Drones, “Ex-Gay” Bus Advert and Train Track Constitutionalism – the Human Rights Roundup

27 January 2014 by

HRR ex-gay advertWelcome back to the UK Human Rights Roundup, your regular bountiful burst 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 Celia Rooney. 

This week, the pragmatic, political and constitutional ramifications of the Supreme Court’s decision in the HS2 case are up for debate.  Meanwhile, the European Court considers whether the Charter of Rights applies in private disputes, while the domestic courts take on the tricky issue of the justiciability of US drones strikes in Pakistan. And the Court of Appeal rules on TfL’s bus advert ban.

An unashamed plug: A few tickets still left for this Thursday’s event featuring Adam Wagner amongst others – Human Rights Behind the Headlines

In the News

HS2, EU Supremacy and an Unorthodox Constitutional Hierarchy?  

This week, a 7-Justice bench of the Supreme Court gave its judgment on a challenge to the Government’s proposed high-speed railway, HS2, in the case of R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3.  David Hart has summarised the issues, and considered some of the implications of the case, on the UK Human Rights Blog here.

To briefly recap on the issues, the group challenging the HS2 project alleged, firstly, that a command paper had provided the ‘framework’ for the decision on HS2, and should thus have been subject to Strategic Environmental Assessment (SEA) under EU law.  The organisation, secondly, claimed that the Parliamentary legislative procedure did not meet the Environmental Impact Assessment standards required by EU law, as interpreted by the EU courts.  On this point, the Supreme Court were essentially being asked to assess whether the Parliamentary process gave MPs the opportunity to consider the proposals adequately and independently.

The Supreme Court was not convinced by either of these arguments, and dismissed the case.  On this first argument, the Justices made it clear that the command paper in question did not provide the framework for the HS2 decision, so no SEA was required.  On the second, Lord Reed did not believe that Parliamentary democracy was subject to the level of scrutiny under EU law that the EU courts had previously suggested.  He criticised the objectors over-simplified interpretation of the supremacy of EU law, and asserted that, where EU law conflicts with domestic constitutional principle, domestic courts should determine the outcome.

Practitioners and academics have been quick to comment on the significance of this case.  From a practical perspective, David Hart QC, writing for the UK Human Rights Blog, has noted that the Supreme Court was reluctant to refer the matter to the Court of Justice, in light of the delay and inconvenience that would be caused to a major government project by such a referral.  As such, it characterised the issue as one of an application of law to fact, rather than a dispute of law – keeping it within the playground of the national courts.

Adam Tomkins, as well as noting the constitutional significance of the case, has commented on what he describes as the ‘Supreme Court’s welcome attack on the Court of Justice’.  He notes that the EU law Directives in question were not themselves problematic, but that the Court of Justice’s teleological interpretation, which interprets law in light of the ‘spirit’ of EU legislation, changed the meaning of the provisions in question.  This, he highlights, was criticised by Lord Mance and Lord Neuberger, who made it clear that such changes were made contrary to the intentions of the EU legislature.  As such, Tomkins suggests that the Supreme Court has used this case as an opportunity to remind the EU judiciary of the ‘mutual trust’ and ‘cooperation’ that is supposed to underpin their relations.

Finally, Mark Elliot has noted that the judgment is significant as more than just an attempt to put the EU courts in their place.  More fundamentally, he argues that it is a challenge to an orthodox understanding of the UK constitution itself.  In questioning the supremacy of EU law, the courts have previously noted the difference between ordinary statutes and so-called constitutional legislation and principles (Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)).  Elliot, however, argues that the judgements of Lord Mance and Neuberger go beyond this binary distinction – of ordinary and constitutional – and suggest that there may be a hierarchy even as between different constitutional principles and provisions.  This, he suggests, is at odds with Diceyan orthodoxy, which perceives a ‘flatness’ in the relationship between statutes.

Horizontal Effect of the Charter

Last week, in the case of C-176/12 AMS, the Grand Chamber of the Court of Justice of the EU dipped another toe into the waters of when the EU Charter of Fundamental Rights may apply between private parties.  In previous cases, such Kucukdeveci, the Court of Justice had stated that the principle of non-discrimination could be relied on against private employers.  In this case, however, however, it refused to apply the Charter provision in question to private disputes.

While the European Court was unwilling to declare that the Charter provision in this case had horizontal effect, Steve Peers, writing for the EU Law Analysis blog, has suggested that the Court did shed some light on the issue.  Firstly, he notes that the Court of Justice did not rule out the possibility entirely.  Instead, it stated that the application of the Charter between private parties depends on whether the provision requires ‘more specific expression’ in EU or national law, or whether it is ‘sufficient in itself to confer on individuals an individual right which they may invoke as such’.  However, as Rosalind English, writing for the Human Rights Blog here, has highlighted, this test does little to clarify to individuals when provisions of EU law will and will not apply  – creating greater legal uncertainty in this field, and potentially requiring regular preliminary references to the Court of Justice to decide in each case.

Drone Strikes in Pakistan: Justiciable in a UK Court?

This week, the Court of Appeal refused to grant permission to appeal in the drones case, Khan, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24 (20 January 2014).  In that case, Mr Noor Khan had sought to demonstrate a degree of British responsibility for the death of his father, who was killed in a US drones strike in Pakistan in 2011, in order to proceed with his claim in the UK courts.  The Court of Appeal, however, held that the matter was non-justiciable, as it would involve a UK court ‘sitting in judgment’ on the United States.  It was suggested that, whether or not the US was named as an accomplice, such a judgment would be understood as condemnation of its actions.  The Court noted that only under exceptional circumstances would a UK court sit in judgment of a foreign state, and that the circumstances of this case did not meet that threshold.

“Gay, Ex-gay” advert ban ruling

In March of last year Mrs Justice Lang  ruled that the banning of an advert which read “NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” from appearing on London buses was handled very badly by Transport for London (“TfL”) but was not unlawful or in breach of the human rights of the group behind the advert.

The Court of Appeal has today handed down judgment in the appeal. It essentially agreed with Mrs Justice Lang on the human rights issues, but has also recommended a further investigation as to whether the mayor of London, Boris Johnson, instructed the banning of the advert for an “improper purpose”. Once that investigation has taken place, the matter will be sent back to the High Court to be decided. More from the BBC.

Holocaust Memorial Day

Given that today is Holocaust Memorial Day, we thought it would be appropriate to publicise this excellent new project:

Gathering the Voices is a project collecting, contextualising and digitising oral testimony from men and women who sought sanctuary in Scotland to escape the racism of Nazi-dominated Europe – all details at www.gatheringthevoices.com. The website is intended to provide an educational resource for schools and individuals, and several other projects including a travelling exhibition and teaching packs for schools are being prepared for completion this year. You can follow on Twitter via @gatherthevoices

In Other News

  • In a report published this week, the Joint Committee on Human Rights have questioned the continuing utility of Terrorism Prevention and Investigation Measures (TPIMs) in the fight against terrorism, describing the civil preventive orders as ‘withering on the vine’.
  • In a post on the Oxford Human Rights Hub, Sir Keir Starmer QC considers how prosecutorial discretion is and should be exercised in cases of assisted suicide.  He highlights the role that such discretion can have in reaching compassionate decisions in criminal cases, while also stressing the need for transparency and accountability in prosecutorial decisions.
  • The Government have published a consultation on the future of civil partnerships in England and Wales, in light of the Marriage (Same Sex Couples) Act 2014.  The deadline for submissions is 17 April 2014, at 5pm.
  • The Telegraph reports that Justice Secretary, Chris Grayling, has found a test case which he plans to use to clarify the status of the European Charter of Fundamental Rights in the UK.  Mr Grayling is adamant that the Charter is not binding on the UK.
  • Twenty-nine people convicted of obstructing engines or carriages on the railway, after a protest outside Drax power station, have had their convictions quashed on the basis that evidence gathered by an undercover officer, Mark Kennedy, was not disclosed to them at the time of the trial.
  • The Guardian reports that Theresa May’s plans to reform stop-and-search powers, which she suggests are a source of great resentment, have been put on hold by a ‘write-round’ issued by Downing Street – allowing other departments to comment on the proposals.
  • The European Court of Human Rights will, next week, consider the responsibility of the Irish state for the sexual abuse of a schoolgirl in 1973.
  • Former Deputy Prime Minister, John Prescott, will present a proposal to the Human Rights Commissioner this week, in an aim to end the prisoners’ voting saga, which will recommend that prisoners serving sentences of less than 12 months should be allowed to vote.

In the Courts 

Domestic Courts:

ZZ v Secretary of State for Home Department [2014] EWCA Civ 7 (24 January 2014)

Belgian man must be given “essence” of security reasons for his exclusion from UK under EU law. Para 26: “the minimum requirement is to inform him of the essence of the grounds.

Hicks & Ors, R (on the application of) v Commissioner of the Police of the Metropolis [2014] EWCA Civ 3 (22 January 2014)

Arrests and detention of four people prior to Royal Wedding in the exercise of “preventative powers” was lawful, no breach of Article 5 ECHR. Court of Appeal lays down guidance on when to follow Strasbourg case law.

Khan, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24 (20 January 2014)

Permission to appeal refused in Judicial Review seeking declaratory relief re culpability of UK officials passing intelligence to CIA to be used in drone strikes.

European Court of Human Rights:

Placi v Italy (Application No. 48754/11)

Conscription into compulsory military service violated Article 3 and 6 of the Convention, in light of the state of the applicant’s mental health.

Gramaxo Rozeira v Portugal (Application No. 21976/09)

A failure to disclose a letter sent by the Prime Minister’s Office to the Constitutional Court, which left the applicant in question unable to respond to the allegations therein, breached Article 6 of the Convention.

Ihsan Ay v Turkey (Application No. 34288/04)

The use of an erased criminal conviction, which was based on provisions of the criminal laws which were no longer in force and on acts done over twenty years ago, by domestic courts constituted a disproportionate interference with the applicant’s Article 8 Convention right.

Perihan and Mezopotamya Basin Yayin A.S. v Turkey (Application No. 21377/03)

Order for the dissolution of a company found to have propaganda for the PKK, the illegal Kurdistan Workers’ Party, violated Article 10 of the Convention.

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