Tory ECHR Withdrawal, Prisoner Cold Turkey & Niqabs Again – The Human Rights Roundup

29 September 2013 by

smoking roundupWelcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can  find previous roundups herePost by Sarina Kidd, edited and links compiled by Adam Wagner.

This week the Conservative Party Conference  is likely to generate human rights headlines. Meanwhile,  previous controversies still bubble away. Chris Grayling, taking a break from legal aid cuts, offered his opinion on the Europe debate. Meanwhile, others considered the role of transparency, demeanour, religious freedom and niqabs in the courts, and, with the proposed smoking ban in prisons, smokers may have found another reason not to break the law.

In the News

Leaving the ECHR?

Chris Grayling gave an interview in the Spectator this week, in which he discussed abolishing the Human Rights Act. He also stated that he wanted ‘to see our Supreme Court being supreme again’ and that ‘I think people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg’. This is yet another suggestion that the Conservatives will go into the 2015 election intending to pull of the European court jurisdiction. Recognising that this would not sit well with the current coalition partners, Grayling emphasised that he would ‘sweat every sinew to try and make sure we are not in coalition after the next election’.

Barrister Matthew Scott explores the reasoning behind the Conservative’s policy of repeal and why these reasons do not sit well. He notes, firstly, that the policy is popular because ‘even those who should know better lazily assume that the convention and its associated ECtHR are something to do with the EU’. He emphasises that, contrary to popular opinion, unlike the ECJ, the ECtHR cannot overrule our own courts or even declare what our law is. Other reasons for the policy are that the court often has to make unpopular decisions; although this is a burden every court must bear. Further, ‘human rights law is perceived as providing a gravy train for smug left-wing lawyers’ and that the convention threatens British sovereignty. He argues, however, that a proposed ‘Bill of Rights’ would not increase Britain’s sovereignty.

In contrast, barrister Barbara Hewson offers a more negative appraisal of the ECHR. Reflecting on its anniversary, she argues that the Convention has not served us well, citing its financial burden. Quoting David Chandler, she concludes that ‘human rights  proponents treat individuals not as autonomous rights-bearing subjects, but as hapless victims in a fallen world. Despite their claims to empower the excluded, what they really offer is more state regulation, as opposed to personal freedom’.

The niqab furore

A lot has already been said on the Niqab issue (see the UKHRB posts here and here). For those who missed it, on the 25th August, HHJ Peter Murphy told a Muslim woman wearing a niqab that she could not stand trial in it because her identity could not be confirmed. Frank Cranmer discusses recent blog comments, including our own Adam Wagner’s, and concludes that the root of the problem is the ‘pop-up’ nature of the debate, that is, that ‘the issue seems to have crept up on politicians unawares and their positions are totally unprepared.’ He proposes a period of ‘quiet reflection’ instead of a national debate, of which nobody is yet prepared for. 

Meanwhile, Professor Richard Moorhead looks at how importance demeanour is when judging witness veracity. He cites a study by Michael Saks (6 S Cal. Interdisc. L.J. 1 (1997-1998) ‘What do Jury experiments tell us about how juries (should) make decisions’ which is a meta-analysis of jury research. Contrary to common belief, the report suggests that demeanour is not actually important and is a myth in the legal profession. This, perhaps, should be something that is taken into account in the Niqab debate.

In his new Financial Times blog (registration required), David Allen Green links the debate to transparency in the courts in general. He explains that there is an apparent clash of supposed rights: ‘the right of a court to determine the manner in which evidence is given; the right of a defendant to give evidence in the way they choose and to manifest their religious beliefs; the right of jurors to look at the expression on the face of a defendant when giving evidence; and the right of any of us to turn up in court and watch all this happen.’ Linking this all to the general transparency debate, he emphasises Carl Gardner’s point that the ultimate purpose of the criminal trial is justice, not forcing transparency. However, he does regard the progressive opening up of the courts as a positive, ‘the law binds us all, and so its practices and materials should not be the exclusive domain of some clerical class’.

Prison cold turkey

The Prison Service is making preparations to prohibit smoking in prisons. Currently the rule is that prisoners can smoke in their own cell but not in the rest of the building, so the ban will be ‘just a little closer to that of stopping people from smoking in their own homes’. Simon Hetherington discusses the problems that may arise from the ban, such as driving traffic in tobacco underground. However, he finds little merit in the argument that the ban will infringe on prisoners’ human rights, ‘deprivation of prisoners’ liberty ought not to involve their total dehumanisation but it probably does involve the incidental loss of the concomitant privileges of being at home’.

For a preview of how a human rights challenge to the smoking ban may look, see our post on a recent Scottish decision about a smoking ban in the State Hospital.

In other news

Marc de Werd has a look over this week’s ECtHR cases. Of note is one concerning the applicant’s inability to obtain access to all the documents relating to her deceased father. The documents were kept by the former secret services under the communist regime. Other cases involve a suicide in police custody, full adoption and bankrupt local governments.

In the Courts

  • Re A (A Child) – For those of you who had been pondering about the applicability of Re B [2013] UKSC 33 to private law cases – Re A (A Child) [2013] EWCA Civ 1104 goes some distance towards providing an answer.

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UKHRB posts


  1. Bronwyn Naylor says:

    Hi, I’m not sure if I reply on this email! But just in case – here’s something I’ve just published on niqabs in court.

    Bronwyn Naylor

  2. James Lawson says:

    Mr Grayling really is a gift from utter stupidity. He actually believes that a ban on prisoner’s ‘snout’ is going to be as effective as the current prison ban on hard drugs and that the supply of illicit tobacco is not going to be seen by some as an opportunity to supplement their wages!

    With his plans to remove what he sees as extravagant privileges for prisoners such as TVs and Game Consols which help to keep them docile, a denial of judicial review and access to Human Rights legislation and a continuing refusal to enfranchise them in violation of the ruling of the Grand Chamber in Hurst, I fear that those with little left to lose will be setting alight to rather more prisons than cigarettes!

    The one thing you can absolutely rely on with the average British politician is his complete mastery in creating more problems than he is capable of solving!

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