Acronym special: UK, US and ECHR – The Human Rights Roundup

1 July 2012 by Sam Murrant

Paul Mahoney

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 some interesting updates and speculation on the latest twist in the tale of Julian Assange, more commentary on the Justice and Security Bill and on David Anderson QC’s report on UK terrorism law. Across the pond, President Obama had a particularly good week in the courts. Finally, the results are in: the UK’s next Strasbourg judge will be Paul Mahoney.

New Strasbourg Judge for the UK

It’s official: Paul Mahoney is to be the UK’s new judge in the European Court of Human Rights, following Sir Nicholas Bratza’s impending retirement. Joshua Rozenberg considers this to be a political appointment, and expresses his disappointment that the parliamentary assembly of the Council of Europe did not make their decision based on merit (having tipped Ben Emmerson QC as the favourite). Strasbourg judges being elected, as opposed to chosen based on merit as our senior judges are (in principle at least), merit is no guarantee of victory, and so victory went to the 65-year-old civil servant. For more on why Rozenberg considers this a disappointing result, see his article in the Guardian.

Assange Update

WikiLeaks founder Julian Assange remains under the protection of the Ecuadorean government in the London embassy while they process his application for asylum. Carl Gardner, in his post on the Head of Legal blog, considers that it may be difficult for Assange to prove that he is being “persecuted” given that he has received due process under the law, but that Ecuador may nevertheless offer him asylum (as they have done in the past). His post is particularly recommended reading because it then goes into exhaustive and entertaining detail on what methods Assange could use to escape the country and reach Ecuador – sealed in a “diplomatic bag”, as a diplomatic courier, or (most far-fetched of all) if Ecuador appointed him as a representative to the UN. It remains to be seen whether any of these “spy movie” strategies will be attempted – Gardner is skeptical that any of them would work, but one never truly knows with Assange.

There has been some recent commentary on whether the Assange decision by the Supreme Court that placed him in his current predicament was correctly decided. Tiina Pajuste and Cameron Miles, posting for the Cambridge Journal of International and Comparative Law, have argued that it may be possible for Assange to seek appeal to the European Court of Human Rights, on the basis that the Supreme Court wrongly assumed that the Vienna Convention applied to the case. Links to their arguments, which are based on the practice of other international courts, can be found here.

For a view of the Supreme Court’s opinion on this issue, see Lord Kerr’s speech to the Inner Temple on the critical point (whether the meaning of “judicial authority” was wide enough to include the Swedish criminal prosecution authority), which was reproduced and commented on by Carl Gardner in this post on Head of Legal.

Justice and Security

The controversial Justice and Security Bill continues to provoke criticism and commentary: this week the House of Lords Constitution Committee gave its report on the Bill, finding that it “challenged” two important Rule of Law principles (open justice and natural justice). The report identified “three basic flaws” in the proposals:

1. The scheme of CMP as presented in the Bill is one-sided in that it confers exclusive discretion on the Government to enact the CMP process
2. The absence of judicial balancing: the court is required to permit material to be treated as closed if it considers that its disclosure would be damaging to the interests of national security,
3. The Court, not the Government, should decide whether CMP or the Public Interest Immunity process should be used in a given case.

Jack Simson Caird, posting for the UK Constitutional Law Group Blog, considers this to be a very significant report for the Government, which must now rebut the Committee’s constitutional concerns (which Caird considers beyond their ability) or risk introducing legislation which is known to be contrary to the constitutional principle of the Rule of Law.

The Guardian reports on criticisms the Bill from 1 Crown Office Row’s very own Angus McCullough QC, who told the Joint Committee on Human Rights that the Government has “misunderstood or misrepresented” the role judges would play in the closed proceedings system currently proposed. The present form of the Bill says that a judge “must” agree to closed material proceedings if the Secretary of State cites national security issues. The Ministry of Justice insists that “the courts will have the ultimate power to decide which documents, or parts thereof, should be heard in open court”, but the special advocates – and indeed the Lords Constitution Committee – have suggested otherwise.

Review of UK Terrorism law

David Anderson QC’s report on the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 was published this week, and may be found here. The report is exhaustive, and is recommended for anyone with the time to read it in full. For those who would rather have the gist, Owen Bowcott’s commentary on the report in the Guardian is an admirable summary of the main points. For the UKHRB’s perspective on the report’s significance, see Adam Wagner’s post this week.

The report deals with the risks posed by terrorism and the operation of the terrorism acts, and covers the operational background, definition of terrorism, proscribed organisations, terrorist property, terrorist investigations, arrest and detention, stop and search, port and border controls and terrorist offences. In particular, the law is described as being too complex, and too enthusiastically applied. As pointed out by Cian Murphy, posting for Human Rights in Ireland, the report’s careful and considered style belies its radical nature – the report makes a great number of recommendations for reform and debate and is actually rather critical of the current law.

US Supreme Court rulings

As pointed out by David Hart QC on UKHRB this week, it’s been a good week for President Obama in the Supreme Court. In addition to his healthcare reforms being ruled constitutional, greenhouse gas rules laid down by the Environmental Protection Agency were not struck down, despite the usual American big business objections about environmental regulation being an attack on American industry and the American way of life. The post goes into more detail about the background to this decision and its implications, given the close relationship between law and politics in the US.

For more on the healthcare case for those interested, see this Economist article, which sets out all the background reading one could need. The decision itself was reported on BBC News, which pointed out the potential negatives for Obama of this decision: the reforms were ruled constitutional by a bare majority; the Justices explicitly did not address the merits of the law, and Mitt Romney may receive a boost in popularity from swing voters opposed to the healthcare laws.

In the courts

Omar & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2012] EWHC 1737 (Admin) The Divisional Court held that Norwich Pharmacal principles (enables orders to be granted to obtain info from third parties to see whether there was unlawful conduct) cannot be used to obtain evidence from Foreign Secretary for use in a foreign court. The cases of Binyam Mohamad and Shakar Aamer, which had been thought to establish this jurisdiction, may both have been wrongly decided. For more commentary on this case, including a summary of the facts and of the court’s reasoning, see Rosalind English’s post for UKHRB.

Ruhul Anam, R (on the application of) v Secretary of State for the Home Department (No. 2) [2012] EWHC 1770 (Admin) High Court reviews principles of assessment of damages in unlawful detention cases, rules that 2 years of substantive damages are to be awarded to prisoner.

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UKHRB Posts

• Good week for Obama in the courts: challenge to climate change regulation also fail 29th June 2012 David Hart QC
• Court refuses to compel evidence on unlawful rendition in foreign proceedings 28th June 2012 Rosalind English
• Lords Reform Bill incompatible with human rights law, says Deputy Prime Minister 28th June 2012 Adam Wagner
• “Cautious rebalancing” of terrorism laws in favour of liberty should continue, says independent reviewer 28th June 2012 Adam Wagner
• German court rules child’s religious circumcision can be a criminal offence – Analysis 27th June 2012 Adam Wagner
• Police retention of photographs unlawful, High Court rules 27th June 2012 Rachit Buch
• What did the German Chancellor say to the EU Commission to get this factory built on a nature reserve? 25th June 2012 David Hart QC

by Sam Murrant