Prisoners Votes, Public Authorities and Presidential Views – The Human Rights Roundup

20 October 2013 by Daniel Isenberg

 Welcome back to the UK Human Rights Roundup, your regular chocolate fondu 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.

The issue of prisoner votes returned to the courtroom this week, with an unsurprising judgment on many fronts.  Meanwhile Lord Neuberger made his views known on how access to justice forms a crucial component of the rule of law; and commentators discuss why public bodies can’t bring claims under the HRA.

In the News

Prisoner Voting

This week the Supreme Court rejected the two appeals in Chester and McGeoch – cases where prisoners raised arguments against their disenfranchisement based on both EU law and the ECHR.  Adam Wagner’s UKHRB post focuses on the government’s attempts to get the Supreme Court to criticise recent ECtHR judgments and notes the ‘common sense’ in the Court rejecting this position.  Lady Hale in particular noted that Parliament cannot claim accountability to the disenfranchised, while Lord Clarke provided the greatest support for Strasbourg, noting its now “settled” jurisprudence on the matter.

Simon Usherwood on Ideas on Europe picks up a similar theme but goes as far as to suggest that it is in the long-term strategic interests of the Conservative Party for David Cameron to conflate the ECHR and EU in public debate.  After all, making much of the fact that “the European Union has nothing to do’ with the issue of prisoner votes” is one conclusion drawn from the Supreme Court’s ruling – however, as Usherwood notes, it very much ignores a parallel determination that Hirst very much remains good law in need of implementation.

Carl Gardner on Head of Legal, meanwhile, points out that in this case the appeals were dismissed as there was no link to EU law which would engage the anti-discrimination rule; and, even if there had been, there would be no appropriate remedy.  Furthermore, the power to make a declaration of incompatibility under s. 4 of the Human Rights Act is discretionary.  Since one had been made in Smith v Scott, there would be no point in the Court doing so again.  Interestingly he adds that Lady Hale includes some frustration with Strasbourg, noting (in agreement with the dissenting minority in Hirst) that she felt the ECtHR should have indicated “in precisely what way Mr Hirst’s rights had been violated by the law in question,” rather than in the abstract.

The President Speaks

Lord Neuberger delivered the Tom Sargant Memorial Lecture this week (full text here), entitled ‘Justice in an Age of Austerity’.  For some interesting excerpts, see those featured on the UKSC Blog here, including his views on what ‘the rule of law’ can connote: going beyond ‘rule by law’ to requirements about accessibility, provision of individual rights against the state, and enforceability.  He linked the rule of law to access to justice, and thus to contemporary debates on judicial review and legal aid.

As Mark Elliott notes, Lord Neuberger’s remarks were “carefully expressed” and should not be seen as “intemperate or improper criticism” of government policy.  However, he does suggest that it is significant that the Court’s President has “spoken about these matters in these terms”, especially in the light of his own previous words of caution against members of the judiciary speaking publicly on matters of policy.  Elliott reminds us of the words of Lord Woolf: “if politicians persisted in failing to respect the proper role of the courts, they would succeed only in making the case for a written constitution that would prevent the improper marginalization of the judicial branch.”

Public Authorities & Section 6

In an interesting piece, David Mead on the UK Constitutional Law Group blog visits the question of what constitutes a ‘public authority’ under section 6 of the Human Rights Act, taking as a starting point the seeking of injunctions by the Olympic Delivery Authority on human rights (A1P1) grounds.  Mead traverses the settled case law on public authorities, noting the difference in liability between ‘core’ and ‘hybrid’ bodies, and discussing private entities contractually engaged in the discharge of a public authority’s functions.  Mead criticises Arnold J’s amount of clarity in the Olympic case, arguing that the judge could have viewed the use of land as ‘private’; or indeed as ‘public’: the direct link to developing an Olympic venue could constitute the exercise of statutory authority.

David Hart QC in his UKHRB post agrees with Mead that Arnold J was probably wrong to ascribe A1P1 Convention rights to the ODA.  He takes the debate in a slightly different direction, asking why public authorities cannot complain that they are HRA victims.  Aside from victimhood coming under the definition in Art 34 of the Convention (which does not include such bodies), Hart takes a conceptual nod from Laws J in Fewings, who made it clear that public bodies can only act on the basis of a “proper, purposive, understanding of its powers”.  Accordingly, affording these bodies the right to “vindicate their statutory powers and responsibilities in the courts is all they need” – and this is exactly what they can do through the means of judicial review.

Legislative Updates

Rowena Moffatt on the Oxford Human Rights Hub comments on the recently-published Immigration Bill, calling its proposals a “sea change”.  Clause 11, she notes, repeals the majority of current appeal grounds, replacing them with three rights relating to refusal of an asylum or humanitarian protection claim; refusal of a human rights claim; and to a decision to revoke refugee status.  Moffatt views this as a “begrudging nod to EU and ECHR requirements” and criticises the alternative offered of administrative review.  She does point out, however, that the Bill does not seek to oust judicial review and accordingly some challenges currently brought in the First Tier Tribunal as statutory appeals will be actionable in the Upper Tribunal within the JR jurisdiction. Watch this space…

Meanwhile, the BIHR has provided its comments on changes to the Care Bill from a human rights perspective.  The NGO is “delighted” that the House of Lords has passed an amendment, clarifying that the Human Rights Act protects people receiving care services.

Also in the News

• The highest court in France (the Constitutional Court) has ruled that mayors cannot refuse to hold same-sex marriage ceremonies on grounds of conflict with their religious belief.  This has been seen as “putting an end” to the resistance campaign brought by right-wing local politicians and mayors to the marriage equality law.
• The Act for UK Rights Blog reflects on how the media influence the public debate on human rights issues.
• Gabrielle Guillemin on Inforrm argues that the judgment in Delfi AS v Estonia is likely to create greater legal uncertainty in the area of liability of online publishers for comments posted by third-parties on their websites.

In the Courts

• R (Antoniou) v Central and North West London NHS Foundation Trust & Ors [2013] EWHC 3055 (Admin) – Investigation into suicide of patient detained in the Mental Health Unit of Northwick Park hospital was sufficient to satisfy Article 2 ECHR, independent, effective, prompt and did not constitute unlawful discrimination.
• R (Leathley & Ors) v Visitors to the Inns of Court & Anor [2013] EWHC 3097 (Admin) – Professional misconduct proceedings against barristers did not breach article 6 ECHR. Claims “totally without merit” save for in relation to one issue.

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.

• The Continuing Importance of the Protection of Fundamental Human Rights at Common Law – 23 October 2013, 17:45-19:15, Gray’s Inn, Bingham Room
• 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

• Should we have an enforceable right to food? – October 18, 2013 – by Professor Geraldine van Bueren QC
• Court orders MMR vaccine for children – October 18, 2013 – by Rosalind English
• Back to basics: why a public authority can’t be an HRA victim – October 17, 2013 – by David Hart QC
• The Supreme Court reveals its Achilles Heel – October 17, 2013 – by Dr Richard Cornes
• High Court orders disclosure of closed judgment in Afghanistan interrogation case – October 16, 2013 – by Rosalind English
• This Supreme Court prisoner voting decision really is a victory for common sense – October 16, 2013 – by Adam Wagner
• Aarhus, A-G Kokott’s opinion, and the PCO reciprocal cap – October 15, 2013 – by David Hart QC
• EU employment rights law trumps diplomatic immunity – what next? – October 15, 2013 – by Rosalind English