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Jonathan Fisher QC wrote an opinion piece in last week’s Jewish Chronicle entitled “The wrongs of human rights“. The article is highly critical of the human rights movement and raises the alarm over recent decisions on religious rights and “growing attacks on our traditions”. It also makes a strong case for the adding of a list of “responsibilities” to the Human Rights Act, which Fisher argues would be “more closely aligned with Judaism’s approach”. The article pulled no punches and chose the most emotive of starting points:
Using human-rights principles to attempt to ban circumcision in Germany is a grotesque insult to the memory of Holocaust victims. The Jewish jurists who helped inspire the human-rights movement must be spinning in their graves at the intellectual violence that their legacy has spawned.
I have written before about the misuse of the Holocaust to justify arguments for reforming the Human Rights Act (the human rights debate has its own version ‘Goodwin’s Law‘). But I will leave the substance of the article for another day – I will be responding soon in the same newspaper. Rather, I wanted to discuss the timing of the article.
As regular readers may know, Fisher is one of the eight member of the Commission on a Bill of Rights, which is currently consulting the public for a second time (see my post). The consultation is closing on 30 September 2012 and the Commission is due to report before the end of the year. No mention is made of the fact that Fisher is a Bill of Rights Commissioner; he is described as a “visiting professor of law at the London School of Economics”.
The Crown Prosecution Service (CPS) has decided not to charge Daniel Thomas for posting a homophobic message on Twitter, the social networking site, about the swimmer Tom Daley. The press release, which takes the form of an extended quote from the Director of Public Prosecutions, is fascinating. I have reproduced it in full below.
In short, the CPS has decided not to charge Thomas as he “intended the message to be humorous”, removed it quickly, didn’t intend it to go beyond his followers (“however naive” that was), has expressed remorse and Daley did not find out about the message until after it had been reported in the media.
The DPP has also used the opportunity to announce that he is drafting new guidance for social media prosecutions and also to say that whilst “serious wrongdoing” could be the subject of prosecutions,
The fact that offensive remarks may not warrant a full criminal prosecution does not necessarily mean that no action should be taken. In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.
Almost ten years after the death of Rachel Corrie on 16 March 2003, her case still raises troubling questions. How was a 23-year-old protester killed by an Israeli military bulldozer? Did the driver do it deliberately, as the family have claimed? Were the Israel Defence Forces (IDF) responsible in some other way?
Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).
I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.
With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.
The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011–12. By signing up to the European Convention on Human Rights, the UK has committed to “abide by” judgments of the court. This commitment is monitored by the Council of Europe’s Committee of Ministers.
The report presents a snapshot of the current state of play in relation to the European Court of Human Rights, makes for very interesting reading (trust me!). Here are some tidbits:
There were 28 judgments involving the UK from 1 August 2011 to 31 July 2012, nine of which the UK lost (UK loses 3 out of 4 cases, anyone?). See the handy table at pages 12-13.
The UK currently has 24 cases before the Committee of Ministers, which means that they have not been implemented.
The UK paid out €454,457 [this originally and wrongly said £] in damages for human rights violations (known as ‘just satisfaction’) in 2011, compared to €371,160 in 2010 (p.58). Fear of this figure ending up in the Daily Mail may be the reason that it is on the last page.
First, the European Court of Human Rights elected a new President yesterday to replace Sir Nicolas Bratza. Dean Spielman (pictured), from Luxembourg, was elected by secret ballot and will succeed Sir Nicolas on 1 November 2012. He is only 49 so unlike the outspoken Bratza he will not be forced to retire before the end of his 3-year tenure (Bratza is now 67 and served for just under a year). Judge Spielman’s C.V. is here (point of interest: he studied at Cambridge). The Court’s press release here.
Thirdly, the Criminal Bar Association and Law Reform Committee of the Bar Council are putting on an interesting debate next Thursday 20 September, 6-8pm: ‘Protecting free speech: A public interest defence for the media?’. All details are here – you will need to download the form in order to book. The event costs £10 in advance or £15 on the door.
But he will probably best be remembered, certainly by this blog, for an interview he gave following a speech by Home Secretary Theresa May at the Conservative Party Conference. You may remember it. It was about a cat. Which was apparently (but not really) responsible for a court’s failure to deport a man from the UK. Immediately following the speech, Ken Clarke told the Nottingham Post what he thought about May’s comments:
It was once said of Apple’s Steve Jobs that he could convince himself and others to believe almost anything with a mix of charm, charisma, bravado, hyperbole, marketing, and persistence. Following Jobs’ untimely death, Wikileaks founder Julian Assange has taken over the mantle of his patented Reality Distortion Field.
It would seem (on Twitter at least) that you are now either with Assange or against him. To be with him is to believe that he is in the throes of an international conspiracy involving, but not limited to, the British Government, courts, the Swedish Government, his rape (not bad sexual etiquette) accusers, of course the Americans and possibly the saucer people too. To be in the other (artificially exaggerated) camp is to not automatically believe that his Swedish accusers have been concocted by a dastardly international conspiracy, but rather that their accusations should be met with (whisper it) due process. Moreover, Assange has had his days in court, all the way to the UK Supreme Court, and now must face his accusers.
Since Assange happens to be in the UK (well, technically in Ecuador I suppose), the UK legal blogging community has taken it upon itself to bring reality back into line. Not since the Freemen of the Land has a legal issue generated a series of counter-woo posts of such quality, and after this rather lengthy introduction, all I seek to do is link to them with approval:
The legal blogosphere has been aflame this week with the news, first published on a magistrate’s blog, that the Senior Presiding Judge has sent new guidance to judges banning them from blogging in their judicial capacity. The SPJ has also threatened disciplinary action unless they remove existing content with breaches the new rules.
The key section of the purported guidance is this:
Blogging by members of the judiciary is not prohibited. However, officer holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
The guidance applies to those who blog anonymously because “it is impossible for somebody who blogs anonymously to guarantee that his or her identity cannot be discovered“.
Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors [2012] EWHC 2349 (Admin) – read judgment
Angus McCullough QC represented Abu Qatada as his Special Advocate in the SIAC proceedings.
Along with many others, today I find myself emerging from an Olympic haze. And alongside that morning-after blur comes a nagging feeling that it is time to get back to blogging. Why not start with a man who has watched the last three Olympic Games during what the High Court describes as an “enormously lengthy” period of detention without charge, and whose last bail application was refused as it would be too difficult to keep track of him during the 2012 Olympics?
The last two or so weeks have been a wonderful time to be in London. Aside from the slightly naff closing ceremony, everything about the sporting carnival has been positive. It has also been a great time to be working in Temple, which has been converted into ‘Belgium House‘ for a fortnight.
Before returning to unlawful detention and Abu Qatada, a personal reflection. The first time I ever visited the Inner Temple was for a scholarship interview which took place on 9 July 2005. I will always remember the date because I had come to London for the interview on 6th July, the day on which the Games were awarded to London. The following day, I was on a bus on the way into town reading a newspaper headline about the Olympics, when I read on the BBC website that there had been a bomb on a tube. I jumped off the bus and flagged a taxi going the opposite direction, and the taxi driver told me he had just seen a bus blow up in Tavistock Square.
Interested in the interaction between religion and law? If so, you will be interested in an event I am helping to organise this coming Monday 23 July at 6:30 for a 7pm start. There are a few tickets remaining – click here for details and booking , which is essential. The event is raising money for free legal advice clinics run by the Hebrew University in Jerusalem. Nb. the event is separate from the blog and 1 Crown Office Row, but hopefully will be of interest to some of our readers…
OUTLAWING GOD? The clash of the courts with religious believers
A “Question Time” style panel discussion of one of today’s most important and controversial issues:
Featuring a superb expert panel:
Joshua Rozenberg (chair) – Britain’s best known legal commentator;
Dr Evan Harris – Former MP and author of The Secular Manifesto ;
Rabbi Michael Laitner – Assistant Rabbi, Finchley United Synagogue (Kinloss), qualified solicitor;
John Bowers QC – Deputy High Court Judge and leading barrister with expertise in discrimination law;
Dinah Rose QC – Leading public law and human rights barrister. Acted for the pupil in ‘the JFS case’.
Monday, 23 July 2012, 6:30pm for 7:00pm, followed by a reception with canapés and wine
Somebody call Lord Justice Leveson! The Daily Mail have earned themselves a position on the legal naughty step by ‘naming and shaming’ a “controversial” immigration judge for allowing an appeal on human rights grounds, whilst failing to mention that the Home Office themselves had conceded the point.
The article by Andy Whelan and Ross Slater, entitled Judge who let Taliban soldier remain in Britain now allows refugee who raped girl, 12, stay in UK, even included a paparazzi snap of Immigration Judge Perkins looking vaguely sinister. The Mail reported, correctly, that the judge ruled “removing [the Appellant] would be contrary to the United Kingdom’s obligations under the European Convention on Human Rights“. This is technically right. But there is more. The excellent Free Movement Blog has tracked down the judgment, in which the Judge also made clear that
Before us, on 12 November 2009, Ms R Ashraf, who then represented the [Home Office], accepted that the appeal had to be allowed on human rights grounds.
The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when Prime Minister David Cameron said “I don’t support gay marriage in spite of being a conservative. I support gay marriage because I am a conservative.”
What has been missing from the debate since that speech has been a convincing, measured discussion from the political right on what he meant. Until now, that is. Today the Policy Exchange, a leading conservative think tank thank, has published What’s In A Name? Is there a case for equal marriage?Don’t be fooled by the question mark in the title. This report represents the best and most carefully considered case for equal marriage from a conservative (with a small ‘c’) perspective so far.
Last year, the troubled Commission on a Bill of Rights consulted the public on whether the UK needed a new human rights instrument. Many, including me, commented that the consultation document was a little sparse on detail. In any event, the consultation closed in November 2011. The full responses have been published here and you can also read my summary of some of the submissions
Anyway, eight months and one acrimonious resignation later, not to mention just over 5 months before the Commission is due to report, they are consulting again. This time, the consultation document is more substantial and provides some useful detail as to the kind of ideas being considered. The Commission has requested that those responding don’t repeat what they have already said. The deadline for responses is 30 September 2012. This must put the Commission’s deadline to report by the end of 2012 in some doubt, unless the point of the consultation is simply to confirm what it has already decided.
The Deputy Prime Minister has said that he cannot declare the Coalition Government’s House of Lords Reform Bill as compatible with the Human Rights Act, as prisoners will be banned from voting for Lords if the bill becomes law.
Under section 19 of the Human Rights Act 1998, a Minister of Crown in charge of a Bill must make a statement to Parliament on whether the Bill is compatible with European Convention on Human Rights. The Explanatory Notes to the new Bill reveal that no such statement of compatibility can be made in this case:
278… the Deputy Prime Minister has said that he is unable to sign a statement under section 19(1)(a) of the Human Rights Act 1998. The Government wishes Parliament to proceed with the Bill notwithstanding that such a statement of compatibility cannot be made.
The reason that the Bill will not be compatible with the ECHR is that perennial headache for this (and indeed the last) Government, prisoner votes. As the explanatory notes explain:
The report puts the case for continuing the process already begun by the Coalition Government of rolling back some of the laws instituted in the decade following 9/11 to address the threat of terrorism. The justification for this is that the threat has reduced in size. Notably, he argues that it may be possible to grant certain terrorist suspects (“the peripheral players”) bail when arrested. David Anderson QC said of his report:
The threat from both al-Qaida related and Northern Ireland related terrorism is a real one. To meet it, we have some of the most extensive and effective counter-terrorism laws in the world. All the more need to keep them under review so that they impinge no further than is necessary on individual liberty.
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Jonathan Fisher QC wrote an opinion piece in last week’s Jewish Chronicle entitled “The wrongs of human rights“. The article is highly critical of the human rights movement and raises the alarm over recent decisions on religious rights and “growing attacks on our traditions”. It also makes a strong case for the adding of a list of “responsibilities” to the Human Rights Act, which Fisher argues would be “more closely aligned with Judaism’s approach”. The article pulled no punches and chose the most emotive of starting points:
The Crown Prosecution Service (CPS) has decided not to charge Daniel Thomas for posting a homophobic message on Twitter, the social networking site, about the swimmer Tom Daley. The 
Almost ten years after the death of 
The Ministry of Justice has published its annual report to the Joint Committee on Human Rights on the 
Three quick, unrelated things.
Updated | As has been widely reported, Ken Clarke has 
It 
The legal blogosphere has been aflame this week with the news, first published on a 
Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors [2012] EWHC 2349 (Admin) – 
Interested in the interaction between religion and law? If so, you will be interested in an event I am helping to organise this coming Monday 23 July at 6:30 for a 7pm start. There are a few tickets remaining – 
Somebody call Lord Justice Leveson! The Daily Mail have earned themselves a position on the 
The current debate on legalising gay marriage was sparked by one of the more memorable speeches of this Government, when 
The Deputy Prime Minister has said that he cannot declare the Coalition Government’s House of Lords Reform Bill as compatible with the Human Rights Act, as prisoners will be banned from voting for Lords if the bill becomes law. 
The Independent Reviewer of Terrorism Legislation has released his 
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