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

31 March 2013 by Sarina Kidd

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 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

In the News

Prisoner votes

This week the ECHR decided to adjourn further its consideration of 2,354 applications against the United Kingdom concerning prisoners’ right to vote. In 2005, in Hirst v the United Kingdom (No.2), the UK’s blanket ban on prisoner voting was found to violate Article 3 of Protocol No.1 (the right to free elections). The (latest) latest date for the UK to implement the Hirst judgment is 30 September 2013.

Abu Qatada and the Rule of Law

This week, the Court of Appeal rejected the Home Secretary’s appeal against the decision not to deport Abu Qatada. In November, the Special Immigration Appeals Commission (SIAC) ruled that Qatada could not return to Jordan due to the risk of a ‘flagrant denial of justice’. This kept with last year’s Strasbourg decision that determined that, if Qatada were to be deported, it would be in breach of Article 6 (the right to a fair trial).

Joshua Rozenberg relates how the Appeal judges emphasised that Strasbourg only prevents deportation in extreme cases and that the risk of breaching Article 6 must be ‘so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.’

Conor Gearty stresses that the Court of Appeal’s ruling against the Home Office is not an indication of political allegiance and that the three senior judges were not necessarily liberal, progressive or staunch protectors of human rights. Instead, they are merely upholding the Rule of Law and applying the democratic laws of the country. He notes that, in the past, judges often looked the other way (see, for example, the Birmingham Six or the Miners’ strike) and is in favour of the European Court of Human Rights, which ‘keeps the judiciary honest.’ – see also this extended version of his excellent piece.

As UKHRB’s Jim Duffy explains, the court has the difficult task of balancing conflicting interests while preserving constitutional norms but, ultimately, this case was about torture, which the court sees as ‘a universally abhorred as an evil.’

The Home Office states that it plans to seek permission to appeal to the Supreme Court and it may be that evidence has recently arisen that will allow Qatada to be charged with an actual offence. Certainly, it is preferable for the issue to be resolved this way and not by undermining universal values to prevent torture.

Secret Courts and Parliamentary Ping-pong.

If the government succeeds in pressing charges against Qatada this will probably be pursued through the Secret Courts. This week, amendments to the Justice and Security bill were narrowly rejected by the House of Lords. The controversial bill has been making its way through Parliament in what has been referred to as ‘parliamentary ping-pong’. The rejected Amendment by the Labour Party would have meant that Closed Material Procedures would only have been permitted if a judge were to decide that a fair verdict were impossible by other means.

Over at Liberty, Sophie Farthing decries the result and the ‘dark days ahead for British justice’ and states that there has been no evidence that Secret Courts were necessary, nor cases where the approach to secret material has failed.

A number of notable figures have spoken against the bill. Lord Macdonald, the Liberal Democrat peer and former Director of Public Prosecutions, states that such procedures will be ‘corrosive of justice and public confidence in justice’. Conservative peer, Baroness Berridge, a member of the Joint Committee on Human Rights says, ‘It is better for the Government, but not for justice’ while Labour peer Baroness Kennedy comments that ‘openness will sometimes be more important for the health of the nation because of the poison that is released by secrecy.’ – see our latest post here

In or Out?

Debate continues on the merits of Theresa May’s suggestion that the UK could withdraw from the European Convention on Human Rights. Focus has also centred on whether the UK will be able to retain its membership in the EU if this were to occur.

Noelle Quenivet, at the Euro Rights blog, discusses how the Lisbon Treaty does not require States to observe human rights law and the ECHR, and that states already party to the TEU are not required to have ratified the ECHR. However, Article 6(3) TEU does mean that fundamental rights, as guaranteed by the ECHR, constitute general principles of the Union’s law. He concludes that it will be possible for the UK to remain but will have to comply indirectly ‘not only with the rights enshrined in the ECHR but also the interpretation given to such rights by the ECtHR.’ Therefore, there will still need to be effective domestic protection of human rights.

Freedom of Speech and Press Regulation

Discussion continues over the proposed Royal Charter on press regulation and the relevant provisions of the Crime and Courts Bill that support the Draft Charter.

Carl Gardener, at HeadofLegal examines how the new press regulation clauses cover foreign publishers. He regards this positively, stating that ‘including foreign publishers within the ambit of the legislation is actually fairer to them than exclusion’.

Richard Edwards notes that the duty of the press is to impart information and ideas on all matters of public interest and that currently this vital aspect of the Article 10 guarantee is undermined. He worries that, under the new regulation, not only will the freedom of the press be curtailed but also the freedom of society as a whole.

Disabilities and Medical Interventions

Over at ‘The small places’ blog there is discussion on the recently issued report by the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The report focuses on medical interventions that override a person’s choices on disability related grounds. Lucy Serles concludes that statements around legal capacity, involuntary treatment and deprivation of liberty are easy to use but harder to translate into real life scenarios. While it is easy to criticise, insufficient practical solutions have been offered.

The demise of the UK Border Agency

Theresa May announced this week that the UK Border Agency would be abolished as ‘its performance was not good enough’. She argues that it has created a ‘closed, secretive and defensive culture’ and has been unproductive. However, the Shadow home secretary Yvette Cooper stated that immigration problems had worsened under the coalition government and that, after already splitting the UkBA last year, queues at the border went up, with a 20% increase in the backlog of asylum cases in three months.

Around the world…

–       Same sex marriage has reached the Supreme Court in the United States for the first time. The Economist relates how, if standing is granted, the Justices have several options, either to rule on all the states as a whole, on the nine states that have already banned same sex marriage or only on California’s ban itself. The article compares the first option to that of Loving v Virginia, the 1967 case that overturned bans on interracial marriage and notes that support for same sex marriage is growing in almost every demographic, especially amongst youngsters.

–       In Monis v The Queen [2013] the High Court of Australia considered the Australian doctrine of ‘implied freedom of political communication’. It is relatively rare for the High Court to be confronted with such human rights questions as Australia lacks a statutory or constitutional bill of rights.

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 –

• Court of Appeal Rejects latest attempt to deport Abu Qatada – March 28 2013 by Angela Duffy
• Justice and Security Bill: The ‘Secret Courts’ Endgame? – March 26 2013 by Angela Patrick
• 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