Crosses, Undercover Cops and Rocknroll – The Human Rights Roundup

20 January 2013 by Sam Murrant

Welcome back to the UK Human Rights Roundup, your recommended weekly dose 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 crop of human rights news this week, owing largely to the conclusion of the Eweida case which has been widely discussed in news outlets and legal blogs alike. There have been other significant cases decided this week also: the undercover police case (AKJ and others) and the Rocknroll case, a high-profile celebrity privacy case. In other news this week, public insults are to be legalised, but offensive columnists are censored.

Human Rights Lawyers Association Judicial Review competition

Calling all students! Interested in a career in Judicial Review and human rights? The HRLA is accepting applications for its inaugural Judicial Review competition, deadline 4 February – all details here.

In the news

Freedom of Religion

This week saw the European Court of Human Rights decide the Eweida case (see “In the courts”), in which four Christian applicants sought relief for unfair treatment in employment in connection with various manifestations of their faith. Ms. Eweida, the only successful applicant, and Ms. Chaplin were both restricted from wearing crucifix necklaces by their employers; Ms. Ladele and Mr. McFarlane were dismissed from their jobs for refusing to perform their duties (as a Registrar of Births, Deaths and Marriages and a sexual relationship counsellor, respectively) for homosexuals due to their faith. For a summary of the facts of the case, and an analysis of the decision, see Rosalind English’s post on UKHRB.

There has been a great deal of commentary on this case. The Daily Mail has praised the Strasbourg court for its decision in respect of Ms. Eweida (albeit grudgingly) but lamenting that the treatment of the other three applicants shows that the respect of the Court for Christians’ rights is “paper-thin”.

Carl Gardner, in this post on his Head of Legal blog argues that Strasbourg was “micromanaging” human rights in the UK and even going to far as to disagree with the UK courts’ findings of fact when it came to Ms. Eweida’s case, preferring the dissenting opinion of Judges Bratza and Björgvinsson.

The exception made for Ms. Eweida in what was otherwise a judgment keen to give the UK a wide margin of appreciation leaves the principles to be applied in future quite unclear – as both Joshua Rozenberg (in this Guardian piece) and Joseph Markus (in this post on SocialJusticeFirst) explore. See also Ronan McCrea’s analysis on the UK Constitutional Law Blog and Julie Maher’s post on the Oxford Human Rights Hub, both of which explore the effects this case will have on future situations where Article 9 ECHR (freedom of thought, conscience and religion) is engaged.

The most detailed analysis of the implications of the decision for future cases can be found in James Wilson’s three-part post on ALawyerWrites blog. His first post, written prior to the decision, sets up a hypothetical employment law situation; the second analyses the implications of the decision in general terms; the third discusses whether the decisions were made correctly and applies the principles of the case to the hypothetical situation set up in the first post. The overall thrust of Wilson’s argument is that cases of this nature complicate employment law, which values certainty, and so both employees and employers are disadvantaged as neither can be certain of where they stand without expensive legal intervention.

Covert Human Intelligence Sources

This week saw Mr Justice Tugendhat decide (in AKJ and others, below) that the highly secretive Investigatory Powers Tribunal (IPT) was to hear Human Rights Act claims against the police arising from the actions of “Covert Human Intelligence Sources” (AKA undercover police officers such as Mark Kennedy, who started sexual relationships with a number of female environmental protestors while under cover), where a fundamental right was not breached. For a full analysis of the case, see Simon McKay’s guest post on UKHRB.

Other commentators have also weighed in on this issue. Emma Norton, a legal officer for human rights organisation Liberty, has written a post criticising the current approach of the state to undercover police work of this nature, highlighting the damage suffered by the women who formed relationships with undercover officers and calling for undercover work to be subject to judicial authorisation. She refers to the current system as “state-sanctioned abuse”. See also Rob Evans and Paul Lewis’s article in the Guardian which includes quotes from the claimants’ lawyers describing the decision to allow the police to maintain their secrecy through the IPT as “an outrage”.

Julie Burchill and Freedom of Speech

Some of you may have read Julie Burchill’s comment piece in the Observer before it was withdrawn – if not, it has since been reproduced by Toby Young in his Telegraph blog. The article launched an attack on the trans community for a perceived overreaction to an earlier article by Suzanne Moore that used the phrase “Brazilian transsexual” to describe how women are expected to live up to an impossible body image ideal.

In this post on his HeadofLegal blog, Carl Gardner discusses why he feels that it was wrong of the Observer to have pulled the article (though he admits that it would be deeply offensive to some), especially given that government minister Lynne Featherstone had called for Burchill to be sacked following the article’s publication. He goes on to explain that this whole furore stands as yet another example of why a “Leveson law” would be a good idea, acting as it would as a check on ministerial interference with the press.

Insults legalised

Section 5 of the Public Order Act 1986, which provides for the criminal offence of “threatening, abusive or insulting words or behaviour” is to be amended to remove the word “insulting”. This would mean, as this Telegraph article by Christopher Hope points out, that calling a police officer’s horse “gay” on a drunken night out is hopefully no longer illegal (unless it was seen as “abusive” behaviour). Adam Wagner has welcomed the amendment in this UKHRB post, but points out that section 127 of the Communications Act 2003 still criminalises the use of “grossly offensive” messages on Facebook or Twitter, further impeding freedom of speech in this country, and calls for it to go the way of the “insulting” provision in section 5 of the Public Order Act.

Rocknroll and the Right to Privacy

The High Court has granted an interim injunction to Edward Rocknroll (husband of Kate Winslet) preventing the Sun from publishing semi-naked photographs of him without his consent (see Rocknroll v News Group, below). The case drew on existing Article 8 ECHR (right to, among other things, privacy) precedents such as Von Hannover (discussed on UKHRB here) but given the lack of “general public interest” in the photos (unlike the situation in Von Hannover), the claimant’s reasonable expectation of privacy and the fact that the photos, while in “the public sphere” (having been published on Facebook by a third party) were not so widely disseminated that publication in the Sun would make no difference, the court found for Mr. Rocknroll. For a more detailed analysis of the case, see Mark Thomson’s post on Inforrm’s blog, or Jim Duffy’s UKHRB post.

In the courts

Awuku (No 2) & Ors v Secretary of State for the Home Department [2012] EWHC 3690 (Admin) Queen’s Bench Division President chastises another round of immigration solicitors and barristers for professional standards breaches.

Eweida and Others v United Kingdom 48420/10 36516/10 51671/10 59842/10 – HEJUD [2013] ECHR 37 European Court of Human Rights: BA discriminated against religious worker prevented from wearing Christian cross. Relationship counsellor, registrar and healthcare worker fail in religious rights claims.

West London Vocational Training College Ltd, R (On the Application Of) v Secretary of State for the Home Department [2013] EWHC 31 (Admin) Refusal to college of Highly Trusted Sponsor status was lawful, rules Administrative Court.

Parratt, R (on the application of) v Secretary of State for Justice & Anor [2013] EWHC 17 (Admin) Four month in holding parole hearing for prisoner breached his Article 5 ECHR rights (admitted) but 15 month delay did not.

AKJ and others v Commissioner of Police for the Metropolis and others [2013] EWHC 32 (QB) High Court rules that in claims brought in respect of the actions of undercover police officers, the Investigatory Powers Tribunal has jurisdiction over the Human Rights Act claims but not over claims for damages at common law. The non-HRA claims are stayed pending the resolution of the IPT proceedings.

Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) High Court: Semi-naked pics of Edward RocknRoll (Kate Winslett’s husband) can’t be published in Sun due to breach of privacy rights.

Knowles & Anor, R (on the application of) v The Secretary Of State for Work And Pensions [2013] EWHC 19 (Admin) Housing Benefit scheme favourable to caravans on Local Authority as opposed to private sites did not breach human rights (Articles 14 and 8) of Gypsies.

Redcar and Cleveland Independent Providers Association & Ors, R (on the application of) v Redcar and Cleveland Borough Council [2013] EWHC 4 (Admin) Council failed to properly assess care needs when reducing payments for people in care home, rules High Court.

Shaw & Anor, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 42 (Admin) Failure to allow mother and son time to seek legal advice after service of removal directions was unlawful and breached Article 8(2) ECHR, but removal to Jamaica was proportionate. Claimants awarded £2,000 damages each.

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.

• Human Rights Lawyers Association Student Judicial Review Competition
  Deadline for entries: 4 February 2013
• Taking cases to the European Court of Human Rights – CPD Centre – The Law Society
  Audio webinar – 22nd January 2013 – scheduled to last one hour

UKHRB posts

• Gypsies not entitled to full housing benefit to cover private rent Jan 18, 2013 Rosalind English
• Semi-naked RocknRoll pics can’t be published in Sun, rules High Court Jan 18, 2013 Jim Duffy
• Human rights claims against undercover police to be heard in secret – Simon McKay Jan 18, 2013 1 Crown Office Row
• Judicial Review reform and the mystery of the missing evidence Jan 17, 2013 Adam Wagner
• Turkish block on Google site breached Article 10 rights, rules Strasbourg Jan 16, 2012 1 Crown Office Row
• The polluted air that we breathe: Supreme Court to hear case Jan 15, 2013 David Hart QC
• Strasbourg rules against UK on BA crucifix issue, but rejects three other religious rights challenges Jan 15, 2013 Rosalind English
• Public insults to be legalised but grossly offensive messages still criminal Jan 15, 2013 Adam Wagner

by Sam Murrant