Developments in the oversight of British Troops abroad – the Roundup

In the news

The oversight of the conduct of British soldiers in Iraq has been subject of two recent developments. The first is political, as Prime Minister Theresa May has renewed criticism of investigations into allegations of criminal behaviour of British troops. The second is legal, with the Court of Appeal offering clarification as to the role of the ECHR in conflicts abroad. However, comments by Defence Secretary Michael Fallon have since thrown into doubt the future role of the ECHR in conflicts abroad.

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How will human rights fare under new PM Theresa May? – the Round-up

In the news

Theresa May has been sworn in as Prime Minister of the United Kingdom, prompting speculation about the impact her leadership will have on human rights.

The former Home Secretary has been a vocal and long-standing critic of the Human Rights Act. In a 2011 speech she insisted that the legislation “needs to go”, making controversial reference to what legal commentators argued was a “mythical example” of an immigrant who could not be deported because “he had a pet cat”. Her appointment of Liz Truss as Justice Secretary, who has previously spoken out against the HRA, suggests that the Government will continue with plans to replace the Act with a British Bill of Rights.

Nonetheless, it appears that the UK will remain a signatory to the European Convention on Human Rights, at least in the near future. During her campaign to be Prime Minister, Theresa May stated that she would not pursue pulling out of the ECHR, describing the issue as divisive and lacking majority support in Parliament. Amnesty International have said that they “warmly welcome” this commitment, and have called on the Prime Minister to “turn the corner on human rights” in the UK.

In an examination of “Theresa May’s Eight Human Rights Highs and Lows”, RightsInfo has noted that in 2012 May “came out strongly in support of the proposal to change the law so people of the same sex could marry”. Pink News charts her evolution on LGBT rights to become the “unsung hero” of equal marriage, while pointing out criticisms that conditions for LGBT asylum-seekers have worsened under her tenure as Home Secretary.

On the issue of freedom of religion, commentators have similarly looked to Teresa May’s actions as Home Secretary for an indication of her position. David Pocklington provides an overview for Law & Religion UK, noting her recent launch of an independent review into the operation of sharia law in England and Wales.

Meanwhile, the Government’s review into whether victims of trafficking have effective access to legal advice has yet to be published. Writing in the Justice Gap, Juliette Nash has called on Theresa May to deliver on her promise to tackle modern slavery and implement any recommendations of the review as soon as possible: “the spotlight is now on …the Prime Minister…to ensure that justice is done”.

In other news:

The Guardian: Lawyers acting on behalf of a British citizen are seeking to challenge the lawfulness of the Government triggering Article 50 of the Treaty on the European Union without parliamentary approval. We have posted on the “divorce” process here.  The UK Constitutional Law Association Blog provides  extensive academic discussion of the constitutional issues surrounding the UK’s withdrawal from the EU.

Law Society’s Gazette: In a report on the impact of tribunal fees published on 20 June, the House of Commons Justice Committee made a number of recommendations, including that the fees charged in the employment tribunal should be ‘substantially reduced’. In the meantime, Unison has continued to pursue its quest for judicial review of the lawfulness of the fees, with an appeal to the Supreme Court set for December 2016.

BBC: An investigation is under way following the death of 18 year-old Mzee Mohammed in police custody, who had been detained by security staff at a shopping centre. The charity Inquest has called for “the most thorough and robust scrutiny of the actions of the security guards and the police” who were in contact with Mr Mohammed before his death.

Daily Telegraph: Figures released by the CPS show that the number of prosecutions for hate crimes against disabled people has increased by 41.3% in the last year, while prosecutions for homophobic and transphobic crime have risen by 15% over the same period.

In the courts:

Taddeucci and McCall v Italy (judgment in French only)

This case concerned the refusal of Italian authorities to grant a residence permit to a gay couple, on the basis that they did not constitute family members. The Court found that the restrictive interpretation of the notion of family member applied by the authorities did not take into account the fact that under Italian law the couple were unable to marry. In deciding to treat homosexual couples in the same manner as unmarried heterosexual couples, Italy was in breach of article 14 (freedom from discrimination) taken together with article 8 (right to respect for private and family life).

Buzadji v the Republic of Moldova

This case concerned the detention of a businessman for ten months, pending trial on an allegation of attempted fraud. The Court affirmed that judicial authorities were required to give relevant and sufficient reasons for detention, in addition to having a “reasonable suspicion” that the relevant individual had committed an offence. Importantly, this requirement was held to apply already at the time of the first decision ordering detention, and “promptly” after the arrest.

On the particular facts, the Court found that the reasons given for detention had been stereotyped, abstract and inconsistent. As such there had been a violation of article 5 (the right to liberty).

UK HRB posts

Whose fair trial prevails? – David Hart QC

Justice for everyone: another Grayling reform bites the dust – Gideon Barth

Book review: “The Inquest Book: The Law of Coroners and Inquests” edited by Caroline Cross and Neil Garnham – Michael Deacon

The Chilcot Report – an Illegal War? – Dominic Ruck Keene

Another door closes for the Chagossians – Dominic Ruck Keene

Get out the back, Jack? make a new plan, Stan? – Rosalind English


UN committee rules on abortion prohibition – the Round-up

Photo credit: the Huffington Post

In the news

The UN human rights committee has found that restrictive abortion laws in Ireland had subjected a woman to cruel, inhuman and degrading treatment, in violation of the International Covenant on Civil and Political Rights.

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Unlimited Immigration Detention and the Right to Liberty – the Round-up

Photo credit: RT

In the news

The absence of fixed time limits in the UK system of immigration detention does not breach Article 5 of the Convention (the right to liberty), according to a recent decision of the European Court of Human Rights in JN v United Kingdom.

The applicant was an Iranian national who was refused asylum in the UK and issued with a deportation order. He was detained in an immigration removal centre for more than four and a half years, following completion of a custodial sentence for indecent assault. The applicant complained that in the absence of fixed time limits, domestic law was unclear and did not produce foreseeable consequences for individuals.

This argument was rejected by the Court, which re-iterated that Article 5 does not lay down maximum time limits for detention pending deportation. The issue was said to be whether domestic law contained sufficient procedural safeguards against arbitrariness, and in this regard the UK did not fall short of Convention requirements. However, the Court did find that between January 2008 and September 2009 deportation of the applicant had not been pursued with “due diligence”, and his detention during this period was therefore in breach of his right to liberty.

The decision will come as a disappointment to campaigners, who point out that the UK is the only EU Member State which places no time limit on the detention of foreign nationals. According to the UNHCR, detention can have “a lasting, detrimental impact on the mental and physical health of asylum seekers”, and both a cross-party Parliamentary Inquiry and a recent report of the UN Human Rights Committee have called on the UK to adopt an upper limit.

It remains open to the Government to do so. However, in light of the judgment in JN, the introduction of a statutory time limit would now appear unlikely. A spokeswoman told the Guardian that the Home Office were pleased with the outcome of the case: “We maintain that our immigration detention system is firm but fair”.

In other news

The Queen’s Speech has declared that “proposals will be brought forward for a British Bill of Rights” – wording that is near identical to last year’s commitment to ‘bring forward proposals for a British Bill of Rights”. Speaking to the Huffington Post, Policy Director at Liberty, Bella Sankey remarks that if this “felt like groundhog day, it was because little progress has been made” towards the scrapping of the Human Rights Act. UKHRB founder Adam Wagner provides a useful list of reactions and coverage here.

A report from the European Commission points to evidence that “the migration crisis has been exploited by criminal networks involved in trafficking in human beings”, who target the most vulnerable. According to official figures, in 2013-2014 there were 15,846 registered victims of trafficking in the EU, although the true number is considered to be “substantially higher”. The BBC reports on the findings.

The Supreme Court has upheld an interim injunction in the ‘celebrity threesome’ case, until after the full trial for invasion of privacy. The Court of Appeal had been wrong to enhance the weight attached to freedom of expression (article 10 ECHR) as compared with the right to respect for privacy (article 8 ECHR) – neither article had preference over the other in the balancing exercise. David Hart QC provides an analysis of the decision for the UKHRB – a summary of the main points can be found on RightsInfo

In the courts

The applicants were Hungarian nationals and members of parliament, who had been issued with fines for engaging in protests that were disruptive of parliamentary proceedings. They complained that this had violated their right to freedom of expression (article 10 ECHR).

The Court observed that Parliaments were entitled to react when their members engaged in disorderly conduct disrupting the normal functioning of the legislature. However, on the present facts domestic legislation had not provided for any possibility for the MPs concerned to be involved in the relevant disciplinary procedure. The interference with the applicants’ right to freedom of expression was therefore not proportionate to the legitimate aims pursued, because it was not accompanied by adequate procedural safeguards. Accordingly, the Court found a violation of Article 10.

The applicant’s husband had died in circumstances where there had been a negligent failure to diagnose meningitis shortly after (successful) nasal polyp surgery, although that negligent failure was not necessarily causative. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held that there had been a violation of Article 2 (right to life) of the Convention as to the right to life and, unanimously, that there had been a violation of Article 2.

Analysis of that decision is provided by Jeremy Hyam QC for the UK HRB. On 2 May 2016 the Grand Chamber Panel accepted the Portuguese Government’s request that the case be referred to the Grand Chamber.


Those in need of some summer reading might consider: Five Ideas to Fight For, by Anthony Lester, recently published. The book describes the development of English law in relation to human rights, equality, free speech, privacy and the rule of law, explaining how our freedom is under threat and why it matters.

UK HRB posts

CA says ex-pats cannot say yes or no to Brexit – David Hart QC

The British Bill of Rights Show: Series 14, Episode 9…*Zzzzzzz* – Adam Wagner

Three Way in the Supreme Court: PJS remains PJS – David Hart QC

The National Preventive Mechanism of the United Kingdom – John Wadham

Bank Mellat’s $4bn claim: CA rules out one element, but the rest to play for – David Hart QC

Visa scheme exposes workers to abuse -the Round-up

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


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.

Saudi execution of political prisoners sparks protest – the Round-up

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.


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10 human rights cases that defined 2015

Supreme Court

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. Continue reading