focussed on the upcoming Brighton Conference on European Court of Human Rights reform and the growing controversy over the Justice and Security Green Paper. But this important Commission only has 10 months left to publish its report, and it should be courting public attention, not avoiding it.

There has been limited action on the Commission’s website, with publication of relatively illuminating minutes from the 15 November and 14 December meetings. The website has also published a list of all responses to the recent consultation. Apparently there were over 900 responses to the somewhat scanty discussion paper which was published last year.

Two suggestions. First, in my view, all of the responses should be published on the Commission’s website, not just a list of the respondees. I asked the Commission by email they would be doing so, and they responded:

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