Category: BLOG POSTS
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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14 January 2016 by Kate Richmond
Social Media button on a keyboard with speech bubbles.
Barbulescu v Romania, 12 January 2016 – read judgment
In December 2015, the European Court of Human Rights, by 6 votes to 1, dismissed a Romanian national’s appeal against his employer’s decision to terminate his contract for using a professional Yahoo Messenger account to send personal messages to his fiancé and brother.
Mr Barbulescu contended that his employer had breached his Article 8 right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right. The Court found that there had been no such violation because the monitoring of the account by his employer had been limited and proportionate.
Background facts
Mr Barbulescu’s employers asked him to create a Yahoo Messenger account for responding to client enquiries and informed him that these communications had been monitored. The records showed that he had used the Internet for personal purposes, contrary to internal regulations. The employer’s regulations explicitly prohibited all personal use of company facilities, including computers and Internet access. The employer had accessed the Yahoo Messenger account in the belief that it had contained professional messages.
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12 January 2016 by Guest Contributor
In the Chamber Judgment (currently available only in French) in the case of Lopes de Sousa Fernandes v. Portugal (App. No. 56080/13) decided just before Christmas, the European Court of Human Rights (ECtHR) held that there was both a substantive (by 5 votes to 2) and a procedural (unanimous) violation of Article 2 in the case of the death of the Applicant’s husband in circumstances where there was a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, even though that negligent failure was not necessarily causative. This very surprising outcome is important, and may be seen as a radical departure from the established case law of the Court on the necessary threshold for establishing an Article 2 violation in State (i.e. NHS) hospital cases. It also underlines the increased importance of informed consent in clinical negligence cases when viewed from a human rights perspective.
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6 January 2016 by Matt Donmall
Two recent Court of Appeal cases, heard together, have considered the legality of the immigration detention of those who are, or possibly are, minors. Such cases involve local authority age assessments, which are to be carried out according to the guidance set out in Merton [2003] EWHC 1689 (Admin).
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4 January 2016 by Hannah Lynes
The first round=up of 2016 is brought to you by Hannah Lynes.
In the news
The interior ministry of Saudi Arabia has confirmed this week that it has executed 47 people in a single day. Included among those put to death was prominent Shia cleric Sheikh Nimr al-Nimr, who had been a vocal supporter of the 2011 anti-government protests in the country’s Eastern Province.
The execution of Sheikh Nimr has provoked demonstrations across Iran, Bahrain, Iraq and Shia-majority areas in Saudi Arabia. A spokesperson for the Iranian foreign ministry has said that the Saudi Government would pay “a heavy price” for its actions, while the US state department has expressed concern that the execution “risks exacerbating sectarian tensions at a time when they urgently need to be reduced.”
International human rights organisation Reprieve has noted with alarm that “the Saudi Government is continuing to target those who have called for domestic reform in the kingdom”, with at least four of those executed having been convicted of offences related to political protest. The organisation said it had “real concerns” that protestors Ali al-Nimr (Sheikh Nimr’s nephew), Dawoud al-Marhoon, and Abdullah al-Zaher, sentenced to death as children, would be “next in line”.
A statement released by the UK foreign office has emphasised that “the UK opposes the death penalty in all circumstances and in every country.” But despite the much-criticised record of Saudi Arabia on human rights, it recently emerged that Britain had entered into a vote-trading deal with the kingdom to ensure the election of both states to the UN human rights council.
The UK Government has also come under pressure to discontinue its supply of weapons to Saudi Arabia, in circumstances where its bombing campaign in Yemen has led to thousands of civilian deaths. In a legal opinion commissioned by Amnesty International, lawyers from Matrix Chambers concluded that authorisation of the transfer of weapons to the state would “constitute a breach by the UK of its obligations under domestic, European and international law.”
In other news:
The Guardian: A gay British man has avoided extradition to Dubai on charges of theft. A judge at Westminster magistrates court ruled that the UAE had failed to provide adequate assurances that the trial and treatment of Mr Halliday, given his circumstances, would meet the required human rights standards.
The Telegraph: Lord Lester of Herne Hill QC has expressed concern that the Government is undermining freedom of information laws, and is “obsessively secretive”about things that should be in the public domain. The latest releases by the National Archives included only 14 files for the years 1987 and 1988, whereas last year more than 500 files were released.
The Law Society and the Bar Council have issued a joint call for legally privileged communications data to be protected by express provisions in the investigatory powers bill. Current proposals have been criticised as threatening a common law right traceable back to the 16th Century. The Law Society Gazette reports.
The Independent: Senior civil servant Sir Jeremy Heywood is understood to be opposed to the implementation of any major reforms to the Freedom of Information Act. A Government commission is considering proposals to introduce charges for information requests and stricter rules for the obtaining of information.
In the Courts:
This case concerned an allegation of inconsistent case-law amounting to a breach of Article 6 ECHR (the right to a fair trial). The applicants complained about the rejection of their civil claims against Serbia by domestic courts, and the simultaneous acceptance by the same courts of other claims which were based on similar facts and concerned identical legal issues.
The Court reiterated the principle that an assessment of whether conflicting decisions of different domestic courts were in breach of Article 6 consisted in establishing whether “profound and long-standing differences” existed in the relevant case-law. The Serbian judiciary had, generally speaking, harmonised their case-law on the matter, and the rejection of the applicants’ cases was exceptional. The possibility of conflicting court decisions was an inherent trait of any judicial system based on a network of trial and appeal courts with authority over a certain area. That in itself, however, could not be considered to be in breach of the Convention. The Court therefore found no violation of Article 6.
Events
If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com
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23 December 2015 by Jim Duffy
Photo credit: Guardian
It has been a fascinating year in which to edit this Blog. Political and social challenges – from continued government cuts to the alarming rise of Islamic State – have presented new human rights conundrums that have, as ever, slowly percolated to the doors of the country’s highest courts. And all this during the year of an astonishing General Election result and amid continually shifting sands around the future of the Human Rights Act.
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21 December 2015 by Laura Profumo
Laura Profumo peruses the latest human rights happenings.
In the News:
Lord Janner died on Saturday, aged 87, after a long battle with dementia. The former labour peer was due to face a “trial of the facts” in April, after being accused of a string of child sex abuse offences. The special hearing, for suspects unfit to defend themselves in a normal criminal trial, takes place before a jury, yet there is no formal verdict, nor sentencing procedure. It is speculated that, if the trial had continued when Janner was alive, he would have been given a discharge, if not altogether acquitted. It now looks unlikely that the trial will proceed. “I can’t think of any way in which the Crown Prosecution Service could even reinstate the case. It dies with the unfit defendant”, writes academic Ronnie Mackay. It’s a dim prognosis for Janner’s alleged victims, who still hope to have their day in court, after many abortive attempts to bring their claims against Janner before he fell ill. Their hopes are now confined to the forthcoming civil proceedings against Janner’s estate, and the Goddard inquiry. Yet former DPP, Ken Macdonald, has held that the decision whether to proceed with the trial is “quite finely balanced” and, despite his personal preference, there stands a credible case for it taking place. As there’s no question of a penal sanction in a trial of the facts, the presence of the defendant is not strictly required. In light of this, Lord Macdonald has suggested “the argument for continuing is that [Janner] was not going to play any part in these proceedings in any event”.
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21 December 2015 by Guest Contributor
Emily Baxter: Earlier this month, Scotland’s Lord Advocate announced new prosecution guidelines designed to protect refugees fleeing persecution. These help give effect to the UK’s obligations under Article 31 of the 1951 Refugee Convention, which states that:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
Section 31(1) of the Immigration and Asylum Act 1999 (“the Act”) already provides a defence for refugees who commit certain offences in order to gain entry to the country. The new guidelines provide direction for Scottish prosecutors when considering cases in which this defence may arise. They reiterate the importance of the public interest test for prosecution when considering the particular vulnerabilities of refugees “even when the criteria of section 31 are not strictly met.”
The guidelines also potentially broaden the application of the defence in Scotland, both in terms of the offences to which it applies and the classes of people who may rely on it.
Section 31(4) of the Act states that in Scotland that defence applies to the following offences:
– Fraud
– Uttering a forged document
– Section 4 or 6 of the Identity Documents Act 2010
– Section 24A of the Immigration Act 1971 (deception)
– Section 26 (1)(d) of the Immigration Act 1971 (falsification of documents)and
– Any attempt to commit any of those offences
However, the guidelines state that “other offences may well be covered by the defence if committed to facilitate entry to the United Kingdom in connection with a flight from persecution”, such as charges involving giving false details to facilitate entry.
Additionally, while the Act only refers to a defence for refugees the guidelines suggest the protection afforded by section 31 can be extended to those who are not refugees or asylum seekers. Examples given are stateless persons or those who cannot are granted leave to remain on humanitarian grounds.
The full guidelines are available here: http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_and_Policy/COPFS%20Refugees%20Policy.pdf
Comment:
The guidelines support and extend the application of the existing defence in section 31(1) of the Act.
However, they also reiterate that the following criteria should be met:
- The person has come to the UK directly from a country where his or her life or freedom was threatened within the meaning of the Refugee Convention;
- The person presented him or herself to the authorities in the United Kingdom without delay;
- The person had good cause for his or her illegal entry or presence;
- The person has made a claim for asylum as soon as reasonably practicable after arrival in the United Kingdom;
- If the person stopped in another country outside the UK having left the country where his or her life or freedom was threatened, that he or she could not reasonably have expected to be given protection under the 1951 Convention in that country; and
- The person claimed asylum after having committed the offence from which he or she seeks protection from conviction.
The first criterion may be particularly difficult for many refugees to prove on the balance of probabilities, and will be controversial in light of the growing “refugee crisis”. For example, in September the European Parliament overwhelmingly voted in favour of a Resolution on Migration and Refugees in Europe 2015/2833(RSP) calling in the European Commission to reform the “Dublin rules” which require refugees to claim asylum in the first EU state the reach. Time will tell as to whether the new guidance has a salutary impact on the practical ability for refugees to settle in Scotland.
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18 December 2015 by Thomas Raine
Macklin v Her Majesty’s Advocate [2015] UKSC 77, 16th December 2015 – read judgment
The Supreme Court has unanimously dismissed an appeal against a decision of Scotland’s High Court of Justiciary (available here) in which it refused to overturn a criminal conviction on the basis that the non-disclosure of evidence breached the appellant’s right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
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18 December 2015 by Fraser Simpson
Photo credit: Guardian
Ansari, Re Judicial Review, [2015] CSOH 168 – read judgment.
The Outer House of the Court of Session has held that the duty imposed under Article 5, ECHR to afford prisoners a reasonable opportunity to rehabilitate themselves, recognised by the Supreme Court in R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66, does not extend to local authorities.
by Fraser Simpson
Background
The petitioner, Yousef Ansari, is currently serving a sentence of life imprisonment. The punitive part of his sentence, set at nine years, expired in March 2005. In his petition for judicial review, Mr Ansari claimed that the local authority, Aberdeen City Council, and the Scottish Government, had failed to afford him a reasonable opportunity to rehabilitate himself. A duty to offer opportunities for rehabilitation had been previously recognised as implicit in the scheme of Article 5 by the Supreme Court in Haney (see previous UKHRB post here). The hearing before Lord Glennie was restricted to the question whether the council owed such a duty.
Mr Ansari’s case
The starting point for the petitioner was the duty recognised in the Supreme Court decision in Haney. He argued that the duty required both the provision of opportunities for rehabilitation, which was the responsibility of the Scottish Ministers, and the provision of opportunities for the prisoner to demonstrate that they no longer posed an unacceptable risk to the public. This latter aspect of the Haney duty required the active cooperation of the local authority. Mr Ansari argued that Aberdeen City Council had failed to satisfy this duty. Whilst in the “Open Estate”, he was provided with the opportunity to return to the community – an important step in proving he no longer posed a threat. However, during this reintegration he was placed under extensive supervision by the local authority which, in his submission, undermined his ability to demonstrate he posed a reduced risk to the public.
Additionally, his ability to be temporarily released into the community was contingent upon the ability to provide the local authority with an appropriate “home leave” address. Mr Ansari claimed that during the vetting process the local authority had incorrectly considered his brother’s residence as inappropriate. Further, if no other address had been suitable, the local authority had a duty to provide him with accommodation under Part II, Housing (Scotland) Act 1987. On his case, these shortcomings had prevented Mr Ansari from temporarily returning to the community and therefore denied him the opportunity to demonstrate that he posed a reduced risk to the public.
In the alternative, Mr Ansari submitted that the duty would, in any event, extend to the local authority. The duty was imposed upon the “state” and, by virtue of s.6, Human Rights Act 1998, this would extend to public bodies such as Aberdeen City Council. As a result, they were bound by the requirements of Article 5, which included the duty recognised in Haney.
Imposing the Haney duty on the local authority, from the petitioner’s perspective, was a natural conclusion. Whilst the functions of the Scottish Ministers and the local authority differed, they both played an important role in the rehabilitation of Mr Ansari. A number of functions of the local authority, especially in the process relating to preparation for release, could not be carried out by the Scottish Ministers acting through the Scottish Prison Service. Extending the duty to provide reasonable opportunities for rehabilitation to the local authority would ensure that the Haney duty was “practical and effective” due to the important “real and practical sense” in which the local authority was involved in Mr Ansari’s rehabilitation.
The City Council’s submissions
The first respondent submitted that they did not owe the petitioner any duty under Article 5 as interpreted in Haney. The duty to provide opportunities for rehabilitation is not a freestanding duty, but instead stems from the decision of the state to detain an individual following conviction by a competent court. In James, Wells, and Lee v. the United Kingdom, [2012] ECHR 1706, the European Court of Human Rights recognised that part of the purpose of an indeterminate sentence was to rehabilitate the prisoner. Consequently, the Supreme Court in Haney recognised the need to provide reasonable opportunities to rehabilitate in the event that the state attempts to justify continued detention under Article 5(1)(a). The first respondent submitted that as they had no power to detain the prisoner, or order his release, it would be inappropriate to impose such a duty upon them.
Decision
Lord Glennie held that the duty recognised in Haney could not be extended to Aberdeen City Council. In line with submissions made by counsel for the first respondent, Lord Glennie held that the Haney duty is only imposed on states in the event that they have detained a prisoner and rely upon Article 5(1)(a) as justification. However, the local authority is in an entirely different position and has no powers to detain or release the prisoner. The first respondent was not required to justify the detention of the prisoner and, therefore, there was no reason to impose the Haney duty upon them.
In the petitioner’s submissions, reference was made to Lord Glennie’s decision in Reid, Re Judicial Review, [2015] CSOH 84 (read previous UKHRB post here). In Reid, Lord Glennie held that as part of the duty recognised in Haney, the Scottish Ministers had a duty to take “reasonable steps to procure” the cooperation of the local authority during the rehabilitation process (see paragraph 30). Lord Glennie clarified that in providing various services to the Scottish Ministers that aid the rehabilitation process, the local authority could only be considered to owe a duty to the Scottish Ministers, not the individual prisoner. As a result, Reid provided no support for the submission that the Haney duty should be extended to the local authority.
Lord Glennie also noted that certain statutes may impose specific duties upon a local authority. For example, s.27, Social Work (Scotland) Act 1968 (detailing the functions relating to the supervision and care of those released from prison) and the Housing (Scotland) Act 1987 outlined relevant functions and duties of the local authority. However, these did not assist the argument that the general Haney duty arising from the operation of Article 5 could extend to the local authority. These duties existed independently from any duty to afford opportunities for rehabilitation. Any failures relating to these duties could be challenged by Mr Ansari in separate proceedings.
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