GCHQ Surveillance, Tory Bill of Rights and Anti-Semitism – the Human Rights Roundup
2 February 2014
Welcome back to the UK Human Rights Roundup, your regular all-singing, all-dancing extravaganza 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.
This week, a group of MPs investigating drones were advised that large amounts of GCHQ surveillance is likely to be illegal, and the Conservatives continued their push for a Bill of Rights. Meanwhile, the Council of Europe Commissioner for Human Rights argued that anti-Semitism is alive and well in Europe.
In the News
GCHQ and Legal Loopholes
This week, two barristers, Jemima Stratford QC and Tim Johnston (both of Brick Court Chambers) warned MPs on the All Party Parliamentary Group on Drones that GCHQ is ‘using gaps in regulation to commit serious crimes with impunity’.
The advice explains that Britain’s main surveillance statutory framework is vague with too many gaps. This is being interpreted, they say, in a way that bypasses certain surveillance and privacy safeguards detailed in the ECHR.
The advice describes how the Regulation of Investigatory Powers Act 2000 (RIPA) has not kept up with technological advances. Further, it looks into all the ways in which the surveillance activities are illegal. For example, leaving the decision to ministers of whether data can be shared with agencies can interfere with Article 8 rights. To transfer an individual’s private data must be proportionate.
For Adam Wagner’s discussion, see here.
Immigration Bill Human Rights Amendment Fails
A bid by rebel Tory MPs to stop foreign criminal using certain European Convention rights to avoid deportation has failed due to opposition from Labour and Lib Dem MPs. Downing Street has stated that whilst Cameron’s views were in line with the rebels, he feared that such a move would be considered illegal.
Adam Wagner was interviewed by BBC Radio 5 Live on the amendment here (from from 2 h 26 mins).
Tory Bill of Rights
The Sunday Telegraph reports that the Prime Minister is expected to put reforming Britain’s relations with the ECtHR at the forefront of the Tory campaign for the European Parliament elections in May. Proposed plans involve scaling back Strasbourg’s power, with one source stating, echoing Chris Grayling’s earlier comments, ‘We want to make the Supreme Court supreme’. The Tories will introduce a Bill of Rights, which the principles of the ECHR will be written into. Notably, the passage in the Human Rights Act requiring courts to abide by judgments of the European Court of Human Rights will be repealed. However, there are no immediate plans, it would appear, to withdraw from the European Convention on Human Rights.
New Justice Minister Simon Hughes has defended the 1998 Human Rights Act as ‘a measured piece of legislation when understood and used properly’. A barrister by training, he also stated that, ‘human rights are not about bowing down to frivolous demands. They are about commonsense decisions affecting people’s rights when coming into contact with the power of the state’. Hughes has previously criticised the proposed Bill of Rights, and this time noted that it is unwise to discuss such a bill whilst the Scottish independence question remains unresolved.
The Human Rights Europe blog discusses the Grand Chamber judgment, O’Keeffe v Ireland (application no.35810/09). The case concerned the sexual abuse of a schoolgirl in the 1970s and whether the primary education system failed to protect her. It was ruled that there was a violation of Article 3 (prohibition of inhuman and degrading treatment) and of Article 13 (right to an effective remedy).
Anti-semitism alive and well
Inforrm considers Nil Mulzniek’s recent comment titled ‘Europe still haunted by antisemitism’. Mulzniek, the Council of Europe Commissioner for Human Rights, details how there has been an increase in anti-semitism in Europe and that it is imperative that national political leaders openly condemn it. Inforrm explains, however, that a glaring omission in his comment is the failure to consider freedom of expression for, ‘the balance between freedom of expression and the proper protection of the rights of minority or oppressed groups is a particularly difficult one to strike.’
The recent decision of the Grand Chamber of the Court of Justice of the European Union in C-176/12, Association de mediation sociale v Union locale des syndicates CGT, examines whether the Charter can apply to horizontal situations. That is, between two private parties, and whether an obligation can be imposed on an individual which would not otherwise be present if not for EU law. The case concerned Article 27 of the Charter.
Alison Young examines this and explains that ‘what is important is what is not said – it did not say that the provisions of the Charter, like Directives, cannot have horizontal effect.’ Therefore, it is possible that there will be future horizontal application to Charter provisions, and a disapplication of national laws in private party disputes.
Meanwhile, Krommendijk at Eutopia Law, argues that the decision concluded that Article 27 of the Charter ‘does not have horizontal effect and can thus not be invoked in a dispute between private parties’. He explains that the decision stands in sharp contrast to the Opinion of the Advocate General Cruz Villalon, in which he discussed whether the Article was a principle or right and concluded that it may have horizontal effect.
He also notes that whilst the preamble claims that all Charter rights are equally important, there seems to be a dichotomy between enforceable and justiciable civil and political rights, and so called economic, social and cultural rights.
In other news
- A new report from the European Committee of Social Rights lays down the failings of the UK’s social welfare provision. The 2013 survey of its adherence to the Council of Europe’s Social Charter demonstrated that, ‘the minimum levels of short term and long term incapacity benefit is manifestly inadequate’.
- The European Courts blog discusses the O’Keeffe v Ireland case mentioned above, along with Camekan v Turkey, concerning Article 2 (right to life) in which Turkey was held responsible for delaying criminal proceedings and for the authorities failing to fulfil their obligations.
- The ECtHR president, Judge Spielmann, has announced that pending cases in the court have dropped by more than 60,000 in just over two years. The annual table of violations for each country shows that states with the highest number of judgments finding at least one violation are Russia (119 judgments), Turkey (118), Romania (83), Ukraine (65), Hungary (40), Italy (34) and Greece.
In the Courts
- L, R (on the application of) v West London Mental Health NHS Trust & Ors  EWCA Civ 47 (29 January 2014) January 29, 2014
Court of Appeal: Mentally ill prisoners being considered for transfer from medium to high security must get “gist” of reasons for transfer so the decision can be challenged if necessary
- ZZ v Secretary of State for the Home Department  EWCA Civ 7 (24 January 2014)January 24, 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 Police of the Metropolis  EWCA Civ 3 (22 January 2014) January 22, 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. CoA lays down guidance on when to follow Strasbourg case law.
- Khan, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs  EWCA Civ 24 (20 January 2014) January 20, 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
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
- Shahid v The Scottish Ministers  ScotCS CSIH_18 (31 January 2014)
Segregation of dangerous prisoner did not breach his human rights, rules Scottish Court of Appeal
- Liberty80 Exhibition
Opens Tuesday 4 February 2014, closes Sat 1 March 2014, Gallery in the Crypt, St-Martin-in-the-Fields, Free entry
- King’s College London – Law, Rights & Justice in a Transnational World Law, Rights & Justice in a Transnational World
30/01/2014 (17:00-18:30), free but registration necessary
- Symposium: The UK Constitution – In Search of Constitutionalism
Thursday 20 March, Edinburgh
- Refugee Boy | Southbank Centre
11, 13 February 2014
UK Human Rights Blog Posts
- Honeymoon murder suspect can be extradited to South Africa, says High Court – February 1, 2014 by Rosalind English
- Barristers tell Parliament that some GCHQ mass surveillance is illegal – January 29, 2014 by Adam Wagner
- Council acted unlawfully in refusing tenancy – January 29, 2014 by Rosalind English