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

3 December 2012 by Sam Murrant

Welcome 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.

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

• 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
• Human Rights Conference 2012 | Law Society £174-£354, Monday 10 December 2012

UKHRB posts

• Mail finds new love for the Human Rights Act 2 Dec, 2012 Adam Wagner
• The Leveson Report is here! 29 Nov, 2012 Adam Wagner
• UK not doing enough to combat human trafficking and domestic slavery 28 Nov, 2012 Alasdair Henderson
• How to keep children anonymous in personal injury cases 28 Nov, 2012 Rosalind English
• Hugely important report due imminently… no, not that one 28 Nov, Adam Wagner
• Habitats: how to stop death by a thousand cuts 27 Nov, 2012 David Hart QC
• Have human rights hijacked the language of morals? – and other questions: Laws 27 Nov, 2012 Rosalind English
• Secret Courts remixed: any better than the original? – Angela Patrick 26 Nov, 2012 1 Crown Office Row
• Debating the Abu Qatada affair – Gavin Phillipson 26 Nov, 2012 1 Crown Office Row

by Sam Murrant