Strasbourg Stresses, Presidential Pronouncements and Abu Qatada Returns – The Human Rights Roundup
11 March 2013
Welcome 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 suggestion that a future Conservative government might withdraw from the ECHR and repeal the Human Rights Act dominated this week’s headlines, with much commentary noting that such measures are likely to have only minimal practical effects on our courts. Lord Neuberger also used his first interview as President of the Supreme Court to speak his mind on a number of issues of human rights concerns; and the Justice and Security Bill continues its passage through Parliament.
by Daniel Isenberg
In the news
In or Out?
The big human rights news story of week is unsurprisingly the ongoing debate surrounding the UK’s relationship with the European Court of Human Rights, through the vehicle of the Human Rights Act. Crucially the question surrounds whether a future Conservative government would repeal the HRA and withdraw from the European Convention. Theresa May’s suggestion that this could happen may not be official government policy, but has nevertheless sparked vociferous responses from the wings.
Professor Conor Gearty’s position is that the HRA has become an “easy target for politicians in search of empty gestures”, and that human rights have developed extensively within the common law, such that even repealing the Act is likely to bring about only limited change. The Scottish Sun goes further, arguing that the Tories’ main aim is to remove the obstacle which reins in their power. Yet, even if that is true, a staunch defender of the HRA has appeared in the form of Minister without Portfolio, Kenneth Clarke. He considers the Strasbourg court “extremely important” and stressed the significance of Britain remaining at its forefront.
Other commentators have looked to more practical ramifications of any potential repeal or withdrawal. In the first of two posts, Mark Elliott points out that the effect of the HRA has been to “lead judges to discover what was already implicit in the common law while simultaneously augment the common law”. Accordingly, a post-HRA/ECHR legal system, would not look substantially different from today’s. The crucial difference according to Elliott, however, is the removal of ‘declarations of incompatibility’ which exist under the HRA. Without it, judges are given fewer options in the face of legislation which limits human rights, short of the ‘nuclear’ option of digressing from the clear intent of Parliament. His second post suggests that, without the HRA, the judges are unlikely to attempt to assert their dominance over a previously-supreme Parliament. However, the stoking of argument between ministers and the judiciary could accelerate calls for a written constitution.
A couple of final interesting perspectives on this issue: firstly from Scott Stephenson on the UK Constitutional Law Blog, looking at the mechanics of any possible repeal of the HRA. Stephenson notes that the HRA is not constitutionally entrenched, but nevertheless questions exactly what form repeal would take – and, if certain Convention rights have now entered the common law, whether further express legislation would be required to repeal those, too.
On the same site, Colm O’Cinneide examines the issue through the prism of devolution. He notes that human rights are not per se a reserved function and the devolved regions are required to comply with Convention rights by virtue of provisions in the devolution statutes. Thus, any change to the requirements of the devolved assemblies to comply with the ECHR would affect their powers and seemingly trigger the Sewel Convention, the seeking of consent from those devolved legislatures. Finally, taking a step back and viewing the calls for a withdrawal from the ECHR in context, the Lallands Peat Worrier Blog observes that in 2012 only 10 judgments were issued by the Strasbourg court against the UK; and it rejected 2,047 applications against the UK as “inadmissible”.
The Home Secretary’s appeal against the most recent SIAC decision in the Abu Qatada case will be heard by the Court of Appeal today. He was arrested over the weekend for breach of his bail conditions. You can read our full coverage of the decision under appeal here and Adam Wagner’s post on why this long-running case may be in the public interest after all. Angus McCullough QC, who edits the UK Human Rights Blog (but had nothing to do with the writing of this post), is Special Advocate in the case.
The President Speaks
Lord Neuberger, the President of the UK Supreme Court, has given his first interview since taking over the presidency of the Supreme Court; and used the opportunity to share his thoughts on a number of key issues (see Richard Edwards’ UKHRB post). He firstly dealt with the ECHR, observing that the UK Supreme Court is “not subservient” to, but works “in a dialogue” with Strasbourg. His more unequivocal words were for Theresa May’s recent attack on the judiciary, which he described as “inappropriate, unhelpful and wrong”. Lord Neuberger could not see the benefit of such censure and was concerned that it might upset the balance between judges and lawmakers. Sean Jones QC has commented that “some are angry about what he said; some are angry that he waited so long to say it and some are angry that he has said anything at all”.
Lord Neuberger’s comments certainly have sparked debate, and some of his most outspoken remarks relate to the legal aid cuts, which he claims could make people feel they cannot access justice and then “take the law into their own hands”. He pointed out that cuts leading to greater numbers of litigants-in-person will put further strains on the courts system. Meanwhile, Chris Grayling has brought forward a consultation on cuts to criminal defence legal aid, which, after April’s civil cuts, will remain the largest portion of the legal aid bill. The consultation paper will introduce price competition to the criminal defence market.
Finally, the President of the Supreme Court noted that any lawyer “worth his or her salt” would have concerns about the Justice and Security Bill. Nevertheless, he did not go as far as to categorically oppose the government’s proposed legislation.
Secret Courts and the Al-Sweady Inquiry
…speaking of the Justice and Security Bill, MPs have voted in favour of the government’s plan, defeating two Labour amendments which would have introduced further safeguards. Malcolm Rifkind argues that if the Bill is enacted, the agencies will become more accountable. He points out that the Intelligence and Security Committee (ISC) will become a committee of Parliament, independent of any ministry; it would have the power to require (not just request) information from intelligence agencies; it will have a statutory right to retrospectively investigate intelligence operations; and ISC staff will be able to enter the agencies’ offices and (with their staff) examine records. Meanwhile, leading barrister Dinah Rose QC has quit the Liberal Democrats in a protest against their official support of the proposals.
Also in the national security sphere, the Al-Sweady Public Inquiry began last week, examining allegations that British personnel mistreated and murdered Iraqi detainees in 2004. The Inquiry features nine members of 1 Crown Office Row and has already been shown photographs of alleged victims of torture. The Watching the Law Blog observes that the Inquiry seeks to comply with Articles 2 and 3 of the ECHR and follows judicial review proceedings in 2009, in which the government’s approach to disclosure was criticised. Transcripts of hearings should be available on the Inquiry website soon.
Also in the News
A few final news items and a couple of announcements. This week sees the launch of the European Court of Human Rights’ own Twitter feed, where the Court’s press releases will be available; as well as the advent of the ‘Free Movement Forum’, designed as a “private, progressive space in which immigration lawyers, campaigners, academics, students and select others can help one another and discuss any or all immigration, asylum, nationality and human rights law questions and policy”.
Some undeniable positives in the relationship between the UK and the Council of Europe with the latter praising our Parliament, judiciary and prosecutors in their commitment to the fight against corruption. Meanwhile, the EU Rights Clinic and European Citizen Action Service have secured the release of documents relating to opt-outs from the EU Charter of Fundamental Rights. The actual documents can be found here. Finally, Liberty this week tells the story of how Richard and Gillian Rabone successfully used to Article 2 of the ECHR to ensure that hospitals now safeguard the right to life of mental health patients, regardless of whether or not they are formally detained.
In the Courts
MA (Formerly A Child But Now of Full Age) & Ors v Independent Adjudicator & Director, HMYOI Ashfield  EWHC 438 (Admin) – Judicial Review succeeds against discipline handed out to 17 yr olds at SERCO Young Offender Institute
A, R (on the application of) v The Chief Constable of Kent Constabulary  EWHC 424 (Admin) – Decision to disclose allegations against nurse of neglect and ill-treatment made by care home residents in an Enhanced Criminal Records Certificate breached Article 8 ECHR
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.
- Justice, Equality, Unity: Manor Gardens Public Lecture… Eventbrite Wednesday, 17 April 2013 from 19:00 to 21:00 (BST) – £10 (for charity)
- The Politics of the Bangladeshi War Crimes Tribunal: Can justice be done? Monday 11th March 2013, 18:30 – 20:00, CLM 602, Clement House, LSE
- Public Interest Environmental Law Conference 2013 Friday 15th March 2013, 09:00-18:00, Institute of Advanced Legal Studies, Russell Square
- Venice Academy of Human Rights 8 – 19 July 2013, Venice
- Public Law Project Wales Conference 2013 Thursday 11th April 2013, 09:30 – 17.30. Venue: Cardiff University
- International Graduate Legal Research Conference King’s College London, April 8-9, 2013 (including 2 human rights panels and one on environmental law).
- Fine tuning medical diagnoses to rare genetic disorders – March 9, 2013 by Rosalind English
- Successful challenge to closures of children’s heart surgery units – March 8, 2013 by Rosalind English
- Chakrabarti debates Clarke on secret courts bill – March 7, 2013 by Isabel McArdle
- Top Gear up before Top Judges – March 6, 2013 by Rosalind English
- Lord Neuberger to the executive: get your tanks off the judicial lawn – March 6, 2013 by Richard A. Edwards
- Court of Appeal downplays Aarhus – March 4, 2013 by David Hart QC
- UK Human Rights Blog surpasses two million hits – March 4, 2013 by Adam Wagner