BUMPER EDITION: Libyan Rendition, Human Rights Week 2014 and the Naked Rambler – Human Rights Roundup
1 December 2014
Welcome back to the UK Human Rights Roundup, your regular winter wonderland 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.
Human Rights Week 2014
Next week (8-12 December) is Human Rights Week 2014. There is a bumper programme of events – full details on the Law Society mini site or the Human Rights Week Twitter account. Of interest to readers of the UKHRB, Adam Wagner is speaking at a panel event on Tue 9 December, along with Liberty’s Rachel Robinson and Anthony Speight QC: Protecting Human Rights in the UK: Is there a case for major change
Also, on Monday 8 December (busy week!), Adam is speaking at the Human Rights Lawyers Association event – Regional Human Rights Systems: Under Siege, along with Prof. Douglass Cassel (University of Notre Dame), Jessica Simor QC (Matrix) and Dr Michael Pinto-Duschinsky (Policy Exchange).
In the News
Supreme Court faced with issue of Stateless Terror Suspects – again
This month, the Supreme Court heard the case of Secretary of State for the Home Department v B2 (Vietnam) . B2, now identified as Phamn Minh Quay, was born in Vietnam but raised in the UK. The Home Secretary stripped him of his citizenship in 2011, after it was alleged that he was a supporter of Al Qaeda, despite the fact that he is not a citizen of any other country.
While it was unlawful to deprive a person of his or her citizenship, where it would render the individual stateless, the Government argued that, in this case, the fault lies with the Vietnamese authorities. Essentially, according to the Home Secretary, the man in question is entitled to citizenship under Vietnamese law and thus his statelessness is attributable to their failings, rather than the UK. The Supreme Court has reserved judgment till a later date.
Libyan Rendition: Behaj & Ors
In the recent case of Belhaj & Or vv Straw and Ors  EWCA Civ 1394, the Court of Appeal confirmed that Mr Belhaj (pictured above)- an opposition commander during the Libyan armed conflict of 2011 and now leader of the Libyan Al-Watan Party – could bring a case against public officials, including former Cabinet minister, Jack Straw, in the domestic courts. Mr Belhaj and his wife claim that the UK authorities are directly implicated in their extraordinary rendition, from China through Thailand and Malaysia, to Libya, where they were allegedly tortured. While the government had argued that case could not be heard in the UK, under the principle of state immunity and the ‘foreign act of state doctrine’, the Court of Appeal held that such an outcome would effectively deny Mr Belhaj a legal remedy. This was thought to be unacceptable, particularly in light of the seriousness of the accusations.
Angela Patrick, Director of Human Rights Policy at JUSTICE, has considered the case for the UK Constitutional Law Blog here.
No Luck for the Naked Rambler
A man who has been prosecuted several times for travelling through the country in the nude, widely known as the ‘naked rambler’, has lost his case before the European Court of Human Rights. Mr Gough, who firmly believes that his nudity is a form of expression on the inoffensive nature of the human body, wished to challenge his convictions for breach of the peace under Article 10 of the Convention (freedom of expression). While the Strasbourg Court recognised that his nudity was indeed a form of political expression, and that the cumulative effect of Mr Gough’s punishments had been severe, it did not go so far as to find a violation of Article 10. Instead, the Court stressed the fact that Mr Gough was responsible for his own convictions, and that the views of the public, who would be alarmed and offended by his nudity, had to be taken into consideration. It is perhaps interesting to consider whether such logic would withhold scrutiny if applied to religious protest or conscientious objection
Hugh Tomlinson QC has considered the case for the Inforrm blog here, and Frank Cranmer has commented on the matter for the Law and Religion UK blog here. Additionally, Stijn Smet, writing for the Strasbourg Observers blog, has noted some of the dangerous implications that this judgment may have in analogous situations involving freedom of expression, such as for naked FEMEN protestors.
UKHRB coverage is here.
Police Disclosure of Unlawfully Obtained Evidence
In the recent case of Nakash, R (On the Application of) v Metropolitan Police Service  EWHC 3810 (Admin) (17 November 2014), the Administrative Court was asked to consider whether or not it was required to prohibit the disclosure by the police of unlawfully obtained information to the General Medical Council. The information in question was not only unlawfully obtained, but was also of a highly personal and confidential nature, and did not undermine the claimant’s ability to practise.
The Court ruled that, while the police had erred in their disclosure, having failed to undertake the sensitive balancing exercise required under Article 8 the Convention, disclosure was nonetheless justified. James Goudie QC notes the case on the Panopticon Blog here.
In Other News
- Professor and barrister, Conor Gearty, delivered the annual Corbishley Lecture at LSE this month. He took the opportunity to highlight what he describes as the ‘new era of vulgarity’ surrounding human rights in the UK, criticising politicians and judges for propagating fantasies and myths about the Strasbourg Court. The text of the lecture can be found on the UK Constitutional Law blog here. Franck Magennis has commented on the lecture on the Justice Gap blog here.
- Pope Francis has, this month, delivered speeches at both the European Parliament and the Council of Europe. In doing so, he emphasised that, while human dignity and our inalienable rights must be protected, rights have correlative duties and should not be seen as detached from any ‘social or anthropological context’. Frank Cranmer comments on this for the law and religion blog here.
- One of the country’s leading barristers, Dinah Rose QC, has suggested that MPs need a crash course on the constitution and the rule of law. The Lawyer reports here.
- The Panopticon Blog has considered how the decision of the CJEU in the Google Spain decision, released earlier this year, has been accepted by regional courts here.
- Mark Elliott, writing for the Public Law for Everyone blog, has considered the constitutional implications of the recent judgment of the Supreme Court in R (Barclay) v Secretary for State for Justice (No. 2)  UKSC 54 here. The case examined whether the office of Chief Judge of Sark, one of the Channel Islands, met the requirements for independence and impartiality under Article 6 of the Convention.
- Sionaidh Douglas-Scott, professor of European and human rights law at the University of Oxford, has set out why the UK should ’embrace’ the EU Charter of Fundamenal Rights, in her blog for the Oxford Human Rights Hub. Notably, she argues that the House of Commons European Party Committee’s recommendation, that Parliament should legislate to disapply the Charter, is misguided for several reasons.
In the Courts
- LD & Ors, R. (On the Application Of) v Secretary of State for Justice  EWHC 3517 (Admin) (17 July 2014)
Challenge to lawfulness of prison strip searches fails in High Court
- Cushnie, R (On the Application Of) v Secretary of State for Health  EWHC 3626 (Admin) (05 November 2014)
Challenge by former asylum seeker to rules restricting access to free health services succeeds in part (PSED breach
Libyan rendition and torture case can be heard in UK, rules Court of Appeal
- Nakash, R (On the Application of) v Metropolitan Police Service  EWHC 3810 (Admin) (17 November 2014)
Lawful for police to disclose information on doctor to the General Medical Council despite it being unlawfully obtained
Grand Chamber holds that, in order to ensure that the return of asylum seeking children to Italy is lawful, states will have to make individualised assessments and obtain individualised guarantees.
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.
- British Institute of Human Rights, Bringing Rights to Life: Free Regional Events for Mental Health Workers– Autumn 2014
- Human Rights Week (see above)
UK Human Rights Blog Posts
- The European Court of Humna rights: anti-democratic or guardian of fundamental rights? – November 19, 2014 by Judge Robert Spano
- Ping pong: CJEU air pollution ruling – back to the Supreme Court – November 19, by David Hart QC
- Irish Supreme Court struggles with outcome of surrogacy arrangements – November 20, 2014 by Rosalind English
- Have we lost sight of J.S. Mill’s concept of the right to libery? Article 5 in the Court of Protection – November 21, 2014 by Rosalind English
- Information even unlawfully obtained is admissible to GMC – November 23, 2014 by Joanna Glynn QC
- Magna Carta and its progeny – November 23, 2014 by David Hart QC
- A spectacularly misleading case – nested in a real one – November 25, 2014 by David Hart QC
- Naked rambler gets no help from European Court of Human Rights – November 27, 2014 by Diarmuid Laffan