Brighton rock, Abu Qatada and the democratic deficit – The Human Rights Roundup

22 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 saw the final Brighton Declaration, containing the Council of Europe states’ proposals for reform of the European Court of Human Rights, published, in extremely important news for the future of the Court. Other hot topics this week include perennial gems such as the deportation of terrorist suspects, the right to liberty, fears over the democratic legitimacy of judicial “lawmaking” and cameras in court.

The Brighton Declaration

The biggest news for human rights this week was probably the Brighton Conference, out of which has come the Brighton Declaration. This document finalises the position of the Council of Europe states on what reforms are necessary for the European Court of Human Rights. It is notably watered down compared to the radical early drafts, but still contains much of substance.

Among other things, it states that the principles of subsidiarity and margin of appreciation (which increase the power of national courts in human rights cases relative to Strasbourg) should be put in the preamble to the Convention itself, reduces the time limit to bring a case to Strasbourg to 4 months, and increases the Court’s ability to reject frivolous cases – all proposals designed to reduce the Court’s backlog of cases. For the UKHRB’s perspective on this, see Dr Ed Bates’ recent post.

ObiterJ considers each of the major areas of the Declaration in more detail in this blog post, specifically noting that the “long term future” section of the Declaration considers the reform work to only be beginning with the Declaration, and that more radical reforms, potentially going to “the fundamental role and nature of the Court”, may be necessary to ensure its viability. The Court is envisaged as being concerned exclusively with wide-ranging or systemic human rights violations, and legal questions of fundamental importance to the Convention, leaving national courts to do most of the mundane human rights work themselves.

Noreen O’Meara, posting on the UK Constitutional Law blog, also notes that the thrust of the Declaration is to strengthen national court systems for processing human rights cases, and analyses the major areas of the Declaration in detail. See also Joshua Rozenberg’s analysis, Draft Brighton declaration is a breath of fresh air.

Deportation

Abu Qatada has scarcely been out of the news since he was bailed from prison on the strength of the Othman judgment early this year. Having again been arrested pending deportation proceedings, he has “appealed” to Strasbourg to try to get these proceedings stayed. The problem is that, depending when you start counting, he may have been a day too late.

This is, as Carl Gardner, cross-posting on UKHRB from his own blog, points out, an illustration of just why certainty is so important in the law of time. The bigger issue is, though, if he is in time, will Strasbourg accept the Jordanian assurances that he will get a fair trial and allow him to be deported? Colin Murray, posting for Human Rights in Ireland, is skeptical about this, writing that it is possible that Strasbourg will not see these assurances as enough. In support he cited the Abu Hamza case, in which deportation to the US was only allowed seemingly due to the Strasbourg Court’s confidence in the US justice system.

The news that terrorist suspects including Abu Hamza can be deported to the US was met with muted approval from the right-wing press amongst others. The case was discussed on the UK Human Rights Blog last week by Isabel McArdle. Professor Helen Fenwick, also writing for UKHRB, sees this case as an example of a recent trend towards “appeasement” of governments (especially our own) in the Strasbourg Court’s case-law.

Director of JUSTICE, Roger Smith, writing in the Law Society Gazette, provides another perspective on the case: that it demonstrates the passive attitude of our ministers to aggressive, paternalistic US demands. His article goes into detail about the conditions in the “supermax” prisons that these suspects would be sent to if sentenced, and points out that one of the men, Babar Ahmad, never actually left the UK – the case for his being prosecuted in the US is slim (he is alleged to have developed a website held on a US server). The author of this post sees the extradition as “demeaning” – the US does not trust us to prosecute our own and we are only too happy to see British suspects subjected to draconian American sentences, and indeed celebrate this as a victory over human rights.

Liberty and Austin

The “kettling” case, Austin v. UK, decided on the 15th of March this year, is still sparking commentary. Professor Helen Fenwick’s guest post on the UKHRB sees this case as another example of the “appeasement approach” of the Human Rights court, along with the libel cases Von Hannover and Axel Springer.

David Mead, posting on the Strasbourg Observers blog, sees this case as a step back for Strasbourg – the case is inconsistent with precedent, including A v. UK, which refused to allow governments to “balance” the individual’s right to liberty against protection of the public from terrorism. It’s odd for the Court to relax this stance in Austin, where the “balancing” factor is less serious. This case is also an example of “judicial lawmaking”, but Mead points out that nobody has noticed, because it involves narrowing, rather than widening, the scope of human rights law.

“Democratic deficit”

This week Murray Hunt, legal adviser to Parliament’s Joint Committee on Human Rights, warned in a wide-ranging report for an Arts and Humanities Council conference, that action must be taken to address the perceived “democratic deficit” in parliament. For a full report of the Redressing the Democratic Deficit in Human Rights conference, see Wessen Jazrawi’s post on UKHRB.

Martin Beckford in the Telegraph summarises the “democratic deficit” argument: elected governments are committed to human rights, the rights are enforced by unelected, unaccountable judges who sideline the democratic process, leading to prisoners getting the vote, convicted criminals being impossible to deport, and so on.  The AHRC report suggests that this perception has gained ground because the political institutional machinery does not yet reflect the emerging consensus that Parliament and the Executive share responsibility with the judiciary for the protection and realisation of human rights.  It finds that there is a “democratic deficit” in the sense that the necessary mechanisms, practices and procedures in Parliament are still not sufficiently developed to ensure that parliamentarians are fully involved in debates about human rights.  Until the institutional machinery for political debate about human rights catches up, the report suggests, parliamentarians will not take ownership of human rights and debate about human rights will remain dominated by the distracting and distorting question of “who decides, courts or Parliament?

Another major study was released this week from the  Equality and Human Rights Commission  is summarised by Joshua Rozenberg as well as by way of a guest post by Alice Donald on the UK Human Rights Blog.

More on the Justice and Security Green Paper

A warning against “complacency” in human rights cases, Tim Otty’s essay on OpenDemocracy.net states that the Justice and Security Green Paper (which I’m sure we’re all familiar with by now) is in danger of falling foul of “legal exceptionalism”, subverting open justice and destroying the values of our society, if Parliament doesn’t strongly curb its proposals. The issue of “exceptionalism” is at the forefront of Otty’s points: the argument that exceptional times justify exceptional measures is, in his view, bogus, and will lead to a “slippery slope” where the exceptional becomes the norm and so more and more exceptional measures become “necessary” – a lesson he takes from Justice Albie Sachs, who experienced much the same progression in the emergency detention laws of apartheid South Africa.

Filming the courts

On a different “open justice” note, this week the sentencing of convicted murderer David Gilroy was filmed in the Edinburgh High Court – though this is “not a precedent”, as the judge will always have the ultimate say in whether proceedings should be filmed or not, in the interests of justice. This development is reported more fully by Steven Brocklehurst on BBC News, and a case comment by Robert Brown on legalweek.com. Both of these posts report that cameras in court are unlikely to be dramatic, focussing on judges, rather than defendants or witnesses (who may, after all, be less willing to give evidence if they are being broadcast). Indeed, the UK government’s proposals to allow cameras in court will be limited to appeals and sentencing only, for these reasons.

Finally, open access to court documents (more and more necessary for accurate reporting as cases become increasingly paper-based) was also in the news this week, with a post by Edward Craven on Inforrm’s blog, commenting on the recent R (Guardian News and Media Limited) v. City of Westminster Magistrates’ Court decision, providing a wide-ranging analysis of this “landmark case”.

In the courts

R (on the application of MD (Afghanistan)) v. Secretary of State for the Home Department [2012] EWCA Civ 194 Court of Appeal rules it can hear appeals against *any* High Court refusals of permission for Judicial Review. J, writing on the NearlyLegal blog, comments on this case and its implications for the role of the Court of Appeal in judicial review here. While the Court of Appeal holds that it is able to gainsay High Court decisions to refuse permission for JR, the preferable route is to renew the request for permission, avoiding the Court of Appeal becoming in effect a first instance court, judicially reviewing the administrative law judges.

R (on the application of HA (Nigeria)) v. Secretary of State for the Home Department [2012] EWHC 979 (Admin) Detention of Nigerian deportee despite mental health problems was unlawful. Policy on detention of people with mental illness was held to be unlawful and in breach of equality legislation.

R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v. Joint Committee of Primary Care Trusts & Another [2012] EWCA Civ 472 Joint Committee of Primary Care Trusts win appeal against quashing of major consultation on national reconfiguration of paediatric cardiac services.

R (on the application of London Christian Radio & Another) v. Radio Advertising Clearance Centre and Another [2012] EWHC 1043 (Admin) Refusal of permission for Christian radio station to broadcast “awareness-raising” advert on radio was lawful. Court also ruled ban on political advertising article 10 ECHR compliant (subject to what the ECtHR have to say in Animal Defenders).

Sign up to free human rights updates by email, Facebook, Twitter or RSS

UKHRB Posts

• The Brighton Declaration and the “meddling court” April 22, Ed Bates, University of Southampton
• Redressing the Democratic Deficit in Human Rights April 20, Wessen Jazrawi
• UK vs. Strasbourg: don’t believe the hype – Alice Donald April 20, 1 Crown Office Row
• Abu Qatada and the law of time – Carl Gardner April 19, 1 Crown Office Row
• Offshore wind farmer wrong-footed by the Planning Inspector April 18, David Hart QC
• Places left for our million hit seminar – Wednesday 25 April April 18, Adam Wagner
• Things to put in your Brighton Conference rucksack April 18, Adam Wagner
• Disability lawyers chewing at the Big Apple’s core April 17, Rosalind English
• Sexual offender prisoners were unlawfully denied certain privileges under prison rules April 17, Rosalind English
• An appeasement approach in the European Court of Human Rights? – Professor Helen Fenwick April 17, 1 Crown Office Row
• Refusal of child care leave to female prisoners was unlawful, rules High Court April 16, Rosalind English
• “Thinking the unthinkable”? Freedom of information and the NHS Risk Register – Robin Hopkins April 16, 1 Crown Office Row

by Sam Murrant