In or Out, JR Standing and Challenging PRISM – The Human Rights Roundup

6 October 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular late summer bake off of human rights news and views. The full list of links can be found here. You can  find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.

Following the Tory Conference, commentators postulated on the topography of the human rights landscape in 2015.  Meanwhile, more looming concerns have been raised about proposed reform of judicial review, while challenges have been raised to the bedroom tax, as well as the UK’s involvement in PRISM.

In the News

Tories on Human Rights

With the Conservative Party Conference having taken place in Manchester, the older sibling of the coalition has begun to lay out its plans for its policy on human rights from 2015.  Indeed, the Prime Minister has said that complete withdrawal may be “where we end up”, citing a need to ensure the deportation of foreign criminals.  This has been seen as a hardening of the PM’s position, previously declining to back calls from, amongst others, Theresa May and Chris Grayling to pull out from the Convention.

It was those two members of the Cabinet who piqued the interest of Dr Mark Elliott, who quotes from their Conference speeches.  Grayling spoke of scrapping the HRA and that “our Supreme Court should be in Britain and not in Strasbourg”; whilst the Home Secretary echoed his calls for HRA repeal, adding that “the Immigration Bill will sort out the abuse of Article Eight – the right to a family life – once and for all” (Dr Elliott has previously posted on the perceived Article 8 problem here).  As the BBC picks up, it is the issue of deporting foreign prisoners which is at the forefront of driving Conservative policy – with a pledge to “deport foreign criminals first, then hear their appeals”.

With potential reform in the pipeline after 2015, two pieces this week looked at the mechanics of what might take place.  In another piece, Dr Elliott provides an excellent and lucid explanation of the options that are on the table for reform, as well as the ramifications of each.  There are four in total: 1) Repeal the HRA; remain party to the ECHR; no domestic bill of rights. 2) Repeal the HRA; withdraw from the ECHR; no domestic bill of rights. 3) Repeal the HRA; remain party to the ECHR; adopt domestic bill of rights. 4) Repeal the HRA; withdraw from the ECHR; adopt domestic bill of rights.  He also usefully adds that simply repealing the HRA will not necessarily put us in a pre-1998 position in terms of fundamental rights as protected by the common law: “The relationship between the HRA and the common law has been (and, for now, remains) a two-way one.  In particular, the common law has absorbed both rights (e.g. privacy) and techniques (e.g. privacy) from the HRA and the ECHR.”

Roger Masterman’s analysis on the UK Constitutional Law Group blog has a slightly different focus, looking at Chris Grayling’s claims about returning ‘supremacy’ to the UK Supreme Court.  He asks: if the HRA is repealed and the UK withdraws from the Convention, “would the UK Supreme Court be rendered “supreme”?”  Whilst Parliament and the executive must respect judicial decisions, “the bare fact is the effects of judicial decisions of the apex court can be amended by primary legislation”.  Furthermore, Strasbourg decisions must only be “taken into account” by the Supreme Court, whilst EU law enjoys a more powerful supremacy in its areas of competence.

Cautioning Judicial Review Reform

Giles Fraser on The Guardian warns that limiting judicial review to those with a “direct interest” in the matter undermines the rule of law.  He adds that the plans will not only exclude the so-called “lefty campaigning organisations”, but also the Countryside Alliance, Eurosceptic groups, etc.  Fraser cautions that by limiting standing in this way there is a real threat to the rule of law.  As he puts it: “as if some poor blighter in prison in Kabul is in any sort of position to take out a judicial review”.

However, it is not only the former Canon Chancellor of St Paul’s sounding alarm bells on JR reform.  Lord Neuberger has also advised ministers to approach this issue with “great care”.  The President of the Supreme Court has commented that the judiciary can properly speak out publicly (and may have a duty to do so) on matters relating to the rule of law.

Also on the JR front, another bedroom tax judicial review claim has been issued on the grounds of Article 14 ECHR (discrimination) and no rational basis for the exclusion of children from the overnight carer exemption.  The Nearly Legal blog observes that: “while overnight carers for the housing benefit claimant or their partner attract a dispensation from the bedroom tax for an ‘additional’ bedroom, there is no such dispensation for overnight carers for children.”

Civil Liberties in the Defence & National Security Arena

This week a number of NGOs announced that they had issued proceedings against the UK in Strasbourg in relation to the purported PRISM and TEMPORA programmes.  Their grounds and relevant witness statements are available here.  The claim includes a statement relative to Article 35(1) of the ECHR, that the applicants do not have an effective remedy in a domestic tribunal.

Meanwhile, Carl Gardner on Head of Legal has uploaded a copy of D/Supt Caroline Goode’s witness statement, as part of the David Miranda proceedings.  His analysis is that the statement “was clearly key evidence on the basis of which it seems David Miranda and his lawyers felt they could not resist that wider inspection”.

Furthermore, the High Court has ruled that military personnel must be compelled to testify at inquiries into claims of abuse by the British armed forces, if such inquiries are to be effective.  The judgment noted that soldiers are likely to be reluctant to give evidence critical of colleagues, and so a “form of inquiry where such persons can be compelled to attend will be the only effective and fair way of determining what happened.”  Article 2 of the ECHR includes a requirement to investigate deaths arising from a failure by the state to protect lives.

Also in the News

• Strasbourg updates: the European Courts blog provides its weekly summary of case-law from the ECtHr.  Also, the Court has found that Greece breached Article 8 in conjunction with Article 14, where an HIV-positive employee had been sacked in response to pressure from colleagues.
• More on the niqaab: in the context of this debate, Claire Overman on the Oxford Human Rights Hub calls for questioning of the non-negotiability of requirements, which could lead to an accommodation, rather than curtailing, of religious rights.
• Lord Neuberger calls for more open justice; echoed by the new Lord Chief Justice in a practice direction.
• The Inforrm blog uses the case of the 40 individuals on police bail, arrested over the past two years as part of Operations Elveden and Tuleta to demand that police actions remain proportionate and large scale arrests at home only used to prevent violence or the disposal of the proceeds of crime.
• The Bingham Centre calls for submissions for its review into ‘Streamlining Judicial Review in a Manner Consistent with the Rule of Law’.

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.

• What has the European Convention on Human Rights ever done for us? – 10 – 2013 – Events – Public events – Home
• Human Rights Conference 2013: Lawyers as guardians of access to justice?
  30/10/2013 09:00 – 17:00; Venue: The Law Society, from £200
• The Human Rights Tour 2013 | British Institute of Human Rights –
  Various dates and locations: 10 September to 18 October 2013

UKHRB posts

• Mousa – a costly costs quirk – October 3, 2013 – by David Hart QC
• Further guidance on the conduct of Iraqi death inquiries – High Court – October 3, 2013 – by Rosalind English
• Challenging adoption order using human rights – October 2, 2013 – by Martin Downs
• Surrogacy and maternity rights – October 2, 2013 – by Rosalind English
• When adoption without parental consent breaches human rights – October 1, 2013 – by Martin Downs
• Five posts on why we shouldn’t leave the European Convention on Human Rights – September 29, 2013 – by Adam Wagner