Denouncing Human Rights, Legal Aid Woes and Animal Rights Advertising – The Human Rights Round
29 April 2013
Welcome back to the UK Human Rights Roundup, your regular potpourri 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.
This week, in order to deport Abu Qatada, there have been mumblings of a temporary departure from the ECHR. Furthermore, Justice Secretary Chris Grayling’s legal services reforms lead to a strike in the North, and the recent ECHR decision to allow the UK’s ban on political advertising continues to generate discourse.
by Sarina Kidd
In the News
Abu Qatada (again)
The Court of Appeal has refused the government permission to take their fight to remove Abu Qatada to the Supreme Court.
Subsequently, Theresa May has announced a mutual legal assistance treaty (PDF) with Jordan. Carl Gardner describes the move as a ‘game-changer‘ for the Home Secretary. He explains that if Abu Qatada’s surrender to Jordan is requested under the new extradition arrangements of Article 26, then Article 27.4 will shift the burden of proof onto the Jordanian prosecution. This will be to a very high standard, and they will have to ‘prove that any statement it relies on in evidence against Abu Qatada was provided freely and not obtained by ill treatment.’
Furthermore, the Prime minister is apparently considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. Richard Edwards offers some thoughts on the matter, such as how a denunciation of the ECHR will remain fully applicable for six months. After this, in order to suspend or repeal the Human Rights Act 1998, an Act of Parliament is required and ‘a political and constitutional storm would break as a result’. Channel 4 news reports Professor Francesca Klug OBE of the LSE’s centre for the study of human rights’ comment that a temporary withdrawal would be ‘extremely unlikely’. Politically speaking, it also looks unlikely, as the Liberal Democrats have said they would not consider such a withdrawal. Channel 4 also reports a comment by our own Adam Wagner.
Telegraph continues Article 8 campaign
The Sunday Telegraph continued its longstanding campaign against the use of Article 8 family life by foreign criminals seeking to avoid deportation – ‘Rights’ that make a mockery of our courts. You can read the controversial Tribunal judgment here (PDF) if you want to make up your own mind.
Political Advertising triumph?
Comment continues over the recent Grand Chamber of the European Court of Human Rights decision to do with political advertising. The court upheld, by a razor-thin 9-8 majority that the UK’s ban on political advertising on TV was compatible with free expression rights. In the case, Animal Defenders International v. the United Kingdom , it was argued that the ban, under the Communications Act 2003, contravened Article 10, which protects free expression. The Animal Defenders International called the result ‘a profoundly sad day for democracy’. Our analysis of the ruling is here.
For a number of commentators, the decision has been very welcome. Jacob Rowbottom discusses his relief and notes Strasbourg’s argument that if the ban were to be overturned, advertising would begin to resemble the US in which ‘‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. He praises the decision for preventing communication from being skewed in favour of those with the deepest pockets. Over at the Guardian, Joshua Rozenberg also praises the move, having no wish to have UK political parties forced to raise ever larger funding ‘by increasingly dubious means’. Kate Ghose, Chief executive of the Electoral Reform Society states, ‘This ruling should be welcome news to all democrats. Lifting the ban would have irrevocably changed the political landscape in Britain, and not for the better.’
Jeff King looks at the effect the case has on three matters to do with British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.
Legal Aid Woes
This week, the Northern Circuit of the Bar – comprising over 1,000 barristers and almost 100 QCs – went on strike over the Lord Chancellor’s overhaul of the criminal justice system. With legal aid to be slashed and the proposed introduction of a ‘best value tendering’ system, many people see the changes as ‘the end of the legal system as we know it’.
Jake Simons notes that Chris Grayling is the first non-lawyer to hold the position of Lord Chancellor since 1673 and many see this as the root of the problem. He records one barrister’s statement that, ‘He’s basically introducing a massively standardised, target-driven culture…the effect will be that barristers will have no motivation to take pride in their work, and there will quickly arise a culture of box-ticking.’
Over at the Free Movement blog, it is emphasised how much these changes will affect the weakest and most vulnerable groups in society and their access to justice. This time, however, lawyers will suffer as well, and such a move will make it harder for unlawful government decisions to be challenged. At the New Statesman, David Allen Green examines the government’s contradictory approach to the legal profession, and notes that many firms will probably have to close due to the cuts. He explains that the abandonment of localism and removal of choice cannot be justified when the proposals to replace the current system are so flawed.
Meanwhile, also at the New Statesman, Russell Fraser paints a dystopian future in which ‘suspects are apprehended in G4S investigators, transported by G4S security, detained by G4S officers and imprisoned by G4S jails – at each stage represented by G4S lawyers.’
Judicial Review Reform
In December 2012, a consultation paper titled, ‘Judicial Review: proposals for Reform’ was published. This month, the Government published the response to the consultation, with a number of measures to be introduced. This includes a reduction in the time limits for bringing a claim from three months to six weeks for planning cases and 30 days for procurement cases. For further discussion on the changes on this blog, see Paul Bowen QC’s post and Mark Elliot’s.
In response to such changes, the Shadow Secretary of State for Justice, Sadiq Khan, writes in defence of judicial review, stating that it allows ordinary people to use ‘their power as individual citizens to make sure public authorities abide by the law when taking decisions that impact on their lives.’ He notes that these changes, along with the threat to abolish the Human Rights Act and leave the ECHR, give citizens ‘even fewer tools to hold unaccountable power to account.’
The Defamation Act
On April 25th, nearly three years after the introduction of Lord Lester’s Defamation Bill, the Defamation Act 2013 received Royal Assent. Inforrm’s blog discusses the Act, explaining that it does not produce any radical revisions to English libel law. For example, there are no “real remedies” in the form of ‘declarations of falsity or orders for the publication of corrections.’
Mark Elliot, over at ‘Public Law for Everyone’, discusses the recently decided case, Salvesen v Riddell  UKSC 22, and the questions that arise from it. In the case, the UK Supreme Court ruled part of an Act of the Scottish Parliament to be unlawful on the grounds that it conflicted with the ECHR – David Hart QC’s analysis is here.
In other news
- Scotland Yard has opened up investigations into three further allegations that British intelligence officers were involved in the mistreatment of al-Qaida suspects after 9/11. The allegations are about events that occurred in 2002 in a US run detention centre north of Kabul, where it is said that prisoners were interrogated and tortured.
- Judith Townend discusses the government’s updated amendments in the Crime and Courts Bill. The change emphasises that small blogs will not be classed as ‘relevant publishers’ who should sign up to the new regulator. – notes, however, that two definitions might prove problematic in the future: ‘news –related’ and ‘blog’.
- The Supreme Court has released a video detailing what goes on in its court.
In the Courts
- ANIMAL DEFENDERS INTERNATIONAL v. THE UNITED KINGDOM – 48876/08 – Grand Chamber Judgment  ECHR 362 (22 April 2013) Partial ban on political advertising in UK is compatible with Article 10 ECHR, rules European Court of Human Rights Grand Chamber (9-8 majority)
- Bracking & Ors, R (on the application of) v Secretary of State for Work and Pensions & Anor  EWHC 897 (Admin) (24 April 2013) Decision to abolish Independent Living Fund for disabled people was lawful, rules High Court – adequate consultation and Public Sector Equality Duty complied with
- Doogan & Anor v NHS Greater Glasgow & Clyde Health Board  ScotCS CSIH_36 (24 April 2013)“In our view the right of conscientious objection extends not only to the actual medical or surgical termination but to the whole process of treatment given for that purpose”
- HC (A Child,), R (on the application of) v Secretary of State for the Home Department & Anor  EWHC 982 (Admin) (25 April 2013) High Court: Policy of treating 17 year olds as adults in police custody breaches Article 8 ECHR but isn’t irrational
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 –
- The spanner of ‘human dignity’ in the wheels of modern medicine. April 22 2013 by Rosalind English
- Strasbourg ties itself in knots over advertising ban. April 23rd 2013 by Rosalind English
- Government pressing ahead with (most of) its proposals to restrict access to judicial review. April 23rd 2013 by Mark Elliot
- How can the courts manage the facebook phenomenon? April 24th 2013 by Rosalind English
- Supreme Court find A1P1 breach in retrospective legislation. April 24th 2013 by David Hart QC
- The felling of a tree might breach occupier’s right to respect for a home. April 25th 2013 by Rosalind English
- What is the Supreme Court? Head to YouTube to find out (with cheesy muzak). April 25th 2013 by Adam Wagner
- Judicial Review Reform. What does ‘totally without merit’ mean? April 25th 2013 by Paul Bowen QC
- Denounce the ECHR to deport Abu Qatada…You cannot be serious! April 26th 2013 by Richard A. Edwards
- Genetic testing of children up for adoption. April 27th 2013 by Rosalind English.