Reforms, flooding, and deckchairs – The Human Rights Roundup

2 April 2012 by Sam Murrant

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

This week we have further developments in freedom of information (both in terms of the right to free speech and the right to receive information under Article 10 of the Convention) and on the reform of courts, both at home and in Strasbourg. Also making news this week: the new Terrorist Prevention and Investigation Measures and flooding in Vladivostock.

Freedom of speech and freedom of information

This week, judgment was given in the case of Cairns v. Modi, in which Chris Cairns, former New Zealand cricketer, successfully won £90,000 in damages from Modi, the former Chairman of the Indian Premier League, who published a defamatory statement about Cairns on Twitter. Inforrm’s blog provides a case summary with a bit more detail, for those interested. Rosalind English commented on this case, and on libel cases in the context of instantaneous Internet publishing more generally, for the UK Human Rights blog on Wednesday, in which she likens the current judicial attitude to rearranging deckchairs on the Titanic.

Judgment in the Kennedy case was also given this week. This case concerned the scope of the right to receive information under Article 10 ECHR – the major question was whether this right extends to affording the public a general right of access to information held by public authorities. The Court of Appeal considered that it was bound by a Supreme Court precedent (Sugar v. BBC) in which our highest court held that the Art. 10 right to receive information is not interfered with whenever a public authority refuses access to information, particularly if that authority acts consistently with domestic legislation governing access to information. The Panopticon blog post on this new judgment considers this issue in more detail, and for those particularly interested, this article by Tim Pitt-Payne QC analyses the major arguments in Kennedy.

Not fit for purpose? Our appointments procedure for senior judges

The liberal think-tank CentreForum has published a report on the judicial appointments process in this country, called “Guarding the Guardians” in which its authors, Alan Paterson and Chris Paterson, express their dissatisfaction with two major aspects of the current process: the fact that the process is mostly controlled by judges themselves, making the judiciary the only self-perpetuating arm of our government; and the issue of diversity amongst the senior judiciary. The point that the judiciary is to old, too male and too white is not a particularly new one, as the UK Supreme Court blog post on this topic points out; however, it is undeniable that diversity is a major concern for our senior judges.

The selection process has been based on “merit” ever since the old system, in which the Lord Chancellor made appointments to the senior judiciary on advice from the judges, was scrapped. However, the way in which “merit” is assessed has come under fire from the writers of the CentreForum report, writing in the Guardian. They say that assessment on pure merit ignores diversity and the inherent value of having a range of perspectives in our highest courts. Joshua Rozenberg, also writing for the Guardian, attacks the value of the judicial “meritocracy” too, pointing out that even the old system under the Lord Chancellor was more flexible and thus more useful for tailoring appointments to improve the effectiveness of the senior judiciary as a whole.

TPIMs – The latest iteration of terrorism control mechanisms

Control Orders, that favourite prey of Strasbourg judges, have been replaced by “Terrorism Prevention and Investigation Measures” (TPIMs). This latest attempt to create a mechanism to control terrorist suspects without contravening human rights law has been described as “an unsatisfactory compromise” by Matt Cavanagh in The Spectator. He writes that the new measures, which resemble watered-down control orders (lasting a maximum of two years rather than being potentially indefinite, removing the power to move controlled persons against their will), increase the terrorist risk to the nation, for essentially political reasons. He concludes with the point that all measures in the vein of control orders necessarily involve a trade-off between national security and individual liberties, which governments should accept rather than pursuing a perfect solution.

The imposition of TPIMs requires “reasonable belief” by the Home Secretary, as opposed to “reasonable suspicion” which was required by control orders. What this actually means was explored for the first time in the BM case (summarised below) – the Home Secretary needs material to justify the belief in a state of affairs justifying a TPIM, whether or not this situation is later revealed to actually exist on the evidence in court. The case comment on the Mulberry Finch blog by Krishnan Nair explores the issue in this case more thoroughly.

The Strasbourg Reforms – Brighton Declaration and Beyond

The UK’s House of Commons Library has published a report on reform of the European Court of Human Rights, which can be found here. This report, running to only 18 pages, summarises the UK’s take on subsidiarity and admission (the main areas in which reform is proposed), the Brighton Declaration (in summary) and the responses that have been made to it.

In other reform-related news, the Committee of Ministers have adopted guidelines on selecting ECtHR judges, again because of the push for diversity amongst the judiciary, in response to many Member States (including Belgium and Malta) putting forward all-male lists of candidates for a seat on the European Court of Human Rights, when women are under-represented in the Court.

Dystopian justice – A slippery slope towards the American Way?

Across the pond, the US Supreme Court is hearing a case in which the Health Secretary is appealing a decision that the healthcare reform legislation introduced by the current administration is in breach of the US Constitution. This case could result in Obama’s major achievement in domestic legislation while in office (laws which he was voted in to introduce, and which were approved by the elected legislative body) being struck down by “the unelected elite” in the Supreme Court. Martin Kettle, writing in the Guardian, warns against “dystopian” American-style political judges: if they do sweep away the healthcare legislation, they will be actually asserting the ability to control the political arena. The increasing politicisation of our own judiciary may therefore be something to guard against.

Carl Gardner, writing for HeadofLegal, sees this case as a cautionary tale against the adoption of a written constitutional document (the British Bill of Rights) in this country. It must be said, it does seem strange in a country priding itself on “government by the people, for the people” that judges can exert political power to this extent. It must be said, a written constitution would make it easier for conservatives (small “c”) to block progressive legislation, but the flipside is that, in a system like ours, Parliament can do absolutely anything, subject only to the approval of the people (who control the membership of the Commons by electing MPs).

Floods of litigation

The ECtHR recently heard the Kolyadenko v. Russia case, in which it held that a Russian local authority was in breach of the Convention (Articles 1, 2 and 8) for failing to take measures that may have mitigated the impact of the floods in Vladivostock. This case, as pointed out by SJM on NearlyLegal, demonstrates the Strasbourg court’s lengthening jurisdiction, reaching into “remote corners of Asia” to make a ruling that the Russian authority was in breach of the right to life under Art. 2 (despite no-one having died) because the claimants had “genuine fear” for their lives. David Hart QC posts on this case for the UKHRB here, discussing the facts in more detail, and observing, as SJM did, that this case could add a Human Rights dimension to the area of English and Welsh tort law currently known as Rylands v. Fletcher.

In the courts

R (on the application of King) v. Secretary of State for Justice [2012] EWCA Civ 376 3 prisoners’ article 6 ECHR rights not engaged by decision to segregate them. The application also failed on art 3, 8 and Judicial Review grounds.

Secretary of State for the Home Department v. BM [2012] EWHC 714 (Admin) First Terrorism Prevention and Investigation Measures review since they replaced control orders. TPIMs upheld by the court.

Al-Jedda v. Secretary of State for the Home Department [2012] EWCA Civ 358 Court of Appeal “reluctantly” quashes Secretary of State’s decision to deprive terrorist suspect of British nationality. Rosalind English comments on this case for the UKHRB here.

Republic of South Africa v. Dewani [2012] EWHC 842 (Admin) Shrien Dewani’s extradition to South Africa delayed on mental health grounds. Court of Appeal overturns High Court on basis that he shouldn’t be extradited until he is mentally fit. This case is discussed on the UK Human Rights Blog by Isabel McArdle, who goes into more detail on the factual background of the cases and the reasons for the decision.

R (on the application of the Law Society of England and Wales) v. The Legal Services Commission and Another [2012] EWHC 794 (Admin) Law Society fails in Judicial Review of Government’s abolition of legal representative fee for committal proceedings.

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UKHRB Posts

• No extradition for Shrien Dewani – for now March 31, 2012 Isabel McArdle
• All by myself – segregation, prisons and Article 6 March 30, 2012 Isabel McArdle
• From County Court strike out to Strasbourg success March 30, 2012 Matthew Hill
• Cornish waste incinerator case reversed March 30, 2012 David Hart QC
• Suspected terrorist regains British citizenship March 29, 2012 Rosalind English
• Promptness again in Judicial Review: It’s Complicated March 29, 2012 David Hart QC
• Can a homosexual adopt his or her partner’s child? The case of Gas and Dubois v France. March 29, 2012 Daniel Sokol
• Press regulation on a sinking ship March 28, 2012 Rosalind English
• Police manhandled autistic boy at swimming pool – Lucy Series March 28, 2012 1 Crown Office Row
• A robust restatement of the principles of nuisance March 27, 2012 Rosalind English
• Flooding claims from Vladivostock get to Strasbourg – and win March 27, 2012 David Hart QC
• Is a school responsible for assault on foreign expedition March 26, 2012 Caroline Cross

by Sam Murrant