Category: In the news
20 September 2011 by Graeme Hall
As we recently posted, the UK Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. The Commission made recommendations to achieve the “effective functioning of the Court over the long term”, following which Joshua Rozenberg stated that “everybody now agrees on the need for fundamental reform. It has to happen. And it will.”
But if there is such agreement, can the Commission’s recommendations produce any meaningful reform? Or do the proposals simply rehash old ideas?
by Graeme Hall
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20 September 2011 by Adam Wagner
I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.
In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3) (available in French, English press release here), which is going to the court’s Grand Chamber This is another prisoner voting case.
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19 September 2011 by Graeme Hall
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
First, if you know an individual, campaign group or NGO which deserves to have its local or national human rights work recognised, nominations for The Liberty Human Rights Award close on 30th September 2011, so there’s still time to get nominating!
by Graeme Hall
In the news
Gagging the press
In an uncompromising piece in the Guardian, Geoffrey Robertson QC attacks the attempt of the Metropolitan Police to use the Official Secrets Act 1989 (OSA) to force the Guardian to disclose its source(s) which revealed the hacking of Milly Dowlers’ phone. Robertson not only describes Scotland Yard’s recourse to the OSA “blunderbuss” as misguided given that there is no evidence of the Guardian “inciting” this information from the police, but he also urges Parliament to revisit the OSA and insert a public interest defence to protect press freedom.
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19 September 2011 by Adam Wagner
Updated x 2 |Following on from Obiter J’s guest post, when considering the Metropolitan Police Commissioner’s attempt to force a Guardian journalist to disclose her source, it is worth revisiting the seminal case of Shayler, R [2002] UKHL 11. The case, which arose shortly after the Human Rights Act came into force, shows how heavily stacked the law is against those accused of causing to leak state secrets, but may also reveal some limited hope for journalists too.
Although it now appears that the case is being brought under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984, it is still worth examining the powers which the police have under both PACE and the Official Secrets Act.
Simply, according to the House of Lords in Shayler, there is no public interest defence to the charges under sections 1 and 4 and none will be implied by the courts as a result of human rights law. However, section 5 was not considered and may still bear fruit should a prosecution be brought under it.
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18 September 2011 by Guest Contributor
Updated |Nine years ago, in March 2002, Amanda “Milly” Dowler (aged 13) was on her way home from school. She was kidnapped and murdered and her body was found in September 2002. In June 2011, Levi Bellfield was convicted of her murder and sentenced to a “whole life” tariff. When Milly went missing, journalists of the News of the World newspaper “hacked” into her voicemail. The fact that this had happened came to public prominence in July 2011 when The Guardian newspaper revealed the story.
The Metropolitan Police are now seeking an order that The Guardian journalists reveal their sources of information about the hacking. There is a suggestion that the Official Secrets Act 1989 may have been breached. The Guardian plans to resist this “extraordinary demand to the utmost” – see The Guardian 17th September – “Hacking: Met use Official Secrets Act to demand Guardian reveals sources.”
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16 September 2011 by Rosalind English
The South African ANC led government is proposing to introduce a Protection of Information Bill, a highly controversial piece of proposed legislation which aims to regulate the classification, protection and dissemination of state information, weighing state interests up against transparency and freedom of expression.
Critics have attacked the Bill because it defines the concept of “national interest” very broadly, granting wide powers to classify documents as secret in the name of national interest. And the absence of a public-interest defence is seen as problematic because it would have functioned as an important means for information of serious concern to citizens to be disclosed, regardless of the fact that the information was classified. The penalties for disclosure of protected information are harsh. Anyone who unlawfully discloses classified information could be guilty of an offence and liable on conviction to imprisonment for a maximum of five years. There is limited protection under the Protected Disclosures Act 2000, but this statute only protects employees from being subjected to occupational censure for having made a protected disclosure. Journalists and other members of the public are not covered by this Act and therefore cannot claim its protection.
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16 September 2011 by David Hart KC
In the UK and EU, there are a lot of statutes and rules about climate change, and relatively little strategic litigation. Hop over the Pond, and we see exactly the reverse, a reflection of different political dynamics with the hostility of the US Congress to climate change legislation.
It is interesting to look at some of the US cases, not only because they lock horns with one of the big issues of our time, but also because they reflect a common problem the courts face in deciding their role when confronted with science which is, or is said to be, controversial.
We should start with the groundbreaking decision in Massachusetts v. EPA (549 U.S. 497 (2007)). The US Supreme Court held that the US Environmental Protection Agency had a duty to use its existing powers under the Clean Air Act and assess whether greenhouse gas (GHG) emissions from vehicles were a danger to the environment and, if that was the case, to regulate them. In the litigation, and contrary to the opinion of two of its previous general counsels, it had denied that it was under a duty to do so. This judgment was a highly important ruling, as it meant that no new legislation was necessary to get the climate change ball rolling. Thereafter the EPA turned to how it should regulate GHG emissions, as we shall see.
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15 September 2011 by Adam Wagner
Welcome back
As has been long-heralded, the law on universal jurisdiction changed today. The change is contained in the new Police Reform and Social Responsibility Act and means that although anyone can initiate war crimes proceedings, the consent of the Director of Public Prosecutions will be required before an arrest warrant is issued. The Justice Minister Ken Clarke said:
We are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution.
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14 September 2011 by Lucy Series
Last month the Ministry of Justice published a report of a pilot project that ran last year whereby participating family courts produced and published on Bailii written judgments of specified Children Act 1989 cases. The project had three main aims:
- to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases;
- to help parties by providing written judgments in all cases, even where a matter was not contested;
- to provide judgments which the children involved could access in later life.
The family courts are often perceived as ‘secretive’ or aloof; Munby LJ has made excellent arguments for greater transparency far more eloquently than I could hope to do in this speech (pdf)
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13 September 2011 by Isabel McArdle
Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.
The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:
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13 September 2011 by Melina Padron
Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
by Melinda Padron
In the news:
Remembering 9/11, 10 years on
Last week the Law and Lawyers blog posted a retrospective of 9/11 and the consequent events of legal significance that impacted, and continue to impact, on the UK. The Human Rights in Ireland blog discussed the Terrorism Prevention and Investigation Measures legislation in the UK, whilst Adam Wagner took the unusual step of sharing his personal reflections on 9/11. Dapo Akande links his post on the EJIL Talk blog to an interview in a BBC Radio programme where he discussed, amongst other things, whether the Geneva Conventions apply to the so called “war on terror”.
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13 September 2011 by Adam Wagner
The Equality and Human Rights Commission has published Hidden in plain sight, a report into disability-related harassment and how well this is currently being addressed by public authorities.
The report, which finds a “systemic failure by public authorities to recognise the extent and impact of harassment and abuse of disabled people” can be downloaded here, the “easy read” version here and the executive summary here. I have also reposted the Executive Summary via Scribd below. The Inquiry found, amongst other things:
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13 September 2011 by Rosalind English
R(on the application of Sayed) v Secretary of State for the Home Department; R(on the application of Patel) v Secretary of State for the Home Department [2011] EWCA Civ 1059 – read judgment
The Court of Appeal has confirmed that Article 8 of the Convention need not necessarily be considered when deciding whether to grant an applicant indefinite leave to remain. The Immigration Rules the are the sole test of eligibility, and Article 8 cannot be used to modify them. They should therefore be read according to their natural and ordinary meaning.
In these conjoined appeals the appellants challenged decisions upholding the secretary of state’s refusal to grant them indefinite leave to remain in the United Kingdom. The first appellant, S, had sought indefinite leave to remain in the UK on the basis of long residence. The secretary of state refused his application on the basis that he had failed to show that he had completed 10 years continuous lawful residence in the UK because there had been two gaps in his residency. He was, however, granted leave to remain in the UK for a period of three years to complete a course of study. The second appellant, P, had sought indefinite leave to remain in the UK as the parent of a person, his son, present and settled in the UK under the Immigration Rules para.319. P’s application was refused on the basis that he did not meet the dependency requirements of para.317 of the Rules. In both appeals an issue arose as to whether the Rules should be construed so as to conform with Article 8.
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12 September 2011 by Adam Wagner
This year’s festival of books and ideas, organised by my fellow blogger Rosalind English, takes place once again from 14 – 16 October in the elegant market town of Burnham Market in North Norfolk, with a great line up of speakers, and subjects ranging from the Tudor Queens to the life of Leo Tolstoy.
Sparks may fly when former brigadier Allan Mallinson challenges historian David Edgerton about his revisionist view of Britain in WWII Britain’s War Machine, and butterflies flutter with Patrick Barkham’s heroic efforts to spot all British species of Papilio in one year. On Saturday evening TV architectural historian takes attendees behind the scenes of the English Country house.
Tickets are a snip at £10 event from the Whitehouse Bookshop, 01328 730270. You can download the programme here or visiting the website here.
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11 September 2011 by Adam Wagner
It is ten years since the terror attacks of 11 September 2001. Like many people, I have been thinking back to where I was on that day.
Bizarrely, given what followed, I spent 11 September 2001 only a few miles away from the United States military base in Guantanamo Bay. I was travelling through Cuba with friends, and we had reached the Eastern tip of the island, the seaside village of Baracoa. We had even visited Guantanamo Bay’s entrance the previous day; it was a tourist attraction which the Lonely Planet guide billed as the place where you could find Cuba’s only MacDonalds.
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