Category: BLOG POSTS
9 February 2016 by Guest Contributor
Photo credit: Guardian
Marina Wheeler
Last week Donald Tusk, President of the European Council, tabled a set of proposals which the government hopes will form the basis of the UK’s renegotiated relationship with the EU, in advance of an in-out referendum. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states’ different aspirations for further integration must be respected, and creation of a (“red card”) mechanism to block EU legislation. Legally, however, they raise more questions than they answer.
My thesis is this: the reach of the Court of Justice of the European Union (CJEU) in Luxembourg has extended to a point where the status quo is untenable. Aside from eroding national sovereignty, which it does, the current situation also undermines legal certainty, which in turn undermines good governance.
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8 February 2016 by Charlotte Bellamy
In the News
The UN working group on arbitrary detention have concluded that the Wikileaks founder Julian Assange has been “arbitrarily detained” by Britain and Sweden in the Ecuadorian Embassy for the last three and a half years. In particular, the working group considered that Mr Assange had not been guaranteed a fair trial, in violation of Articles 9 and 10 of the Universal Declaration on Human Rights, and Articles 9, 10 and 14 of the International Covenant on Civil and Political Rights. They have called on Britain and Sweden to end Assange’s deprivation of liberty, respect his physical integrity and freedom of movement, and afford him the right to compensation – which all seems rather steep for someone who has in effect used the Embassy “as a safe haven to avoid arrest” – in the words of the dissenting member of the working group, Ukrainian lawyer Vladimir Tochilovsky.
Julian Assange sought refuge in the Ecuadorian Embassy in 2012 after the UK Supreme Court rejected his appeal against a European Arrest Warrant issued by the Swedish prosecution authority for rape and sexual assault allegations. He has remained there since, now claiming the UN opinion marks a “sweet victory” – but which the UK and Sweden have flatly rejected, on the basis that only one detaining Assange there is Assange himself.
Joshua Rozenberg answers the question on everyone’s minds – how did the UN get it so wrong? The definition the panel gave for Assange’s “arbitrary detention” was that “non observance … of the international norms relating to the right to a fair trial … is of such gravity as to give the detention an arbitrary character”. Of course, such a definition of arbitrary detention presumes detention in the first place – which in this case, was self-confinement in the Embassy.
Tochilovsky, the lone dissent on the panel, was the only one to make the point that “fugitives are often self-confined within the places they evade arrest and detention” and “self-confinement cannot be considered places of detention for the purposes of the mandate of the working group”.
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3 February 2016 by Guest Contributor
In 2006 David Cameron said the HRA ‘has stopped us responding properly in terms of terrorism, particularly in terms of deporting those who may do us harm in this country’. In 2014 his party published proposals to amend the HRA, and to withdraw from the Convention.
Readers of this blog won’t need reminding that the media has robustly criticized the ECtHR:
“The Court has never, in its 50-year history, been subject to such a barrage of hostile criticism as that which occurred in the United Kingdom in 2011 Over the years certain governments have discovered that it is electorally popular to criticise international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”[2]
In the last four years there were some 80 judgments where the UK was the respondent and in about 40 of those cases one or more violations were found. This does not seem to be particularly (statistically) out of step with previous periods. However do the key cases suggest the widening of the margin of appreciation for the UK?
Al-Khawaja
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2 February 2016 by Guest Contributor
Vintage Balance Scale
In “The Ballad of East and West”, Rudyard Kipling memorably wrote
East is East, and West is West, and never the twain shall meet
Till Earth and Sky stand presently at God’s great Judgment Seat.
Is this an accurate description of the rule of law and Parliament? Is the rule of law a matter best left to lawyers, judges and courts, or do politicians and Parliament also have a role to play in upholding the rule of law, by holding the Government to account over rule of law violations, and ensuring that proposed legislation do not offend the principles of the rule of law?
A new Bingham Centre report published today makes a valuable contribution as the first ever, but hopefully not the last, empirical study on the rule of law in Parliament. By examining references to the rule of law over the 2013-14 and 2014-15 Parliamentary sessions in Parliamentary debates, parliamentary questions and written statements, using both quantitative and qualitative analysis, the report aims to improve our understanding of how the rule of law has been used in Parliament.
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2 February 2016 by David Scott
Mark William Patrick MacLennan v Her Majesty’s Advocate, [2015] HCJAC 128 – Read judgment
The High Court has refused an appeal under Article 6 on the lack of effective cross-examination of child witness, but has provided interesting commentary on how such investigations could be better handled in future to meet Strasbourg standards.
by David Scott
The Facts
The original charge concerned reports made against the appellant, the manager at a nursery in Fort William, from children alleging various forms of sexual contact. After initial allegations, joint investigation interviews (JIIs) were conducted between May and July 2013 with various children from the nursery. The value of some of the interviews was questioned by the High Court, with one described as “leading in the extreme” (paragraph 5), yet none were challenged by the defendant when presented as evidence during his trial.
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2 February 2016 by Michael Deacon
The Court of Appeal has given its judgment in a conjoined appeal of two of the latest challenges to the bedroom tax/removal of spare room subsidy (delete as you see fit), holding that it was unlawfully discriminatory in its application to:
- A female victim of serious domestic violence living in a home significantly adapted (including the provision of a “safe room”) to ensure her safety in the face of threats from her former partner; and
- A severely disabled 15 year old boy cared for by his grandmother and her partner, who required a carer to stay in their home two nights per week.
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1 February 2016 by Guest Contributor
The Young Lawyers’ Committee of the Human Rights Lawyers Association is calling for submission for the 2016 Edition of The Young Human Rights Lawyer Journal. The first edition of the The Young Human Rights Lawyer was published in October 2015 and is available here.
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31 January 2016 by Adam Wagner
Steinfeld & Anor v The Secretary of State for Education [2016] EWHC 128 (Admin) – Read judgment
The High Court has ruled in the case of Steinfeld and Keidan v Secretary of State for Education, a human rights challenge to the law of Civil Partnerships. Mrs Justice Andrews ruled that the current law does not breach the human rights of opposite-sex couples who cannot obtain a Civil Partnership.
The case arises from the odd state the law was left in after same-sex couples were given the legal right to marry in 2014. Since 2005, same-sex couples had been allowed to form “Civil Partnerships” which give them essentially the same legal rights and protections as marriage without being able to actually marry. Only same-sex couples can have a civil partnership. Civil Partnerships were a kind of half-way house; the message they sent was that the (New Labour) government wanted to give same-sex couples legal protection akin to marriage but didn’t feel that society was quite ready for full marriage equality.
Once same-sex couples were given the right to marry in 2014, the law was left in a bit of a mess. Same-sex couples have dual means of recognising their partnerships (Civil Partnerships and Marriage) whereas opposite-sex couples could only marry. This is clearly an unintended consequence of the winding route to marriage equality rather than any well-thought out plan.
In 2014, it would have been open to the government to abolish civil partnerships altogether or permit everyone to enter into them. Instead, a “wait and see” approach was adopted.
Rebecca Steinfeld and Charles Keiden (full disclosure: they are friends of mine) wanted to enter into a civil partnership but were prevented because they were not of the same sex. They brought a human rights case against the government saying they were being discriminated against by the current law.
Mrs Justice Andrews rejected their case in strong terms. You can read the full judgment here. I recommend doing so – it is tightly argued and very clear.
In cases involving the right to family and private life, there are two basic stages a judge needs to consider. First, is there an interference with the right – in other words, does the thing that is being complained about interfere with family or private life as it is defined in the European Convention and court judgments. Let’s call that Gate 1. If you get through Gate 1, you then have to get through Gate 2, which is to show that the interference was not justified with reference to proportionality (did the end justify the means?) and other balancing factors which are the text of the right itself.
The claimants here didn’t get through the first gate. Mrs Justice Andrews accepted the government’s argument that Article 8 of the European Convention on Human Rights (the right to family and private life) was not even engaged, let alone breached. Here’s a key bit of the judgment explaining why:
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The only obstacle to the Claimants obtaining the equivalent legal recognition of their status and the same rights and benefits as a same-sex couple is their conscience. That was the case both before and after the enactment of the 2013 Act. Whilst their views are of course to be afforded respect, it is their choice not to avail themselves of the means of state recognition that is open to them. The state has fulfilled its obligations under the Convention by making a means of formal recognition of their relationship available. The denial of a further means of formal recognition which is open to same- sex couples, does not amount to unlawful state interference with the Claimants’ right to family life or private life, any more than the denial of marriage to same-sex couples did prior to the enactment of the 2013 [Same-Sex Marriage] Act. There is no lack of respect afforded to any specific aspect of the Claimants’ private or family life on account of their orientation as a heterosexual couple. Thus the statutory restrictions complained of do not impinge upon the core values under either limb of Art 8 to the degree necessary to entitle the Claimants to rely upon Art 14. The link between the measures complained of, and their right to enjoy their family and private life, is a tenuous one.
See the powerful argument on UK Human Rights Blog (written before the judgment) about why this might be problematic.
As judges usually do, Mrs Justice Andrews went on to consider “Gate 2″ anyway, in case she was wrong about Gate 1. She accepted the government’s argument that their approach to the issue (“wait and see”) had been perfectly reasonable.
Where next? Potentially an appeal. The BBC reports the couple were given permission to appeal which means they can appeal to the Court of Appeal if they choose to do so. If they do appeal, they will have to convince the Court of Appeal that there has been an interference with the right to family life (Gate 1 – certainly arguable) but also that the interference was not justified. Gate 2 will be harder.
As things stand, the law is in a mess. Even if it is not a breach of human rights to refuse opposite sex couples the right to have civil partnerships, that doesn’t mean it is fair or right.
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29 January 2016 by Alasdair Henderson
Lady Hale, who delivered the court’s judgment (Photo: Guardian)
R(C) v. Secretary of State for Justice [2016] UKSC 2 – read judgment.
When is it right to keep the names of parties to litigation a secret? That was the difficult question the Supreme Court had to grapple with in this judgment, handed down on Wednesday. The decision to allow a double-murderer to remain anonymous led to outraged headlines in the tabloids. Yet the Court reached the unanimous conclusion that this was the right approach. Why?
The Facts
C, who had a long history of severe mental illness, was convicted of murdering his ex-girlfriend and her new partner in 1998 and sentenced to life imprisonment with a minimum term of 11 years before parole could be considered. The murder was described by Lady Hale as “a particularly savage killing which must have caused untold suffering to the victims and has continued to cause great grief to their families.” During his sentence C was transferred from prison to a high security psychiatric hospital. Whilst there, in 2012, C’s treating doctors applied for permission to allow him unescorted leave in the community in order to assess how well his treatment was progressing and whether he would be suitable for discharge. The Secretary of State refused to allow this.
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25 January 2016 by Hannah Lynes
In the news
Domestic worker visas are leaving women vulnerable to conditions of abuse that amount to modern slavery, according to an independent review commissioned by the Home Office.
The current system ties overseas domestic workers to the foreign employer who brought them into the UK. Approximately 17,000 visas were issued under the scheme last year, with the large majority of applications coming from the Gulf States.
Workers have no legal right to change their employer, and are liable to deportation if they escape their situation. Campaigners argue that such restrictions expose women to the risk of serious ill treatment, with domestic workers being subjected to physical and sexual violence, deprivation of food and non-payment of wages.
The review of the scheme reinforces these concerns, finding “no evidence that a tie to a single employer does anything other than increase the risk of abuse and therefore increases actual abuse.” It recommends that workers be permitted to change employers and remain in the UK for up to two and a half years.
The Government has stated that it is “carefully considering the report’s recommendations” and would announce its response “in due course.”
In other news:
BBC: An independent investigation into concerns about Yarl’s Wood immigration centre has found no evidence of a “hidden or significant problem of serious misconduct” by staff at the facility. However, the report raised concerns that staffing levels had to some extent “undermined and compromised” the care of residents.
The Guardian: The Upper Tribunal has ordered the Secretary of State for the Home Department to admit to the UK four asylum seekers, currently residing in the ‘Jungle’ in Calais. The Tribunal ruled that the three unaccompanied minors and the dependent adult brother of one of them should be allowed to live with their relatives already in Britain while their asylum claims are examined.
Prime Minister David Cameron has said that there is now “an industry trying to profit from spurious claims” against UK military personnel which he plans to “stamp out”. However, lawyers have noted that the government has agreed to pay compensation in over 300 cases of abuse, and have urged Mr Cameron not to challenge the principle that no-one is above the law. The BBC reports here.
In a letter written to the Guardian, UK lawyers have sought to draw attention to the plight of human rights defenders in Honduras. Between 2010 and March 2015, the national commissioner of human rights recorded the targeted killings of 91 lawyers. The statement calls for greater protection by the Honduran state for those whose lives are at risk.
In the courts
Ivanovski v The Former Yugoslav Republic of Macedonia
This case concerned lustration proceedings brought against the former president of the Constitutional Court of Macedonia, which resulted in his dismissal from office.
The Court found that the proceedings, taken as a whole, had not satisfied the requirements of a fair trial. The Court attached particular importance to the open letter, published by the Prime Minister while lustration proceedings were still pending, which denounced the applicant as a collaborator of the secret police of the former regime. In view of the content and manner in which it was made, the statement was held to be incompatible with the notion of an “independent and impartial tribunal”. The Court therefore found a violation of Article 6 ECHR (the right to a fair trial).
UK HRB blog posts
Court of Session: Murderer’s prison conditions fair – Thomas Raine
UK Government tells High Court: Same-sex couples may be shut out of Article 14 – Professor Robert Wintemute
Stop Powers under the Terrorism Act 2000 incompatible with Article 10 – David Scott
Events
UCL will be hosting a lecture by Professor George Letsas – The Moral Dimension of Proportionality. The event will take place at 18.00 on the 17 March 2016. More information can be found here.
Hannah Lynes
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25 January 2016 by Dominic Ruck Keene
Neil Garnham QC (now Mr Justice Garnham) and Robert Wastell of 1COR acted for the Secretary of State for the Home Department at the Litvinenko Inquiry. David Evans QC and Alasdair Henderson acted for AWE Plc. None was involved in preparing this post.
The publication on Thursday of the long awaited report by Sir Robert Owen into the circumstances of the death of Alexander Litivenko from polonium poisoning on 23 November 2006 has (unsurprisingly) resulted in bitter criticism by the Russian Government of the Inquiry’s conclusions that the poisoning was probably directed by the Russian Federal Security Service, and probably approved by President Putin. The report is long (246 pages not including Appendices), but in page after page of readable and measured prose Sir Robert Owen tells the extraordinary story of Alexander Litvinenko’s death and the subsequent 9 year investigation into it.
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22 January 2016 by Thomas Raine
Hands v Scottish Ministers [2016] CSOH 9, 15th January 2016 – read judgment
The Outer House of the Court of Session has refused a petition for judicial review brought by a convicted murderer against decisions made by the Scottish Prison Service (SPS) about his prison conditions and supervision level.
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22 January 2016 by Guest Contributor
Special Guest Post by Professor Robert Wintemute
On 19-20 January, the England and Wales High Court (Mrs. Justice Andrews) heard the judicial review of the ban on different-sex civil partnerships brought by Rebecca Steinfeld and Charles Keidan. It was argued on behalf of the supposedly LGBTI-friendly UK Government (represented by Nicky Morgan, the Secretary of State for Education and Minister for Women and Equalities) that the High Court should follow two anti-LGBTI decisions from 2006.
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21 January 2016 by David Scott
David Miranda -v- Secretary of State for the Home Department [2016] EWCA Civ 6 – read judgment.
On Tuesday the Court of Appeal handed down its judgment on David Miranda’s detention under the Terrorism Act 2000 and, while upholding the lawfulness of the detention in the immediate case, ruled that the stop powers under Schedule 7 of the Terrorism Act lack sufficient legal safeguards to be in line with Article 10.
by David Scott
See RightsInfo’s coverage here. For our coverage of the High Court’s previous decision see here, and on his original detention here and here.
The Case
Mr Miranda, the spouse of then-Guardian journalist Glenn Greenwald, was stopped and detained by the Metropolitan Police at Heathrow Airport on 18 August 2013 under paragraph 2(1) of Schedule 7 of the Terrorism Act 2000. He was questioned and items in his possession were taken by police, including encrypted material provided by Edward Snowden. Mr Miranda was detained for nine hours, the maximum period permitted at the time (since reduced to six hours).
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18 January 2016 by Charlotte Bellamy
Charlotte Bellamy contemplates the latest human rights happenings
Until recently the Tolpuddle Martyrs peered down from a banner in Westminster Hall in an exhibition celebrating the journey of rights in democratic society over the last 800 years.
The Tolpuddle Martyrs were taken down last month. Meanwhile, the Trade Union Bill has passed through its second reading in the House of Lords. Just before the reading, the Equality and Human Rights Commission released a report on the human rights implications for the Bill, the thrust of which is that its ‘regressive nature’ may cause the UK to fall short of its obligations under the European Convention of Human Rights.
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