Immigrants Go Home, the Third Source & Judicial Review Standing Changes – The Human Rights Roundup

29 July 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular social media storm 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 Daniel Isenberg.

With the judges winding down for their end of term break, this is not such a busy week of news; so instead a good opportunity to think over the role of the European Convention on Human Rights.  Various immigration stories keeping the commentators busy, if not making the headlines; and keep up-to-date in public law with the latest from the ALBA conference.

Reminder: there is a Rally for Legal Aid  tomorrow, Tuesday 30 July, 4:30-6:30 at the Old Bailey. Full details here.

In the News

Judicial Review standing (this section by Adam Wagner)

The Times has a slightly speculative report (£) on plans to change the “standing” rules in Judicial Review, which is the way individuals and groups can challenge public authorities for acting unlawfully. The plan, apparently, is this: “At present anyone with a “sufficient interest” can lodge a judicial review challenge. Ministers plan to tighten this test to ensure that only those with a direct link to the policy or decision can challenge.” So challenges by public interest groups will be more difficult in the absence of a lead claimant.

Nice quote from my head of chambers:

Philip Havers, QC, head of a leading judicial review chambers at One Crown Office Row, said: “The current test of sufficient interest has worked well and any attempt to restrict access to judicial review by narrowing the test will inevitably reduce the ability of ordinary citizens to hold the Government and public authorities to account.”

The Telegraph also report on the news, which arises from a Ministry of Justice leak, and their article is the usual mish mash with reliance on the representative of all things evil in law, Abu Qatada, who used judicial review so it must be bad.  Apparently the Government is to consult in the Autumn.

Incidentally, the result of the Judicial Review against the ‘bedroom tax’ is due imminently.

Employment Tribunal Fees

People bringing employment tribunal claims will have to pay fees for the first time since they were introduced in the 1960s – the fees will be £160 or £250 to lodge a claim, with a further charge of either £230 or £950 if the case goes ahead – the full rules are here.

Britain and the Convention

A relatively quiet news-week, so we return to some commentary on the well-trodden territory of our relationship with the European Convention, and the proposals for a ‘British Bill of Rights’ in its stead.  On the Oxford Human Rights Hub, Amy Williams of LSE observes that this debate is not going away.  She summarises three perspectives offered in the Bill of Rights Commission’s report: firstly, there is the option of re-branding – by which the level of rights-protection remains the same, but under a new ‘British’ banner.  Secondly, one option would be changing “standards and mechanisms”, by which there could be different categories of rights-holders, and the coupling of rights and responsibilities. Finally, the third perspective comes from Baroness Kennedy and Professor Sands: their ‘no regression’ approach digresses from the view of the majority of the Commissioners.  Williams concludes that “should a new Bill of Rights be introduced in the current climate, it would almost certainly weaken and not merely re-brand, let alone expand, rights protection in the UK”.

Also looking at the issue of the relevance of the ECHR, Jodie Kirshner on the Blog of the European Journal of International Law (EJIL) addresses the recent US Supreme Court decision of Kiobel (or coverage here).  This has left a potential “governance gap” where corporations may commit human rights violations overseas.  Kirshner contends that there is scope within Article 6 to confer jurisdiction over extraterritorial corporate human rights abuses.  Thus, the European Convention could plug any gaps that appear following this US judgment.

Immigrants Go Home

A government advertising campaign that targets racially mixed areas with mobile billboards warning illegal immigrants to “go home or face arrest” is being challenged through the courts. Nick Clegg’s office is said to have “registered its anger” at the pilot campaign.

The Third Source

The Free Movement Blog reports the Supreme Court decision in New London College, which upheld as lawful the Home Office’s sponsor-licensing process as part of the ‘points-based’ immigration scheme.  However, Colin Yeo’s article picks up on Lord Sumption’s judgment as separately interesting “from a constitutional and legal perspective”, as his Lordship does not “identify the statutory authority for the sponsor guidance scheme. Instead, he holds that there is no statutory authority as such, but apparently this does not matter”.  Mark Elliott makes a similar observation, related to the so-called ‘third source’ of government authority.  Dr Elliott concludes that “that Lord Sumption considered the power to consist, in some meta-sense, in the general scheme of the Act rather than in any specific provision contained therein.”  He notes that ‘third source authority’ is not offensive to the doctrine of ultra vires or to the rule of law; he just rues that it appears merely as a “red herring” in New London College.

Also in the sphere of immigration is Karon Monaghan QC’s comment on Advocate General Sharpston’s Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel on Eutopia Law.  These cases related to claims for refugee status in the Netherlands by homosexual men who feared prosecution in their home states.  The reference related to the EU Qualifications Directive 2004/83/EU, and contained three questions: whether gay men might constitute a ‘social group’ for the purposes of the Directive; which homosexual activities fall within its scope; and whether the criminalisation of homosexuality constitutes persecutory treatment?  It was the third of these questions which was the most controversial, and the A-G took a “modest approach”; in making such a determination, national courts should take into account: evidence regarding whether such laws are actually applied; whether criminal sanctions are enforced; and information “concerning the practices and the mores of society in general in the country of origin”.

Colin Yeo on the Free Movement blog also uses ML (Nigeria) as a useful opportunity (via the Court of Appeal) to remind us that serious errors of fact can amount to an error of law.

ALBA Conference

A big congratulations to the Constitutional & Administrative Law Bar Association (ALBA), which held another successful annual conference over this weekend.  Conference papers ranged from information rights to foreign affairs; case-law updates to Law Commission public law projects; as well as a keynote address from Judge Mahoney of the ECtHR.  Keep an eye out here for the papers to be put online.

Also in the News

• Claire Overman on the Oxford Human Rights Hub examines the aspect of Article 2 which involves the duty of the state to investigate promptly and effectively deaths caused by state agents.  She suggests that the McCaughey judgment is critical of the inquest system, itself, calling for urgent reform – violations do not arise from “isolated actions”, but failures of the system structurally.

• Joshua Rozenberg enters the debate on the role of the courts on the battlefield.  This is not about the recent Smith judgment, but the House of Lords’ Constitution Committee report which prefers the current system to any formal parliamentary requirements before military action is undertaken – such developments could leave these decisions susceptible to judicial review.

• Finally – for those single men in possession of a good fortune and therefore in want of a wife (or, indeed, now a husband) – from 2016 a new £10 will be issued with the image of Jane Austen, bringing a woman back to our paper currency, as Elizabeth Fry is also due to be replaced by Winston Churchill.

In the Courts

• R (X) v London Borough of Tower Hamlets [2013] EWCA Civ 904 – Council policy that family foster carer receives less money than she would receive as an unrelated foster carer looking after the same children was unlawful. Court of Appeal affirms High Court decision
• R (Modaresi) v Secretary of State for Health [2013] UKSC 53 – Supreme Court: Hospital’s failure to transmit woman’s mental health detention review application to tribunal not a breach of Article 5 ECHR – she has adequate access to a court
• R (TD) v The Commissioner of Police for the Metropolis & Anor [2013] EWHC 2231 (Admin) – Retention of police records for nine years (and counting) re alleged sexual assault but no charge is lawful and does not breach Article 8 ECHR, for now

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 by BPP Law School: After the Leveson Report – where next for Press Regulation? | UK Constitutional Law Group
  31 July 2013, 6pm, BPP Waterloo
• 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

UKHRB posts 

• Keep it short, judges: no need to churn to earn – July 27, 2013 by David Hart QC
• HS2 challenges fail but powerful dissent – July 26, 2013 by David Hart QC
• Second Christian B&B case headed for the Supreme Court – July 23, 2013 by Alasdair Henderson