CRB Checks, Equal Marriage and Secret Trials – The Human Rights Roundup

3 February 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.

This week, the focus of the online commentary has been very much on the subject of equal access to justice, which is beset on all sides from legal aid cuts, the proposals for secret courts to protect sensitive government information, the lack of representation for the judiciary in the government, and the efficiency drive in Strasbourg.

In the news

The Lord Chief Justice’s evidence

This week, the Lord Chief Justice, Lord Judge, gave evidence to the House of Lords constitution Committee on a wide variety of issues. You can watch the hour-long discussion here, but the impatient or time-pressed should look to ObiterJ’s comprehensive summary of the major issues raised. See also Joshua Rozenberg’s piece in the Guardian, which focuses on Lord Judge’s concern that the Consitutional Reform Act has removed the people in Government who could speak for the judges and represent their interests, thereby reducing the power of an important constitutional body which acts as a check on majoritarianism and arbitrary executive actions.

Equal Marriage

This Tuesday sees the second reading of the Marriage (Same Sex Couples) Bill. The progress Bill can be tracked here. There is an excellent Parliamentary briefing paper on the Bill here – our latest post on the bill is here.

ECRCs Breach Article 8 ECHR

The Court of Appeal ruled this week that the statutory requirements of automatic disclosure of all past cautions and convictions (enhanced criminal record checks, or ECRCs) under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 are incompatible with Article 8 ECHR (see R (T) v. Chief Constable of Greater Manchester, below). The court issued a declaration of incompatibility in respect of the 1997 Act provisions and a declaration that the 1975 Order was ultra vires. However, the government has indicated that it intends to appeal, and the effect of the judgment is stayed pending the result of any appeals. For an analysis and comment on this case, see Rosalind English’s post on UKHRB. See also Panopticon’s analysis, written by Christopher Knight.

The Huffington Post also has an article on this case, including quotes from Government sources; commentators at Liberty, the Equality and Human Rights Commission and Big Brother Watch; and even our own Adam Wagner. Including as it does a variety of viewpoints on the issues raised by this case, the article is well worth reading. Finally, in the wake of this decision, Liberty has an article detailing the destructive influence that even “routine” criminal background checks has had on Rachael Cox’s life, since she was “seen on CCTV abandoning her children” in a park for 10 minutes. The article raises the important point that human rights law can protect the ordinary citizen against UK law, rather than just obstructing the government’s ability to abrogate the rights of unpopular minorities and criminals.

Legal Aid and Judicial Review: Justice for All?

There is a growing sentiment the law is becoming the purview of the rich alone, as the Government is not only “waging a war on judicial review” – thus attempting to neuter an important check on the arbitrary exercise of state power against individuals – but also cutting back on Legal Aid (see the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012). Roger Smith, the ex-Justice director, has posted an article on Legal Voice that examines how this attitude to access to justice will affect the availability of legal advice to the poor, focusing in particular on call centre legal advice as a substitute for face-to-face advice (which will be hit hard by LASPO).

On the subject of judicial review, see this article by Adam Wagner, which collects together a large number of the (mostly critical) responses to the Government’s consultation on Judicial Review– well worth a read. The plans for reform have previously been described on this blog as “Quicker, costlier and less appealing”, and are similarly given short shrift in this article on Francis Fitzgibbon QC’s Nothing like The Sun blog, which also offers criticisms of LASPO and the Justice and Security Bill 2012-13.

Neither Just nor Secure

The Justice and Security Bill has once again provoked commentary and criticism this week. In their report, “Neither Just nor Secure”, published this week, Anthony Peto QC and Andrew Tyrie MP describe the proposals in the Bill as a blow struck against fairness, the long-standing tradition of open justice in the UK and our international reputation. The Centre for Policy Studies has posted a short summary of the main points of the report, including a list of links to the relevant online coverage of the report on the major new sites.

See also this UKHRB guest post by Lawrence McNamara, which explains the Bill’s recent history and offers criticism of the Bill focusing on the public interest in open justice, arguing that the Government is ignoring this issue entirely in its proposals. The article points out in particular the Government’s plans to reverse the House of Lords’ amendments to the Bill, which in Dr McNamara’s words were a remedy to the Bill’s worst deficiencies.

What next for human rights in the UK?

At the end of 2012, the Commission on a Bill of Rights issued its report, delivering precisely the conclusion that most legal commentators had predicted – a UK Bill of Rights would achieve almost nothing, because the frame in which the Commission had to operate allowed for nothing else (to say nothing of devolution and Scottish independence-related problems). In a guest post on UKHRB, Colin Harvey considers what might be in store for the human rights discourse in the UK in the future, arguing that continuing to debate the issue is essential, and touching on some of the issues specific to each country each country within the UK. See also this clip of Sir Leigh Lewis KCB (Chair of the now-disbanded BOR Commission) discussing the findings of the Commission and their likely impact.

On a slightly different note, Andrew Tickell has published an article on the Scotsman considering whether the European Court of Human Rights is fit for purpose – and unlike most who ask this question, his article centres around whether the ECHR is doing enough to protect human rights and interfere with governments. Tickell argues, using examples from Turkey and South Ossetia, where human rights abuses are rife, that the Strasbourg Court is becoming a “rich man’s playground” – that the Court has insufficient resources to hear meritorious cases from the poor. He also points out that the reforms recommended by the likes of Chris Grayling to make the Court more efficient (read: reject more cases, and get off the UK’s back) are contributing to this lack of equal access to the ECtHR.

Access to Information

Barristers at 11 KBW Chambers (the team behind the Panopticon information law blog) have published a very interesting report on the case-law relating to positive obligations on States to provide access to information under the ECHR. The report identifies four separate strands of case-law, wherein different principles apply to different types of information due to the piecemeal development of this area of law by the domestic courts and the Strasbourg Court.

In the Courts

Ali Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) Army questioning technique of shouting at close quarters doesn’t amount to inhuman or degrading treatment; no breach of Article 3 ECHR.

Betteridge v. The United Kingdom – 1497/10 – HEJUD [2013] ECHR 97 European Court of Human Rights: 13-month delay in Parole Board review of prisoner’s detention was too long, breached Article 5(4). See also the coverage of this case on the BBC website.

S.H.H. v. The United Kingdom – 60367/10 – HEJUD [2013] ECHR 102 European Court of Human Rights: Disabled Afghan asylum seeker failed to prove that his removal would expose him to inhuman or degrading treatment. The court was unconvinced that he would be unable to receive appropriate treatment in Afghanistan (4:3 majority ruling).

T, R (on the application of) v Chief Constable of Greater Manchester & Ors [2013] EWCA Civ 25 Blanket requirement to disclose all spent convcitions and cautions to certain prospective employers was disproportionate and breached article 8 ECHR.

Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) Upper Tribunal (President) rejects Home Secretary’s attempt to define Article 8 ECHR in Immigration Rules, “Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself”.

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
• Legal Aid in crisis conference Manchester, Saturday 9 February 2013
• The Kurdish population in Turkey. Time for Justice and a roadmap towards reconciliation 20 February 2013 17:30 – 20:00, The Law Society, 113 Chancery Lane
• “Freedom from Hunger: Realising the Right to Food in the UK” A lecture by the United Nations Special Rapporteur on the Right to Food, Professor Olivier de Schutter. (18 February 2013, Doughty Street Chambers, 18:00-19:30)

UKHRB posts

• Government’s ‘war’ on Judicial Review panned Feb 2, 2013 Adam Wagner
• Ryanair’s right under EU Charter to profit from its customers? Feb 1, 2013 Rosalind English
• Court opens way to divorces by Sharia? Hold on a minute… – James Wilson Feb 1, 2013 1 Crown Office Row
• EU Court annuls EU freezing orders on Iranian bank – and Wikileaks again Jan 30, 2013 David Hart QC
• Justice and Security Bill: no balance, no public interest – Lawrence McNamara Jan 30, 2013 1 Crown Office Row
• No anonymity for bankers involved in Libor scandal Jan 30, 2013 Rosalind English
• Blanket disclosure requirement for minor past convictions breaches Convention Jan 30, 2013 Rosalind English
• The future of human rights on these islands – Colin Harvey Jan 29, 2013 1 Crown Office Row

by Sam Murrant