Category: In the news
26 November 2012 by Guest Contributor
This coming Wednesday sees the end of the first stage of the Justice and Security Bill’s passage into law. The Bill which would introduce Closed Material Procedures (CMP) – where one side of a case is excluded with his legal team and represented by a security cleared special advocate in cases involving national security – has become widely known as the Secret Courts Bill. Its progress has been closely scrutinised in this blog over the past six months.
As it completes Third Reading and passes to the House of Commons, we reflect on last week’s Lords amendments to the Bill. While there are still issues ripe for discussion at Third Reading, it is broadly accepted that the key Lords votes have passed.
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25 November 2012 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The government was on the defensive this week on a number of fronts. It suffered significant defeats in the House of Lords over its proposals for secret civil trials under the Justice and Security Bill. Prime Minister David Cameron has also received a barrage of criticism over his calls for tightening the criteria for judicial review applications. Meanwhile, the prisoner voting saga continues, with Justice Secretary Chris Grayling (on the eve of the deadline) giving Parliament (or, more accurately, a Parliamentary committee) three options on the issue. Meanwhile, a new criminal offence of stalking has been introduced.
by Daniel Isenberg
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21 November 2012 by Rosalind English
Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment
Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment
Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority.
It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.
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21 November 2012 by David Hart KC
R (Bancoult) v. Foreign & Commonwealth Office, Divisional Court, 21 November 2012 read judgment
I posted recently (here) on two decisions concerning Chagossian refugees in their long-running campaign to be re-settled in the islands from which they were evicted by the UK in the 1960s. The first was a claim for further documentation, the second an application for cross-examination of key Foreign Office witnesses on the basis of a Wikileaks document (read judgment and read judgment).
And here is another skirmish in the same battle.
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19 November 2012 by Adam Wagner
The Prime Minister is to “get a grip” on people forcing unnecessary delays to Government policy by cracking down on the “massive growth industry” of Judicial Review. David Cameron told business leaders today:
“When this country was at war in the 40s, Whitehall underwent a revolution. … everything was thrown at ‘the overriding purpose’ of beating Hitler. … this country is in the economic equivalent of war today – and we need the same spirit. We need to forget about crossing every ‘t’ and dotting every ‘i’ – and we need to throw everything we’ve got at winning in this global race.”
The detail of the changes is yet to be revealed (update – more detail is now available on the Ministry of Justice website, including the promise of a public consultation), but the PM plans to ” reduce the time limit when people can bring cases; charge more for reviews – so people think twice about time-wasting.”
Clearly some of the PM’s Dunkirk spirit rhetoric is aimed at cheering up business leaders, who need a lot of that at the moment. But putting the rhetoric aside, there is cause for concern here.
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19 November 2012 by Daniel Isenberg
This is the first post by the blog’s new rounder-uppper Daniel Isenberg, who joins Sam Murrant. Welcome, Daniel!
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week’s human rights news was dominated by the man who has become the Home Secretary’s bête noire, Abu Qatada. Elsewhere the UK’s relationship with the Strasbourg Court was addressed by Jack Straw and the Court’s recently-retired President, whilst the Court, itself, criticised the UK’s policy on criminal records data retention. Meanwhile, in speeches two Court of Appeal judges have made expressed views on human rights and the principle of proportionality.
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16 November 2012 by Adam Wagner
You may have heard that the Special Immigration Appeals Commission (SIAC) decided on Tuesday that Abu Qatada, an alleged terrorist who has been detained for the best part of the last seven years awaiting deportation to his native Jordan, cannot be deported. There would be a real risk, ruled SIAC, that he would face a flagrant denial of justice in his ensuing trial.
Jim Duffy has already commented on the case here, but I thought it would be useful to look at some of the commentary which followed the decision. A bit like the latest Israel-Gaza escalation, controversial human rights decisions now elicit an almost instant (and slightly sad) our-camp-versus-theirs reaction. Following a decision each ‘side’ trundles into action, rolling out the clichés without thinking very hard about the principles. The Prime Minister himself somewhat petulantly said he was “fed up” and “We have moved heaven and earth to try to comply with every single dot and comma of every single convention to get him out of this country.”
It is easy to moan about inaccurate coverage (I often do). But in this case, I do think the strong, almost visceral, reaction to the decision is justified. Leaving aside the slightly mad tabloid anti-Europe or effectively anti-justice coverage, it is understandable that people are uneasy and upset about this decision to keep a suspected terrorist within our borders, and then release him. But that doesn’t mean the decision is wrong.
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15 November 2012 by Guest Contributor
M.M. v United Kingdom (Application no. 24029/07) – read judgment
The European Court of Human Rights yesterday handed down a Chamber judgment in declaring that the arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and for the disclosure of such data in criminal record checks infringe Article 8 of the ECHR.
Although the Court recognised that there might be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data, particularly bearing in mind the amount and sensitivity of the data.
The case arose from a family dispute in Northern Ireland in the course of which the applicant, a grandmother, took her grandson away from his parents for two days before returning him unharmed. This resulted in her receiving a caution for child abduction in November 2000. In 2003 the police advised her that her caution would remain on record for only five years, i.e. until 2005. However, following the Soham murders and the Bichard report, there was a change of policy whereby any convictions and cautions where the victim was a child would be kept on record for the offender’s lifetime.
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13 November 2012 by Rosalind English
Peta Deutschland v Germany (No. 43481/09) – read judgment
Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.
In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.
Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.
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12 November 2012 by Rosalind English
Mohammed Othman (Abu Qatada) v Secretary of State for the Home Department (Special Immigration Appeals Commission) 12 November 2012 – read judgment
Muslim cleric Abu Qatada has won his appeal against deportation to Jordan, where Mitting J concluded that he would not receive a fair trial.
Qatada was convicted of terror charges in Jordan in his absence in 1999 but so far he has successfully resisted being sent back there because of the risk of an unfair trial, despite the assurances given by Jordan to the Home Secretary assurances that no evidence gained through torture would be used against him. As Mitting J said, once it has been established that there is a “substantial” risk that a person will not receive a fair trial in the destination state, the government must demonstrate that there is no risk that person will receive a “flagrantly unfair” trial. This is a lower test than demonstrating that no risk at all existed. But on the basis of SIAC’s findings, Mitting J found that there was in fact a real risk that evidence obtained by torture of two men had been obtained by torture.
A quick scan of the list of “Related Posts” below reveals the prolonged history of this case. Enough already? Apparently not.
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11 November 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The Rahmatullah Supreme Court judgment remained in the spotlight this week, but had to share it with old faces such as Abu Hamza (whose case has managed to keep outraging the public despite his extradition to the US), the loudly ticking clock of prisoner voting and the attendant debate over whether the UK should replace the Human Rights Act with a “British” human rights statute. Meanwhile, the ruling on whether Abu Qatada can be deported to Jordan is coming tomorrow (Monday).
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8 November 2012 by Rosalind English
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) – read judgment
This tribunal decision is the first to tackle the so-called “codification” of Article 8 considerations in immigration law (see Adam’s post on the Home Office’s proposals earlier this year).
Before the new immigration rules were introduced in July, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights. In immigration decisions, there was no doubt that human rights were rooted in primary legislation: s.84(1)(c) and (g) of the Nationality, Immigration and Asylum Act 2002, the “2002 Act”) allows an appeal to be brought against a decision which unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights. In addition to this, there is s.33(2) of the UK Borders Act 2007 which provides, as one of the statutory exceptions to the automatic deportation regime, “…where removal of the foreign criminal in pursuance of a deportation order would breach (a) a person’s Convention rights”.
But then there was a move to set out an extensive, codified definition of the Article 8 balancing factors, in order to
unify consideration under the rules and Article 8, by defining the basis on which a person can enter or remain in the UK on the basis of their family or private life.
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7 November 2012 by Guest Contributor
In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
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7 November 2012 by Adam Wagner
I have an opinion piece in this week’s Jewish Chronicle, We should support and not condemn Human Rights Act. The “we” in the title is the Jewish community, of which I am a part, although it also amounts to a fairly broad defence of the Human Rights Act.
The article was at first intended as a direct response to an opinion piece by Jonathan Fisher QC entitled The wrongs of human rights, but because of editorial pressures at the Jewish Chronicle it could not be published until a few weeks later, and as such ended up being a more general article. I have already commented on this blog on why I thought the timing of Fisher’s article was a little odd given that the Bill of Rights Commission, on which he sits, was still consulting the public on the very issues he addressed passionately in the article. I said:
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6 November 2012 by Adam Wagner
A quick note to say that the UK Jewish Film Festival is showing a fascinating new Israeli documentary (with subtitles), The Law in These Parts, this Sunday at 2:30pm at the Tricycle Cinema in Kilburn. The film will be followed by a discussion, chaired by me, between Danny Friedman of Matrix chambers and Jonathan Turner of 13 Old Square chambers. All details are here.
I have seen the film and it is excellent. It is an examination of legal proceedings in the territories occupied by Israel since 1967. The documentary is made up almost entirely of interviews with former judges in Israel’s security courts, including a Supreme Court justice, which in itself of great interest. Although the legal and moral issues faced up to in the film are in one way unique to Israel, many from the UK legal community will recognise themes in relation to Northern Ireland during the Troubles, as well as broader problems which we are still grappling with involving the use of secret evidence and evidence obtained by torture.
In short, one of the best legal documentaries I have seen, and highly recommended (not just by me – Newsweek described it as “a gripping new documentary“). I hope to see you there, do come and say hello if you can make it. Book here – trailer below
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