Tory Human Rights Plans, Child Abuse Inquiry and the Burqa Ban – the Human Rights Roundup
17 July 2014
Welcome back to the UK Human Rights Roundup, your regular tour de force 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 role of Lady Butler-Sloss in the forthcoming inquiry into child abuse is challenged, while the government pushes for emergency legislation to monitor phone and internet records. Meanwhile, the European Court of Human Right upholds France’s niqab ban and the Tories get closer to announcing their plans for human rights reform.
In the News
Attorney General goes, human rights reform closer
There has been a major Conservative Party re-shuffle this week, with Attorney General Dominic Grieve being replaced by little-known barrister MP Jeremy Wright. The BBC is reporting today that Grieve had strongly criticised Conservative plans for human rights reform, as had William Hague who also lost his job. More on this later.
Lady Butler-Sloss stands down
After a week of media frenzy, Lady Butler-Sloss has announced that she is to stand down as the chair of the forthcoming Cleveland inquiry into child abuse. The move comes, not because of any doubt as to her qualifications or abilities, but in light of allegations of a conflict of interest. The inquiry is to investigate whether institutions in the UK failed to take allegations of sexual abuse seriously, after a series of high profile cases (notably, that of Jimmy Saville) brought the issue to the country’s attention. Although Butler-Sloss’s appointment was initially met with praise, it has since emerged that her brother, Lord Havers, was attorney general during a period in which some of the reported allegations of abuse were made.
In the wake of this, Mark Elliott has considered the wider constitutional implications of appointing judges to lead public inquiries in his post for the Public Law for Everyone blog. He notes that, while there are a variety of models for public inquiries, the judge-led inquiry is often the favourite. Elliott argues that, in light of an ever closer relationship between the executive and legislative branches of government, the independence of the judiciary and judicial review are increasingly sought as tools of legitimacy to fill the democratic gap. He goes on the argue that judge-led inquiries are not only symptomatic of this problem, however, but also contribute to the problem – eroding the very independence they are supposed to symbolise. While noting the valuable contribution that judges may bring to the process, therefore, he also urges us to remain vigilant to the constitutional ramifications of doing so.
The government has announced emergency legislation which will allow the state to retain personal data held by internet and phone companies. Although there appears to be cross-party consensus on the issue, which MPs argue will simply restore the law which was invalidated by a ruling of the European Court of Justice in April, human rights organisations have criticised the move. They highlight that the laws would allow the state to ‘snoop’ on everyone – and not simply suspects. Moreover, not only would they reinstate a law that has been found to be contrary to the right to private life, but the legislation may actually go further than the previous powers. Human Rights Watch comment on the issue here.
At the beginning of the month, in the case of S.A.S v France the European Court of Human Rights ruled that a French law, which criminalises the wearing of burqas and other face coverings in public, does not breach the Convention. Although the wearing of burqas has been restricted in some ways in other European countries, the use of the criminal law is so far unique to France. In upholding the legality of the ban, the Court held that ensuring respect for the minimum requirements of life in society was a legitimate aim. Essentially, then, the Court has recognised that there may be times when social cohesion trumps religious manifestation.
Lucy Vickers, writing for the Oxford Human Rights Hub, has examined the decision. Though critical of the Court’s final decision, she also notes the positive aspects of the judgment. Not only did the Court dispel some of the more tenuous justifications for burqa bans – notably, public safety and gender equality – the judgment is also a ‘rich source of material for those wishing to challenge wholesale bans in future’.
Matthew Flinn has provided analysis for the UK Human Rights Blog.
In Other News
•In light of the incoming 800th Anniversary of the Magna Carta, a consultation into the constitutional settlement in the UK has been launched. Written submissions can be made here.
•The Government’s attempt to impose a “residence test” on legal aid has been struck down by the High Court.
• The High Court has ruled that the detained fast track asylum procedure is unlawful, as it carries an unacceptably high risk of unfairness. According to Mr Justice Ouseley, cumulative failings of the system were rendered unlawful by inadequate access to legal representation. The case was brought by Detention Action, whose director, Jerome Phelps, has commented on the ruling here. The Oxford Border Criminologies Group has also noted the implications of the judgment.
• The High Court has held that emergency legislation introduced to shore up back-to-work schemes was incompatible with ECHR. The retrospective legal changes interfered with the right to a friar trial under Article 6 of the Convention. The Guardian reports here.
• A city banker is to launch a test case over the Government’s crackdown on parents taking their children out of school during term time. The Telegraph has more on these developments.
• Lord Phillips has consolidated lectures he has previously given on the voting rights of prisoners in a post for Halsbury’s Law Exchange here. His Lordship argues that Parliament should endorse the proposals on the Joint Committee on Human Rights which recommend that prisoners serving less than 12 months, or those that are to be released in less than 6 months, should be permitted to vote.
• The BBC has reported that a Christian-run bakery, which refused to make a cake with a slogan supporting gay marriage, could face a discrimination case in court.
In the Courts
• R (Whiston) v Secretary of State for Justice  UKSC 39
Where the Secretary of State exercised her discretion to release a prisoner before the end of the requisite custodial period of their sentence, Article 5(4) was not infringed where that licence was subsequently revoked
• Sarkandi & Ors, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs  EWHC 2359 (Admin) (11 July 2014)
High Court orders that ‘closed material proceedings’ should take place in Iranian sanctions case
• Akpinar, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber)  EWCA Civ 937 (08 July 2014)
Interesting court of appeal judgment on article 8 and the application of Maslov v Austria principles in deportation cases
This test case challenged the minimum income threshold for non-EEA spouses wishing to enter the UK. The Court of Appeal allowed the appeal of the Secretary of State, finding that the threshold requirement did not breach human rights.
Case Commentary: It was suggested by Aitkens LJ that, contrary to the suggestions of the High Court, British citizens do not have a constitutional right to live in the UK with a non-EEA partner who currently resides outside this country. Colin Yeo has commented on the case for the Free Movement blog here, arguing that a comparison between minimum age and minimum income requirements is a flawed one, in light of the fact that the former has always existed and is endorsed throughout the EU.
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.
• JUSTICE Human Rights Law Conference 2014 – 20th October 2014, London
UK Human Rights Blog Posts
• Successful A1P1 claims by photovoltaics – July 13, 2014 by David Hart QC
• Family comes first (even if they’re in Poland) – July 10, 2014 by Alasdair Henderson
• Retrospective legislation that interfered with judicial ruling violated the Convention and the rule of law – July 5, 2014 by Rosalind English
• Another “Bedroom Tax” Challenge Fails – July 4, 2014 by 1COR
• You cannot be serious! Peers call ‘out’ on Government’s judicial review reforms – July 1, 2014 by Angela Patrick
• France’s ban on religious clothing in schools did not prevent removal of asylum seeker there under Dublin Regulation – July 1, 2014 by Rosalind English