Bill of Rights, Hillsborough and Redfearn – The Human Rights Roundup

24 December 2012 by Sam Murrant

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 the Commission on a Bill of Rights reported its findings, and commentary on the report has dominated the blogoshpere. We also have some analysis on the latest developments in the Hillsborough saga, analysis of the Redfearn (the BNP bus driver case) case and comments on prosecutions involving social media.

You may also notice that the UK Human Rights Blog has a slightly refreshed design – please do send us your comments if you have any.

In the news

 The Commission on a Bill of Rights Reports

The Commission on a Bill of Rights has published their report this week, and much like when the Leveson Inquiry reported, there is an enormous volume of online commentary. I will follow the same approach I did with Leveson, and cherry-pick those posts which I think are most edifying. The rest can be found on UKHRB’s list of links.

For those of you who would rather read a summary than the report itself (which is admittedly very long and not particularly pithy, filled as it is with the general flavour of uneasy compromise), Adam Wagner has published an initial analysis on UKHRB. See also ObiterJ’s initial take, and Mark Elliot’s post on the ApplyingforLaw Blog, which helpfully breaks down the report into 10 major questions, cutting straight to the practical impact of the report.

Armed with an initial understanding of the report, here are my recommended pieces of analysis and commentary:

• The two official dissenters, Phillipe Sands and Helena Kennedy, have published a minority report setting out their reasons for disagreeing with the qualified “yes” to a UK Bill of Rights given by the other 7 Commissioners. It can be found here;

• Ben Emmerson QC (who some may remembers was a candidate for the position of UK judge in the Strasbourg Court), writing in the Guardian, argues forcefully in support of the minority in the Commission, against “anti-European mischief” that threatens human rights in the UK;

• Digging a little deeper, Amy Williams’ guest post on UKHRB reveals another split in the Commission, dividing opinion into three camps: two in the majority with differing views on the nature of the Bill of Rights and the dissenters in the minority;

• Ryan Goss’s post on the UK Constitutional Law Blog attacks the majority’s claim that there is “a strong argument” in favour of a UK Bill of Rights;

• Colm O’Cinneide’s post on the same site identifies another major problem with the report – the government’s opinion on the Bill of Rights issue has changed from wanting to make the law enshrining ECHR rights in the UK more “British” to wanting to curb the “activism” of the “unelected judges” in Strasbourg;

• Geoffrey Bindman’s post on OpenDemocracy.net reveals what he thinks is the main conclusion of the report: that no Bill of Rights is in fact needed, but one is desired anyway because of the unpopularity of human rights (and the ECHR in particular) in the public consciousness. It goes on to explain that this, too, is a flawed argument and we need nothing more than the HRA – and to try to reform the Strasbourg court from within, if we disagree with its decisions so much;

• Finally, this excellent Telegraph article by Mary Riddell points out (once again) that the Commission was crippled from the start by the impossibility of its task – that there is no “magic solution” to the problems we are having with human rights.

Hillsborough

A new inquest into the Hillsborough football disaster that claimed the lives of 96 Liverpool fans in 1989 has been opened, following the quashing of the findings of the original inquest by the High Court (see this BBC News report). See also ObiterJ’s short blog post about this new inquest, which goes into greater detail about the nature of the new inquest and includes links to all the available reference material concerning it.

The BNP Bus Driver

Redfearn v. UK, decided in Strasbourg last month, established that it is a breach of the right to free association under Article 11 ECHR to dismiss an employee summarily on grounds of his/her membership of a political party – a victory for the claimant, an ex-bus driver dismissed due to his membership of the BNP. In a two-part post on the Oxford Human Rights Hub this week, Dr. Alan Bogg first explains the background to the case, then analyses the implications of the decision for other bodies, especially trade unions.

DPP and Twitter

In the wake of the Leveson Report and the (relatively) recent high-profile criminal cases involving social media, the Director of Public Prosecutions has released some interim guidelines for prosecutors in cases involving social media communications, which are subject to a 3-month public consultation.

The guidelines are explained, put in context and analysed admirably by Edward Craven and Alex Bailin QC in a joint post on Inforrm’s blog (recommended also by Adam Wagner). See also Adam Wagner’s own take here, which welcomes the guidelines but considers that the real problem is the archaic law.

New President of the Family Division

Number 10 has released an online Press Notice stating that the Queen has approved the appointment of Lord Justice Munby as President of the Family Division, following the retirement of the previous incumbent, Sir Nicholas Wall. See also this post on the Researching Reform blog, which includes some background on the new President, who is described as “forward-thinking” and a strong advocate for more open justice and solely secular government.

In the courts

R (on the application of) Louisa Hodkin v. Registrar-General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin) Judgment only. Scientologist fails in challenge to refusal to register Scientology chapel as “place of meeting for religious worship” so she could marry partner. Mr Justice Ouseley rules he is bound by CA authority on definition of “worship” but invites CA to review that authority. See also Rosalind English’s summary and analysis of the case.

Essa, R (On the Application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor [2012] EWCA Civ 1718 No error of law in First Tier Tribunal’s approach to foreign national deportation case with EC Law element, rules Court of Appeal.

Khan, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs [2012] EWHC 3728 (Admin) High Court rejects challenge to ‘refusal’ to provide information on whether UK authorities assisted US drone strikes in Afghanistan.

DH (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 Court of Appeal: Zambrano principle doesn’t cover anything short of an EU citizen being forced to leave the EU.

KB (Failed asylum seekers and forced returnees) Syria CG [2012] UKUT 426 (IAC) New country guidance case on Syria. Almost all failed asylum seekers or forced returnees would face real risk of mistreatment on return so entitled to refugee protection. That said, might still be cases where person would still be seen as Assad supporter upon return so not at same risk.

Upcoming Events

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.

• Fundamental Rights In Europe of Humanities and Social Sciences – Oxford Brookes University
  Fundamental Rights In Europe: A Matter For Two Courts 18 January 2013, Oxford Brookes University
• Refugee and Migrant Children and Young Persons’ Rights in Scots Law
  Legal Services Agency, Glasgow, 15/1/13, 10am-1pm, £60-£150

UKHRB posts

• Chagossians hit the buffers in Strasbourg – but not over yet Dec 22, 2012 David Hart QC
• What lies beneath the Commission on a Bill of Rights report – Amy Williams Dec 20, 2012 1 Crown Office Row
  
• Scientology does not qualify for chapel registration, rules High Court Dec 20, 2012 Rosalind English
• New prosecution guidance on offensive speech online: sensible, but the law is still out of date Dec 19, 2012 Adam Wagner
• The Bill of Rights Report – a modest proposal Dec 18, 2012 Adam Wagner
• Commission on a Bill of Rights BINGO! Dec 17, 2012 Adam Wagner
• Run for the hills! Here come the noisy grasshoppers Dec 17, 2012 Adam Wagner

by Sam Murrant