Leveson Lands, Cameras in Court and Secret Courts – The Human Rights Roundup

3 December 2012 by

Leveson inquiryWelcome back to the UK Human Rights Roundup, your weekly smorgasbord 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.

A bumper edition this week, mostly thanks to Lord Justice Leveson and his long-awaited report, released this week to a tumult of online commentary. In overshadowed, but potentially no less significant news, the House of Lords approved amendments to the “secret courts” Justice and Security Bill; the Joint Committee on Human Rights reported on the Crime and Courts Bill, and we have another round of arguments for and against the UK’s continuing association with the European Court of Human Rights.

In the news

The Leveson Report

“L-Day” has come and gone – this Wednesday Lord Justice Leveson delivered his Report into the Culture, Practice and Ethics of the Press. For those daunted by its size (Part 1 alone is over 400 pages long), the executive summary can be found here. The report proposes independent regulation of the press, backed by statute (but not involving the government in any way), and recommends a legal duty on politicians to protect press freedom. There are rather a lot of opinions, analyses and comments floating about on the Internet on this subject, so I have been a bit choosy (for those who want to explore every possible facet on the issue, the list of links above should whet Leveson-related appetites).

First off, a summary of the proposals in the report – try this post by Edward Craven on Inforrm’s blog, which is both thorough and concise, or this post also on Inforrm by Aidan O’Neill QC. The model for future press regulation in the UK, as proposed by Leveson, is for an independent body established and recognised by the press industry, which is itself subject to regulation by an independent “recognition body” whose task it would be to ensure that the first body was performing its duties in line with “legitimate requirements” in an Act of Parliament. This system would be backed up by the threat of direct statutory regulation (by a “backstop regulator”) if it fails to gain the support of the whole press industry. Lord Justice Leveson’s own take on the report can be found here.

Now, the bloggers’ responses to the report: ObiterJ has posted a very informative initial reaction, which covers Lord Justice Leveson’s main points upon the publication of his report – a free press is a vital safeguard in a democracy (and as such, the government should not be involved in press regulation), there was no evidence of widespread corruption at the top level of police/media relations (though politicians did get too close to media elements), and Ministers were the right people to make decisions on press ownership (specifically, to check plurality). ObiterJ also summarises the reaction of the Prime Minister to the report (namely, that David Cameron approves of the “Leveson principles” but doubts that statute is necessary), and includes a section listing other reactions to the report, and which way they lean.

Other posts worth a read (in my opinion; of course there are many others):

  • Rachel Kamm’s post on the Panopticon blog, which focuses on the proposed data protection reforms in the Leveson report;
  • Richard Moorhead’s post on his Lawyer Watch blog, which also takes an interesting angle on Leveson: this time, dealing with lawyer’s costs, legal aid and the ethics of an adversarial legal system;
  • Damian Tambini’s analysis of the report on Inforrm’s blog, which assesses how Leveson’s self regulation-based regulatory body would work, and how it avoids the “Desmond problem” of newspaper chiefs refusing to take part in self regulation schemes;
  • Brian Cathcart’s opinion piece, also on Inforrm’s blog, which strongly criticises the Prime Minister’s rejection of the full extent of the Leveson proposals because they contain the word “statutory”,  pointing out that without the statutory backbone, the press is free to set up a self-interested self-regulation body with a veneer of respectability and carry on with business as usual, leading (eventually, once the public has largely forgotten about phone hacking scandals) to further outrages in the future.
  • The Without Prejudice Lawcast, which discusses the report, is worth a listen also. The guests are Carl Gardner, Jez Hindmarsh and David Allen Green.

The Leveson report has also created a strange accord (or romance, as Adam Wagner would have it in his post on the subject) between the Daily Mail and the Human Rights Act, with the normally rights-bashing newspaper publishing an interview with Shami Chakrabarti (director of Liberty and advisor to the Leveson Inquiry, who has subsequently clarified her comments) in which she argues that making Ofcom the “backstop regulator” with statutory powers to punish newspapers would violate Article 10 ECHR (freedom of expression). Adam Wagner predicts the “romance” between the paper and the HRA will be short-lived. Also of interest here is this post by Hugh Tomlinson QC, who disagrees with Chakrabarti and points out that she has been misrepresented (she did not, in fact, say that the Leveson proposals, if enacted, would be illegal or incompatible with the HRA).

Finally, if anyone is still reading this section, I have an amusing treat: the Top Ten Funniest #Leveson Tweets, courtesy of Legal Cheek.

Cameras in Court: the Crime and Courts Bill

The Joint Committee on Human Rights (JCHR) this week published its report on the Crime and Courts Bill which (among other things) allows for the use of television cameras in courts other than the Supreme Court. The most recent version of the Bill can be found here, and the JCHR’s report here. A summary of the main points raised by the report has been kindly provided on the JCHR’s news page, and is well worth a read by anyone who wants to familiarise themselves quickly with the human rights issues identified by the committee as being raised by this Bill. Some major areas of concern for the JCHR:

  • The Bill introduces a power to confer counter-terrorism functions on the National Crime Agency, provisions to make it exempt from freedom of information law, and to prevent strike action by Agency officials with operational powers;
  • The Bill confers a power on the Lord Chancellor to lift the ban on filming and broadcasting of court proceedings – the JCHR is concerned that this power may discourage certain vulnerable witnesses and victims from testifying in criminal trials, and strip certain vulnerable defendants of necessary protection. Further explanation of this particular area of concern may be found in this article in the Law Society Gazette by Catherine Baksi;
  • The JCHR sees the Crime and Courts Bill as an opportunity for amending Section 5 of the Public Order Act 1986 (which criminalises threatening, abusive or insulting words and behaviours outside a “dwelling” and within the hearing or sight of a person likely to be caused harassment, alarm or distress as a result), specifically to remove the word “insulting” which it considers to encroach too greatly on freedom of expression.

The Justice and Security Bill in the House of Lords

The second major Government Bill in the spotlight this week was the Justice and Security Bill, which (amongst other things) provides for Closed Material Procedures (CMPs) – the “secret courts” bill that longtime readers of this blog will be familiar with (the posts dealing with this subject can be found here). Very briefly, this Bill provides for the extension of proceedings using evidence which one party to the litigation (and the public) cannot see (his lawyers can, but they aren’t permitted to discuss the evidence with the client) to civil trials. The Bill has been widely criticised, including, tellingly, by the “special advocates” (on this very blog) who work on SIAC cases which use closed material proceedings, and have to defend their clients without being able to discuss some of the evidence with them.

This week, the house of Lords proposed amendments to the Bill, which have been received as being welcome, but not far-reaching enough by Tom Hickman, who commented on the amendments on the UK Constitutional Law Group blog. Mr. Hickman identifies three areas of deficiency in the amendments:

  1. The Lords did not vote down Part 2 of the Bill (which contains the CMP provisions) – and rejected a proposed amendment that would have had this effect;
  2. The Lords did not include an amendment that would require a balancing exercise (the interests of justice in disclosure and a fair trial vs. national security demanding secrecy) to be performed in respect of whether each piece of evidence should be made “secret”. Currently, the Bill requires this exercise to be performed in respect of whether CMP should apply only, and all even slightly sensitive evidence is secret once it does;
  3. The Lords did not include an amendment requiring the CMP system, if enacted, to be independently reviewed after having been in operation for some period of time.

The post is definitely worth a read, as it explains these points (and also where the Lords made worthy amendments removing the worst of the Bill’s proposals) in far more detail than I have done, and considers the consequences of each of the Lords’ failings. It ends with some troubling speculation on further potential problems with CMP, including the potential for the military and police to use them. The human rights pressure group Liberty also sees the amendments as a step not far enough in the right direction, as seen here. Finally, see this post on UKHRB by Angela Patrick, director of JUSTICE, which also discusses the significance of the Lords’ amendments.

Should the UK stick with Strasbourg? The debate continues

Former Justice Minister Nick Herbert MP gave the second Kingsland Memorial lecture, where he asked the question “what’s gone wrong with rights” – the transcript of this lecture may be found here. His argument centres around the “legalism” of the ECHR undermining the role of democracy in protecting human rights and how a focus on human rights has led to an “entitlement culture” where human rights are employed for personal gain and responsibilities are ignored. He concludes that “bold steps” (namely, withdrawing from the European Court of Human Rights’ jurisdiction) are needed to repatriate rights and restore Parliamentary Sovereignty (he rejects the idea that this is in fact government sovereignty – wrongly, in my opinion, as by definition a serving government has a majority in the House of Commons and can thus control the sovereign legislature).

Carl Gardner of Head of Legal has posted a response to the lecture, where he dissects the argument and identifies many areas in which he is in agreement, but ultimately rejects Mr. Herbert’s conclusions. Mr. Gardner is instead of the opinion that the ECHR has more strengths than weaknesses and that the weaknesses it has can be amended by reform – that Britain shouldn’t leave the table, but rather play a long game in Strasbourg to achieve its aims, and thinks that Mr. Herbert downplays the consequences of leaving the ECHR in his lecture. He does, however, point out that the government has two choices – leave the Convention or obey Strasbourg’s decisions, and there is no space in between – and that this is correctly identified by Nick Herbert.

Finally, John Eekelaar, writing on the Oxford Human Rights Hub, makes a concise point in favour of remaining with Strasbourg and the ECHR – human rights, by their nature, apply to all humans and it is a misnomer to claim that any national system of rights law deals with “human” rights (a British Bill of Rights, therefore, would enforce British rights). A supranational system such as the ECHR is far truer to the concept of rights inherent to every human being on Earth. He also points out, like Carl Gardner, that just because one is dissatisfied with the current situation doesn’t mean one should give up – trying to make the ECHR work better should be the government’s aim.

Two interesting posts have come out of the UKHRB mill on the subject of the value of human rights in the UK this week. The first, by Adam Wagner, reminds us of the imminent (well, due in a month) report by the Commission on a Bill of Rights, which may have been overshadowed by Leveson for some, and is of course of tremendous significance in the debate over what the UK should do about human rights law going forward (see also this Guardian article, which aims to set out a “dos and dont’s” for the Commission). The second, by Rosalind English, is an analysis of a lecture given early last month by Lord Justice Laws at Northumbria University, which considered whether rights have hijacked the language of morals, and proposed that rights be re-framed as duties of government (as they are intended to be things provided by the government in the public interest).

In the courts

Tajik, R (on the application of) v The City of Westminster Magistrates’ Court & Ors [2012] EWHC 3347 (Admin) “Inordinate” delays by USA mean it is now too late to order extradition of former Iranian ambassador, rules High Court.

Ruddy v. Chief Constable (Strathclyde police) & another (Scotland) [2012] UKSC 57 Considers procedure in damages claims for alleged infringement of  under the Scotland Act 1998 and the Human Rights Act 1998. Supreme Court concludes that the Court of Session was wrong in principle here: their objection to the pursuer’s claim was based on a rule (no pursuing/suing two defenders/defendants for a lump sum jointly and severally) which did not apply.

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Local Authority reasonableness reasons reasons challenges recent case law and news Recent posts reception conditions recognition of judgments recreational rights Redfearn v UK referendum reform refugee applications refugee crisis refugee status refusal of treatment Registrar of Births Deaths and Marriages registration regulatory rehabilitation of offenders Reith Lectures Re J (A Child: Disclosure) [2012] EWCA Civ 1204 relgious freedom Religion religion in the courts religious beliefs religious discrimination religious freedom religious prosecution remedies renewables subsidies rent repeal reporting restrictions representation reproductive rights reproductive technologies reproductive wrongs rescue rescuer's claim resettlement of offenders resource allocation respect for family life responsibility in tort restrictions on exports restrictions on liberty results 2010 resuscitation retrospective application of the Human Rights Act retrospective legislation retrospective penalty retrospectivity rev paul nicholson reynolds Reynolds defence Re [2012] EWCA Civ 1233 richard III Richard O'Dwyer right of appeal rightsifno RightsInfo rights of children Right to a fair hearing right to a fair trial right to a home right to a remedy right to artistic expression right to a student loan right to autonomy right to autonomy and privacy right to die right to dies right to die with dignity right to dignity right to education right to expression right to family life right to food right to free enjoyment of possessions right to information right to liberty right to life right to peaceful enjoyment of property Right to Privacy right to private and family life right to refuse treatment right to respect for private life right to silence right to strike right to swim right to truth right to vote Rihanna Rio Ferdinand riots ripa rise of fascism risk risk assessment rival supermarkets Roma Roman Catholic Roman Catholic Church roman catholic schools Romania Rooney's Gold roundup roundup ready Royal Brompton and Harefield NHS Foundation Trust royal dutch petroleum royal name Royal Oper House Royal Prerogative rule of law Rupert Jackson Rusal Russia russia and human rights Russian Federal Security Service Rutherford Ryanair s sadie frost Safari same-sex same sex parents same sex partnerships same sex relationship sanctions set aside sanctity of life Sandiford Sapiens Sarah Ferguson sark satire saudi arabia Savage (Respondent) v South Essex Partnership NHS Foundation Trust Saville Report schedule 7 schizophrenia school building school surveillance schrems science scientific atheism scientific research scientology Scoppola Scotland Scotland Act Scotland Act 1998 Scotland Bill Scottish Government Scottish Human Rights Commission scottish landlord and tenant Scottish Parliament SCOTUS sea fishing seals Seal v UK search engines search powers secondary legislation secondary smoking secrecy Secretary of State Secretary of State for the Home Department v AP secret courts secret criminal trial secret evidence secret justice Secret trials sectarianism secularism security security cameras security services security vetting Sedar Mohammed segregation Select Committee on AI self-defence self-incrimination seminar sentencing September 11 serco serious harm sermon Seroxat service outside jurisdiction set-off Sewel Convention sex abuse sex ban sex ban low IQ sex offender Sex offenders sex register sexual abuse Sexual Offences sexual orientation sexual orientation regulations SFO investigation sfo unlawfulness shaker aamer Shamima Begum sham marriage shared residence order Sharon Shoesmith shetland shipping shipwreck Shirley Chaplin shooting shoulder shrug should trees have rights SIAC sihkism Simon Singh sir alan ward Sir Nicholas Wall Sir Peter six months rule slander slaughterhouses slavery smacking small claims court small solar Smith Smith & Ors v The Ministry of Defence [2012] EWCA Civ 1365 smog smoking ban Snyder v Phelps social and economic rights social benefits social housing socialite social media social security law social welfare social workers Solicitorsfromhell website solitary confinement soma somali pirates sources South Africa south african constitution sovereignty Sovereignty clause soviet union soybean Spanish properties spare room subsidy special advocate special advocates species specific performance spending cuts spielmann squatters Standing standing rules starvation state immunity statelessness statute statutory power Statutory purpose stay of execution stem cell research stem cells stem cell therapy Stephen Gough stephen sedley stepping hill hospital Sterilisation steve macqueen Steven Neary stobart-law stop and search stop powers Stormont Assembly storms Strasborug Strasbourg Strasbourg Court strasbourg damages pirates strasbourg law Strasbourg terminology strategic environmental assessment strike strike out Strikes student loans sturgeon subsidies Sugar v BBC suicide suicide act 1961 super injunction super injunctions supermax prisons superstition Supreme Court Supreme Court Live Supreme Court of Canada Supreme Court Scotland surgery surrogacy surrogacy arrangement surveillance swine flu Syria systemic violence Take That tallinn tariff Taser Tax tax avoidance tax discrimination tchenguiz technology Telegraph telephone preference service television justice tenancy tent city termination termination of pregnancy terror asset freezing Terrorism terrorism act terrorism act 2000 terrorism legislation terrorism prosecution terrorist finance terrorist threat terry pratchett Tesla testamentary dispositions The Bike Project the Catholic church The Corner House theism The Law in These Parts therapy Theresa May the right to privacy The Stig The Sun third countries third party appeals three way case time limits time limits in human rights Tobacco tobacco cartels Top Gear tort Torture torture inquiry totally without merit TPIM TPP tracking trade trade secrets trades unions trade union congress Trade Unions transexual transsexual transsexuals travel travellers travel restrictions treason treatment treaty treaty accession trial by jury trolling TTIP TTM v London Borough of Hackney & Ors Tugendhat tumour Turkey tweeting in court Twitter twitter in court Twitter Joke Trial UK UK citizenship uk constitution UK election UK Human Rights Blog UK Human Rights Roundup UKIP UK Jewish Film Festival ukraine UK Supreme Court UK Uncut ultra orthodox jews ultra vires UN unable to vote unacceptable behaviour policy unaccompanied minors unborn child UN Convention on the Rights of the Child unelected judges unemployment unfair consultation unfair dismissal unfairness at hearing Unison Unite United Against Fascism Group United Kingdom United Nations United States United States v Windsor universal declaration of human rights universal jurisdiction Universal Periodic Review University University Fees university of east anglia University of Southampton unjust and oppressive unlawful arrest unlawful detention unpaid work schemes UN Resolution unsolicited calls UPR US aviation US Constitution use as of right US Supreme Court vaccination Valkyries variants veganism vehicle breakdown vetting and barring vicarious liability victim victim status Victoria Climbie victorian charter Vienna airport vigilantism villagisation vinton cerf violence violist visa scheme vivisection voluntary euthanasia Volunteers voter compensation voters compensation voting voting compensation vulnerable Wagner Wakefield Wales War war correspondents ward of court War Horse water utilities Watts Wayne Rooney Websites welfare of child welfare of children welfare of the child welfare state welsh bill western sahara whaling What would happen if the UK withdrew from the European Court of Human Rights whimbrel whisky Whistleblowing WHO who is JIH whole gene sequencing whole life orders whorship Wikileaked cable Wikileaks wiklleaks Wild Law wildlife Wildlife and Countryside Act will William Hague William Marbury wills wind farms wind turbine Winterbourne View witchcraft withdrawal of treatment wolves women's rights Woolas worboys Workers working time directive wrongful birth wrongful conception wrongful life WTO wuhan X AND OTHERS v. AUSTRIA - 19010/07 - HEJUD [2013] ECHR 148 X Factor XX v Secretary of State for the Home Department [2012] EWCA Civ 742 X Y and Z v UK Yemshaw Yildirim v Turkey Your freedom website YouTube yukos Yuval Noah Hariri Zakir Naik Zanu-PF Zero Hours Contracts ZH (Tanzania) v Secretary of State for the Home Department Zimbabwe Zimbabwe farm invasions ZN (Afghanistan) (FC) and others ZZ [2015] CSIH 29 [2015] CSOH 168 £750

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