PRISM, Torture Abuses & Cutting the Backlog – The Human Rights Roundup
16 June 2013
Welcome back to the UK Human Rights Roundup, your regular sweet and salted extra large popcorn box 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. Links compiled by Adam Wagner, post by Daniel Isenberg.
Not our own proposed “Snooper’s Charter” getting the civil liberties groups excited this week, but the all-sensing eyes and ears of the American government. Meanwhile, Europe publishes a useful handbook on asylum and immigration issues; whilst the Strasbourg Court cuts down its growing backlog of cases.
PRISM
Privacy, snooping and data-collection were at the forefront of this week’s news, with revelations about the US government’s PRISM programme – Brian Barrett provides a useful explanation of exactly what it entails here. Dr Dimitrios Giannoulopoulos has a number of concerns about both PRISM and the concurrent revelation about the mass collection of metadata from American telephone service provider Verizon. He focuses on the novelty of this revelation which turns the focus of electronic surveillance away from “individual suspicion and probable cause to mass collection techniques”, as well as his contention that the FISA court lacked the competence to order surveillance of solely domestic communications.
Concerns had been raised about whether British agencies had access to this information and had been using American collection to circumvent domestic legislation. The Foreign Secretary William Hague has attempted to allay such fears, and made clear that information received about UK nationals was “subject to proper UK statutory controls and safeguards”.
This, though, is not enough for Matthew Ryder QC and Simon McKay on Inforrm, who are concerned that the law does not protect individuals from the snooping of foreign governments (usually just their own); and the Regulation of Investigatory Powers Act (RIPA), which regulates, amongst other things, the intercept of communications in the UK, does not cover intercepted data passed by foreign governments. David Allen Green on the Jack of Kent blog does note the contrast between the UK and the US, in that the number of requests made under RIPA for telephony data in the UK is made public (494,078 in 2010-11); and observes that the court order that underpins the Verizon data acquisition may bear no relation to the separate broader PRISM programme.
Richard Edwards on Euro Rights takes this episode as an opportunity to raise two questions: firstly, in light of this expose, are US companies providing adequate privacy protection for the purposes of EU law? Secondly, are our data protection laws still of value in an age where technological development outpaces legal change? Perhaps as this story unfolds the answers to these questions will become clearer, but in the meantime The Economist suggests that consent, not trust should underpin government; and ultimately Americans need to know more about the powers given to their intelligence agencies.
European Asylum Handbook
It may not be topping the bestseller lists (because it’s free), but the European Court of Human Rights and European Union Agency for Fundamental Rights have this week published a handbook to European asylum, borders and immigration law online. Its chief focus is on the status of third-country nationals and covers legal procedures, safeguards, and sources of support. Perhaps with an unsurprising large photograph of Nigel Farage, the Express has pointed to comments (admittedly by an anti-EU group) that such a guide is a “disgrace”, focusing on the handbook’s information on welfare rights available to those who receive asylum. See Adam Wagner’s UKHRB post on the real lessons of the Express story here.
Human Rights in Defence & Foreign Affairs
Kate Allen in The Guardian calls for David Cameron to act following censure of the UK by the UN’s Committee Against Torture. She notes that central to the report’s criticism is the UK’s lack of willingness to ensure that where abuses have occurred, there is subsequent full investigation, publication and compensation – and it is now time to take action. In the same publication, Phil Shiner of Public Interest Lawyers says the recent High Court ruling on Iraqi ill-treatment affords an opportunity for reform. His suggestions include: a new fitness-for-service test for all recruited soldiers; rewriting the relevant rules of engagement; and introduce a new interrogation policy.
Dr Noele Quenivet observes the difficulties currently faced by the UK in ending the saga of the Afghan individuals in UK detention. On the one hand, their detention is to be challenged in the UK courts and the Afghan authorities are calling for their transfer; but on the other, the UK is well aware of its duties under the ECHR to ensure no such transfer occurs before valid assurances are in place to guarantee fair treatment. On the same blog she also notes that it may be possible to view the initial detention as lawful under Article 5, but prima facie a 14 month duration would not be. Meanwhile, Professor Aoife Nolan questions the UK’s human rights record, especially in the fields of children’s rights and rights of the disabled, against the context of the UK’s campaign for election to the UN Human Rights Council.
Scrutinising Law & Policy
Top of the scrutiny agenda is, of course, legal aid, and Chris Grayling’s concerns have deepened with senior members of the judiciary raising anxieties about his proposed model of price-competitive tendering. Their focus is not on the principle of competition, but rather on the practicality of such a “fundamental” change. Conor Gearty’s comments, meanwhile, do speak to principle; suggesting that such reforms will lead to “denial of choice and effective representation to all those accused of crimes except the well-off.”
A different set of proposals up for scrutiny noted over on Inforrm are the Leveson reforms – with policy briefs at the Foundation for Law, Justice and Society suggesting that a future regulator will struggle to achieve meaningful change; may act as a further obstacle to the free and independent press; but may help to put the public interest at the core of regulation.
Tom Hickman sheds light on the new Justice and Security Act, with an interesting take on the law’s passage, and what will be the crucial issues in its early treatment, such as the requirement for it to be “fair and effective” to trigger closed proceedings. Similarly, the Law and Religion Blog provides some analysis of the Marriage (Same Sex Couples) Bill as it makes its way through the Lords. Of note are Baroness Kennedy and Lord Pannick’s assurances that the protections given to religious organisations are robust and the absence of a “realistic possibility” that any court would attempt to compel religious bodies to conduct a same sex marriage ceremony.
The Court & Convention
A few miscellaneous pieces this week all linked to Strasbourg and the ECHR. Firstly, the Express reports that the backlog of UK cases at the ECtHR has fallen by 11%, chiefly as a result of procedural changes, some of which were instigated by our own Prime Minister. Meanwhile the European Court blog provides a useful summary of the week’s goings-on at Strasbourg, including the Court’s finding that the search of a disabled person’s house, in which the police officer took away her stick, amounted to a breach of Article 3. By contrast, in two cases (Twomey and Cameron) both against the UK, the Court unanimously declared as inadmissible applications that the refusal to disclose evidence of jury tampering amounted to a breach of Article 6. An interesting take on Article 8 comes from Helen Fenwick, whose position is that it can be considered the ‘feminist’ Article. Her pieces touches upon ways in which Article 8 has been used to advance women’s issues, including: preventing deportation to face gender-based discrimination; protection from domestic violence; and upholding access to abortion.
Also in the News
Just a couple of addenda this week: Lord Wallace’s (the Advocate General for Scotland) speech on the role of lawyers in public life has been published online; and also some useful guidance from Daniel Sokol and 1 Crown Office Row’s Isabel McArdle for those undertaking pupillage interviews.
In the Courts
- O’Neill v Her Majesty’s Advocate No 2 (Scotland) [2013] UKSC 36 – For the purposes of Article 6(1), a person is considered to have been “charged” from the date which the suspect’s position is substantially affected by the official notification”.
- JB (Jamaica), R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 666 – Unlawful for Secretary of State to certify Jamaica as “not presenting any serious risk of persecution” as there was a serious risk of persecution of gay people
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.
- The Law Society Public Debate Series – Does Taser use breach fundamental human rights?
24/06/2013 18:00 – 19:45
- Legal Aid Question Time, Tue 18 June 2013
Bar Council: With Lord McNally, Andy Slaughter MP, Maura McGowan QC – chaired by Joshua Rozenberg, 18:30-19:30
- A Practical Introduction to Human Rights: one day training course | British Institute of Human Rights
Birmingham (4 July 2013), London (9 July 2013
UKHRB posts
- European Court of Justice grapples with secret evidence in UK immigration case – June 14, 2013 by Dr Cian Murphy
- Human genes may not be patented, but synthesised ones can, rules US Supreme Court – June 13, 2013 by Rosalind English
- The serious lesson hiding behind the Express’s latest rights “outrage” – June 12, 2013 by Adam Wagner
- Freedom of information and unpublished data from a randomised controlled trial on ME/CFS – June 12, 2013 by David Hart QC
- Can an employer increase the sanction for misconduct on appeal? – June 11, 2013 by Martin Downs
- The Chagossian Wikileaks cable judgment, fishing rights and a dose of EU law – June 11, 2013 by David Hart QC
- Incomplete information and the right to know: Climategate’s long tail – June 10, 2013 by Rosalind English
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The Foreign Secretary is, of course correct to say that the PRISM and BLARNEY system of intelligence gathering by our American friends and its disclosure to the Security and Intelligence Services through GCHQ is subject to proper statutory and regulatory controls although he is most careful not to disclose exactly what those statutory and regulatory controls actually are! I suggest that in fact, the ‘controls’ to which he refers relate to Part II of the Justice and Security Act 2013 and the Closed Material Procedure (CMP) the public were told was to safeguard the integrity of ‘Foreign Intelligence’ sources!
Perhaps the Minister without Portfolio will now ‘come clean’ and admit that while the government has been keen to lock up journalists for illegal ‘hacking’, it has been busy engaging in the same activity it seeks to condemn in the private sector.
Now that we have ‘The Guardian’ revelations (who seem to have ignored the ’round-Robin’ ‘D’ Notice issued by the Government a week or so ago) that the Security and Intelligence Services were busy setting up false Internet Cafes’ and other clandestine activity to monitor foreign delegates at the last G8, will the Minister also admit that far from spending taxpayers money to recruit and train ‘cyber specialists’ for the defensive purpose of preventing foreign intelligence services from ‘hacking’ Into our commercial and intellectual property secrets, that the main or dominant purpose of such an expansion in our cyber security is intended to upgrade our offensive capability in this area both at home and abroad?
I won’t hold my breath waiting for anything constructive from Parliament’s Security and Intelligence Committee. It is almost as useless and ineffectual as most MPs. It has no power to demand the production of documents, The Prime Minister is under no obligation to act on its recommendations or even publish its reports and we are all too familiar with the last stunt it pulled after the Prime Minister assured Parliament and the County that the so-called ‘5 techniques’ prohibited under Art 3 would no longer be used!
What a shame this has all come to light after the United Nations Commitee on Human Rights has produced its already damning report and has left the country.