Right to Blog, Lord Chancellor’s Legacy and Accountability for War Crimes – The Human Rights Roundup

26 May 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular tasting menu 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.

With an upcoming anniversary, the role of the Lord Chancellor (and, of course, his reforms) has been under scrutiny. Further, the new Defamation Act is looked at in more detail, civil liberties are abused and war crimes resurface in a number of ways. And, the gay marriage bill continues on its tumultuous journey to the House of Lords.

by Sarina Kidd

In the News

The Lord Chancellor 10 years on

This week, discussion has focused on the role of the Lord Chancellor, and more specifically, on Chris Grayling himself.

Joshua Rozenberg discusses the upcoming 10^th anniversary of the Lord Chancellor being deposed and the judiciary losing its head. A ‘constitutional revolution’, he notes that such a move was an obvious modernisation but that the disadvantages are palpable, ‘the lord chancellor had evolved over the centuries into a uniquely valuable constitutional pivot. Wrenching it out of the system a decade ago was not a wise thing to do.’ Mark Elliot, over at Public law, wrote two posts last summer (here and here) on how Chris Grayling – the first lord chancellor to not be a lawyer – has caused an even greater break from the previous system.

The Law Gazette interviewed Chris Grayling this week, as he backs up his proposed changes to the Criminal Justice System. He defends himself in a number of ways, suggesting, for example, that the changes are there to help those not earning a lot of money and ‘the little firms that are struggling’ and that such help can only come about from a commercialisation of the process. He concludes that, ‘I am completely confident at the end of all this we will have a perfectly successful criminal legal aid industry, both on the solicitors’ side and the barristers’ side.’

Meanwhile, the Mirror links to a petition to ‘save legal aid’ and provides 8 reasons why such a cause should be supported.

Freedom of Expression

The Defamation Act 2013 was enacted on the 25^th April. The Act has generated some significant changes, such as making it harder for companies wanting to sue for libel, whilst other changes seem to be more a matter of words than substantial practical change (see, for example, the ‘truth defence’). The blog, Inforrm, describes such changes as ‘shifting the balance, between free speech and the right to reputation, in favour of free speech’ and has written four posts analysing the effects of the Act. The posts cover: Serious harm, Truth and Honest opinion, Privilege, Intermediary liability and Other key provisions. The first post can be found here.

A freedom of expression NGO, Article 19, has published a policy paper on the ‘Right to blog’. It contains a number of recommendations to state actors and policy makers about what should be done to promote and protect the rights of bloggers domestically and internationally, and contains practical advice for bloggers on their privileges and defences.

Coalition Progress on Civil Liberties

A new website produced by Insight Public Affairs and entitled ‘Cameron’s dashboard’ reviews progress of  promises made at the outset of the Coalition Government. One very useful page examines the UK’s recent approach to civil liberties. It is noted that ‘civil liberties helped bring the Coalition partners together three years ago, and since then, has threatened to drive them apart’. Despite drawing attention to many of Labour’s unpopular anti-terrorism and anti-crime measures, both parties have themselves been criticised for damaging civil liberties since entering government. However, since coming into power, 9 out of 14 of their civil liberties pledges have been achieved, although five were covered in the Protection of Freedoms Act.

War Crimes

It is possible that one of the first cases to utilise the newly minted Closed Material Procedure for civil trials will be a claim brought by a Libyan dissident, Abdel Hakim Belhaj (pictured above), who was kidnapped along with his pregnant wife and taken to one of Gaddafi’s prisons. Jack Straw, the former foreign secretary, and Sir Mark Allen, former head of counter-terrorism at MI6, as well as the British government and its intelligence agencies are all being sued for their alleged complicity. Ministers may move the case to be heard under the secrecy provisions of the Justice and Security Act, which will come into force in July. Straw and Allen are also suggesting that under the Official Secrets Act, they will be unable to respond.

On a different but related note, new research has shown that the UK’s support for the CIA’s global rendition programme after the September 11 terrorist attacks was far more substantial than previously recognised. For example, an interactive website highlights 1,622 flights in and out of the UK by aircraft involved in the agency’s secret kidnap and detention programme. Jack Straw dismissed such evidence in December, calling them ‘conspiracy theories’.

Further, the High Court has called for a new approach to an inquiry into allegations of British troops and their ‘terrifying acts of brutality’ in Iraq. The allegations include ‘sexual abuse, food, water and sleep deprivation, prolonged solitary confinement, mock executions and being denied clothes’. Lawyers representing 180 Iraqi civilians have called for a full public inquiry. The Court has rejected the claim that the investigating team is not independent but does say that it does not fulfil the UK’s human rights obligations under Article 2 of the ECHR, which covers the duty to investigate suspicious deaths.

For Adam Wagner’s New Statesman post on the subject, click here.

Will they, Won’t they? The gay marriage debate

Having reached an agreement with Labour, plans by the Coalition Government to legalise gay marriage in England and Wales are to proceed to the House of Lords. Andrew Sparrow of the Guardian discusses how although many peers are opposed to the legislation, ‘the Commons passed the bill at second reading with a majority of 225 and…Loughton’s amendment was defeated by a majority of 305. The size of these majorities makes it hard to see how the Lords can block the bill.’

David Pocklington provides a summary of the debate and details the changes proposed, agreed and rejected.

Holyrood and Prisoner Voting

The Scottish government’s plan to prevent convicted prisoners from voting in next year’s independence referendum has been met with international criticism. Whilst in 2005 it was determined that a blanket prohibition on prisoner voting breached the ECHR, the relevant provision, Article 3, Protocol 1, does not apply to referendums. The Council of Europe’s human rights commissioner, Nils Muižnieks, stresses that although the government’s legal interpretation may be correct, ‘the right to vote is not a privilege but a fundamental human right and a cornerstone of democracy’. If a prisoner is not to be given the right to vote, ‘there should be a clear connection between the nature of the crime and the sentence depriving the person of the right to vote.’

Life is Life

The Home Secretary’s proposals that anyone who murders a police officer in the execution of his/her duty will receive a literal life sentence has naturally been met with criticism. It seems that this will either occur by enacting a new mandatory life sentence or amending the provisions of schedule 21 of the Criminal Justice Act 2003. Richard Edwards, at the Euro rights blog, enters into a detailed and interesting discussion on this proposal, explaining that under both European and comparative case law grossly disproportionate sentences can amount to an infringement of Article 3 (inhuman or degrading punishment). Whilst life sentence without parole will not be grossly disproportionate, the European Court has stated that an issue can arise under Article 3 where a prisoner’s ‘imprisonment can no longer be justified on any legitimate penological grounds.’

Asylum proposals

In response to some peers calling on the Government to allow asylum seekers to work while waiting for their cases to be determined, Earl Attlee, a Government whip, claims such integration should not be allowed as if the application is rejected, it will only make it harder for them to leave.

Noelle Quenivet looks at the feasibility of Julian Braziier’s proposal in his pamphlet ‘An Overcrowded Land’ (Conservative Way Forward) for offshore camps for asylum seekers. One suggestion has been to set up in Kenya. Going through the case law, she concludes, unsurprisingly, that such a move would likely encounter a range of legal impediments.

Also in the News

• This week there was a victory for welfare campaigners. Judges ruled that the current procedure used by the Department for Work Pensions to decide whether people are eligible for Employment and Support Allowance disadvantages people with mental health problems, learning disabilities and autism. The current system often leads to those being assessed being unable to provide important evidence that needs to be taken into account.
• The College of Policing has issued new ‘Guidance on Relationships with the Media’ which aims for there to be greater consistency between police forces in response to the Leveson inquiry.
• The Commons Political and Constitutional Reform Committee (PCRC) has published its report on legislative standards after an 18 month inquiry. In 2012 the Society argued that constitutional legislation should be distinguished from ordinary legislation.

In the Courts

• B2 v Secretary of State for the Home Department [2013] EWCA Civ 616 (24 May 2013) May 24, 2013
  Deprivation of British nationality following terrorist allegations didn’t leave man stateless, rules CoA
• M, R (on the application of) v The Parole Board & Ors [2013] EWHC 1360 (Admin) (22 May 2013) May 22, 2013
  Court of appeal lifts anonymity order on triple child murderer’s parole Judicial Review, refuses to give general guidance on press notification for anonymity applications
• Calland, R (on the application of) v Financial Ombudsman Service Ltd [2013] EWHC 1327 (Admin) (21 May 2013) May 21, 2013
  Decision of Financial Ombudsman was not unfair nor did it breach Article 6 ECHR for failure to hold an oral hearing. Art 6 question was whether fairness required an oral hearing in specific facts of the case. It didn’t.
• Kaiyam, R (on the application of) v Secretary of State for Justice [2013] EWHC 1340 (Admin) (21 May 2013) May 21, 2013
  High Court judgment on the scope of prisons’ duty to provide relevant rehabilitative work in light of HoL decision in James v MoJ. Claim fails.
• Azaroal, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1248 (Admin) (17 May 2013) May 18, 2013
  Continuing detention pending deportation of convicted violent burglar would be unlawful, rules High Court
• EO & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) (17 May 2013) May 17, 2013
  Important High Court decision on the policy exercised towards immigration detainees who claim they have been tortured. All five claims succeeded

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.

• Saving Civil Legal Aid and Judicial Review – briefing meeting for NGOs
  Date: Tuesday 28 May 2013, Time: 16:00 – 18:00, Location: 113 Chancery Lane, London WC2A 1PL, Law Society
• UCL & Bindmans Debate: International Human Rights Breaches
• State Accountability v State Immunity, UCL Faculty of Laws Events, Wednesday, June 19, 2013 at 6:00 PM (BST)

UKHRB posts –

• Electronic plagiarism? The dangers of the cut-and-paste – May 26, 2013 by David Hart QC
• Bipolar patient has capacity to decide to terminate pregnancy – May 24, 2013 by Rosalind English
• High Court directs major overhaul of Iraq death and mistreatment allegations investigation – May 24, 2013 by Adam Wagner
• Can you decide who is to be your unpaid advocate? – May 24, 2013 by Eleanor Battie
• Comment| Abortion and conscientious objection: what about human rights? – May 22, 2013 by Elizabeth Prochaska
• Closing the lopphole: Care services and human rights protection – May 22, 2013 by Sanchita Hosali and Helen Wildbore
• UK Uncut loses: Taxman’s Goldman Sachs deal ‘not a glorious episode’, but lawful – May 22, 2013 by Alasdair Henderson.
• IVF Doctor not liable for failing to warn parents of genetic disorder in child – Australian Supreme Court – May 21, 2013 by Rosalind English
• Myths and Reliaties about Equal Marriage – May 20, 2013 by Adam Wagner