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

25 March 2013 by Daniel Isenberg

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.

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

In the News

Leves-On-line

Much of the most interesting commentary this week surrounding the proposed Royal Charter on press regulation relates to blogosphere and whether the online world of Twitter, blogs, and social media will fall within the proposals.  Carl Gardner on Head of Legal provides a useful explanation of the what the Royal Charter (and the adjunct legislation on which it relies) provides, even though he views this as a “laughable” means of reaching the intended aims.

As to the impact of the proposed changes on the world of online journalism and comment: the Euro Rights blog observes that under Schedule 4, Para 1(b)(ii) of the Draft Charter, a ‘relevant publisher’ includes ‘a website containing news-related material (whether or not related to a newspaper or magazine)’, and suggests that this could include certain Twitter accounts and blogs.  The article continues that there will be a fee for registering with any new regulator, which is tantamount to press licensing; as those Twitter accounts or blogs that opt not to do so could be faced with punitive damages in any later legal action.

A second post pointing to the relevant provisions of the Crime and Courts Bill which support the Draft Charter makes it clear that many blogs will come under the new law, and opines that the world will be a poorer place, should they opt not to publish further as a consequence.

By contrast, Carl Gardner (again on Head of Legal) is strongly in favour of press regulation covering bloggers.  He picks up on another of the clauses inserted into the Crime and Courts Bill which makes reference only to those who publish in the course of a business, and questions why this should be relevant; as it would not be an issue to the victim of any libel.  He argues that there is a disjunct between seeming to open self-regulation to all, but limiting its benefits to a few – and suggests scrapping the concept of a “relevant publisher” entirely.

Tim Lowles on Inforrm suggests that companies like Google, Twitter and Facebook, themselves, should take a careful look at the Draft Charter, especially following the recent decision in Tamiz v Google, in which the Court of Appeal held that Google could be considered a publisher at common law.

A separate aspect to the debates in and out of Parliament about press regulation is raised on The Spectator’s blog and also at The Justice Gap here.  The story runs as follows: Tory backbencher Dominic Raab tabled an amendment to the Crime and Courts Bill, which would prevent foreign ex-offenders appealing against deportation on Article 8 grounds (right to family and private life), though Articles 2 and 3 could be taken into account.  Such an amendment goes beyond even comments made by Theresa May on the issue and would be “to declare open war on the European Court of Human Rights and foreign ex-offenders alike”.  The Spectator observes that the government avoided potential embarrassment here: because of the debate over the Leveson amendments to the Bill, Raab’s proposal was not debated.  However, as the government intended to abstain on his amendment, this could have been a victory for the MPs behind it.

Supreme Secrecy

In a landmark decision this week, the Supreme Court decided it had the jurisdiction to examine a ‘closed judgment’ relating to sanctions imposed on an Iranian bank, which is alleged to be linked to the Iranian nuclear programme.  However, although as The Guardian noted, the court at first did not intend to exercise that power, they ended up doing so and thus conducted their first secret hearing, as reported here by Adam Wagner.

Further, the issue is particularly delicate at this time, before the House of Lords votes again this week on ‘closed material proceedings’ under the Justice and Security Bill:  see the Special Advocates’ briefing paper on the key amendments, published on the UKHRB here.  An editorial on the UKSC Blog provides the Court’s statement, and adds that it is an “inevitable fallacy” to need to read the closed judgment, in order to know whether it needs to be read.  Maya Lester on the new European Sanctions blog (see Adam Wagner’s UKHRB post here) further notes that Lord Neuberger described this as an “unhappy procedure” and that the Court had not yet decided whether to give a closed as well as open judgment.  The ICLR blog also provides a useful roundup of commentary on the developments hitherto.

Human Rights in Britain…

It is never long before the place and nature of human rights in Britain returns to the news, and Helen Fenwick on the UK Constitutional Law Blog questions how Conservatives would react to the Report of the Commission on a Bill of Rights; and notes that whilst the majority called for a ‘British Bill of Rights’, there were no specific recommendations that would materially differentiate such a document from the Human Rights Act.  However, Professor Fenwick does suggest that in spite of the absence of concrete plans, the mere proposals for such a document could be advantageous to any Conservative government post-2015.

Roger Smith, meanwhile, considers human rights to be a “live issue” at the next election (also at UKHRB here).  Whilst he views the HRA as easily defendable, the more difficult criticism is from David Davis and Jack Straw: that the ECtHR risks undermining its own authority by viewing the Convention as a “living instrument”, rather than the specific intentions of its draughtsmen.  Smith argues for a greater dialogue between the ECtHR and domestic courts; and greater reluctance to overturn decisions for which others are electorally responsible.  Ultimately, however, he strongly disfavours a UK withdrawal, which could lead to a break-up of the Convention.

The Scottish Human Rights Commission has published a paper on ‘The Future of Human Rights in Scotland’, looking at the issue against the backdrop of the 2014 independence referendum.  The Commission recommends both “the incorporation of all of the UK’s international human rights obligations into domestic law, within Scotland’s constitutional framework”, as well as “that Scotland’s National Action Plan for Human Rights (SNAP) is developed and independently monitored to ensure progressively the effective implementation of human rights across all areas of law, policy and practice”.

 …and in Europe

The Legal Affairs Committee of the Council of Europe has agreed that the Draft Protocol 15 to the ECHR can be opened to signature and ratification without further amendment.  This amending protocol crucially provides for the insertion of a reference to the principle of subsidiarity and the doctrine of the margin of appreciation.  It also allows judges to serve the Court until 74 (rather than 70) and reduces the time-frame, within which an application must be brought before the Court after all domestic remedies have been exhausted – from six months to four.

In contrast to this move to decrease time limits, Natasha Simonsen of the Oxford Human Rights Hub analyses the decision in Er & Ors v Turkey to observe that the court itself still liberally applies the principle.  Where the case concerned a disappearance, the Court held that there ought to be “a less rigid approach when examining the issue of compliance with the six-month time-limit” (which now will become four).

Some Interesting Decisions

A few interesting decisions this week to run through:

• The High Court ruled that TfL’s banning of an advert on London buses suggesting that gay people could be helped to change their sexuality (see Alasdair Henderson’s UKHRB post here).
• The House of Lords decided (by a majority of 54) to block plans to allow employees to trade certain rights (including unfair dismissal, redundancy, training and flexible working) for shares in their company – opposition to the Government measure was led by the increasingly influential Lord Pannick.
• The Presidents of the Immigration and Asylum Chambers have reportedly banned immigration judges from joining the Free Movement blog’s forum.
• The Court of Appeal upheld the Home Secretary’s decision to exclude the Iranian Maryam Rajavi from the UK on foreign policy and security grounds, even in the face of the Article 10 (freedom of expression) rights of Members of Parliament, who intended to meet her (see ‘In the Courts’).

 In the Courts

Swift v Secretary of State for Justice [2013] EWCA Civ 193 – Fatal Accidents Act doesn’t breach Art 6+14 ECHR for not letting cohabitees of less than 2 years claim damages

Lord Carlile of Berriew & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 199 Court of Appeal upholds Home Secretary’s decision to exclude prominent Iranian dissident from UK despite article 10 rights of Parliamentarians

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.

• 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”
• Justice, Equality, Unity: Manor Gardens Public Lecture,… – Eventbrite Wednesday, 17 April 2013 from 19:00 to 21:00 (BST) – £10 (for charity)

UKHRB posts –

• Ban on ‘ex-gay, post-gay and proud’ bus advert criticised but lawful – March 23, 2013 by Alasdair Henderson
• Exclusive: Special Advocates’ open letter and briefing note on secret trials – March 22, 2013 by Adam Wagner
• Will the Public Sector Equality Duty survive the Red Tape Challenge? – March 22, 2013 by Neil Crowther
• Exclusion of Iranian dissident lawful, says Court of Appeal – March 22, 2013 by Rosalind English
• New European Sanctions Blog – March 22, 2013 by Adam Wagner
• Historical first as Supreme Court boots Iranian bank out of secret hearing – March 21, 2013 by Adam Wagner
• Is rights replication undermining the international human rights system? – March 20, 2013 by Dr Rosa Freedman
• The Supreme Court on harassment: purpose and rationality – March 20, 2013 by David Hart QC
• The Patentability of Human Genes: more developments – March 20, 2013 by Rosalind English
• What will happen to human rights after the next election? – March 20, 2013 by Roger Smith
• Damages for death and human rights – March 18, 2013 by David Hart QC