How will human rights fare under new PM Theresa May? – the Round-up

In the news

Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.

The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.

Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.

In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.

On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.

Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.

In other news:

The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here.  The UK Constitutional Law Association Blog provides  extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.

Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.

BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.

Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.

In the courts:

Taddeucci and McCall v Italy (judgment in French only)

This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).

Buzadji v the Republic of Moldova

This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.

On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).

UK HRB posts

Whose fair trial prevails? – David Hart QC

Justice for everyone: another Grayling reform bites the dust – Gideon Barth

Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon

The Chilcot Report – an Illegal War? – Dominic Ruck Keene

Another door closes for the Chagossians – Dominic Ruck Keene

Get out the back, Jack? make a new plan, Stan? – Rosalind English

 

UN committee rules on abortion prohibition – the Round-up

Photo credit: the Huffington Post

In the news

The UN human rights committee has found that restrictive abortion laws in Ireland had subjected a woman to cruel, inhuman and degrading treatment, in violation of the International Covenant on Civil and Political Rights.

Continue reading

Unlimited Immigration Detention and the Right to Liberty – the Round-up

Photo credit: RT

In the news

The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.

The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.

This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.

The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.

It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.

In other news

The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.

A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.

The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo

In the courts

The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).

The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.

The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.

Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.

Publications

Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.

UK HRB posts

CA says ex-pats cannot say yes or no to Brexit – David Hart QC

The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner

Three Way in the Supreme Court: PJS remains PJS – David Hart QC

The National Preventive Mechanism of the United Kingdom – John Wadham

Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC

Hillsborough and Human Rights – The Round-up

https://i.guim.co.uk/img/media/551c83874a2c631eb5b7bb172c55adacbe65adc2/0_0_5090_3053/master/5090.jpg?w=1125&q=55&auto=format&usm=12&fit=max&s=fe6c8638f55ff8b85b55e3197151f570

Photo credit: The Guardian

In the news

The families of the 96 people who died at Hillsborough in 1989 have been vindicated at last, following a 27-year long fight for justice. An inquest jury has returned a conclusion of “unlawful killing”, in a damning indictment of South Yorkshire Police. The jury unanimously concluded that the behaviour of football supporters had in no part caused or contributed to the disaster.

Christina Lambert QC acted as lead counsel to the inquests, assisted by a team that included 1COR colleagues Matthew Hill and Paul Reynolds.

Following the conclusion a number of questions still remain, including whether former chief superintendent David Duckenfield, the match commander, will now face fresh charges of manslaughter. A private prosecution ended in 2000 after a jury failed to reach agreement. Joshua Rozenburg observes that the inquest findings are clearly prejudicial – but “juries should be trusted to put prejudicial material out of their minds”.

Legal commentator David Allen Green points out that “without the Human Rights Act and ECHR there would not have been this new Hillsborough inquest”. The effect of Article 2 ECHR (the right to life) has meant it is no longer enough for an inquest to decide the means by which a person died; the circumstances in which the death occurred must also be determined. Barrister Michael Mansfield QC further notes that “one of the unusual features of these inquests has been the way the friends and relatives of the deceased have been accorded a central status” – a requirement of the European Court of Human Rights.

It is the jurisdiction of this same Court that Theresa May has declared the UK should leave, claiming this week that “the ECHR can bind the hands of Parliament, adds nothing to our prosperity…[and] makes us less secure by preventing the deportation of dangerous foreign nationals”. Mark Elliott describes the argument as “legally clumsy and constitutionally naïve”, while David Allen Green suggests human rights are being used “as a token in the game of politics”. He goes on to note that examples of the positive influence of the ECHR, such as the Hillsborough Inquests, will make this more difficult in the future: “even superficial politics can lose their shine”.

 In other news:

According to a report in the Telegraph, each year up to 40,000 dying patients are having “do not resuscitate orders” imposed on them without the knowledge of their families. In many cases there is no record of any consultation with the patient. Adam Wagner suggests at RightsInfo that this might be in breach of patients’ human rights.

Figures released by the Ministry of Justice indicate a worsening crisis in the UK prison system. Between 2010 and 2015, the number of sexual assaults recorded has more than doubled from 137 incidents per year to 300. In the same period, the number of deaths in prisons has risen from 198 to 257 per year. Campaigners say that serious overcrowding and staff shortages are largely to blame. The Independent reports.

The Bar Council has warned that plans put forward by the Ministry of Justice to increase fees for those seeking justice through the Immigration and Asylum tribunal system by 500% is yet another step towards putting access to justice beyond the means of those who most need it. Further details can be found here.

The Guardian: According to a new report by charity Transform Justice, legal aid cuts have led to a sharp rise in unrepresented defendants. In one example given to the charity, an unrepresented defendant remained silent during his appearance via video link from a police station. Only after he had been sent to prison did it emerge that he was deaf.

In the courts

The applicant was a Dutch national sentenced to life imprisonment for the murder of a six-year-old girl. The Court found that the lack of any kind of treatment for the mental health condition suffered by the applicant meant that his requests for pardon were in practice incapable of leading to his release, since his risk of re-offending would continue to be assessed as too high. Accordingly, the Court found a violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment).

 UK HRB posts

Ex-pats challenge to the EU referendum voting rules – David Hart QC

Extradition in “disarray”? – Amelia Nice

Court of Protection orders continued reporting restrictions after death – Rosalind English

Judge allows paternity test for DNA disease analysis – Rosalind English

The “up for a three way?” case: injunction set aside – Rosalind English

 

 

 

 

 

Stop and search controversy continues – the Round-up

Brought to you by Hannah Lynes

In the news

According to research released by the Home Office, large increases in stop and search operations have no discernible effect on crime reduction. The official study examined crime rates across 10 London boroughs in the first year of Operation Blunt 2, which led to a surge in the number of searches from 34,154 in the year before to 123,335 in 2008/2009.

The findings are likely to lend support to the position of the Home Secretary, Theresa May who in 2014 introduced new measures to curtail reliance on the powers. She has previously been critical of claims by the Metropolitan Police that a rise in knife crime in recent months is linked to a drop in the use of stop and search, warning against a “knee-jerk reaction.”

Police powers to conduct the searches have proved highly controversial, with campaigners arguing that ethnic minority groups are disproportionately targeted. An analysis by the Independent found that between December 2014 and April 2015, black people were more likely to be stopped than white people in 36 out of 39 police forces. Continue reading

Refugee crisis tests Europe on human rights – the Round-up

Photo Credit: The Financial Times

In the news

Stemming migration flows from Turkey has been set as “a priority” at the 7 March emergency summit of EU and Turkish leaders in Brussels. EU officials are seeking to persuade Turkey to enforce the ‘action plan’ signed in November, under which Ankara agreed to curb the number of refugees crossing into Greece in return for three billion euros in aid and the speeding up of its EU membership bid.

However, human rights groups have been critical of the EU focus on ensuring refugees remain in Turkey. Amnesty International warned ahead of the meeting that is was “unacceptable” to expect that responsibility should be carried by a country already hosting three million refugees.

“Using Turkey as a ‘safe third country’ is absurd. Many refugees still live in terrible conditions, some have been deported back to Syria and security forces have even shot at Syrians trying to cross the border,” said Gauri van Gulik, Amnesty’s Deputy Director for Europe and Central Asia. Continue reading

Cameron on prisons: an agenda for a revolution? – the Round-up

Photo credit: The Telegraph

In the news

The Prime Minister has this week set out his “agenda for a revolution in the prison system”. His speech outlines plans for governors to be given greater autonomy, prisoners to be provided with better opportunities for work and education, and the making of “alternative provision” for people struggling with severe mental health problems.

Commentators have reacted with cautious optimism. David Cameron is “absolutely right to point to the waste of money, time and lives that characterises today’s prison system,” writes Frances Crook of the Howard League for Penal Reform. His speech could herald “a seismic shift in policy.”

Christopher Stacey in the Justice Gap welcomes in particular the Prime Minister’s expression of support for the ‘Ban the Box’ campaign, which calls on employers to remove the tick box from application forms and ask about criminal convictions later in the recruitment process. The policy would give people with convictions “a chance to enter work – significantly reducing their likelihood of re-offending”.

Sentencing reform was, however, “notably absent” from the speech. Ellie Butt in the Huffington Post contends that this seriously undermines Cameron’s policy proposals. With the current prison population standing at 85,634, it is “a nonsense to believe we can really make prisons places of education, hard work and rehabilitation without tackling the sheer number of people inside them.”

Legal blogger Jack of Kent is in agreement that “the most significant thing about the speech was that the Prime Minister was giving it”. Yet he suggests that a move in right wing thought against custodial sentences as the default punishment for crime “may be having an influence on Michael Gove.” If such a speech is indeed “the political price Michael Gove has extracted from David Cameron for support on the EU referendum issue”, then it is “a good bargain”.

In other news

A police regulator has found that UK police forces continue to disobey rules to prevent the abuse of stop and search powers. Home Secretary Teresa May has described the failings as ‘unacceptable’, and has taken action to suspend 13 of the worst offending forces from the scheme. The Guardian reports.

Law Society Gazette: The Attorney General has suggested that in disputes over freedom of information, politicians may sometimes be better placed than the courts to make decisions on matters of public interest. The speech can be read in full here.

The Guardian: Police should no longer operate on a presumption that alleged victims of sexual assault are to be believed, according to Metropolitan police commissioner, Sir Bernard Hogan-Howe. Investigators should instead test the evidence “with an open mind, supporting the complainant through the process”.

The death of Justice Antonin Scalia at the weekend marks the end of an era for the United States Supreme Court. It also creates the potential for something of a constitutional crisis in America, coming only eleven months before the end of the Obama presidency and prompting calls from some Republicans for his replacement to be selected by the next Commander-in-Chief. Scalia’s visit to the UK last summer featured plenty of the examples of the acerbic turns of phrase the world had come to expect from the Court’s most divisive figure. You can read Jim Duffy’s account of Justice Scalia’s appearance at the Federalist Society here.

In the courts

Dallas v UK

The applicant in this case had been found guilty of contempt of court for conducting Internet research while serving on a jury. A complaint was brought under article 7 ECHR (no punishment without law) that the common law offence of contempt of court had not been sufficiently clear.

The Court held that the judgment rendered in the applicant’s case could be considered, at most, a step in the gradual clarification of the rules of criminal liability for contempt of court through judicial interpretation. The law was both accessible and foreseeable. There had accordingly been no violation of article 7 of the Convention.

UK HRB Posts

Cavalier with our Constitution: a Charter too far – Marina Wheeler

Watery rights and wrongs – and causation too – David Hart QC

Press restrictions may continue after trial in the interests of national security – HH Keith Hollis

It’s time to overhaul the Investigatory Powers Bill – Cian C. Murphy and Natasha Simonsen

Events

If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com