Strasbourg Controversies, Deportation Amendments and Secret Court fallouts – The Human Rights Roundup
17 March 2013
Please welcome our new rounder upper, Sarina Kidd, a student on the GDL course at City University. Sarina joins Daniel Isenberg (our other rounder upper) and replaces Sam Murrant, who has moved on to pastures new after producing a fantastic run of human rights roundups. We wish him all the best and welcome Sarina on to the team – Adam Wagner
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.
In the News
The Human Rights Act and Strasbourg
The debate continues over the suggestion that a future Conservative government would repeal the Human Rights Act and withdraw from the European Convention.
Earlier this week Lady Hale, the UK’s most senior female judge, warned that her fellow judges would ‘regret’ a decision to repeal the HRA and that such a repeal would allow Parliament to pass laws incompatible with the ECHR.
She then addressed the suggestion by the Home Secretary that the UK should pull out of the human rights convention. Hale said such a move would mean the UK would have to also leave the European Institutions, including the Council of Europe and the EU but that it was up to the politicians to decide whether the repercussions justified getting rid ‘of certain unpopular foreigners.’
The proposed amendment to the Crime and Courts Bill has been designed to prevent further appeals against deportation from most ‘foreign criminals’.
Adam Wagner discusses the amendment that if passed means foreign criminals will no longer be able to use Article 8 of the ECHR (the right to respect one’s private and family life) to prevent deportation. Therefore, only Articles 2 and 3 (the right to life and the right not to suffer torture/inhuman/degrading treatment) will be used in appeals, and deportation will occur even if Article 6 (the right to a fair trial) has been breached.
Mark Elliot suggests that ‘the most the courts would be able to do, therefore, would be to make a declaration of incompatibility under section 4 of the HRA’. Therefore, the main threat to the amendment will come from an application to Strasbourg where it is likely to be found to be in breach of international law. This will lead to debate over the merits of leaving the Convention entirely, and he notes that such a showdown would be a useful focal point for those who wish to do so.
ObiterJ observes that the amendment will produce some very disproportionate results, and laments how the ‘right-wing media seems to be the political order of the day’.
Meanwhile, according to the Telegraph, the infighting in the Conservative Party over human rights continues.
The Abu Qatada Effect
Indeed, there has been much comment recently on the media’s portrayal of the HRA and the ECHR. Natalie Samarasinghe, of the United Nations Association of the UK, writing in the Guardian, condemns scare stories and how the ‘Abu Qatada effect’ has damaged public perceptions of the Act. She points out the double standards of the media, comparing the backlash to the decision of Abu Qatada to the more positive spin presented over Garry McKinnon’s extradition of the US on hacking charges.
The blog, Fleet Street Fox, weighing in on the debate of ‘universal human rights vs human rights for those who deserve it’, states, ‘if you start saying who can and can’t have them you are on a slippery slope back to the days before we had the Magna Carta’
The Secret Court Saga
The Justice and Security Bill continues to be divisive. If passed, British judges will preside over civil claims in which one party will not be privy to the evidence on which the opposing party relies.
Last week, only 7 of 57 Lib Dem MPs went against the coalition government when voting on Labour amendments. This has led to three high profile departures from the Liberal Democrat party: Dina Rose QC, Jo Shaw and now Philippe Sands QC. Sands, in an article for the Guardian stated that the Bill, ‘is wrong in principle, and will not deliver justice… [it] threatens greater corrosion of the rights of the individual in the UK, in the name of ‘national security’’.
Shami Chakrabarti, director of Liberty, commented on his departure, ‘When do you start listening to your conscience if not when it is echoed by the best and cleverest members of your own family?’
Prisoner votes in Scotland
The Scottish Government’s proposed Scottish Independence Referendum (Franchise) Bill has met criticism over Section 3 which would allow Holyrood not to enfranchise prisoners for the referendum in 2014.
Article 3 of Protocol 1 of the Convention and the European Court in Hirst v the United Kingdom hold that a blanket ban on prisoners voting is incompatible with the Convention. However, the European Court has held in the past that the language excludes referendums,
Andrew Tickell questions whether ‘a referendum on self-determination is not as other referendums, and accordingly, the principles of enfranchisement articulated in Hirst ought to apply’. Further, Paul Reid notes the bizarre situation in which a person has a fundamental human right to vote in an election of the Scottish Parliament but has no say in deciding the possible independence of Scotland.
He continues that it lacks proportionality, ‘that interferes with the free expression of the opinion of the people’ and s3 may have the unfortunate effect of ‘questioning the legality of the enabling legislation and distracting from ‘the substance of the independence debate’’.
Privacy and Data Protection developments
Over at 11KBW’s Panopticon Blog, Robin Hopkins discusses how privacy and data protection are being brought up to date with technological developments.
Indeed, Directive 95/46/EC was designed in a pre-digital climate and in the UK, the Data Protection Act 1998 has ‘historically lacked teeth’.
All of this is changing, however, and the article discusses the draft Data Protection Regulation in EU, how UK data protection will be affected by the Defamation Bill, the ICO’s use of its enforcement and monetary penalty powers and legal developments with regard to Google and Facebook over a number of issues such as ‘the right to be forgotten’.
In what has been lauded as a ‘landmark case’, peaceful political campaigner, John Catt, has won a legal battle to have his details removed from a police extremism database. Mr. Catt claimed a right to privacy under Article 8 of the ECHR and Lord Justice Moore-Bick determined that whilst the databases can be justified if serving public interest, in Mr. Catt’s case it was not justified. The BBC report that unless the police appeal against the judgment, and are successful, ‘they will have to weed from the database the details of hundreds, possibly thousands, of other campaigners or risk further legal challenges.’
The recent ruling in Hounga v Allen determined that under the doctrine of illegality, workers who have no legal right to work in the UK are deprived of all fundamental labour rights. Anjoli Maheswaran discusses how undocumented workers are often in vulnerable positions, and ‘such a ruling will only entrench this vulnerability’.
Also in the News
The ECHR has ruled that a political activist’s conviction for insulting the French president was a violation of Article 10 (freedom of expression). The activist had waved a placard that read, ‘Get lost, you sad prick’, a phrase originally uttered by the president himself. The Court held that such a conviction would have a chilling effect on ‘satirical contributions to discussion of matters of public interest’, a key freedom in a democratic society.
Elsewhere, the Attorney General Dominic Grieve QC has called for police officers to have a greater role in charging and prosecuting uncontested and low-level offences. Currently in talks with the home secretary and the justice secretary, this change would allow the CPS to direct more resources towards focusing on more serious crimes. He emphasised, however, that an independent prosecution service remains vital.
HeadofLegal has published the ‘extraordinary bail conditions’ of Abu Qatada.
For those wishing to peruse the ECHR further, the case-law factsheets of the Court have been updated and extended.
In the Courts
Z, R (on the application of) v Secretary of State for the Home Department  EWHC 498 (Admin) (12 March 2013) Judicial Review challenge to control and restraint used when on board aircraft to facilitate removal from the UK fails. Policy did not breach Article 3/2 and there are legitimate policy reasons to not publicise certain parts of the document
Buckley & Ors, R (on the application of) v Sheffield City Council  EWHC 512 (Admin) (13 March 2013)Judicial review against increase of council tax liability for poor residents fails in High Court
Catt, R (on the application of) v The Association of Chief Police Officers of England, Wales and Northern Ireland & Ors  EWCA Civ 192 (14 March 2013) Retention on national database of information by police in relation to (1) protester not convicted of any crime and (2) warning letter re racial harassment sent to woman breached their Article 8 rights: “unnecessary, disproportionate & unjustifiable”
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.
- The Case for the Prosecution: independence and the public interest: Dominic Grieve QC School of Law, Queen Mary, University of London, Wednesday, 13 March 2013 from 19:00 to 21:30
- Venice Academy of Human Rights 8-19 July 2013: “a forum for the exchange, challenge and innovation of ideas and expertise for participants who are at an advanced stage of their career”
- Development or Land Grabbing? Legal Challenges of the Global Land Rush 15 March 2013, 9am-6pm, at the Institute of Advanced Legal Studies
- The Politics of the Bangladeshi War Crimes Tribunal: Can justice be done? – 03 – 2013 – Events – Public events – Home Date: Monday 11 March 2013 Time: 6.30-8pm
- Justice, Equality, Unity: Manor Gardens Public Lecture,… – Eventbrite Wednesday, 17 April 2013 from 19:00 to 21:00 (BST) – £10 (for charity)
UKHRB posts –
- The fundamental right to insult our leaders: Three worrying cases in France, the West Bank and right here – March 17, 2013 by Adam Wagner
- HS2 challenges fail, except ‘unlawful’ consultation on compensation. – March 15, 2013 by David Hart QC
- EU claims for damages because no environmental assessment – March 15 2013 by David Hart QC
- Satirical insult of Head of State should not be a criminal offence, rules Strasbourg – March 14 2013 by Rosalind English
- Terrorism Reviewer: Control Order successor ‘broadly acceptable’ – March 14 2013 by Adam Wagner
- Setting a trap for the European Court of Human Rights over foreign criminals – March 12 2013 by Adam Wagner
- No prisoner votes in Scottish independence Referendum – March 12 2013 by Andrew Tickell