Political Advertising TV Ban (Just) Upheld, Bad Law and International Human Rights – The Human Rights Roundup

22 April 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.

Strasbourg popping up in various places in the human rights news this week: a couple of important decisions, as well as some broader reporting on the UK’s human rights performance this year.  Meanwhile, the battle between the Home Secretary and the immigration judges continues; and the US Supreme Courts turn away a foreign human rights claim.

by Daniel Isenberg

In the News

Breaking news – Animal Defenders

The Grand Chamber of the European Court of Human Rights has upheld, by a tiny 9-8 majority, the UK’s ban on political advertising on TV as compatible with free expression rights. See the Court’s press release and judgment. Early coverage from Inforrm’s Blog (whose editor, Hugh Tomlinson QC, acted for the applicants) is here, and from The Guardian here. The name of the case was Animal Defenders International v. the United Kingdom (application no. 48876/08).

It was argued that the ban on political advertising in the broadcast media under the Communications Act 2003 contravened Article 10 of the ECHR, which protects free expression. In this preview at the Oxford Human Rights Hub, Jacob Rowbottom notes that the ban was upheld by the House of Lords in 2008 on the basis of a ‘level playing field’ of campaign advertising, but also that previous decisions of the ECtHR stand in contrast to the House of Lords’ position. He wondered whether the political climate of the UK’s relationship with Strasbourg will affect the Court’s receptiveness to the UK’s submissions

UK Decisions at the Strasbourg Court

Relatedly, there are other important cases at the moment against the UK at the ECtHR, beginning with Broadmoor detainee, Haroon Aswat’s, fight against deportation to the USA on terrorism charges (see also ‘In the Courts’).  The court’s examination of Aswat’s case was adjourned to give it time to hear submissions on the relevance of his mental condition to the ill-treatment of any potential detention at the ‘supermax’ facility at ADX Florence.  The court held unanimously that, on the basis of his current state of mental health, extradition would amount to a violation of Article 3 (ill treatment).

…and Human Rights in the Domestic Courts, too

Brodies LLP’s Public Law Blog covers a recent decision of the Scottish Court of Session in Whyte and Mackay Ltd v Blyth & Blyth Consulting Engineers Ltd (see also David Hart QC’s UKHRB post here).  The Court held that to enforce the adjudicator’s decision would breach Blyth & Blyth’s right under Article 1 of Protocol 1 (A1P1) of the ECHR – “an adjudicator’s award is not a true reflection of the parties’ legal positions but rather a “rough and ready” provisional award”.  There may be cases where upholding the award would be in the public interest, but such factors were not present here and so the interference with A1P1 rights was disproportionate.

The Free Movement blog highlights the recent judgment in Chapti/Bibi (see also ‘In the Courts’), with the Court of Appeal endorsing the High Court’s decision that whilst pre-entry English language tests did interfere with the right to family life, such interference was justified.  Maurice Kay LJ specifically referred to “the wide margin of appreciation which I consider to be appropriate”, as well as the possibility that many applicants will benefit from the rule’s exceptions.

After examining various sources of international, refugee and European human rights law, Dr Quenivet also concludes that there is no obligation on the UK to establish a general scheme for Afghan translators who have worked with the armed forces to resettle in the UK.  Treaty law does not compel the UK to “accept individuals en masse”, and crucially individuals seeking asylum must demonstrate the threat of persecution to themselves as individuals, rather than as part of a group at risk.

 Human Rights Reports

The ECtHR this week published its country profile of the UK, which provides not only useful statistics of UK-related cases before the Court, but also summaries of notable judgments, broken down by the rights engaged. ObiterJ also points to the FCO’s report on human rights issues around the globe.  Similarly, and in typical American style, the Constitution Project’s ‘Task Force’ on Detainee Treatment have also published their report.  Luckily, the Watching the Law blog provides some highlights of the Ulyssean document.  Aside from the findings relating to the use of particular unlawful techniques and their limited intelligence glean, one of the most interesting conclusions was that: “Lawyers in the Justice Department’s Office of Legal Counsel (OLC) repeatedly gave erroneous legal sanction to certain activities that amounted to torture and cruel, inhuman or degrading treatment in violation of U.S. and international law.”

May & Migration

Another difficult week for Home Secretary Theresa May in the courts, as she is “deeply frustrated” by the legal obstacles to Abu Qatada’s deportation by appealing against the ruling by the Court of Appeal.  Furthermore, the Free Movement blog observes that the High Court has endorsed the Upper Tribunal’s approach to the new immigration rules: first a consideration of the rules; and then a separate consideration of rights – in contrast to Mrs May’s voiced approach.

Asylum and immigration is rarely out of the news, and this week light has been thrown on the manner in which UKBA approaches asylum claims.  The Amnesty International report alleges that there are “on-going problems with the asylum decision-making process”, as demonstrated by the fact that a quarter of asylum refusals are overturned on appeal.  Yet, David Goodhart on The Guardian comments that “the left is wrong about immigration” and that large numbers of immigrants could damage social democracy.  He specifically notes that immigration from less developed countries to those more affluent is not the best away to achieve global development or end inequality.

Juris-prudent

An interesting piece on Lawyer Watch about the complexity and quality of legislation, based on a report by the Cabinet Office/Office of the Parliamentary Counsel.  The report notes that undergraduate teaching focuses now, more than it used to, on legislative techniques; but nevertheless even legally-qualified users complain about the complexity of statute.  Meanwhile, Joshua Rozenberg has pointed to the ‘M25 suicide case’ as demonstrating the limits of the role of the Court of Appeal.  The Supreme Court held that whether had foreseen a particular outcome of his standing in the road was a question of fact for the First Tier Tribunal; and not for the Court of Appeal to address.

A useful update, too, from the UKSC Blog on some little-known aspects of the Crime and Courts Bill which will affect our highest court.  Chief among these will be the accommodation of flexible working for UKSC justices and positive discrimination to encourage judicial diversity, where two judges are of equal merit.

Over in the US Supreme Court, in the decision in Kiobel v Shell (see Wessen Jazrawi’s UKHRB post here), it was held unanimously that a US federal court had no jurisdiction to hear claims under the Alien Tort Statute by a group of Nigerians against non-American respondents who allegedly assisted the Nigerian government in human rights abuses.  Lyle Denniston has provided commentary on the UKSC Blog here, where he noted the desire of the SCOTUS not to be the “moral custodian” of the world.  He engages in further analysis at the SCOTUSblog, where he added that, in general, “the ATS cannot be the basis for a lawsuit in which all of the conduct challenged occurred in a foreign country where there is a functioning, legitimate government.”  However, the Court specifically avoided making any ruling on whether any ATS case at all could be brought against a corporation – so there is some narrow scope for possible future application.

The Written Word

• Oliver O’Callaghan on Inforrm provides a useful overview of the various legal issues and responses arising from social media.
• David Green’s argues that we should not give companies, as artificial entities, the same degree of protection as people under libel laws.
• A poetic farewell from Sir Alan Ward to the Court of Appeal.

In the Courts

• R (Chapti & Ors) v Secretary of State for the Home Department & Ors (Rev 1) [2011] EWHC 3370 (Admin) – Requirement for foreign spouses/partners to produce evidence of knowledge of English did not breach Article 8, 12 or 14, rules Court of Appeal

• Aswat v UK – 17299/12 – Chamber Judgment [2013] ECHR 322  – European Court of Human Rights halts UK plans for US extradition of terrorist suspect – prison conditions would exacerbate mental illness and breach Article 3 ECHR

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”
• Be a Human Rights Lawyer – Careers Event 7 May 2013 from 13:00 to 16:00 at the Law Society, Chancery Lane
• Human Rights Law Centre Summer School – Rights of the Child 24-28 June 2013, Nottingham University

UKHRB posts –

• Jihadist suspect cannot be extradited to United States because of his mental illness – April 21, 2013 by Rosalind English
• Local authority ordered to pay substantial costs in family human rights case – April 19, 2013 by Adam Smith
• Kiobel v Shell: US Supreme Court on corporate accountability for foreign human rights abuses – April 18, 2013 by Wessen Jazrawi
• Doctor entitled to rely on GMC’s assurance that his Caribbean qualification would be acceptable in UK – April 18, 2013 by Rosalind English
• Randy, rating, and his (house)boat – April 18, 2013 by David Hart QC
• Local authorities and the duty to consult with parents – April 16, 2013 by Clare Ciborowska
• Successful A1PI claim in construction adjudication – lessons for us all – April 16, 2013 by David Hart QC
• Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – April 16, 2013 by Robert Kellar