Monthly News Archives: March 2013


Last week not a good one for Theresa May: not just Abu Qatada

31 March 2013 by


132957J1 v  Secretary of State for the Home Department, 27 March 2013 – read judgment

A UKHRB editor, Angus McCullough QC, was a Special Advocate for J1 before the Court of Appeal, but not in SIAC below. He had nothing to do with the writing of this post

Hot on the Home Secretary’s loss of the Abu Qatada appeal, a reverse for her in another deportation case about someone whom the Court of Appeal described as “an important and significant member of a group of Islamist extremists in the UK,” and who was said to have links – direct or indirect – with men involved in the failed July 21 2005 bombing plot.

The general contours of the case will be familiar to Abu Qatada watchers, with claims under Articles 3 and 6 of the ECHR  amongst others – that if J1 was returned to his country of origin (here, Ethiopia), his human rights would not be respected. There are however a number of interesting features about this decision of the Court of Appeal; firstly, it reversed a decision of  the Special Immigration Appeals Commission against J1 on Article 3 (recall the heightened regard for SIAC as a specialist tribunal in the Abu Qatada appeal) , and secondly (in dismissing the Article 6 claim) it illustrates graphically some of the dilemmas facing Special Advocates when representing their clients in the imperfect world of “closed procedures” (a.k.a secret trials).

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Abu Qatada, Rise of the Secret Court and the European Question – The Human Rights Roundup

31 March 2013 by

Christian rights case rulingWelcome back to the UK Human Rights Roundup, your regular 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.

The focus this week has been on the continuing Abu Qatada saga. The Home Secretary lost her appeal and for the time being, Abu Qatada will remain in the country. In other news, the Justice and Security Bill edges towards the finish line, discussion continues on whether the UK will be able to remain in the EU if they leave the ECHR and people are split on the proposed press regulation measures.

by Sarina Kidd

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Court of Appeal rejects latest attempt to deport Abu Qatada

28 March 2013 by

121113AbuQatadaMay_6898438Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277 – read judgment

The Home Office last night assured its 70,000 Twitter followers that “it is not the end of the road”.  Yet by the time she had reached page 17 of the Court of Appeal’s dismissal of her latest attempt to deport Abu Qatada, it might well have seemed that way to Theresa May. 

In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not be deported to face a retrial for alleged terrorism offences due to the real risk of “a flagrant denial of justice”.  Read my post on that decision here.  Yesterday, Lord Dyson – the Masters of the Rolls and second most senior judge in England and Wales – together with Lord Justices Richards and Elias, rejected the Home Secretary’s appeal.


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Justice and Security Bill: The “Secret Courts” Endgame? – Angela Patrick

26 March 2013 by

Today we will see the beginning of the end of the passage of the  Justice and Security Bill Ken Clarkethrough Parliament:  the process commonly known as parliamentary “ping-pong”.  

The notion of a Bill being swatted back and forth across the Palace of Westminster is at its most accurate in the case of controversial legislation such as the “secret courts” Bill (see previous discussions of these controversies).

With allegations that ministers may have misled parliamentarians on the scope of their prized Bill, the picture of political game-playing might be apt.  However, this is the last chance for parliament to consider the government’s case for the expansion of “closed material procedures” (CMP), where a party to proceedings and his lawyers (together with the public and the press) are excluded – and his interests represented by a publicly appointed security vetted lawyer,  known as a Special Advocate.   An analogy more serious than Boris’ “wiff-waff” might be needed for tonight’s debate.    Some commentators have suggested the Lords will play “ping-pong with grenades”.   


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ECHR-lite, Secret Supreme Court and Levesonline – The Human Rights Roundup

25 March 2013 by

Christian rights case rulingWelcome back to the UK Human Rights Roundup, your regular 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.

There was a lot of reaction this week to the proposed Royal Charter on press regulation and the auxiliary legislation upon which it relies.  Commentators are divided on whether the move will work or not, with most controversy surrounding the concept of a ‘relevant publisher’ and how this will affect small, online media.  Meanwhile, the Supreme Court has declared that it does have the power to read closed judgments of courts below, and therefore could, too, issue closed judgments.  Debate continues about the shape of human rights in the UK, especially after the next election; whilst the ECHR slowly evolves with a new protocol ready for ratification.

by Daniel Isenberg

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Ban on ‘ex-gay, post-gay and proud’ bus advert criticised but lawful

23 March 2013 by

262332-anti-gay-london-bus-adverts-promoting-gay-cure-techniques-bannedCore Issues Trust v. Transport for London 22 March 2013 [2013] EWHC 651 (Admin) – read judgment.

In a judgment which is sure to provoke heated debate, the High Court has today ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.

The advert was placed in April 2012 by Anglican Mainstream, a Christian charity, on behalf of Core Issues Trust, another Christian charity which describes its aim as “supporting men and women with homosexual issues who voluntarily seek change in sexual preference and expression” (see website here). It was intended as a response to another advert placed on London buses earlier in 2012 by Stonewall, the gay rights campaign group, which was in support of the proposal to introduce same-sex marriage and read “SOME PEOPLE ARE GAY. GET OVER IT!”

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Exclusive: Special Advocates’ open letter and briefing note on secret trials

22 March 2013 by

TopSecretFileOn 26 March 2013 the House of Lords will consider the amendments to the Justice and Security Bill made by the House of Commons.  We have reported on this blog on the Bill at various points in its progress, including on the Special Advocates’ views on the proposals. 

Here, now, is the latest contribution:  a Briefing Note in relation to two key amendments which will be considered next week (covering letter here).  First, whether closed material procedures should only be used as a last resort, if a fair trial cannot otherwise be achieved.  And second, whether the interests of open justice should be weighed in the balance by a Court in considering whether to order a closed procedure.


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Will the Public Sector Equality Duty survive the Red Tape Challenge? – Neil Crowther

22 March 2013 by

cut-red-tape-challengeIn May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge.  The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes.  It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities. 

The Review has recently launched a call for evidence, with a closing date of 12th April 2013.  The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’

The Equality and Diversity Forum has produced a helpful briefing on the Review.

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Exclusion of Iranian dissident lawful, says Court of Appeal

22 March 2013 by

Maryam-Rajavi2009R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013  [2013] EWCA Civ 199 – read judgment

 Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.

In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants.
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New European Sanctions blog

22 March 2013 by

Euro SanctionsIt is always a pleasure to welcome a new legal blog, especially one with subject matter which is relevant to readers of the UKHRB. May I introduce you to the European Sanctions Blog, written by Brick Court’s Maya Lester and Michael O’Kane of Peters & Peters. The blog is also on Twitter as @eusanctions

Sanctions imposed by European bodies on individuals, businesses and states are certainly topics which we have covered on this blog, for example the important recent rulings over EU sanctions on Iranian banks. A few interesting early posts over at EU Sanctions cover sanctions on Syria and Iran, terrorist asset freezing and most recently the extraordinary goings on at the Supreme Court this week in a case about an Iranian bank, Bank Mellat, which I also covered here.

Enjoy!
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Historical first as Supreme Court boots Iranian bank out of secret hearing

21 March 2013 by

TEST CARD1 Crown Office Row’s Robert Wastell is acting for the Treasury in this case – he has had no part in writing this post. 

Extraordinary developments in the Supreme Court today as the court, for the first time in its history, conducted a secret hearing during which one of the parties, an Iranian Bank, was not allowed to take part. Full background to the case, Bank Mellat (Appellant) v HM Treasury (Respondent) is here.

If I could just repeat that for effect: the Government, which is being sued, gets to stay in court whilst the person doing the suing – and their lawyers – have to leave. The judges then hear security sensitive evidence which is potentially central to the case. Whilst one side is absent. No wonder Lord Neuberger, who as Master of the Rolls robustly blocked an attempt to introduce closed material procedures in civil trials via the back door (see his judgment in Al Rawi e.g. at para 30), sounds so pained in his statement. Curiously, this final hard-hitting paragraph was sent by the Court to its public email list but was left off the statement published on the Court’s website:

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Is rights replication undermining the international human rights system?

20 March 2013 by

6a00d834515c2369e201157066f06e970b-800wiRapid expansion of human rights obligations at the European and international levels arguably undermines the system of International Human Rights Law. Countries like the UK, which place strong emphasis on the need to protect individuals from abuses, are faced with ever more obligations stemming from rights inflation. One crucial way in which this occurs is through rights replication.

No-one can legitimately argue that women, children, persons with disabilities, migrant workers, human rights defenders and other vulnerable groups do not need protecting from human rights abuses. Where those groups require additional rights then of course it makes sense for them to be enshrined within treaties. Yet the many treaties, resolutions and declarations about those groups almost always focus on rights that already exist for all individuals. Often these are civil and political rights, which can be found within international and regional treaties. Replicating these rights, rather than creating new additional ones, weakens and undermines the human rights system.

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The Supreme Court on harassment: purpose and rationality

20 March 2013 by


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Hayes v. Willoughby, Supreme Court, 20 March 2013read judgment

Harassment is both a civil wrong and a crime. It is a statutory defence to both that the conduct “was pursued for the purpose of preventing or detecting crime” s.1(3) Protection of Harassment Act 1997.  This decision grappled with the problem of the apparently honest but irrational harasser. Was he guilty or did this defence help him?  In answering this, the Supreme Court looked at some basic concepts running through great swathes of the law, “purpose”, “subjective”, “objective”, “reasonableness” and, critically, “rationality” – so the case is one not simply for harassment lawyers to look at.

 
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The Patentability of Human Genes: more developments

20 March 2013 by

Breast Cancer in DNA StrandsCancer Voices Australia v Myriad Inc 13 February 2013 – read judgment

Another battle in the war against gene patenting has been lost, this time in Australia.

The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.

This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes  by ruling that  isolated nucleic acid (including isolated DNA and RNA) is patentable.  
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What will happen to human rights after the next election? – Roger Smith

20 March 2013 by

The Anglesea pub in west London, which was a polling station for the 2010 general election.This post by Roger Smith was originally the text of a speech to the Working Men’s College and is reproduced here with permission and thanks.

Human rights will be a politically live issue at the next election. Leading on the issue will by the Conservative Party, urged on by elements in the media such as the Daily Mail with a commercial interest in resistance to any law on privacy deriving from human rights. So, the Working Men’s College has done well to identify this topic for exploration. This evening is a celebration of the college’s stated aim to ‘engage positively with the past, while finding new ways to pursue its founders’ aims into the 21st century.’

The pace on human rights is being forced by Theresa May, seen by some as the Tory leader in waiting. She made it clear at the weekend that both the HRA and the European Convention which it introduces into domestic law are under fire:

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