Government Losses, HRA Repeal & Secular Courts – The Human Rights Roundup
4 November 2013
Welcome back to the UK Human Rights Roundup, your regular great bright firework display 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.
Some crucial judgments were handed down this week in the sphere of judicial review, with mixed results for the government. Elsewhere discussions continued about the future of human rights under a Tory government in 2015, as well as religious rights within the family courts. Keep an eye out for the upcoming Grand Chamber hearing on the full-face veil, as well as the open government consultation on the Balance of Competences Fundamental Rights Review.
In the News
Winning and Losing
Some important judicial review judgments being handed down this week, with both wins and losses for the government. Our tour begins in Lewisham, where the Court of Appeal upheld the decision of the High Court that Jeremy Hunt’s attempts to close the emergency and maternity units at the hospital were ultra vires and irrational. 1COR’s Jeremy Hyam acted for Save Lewisham Hospital Campaign Ltd in the appeal.
Greater success for the government, however, as the Press Standards Board of Finance challenged the move by the Privy Council to adopt the royal charter agreed between the main three political parties. ‘Pressbof’ contended that the process undertaken by the Privy Council was flawed and it had unfairly and unlawfully not considered the charter proposed by Pressbof. However, permission to proceed was denied and publishers were refused a last-ditch injunction on Wednesday before the Privy Council granted the charter.
Meanwhile, the Supreme Court upheld a decision of the Court of Appeal that the government’s new ‘back to work’ schemes were unlawful, as the government had not provided a “”sufficient detailed prescribed description” of the schemes. However, the cross-appeal also failed, which had contended that the policy amounted to forced or compulsory labour, breaching the ECHR. The BBC correspondent’s view following the decision is that “the government was entitled to ask people to take part in the schemes and it would not have to further amend existing legislation.” Joshua Rozenberg and Nick Cohen were not impressed with Iain Duncan Smith’s DWP’s spin on the case (pictured above).
As the David Miranda saga continues, the parties were back in court this week, before the substantive proceedings occur in the week to come. The claimant’s arguments relate to: use of powers for an improper purpose; incompatibility of Schedule 7 with the ECHR; and disproportionate use of Schedule 7 in this case. In this hearing the government’s claim for PII (public interest immunity) in respect of some evidential material was granted, though cross-examination of witnesses has not been ruled out.
Family Law & Human Rights
Sir James Munby, President of the Family Division gave a speech this week on ‘Law, Morality and Religion in the Family Courts’. The second half of this lecture is of particular interest to those in the field of human rights, examining the approach of the court to religion. Sir James pointed out that “all [religious beliefs] are entitled to equal respect, so long as they are ‘legally and socially acceptable’ and not ‘immoral or socially obnoxious’ or ‘pernicious.’” Moreover, he noted that there is no “bright line” test to be set at where religious belief is not “immunised” from the secular law.
In Frank Cranmer’s analysis of the speech on Law & Religion UK, he picked up on the “howls of protest from what might be termed the Religious Right”, with questions raised, such as: “What is the basis of English law if not Christian?” In particular he picks up on Melanie Phillips’ claim on her blog that judges see their role as protecting secular beliefs, which are not – as they claim – value-neutral, but instead promote “hyper-individualism”. Cranmer points out that calls to apply broad ‘Christian principles’ of truth, equality and peace are difficult to apply in specific cases; and a return to law based on some interpretations of traditional Christian values would involve repeal of some of the twentieth century’s most significant reforms.
Meanwhile, ObiterJ picks up on a flurry of family law cases reaching the appellate courts, and has compiled a useful primer.
Human Rights Act Repeal
It’s old news that HRA repeal is likely to form part of the Tory manifesto for the 2015 election, and Chris Grayling’s opposition to the 1998 statute “comes from his belief that it is fundamentally incompatible with Britain’s way of life, and his personal experience as Justice Secretary.” Mr Grayling moves from general critiques (that judges have taken the ECHR to places that “the authors…would never have imagined”); to specific criticisms – on prisoner voting and whole-life tariffs.
Much debate has arisen about what the Tories might do with the human rights landscape without the HRA. Ben Boult on Conservative Home is sympathetic to a judicial ‘strike-down’ power, however he sees the parliamentary Joint Committee on Human Rights as crucial to any proposed ‘British Bill of Rights’. Boult suggests this would constitute a ‘Parliamentary model of rights protection’: unlike judges, committee members are elected and accountable, and this proposal “would bring with it all the benefits of a judicial “strike down power” – but without the negative aspects of that power in the form of an unaccountable and potentially ‘out-of-touch’ judge”.
Colin Yeo on the Free Movement blog continues his series on the new Immigration Bill with a specific focus on appeal rights. He notes that the proposed Bill “even removes the ‘not in accordance with the law, including Immigration Rules’ ground of appeal.” Only the more ‘modern’ forms of appeal (refugee law and human rights) will remain, and no longer the traditional immigration appeals. However, in actual fact, he points out, “immigration appeals will essentially continue, albeit in more complex form, and that judicial reviews will considerably grow”. He points out that overstayers as a group will actually benefit from these proposals – because as long as they have made a human rights claim; if this is turned down, it will automatically generate an appeal.
Meanwhile, Matt Evans on The Justice Gap observes that the UK and EU are “locked in dispute” over the ‘right to reside’ test, especially as the UK has not informed the Commission of the measures it intends to put in place to align the procedures with EU law. The particular test limits benefit claims by EU citizens who are ‘habitually resident’ in the UK. The Commission has referred the case to the ECJ and, should the UK lose, it would have to apply the ‘habitual residency’ test rather than its own ‘right to reside’. The EU goes as far as to claim that potentially thousands of EU nationals resident in the UK have been refused benefits to which they should lawfully be entitled.
Joshua Rozenberg has called on his readers to approach media reporting with a degree of scepticism. In giving testimony before the Joint Select Committee on the Draft Prisoner Voting Bill (with our own Adam Wagner), Rozenberg gives the example of the Supreme Court decision in the “back to work” case (see above) as how complex court judgments can be presented to favour a particular agenda. He does not exclude his own reporting from the healthy scepticism for which he calls; readers should absorb from a wide array of sources to get a sense of balance.
Simon Carne picks up on the same story, but takes a slightly tack, arguing that what is actually important in the current climate is that the scheme is set to continue, rather than whether the original conception was flawed.
Also in the News
- Mark Elliott provides an account of the Bingham Centre’s response to the latest judicial review reform proposals.
- Look out for the ECtHR Grand Chamber hearing on the French full face veil case on 27 November.
- A new handbook has been produced for litigants in person.
- The Global Justice Clinic and INTERIGHTS present evidence to the African Commission on Human and Peoples’ Rights alleging Djibouti played an active role in CIA extraordinary renditions.
- ‘The Last Ambush’ report presents findings on mental health problems faced by soldiers returning from war.
- Consultation is currently open on the government’s Balance of Competences Fundamental Rights Review (see UKHRB post here).
In the Courts
- Youssef v Secretary of State for Foreign & Commonwealth Affairs  EWCA Civ 1302 – Placing of man’s name on UN Al-Qaeda/Taliban list was lawful, rules Court of Appeal.
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.
- UCL CLP: Whither the margin of appreciation?
President Dean Spielman (ECHR): Whither the margin of appreciation?, UCL Faculty of Laws Events, Thursday, March 20, 2014 at 6:00 PM
The Future of Judicial Review, 19 November 2013, 6:15pm, The British Academy, 10-11 Carlton House Terrace, London SW1Y 5AH
- Supreme Court weighs in on patient’s best interests and the meaning of futility – November 3, 2013 – by Kate Beattie
- Al Qaida list and the use of prerogative powers – November 1, 2013 – by Rosalind English
- The difference between public and private law – on a beach near me – November 1, 2013 – by David Hart QC
- EU Balance of Competences Fundamental Rights Review – October 31, 2013 – by Adam Wagner
- Freedom of expression – nakedness in a public place – October 31, 2013 – by David Hart QC
- Petition to Strasbourg stops the Spanish bulldozers – October 31, 2013 – by Rosalind English
- Court of Appeal broadcasters must learn the Supreme Court lessons – October 31, 2013 – by Adam Wagner
- You can’t be disabled when you’re dead – a footnote to R (Antoniou) – October 31, 2013 – by Ross Beaton
- Evidence to Parliament on prisoner voting – October 30, 2013 – by Adam Wagner
- 1940 Soviet massacre outside reach of European Convention, rules Strasbourg – October 29, 2013 – by Dominic Ruck Keene
- Wind farms, birds, and that pesky thing called the rule of law – October 28, 2013 – by David Hart QC
- Human rights – coming to a private care home near you? – October 28, 2013 – by Kate Beattie
- Two events and an evidence session – October 27, 2013 – by Adam Wagner
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