Stalking, Judicial Review threatened and Prisoner Voting (Again) – The Human Rights Roundup

25 November 2012 by Daniel Isenberg

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.

The government was on the defensive this week on a number of fronts.  It suffered significant defeats in the House of Lords over its proposals for secret civil trials under the Justice and Security Bill.  Prime Minister David Cameron has also received a barrage of criticism over his calls for tightening the criteria for judicial review applications.  Meanwhile, the prisoner voting saga continues, with Justice Secretary Chris Grayling (on the eve of the deadline) giving Parliament (or, more accurately, a Parliamentary committee) three options on the issue. Meanwhile, a new criminal offence of stalking has been introduced.

by Daniel Isenberg

In the news

New stalking offence 

‘Stalking’ and ‘Stalking involving a fear of violence’ have today become criminal offences under Section 111 of the Protection of Freedoms Act 2012, which adds a section 2A to the Protection From Harassment Act 1997.

Secret Courts

The government was again criticised this week for its proposals to introduce closed material proceedings in the draft Justice and Security Bill, which is currently before the House of Lords.  Criticism has come from a variety of sources, not least the Joint Committee on Human Rights, making its views known here on the consequences of the Bill for equality of arms between ministers and other litigants.  The Daily Mail has continued its own condemnation of the plans, also highlighting the warnings of the Law Society that if the bill passes in its current form, it will damage the reputation of Britain’s legal system.

However, some of the strongest criticism has come from the Bar: Dinah Rose QC following up her testimony before the Joint Committee on Human Rights while the bill was only a Green Paper with a piece in the Guardian co-written with Philippe Sands, QC.  Their main thrust against the proposals is based on both principle, and claims that the government’s arguments for the need for closed material proceedings are unsubstantiated.

Ultimately, the government was defeated on a number of issues in the House of Lords, including an amendment proposed by Lord Pannick QC to give greater discretion to judges, rather than ministers.  The ObiterJ blog importantly points out that whilst the provisions of the bill have been narrowed, the idea of closed material proceedings has not been rejected – the amended version of the bill is here.

For up to the minute updates on this issue, the University of Reading’s Law Terrorism and the Right to Know website and Twitter account (@UniRdg_LTRK) are excellent.

Judicial Review under threat

In his attempts to court business leaders at the lobby group CBI this week, David Cameron spoke of his plans to curb judicial review by reducing the time limit for bringing litigation, and charging more for claims.  See Adam Wagner’s view on this blog.  The Prime Minister’s comments have not been well received in the legal world, with a strong dissent from Professor Sir Jeffrey Jowell QC on rule of law grounds, echoed by Dr Mark Elliott on his blog.  The BBC’s Robert Peston raises more practical concerns for the plans as they pass through Whitehall and Thom Dyke addresses their effectiveness in The Lawyer.

For a different perspective on this issue, take a look at the statistics compiled by the Guardian and Fullfact on the number and nature of judicial review applications that come before the court.  The Nearly Legal blog, however, warns about how useful outcome statistics are, in its own area of specialism, housing law.

Prisoner Voting (Again)

The issue of prisoner voting and the UK’s compliance with the ruling of the European Court of Human Rights was back in the news this week, as covered by Adam Wagner on this blog.  The BBC has also provided the background to this issue and the government’s proposals to a solution, though Amy Williams warns on guardian.co.uk of the wider ramifications across Europe, should the UK ignore the decision of the Court.

Later this week, however, the Justice Secretary Chris Grayling did tell Parliament that it could opt to keep the uniform ban, though warned of the “political cost”.  The Head of Legal blog views the Justice Secretary’s decision to put forward the draft bill for pre-legislative scrutiny as “playing for yet more time”, a view echoed by Joshua Rozenberg in the Guardian.   Finally on this, Simon Jenkins reminds us that the UK voluntarily signed up to the European Convention on Human Rights, and to abide by its rulings. “It may have been a fool, but foolishness is no defence at law.”

Attitude to Human Rights

A number of people have been talking and thinking this week about human rights more broadly, and our attitude towards them.  CharonQC in his podcast talks to Professor Fiona De Londras, comparing issues faced by Barack Obama in promising to close the detention centre at Guantanamo Bay, with those faced on this side of the Atlantic by the government in its relationship with the ECHR.  Professor Gavin Phillipson takes a step back from the Abu Qatada affair and examines what it shows us about our politicians’ views on human rights and Europe.

Amongst calls for concern such as this, Liberty have been celebrating human rights practitioners, academics and leaders in their annual awards ceremony.

Lawyers and the Judiciary

Some immigration solicitors have come under fire this week from the President of the Queen’s Bench Division of the High Court for their failure to give full disclosure in ex parte applications relating to urgent requests for deportations to be stayed (see ‘In the courts’ below).  Meanwhile, the editor-in-chief of The Legal Week has been contemplating marketing strategies in the context of the future of the Bar.  Alongside his praise for this blog (!), he argues for a focus on the specialist advocacy skills of barristers, rather than the structures of chambers as we see them now.

Lord Sumption recently gave the Bar Council Law Reform Lecture, in which he estimates it will take a further fifty years before the judiciary is fully diverse.  Erika Rackley offers a ‘third way’ between Lord Sumption’s options of merit or positive discrimination, by viewing a more diverse judiciary as one more able to carry out its vital task.

Also in the News

Amidst the debate around privacy and defamation, Lord McAlpine has been reported to have threatened to sue a large number of Twitter users, including some high profile individuals, such as Sally Bercow.  In the same arena, keep an eye out on Thursday, when Lord Justice Leveson is due to publish the findings of his Inquiry into press standards.

As mentioned in last week’s roundup, the Supreme Court was due to give judgment on vicarious liability in tort.  In doing so, it found that the Institute of the Brothers of the Christian Schools was legally responsible (‘vicariously liable’) for any acts of abuse committed by its members who worked in a school under a contract with a third party – see the helpful explanation and commentary here and here.

Interestingly, the Supreme Court is to decide whether it will hear a case that may call upon it to determine whether an individual is ‘the Third Holy Saint’ within a specific branch of Sikhism.

Finally, a nod in the direction of the Oxford Human Rights Hub, whose most recent piece looks at the American Supreme Court affirmative action case of Fisher v University of Texas.

In the courts

Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)  – Housing trust worker was wrongfully dismissed after he posted privately on Facebook that gay marriage would be an “equality too far” [case comments here and here].

MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB)  – Mr Justice Tugendhat updates his own guidance on child anonymity orders in social media age.

Awuku, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3298 (Admin) – QBD President names and shames 3 solicitors who failed disclosure duties in without notice removal stay applications.

Oakes & Ors v R [2012] EWCA Crim 2435 – ‘Whole life’ sentences in exceptionally serious circumstances don’t contravene Article 3 ECHR, rules Court of Appeal.

Al- Sirri v Secretary of State for the Home Department [2012] UKSC 54 – Supreme Court clarifies meaning of “guilty of acts contrary to the purposes and principles of the United Nations” for the purpose of refusing refugee status, two applicants lose appeal.

Upcoming Events

You may have noticed that the UKHRB now  has an additional feature on the right sidebar of the website. To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• Human Rights Conference 2012 | Law Society £174-£354, Monday 10 December 2012
• Refugee and Migrant Children and Young Persons’ Rights in Scots Law Legal Services Agency, Glasgow, 15/1/13, 10am-1pm, £60-£150
• Housing and Human Rights Update, Legal Services Agency, Glasgow 4 December 2012, 2-5pm, £60-£90

UKHRB posts

•  “Murder most foul”: whole life imprisonment not a human rights breach, November 22, 2012 – Rosalind English
• A £1,000 prisoner vote signing on bonus?, November 22, 2012 – Adam Wagner
• The BAILII lecture: No Judgment, No Justice, November 21, 2012 – Paul Magrath and Daniel Hoadley
• Facebook faux pas and disciplinary proceedings – when do human rights come in?, November 21, 2012 – Rosalind English
• Chagossians: the latest, November 21, 2012 – David Hart QC
• A war on Judicial Review?, November 19, 2012 – Adam Wagner