By: Adam Wagner


Strasbourg judge: “Those who export war ought to see to the parallel export of guarantees against the atrocities of war”

7 July 2011 by

Updated | The legal blogs have been busy reporting on this morning’s important decisions of the Grand Chamber of the European Court of Human Rights in Al-Skeini and Al-Jeddasee my post.

There has been coverage already from PHD Studies in Human Rights, the Human Rights in Ireland Blog (update – see also EJIL: Talk: “Let me put this as strongly as I can: this is as close as we’ve ever come to the European Court overruling Bankovic. And good riddance – except, as we will see, the Court’s disavowal of Bankovic is only half-hearted at best.”). The Guardian has also published an article on the case in which Phil Shiner of Public Interest Lawyers claims that the decisions will reopen the case for a wider public inquiry into alleged detainee mistreatment in Iraq; the firm recently failed in a judicial review of a decision not to hold a public inquiry on behalf of 127 Iraqis.

Many thanks to Antoine Buyse of the ECHR Blog for highlighting the lyrical and eminently quotable concurring opinion of Maltese Judge Giovanni Bonello, who since writing the judgment has retired from the court. Bonello said that he would have applied a slightly different “functional jurisdiction” test to decide whether the applicants fell within the jurisdiction of the United Kingdom.

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European Convention on Human Rights applied in Basrah, UK failed duties to Iraqi civilians

7 July 2011 by

Al-Skeini v. United Kingdom, European Court of Human Rights Grand Chamber (Application no. 55721/07) – Read judgment / press release

Al-Jedda v. the UK (Application No. 27021/08)- Read judgment / press release

The Grand Chamber of the European Court of Human Rights has ruled that from 1 May 2003 to 28 June 2004 the UK had jurisdiction under Article 1 (obligation to respect human rights) of the European Convention on Human Rights in respect of civilians killed during security operations carried out by UK soldiers in Basrah.

The court went on to find in Al-Skeini that there had been a failure to conduct an independent and effective investigation into the deaths of the relatives of five of the six applicants, in violation of Article 2 (right to life) of the Convention. The court awarded 17,000 euros to five of the six applicants, in addition to 50,000 euros in costs jointly.

In Al-Jedda, the court found a violation of Article 5 (1) (right to liberty and security) of the European Convention in relation to the internment of an Iraqi for more than three years (2004- 2007) in a detention centre in Basrah.

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A phone hacking scandal refresher

6 July 2011 by

The News of the World phone-hacking scandal has reignited over claims that phones belonging to the families of 7/7 bombing victims and murdered children such as Milly Dowler were hacked.

The scandal has been rumbling on since 2007, but is again the main story in the news. The affair has been the subject of a number of court hearings, mostly surrounding disclosure by News International in the ongoing private compensation claims by alleged victims. There are important issues of privacy and freedom of the press surrounding some of the allegations, but primarily this is a criminal investigation into the illegal hacking of mobile phones.

For those who are coming to the issue for the first time, or need a little revision, there is no better starting point than the International Forum for Responsible Media (INFORRM) Blog, which has been covering the scandal in meticulous detail since its launch around 18 months ago. In particular, see:


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British judge to head European Court of Human Rights

5 July 2011 by

Sir Nicolas Bratza, the only UK judge at the European Court of Human Rights, has been elected as its new President. The start of his presidency will coincide with the UK’s 6-month chairmanship of the Council of Europe which begins in November 2011.

Bratza will succeed Frenchman John Paul Costa on 4 November 2011 after being elected in a secret ballot by the court’s 47 judges, and has been elected for a term of 3 years. He may use the opportunity to improve relations with the UK government which are tense following the Council’s warning that the UK must comply with a 2005 ruling against the UK’s indiscriminate ban on prisoners voting. The Prime Minister said in November that the thought of giving prisoners the vote makes him feel “physically ill“. The deadline for UK compliance is 11 October 2011.

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Where in the world does the Human Rights Act apply?

1 July 2011 by

Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) – Read judgment

Update, 20 June 2013: This decision has been reversed by the Supreme Court: Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq

The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.

The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (the right to life) and article 5 (right to liberty).

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More poor human rights reporting on Somali foreign criminals case

30 June 2011 by

In today’s Daily Express, Stephen Pollard has written an article entitled We must regain right to kick out foreign criminals. There is a lot wrong with the article, not least the misrepresentation – not for the first time, either – of a 2007 case involving the failed deportation of headmaster Philip Lawrence’s killer.

Pollard is responding to the European Court of Human Rights ruling in Sufi and Elmi v UK, in which the court ruled that the situation in Somalia was so dire that except in very limited scenarios it will not be possible to deport people back to the country. Rosalind English has already examined the case in more detail.

As I say, there are many problems with the article, which follows the standard anti-human rights act playbook. It is worth addressing them as they are likely to be repeated elsewhere. Here are just a few.

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Human rights in some but not all disciplinary hearings at work, rules Supreme Court

29 June 2011 by

R (on the application of G) (Respondent) v The Governors of X School (Appellant) [2011] UKSC 30 – Read judgment / press summary

The Supreme Court has ruled unanimously that Article 6 of the European Convention on Human Rights, the right to a fair trial, is engaged in internal disciplinary proceedings if the will have a “substantial influence” on future proceedings which are likely to determine a civil right.

However, in this case of a teaching assistant sacked for sexual misconduct with a child, the court ruled by a majority that article 6 rights were not available at a school’s internal disciplinary hearing and the man was therefore not entitled to legal representation. This was because the result of the hearing would not have a substantial influence on the secretary of state’s decision whether to place the man on the list of people barred from working with children. Simply, the Independent Safeguarding Authority (ISA) was obliged to make its own independent judgment.

As Martin Downs posted in April, this decision – which supports the previous decision of the court of appeal – will have an important effect on all internal disciplinary hearings held in the public sector, not just those held at schools. It will now be easier for teachers, doctors, dentists, nurses and others to secure the right to legal representation, alongside other rights such as the right to an impartial panel, at disciplinary hearings which will have a substantial influence on their career.

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Lady Hale on access to justice, legal aid and staying at The Ritz

28 June 2011 by

As reported by Guardian.co.uk, Lady Hale, one of the 12 UK Supreme Court justices, has said in a speech to The Law Society that the government’s proposed reforms to legal aid will have a “disproportionate effect upon the poorest and most vulnerable in society“.

Although the current crop of senior judges has not been afraid to express opinions on controversial issues, it is unusual for a sitting senior judge to criticise current and controversial government plans. The Legal Aid, Sentencing and Punishment of Offenders Bill has only just been published, and is being debated tomorrow in Parliament. The Guardian.co.uk article presents the comments as a “direct challenge” to the policy. However, upon a closer reading, Lady Hale cleverly steered clear of criticising the plans in her own words, but rather quoted the government’s own analysis of the bill.

The speech was entitled Equal Access to Justice in the Big Society, and was in memory of solicitor Henry Hodge, and can be downloaded in full here (PDF). It is also republished below the page break.

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Lord Rodger passes away

28 June 2011 by

Supreme Court justice Lord Alan Rodger of Earlsferry sadly passed away on Sunday at the age of 66 after a short illness. 

Lord Rodger was in the first group of 12 Supreme Court justices and was one of the two Scottish judges at the court. The Supreme Court broadcast a tribute today via its new Supreme Court Live service. The transcript can be read here.

See obituaries in The Scotsman, The Telegraph, the Herald Scotland and Aidan O’Neill QC on the UK Supreme Court Blog. O’Neill says:

It was a pleasure and a privilege to appear before him as a judge. He could spot a weak argument at a hundred paces. But his questioning and testing of counsel’s submissions were at all times courteously done, and always got straight to the heart of the issue. If he had a weakness as a judge it was that in his judgments he would often find on a precedent or a point that had not been raised by either side in argument. But he was almost invariably right on these points, even if reached without the benefit of counsel’s submissions… His untimely death robs us of a great jurist, and of a good man. His passing diminishes all of us who had the privilege to know him and to work with him.

Bill of Rights Commission on politics, preconceptions and football metaphors

27 June 2011 by

Members of the UK Bill of Rights Commission, an independent body asked by the government to investigate the case for a UK Bill of Rights, has been giving evidence to the Political and Constitutional Reform Committee (transcripts here: part 1, part 2). The sessions give an interesting if predictable insight into the likely discussions between the Commission’s members.

The group has made slow progress so far, and little is known about how it will operate, save that any proposed bill must “incorporate.. and build.. on all our obligations under the European Convention on Human Rights“. It is under no great time pressure, having been asked to report by the end of 2012. It is comprised of 9 people, mostly Queen’s Counsel and not all of whom are human rights experts. It also has a website, which provides little information beyond the dates of meetings. Given the importance of the process and lack of information so far, the evidence sessions are of interest.


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Legal Aid, Sentencing and Punishment of Offenders Bill – the aftermath

22 June 2011 by

Updated | Yesterday saw the release of the Government’s flagship justice bill, the Legal Aid, Sentencing and Punishment of Offenders Bill.

There is a lot in the bill. In terms of its long term effect on the justice system, the most important parts relate to legal aid and litigation funding; that is, the options available to claimants to fund their cases – for example, no-win-no-fee arrangements or government funding. The reforms have been long-heralded, and the government has now responded to its consultations on both (see here for legal aid and here for litigation funding).

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Legal Aid, Sentencing and Punishment of Offenders Bill published

21 June 2011 by

The long-awaited Legal Aid, Sentencing and Punishment of Offenders Bill has been published. I have reproduced it below via Scribd. The Ministry of Justice’s press release is here.

The Ministry of Justice has also released its response to its formal consultation on legal aid reforms (also reproduced via Scribd below the page break).

The Bill contains:

  • the government’s proposals on civil (section 7 onwards) and criminal (section 12 onwards) legal aid;
  • new arrangements for litigation funding and costs (section 41 onwards);
  • The (controversial) proposals for criminal sentencing reforms.
View this document on Scribd

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Hey, teacher! Leave those cornrows alone

20 June 2011 by

Updated | SG v St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin) (17 June 2010) – Read judgment

Most people have their first taste of injustice at school. This is hardly surprising: an institution containing hundreds of teenagers for whom rebellion is a biological imperative is always going to be difficult to control. In trying to do so, teachers sometimes impose petty rules.

Many children fantasize of an external authority intervening to expose the injustice of those rules, particularly in relation to modes of dress. But few take their school to court to challenge a policy on hairstyle. And even fewer win, as a young boy – known in this case as SG – has just done in the High Court. SG took his school, St Gregory’s Catholic Science College of Harrow in Greater London, to court to challenge its ban on boys wearing their hair in “cornrows“, or braids.

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Should male circumcision be banned?

15 June 2011 by

Yesterday Neil Howard and Rebecca Steinfeld asked via guardian.co.uk whether it is Time to ban male circumcision? The article was prompted by attempts to ban the practice in San Francisco.

Male circumcision is common amongst Muslims and Jews, but judging from the 286 comments (so far!) to the article, there are a lot of people who feel that the practice is outdated and should be banned. I have responded with my own article, arguing that whilst the debate is by no means settled, a ban at present would amount to a disproportionate interference with freedom of religion rights.

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Facebook contempt trial begins tomorrow

13 June 2011 by

Tomorrow sees the beginning of a contempt of court prosecution against a juror who allegedly communicated on the social networking site Facebook with a defendant who had already been acquitted.

The co-editor of this blog, Angus McCullough QC, is representing the Attorney General in the case; he is not the writer of this post. Isabel McArdle has already posted on the case – for background, see Silence please: A Facebook contempt of court – allegedly.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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