The Round-up: Informing the electorate and the Prisons Inspectorate

Cameron and Lord AshdownIn the News

Last week marked the beginning of the ten-week run-in to the EU referendum. With it came the Government’s obligation to publish a statutory report informing the electorate of precisely what rights and obligations arise for the UK as a result of EU membership – and this report appeared on Thursday.The duty to publish this information comes from Section 7 of the European Union Referendum Act 2015, which in addition required the Government to provide a report (released last month) containing examples of countries that do not have membership of the EU, but do have other arrangements with the EU.

On the UK Constitutional Law Association blog, Katie Boyle and Leanne Cochrane note that the referendum process should be genuinely informed by fair, inclusive, informed and participative deliberation – and that the electorate should understand exactly what rights framework might exist following a referendum. The Government has faced an knotty task in untangling in a comprehensible way which rights derive from membership of the EU and those which derive from the European Convention of Human Rights – an instrument of the Council of Europe (membership of which is not being voted on), not the European Union.

The report aims to provide a “balanced overview of the most important rights and obligations” arising from UK membership . It covers nineteen areas – including the Single Market, consumer policy, foreign policy, employment rights, and fundamental rights. Where fundamental rights are concerned, the report firstly addresses ‘EU fundamental rights, which are general principles of EU law (as recognised by Article 6 of the Treaty of the European Union) and derive from international instruments such as the ECHR and the constitutional traditions of member states. Further, it covers the Charter of Fundamental Rights, which enshrines civil, political and socio-economic rights, codifying those which already existed in the CJEU caselaw, ECHR, and member states’ constitutional traditions.

The report has snuck out of No 10 rather quietly, but its publication seeks to uphold the legitimacy of the referendum process by ensuring that the electorate has access to an impartial source of information on what is undeniably a perplexing legal framework – and this is a “critical” part of an informed vote.

Other News

  • Leaked drafts of the recent report on the state of HMP Wormwood Scrubs suggest that the final version released last week was toned down prior to its publication. The former chief inspector of Prisons, Nick Hardwick, had stated baldly in an earlier draft that the prison was in “shameful condition” and “too many prisoners at risk of suicide or self-harm were held in the segregation unit without any explanation of the exceptional reasons required to justify it”. Peter Clarke, who assumed the mantle of chief inspector in January – an independent position decided by open competition – reportedly altered this description to “poor condition”, omitting the other details. Hardwick’s emphatic conclusion that “The prison stands as an object lesson in the need for radical reform” became in the final version, “Wormwood Scrubs … continues to fall short of expected standards” . The HM Inspectorate of Prisons rejected any suggestion of diluting the report, whilst the MoJ has declined to comment. Grumblings will no doubt abound as to the independence of the chief inspector, given the context of last year’s revelation that Justice Secretary Michael Gove made a personal call to Peter Clarke to invite him to apply for the position before it was advertised. In Hardwick’s final report last year, officers at Wormwood Scrubs had described cells as not being fit “to keep a dog in”.
  • Theresa May will announce plans to place a 72-hour time limit on the detention of pregnant women at immigration centres – despite the House of Lords voting last week for a complete ban on detaining pregnant women at all. A report from the Inspectorate of Prisons last year revealed that 99 pregnant women had been detained at notorious Yarl’s Wood detention centre, prompting widespread outcry and demonstrations for its closure. The Shaw Review  – an investigation into the welfare of vulnerable people in immigration detention – had also called for a ban on their detention except in “very exceptional circumstances”. Shaw also called for there to be a presumption against detention for victims of sexual violence, those suffering from PTSD and those with learning difficulties. May however believes that the 72-hour limit is necessary in order to remove pregnant women quickly “if they have no right to stay … or if they present a risk to the public”.

In the Courts

  • RB v Hungary  – the authorities’ failure to investigate racially-motivated abuse against a woman of Roma origin by participants in an anti-Roma march was held to be a violation of Article 8 (right to respect for private and family life). The anti-Roma march had been organised by right-wing parliamentary groups in the Roma neighbourhood where Mrs RB lived. Four men involved in the march had passed by her house, shouting “Go inside, you damned dirty gypsies!”. One man had also threatened that he would build a house in their neighbourhood “out of their blood” and advanced towards the garden fence swinging an axe. Mrs RB had lodged a criminal complaint with the police against unknown perpetrators, alleging the offences of violence against a member of an ethnic group, harassment and attempted grevious bodily assault. The police only opened an investigation on charges of violent harassment, which were discontinued a few months later. They had not investigated the offence of violence against a member of an ethnic group. The Court found that since the abuse had been directed against Mrs RB for belonging to an ethnic minority, it necessarily affected her private life within the meaning of Article 8. In particular it emphasised that since the insults and acts were perpetrated by extremely right-wing vigilant groups during an anti-Roma march, they should have conducted the investigation in that context.
  • Ecaterina Mirea and Others v Romaniathe failure of the authorities to act with diligence in relation to a criminal investigation of events during the Romanian Revolution was held to be a violation of the procedural obligation under Article 2 (right to life). The applicants were 70 Romanian nationals who had either been injured themselves or whose relatives had been killed by gunfire during anti-regime demonstrations in 1989. After the fall of communism in 1990, the military prosecutor’s office opened an investigation into the use of force against demonstrators, but relinquished jurisdiction in favour of the the civil prosecuting authorities by two decisions of 2010 and 2011. Jurisdiction was handed back to the military prosecutors in 2014 after the entry into force of a new code of criminal procedure. In 2015, the military prosecutors closed the investigation. The applicants complained that Romania had failed to comply with its obligation to effectively investigate the events of 1989. The Court acknowledged that the events were complex, but held that complexity alone could not justify the length of the investigation opened in 1990, nor the manner in which it was conducted.

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