Democracy dangers, freedom of speech and a Leveson update – The Human Rights Roundup

6 May 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, the Foreign and Commonwealth Office published its Report on Democracy and Human Rights and the Legal Aid, Sentencing and Punishment of Offenders Act was enacted. The Leveson Inquiry continues to roll on, and we have a fresh round of commentary over freedom of speech, and over the democratic legitimacy of judicial decisions on human rights.

The Foreign and Commonwealth Office’s Report on Democracy and Human Rights

To see this report, in all its somewhat lengthy glory, click here. In brief, the report deals with the state of democracy and human rights around the world, including case studies on particular “problem” states (particularly Belarus, Eritrea, Somalia and North Korea), with an entire section devoted to the Arab Spring. The rest of the report deals with human rights and democracy in the context of the UK’s foreign policy, national security and prosperity. The report also details the UK’s various foreign initiatives to improve human rights around the world. Isabel McArdle posted on the report for UKHRB, but if more detail is required, the report itself (or at least, particular sections of interest) is recommended.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

ObiterJ posted a far-reaching analysis of this new Act on his blog this week (Part 2 is here), considering it a “radical rethink” aimed to save the government some £350 million on legal aid. The government has, responding to pressure, backed down on some of the more important points in the original Bill, making legal aid more widely available than originally planned, but its availability is still heavily restricted – and may be even more so when the regulatory legislation the Act authorises is passed by the executive.

It also seems likely that this change to our law is here to stay, even if Labour wins the next general election – for more on this, see this post by Catherine Baksi in the Law Society Gazette, in which Andrew Slaughter MP made vague promises of “redressing the balance of justice” but also stated that “we can never go back exactly to where we were before”. The Act can be found here.

Leveson marches on

This week also saw the publication of the Parliamentary Select Committee’s report on News International and Phone Hacking, which has been discussed heavily in the media, including the BBC and the Independent. The report includes scathing criticisms of the Murdochs and of the former News of the World editor who was found to have misled the committee about phone hacking. Laura Sandwell summarizes the main points of the report in her post on Inforrm’s blog.

In other Leveson news, and again reported by Inforrm, prominent Ministers of the government, including the Prime Minister, have been granted Core Participant status in the Inquiry, despite Leveson LJ rejecting the application by the Government itself. These “Government Core Participants” will have to sign confidentiality agreements before being given access to witness statements, and may be subject to other restrictions.

Natalie Peck, also writing for Inforrm, posted a roundup of Module 2 (examining the relationship between the police and the press) of Leveson this weekend – recommended reading for anyone needing a quick catch-up on the major points.

Surveillance, free speech and the right to privacy

This week saw two interesting posts on the UK Constitutional Law Blog on the subject of freedom of speech. The first of these, by Carol Harlow, focusses on the growing “surveillance culture” in the UK. In her post, she explores how the protection of British citizens’ privacy is surprisingly low, and how there are proposals to extend the abilities of government bodies to intercept communications, acquire or disclose data, and use “covert human intelligence sources” – powers that are already extensive under the Regulation of Investigatory Powers Act. The post concludes by examining the potential role of the “superior” European-level legislature, but concluding that its proposals may involve an even lower level of protection than we currently enjoy in the UK.

The Olympics are prominent in the public consciousness at the moment, especially in London where commuters dread the summer months – but there may be a yet more sinister side to the Games than train delays. Tom Hickman, posting on UKCLB, begins by reminding us of the Chinese prohibition of demonstrations at the Beijing Games, and then compares this to the situation in London, where one can be imprisoned for 5 days and slapped with an “Olympic ASBO” preventing one from going anywhere near the Games (or, for good measure, the Diamond Jubilee) for protesting the erection of a temporary basketball court by the Olympic Delivery Authority on protected marshland in Hackney.

Further, businesses not officially sponsoring the Games are prevented from using words such as “Games”, “Olympic” and even “London” or “summer” for any advertisements or promotions hoping to drum up some of that Olympic tourist business the Games were supposed to bring in. All this to protect the official sponsors from any competition.

Human Rights and Democratic Legitimacy

Finally, we come to the “democratic legitimacy” debate. The debate is more thoroughly discussed in Roger Masterman’s incisive and thought-provoking post on the UK Constitutional Law Blog, delving below the surface of the debate to core constitutional issues it overshadows, and others it throws into sharp relief. In particular, he considers the idea that the legislature, executive and judiciary have a “shared responsibility” for human rights, as proposed in the “Redressing the Democratic Deficit” report as being at best unsuccessful so far and worst impossible, given our constitutional penchant for adversarial systems and conflict. Dawn Oliver, also posting on UKCLB, considers that this debate is unwinnable for the courts, as Parliament has popular support (by definition), so the judges must adhere to the doctrine of Parliamentary Sovereignty as a matter of practicality.

The European Court of Human Rights has also often been the target of accusations of a lack of democratic legitimacy – being the unelected elite whose decisions as good as actively change law in the UK. James Wilson, in his thoughtful post on Halsbury’s Law Exchange, discusses the Strasbourg Court’s claims to legitimacy (mostly stemming from the enactment of the Human Rights Act), and concludes that, while the UK should stay with the Convention and its Court, there is a need to push for reform of the overburdened Court – though he makes no mention of the proposals to do just that in the Brighton Declaration.

In the courts

R (on the application of M) v Secretary of State for the Home Department [2012] EWHC 1112 (Admin) The High Court held that the Iraqi applicant was unlawfully detained for over 2 years pending deportation as there was no evidence of reasonable prospects of actually being removed from the country

R (on the application of Razzoqi) v Secretary of State for the Home Department [2012] EWHC 1126 (Admin) The High Court held that it was unlawful for the Secretary of State to reject new evidence from an Iraqi asylum seeker as not amounting to a fresh claim.

Peart v Secretary of State for the Home Department [2012] EWCA Civ 568 Court ignored key factors in “foreign criminal” deportation case. The Court of Appeal quashes the decision and orders that it be decided again. Krishnan Nair, writing for Mulberry Finch, comments on this case here, considering it to be a blow struck for correct process in these types of cases, where special attention must be paid to children who are UK citizens

Kizhakudan v Secretary of State for Home Department [2012] EWCA Civ 566 Foreign student whose college lost licence wins appeal for leave to remain (and find alternate sponsorship at another college) as the judge in the first-tier tribunal failed to consider his human right to private life

M.S. v. The United Kingdom – 24527/08 [2012] ECHR 804 Prolonged police detention of mentally-ill man without adequate medical care violated his Art.3 ECHR rights. For more commentary on this, see Rosalind English’s post on UKHRB. In particular, the post covers how the Strasbourg court’s construction of Article 3 rights differs markedly from the UK’s interpretation, and why this may be a case in which the European court of Human Rights has genuinely substituted realism for principle, and arrived at an unsatisfactory result that may lead to a bad precedent.

R (on the application of Calver) v Public Services Ombudsman for Wales [2012] EWHC 1172 (Admin) Censure of Councillor for controversial comments about council meeting on his blog breached his art.10 ECHR free expression rights. This case is briefly commented on by Ian McDonald, writing for Liberty, who considers the decision a vindication of the right to free speech – that people should, in a democratic society, be allowed to voice even insulting opinions without fear of reprisal.

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UKHRB Posts

• Suing the corporate soul; parent company down for asbestosis May 4, 2012 David Hart QC
• Battle of the bus lanes: Addison Lee injuncted by High Court May 3, 2012, Leanne Buckley-Thomson
• Delay in transferring mental health patient for treatment amounted to “inhumane treatment”  May 3, 2012 Rosalind English
• When does an expert report constitute “independent evidence” of torture? May 2, 2012 Karwan Eskerie
• Time, time, time, look what’s become of me May 2, 2012 Adam Wagner
• Yes, come to the library! Browse and borrow, and help make sure it’s still there tomorrow… May 2, 2012 Shaheen Rahman
• “Murder most foul” – the right to life investigating homicide May 1, 2012 Alasdair Henderson
• Government’s intelligence sharing agreements with US should be protected by secret material in drone strike case May 1, 2012 Rosalind English
• New report on worldwide human rights and democracy April 30, Isabel McArdle

by Sam Murrant