Judicial Review Concessions, Gay Olympic Controversy, and Defamation in Europe – the Human Rights Roundup

10 February 2014 by

Anti-Putin protestWelcome back to the UK Human Rights Roundup, your regular sporting 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 Celia Rooney. 

Last week, the Justice Secretary published the Criminal Justice and Courts Bill.  The implications of his revised proposals for judicial review reform are considered in this week’s roundup, along with controversy over gay rights at the Winter Olympics and recent trends in defamation cases before the Court of Human Rights.

In the News

Judicial Review –  Concessions?

Last week, the Justice Secretary, Chris Grayling, unveiled the Criminal Justice and Courts Bill.  Part 4 of the Bill outlines the Government’s proposals to reform the judicial review process.  Post-consultation, the Government have altered its position on certain issues.

Notable amongst the changes is the decisions not to alter the test of standing for judicial review – a matter that had caused concern for interest groups and NGOs.  The Bill has also backed down slightly on legal aid for permission applications, allowing lawyers to recoup costs where a claim was meritorious but settled prior to any court decision on permission.  Furthermore, following a negative reaction from judges,  Grayling has decided that planning reviews will not be transferred to the Upper Tribunal, but will rather be heard by a planning court within the High Court, developed from the current planning track – see David Hart QC’s post.

A number of contentious issues remain, however.  The Government, for example still plans to change the judicial review threshold, so that a remedy will not be granted if it is highly likely that the result would have been the same for the applicant, regardless of the problematic conduct of the decision maker.  Furthermore, controversial protective court orders are still on the cards.  Applicants will be required to declare the source of their funding, meaning that unnamed interest groups and interveners will be liable for costs in all but exceptional circumstances.

Joshua Rozenberg, writing for the Guardian, has suggested that, despite his tough rhetoric, Chis Grayling has been willing to ‘climb down’ on the issue of judicial review, following the advice of the UK judiciary.  However, other commentators have suggested that, while it is true that the Government has reconsidered its position on certain issues, its concessions do not go far enough – see Adam Wagner’s post on the UK Human Rights blog here, and Mark Elliott’s post on Public Law for Everyone here.

Ben Jaffey and Tom Hickman, writing for the UK Constitutional Law Association, have also suggested that, despite the changes, the overall tenor of the proposals is still directed at ‘strangling claims and hobbling claimants’ – without any consideration of the delays that defendants cause by fighting well-founded claims to the death.   

Controversy at the Winter Olympics

In a dazzling ceremony, this week, Russian President, Vladimir Putin, declared the Sochi Winter Olympics open.  The games, however, have been marred by controversy over Russia’s new laws banning homosexual propaganda, and the general persecution faced by lesbian and gay individuals in the country (see image above: credit, Guardian.co.uk).

Several athletes have boycotted the games, while others, such as Dutch snowboarder, Cheryl Mass, chose to protest while competing – waving rainbow coloured gloves at the international press.  In another protest, internet company, Google, also used the rainbow colours of the LBGT community to decorate its search engine logo on the day of the ceremony, standing in solidarity with gay activists.  Finally, Ban Ki-moon, the UN Secretary General, spoke of the discrimination that gay athletes faced in a speech before the International Olympics Committee on Thursday.

On a related note, Tom Heys has considered the issue of discrimination in sport and the concept of ‘Olympism’ as a protected belief in a post that can be accessed here.

Privacy and Defamation Before the Strasbourg Court

In a post on Inforrm‘s blog, Hugh Tomlinson QC has considered some of the recent case law of the European Court of Human Rights on the issues of privacy and defamation.  It is suggested by Tomlinson that the introduction of new privacy criteria into judgments on freedom of expression has blurred the lines between privacy and defamation cases.  Those criteria first emerged in Axel Springer v Germany (Application No. 39954/08) – and indicated that the Court was moving away from its previous focus on the issue of ‘truth and verification’ in defamation cases. Tomlinson argues that, while these criteria are useful in cases involving an infringement of private life by the media, they become problematic when they are used to balance reputation and freedom of expression in defamation cases.  This idea has also been emphasised by Censorship, an organisation that campaigns to protect free speech, has warned that the Strasbourg case law is likely to prove detrimental to the free press – hampering investigative journalism.

In Other News

  • The judicial review of the consultation that took place prior to the reburial of the remains of Richard III has been scheduled for 13 March 2014.  David Pocklington keeps us up to date with the development on this case on the Law and Religion UK blog here.  For more information, see the UK Human Rights Blog here.
  • The Home Office has banned Dieudonne M’bala M’bala from the UK under an exclusion order.  The controversial French comedian, whose shows were prohibited in France on the grounds that they were anti-Semitic, had hoped to travel to the UK to provide support for his friend, footballer Nicholas Anelka, who is facing disciplinary action after apparently making anti-Semitic gestures during a match.  David Arronovitch, writing for the Jewish Chronicle, has suggested that the ban is wrong in principle and will prove ineffective in practice.
  • Colin Murray, writing for Human Rights in Ireland, has commented on the advice given to Parliament by Brick Court barristers, Jemima Stratford QC and Tim Johnson, on the interception of communication and on drone strikes.  He notes that, while the advice points to the idea that the appellants in the pending case of Big Brother Watch v UK (Application No. 58170/13) are likely to have an easy win before the European Court of Human Rights, the Strasbourg court is unlikely to require specific authorisation for interceptions – thus leaving sufficient room for manoeuvre for GCHQ. See further Adam Wagner’s post, as well as the detailed comments below.
  • The Telegraph have contrasted the treatment of foreign national, convicted of crimes in the UK, with the treatment of two British citizens, who are facing extradition to the US, accused of a crime they deny.  It has been suggested that the ‘human rights farce’ protects the family life of convicted criminals, but not the rights of British nationals accused of a crime.

Case Comments

Unison v Lord Chancellor [2014] EWHC 218 (Admin)

Michael Ford QC, writing for the Oxford Human Rights Hub Blog, has commented on this recent decision of the High Court in which UNISON challenged the regime of fees that has been introduced in the Employment Tribunal and EAT.  He notes that, while the challenge was unsuccessful, this was primarily because the Court was unwilling to rely on hypothetical examples presented by the trade union.  Though, at present, there was insufficient evidence to substantiate the claims made, the Court noted that the Lord Chancellor had a duty to keep the situation under review, in particular, to monitor any discriminatory effect that the fee regime may have.

Max Mosley v Google Inc. 

Dominic Crossley, writing for Inforrm, has provided a summary of Max Mosley’s recent success against Google in the Hamburg District Court.  Mosley, who has come up against the internet giant in various courts in Europe, has challenged the assertion of the company that it should not have to prevent the publication of unlawful images on its web pages.  Crossley outlines both the reasons given by the Court and the steps Google should have taken to avoid liability here.

MG and Onuekwere 

The United Kingdom Immigration Law Blog have commented on the recent guidance offered by the Court of Justice of the EU on the interpretation of Directive 2004/38/EC.  In these cases (Secretary of State for Home Department v MG [2014] EUECJ C-400/12 (16 January 2014) and Onuekwere v Secretary of State for the Home Department [2014] EU ECJ C-378/12 (16 January 2014)), the Court of Justice gave its opinion on whether periods of imprisonment were relevant to both the calculation of residence for the purpose of permanent residency, and the calculation of the 10-year period that protects Union citizens from expulsion.  More information can be found on these judgments on the Free Movement Blog here.

In the Courts

Domestic Courts

Roberts, R (on the Application of) v the Commissioner of Police of the Metropolis & Ors [2014] EWCA Civ 69 (04 February 2014)

Court of Appeal dismisses Articles 5/8/14 ECHR challenge to Police stop and search powers.

Richardson & Anor v Director of Public Prosecutions [2014] UKSC 8 (5 February 2014)

Supreme Court dismisses appeal by 4 convicted of aggravated trespass for protest in shop owned by Israeli company. The protesters argued that they had a defence as the beauty products were produced in the Occupied Territories and were therefore “unlawful activity”.

European Court of Human Rights 

Pentikainen v Finland (Application No. 11882/10)

Majority held that a photographer’s conviction for disobeying the police during a demonstration did not breach his freedom of expression right under Article 10.

Upcoming Events

The State and the Stateless: the Legacy of Hannah Arendt Reconsidered – Eventbrite

Thursday 13 of February 2014, from 17.30 to 20.00, Grove Atrium, Hendon Campus

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

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