Queen’s Speech, Abu Qatada and the NHS risk register – The Human Rights Roundup
13 May 2012
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.
This week saw the Queen’s Speech set out a number of legislative reforms, the veto of the release of the NHS risk register and the latest instalment in the Abu Qatada saga after the European Court of Human Rights declared his appeal was within time but nonetheless declined to hear it.
by Wessen Jazrawi
In the news
Abu Qatada – in time but out of luck
The European Court of Human Rights confirmed this week that Abu Qatada’s appeal was in time, thus ending the speculation, but refused to hear it. As Adam Wagner notes in his post on the UKHRB, it is a shame that the judges did not see fit to explain why the appeal was in time.
The Queen’s Speech (full text here) introduced the Government’s plans for legislative reform for the upcoming year. These include the Enterprise and Regulatory Reform Bill, the Banking Reform Bill, the House of Lords Reform Bill, the Defamation Bill, the Justice and Security Bill and the Draft Communications Bill, amongst others. For the full list and a description of each, see the BBC’s article here.
Justice and Security Bill rushed through
Worryingly, the Government has accelerated its plans to expand secret hearings into civil courts. As reported by The Guardian, rather than moving to the preparatory white paper stage, the Justice and Security Bill will be put through parliament this session. This pressure is apparently coming from MI5 and MI6 who say they need to reassure other countries, particularly the United States, that they can continue to share intelligence without fear of it being exposed in British courts. They point to the claims brought by Binyam Mohamed, the UK resident held in Guantánamo Bay, in which sensitive evidence emerged in circumstances embarrassing to the Government (not to mention the judges). A number of NGOs have spoken out against these proposals, including Liberty, Reprieve, Amnesty and Inquest – see our most recent post on the topic.
NHS risk register release vetoed
In a move unlikely to reassure those who fear the effect of the changes to the NHS, Ministers voted this week to veto the release of the NHS risk register. Andrew Lansley stated that this was “not a step I have taken lightly”. But take it he did, leaving the country asking: just what is there to hide? He also went on to say that he was a “firm believer in greater transparency” and that “this government and this department have done far more than our predecessors in publishing information about the performance and results of our policies”. For the BBC’s report, see here.
The Panopticon Blog has blogged on the veto here, noting Andrew Lansley’s need to ensure that there was a “safe space where officials are able to give ministers full and frank advice in developing policies and programmes” and asking whether we are going to see a more prolific use of the powers of veto in the future. If we are, Panopticon noted that it may well have important political ramifications for the Coalition Government as well as recasting the FOIA landscape more generally. Panopticon has also blogged on the release of the Minister’s statement two days later, noting that one of the factors listed as a reason not to release the register was the fact that to do so would have acted as “a serious distraction from progressing the [NHS reform] proposals”.
The Information Commissioner’s Office released a statement saying that they would need to study the Secretary of State’s statement of reasons for imposing the ministerial veto in this case, and that these must, under the criteria established by the government, be “exceptional”. The Commissioner’s report on the matter will be presented to Parliament next week.
Justice, open to all.
Inforrm has cross-posted a blog by Eoin O’Dell of the excellent Cearta.ie blog on the case McKillen v Misland (Cyprus) Investments Limited  EWHC 1158 (Ch) (26 April 2012) and the attempt by the applicant to apply a confidentiality regime in respect of his personal finances. In rejecting this, Mr Justice Richards emphasised that the open justice principle is not a mere procedural rule, but a fundamental common law principle – any departure from the principle was permitted only if it was necessary in the interests of justice. He went on to reiterate that sitting in private is the last resort, and that, where the court is satisfied that some inroad into the principle of open justice is required, it will strive to keep it to the minimum and will sit in private only if any other course is effectively unworkable. That would be a no, then.
Freedom of speech upheld
Rachit Buch blogs on the UKHRB on the recent decision in Calver, R (on the application of) v The Adjudication Panel for Wales  EWHC 1172 (Admin). This concerned the decision to censure a Welsh councillor for sarcastic and lampooning comments on his blog about the Council and other councillors. The High Court has ruled that this was a disproportionate interference with his right to freedom of expression, noting that this right requires a broad interpretation of what counts as “political speech”. He notes that the case may have an impact for many local and national politicians who regularly blog and tweet, and that it has a still wider application as it gives guidance on how restrictions on free speech – for the clearly legitimate aim of upholding public standards in government – should be interpreted, so as to avoid unlawful infringement on the right to freedom of expression.
Climate change and human rights
More debate on the UKHRB on the question of whether climate change is a human rights issue. Nicola Peart responds to David Hart QC’s post and asks whether human rights based climate change litigation is really so radical. She considers such cases as Hatton v United Kingdom, Lopez Ostra v. Spain and AES v. Steadfast, amongst others. She concludes by saying that individuals can, through the protection of their human rights, protect their interests, raise awareness and place pressure on their governments to act more ambitiously on climate change.
Mental health detention – who got it right
Martha Spurrier, in-house counsel at Mind, a mental health charity, responds to Rosalind English’s post on M.S. v United Kingdom where she had commented that this case was a prime example of using Article 3 as a social and economic right, not a basic civil right and, thus extended, leaves publicly funded authorities to carry out difficult jobs with threats of litigation looming on all sides.
Martha Spurrier disagrees, drawing attention to the nature of the mental health crisis that M.S. suffered in the police cell over four days which included him banging his head against the cell wall, beating his chest, stripping naked, drinking from the toilet bowl, ranting incoherently and smearing himself in food and faeces. She admits that this case represents an extension of the ambit of Article 3 but argues that the genesis of this judgment can perhaps be found in Aerts v Belgium where the Court found that there had to be a proper relationship between the aim of detention and the conditions in which it took place, namely that detention on the basis that someone was of “unsound mind” (Article 5(1)(e)) should take place in a therapeutic environment and not a prison.
Keeping statutes up to date
Richard Ekins has written a piece on the UK Constitutional Law Group blog on the recent decision in Yemshaw v London Borough of Hounslow  UKSC 3. The question in Yemshaw was the meaning of ‘violence’ in s 177(1) of the Housing Act 1996. Lady Hale gave the leading judgment and she argued that s 177(1) now extends to harmful or abusive action at large. She notes that by 1996, when the term ‘domestic violence’ is used, there is a consensus amongst national and international governing bodies that ‘domestic violence’ is more than just ‘physical violence’. Ekins argues that updating statutes in this manner is unconstitutional because it is inconsistent with legislative authority.
Who hates the Human Rights Act?
Beneath the Wig has published a post triggered by Louise Mensch MP’s tweet that the Human Rights Act 1998 is loathed by the public, is drafted too broadly, and is a terrible law. She takes a closer look at the Human Rights Act and notes that what the public seem to loathe is the Daily Mail/Conservative Party version – that which tells us that owning a cat allows an illegal immigrant to stay here, a version that simply isn’t true.
The CPS Blog has published a post on the fact that the Spectator magazine has been charged with contravening an order prohibiting the publication of certain assertions about the defendants in the Stephen Lawrence trial.
Effectiveness of the human rights movement
Professor Samuel Moyn of Columbia University has written a thought-provoking piece in the New York Times about the human rights movement. He argues that it hasn’t made enough of a difference, that while human rights have succeeded in combating totalitarianism and preventing atrocities, they but have proved less able to promote the good life for people suffering less spectacular wrongs. William Schabas responds vigorously on the PhD Studies in Human Rights blog, countering that Samuel’s approach is too US-centric and giving examples of the many things which the human rights movement helped to bring about, including the abolition of apartheid and the death penalty – see also Adam Wagner’s 2010 post on Moyn’s theory.
In the courts
AHK & Ors v Secretary of State for the Home Department  EWHC 1117 (Admin) (02 May 2012). High Court orders that Closed Material Procedures should never be available in immigration naturalisation cases, even by consent. Mr Justice Ouseley invites Parliament to provide for CMPs.
M v London Borough of Croydon  EWCA Civ 595 (08 May 2012). Master of the Rolls gives guidance on the award of costs in judicial review proceedings where public authority concedes some or all of relief the claimant seeks.
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- Climate change human rights litigation: is it so radical? Nicola Peart May 9, 2012
- Abu Qatada appeal was in time but will not be heard by Grand Chamber May 9, 2012 Adam Wagner
- Should we outlaw genetic discrimination? May 9, 2012 Rosalind English
- Greek far right win is a reminder of why we need European human rights standards May 8, 2012 Adam Wagner
- European Court got it right on mental health detention delay – Martha Spurrier May 7, 2012
- Censure of councillor for “sarcastic, lampooning and disrespectful” blog breached his free speech rights May 7, 2012 Rachit Buch