Cabinet Reshuffle, Legal Aid Residence Test and DRIP – the Human Rights Roundup
28 July 2014
Welcome back to the UK Human Rights Roundup, your regular fracktastic frisson 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.
In recent weeks, the Prime Minister’s cabinet reshuffle has sparked fears of human rights reform, while Parliament has come under fire for the speed at which it passed emergency legislation on data retention. In other news, the residence test for legal aid faced legal challenges, while Lindsay Sandiford lost her final appeal in the UK courts in her attempt to stop her execution in Indonesia.
In the News
Changes to the Cabinet with Human Rights Ramifications
David Cameron has made substantial changes to the Cabinet, amid widespread speculation that the changes are to pave the way for human rights reform. Kenneth Clarke, Damian Green and Dominic Grieve, the Attorney General, were amongst those to go, and it has been suggested that this will allow the Conservatives to go into next year’s election with a pledge to repeal the Human Rights Act 1998. Adam Wagner, writing for the UK Human Rights Blog, has noted the significance of the changes in this regard. Mark Elliott, in his Public Law for Everyone blog, has similarly suggested that the changes indicate a ‘hardening’ of the Conservative stance on human rights. He has considered the options open to the Conservatives in terms of human rights reform here.
Of particular note, from a legal perspective, is the replacement of Dominic Grieve QC with the less experience Jeremy Wright. The Head of Legal blog has considered Dominic Grieve’s human rights legacy here – noting his on-going commitment to incorporation of the Convention
Legal Aid Residence Test Declared Unlawful
In the recent decision of R (Public Law Project) v Secretary of State for Justice, the Administrative Court held that the Government’s proposed residence test for legal aid was ultra vires and discriminatory. In doing so, it has seemingly rendered the Draft Legal Aid Sentencing and Punishment of Offenders (Schedule 1) Order, which had been due to go before the House of Lords, unlawful. Angela Patrick of Justice has considered the judgment for the UK Human Rights Blog here
Writing for the Oxford Human Rights Hub, Daniel Cashman has also examined the reasoning of the Administrative Court judges. He notes that, while the judgment is to be welcomed, the residence test may yet survive. Not only has the Government indicated its intention to appeal, but the ruling as it stands only renders the proposal unlawful where it is introduced by secondary legislation
The Data and Investigatory Powers Act 2014 (DRIP), which ensures that the state can retain personal data held by internet and phone companies, has recently been passed. Described by the government as ‘emergency legislation’, its speedy passage through Parliament has been criticised by many as indicative of failings in the legislative process. Paul Bernal, writing for the Justice Gap blog, has labelled the ease and speed with which the legislation was passed as ‘shameful’, and has suggested that we are ‘normalising the surveillance state’. Tom Hickman has also criticised the lack of scrutiny and time dedicated to the Bill on the UK Constitutional Law blog here.
The Independent Reviewer of Terrorism Legislation, David Anderson QC, will lead a review into communications data and interception powers before the next general election. His powers and obligations in this regard were given statutory force following the passage of DRIP. Those wishing to submit evidence to the review should do so before the 3rd October.
Lindsay Sandiford Loses Final Appeal
A British grandmother, who is due to be executed by firing squad in Indonesia for smuggling drugs, has lost her final appeal in the UK courts. Her lawyers had argued that a bright line policy, which refused legal aid to those facing criminal proceedings abroad, even where the death penalty was the proposed punishment, was unlawful. However, the Supreme Court, in the Sandiford, R (on the application of) v The Secretary of State for Foreign and Commonwealth Affairs  UKSC 44 (16 July 2014), unanimously dismissed her appeal. UK ministers were under no obligation to ensure that the proceedings were fair – and could not fetter their discretion by operating a blanket ban on legal aid in such cases because the powers in question originated from prerogative and not statute. The Supreme Court nonetheless urged ministers to review the policy, in light of evidence of unfairness in the Indonesian courts. Aidan O’Neill QC, writing for Halsbury’s Law Exchange, has considered the implications of the judgment on the funding of lawyers abroad.
In Other News
- Daniel Barnett has considered whether obesity alone constitutes a disability, following the opinion of the Advocate General on this matter in the case of Kaltoft v The Municipality of Billund.
- The Law and Religion UK Roundup has examined a number of on-going religious debates here. Notably, it considers developments on assisted suicide, transsexual marriage, and whether women should be allowed to join the Church of England episcopate.
In the Courts
- Tigere, R (On the Application Of) v Secretary of State for Business, Innovation & Skills -And- Student Loans Company Ltd  EWHC 2452 (Admin) (17 July 2014)
‘Blanket’ exclusion of students with limited leave to remain from student loan scheme was disproportionate, rules High Court
- Sandiford, R (on the application of) v The Secretary of State for Foreign and Commonwealth Affairs  UKSC 44 (16 July 2014)
Supreme Court rejects legal funding appeal by woman facing firing squad in Indonesia for alleged drug smuggling
Supreme Court dismisses appeal of prisoners claiming that they had a right to vote in the impending Scottish Independence Referendum.
Strasbourg court holds that Russia breached the Convention by caging remand prisoners during hearings. The judges found the practice to be degrading and concluded that there had been a breach of both Article 3 (torture and degrading treatment) and Article 6.1 (right to a fair trial in a reasonable time).
- Axel Springer AG v Germany (No. 2)  ECHR 745
In this judgment, the European Court of Human Rights found in favour of the appellant, who alleged that the German Courts had failed to protect his right to freedom of expression by finding that an article commenting on the circumstances in which the former Federal Chancellor of Germany had put an end to his term in office had overstepped the limits of journalistic freedom.
Alexia Bedat has commented on the case for the Inforrm Blog here. She notes that the judgment is further proof that it will be hard to successfully protect one’s private life before the ECtHR where there is a competing claim of press freedom. Moreover, she suggests that the judgment may have implications in terms of how the public interest test in the domestic Defamation Act 2013 is interpreted.
The Grand Chamber of the Strasbourg Court has held that there was no violation of the Article 8 rights of a male to female transsexual who was refused recognition as a female in formal documents due to the fact that she was unwilling to have her marriage converted into a civil partnership. Frank Cranmer, writing for the Law and Religion UK blog has commented on the case here. He suggests that the approach of the majority is similar to that of a ‘sledghammer’ to crack a nut, and believes that the view of the minority is to be preferred
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
- Article 2 and combat immunity – where next after Al-Skeini and Susan Smith? – July 27, 2014 by Ross Beaton
- The Tory human rights “car crash” – July 17, 2014 by Adam Wagner
- Minimum income rules for immigrants do not breach human rights – July 18, 2014 by Rosalind English
- Government still on the standing warpath – July 20, 2014 by David Hart QC
- Foreign criminal cannot be deported because of his right not to be discriminated against on grounds of illegitimacy – July 22, 2014 by Rosalind English
- Private nuisance – Article 6 and the costs conundrum – July 23, 2014 by David Hart QC
- HRA damages awarded in date rape cases – July 27, 2014 by David Hart QC