Caesareans, Transparency, Torture and Prisoner Votes – the Human Rights Roundup

23 December 2013 by Sarina Kidd

Welcome back to the UK Human Rights Roundup, your regular raging winter storm of human rights news and views.  The full list of links can be found here.  You can find previous roundups here.  Links compiled by Adam Wagner, post by Sarina Kidd. 

The Government received an unwelcome early christmas present this week, with the Joint Parliamentary Committee reporting that a blanket ban on prisoner enfranchisement had no rational basis. Meanwhile, Britain’s potentially unlawful treatment of detainees with regard to rendition and torture are coming to light with the Gibson Inquiry, and a senior judge has announced that perhaps, after the ‘forced Caesarean’ escalation, there needs to be more transparency in the family courts and Court of Protection.

In the News

Colluding with Torture and Rendition?

Much has now been said on the Gibson Inquiry and you can find the UKHRB discussion on it here. Philippa Whipple QC of One Crown Office Row was lead counsel to the Inquiry and Matthew Hill, also of 1COR, was also involved as counsel. The Inquiry reviewed 20,000 documents, many top secret, and found evidence that Britain was involved in the rendition and ill-treatment of terror suspects. No evidence was found, however, that officers were directly involved in the torture or rendition of suspects.  The Inquiry has highlighted 27 issues which should be examined further, in relation to the themes of interrogation and treatment, rendition, training and guidance, and policy and communications within Government.

Ken Clarke has announced that a further investigation by a committee of MPs and peers will now be held into the highlighted areas of concern. Meanwhile, Jack Straw, Foreign Secretary at the time, reportedly ‘welcomed’ the Parliamentary committee’s investigation but stressed that, ‘I was never in any way complicit in the unlawful rendition or detention of individuals by the United States or any other states.’

Adam Wagner’s post is here.

Prisoner voting

The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill was published on the 18^th December and can be found here.

Notably, the report recommends enacting legislation so that ‘all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections’. For further analysis of the report’s implications, see Obiter J here, and Adam Wagner’s UKHRB post here.

Meanwhile, in Petition of Moohan, Moohan, Re Judicial Review [2013] ScotCS CSOH_199 the Court of Session (Outer House) has rejected a judicial review of the Scottish Independence (Referendum) Act 2013. Sections 2 and 3 of the Act were being petitioned, regarding who could vote in the upcoming Referendum. The claimants, all currently serving time in prison, were challenging the blanket ban of prisoner voting on human rights and European law grounds. The court decided, however, that the Article 10 ECHR right (Right to freedom of expression) and previous rulings by other courts on the enfranchisement, did not cover prisoner voting in a referendum.

Still on the subject, Maurice Sheridan at the UK Supreme Court blog revisits the key judgments in Chester v Secretary of State for Justice; R (McGeogh V The Lord President of the Council and Another (Scotland). These also concerned the blanket disenfranchisement of all service prisoners. The court decided, in line with Strasbourg and Hirst v UK (no 2) 2005, that a blanket ban was contrary to the ECHR right to vote. Sheridan  analyses the cases in detail, noting that, ‘in may be a matter of regret to some, including those in favour of the blanket ban on serving prisoners’ voting rights, that no reference was made to the CJEU on the EU law issues, as that would have allowed them the opportunity to have argued and succeeded before the CJEU, and hence conclusively as to all Member States, on the blanket ban’. UKHRB post here.

Migration, Migration

Matt Evans at the Justice Gap discusses the legal implications behind the Home Office threat to ‘clamp down’ on the way EU citizens can enter the UK, with Theresa May recently stressing that ‘there is a growing concern about the abuse of free movement in the EU’. — examines whether the government can really prevent or restrict Bulgarians and Romanians from working in the UK after 1 January 2014 (no) and the consequences if the UK does decide to act in defiance of EU law. For example, if UK employers refuse employment due to UK restrictions,  they could be susceptible to a Francovich damages action. Evans feels quite strongly that  ‘Theresa May remains deeply entrenched in her own personal Groundhog Day. However, whilst it may be too much of a stretch to believe that recent events will lead her to re-examine her life and priorities, she should at least take this opportunity to stop pretending that she can change legal reality’.

Hunger strike

Meanwhile, Isa Muazu, the Nigerian asylum seeker on hunger strike for three months, has lost his bid to stay in the UK. Muazu argued that if he were to go back to Nigeria, Islamist militants could kill him. However, a psychiatrist found that his ‘disturbed beliefs’ were part of a severe mental illness. UKHRB coverage of the Court of Appeal judgment here.

Caesareans and Court Transparency

Sir James Munby, the senior family judge in England and Wales, has said in the wake of the ‘forced caesarean’ media outrage that there must be greater transparency in the family courts and the Court of Protection. Rozenberg explains that Munby appears to be suggesting that judgments should be transcribed and published unless they are unlikely to be of any public interest and that ‘someone will have to meet the costs of the transcripts. But it’s a small price to pay for greater public confidence in the family courts. And, as Munby himself acknowledges, when judges can change someone’s whole life by a stroke of the pen, there is a pressing need for greater openness’.

Whilst Lucy Reed of PinkTape agrees with Munby’s statement that, ‘How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?’ she argues that the causation of the caesarean media furore is more complex than such a solution suggests. Whilst she agrees that information should be made publicly available, ‘I don’t think that excuses reporting that is knowingly based on incomplete information, that is expressed in trenchant and inaccurate terms and misleads the public about matters of genuine public interest’.

Rosalind English’s UKHRB post on the matter can be found here.

Excellent article

Nothing to add to this excellent in-depth feature from Jon Henley in the Guardian on the European Court of Human Rights – it is refreshingly useful and well-researched. The title is a little incendiary, but the article is much less so.

Case comments

• Laura Penny discusses the Court of Appeal case, Mba v London Borough of Merton, which determined that an employer was justified in requiring a Christian to work on Sundays
• Grace Capel at the UK Supreme Court blog looks at Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62 which is the first decision on the issue of deprivation of citizenship to reach the Supreme Court.

In other news

• Adam Wagner, of the UKHRB, has successfully defended the Legal Ombudsman in its first contested Judicial Review! The full judgment can be found here: LH Ltd v The Legal Ombudsman [2013] EWHC 4137 (QB)
• Joshua Rozenberg is giving a talk at the LSE on the 16^th January 6.30-8.00pm  in which he will answer your questions. Tweet them to @LSELaw using #LSERozenberg.
• Rozenberg also reports on how Lord Hope is finally proved right as the UK Supreme Court changes web address
• Lord Kerr gives the Justice Scotland International Human Rights Day Lecture 2013 titled ‘Miscarriage of Justice – When should an appellate court quash conviction?’
• The CPS has been asked to make a charging decision in respect of five suspects who allegedly sent offensive tweets to Stella Creasy MP and journalist and campaigner Caroline Criado-Perez.
• More analysis of Lord Sumption’s lecture, ‘The Limits of Law’ can be found here. The lecture sought to defend legislative decision making about rights.

In the Courts

• Griffiths v Secretary of State for Justice [2013] EWHC 4077 (Admin) (19 December 2013)December 19, 2013
  Secretary of State did not discriminate in provision of approved premises for women released from prison on licence, but had not done enough to satisfy its duties under the Equality Act 2010
• P (A Child) [2013] EWHC 4048 (Fam) (17 December 2013)December 17, 2013
  Anonymity order made in ‘forced c-section’ case, President of Family Division says case is “final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach… transparency”
• A, R (on the application of) v Kent Constabulary [2013] EWCA Civ 1706 (20 December 2013)
• Hamzeh & Ors v Secretary of State for the Home Department [2013] EWHC 4113 (Admin) (20 December 2013)
• London Borough of Islington & Ors v Mayor of London & Ors [2013] EWHC 4142 (Admin) (20 December 2013)

Upcoming Events

To add 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 the topics covered by this blog.

• EHRA Workshop – Maximising the Role of Civil Society in the European Human Rights Protection System
  23 and 24 January 2014, Strasbourg
• In Conversation with Joshua Rozenberg – 01 – 2014
• New event: Human Rights Beneath the Headlines | British Institute of Human Rights
  Thursday 30 January, 6:30-8pm, Leigh Day
• The Response – film screening, Friday 15 Nov, KCL
• The Expectation that Business will Comply with Human Rights: Can the UK Government’s 2013 Policy Work in Practice and in Law?

UK Human Rights Blog Posts

• When you wish upon a rendition and torture inquiry... – December 19, 2013 by Adam Wagner
• Anonymity Part 2: Child personal injury cases – December 19, 2013 by Rosalind English
• Anonymity in the courts: Part 1, the ‘forced Caesarean’ – December 18, 2013 by Rosalind English
• No rational basis for denying all prisoners the vote, concludes joint Parliamentary Committee – December 18, 2013 by Adam Wagner
• Senior judges speak out on EU and rights law – December 17, 2013 by Rosalind English