The Round-Up: Holyrood’s Hard-line, and Sumption’s Long Game

29 September 2015 by Laura Profumo

Laura Profumo brings you the latest human rights happenings.

In the News: 

Nicola Sturgeon, the Scottish First Minister, announced last week that it was “inconceivable” that the SNP would support the Conservative plans to scrap the Human Rights Act. Talking to an audience in Glasgow on Wednesday, Sturgeon pledged her unequivocal commitment to block the HRA-repeal. Sturgeon warned that human rights remained a “devolved issue”, meaning that Scottish opposition might well hamper Gove’s forthcoming efforts. Many find sympathy with Sturgeon’s stance. Sturgeon values the HRA as a “careful model” which incorporates human rights protection into UK law, without upsetting our constitutional bedrock, writes Alex Cisneros in The Justice Gap.

The Government’s reply to Sturgeon’s snub included its statement that the Bill of Rights will “restore common sense” to the application of human rights law. But as UKHRB’s own Fraser Simpson observes, some of Sturgeon’s concerns may well ring true. Failing to consider the international impact of UK withdrawal from the ECHR would be both naïve, and “incredibly isolationist”, he writes.  The First Minister also warned the Bill would “damage relations with devolved governments”, namely those of Scotland and Wales. Whilst the Sewel Convention will likely require Scottish consent for the HRA-repeal, a Bill of Rights could be introduced solely for Wales and England. Yet Sturgeon maintained she had “no interest” in brokering a deal to protect the current Act in Scotland alone, upholding that the dilution of human rights, in any part of the UK, would be firmly opposed by Holyrood. The spectre of a second independence referendum also looms large. The First Minister has already confirmed the SNP will specify the conditions for another referendum in their 2016 election manifesto. Whilst Britain leaving the EU, against a Scottish majority, and Trident renewal, have been identified as possible grounds for a re-vote, HRA-repeal might well become another trigger.

The next few months will, it is hoped, see Gove adding more flesh to the bones of the Conservative proposals.

In Other News….

• David Anderson QC, the terrorism legislation reviewer, has warned that proposals to curb extremism could alienate affected communities. The proposed measures include banning extremist organizations, and implementing Extremism Disruption Orders to restrict activities of specific individuals. For the legislation to prove viable, Anderson has urged for the link between extremism and terrorism to be clarified and for the ambit of such surveillance powers to be clearly defined. If not carefully drafted, the new laws may risk stoking the image of an illiberal government, playing into the hands of terrorist recruiters.

• Supreme Court judge Lord Sumption has offered his own position on gender equality in the judiciary. Speaking to the Evening Standard, he has warned that too heavy a pro-female bias, placing more women in senior judicial positions, might dissuade talented male candidates from applying. To rush such a change would likely have “appalling consequence(s)” for a profession which remains a “terrific public asset”. Suggesting it may take some 50 years to achieve true equality, Sumption insisted that the lack of female judges was down to a “lifestyle choice”, with women more reluctant to work long hours. Though rubbishing claims that the Bar remained a glorified “old boy’s network”, his comments will likely refuel the debate on sexism in the wake of the Charlotte Proudman case. In a letter to the Guardian, Professor Helen Carr laments what a “depressing” message Sumptions’ remarks convey to aspiring female lawyers: “curtail your expectations, for the sake of the legal system”.

• Lord Pannick QC has weighed in on the RAF drone strike that killed two British Isis fighters in Syria. Writing for The Times, Pannick agreed with former government lawyer, Carl Gardner, that article 51 of the UN Charter sanctions pre-emptive self-defence of a state, where necessary and proportionate. Yet for such a response to prove lawful, it necessitates a high degree of procedural protection, under domestic and ECHR law. This requires guidelines on a state’s power to take action to be published, Pannick urges, both to satisfy public interest, and to uphold a rigorous decision-making process. Yet Gardner queries Pannick’s second proposal – that an independent judicial authority must first approve any drone strike. Why such additional scrutiny is reserved for terrorist targets, and not for “every choice of target by British forces” which involves loss of life appears ill-advised. Furthermore, Gardner continues, it might not even prove “appropriate” – judgments on defensive military force remaining the purview of our executive, not the judiciary.

• The Upper Tribunal has reached a decisive ruling on whether human rights grounds can be argued in an EU rights of residence appeal. In the determination, Amirteymour and others, it was ruled that an appellant can not challenge a decision to remove under the EEA Regulations on human rights grounds. The decision conjures a curious sense of déjà vu, notes Garden Court barrister Colin Yeo, raising several familiar problems. The attempt to dissociate refusal of EEA residence from a decision to remove is a “bizarrely impractical notion”, Yeo writes, in marked contrast to the CJEU ruling in Dereci. The Home Office’s estranging of EU and ECHR law issues means those facing current EEA appeals, which rely on human rights grounds, will be forced to make a second application. This will simply invite further delays, occupying additional courts resources – “it is spiteful self harm by the Home Office”, Yeo warns.

• Another, more welcome Upper Tribunal judgment, in SSWP v SSF and others, has established that female EU citizens can expect to retain ‘Worker’ status for a year when off-work for maternity reasons. This means they will continue to be lawful UK residents during that time, and able to access a range of social benefits, including income support, which impose a right to reside test. For a further analysis of the case, in light of the ‘St Prix’ precedent, read Adrian Berry’s fine blog here.

• Fears over Turkey’s human rights violations continue to mount, following a recently published report by senior British lawyers. The survey, commissioned by one of Erdogan’s exiled critics, catalogues the abuses of the AK party government, including restricting the freedom of speech, censoring websites, and subjecting detainees to degrading treatment. Lord Woolf and Professor Sir Jeffrey Jowell QC were amongst those contributing to the inquiry. The report describes the systematic purges of some 40,000 public sector employees, marking a “serious setback for Turkish democracy”. With Turkish courts being particularly targeted, ECtHR remains a final bastion for legal remedies. Last year alone the Court handed down 101 judgments to Turkey confirming human rights violations.

In the Courts..

• Lavrentiadis v. Greece: the detention of a person who suffers from a chronic auto-immune disease, without adequate medical treatment, violates ECHR Articles 5, 3 and 13, ECtHR ruled last week. The applicant, a sufferer of the mobility disease, relied on Article 5 § 4 (the right to a swift review of the lawfulness of his detention) to argue that the Greek criminal court had contravened ECHR law, in taking 87 days to reach a determination on his detention. Relying on Articles 3 and 13, the applicant also succeeded in alleging that his detention adversely affected his health, and that no effective remedy was available to him.

• Da Silva Carvalho Rico v Portugal. A case concerning the reduction of pensions following Portuguese austerity measures was ruled inadmissible in an ECtHR decision last week. Following negotiations to receive EU financial support, the Portuguese Government implemented the relevant economic measures from 2011 to 2014. The applicant, a recipient of a public-sector pension scheme, argued such measures breached her ECHR right to protection of property under Article 1 of Protocol 1. Noting the prevailing public interests in Portugal, at a time of financial crisis, and the temporary nature of the budgetary measures, the Court held the pension reduction to be a proportionate restriction on the applicant’s Protocol 1 right, in order to stimulate economic recovery.

• Dorado Baúlde v. Spain: ECtHR has declared inadmissible a case concerning the right to have one’s conviction and sentence reviewed. The applicant complained that his right to have his conviction and sentence for drug trafficking reviewed was violated by the Spanish Supreme Court, as no possibility of a re-evaluation of evidence was permitted. The Court emphasized that the right of appeal in criminal matters, under Article 2 of Protocol 7, can be confined to points of law alone, with no need to revisit the factual determinations of the lower courts. In allowing Contracting States a wide margin of appreciation for criminal appeals, ECtHR held the Supreme Court judgment to conform with international standards.

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