Miranda, Prisoner Votes & Judicial Review Myths – The Human Rights Roundup
11 November 2013
Welcome back to the UK Human Rights Roundup, your regular unexpected sunny spell of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Sarina Kidd, edited and links compiled by Adam Wagner.
This week, the Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill took evidence , and there were notable comments from the Secretary General of the Council of Europe, the body which monitors compliance with the European Court of Human Rights. Meanwhile, Baroness Hale weighed in on the proposed judicial review changes and, continuing along the judicial review vein, David Miranda (pictured) began his claim on Wednesday.
In the News
Undermining Judicial Review
Mark Elliot, of Public Law for Everyone, dissects Baroness Hale’s recent comments on judicial review. Hale discussed the government’s intention to restrict standing for those who lack direct interest, and to prevent the use of judicial review by‘ campaigning organisations. She noted, however, that most claims were brought by those with a very direct interest, and ‘the approach we adopt towards the standing required for people and organisations to bring claims for judicial review or other public law remedies is crucial to the constitutional purpose which they serve.’ Elliot discusses the constitutional significance of such changes in further detail, querying whether the executive should be able to reform judicial review when the procedure’s purpose is to hold it accountable to law.
Meanwhile, Jon Holbrook at Spiked argues that the British government has, partly through judicial review, ‘emasculated’ itself. He claims that the main issues with judicial review are ‘myriad countervailing duties, regulations, restrictions, consultations and impact assessments’. Having less regulation, bureaucracy and allowing decision makers more red tape and autonomy will help tackle the judicial review problem.
Prisoner Voting and the Bigger Picture
On Wednesday the Parliamentary Joint Committee on the draft Voting Eligibility (Prisoners) Bill took evidence on two sessions from Thorbjørn Jagland, Secretary General of the Council of Europe, and the Attorney General, Dominic Grieve MP. See Jagland in action here.
As Obiter J details, the Bill contains 3 options, ‘a ban for prisoners sentenced to 4 years or more; a ban for prisoners sentenced to more than 6 months or a ban for all convicted prisoners.’ The third option cannot be compatible with the ECHR protocol 1 Article 3 and in light of Strasbourg case law such as Hirst No.2 (Note also the Supreme court’s recent decision in ‘Chester and McGeogh’, and see Dr Howard Davis’ post on it here.) Parliamentary legislation contradicting the convention would have to breach international obligations.
It is useful to quote Jagland in detail, as Human Rights Europe has done. The Secretary General stated that if — ‘the implications would be negative….if the United Kingdom doesn’t implement a judgment from the court, it would set a bad example.’ Further, ‘if the convention system is weakened or dissolved then it will harm human rights for millions of citizens on this continent and it will give much more cover to those who want to have more power at the expense of the people’ and that ‘if we start to pick and choose the judgments from the court, then the court will be weakened and have no meaning’. Joshua Rozenberg analyses this further, explaining that it is important because the Council of Europe, with its 47 members, is the only ‘pan-European’ body. Therefore, the issue of prisoner voting should be placed in its wider context, that is, seeing its potential to damage ‘the only body that acts as a counterweight to the EU’.
David Miranda Challenge
David Miranda’s judicial review claim began this week. Miranda is challenging his questioning and detention under Schedule 7 of the Terrorism Act 2000. He has three arguments. Firstly, the stop was not carried out for the proper lawful purpose, secondly, journalistic expression was breached and thirdly, on the incompatibility of free speech with Schedule 7. For a detailed account of the arguments, and a daily account of the case, see Carl Gardner of Head of Legal’s posts here, here and here.
Disability Victory
Five disabled people have succeeded in a legal challenge to the government’s decision to abolish the independent living Fund. Currently, 19,000 disabled people are able to live independently in a community thanks to the fund.
In other News
- The British Institute of International and Comparative Law is hosting a talk titled, ‘The Expectation that Business will comply with human rights: Can the UK Government’s 2013 Policy Work in Practice and in Law?’ on the 11th November.
- The BIICL also have a free downloadable book titled ‘Immigration Detention and the Rule of Law: Safeguarding Principles’ available here.
- Three single mothers, and their children, have lost a legal challenge to the government’s benefit cap. The £500-a-week cap affects housing benefit, child benefit and child tax credit for families not working enough hours to get working tax credit.
- The Daily Mail recently ran an article titled, ‘10k bill to teach asylum seeker to fly’. The Independent catches up with the subject of the article, Yonas, and gives his side of the story.
- A number of human rights groups have penned an open letter to David Cameron on surveillance, stating that ‘national security should never be used to justify preventing disclosures of illegalities or wrongdoing.’
Case Comments
Inforrm discusses the case of Re J (A Child) 2013, which is of importance with regard to transparency in family law cases. Now, the Family Court (with caveats) won’t intervene if a parent in care campaigns in the media through the press and internet and names social workers.
In the Courts
- Stuart Bracking & Ors v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (06 November 2013) November 6, 2013
Government’s decision to close “Independent Living Fund” was unlawful for failure to comply with Public Sector Equality duties
- Elosta v Commissioner of Police for the Metropolis & Ors [2013] EWHC 3397 (Admin) (06 November 2013) November 6, 2013
A person detained under Schedule 7 of the Terrorism Act 2000 has the right to consult a solicitor in person before being interviewed. No breach of Claimant’s Article 5 rights as he was lawfully detained and waiting for a solicitor would have resulted in a longer, not shorter, detention.
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JS & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 3350 (QB) (05 November 2013) Judicial Review / ECHR art 14 challenge to Government’s proposed “benefit cap” fails on all grounds
- Youssef v Secretary of State for Foreign & Commonwealth Affairs [2013] EWCA Civ 1302 (29 October 2013) October 29, 2013
Placing of man’s name on UN Al-Qaeda/Taliban list was lawful, rules Court of Appeal
- ALI AND OTHERS v. THE UNITED KINGDOM – 30971/12 – Admissibility Decision [2013] ECHR 1026 (01 October 2013)October 24, 2013
- M.H. v. THE UNITED KINGDOM – 11577/06 – Chamber Judgment [2013] ECHR 1008 (22 October 2013) October 23, 2013
Initial detention by administrative order for the purposes of medical assessment in hospital breached Article 5(4) (no effective access to a mechanism enabling her to “take proceedings”)
- JANOWIEC AND OTHERS v. RUSSIA – 55508/07 29520/09 – Grand Chamber Judgment [2013] ECHR 1003 (21 October 2013) October 22, 2013
European Court of Human Rights Grand Chamber rules by majority it has no competence to examine 1940 Katyń massacre as it occurred before adoption of Convention in 1950. Russia criticised for failing to provide key document to court.
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 Expectation that Business will Comply with Human Rights: Can the UK Government’s 2013 Policy Work in Practice and in Law?
- Event: The Future of Judicial Review, 19 November 2013
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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 Continuing Importance of the Protection of Fundamental Human Rights at Common Law 23 October 2013, Javan Herberg QC, Lord Hoffman and Dinah Rose QC
- Procedural Justice in Police Interviews Date: 18/09/13, 6pm, Middlesex University
- Watch that Charter – November 8, 2013 by Rosalind English
- Hospital closures and the rule of law – November 8, 2013 by David Hart QC
- The ‘uneasy’ co-existence of public interest immunity and closed material procedure – November 7, 2013
- Sexual liaisons by undercover police officers could be authorised by RIPA – November 6, 2013 by Rosalind English
- Tax avoiders don’t have human rights – November 6, 2013, by Philippa Whipple QC
- Limiting the scope of injunctions in family cases – November 5, 2013 by Hugh Tomlinson QC
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Think it might be worth adding on Re J “provided the child is not directly or indirectly identified” since that’s the caveat which might inadvertently land a parent in prison if they thought Re J was carte blanche. Otherwise, fantasticaly helpful round-up, as always.
I have to say that I was impressed with Mr Jagland when he appeared before the Joint Committee looking at the draft Prisoner Voting (Eligibility) Bill. Everything this very distinguished Norwegian said made eminent good sense and displayed good humour throughout.. Sadly, I felt that some members of this committee were only looking for help in achieving their desire to go against the E Ct HR’s ruling. There was also a despairing view expressed by some of the committee members that no matter what they recommended, nothing will be done this side of the next general election.
The Attorney General very strongly emphasized that the UK should not refuse to abide by its international obligations. On this occasion, his defence of the rule of law was exemplary. Personally, I would be less sure that the 6 months option will be ‘safe’ from further challenge and one of the lady members of the committee touched on 12 months which might be safer and, basically, be a return to our old law. There is an unfortunate arbitrariness about any of these time requirements.
A few interesting comments appear under my own blogpost on this. Thank you for linking to the post.
I could not agree more. I have been impressed with Mr Jagland’s decency and forbearance for some time. He is a breath of fresh air and his words make a pleasant change from the stale, poisonous and “clever” parrot rhetoric that we often hear (or see in my case) on the prisoners’ votes issue.
“Five disabled people have succeeded in a legal challenge to the government’s decision to abolish the independent living Fund. Currently, 19,000 disabled people are able to live independently in a community thanks to the fund.”
Please note what the government says and what it actually does.
They say that they are going to ‘protect the most vulnerable.’
But what they actually do is attack the most vulnerable (the ILF is for the most severely disabled people in the country.)