A recent Supreme Court decision has reopened a debate on whether it can properly be said that there is a human right to education under the European Convention on Human Rights.
We posted last week on the decision in the Norther Ireland matter of JR17, where The Supreme Court found that there was no breach of a pupil’s right to education where he was unlawfully suspended from school but was provided with work to do and home tutoring.
Today Aidan O’Neil QC, writing on the UK Supreme Court Blog, provides an interesting analysis of the European case-law on the right to education. He also points out that the right to education exists as a protocol (effectively an appendix) rather than in the main body of the European Convention as “no consensus could initially be reached about the recognition of these claims as being fundamental rights.”
The details of the forthcoming wide-ranging public inquiry into British complicity with “rendition” and torture abroad have been announced by the Prime Minister.
He also announced the public release of guidance, formerly secret, on the questioning of suspects overseas, and that a new committee is to review the use of secret evidence in court proceedings.
The statement can be read in full here. Contrary to some reports, the new inquiry is to be judge-led. It will be headed by Sir Peter Gibson, a retired Court of Appeal Judge, who amongst other things headed up the Omaghbombingintelligence review in 2008, and currently is serving as the Intelligence Services Commissioner, a post which involves reviewing actions taken by the Secretary of State under the Intelligence Services Act 1994 and the activities of British intelligence.
Human Rights Watch has released a comprehensive report into the Government’s controversial anti-terrorism stop and search powers.
The report – Without Suspicion Stop and Search under the Terrorism Act 2000 – runs to 64 pages and seeks to systematically dismantle the case for area-based stop and search under section 44 of the Terrorism Act 2000, which allows the police to stop and search without suspicion. Responding to proposals to cut the scope of the scheme, the reports states:
… we believe that even if the law were improved—if its geographic scope were permanently narrowed or its use restricted to specialist officers—the reforms would not entirely address the risk of arbitrary use, including profiling of ethnic minorities or stops of children. It is impossible to give clear guidance to officers on the use of a power that requires no reasonable suspicion. The risk of arbitrary use also makes the power incompatible with the traditional discretion given to UK police officers in course of their duties. The use of section 44 compromises the UK’s human rights obligations and is counterproductive.
We recently started adding links to interesting new articles and case-law the sidebar under the heading “Recent selected sources (del.icio.us)”. Below is a quick rundown of the most recent links. The full list of links can be found here.
The Coalition Government has today launched the “Your Freedom” website, “giving people the opportunity to suggest ideas on restoring liberties that have been lost, repealing unnecessary laws and stripping away excessive regulation on businesses”.
The website can be accessed here, although it appears to be having some bandwidth issues at the moment. Amongst other things, it asks the public “which current laws would you like to remove or change because they restrict your civil liberties?” According to the Number 10 press release, the answers will be taken into account in the Freedom Bill later this year.
In its Program for Government, the Coalition promised a “Freedom” or “Great Repeal Bill”, which is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide-ranging as the draft Bill published by the Liberal Democrats is not clear, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.
The European Court of Human Rights has rejected the United Kingdom’s application to appeal its decision in a recent finding that stop and search powers enacted as part of anti-terrorism legislation breached human rights law.
In January 2010 the European Court held that section 44 of the Terrorism Act 2000 (the broad police power to stop and search without suspicion) violates the right to respect for private life guaranteed by Article 8 of the Convention on Human Rights (Gillan and Quinton v. UK4158/05  ECHR 28 (12 January 2010)). The claimants received £500 each by way of compensation.
It is possible that yesterday’s controversial Supreme Court decision on human rights on the battlefield was merely an academic exercise and therefore not binding on future courts.
There has been significant commentary and conjecture over the decision in R (Smith) v Secretary of State for Defence & Anor (see our post or read the judgment). The Supreme Court seemed to have decided by a 6-3 majority that the Human Rights Act did not apply once a soldier stepped out his or her base, therefore reversing a previous decision by the Court of Appeal that it did.
But the most interesting comments from a legal perspective have been on the question as to whether the decision was in fact binding. Adrian O’Neil QC picked up the point in an interesting commentary piece on the UK Supreme Court Blog.
The Mayor of London v Hall & Ors  EWHC 1613 (QB) (29 June 2010) – Read judgment
The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square, with the High Court stating that his response to the protest was proportionate and not a breach of the protesters’ human rights.
The protesters have gained a temporary reprieve by appealing the decision, and according to their website have therefore delayed their eviction until at least 4pm on Friday 2 July
As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”. Boris Johnson, the Mayor of London, launched an action for possession against the protestors, who he claimed were trespassing on Parliament Square.
R (Smith) v Secretary of State for Defence & Anor  UKSC 29 – Read judgment
The Supreme Court has ruled by a 6-3 majority that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts.
The case related to Private Jason Smith, a member of the Territorial Army who died from heatstroke in Iraq in 2003.
The decision has come as a relief to the Ministry of Defence. In recent years, coroners have been highly critical of the armed forces’ protection of soldiers on the battlefield, and this case had the potential to open up the Government to a series of claims for compensation by soldiers and their relatives. However, the Supreme Court has (narrowly) taken the view that the Human Rights Act 1998 was not designed to apply in such cases.
The Mayor of London has won a court order to evict a camp of protesters from Parliamentary Square. The protesters have won a temporary reprieve by appealing the decision.
As we posted earlier this month, during the build-up to the General Election a number of protesters erected tents and flags in Parliament Square, a green outside the Houses of Parliament. The protesters named the site “Democracy Village”.
Boris Johnson, the Mayor of London, launched an action for trespass against the protestors.
Baroness Hale of Richmond has spoken to the Salford Human Rights Conference on the development of human rights law, and has lamented the time spent on constitutional wrangling rather than applying the essence of the Act.
Lord Phillips, the head of the Supreme Court also spoke recently on the Human Rights Act, responded to accusations that it is hampering the fight against terrorism. He said that “respect for human rights is a key weapon in the ideological battle”. Lady Hale suggested that the tension between the Government and the courts arising from such cases is preventing judges from doing their job. She concluded:
George Osborne is to announce the Government’s emergency budget today. Although the Government has been seeking to emphasise measures which will soften the blow to the poor, the fact remains that these are the biggest cuts in decades and that many will end up worse off, particularly if wages decrease and unemployment increases.
Update: The full budget can be downloaded here. The section on benefits starts at page 33.
The Government is to cut benefits by £11bn by 2014-15. The huge cost of benefits (“spending on social security and tax credits has increased by 45 per cent, around £60 billion, in real terms over the past 10 years.), the Chancellor told Parliament, were one of the reasons why there isn’t any more money in the Government coffers. The Health in Pregnancy grant will be abolished from 2011 and Sure Start will be limited. Child Benefit is to be frozen for the next three years. Disability Living Allowance will be restricted by a new medical check from 2013. The Chancellor has said he will “increase the incentives to work” and will reassess benefits on the basis of the Consumer Price Index rather than the Retail Price Index. Housing benefit will be limited significantly and maximum limits on what can be claimed are to be introduced for the first time.
Rosalind English posted two weeks ago on whether budget cuts will lead to revised calls for “socio-economic” human rights; a concept which is as old as the European Convention on Human Rights and just as controversial. We will now revisit that post.
Holder v. Humanitarian Law Project, United States Supreme Court – Read judgment
The US Supreme Court has ruled that it does not violate the US Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions.
The judgment does not, of course, have any direct effect on the UK. But UK anti-terrorism legislation already provides the police with broad powers to prosecute those who support terrorist groups. The UK Government is likely to be keeping a close eye on the United States in order to guide future policy, in terms of what is and what is not beyond the pale in restriction freedom of expression.
Al Rawi & Ors v the Security Service & Ors  EWHC 1496 (QB) (21 June 2010) – Read judgment
The Government has received another in an increasingly long line of blows in the Al Rawi & Others foreign torture case, with Mr Justice Silber ordering a closed hearing to see whether two key security service documents are to be disclosed to the claimants. If the Government chooses not to claim public interest immunity, which is unlikely, the documents will be disclosed immediately.
The compensation claim involves six claimants who were detained at various locations, including Guantanamo Bay and Bagram in Afghanistan, alleging various forms of mistreatment. They claim to have been subjected to false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office and breaches of their rights under the Human Rights Act 1998.
The Government has recently ordered a public inquiry into the security services’ alleged complicity in torture, but this is not likely to start until after the Al Rawi claims are resolved.
British Airways Plc v Unite the Union  EWCA Civ 669 (20 May 2010) – Read judgment
Last month Unite won their appeal against an injunction obtained by British Airways in the High Court preventing their members from striking. The judgment has some potentially important implications for human rights, and in particular the right to free assembly.
The strike has already been the most damaging in British Airways’ history and they airline are now preparing for another round of strikes with Unite threatening to ballot its members for a third time.
Today the Confederation of British Industry (CBI) called for a change in the law to make it harder to bring strikes. Amongst other things, they are lobbying for the number of workers who need to agree to a strike before it can take place to be raised to 40%, which they say would “prevent strikes going ahead based on a relatively small turnout of particularly active members.”
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