Bye Bye Abu Qatada, Secret Trials Are Here & A Legal Aid U-Turn – The Human Rights Roundup

7 July 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular Wimbledon Tennis Championship of human rights news and views. 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 Sarina Kidd.

This week, Chris Grayling made a concession, the closed material procedure for evidence in civil trials came into effect, and to Theresa May’s delight, Abu Qatada finally left the country.

Legal Aid Concession

Chris Grayling has announced that plans to deprive defendants of the opportunity to choose a solicitor are to be abandoned. The u-turn from the Lord Chancellor may be the result of the overwhelming opposition the legal aid reforms have had from the legal profession; or it may have been a proposal which was always intended to be dropped anyway. We will never know. Whilst this will not affect the scale of cuts, it does at least allow for such a traditional element of criminal trials to be preserved.  Whilst a significant victory, however, Maura McGowan QC points out that many contentious issues remain such as price competitive tendering which, ‘in any form is not a suitable mechanism for allocating legal aid contracts’.

Meanwhile, Obiter J details recent developments on the Justice Committee hearing that occurred on the 3^rd July and see the Angela Patrick on UKHRB here.

Closed Material strikes again

Also this week, the closed material procedure for evidence in civil trials has come into effect. Such a move, the Free Movement blog argues ‘violates one of the basic tenets of fair trial and breaks down the constitutional barrier between the executive branch and the judicial’ and therefore challenges the rule of law. The recent case of Bank Mellat v Her Majesty’s Treasury (No.1) (see David Hart QC’s post here)  is also examined, in which Lord Neuberger noted that the secret material was irrelevant to the event, meaning that the Supreme Court was forced ‘into setting a novel and dangerous precedent simply for the sake of it’. A striking quotation advising Henry Kissinger is also included, which describes how those with security clearances will quickly stop listening to those without.

Abu Qatada away

Meanwhile, Abu Qatada has finally been deported to Jordan where he has been charged with terror offences. Theresa May states that she intends to remove the ‘many layers of appeals available to foreign nationals we want to deport’ which will manifest, for example, in the new Immigration Bill and that ‘nothing is off the table’ with regard to Britain’s relationship with the ECHR. Look out for Adam Wagner’s opinion piece in tomorrow’s (Monday’s) The Times.

Bad Journalism and Freedom of Expression

The Sun has been reprimanded for misreporting European human rights. The European Commission complained to the Press Complaints Commission and it was determined that there was a ‘clear failure to take appropriate care over the accuracy of the coverage’. Adam Wagner notes that whilst newspapers should be allowed to express views on human rights, they should not exploit misrepresentation and inaccuracy when doing so.

On another note, the Kennedy litigation later this year will allow the Supreme Court to address the question of freedom of expression. It will mainly look at whether the right of freedom of expression conferred by Article 10 of the ECHR has a bearing on the Freedom of Information Act 2010.

Immigration and Asylum

The High Court has determined that UK spouse immigration rules are not unlawful but are ‘onerous…and unjustified’ (1COR’s Neil Sheldon appeared for the Secretary of State). Under new rules only British citizens or those with refugee status who earn at least £18,000 a year can sponsor their non-European spouse’s visa. This increases to £22,400 for families with a child, and goes up £2,400 with each further child. Such a rule, it has been argued, means that many British people have been kept apart from partners, children and elderly relatives.

In the court, Mr. Justice Blake said that whilst it would not be appropriate to ‘strike down’ the financial requirements, the earning threshold was disproportionate if combined with one of the four other requirements. However, it was for Theresa May, the secretary of state, to make adjustments to the rule.

On the topic of asylum, the Free Movement blog draws on the work of Professor Anthony Good, a social anthropologist at the University of Edinburgh, who looks at why asylum seekers are often disbelieved. The blog looks at why the Home Office often rejects asylum claims from Sri Lanka despite the applicants being at great risk, noting, for example, that there is a tendency to dismiss torture claims and disregard physical scarring by implying that it may have been self-inflicted. S.8 of the Asylum and Immigration Act 2004 is also examined, which lists the kind of behaviour that can damage an applicants’ credibility. The post concludes that, ‘dependent on the way in which they managed to flee, those who seek asylum, inherently vulnerable people, are faced with incredulity. The guidance is flawed, the consequence are horrible to contemplate’.

 Also in the news

• One Crown Office Row has a vacancy for a one third six pupil. The deadline is 5pm on Tuesday, 9 July. For more details, click here.
• The Court of Appeal determined this week that a landowner’s right to recover possession of his property does not infringe the human rights of squatter.
• An orthodox Jew has won a landmark appeal against the Department for Work and Pensions after he was denied jobseeker’s allowance for over 6 months and told he must work on Shabbat. Jason Coppel QC notes that this will have implications for the government’s new universal credit, and could affect people of all faiths.
• The Public Law project has provided some advice sheets and guides to give an introduction to public law subjects, for those not acquainted with legal jargon.
• A speech made Sadiq Khan, the shadow Justice Secretary, titled ‘Defending Rights, Delivering Political Reform’ can be seen here.
• The House of Lords has established a Select Committee on the Mental Capacity Act 2005. The terms of reference of the inquiry ask the Committee to ‘consider and report on the Mental Capacity Act 2005’. The Committee will explore the following key issues in detail and would welcome your views on any or all of the following questions. See here for more details.
• The executive summary of the Azelle Rodney Inquiry Report is available here.

Case Comments

• Maurice Sheridan looks at two cases before the Supreme Court, that of McGeoch v Lord President of the Council 2011 and Chester v Lord President of the Council 2010. The appeals concern the extent to which UK policy on the non grant of voting rights to serving prisoners is affected not just by the ECHR but also by EU law, and the right/duty of the UK courts to grant declarations of rights, especially under EU law.
• Kirsten Sjovoll analyses the Court of Appeal judgment in AAA v Associated Newspapers in which it was determined that a child did not have her Article 8 rights breached by the Daily Mail, in which it was speculated that her father was Boris Johnson.
• The European Courts blog looks over recent ECHR case law, including cases on prison overcrowding, disappearances and taxes.

 In the Courts

• MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) (05 July 2013) July 5, 2013
  UK family immigration rules are not discriminatory and do not infringe human rights, the High Court has ruled.
• R (on the application of Sturnham) (Appellant) v The Parole Board of England and Wales and another (Respondents) (No. 2) [2013] UKSC 47 July 3, 2013
  Supreme Court clarifies test for Parole Board recommending release on licence: there must be “good grounds” they pose risk to public. Not “significant probability” or “more probable than not”. Article 5 did not require a different result.
• Bedford v Bedfordshire County Council [2013] EWHC 1717 (QB) (21 June 2013) July 2, 2013
  Human Rights Act claim against local authority for criminal acts of child under its care fails as out of time and in any event no breach of article 8
• POA AND OTHERS v. THE UNITED KINGDOM – 59253/11 – Admissibility Decision [2013] ECHR 600 (21 May 2013) June 27, 2013
  Prison officers human rights claim about not being able to strike declared inadmissable by European Court of Human Rights as has already been raised as a complaint
• Amin v Director General of the Security Service (MI5) & Ors [2013] EWHC 1579 (QB) (26 June 2013) June 26, 2013
  Human Rights Act and tort damages claim for alleged complicity of British spies in Pakistani torture struck out as collateral attack on previous criminal conviction
• TWOMEY, CAMERON AND GUTHRIE v. THE UNITED KINGDOM – 67318/09 22226/12 – Admissibility Decision [2013] ECHR 578 (28 May 2013) June 21, 2013
  ECtHR admissibility decision: Decision of judge in Heathrow robbery case to sit without a jury did not breach Article 6 either becuase the Defendant’s weren’t given access to evidence relating to jury discharge or for appearance of bias

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.

• EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts
  ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm
• 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)
• Critical Debates on Counter-Terrorist Judicial Review: Durham, 12 June

UKHRB posts 

• Public Interest environmental litigation in Strasbourg – July 7, 2013 by David Hart QC
• Sparks fly in the Ukraine – July 4, 2013 by Rosalind English
• Legal aid and ideology: the new basis for Government reform? – July 4, 2013 by Angela Patrick
• High Level Parliamentary committee asks whether mental capacity laws are working – July 3, 2013 by Richard Mumford
• Brain-damaged claimant fails in Article 8 claim against Council – July 2, 2013 by David Hart QC
• There is no right ‘ to be forgotten’ by internet search engines – July 1, 2013 by Rosalind English