The Round up: The threat to Schengen and the end of Fast Track Detention
16 November 2015
In the News
The Home Office has confirmed that it is rejecting the call of Lord Carlile, the UK Government’s former independent reviewer of terror legislation, to rush the government’s internet surveillance bill through Parliament following the devastating attacks in Paris carried out by IS on Friday, Andrew Sparrow reports [at 12.18].
In Lord Carlile’s view the bill could pass through Parliament in the next three to four weeks, and the “necessary powers need to be on the statute book as quickly as that”. Though the draft bill was published on 4 November, it has not yet been scrutinised by the intended joint committee of both houses of Parliament. Despite Lord Carlile’s belief that “we don’t have time to wait” and the content of the draft bill is “for the most part perfectly reasonable”, the Home Office appears to be sticking to their original timetable that the final version be published in Spring next year, having had due regard to pre-legislative scrutiny, with a view to it becoming law before the end of 2016.
The future of the Schengen agreement and that of the European refugee policy are coming under increasing strain as speculations circulate that one of the terrorists was “masquerading as a refugee” following the discovery of a Syrian passport at the scene of the attack. There have already been calls for tougher policies on the migrant crisis, notably the incoming Polish European Affairs Minister who declared that in wake of the attacks Poland cannot accept migrants relocated under an EU quota system without “security guarantees” (whatever that means – he did not elaborate). German Chancellor Angela Merkel has come under mounting pressure from within her own coalition to erect tighter border controls, and the country has now suspended the Schengen agreement.
It may be wondered whether, in an age of borderless internet access and cyber communication, controlling physical borders is the answer.
- The Government’s Detained Fast Track asylum appeals process, described by Detention Action as a “stain on the UK’s reputation”, has finally reached the end of the road. The Supreme Court last Thursday refused the Government permission to appeal against the earlier decision of Court of Appeal which had found the Fast Track Rules governing the appeals process to be “systemically unfair and unjust” due to the restrictive time limits which made it “impossible for a fair hearing of appeals in a significant number of cases”. According to Detention Action, the system at its height was detaining up to one in four asylum seekers for the duration of their claims and had a 99% rejection rate.
- Last week a seven judge Supreme Court heard appeals in the cases of Belhaj and his wife Fatima Boudchar and Yunus Rahmatullah, both of which concern allegations of the complicity of the UK in the torture or ill-treatment of detainees during the global war on terror, about which “serious questions remain unanswered” writes Obiter J. At this preliminary stage the UK government have argued that the claims cannot be considered by English courts – if the argument succeeds, a practical implication could be to limit the extent to which individuals can seek redress for wrongs, including torture, done against them where the alleged wrongs involve other States. The Supreme Court was told that the government is indulging in an “extravagant extension” of the doctrine of foreign state immunity to avoid responsibility for the rendition cases it coordinated.
- The Ministry of Justice has revealed that Government research on the impact of civil legal aid reforms is expected to be published by the end of the year, according to the Law Society Gazette. The Permanent Secretary to the MoJ said that three research projects have been carried out to assess the impact of LASPO 2012 (which came into force April 2013) on aspects of civil legal aid, all of which are apparently going through “final quality assurance”. This follows the MoJ’s “defiant” statement last year that “no damage has been caused by legal aid reforms” in response to the House of Commons justice committee’s March 2015 report that the cuts were “badly researched and implemented, and have impeded access to justice”.
In the Courts
- M’Bala M’Bala v. France – a comedian with political activities could not seek protection under Article 10 (right to freedom of expression) from a conviction in France for a performance described by the Court as a “demonstration of hatred, anti-Semitism and support for Holocaust denial, disguised as an artistic production”. At the end of one of his shows, M’Bala M’Bala had invited Robert Faurisson, an academic of previous convictions for negationist opinions (including the denial of the existence of gas chambers in concentration camps), to receive a “prize for unfrequentability and insolence” which took the form of a three-branched candlestick with an apple on each branch, which was awarded to him by an actor wearing a pair of striped pyjamas onto which was stitched a yellow star. The Court held that the performance had provided a platform for “an ideology which ran counter to the values of the ECHR”, concluding that M’Bala M’Bala had sought to use Article 10 in a way which, if permitted, would “contribute to the destruction of Convention rights and freedoms”. They consequently found his application inadmissible.
- Winspear v City Hospital Sunderland NHS Foundation Trust – The High Court has ruled that a ‘do not attempt CPR’ (‘DNCPR’) order put on a disabled man’s record without consulting his mother breached the procedural obligation to ensure effective respect for private life under Article 8. Carl Winspear, who had cerebral palsy, epilepsy and spinal conditions, died of pneumonia aged 28 in Sunderland Royal Hospital in January 2011. At the time of his death he lacked capacity to make his own decisions under the Mental Capacity Act 2005. A DNCPR notice was placed on Carl’s record by a specialist registrar who reviewed him at 3am, because he did not want “to inflict on Carl a treatment that was distressing, painful, undignified and futile because it had no chance of success”, given his existing conditions. This was discussed with Ms Winspear the following day, with a consultant, when she expressed her strong disagreement with the DNACPR notice. As a result, the notice was cancelled by the consultant. The court held that there was insufficient justification for not including Ms Winspear in the consultation process prior to imposing the notice at 3am the night before, as required under s4(7) Mental Capacity Act. Even though she would have no veto on the clinical decision, the family ought to have been involved in the process and been given the opportunity to seek a second opinion. The decision has been described by learning disability charity Mencap as a “landmark judgment”.
Women Fighting Back: International and legal perspectives – an International Women’s Conference to be held on the 28 & 29 November 2015 at London South Bank University. Keynote speakers will be Professor Angela Davis, and Rashida Manjoo, former UN Special Rapporteur on Violence against Women. For more information on the conference, and how to book, see here.